ISCR Case No. 22-00709

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 22-00709 ) Applicant for Security Clearance ) Appearances For Government: William Miller, Esq., Department Counsel For Applicant: Pro se 10/26/2023

HOGAN, Erin C., Administrative Judge: Applicant did not mitigate the concerns raised under drug involvement, criminal conduct and personal conduct. Access to classified information is denied. History of the Case Applicant submitted a security clearance application (SCA) on June 30, 2021. On August 31, 2022, the Defense Counterintelligence and Security Agency (DCSA) issued a Statement of Reasons (SOR) alleging security concerns under Guideline H, Drug Involvement and Substance Misuse; Guideline E, Personal Conduct; and Guideline J, Criminal Conduct. Applicant answered the SOR on September 26, 2022, and requested a hearing before an administrative judge (Answer). The case was assigned to me on June 14, 2023. On July 17, 2023, the Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for August 3, 2023. I convened the hearing as scheduled via video teleconference. Department Counsel offered 10 exhibits which were admitted as Government Exhibits (GE) 1-10. Applicant did not submit any exhibits at his hearing, but the record was held open until September 5, 2023, to allow Applicant to submit additional documents. He timely submitted an 8-page document which was admitted as Applicant

Exhibit (AE) A, without objection. I received the transcript (Tr.) on August 14, 2023, and the record closed on September 5, 2023.

Applicant, age 33, is an employee of a Department of Defense contractor seeking to maintain his security clearance. He has worked for various DoD contractors at an overseas location since 2015. He served on active duty in the United States Army from 2007 to 2010, separating with a general under honorable conditions discharge. He is divorced and has no children. (GE 1-2; Tr. 11, 17-18, 26) Guideline H – Drug Involvement Applicant admitted using marijuana with varying frequency from October 2009 to January 2010. (SOR ¶ 1.a, Response to SOR) He also admitted using marijuana with varying frequency from July 2014 to February 2021. (SOR ¶ 1.b, Response to SOR) In April 2010, he was discharged from the U.S. Army with a discharge characterized as general under honorable conditions due to a positive urinalysis for THC, and marijuana use. (SOR ¶ 1.c: GE 9) After his discharge from active duty, Applicant was arrested on three occasions and charged with drug-related offenses to include: SOR ¶ 1.d: February 2015 arrest for Use/Possession Drug Paraphernalia; Use/Possession Marijuana. Applicant failed to appear in court and a warrant was issued. The case was nolle prossed, with prejudice in May 2018. (GE 3); SOR ¶ 1.e: June 2015 arrest for Illegal Possession of Prescription Drugs and Possession of Marijuana, Second Degree. He failed to appear in court and a warrant was issued for his arrest. (GE 2 at 18; GE 5); and SOR ¶ 1.f: May 2018 arrest for Possession of Marijuana Second Degree and Open Container in a Vehicle. He failed to appear in court and a warrant was issued for his arrest. (GE 2 at 19-20; GE 6) During the hearing, Applicant testified that he first used marijuana at age 12. It was a one-time experimental use. He did not use marijuana again until he was deployed to Iraq in 2009. He was deployed to Iraq from approximately July 2008 to October 2009. Although Applicant admitted the use of alcohol and marijuana was prohibited in Iraq by a General Order, several of his fellow soldiers were drinking alcohol to blow off steam. He was a driver and decided it was better to use marijuana instead of alcohol even though he was aware marijuana use was prohibited. He estimated he used marijuana at least once a month while deployed. (Tr. 18-19, 70-71) Upon his return from deployment, Applicant continued to use marijuana while on active duty. He smoked marijuana in social settings, at parties, and in the park. He estimated his level of use was on a weekly to monthly basis. In early 2010, Applicant

smoked marijuana with a fellow soldier at a party in the barracks. Soon after, his unit was called for a random urinalysis. He and his friend both tested positive for THC, a derivative of marijuana and both were eventually discharged from active duty. In February 2010, he was ordered to attend ASAP (a drug counseling course the Army provided), but was separated from active duty before its completion. (GE 2 at 15. Tr. 19-20) After his separation from active duty, Applicant did not use marijuana until July 2014. He smoked marijuana on a monthly basis until February 2021. He stopped using marijuana when he applied for his current job because he did not want to fail the drug test. Between 2015 to 2021, Applicant worked for several DoD contractors. He was asked whether he recalls signing a drug policy document with each employer which states that illegal drug use is prohibited. Subject told the background investigator conducting his security clearance investigation that he knew marijuana use was against policy, but thought his use was not hurting anything since he never used marijuana at work. He stopped using marijuana in hopes of being granted a security clearance. He claims he is not dependent on marijuana and is able to stop using it. He testified during the hearing that the last time he used marijuana was in November 2022. I am going to use the November 2022 date as the last time he used marijuana. (Tr. 22-25, 74; GE 2 at 16) Applicant admits that he was arrested in February 2015 (SOR ¶ 1.e) but was not sure what the charges were. He claims the police were looking for his brother. His brother was not home, so Applicant was arrested because the police discovered grinders and papers. Applicant denies that he possessed marijuana. He did not appear in court. He returned overseas to work. He claims that he was not aware of the outstanding charges until he came home on vacation and was arrested for having open arrest warrants. (Tr. 26 -30; Answer to SOR) Applicant admits he was arrested in June 2015, but denies that he possessed marijuana or illegally possessed prescription drugs. (SOR ¶ 1.e) He was driving with Mr. M, a close friend. The car he was driving belonged to his mother’s friend. A police car drove in the opposite direction and noticed Applicant was driving without a seat belt. As Applicant pulled into the driveway of Mr. M’s house, the police approached their car. A subsequent search of the car revealed prescription pills. He does not recall marijuana being found in the car. He and his friend were arrested, booked, and spent 24 hours in jail. He posted bond. He was given a court date, but went back overseas to work before the court date. He failed to appear and a warrant was issued for his arrest. (Tr. 32, GE 2 at 18-19; Answer to SOR; GE 5) Finally, Applicant admits he was arrested in May 2018 but was not sure where the marijuana charges came from. (SOR ¶ 1.f) He was home on leave to attend his sister’s graduation. He had several open bottles of alcohol in the car which were left over from the graduation celebration. He was driving back from the celebration. A woman who he had just met on-line was in the car with him. He believes she may have possessed marijuana. He denies possessing marijuana. Five minutes after he picked up the woman, the police pulled him over and he was arrested for Open Container and Possession of Marijuana, Second Degree. The police discovered Applicant had open warrants in several jurisdictions. The police report indicates Applicant was searched after they discovered he

had outstanding warrants. A bundle of U.S. currency and a plastic baggie containing a green leafy substance believed to be marijuana was found in Applicant’s right front pocket of his shorts. (Gov 6 at 2) Applicant ended up spending four nights in jail in four different jurisdictions in order to answer the outstanding warrants. After he was released, Applicant returned to his overseas residence. He did not appear at his court date and a warrant was issued for his arrest. (Tr. 45 – 52; GE 2 at 19-20; GE 6; Answer to SOR) Applicant returned to the U.S. in November 2020, to spend Thanksgiving with his family. He did not attempt to resolve his open warrants when he was home. His mother told him not to worry about it because it had no effect on his job or life overseas. (Tr. 54- 56; Gov 2 at 20) During the hearing, Applicant testified the last time he visited the U.S. was May 2022. The warrants remain outstanding. He indicated he plans to hire a lawyer to solve these issues at some point in the future. (Tr. 15, 43; GE 4; GE 10) Criminal Conduct The allegations in SOR ¶¶ 1.e – 1.f are cross- alleged under Guideline J, Criminal Conduct. The same facts apply. Personal Conduct The allegations in SOR ¶¶ 1.a – 1.f are cross- alleged under Guideline E, Personal Conduct. The same facts apply. Applicant is alleged to have intentionally falsified several answers on his June 30, 2021, security clearance application (also known as e-QIP) in response to Section 22 – Police Record. “Have any of the following happened? In the last seven years have you been issued a summons, citation, or ticket to appear in court in a criminal proceeding against you? – In the last seven years, have you been arrested by any police officer, sheriff, marshal, or any other type of law enforcement official? – In the last seven years have you been charged, convicted, or sentenced of a crime in any court? (Include all qualifying charges, conviction or sentences in any Federal, state, local, military, or non U.S. court, even if previously listed on this form) – In the last seven years have you been or are you currently on probation or parole? – Are you currently on trial or awaiting a criminal trial on criminal charges?” Applicant answered, “No” and deliberately did not list his arrests alleged in SOR ¶¶ 1.d and 1.e. (SOR ¶ 3.b” GE 1, Section 22, at 37)

Applicant is also alleged to have intentionally falsified his June 30, 2021, security clearance application in response to “Section 22 – Police Record (EVER) Other than those offenses already listed, have you EVER had the following happen to you . . . Have you ever been charged with an offense involving alcohol or drugs?” when he answered, “No.” He deliberately did not list the offenses listed in SOR ¶¶ 1.d, 1.e and 1.f. (SOR ¶ 3.c: GE 1, Section 22, at 37-38) Finally, Applicant is alleged to have intentionally falsified his June 30, 2021, security clearance application in response to “Section 23 – Illegal Use of Drugs or Drug Activity. In the last seven years, have you illegally used any drugs or controlled

substances? Use of a drug or controlled substance includes injecting, snorting, inhaling, swallowing, experimenting with or otherwise consuming any drug or controlled substance?” when he answered “No.” He deliberately failed to disclose his illegal use of marijuana with varying frequency between July 2014 to February 2021. (SOR ¶ 3.d: GE 1, Section 23, at 38) In his response to the SOR, Applicant denies the allegations in SOR ¶¶ 3.a – 3.d. During the hearing, Applicant testified that he was having problems with the e-QIP program. He claims he tried to put the correct information into the e-QIP, but the program would not allow it. He states he never tried to hide his marijuana use. (Tr. 57-61) During his background investigation interview, Applicant told the investigator that he did not list these events on his case papers because he thought they would reflect negatively on him. (GE 2 at 20) Whole-Person Factors Applicant provided several character references attesting to his good character. Mr. R., Applicant’s direct supervisor, has worked with Applicant over the past two years. They no longer work on the same team, but he describes him as “a trustworthy, motivated, and hard-working young man.” (AE A at 1) Ms. N.B. is Applicant’s close friend and neighbor. She has known Applicant for the past 14 years. She states Applicant has consistently shown a commitment to “integrity, leadership, altruism, trustworthiness, reliability, accountability, and hard work, as well as being a great friend that always has an open ear to listen.” (AE A at 2-4) Applicant’s sister, a former co-worker, and a friend who served with him on active duty also provided favorable letters attesting to his good character. (AE A at 5 – 7) Applicant also received a certificate of appreciation for his support of the Army’s mission. (AE A at 8)

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).

Guideline H: Drug Involvement and Substance Misuse AG ¶ 24 expresses the security concern pertaining to drug involvement: 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. In addition to the above matters, the Director of National Intelligence (DNI) issued an October 25, 2014 memorandum concerning adherence to federal laws prohibiting

marijuana use. In doing so, the DNI emphasized three things. First, no state can authorize violations of federal law, including violations of the Controlled Substances Act, which identifies marijuana as a Schedule I controlled drug. Second, changes to state law (and the laws of the District of Columbia) concerning marijuana use do not alter the national security adjudicative guidelines. And third, a person’s disregard of federal law concerning the use, sale, or manufacture of marijuana remains relevant when making eligibility decisions for sensitive national security positions. AG ¶ 25 describes conditions that could raise a security concern and may be disqualifying. Those that are potentially applicable in this case include: (a) any substance misuse (see above definition); (b) testing positive for an illegal drug; and (c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia. Applicant has a lengthy history of illegal marijuana use. He used marijuana with varying frequency from October 2009 to January 2010 and from July 2014 to November 2022. He was discharged from the U.S. Army because of a positive urinalysis test. Between February 2015 to May 2018, he was arrested three times in the U.S. The charged offenses for each arrest included the charge of possession of marijuana. AG ¶ 25(a); AG ¶ 25(b); and AG ¶ 25(c) apply. The burden shifted to Applicant to prove mitigation of the resulting security concerns. AG ¶ 26 provides conditions that could mitigate security concerns in this case: (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 long history of marijuana use continues to be a security concern. He used marijuana ranging from a weekly to a monthly basis. He used marijuana although he was aware that it was against DoD policy and unlawful. He decided to stop using marijuana in February 2021 because he was applying for a security clearance, yet he used again in November 2022 while his security clearance adjudication was pending. His decision to use marijuana, an illegal drug, on a regular basis over a long period of time cannot be considered a minor lapse in judgment, but rather a pattern of behavior that reflects his unwillingness to follow rules and regulations. Security clearance decisions are not limited to conduct during duty hours. Off-duty conduct, especially where it reflects poor judgment, provides a rational basis for the government to question an appellant’s security worthiness. (See, e.g., Cole v. Young, 351 U.S. 536, 550 n.13 (1956); Croft v. Department of Air Force, 40 M.S.P.R. 320, 321 n.1 (1989)). Applicant’s behavior showed a disregard for the law, regulations, and the fiduciary relationship he voluntarily entered into with the Government. Applicant’s assertions that he has stopped using illegal drugs since November 2022 are insufficient to overcome the concerns with respect to his past drug involvement. At this time, he did not demonstrate a lengthy enough pattern of abstinence, given the circumstances under which he chose to use illegal drugs. Applicant failed to establish mitigation under AG ¶¶ 26(a) and 26(b). Guideline J: Criminal Conduct AG ¶ 30 describes the security concern about criminal conduct, “Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness. By its very nature, it calls into question a person’s ability or willingness to comply with laws, rules, and regulations.” AG ¶ 31 lists two conditions that could raise a security concern and may be disqualifying in this case: (a) a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual’s judgment, reliability, or trustworthiness; and (b) evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted. Applicant illegally used marijuana from October 2009 to January 2010, and July 2014 to November 2022. He was arrested on three occasions and charged with marijuana–related offenses in 2015 and 2018. These occurred while he was employed as a DoD contractor overseas. AG ¶¶ 31(a), and 31(b) are established.

AG ¶ 32 describes two conditions that could mitigate security concerns in Applicant’s case including: (a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; and (d) there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement. Criminal conduct security concerns are not mitigated. Applicant’s deliberate failure to appear in court related to his marijuana-related offenses, resulted in warrants being issued for his arrest. The warrants for his arrest remain outstanding. His criminal issues are not resolved because of his decision to flee to his job overseas rather than dealing with the criminal offenses in the U.S. While Applicant’s co-workers think highly of him, there is insufficient evidence of successful rehabilitation because of the outstanding warrants, and Applicant’s decision to continue to illegally use marijuana up until November 2022. Guideline E: Personal Conduct AG ¶ 15 explains why personal conduct is a security concern stating: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes. The following will normally result in an unfavorable national security eligibility determination, security clearance action, or cancellation of further processing for national security eligibility: (a) refusal, or failure without reasonable cause, to undergo or cooperate with security processing, including but not limited to meeting with a security investigator for subject interview, completing security forms or releases, cooperation with medical or psychological evaluation, or polygraph examination, if authorized and required; and (b) refusal to provide full, frank, and truthful answers to lawful questions of investigators, security officials, or other official representatives in connection with a personnel security or trustworthiness determination.

AG ¶ 16 lists conditions that could raise a security concern and may be disqualifying in this case including: (a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine national security eligibility or trustworthiness, or award fiduciary responsibilities. SOR ¶ 3.a cross-alleges SOR ¶¶ 1.a through 1.f. These allegations were appropriately considered under the drug involvement and criminal conduct concerns. For this reason, I find SOR ¶ 3.a for Applicant. The SOR alleges Applicant deliberately falsified his answers on his June 30, 2021, SCA about his criminal arrests in response to Section 22 (SOR ¶¶ 3.b – 3.c) and his illegal marijuana use within the past 7 years in response to Section 23. (SOR ¶ 3.d) I find AG ¶ 16(a) applies. Applicant deliberately omitted his three arrests and his illegal marijuana use. During his background investigation interview on April 13, 2022, he told the investigator that he did not list any of his arrests because he thought they would reflect negatively on him. Applicant claims the e-QIP program would not let him input the relevant information. I don’t find this information credible. In response to Section 22, Applicant was required to disclose his illegal use of marijuana within the last seven years. In other words, his illegal marijuana use from June 30, 2014, to June 30, 2021, the date he completed his security clearance application. He did not do so, even though he later admitted he used marijuana on a weekly or a monthly basis between 2014 to February 2021. AG ¶ 17 provides conditions that could mitigate security concerns. The following are potentially applicable: (a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; (c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; and (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress. AG ¶ 17(a) does not apply. While Applicant disclosed his arrests and illegal marijuana use during his background investigation interview in August 2021, he did not provide the information until the background investigator asked him about the issues. The disclosures were not prompt. AG ¶ 17(c) does not apply because Applicant’s deliberate falsifications were not minor and continue to raise doubts about his reliability,

trustworthiness, and good judgment. AG ¶ 17(e) applies. Applicant’s eventual disclosures about his arrests and illegal drug use reduced his vulnerability to be exploited, manipulated or under duress. Overall, Applicant’s deliberate omission of his arrests and his illegal drug use within the past seven years raises issues about his honesty and trustworthiness. The security concerns raised under personal conduct are not mitigated.

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 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 H, J and E in my whole-person analysis. I also considered Applicant’s favorable character evidence, including the statements from his friends and co-workers, and his work history as DoD contractor. The unfavorable evidence raises concerns that outweigh the favorable evidence. Applicant has a long history of illegal marijuana use. His illegal marijuana use resulted in his discharge from the U.S. Army. While he stopped using marijuana for several years after his discharge, he resumed using marijuana in 2014 on a regular basis. He only stopped using marijuana in February 2021 because he was applying for a security clearance. He continued to use marijuana in November 2022. The issues involving his marijuana-related arrests in 2015 and 2018 are unresolved because of his deliberate failure to appear. His criminal warrants remain outstanding. He was less than forthcoming about these issues on his June 2021 security clearance application. Applicant did not mitigate security concerns raised under drug involvement, criminal conduct, and personal conduct.

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I make the following formal findings on the allegations in the SOR: Paragraph 1, Guideline H: AGAINST APPLICANT Subparagraphs 1.a -1.f: Against Applicant Paragraph 2, Guideline J: AGAINST APPLICANT Subparagraph 2.a: Against Applicant Paragraph 3, Guideline E: AGAINST APPLICANT Subparagraph 3.a: For Applicant Subparagraphs 3.b -3.d: Against Applicant

I conclude that it is not clearly consistent with the interests of national security of the United States to grant or continue Applicant’s national security eligibility for access to classified information. Eligibility for access to classified information is denied. ERIN C. HOGAN Administrative Judge