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ISCR Case 21-02285 — CASE

ISCR Case 21-02285denied

Case Headnote

ISCR Case No. 21-02285

deniedJul 8, 2022· Hon. Edward W. Loughran· hearing

Summary

A 31-year-old defense contractor's security clearance application was denied due to concerns under Guideline G (Alcohol Consumption) and Guideline H (Drug Involvement). The Statement of Reasons cited excessive alcohol consumption, including a DWI and alcohol-related hospitalization. However, the applicant demonstrated successful mitigation of these alcohol concerns by proving rehabilitation and abstinence since 2019, leading to the application of mitigating conditions.

Despite resolving the alcohol-related issues, the applicant failed to mitigate concerns regarding drug involvement. The Statement of Reasons noted illegal use and possession of marijuana for non-medical purposes, along with an expressed intent to continue drug involvement. Disqualifying conditions were raised due to the applicant's ongoing marijuana use, which remains illegal under federal law despite its legality in his state.

The denial was specifically based on the applicant's continued marijuana use and his expressed intent to continue using it for medicinal purposes, which raised concerns about compliance with federal laws. Consequently, the security clearance was DENIED.

Why the Applicant Prevailed

The applicant demonstrated successful rehabilitation from alcohol use, having abstained since October 2019.
The applicant's alcohol consumption did not cast doubt on his current reliability, trustworthiness, or good judgment.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedSubstance Misuse
AG ¶ 25(c)raisedIllegal Possession of a Controlled Substance
AG ¶ 25(g)raisedIntent to Continue Drug Involvement

Mitigating

AG ¶ 26(a)rejectedBehavior Unlikely to RecurThe applicant's marijuana use is ongoing and illegal under federal law.
AG ¶ 26(b)rejectedAcknowledgment and Evidence of Overcoming Drug InvolvementThe applicant intends to continue using marijuana, indicating a lack of commitment to abstain.

Key Rule Quoted

“Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”
— AG ¶ 2(b)

Procedural Posture

SOR issuedNov 30, 2021
Answer filedFeb 28, 2022Requested decision based on written record.
Hearing held—Decision made based on written record.
Decision dateJul 8, 2022

Cite For

Mitigation of Alcohol Consumption Concerns Under Guideline G
Disqualifying Conditions Related to Drug Involvement Under Guideline H
Impact of Federal Law on State-legal Marijuana Use in Security Clearance Cases.

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline G (Alcohol Consumption) · descriptive summary of a decided case

Posture: Decision on RecordDecided: deniedTREATMENT COMPLETED · FAVORABLE

The judge found that the applicant had a history of excessive alcohol consumption leading to a DWI arrest in 2012 and hospitalization due to alcohol-related issues. However, the applicant demonstrated successful rehabilitation and has abstained from alcohol since October 2019, which mitigated the security concerns. Ultimately, the application for a security clearance was denied.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
2.a	Excessive alcohol consumption leading to DWI.	For Applicant	DUI or DWI Alcohol	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	—	—
2.b	Hospitalization due to alcohol-related issues.	For Applicant	Alcohol Related Hospitalization	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.) (b) alcohol-related incident at work	—	—
2.c	Demonstrated rehabilitation and abstinence from alcohol since 2019.	For Applicant	Unspecified Alcohol Incident	Admitted	—	(c) participating in counseling/treatment with satisfactory progress, no prior relapse	Credited Abstinence Period Documented
2.d	specific text not stated in this decision	For Applicant	Unspecified Alcohol Incident	Unknown	—	—	—

Descriptive standardized rendering of a decided public case (Guideline G). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations related to drug involvement, specifically illegal use and possession of marijuana, as well as expressed intent to continue using it. The decision to deny the applicant's security clearance was based on the history of marijuana use and the intent to use it for medical purposes, which remains illegal under federal law.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Illegal use of controlled substances, including marijuana.	Against Applicant	Marijuana	Regular	Admitted	—	—	—
1.b	Possession of marijuana for non-medical purposes.	Against Applicant	Marijuana	Not Applicable	Admitted	—	—	—
1.c	Expressed intent to continue drug involvement.	Against Applicant	Stated Intent to Use Again	Not Applicable	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 21-02285 ) Applicant for Security Clearance ) Appearances For Government: Andre M. Gregorian, Esq., Department Counsel For Applicant: Pro se 07/08/2022

STATEMENT OF CASE

LOUGHRAN, Edward W., Administrative Judge: Applicant mitigated the Guideline G (alcohol consumption) security concerns, but he did not mitigate the security concerns under Guideline H (drug involvement and substance misuse). Eligibility for access to classified information is denied. Statement of the Case On November 30, 2021, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines G and H. Applicant responded to the SOR on February 28, 2022, and requested a decision based on the written record in lieu of a hearing. The Government’s written case was submitted on March 16, 2022. A complete copy of the file of relevant material (FORM) was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on March 28, 2022. As of May 25, 2022, he had not responded. The case was assigned to me on June 16, 2022. The Government exhibits included in the FORM are admitted in evidence without objection.

FINDINGS OF FACT

Applicant is a 31-year-old employee of a defense contractor. He has worked for his current employer since December 2020. He is applying for a security clearance for the first time. He has an associate degree and additional college credits, but no bachelor’s degree. He is single without children. (Items 2, 3) Applicant has a history of substance abuse. He started using marijuana in about 2006. He was issued citations for possession of marijuana in 2006 and 2010. He stopped using marijuana after the second citation, but his alcohol use started to become problematic in about 2011. It increased to the point that he was drinking beer daily and liquor several times a week. He was arrested and charged with driving while intoxicated (DWI) in 2012. He pleaded guilty and was sentenced to 45 days in jail, with all of the jail time suspended; probation for one year; a fine and costs; and attendance at an alcohol class. (Items 1-3) Applicant’s alcohol use contributed to medical problems, resulting in inpatient hospitalizations in July 2019 and from October 2019 to December 2019. He has not had any alcohol since he was admitted to the hospital in October 2019. He was told that drinking again could kill him. (Items 1-3) Applicant was prescribed opioid medication for the pain. After consulting with his pain-management doctor, he decided that marijuana was a better alternative than opioids. In March 2020, he resumed using marijuana, but only for medicinal purposes. He purchased the marijuana about once a month. (Items 1-3) Applicant reported his alcohol issues and his marijuana use on a Questionnaire for National Security Positions (SF 86) he submitted in January 2021. He stated that he intended to use marijuana in the future with the comment: “I use this for medical reasons. As suggested by my Doctors. It provides a level of relief that could only be achieved by heavy narcotic and opioid medication.” (Item 2) Applicant provided similar information when he was interviewed for his background investigation in March 2021 and in his response to interrogatories in October 2021, in which he wrote: My use of medical cannabis/marijuana has been a vital tool in my journey of recovery and has helped me become the best me I have ever been. In addition to the fact that it helped me stop taking heavy doses of opioids almost immediately, its use helps me with pain relief, gastric stress/problems relief, sleep issues, and it works in conjunction with my anxiety medication for anxiety relief. If permitted, I would like to continue to use medical cannabis. (Item 3) Applicant wrote in his response to the SOR: “I am willing to work and find an alternative medical solution, but until that medical solution is found, I’m going to

continue to use the medical solution that works, as it is legal in my state to do so.” He did not respond to the FORM, so additional information is not available.

POLICIES

This case is adjudicated under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG), which became effective on June 8, 2017. When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain a favorable security decision. A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

Section 7 of EO 10865 provides that adverse decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline G, Alcohol Consumption The security concern for alcohol consumption is set out in AG ¶ 21: Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual’s reliability and trustworthiness. The guideline notes several conditions that could raise security concerns under AG ¶ 22. The following are potentially applicable in this case: (a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of the frequency of the individual's alcohol use or whether the individual has been diagnosed with alcohol use disorder; and (c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder. Applicant admittedly was a heavy drinker up through October 2019. He was arrested for DWI in 2012. The above disqualifying conditions are applicable. SOR ¶¶ 2.band 2.callege Applicant’s hospitalization “for medial issues due, at least in part, to [his] excessive alcohol consumption.” SOR ¶ 2.balso alleges that he continued to drink excessively after the hospitalization. The gravamen of these allegations is not the hospitalizations, it is the excessive drinking before and after the hospitalizations. The excessive drinking is already alleged in SOR ¶ 2.a. When the same conduct is alleged twice in the SOR under the same guideline, one or more of the duplicative allegations should be resolved in Applicant’s favor. See ISCR Case No. 03 04704 at 3 (App. Bd. Sep. 21, 2005). SOR ¶¶ 2.band 2.care concluded for Applicant. Conditions that could mitigate alcohol consumption security concerns are provided under AG ¶ 23. The following are potentially applicable: (a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or judgment; and

(b) the individual acknowledges his or her pattern of maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations. Applicant has not had a drink since October 2019, and his health prevents him from drinking. I find evidence of successful rehabilitation, and that alcohol consumption does not cast doubt on his current reliability, trustworthiness, and good judgment. Alcohol consumption security concerns are mitigated. Guideline H, Drug Involvement and Substance Misuse The security concern for drug involvement and substance misuse is set out in AG ¶ 24: The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, and the use of other substances that cause physical or mental impairment or are used in a manner inconsistent with their intended purpose can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations. Controlled substance means any “controlled substance” as defined in 21 U.S.C. 802. Substance misuse is the generic term adopted in this guideline to describe any of the behaviors listed above. The guideline notes several conditions that could raise security concerns under AG ¶ 25. The following are potentially applicable in this case: (a) any substance misuse (see above definition); (c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and (g) expressed intent to continue drug involvement and substance misuse, or failure to clearly and convincingly commit to discontinue such misuse. Applicant possessed and used marijuana from 2006 to 2010. He resumed using marijuana for pain-management purposes in March 2020. Marijuana, including medical marijuana, remains a controlled substance and illegal under federal law. He stated multiple times that he intended to use marijuana for medicinal purposes in the future. AG ¶¶ 25(a), 25(c), and 25(g) are applicable. AG ¶ 26 provides conditions that could mitigate security concerns. The following are potentially applicable:

(a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; and (b) the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence, including, but not limited to: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; and (3) providing a signed statement of intent to abstain from all drug involvement and substance misuse, acknowledging that any future involvement or misuse is grounds for revocation of national security eligibility. Applicant’s marijuana use from 2006 to 2010 is mitigated. SOR ¶¶ 1.dand 1.e are concluded for Applicant. Applicant wrote that he would continue to use medical marijuana, “as it is legal in [his] state to do so.” Applicant did not violate any state law when he possessed and used marijuana for medicinal purposes. I believe Applicant has been completely truthful and forthcoming, and his position has become increasingly common and accepted. However, marijuana possession is still a federal crime, and inconsistent with holding a security clearance. None of the mitigating conditions are applicable, and Applicant’s illegal drug use is not mitigated. Additionally, as an unlawful user of a controlled substance, he is precluded from holding a security clearance by the Bond Amendment.1

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of the applicant’s conduct and all relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation 1 IRTPA of 2004 § 3002, 50 USC § 3343; and Appendix B of the adjudicative guidelines (Bond Amendment Guidance).

________________________ for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guidelines G and H in my whole-person analysis. Overall, the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. I conclude Applicant mitigated the Guideline G (alcohol consumption) security concerns, but he did not mitigate the security concerns under Guideline H (drug involvement and substance misuse).

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline H: Against Applicant Subparagraphs 1.a-1.c: Against Applicant Subparagraphs 1.d-1.e: For Applicant Paragraph 2, Guideline G: For Applicant Subparagraphs 2.a-2.d: For Applicant

CONCLUSION

It is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied. Edward W. Loughran Administrative Judge