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ISCR Case 22-00793 — CASE

ISCR Case 22-00793denied

Case Headnote

ISCR Case No. 22-00793

deniedJun 20, 2023· Hon. Richard A. Cefola· hearing

Summary

A 44-year-old defense contractor was denied a security clearance under Guideline H (Drug Involvement) due to his admitted long-term marijuana use and stated intent to continue. The applicant acknowledged using marijuana from approximately July 1996 to at least November 2021, a period of about 25 years, and purchasing it since January 2005, for about 16 years.

The administrative judge found that the applicant's drug involvement raised significant security concerns. Disqualifying conditions under Guideline H, specifically AG ¶ 25 (a), (c), and (g), were cited. The denial was based on the applicant's admission of ongoing use and his failure to provide evidence of actions taken to overcome substance misuse or establish a pattern of abstinence.

Ultimately, the applicant's continued drug use raised questions about his reliability and trustworthiness, leading to the denial of eligibility for access to classified information. The decision emphasized the paramount importance of national security and the applicant's inability to mitigate the identified concerns.

Why the Applicant Was Denied

The applicant admitted to using marijuana for approximately 25 years and expressed intent to continue its use.
The applicant failed to provide evidence of actions taken to overcome his substance misuse problem or establish a pattern of abstinence.
The applicant's ongoing drug use raised questions about his reliability and trustworthiness.

Conditions Referenced

Disqualifying

AG ¶ 25 (a)appliedAny Substance Misuse
AG ¶ 25 (c)appliedIllegal Possession of a Controlled Substance
AG ¶ 25 (g)appliedExpressed Intent to Continue Drug Involvement

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedJul 6, 2022
Answer filedJul 25, 2022
Hearing held—Applicant requested a decision on the record without a hearing.
Decision dateJun 20, 2023

Cite For

Denial of Security Clearance Due to Long-term Drug Involvement Under Guideline H
Failure to Mitigate Ongoing Substance Misuse Concerns
Importance of National Security in Clearance Decisions

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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant admitted to using marijuana for approximately 25 years and purchasing it for at least 16 years. The judge found that the applicant's ongoing use and stated intent to continue using marijuana were inconsistent with national security interests, leading to a denial of eligibility for a security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant admits that he used marijuana, from about July 1996 to at least November of 2021, a period of about 25 years; and purchased marijuana since January of 2005, a period of about 16 years.	Against Applicant	Marijuana	Regular	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	Applicant admits that he intends to continue the use of marijuana in the future.	Against Applicant	Stated Intent to Use Again	Not Applicable	Admitted	(g) expressed intent to continue, or failure to commit to discontinue	—	—

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. 22-00793 ) ) Applicant for Security Clearance ) Appearances For Government: Karen Moreno-Sayles, Esquire, Department Counsel For Applicant: Pro se June 20, 2023

STATEMENT OF CASE

CEFOLA, Richard A., Administrative Judge: On October 6, 2021, Applicant submitted his Electronic Questionnaire for Investigations Processing (e-QIP). On July 6, 2022, the Department of Defense Consolidated Adjudications Facility (DODCAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline H (Drug Involvement and Substance Misuse). The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the Adjudicative Guidelines, effective on June 8, 2017. Applicant answered the SOR (Answer) on July 25, 2022 (Item 1) and requested a decision on the record without a hearing. Department Counsel submitted the Government’s written case on September 29, 2022. A complete copy of the file of relevant material (FORM) was sent to Applicant, including documents identified as Items 1 through 3. He was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. He received the FORM on

October 10, 2022, and did not respond. Items 1 through 3 are admitted into evidence. The case was assigned to me on January 19, 2023.

FINDINGS OF FACT

In his Answer to the SOR Applicant admitted the factual allegations in Paragraphs 1.a. through 1.c. of the SOR, with explanations He also provided additional information to support his request for eligibility for a security clearance. Applicant is 44 years old, unmarried, and has no children. He works for a defense contractor. (Item 2 at pages 7, 12 and 18.) Guideline H: Drug Involvement and Substance Misuse Applicant avers that he uses marijuana to treat “Fibromyalgia with severe IBS (irritable bowel syndrome).” (Item 1 at page 4.) 1.a. and 1.b. Applicant admits that he used marijuana, from about July 1996 to at least November of 2021, a period of about 25 years; and purchased marijuana since January of 2005, a period of about 16 years, which are evidenced by a self-reported, Adverse Incident Report. (Item 1 at page 5.) This was also subsequent the execution of his October 6, 2021, e-QIP. 1.c. Applicant admits that he intends to continue the use of marijuana in the future.

POLICIES

When evaluating an applicant’s suitability for national security eligibility, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines (AG) list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s national security eligibility. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. The entire process is a conscientious scrutiny of applicable guidelines in the context 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.” In reaching this decision, I

have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. I have not drawn inferences based on mere speculation or conjecture. Directive ¶ E3.1.14, requires the Government to present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “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, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” A person applying for national security eligibility seeks to enter 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 national security eligibility. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified or sensitive information. Finally, as emphasized in Section 7 of Executive Order 10865, “[a]ny determination under this order adverse to an applicant shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also Executive Order 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information.)

ANALYSIS

Guideline H: Drug Involvement and Substance Misuse The security concern relating to the guideline for Drug Involvement and Substance Misuse is set forth at 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 at AG ¶ 25 contains seven conditions that could raise a security concern and may be disqualifying. Three conditions are established: (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. Appellant has used marijuana for about 25 years, and purchased it for at lease 16 years. Therefore, AG ¶ 25 (a) and (c) are established. He also expressed an intent to continue to use marijuana in the future, establishing AG ¶ 25 (g). The guideline at AG ¶ 26 contains four conditions that could mitigate security concerns. Two conditions may be 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. None of these apply. Applicant, despite having notice of the Government’s concerns when he executed his e-QIP, still uses a Federally recognized illegal substance and intends to continue its usage.

_________________

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s national security eligibility 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. According to AG ¶ 2(c), the ultimate determination of whether to grant national security eligibility must be an overall commonsense judgment based upon careful consideration of the applicable 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. Applicant intends to continue to violate Federal Law by regularly using marijuana in the future. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising from his drug involvement and substance abuse.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline H: AGAINST APPLICANT Subparagraphs 2.a~2.c: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant national security eligibility for a security clearance. Eligibility for access to classified information is denied. Richard A. Cefola Administrative Judge