ISCR Case No. 22-02437

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 22-02437 ) Applicant for Security Clearance ) Appearances For Government: Tovah Minster, Esq., Department Counsel For Applicant: Pro se 10/06/2023

NOEL, Nichole L., Administrative Judge: Applicant contests the Department of Defense’s (DOD) intent to deny his eligibility for a security clearance to work in the defense industry. He failed to mitigate the security concerns raised by his history of marijuana use. He also failed to credibly establish that he will abstain from future use. Accordingly, his access to classified information is denied. Statement of the Case On March 28, 2023, the DOD issued a Statement of Reasons (SOR) detailing security concerns under the drug involvement and substance misuse guideline. This action was taken under Executive Order (EO) 10865, Safeguarding Classified Information within Industry, signed by President Eisenhower on February 20, 1960, as amended; as well as DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program, dated January 2, 1992, as amended (Directive), and the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position, implemented on June 8, 2017. DOD adjudicators were unable to find that it is clearly consistent with the national interest to grant Applicant’s security clearance and recommended that the case be

submitted to an administrative judge for a determination whether to deny his security clearance. Applicant answered the SOR and requested a decision without a hearing. (Government Exhibit (GE) 2) The Government submitted its written case on April 13, 2023. Applicant received a complete copy of the file of relevant material on February 16, 2023. He did not respond. The documents appended to the FORM are admitted as GE 1 through 4, without objection.

Applicant, 38, has worked for his employer, a federal contracting company since January 2021. He completed a security clearance application, his first, in October 2021. In response to Section 23 – Illegal Use of Drugs or Drug Activity, he disclosed using marijuana between June 1998 and October 2021. He explained that he used the drug “recreationally, sometimes for a few days in a week.” He also admitted that he would abstain from the drug for a month or months at a time. He indicated his intent to continue using the drug to alleviate work-related stress and in social settings with his friends. (GE 3) In a February 2022 subject interview, Applicant confirmed the disclosures in his security clearance application, that he began using marijuana in June 1998, and that he intended to continue using the drug. He also confirmed that his use was ongoing at the time of the interview, reporting that he smoked a marijuana cigarette once or twice a week to relieve stress. The drug is legal in his state of residency, and he reported purchasing it from state-sanctioned dispensaries. Applicant explained to the investigator that had not experienced negative consequences from his marijuana use. He did not believe that doing so had any negative affects his personal or professional life. (GE 4) In response to DOHA interrogatories signed March 22, 2023, Applicant provided additional information about his marijuana use. He confirmed he used marijuana once or twice a week through March 2023, and that he purchased the drug on multiple occasions between March 2001 and July 2022. However, he claimed that he first used marijuana in high school in approximately 1999 or 2000, not in June 1998 while in middle school, as he previously reported. Contrary to his previous statements, he stated that he intended to abstain from future marijuana use because continued use limited his career advancement opportunities. (GE 4) Applicant has not been referred to substance abuse counseling by a court, his family, or any medical professional. He does not consider his use of marijuana to be a potential source of vulnerability because his wife is aware of it. (GE 4)

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.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. 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).

The record contains evidence to support the Government’s prima facie case that Applicant engaged in disqualifying conduct under the drug involvement and substance misuse guideline. He did not provide sufficient evidence to mitigate any of the alleged concerns.

Applicant admitted using marijuana from at least 1998 to at least March 2023 (SOR ¶ 1.a) as well as purchasing the drug on numerous occasions between March 2001 and July 2022. (SOR ¶ 1.b) The illegal use of controlled substances can raise questions about an individual’s reliability and trustworthiness 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. (AG ¶ 25) The following disqualifying conditions apply: AG ¶ 26(a) any substance misuse; and AG ¶ 26(c) illegal possession of a controlled substance, including cultivation, processing manufacture, purchase, sale, or distribution; or possession of drug paraphernalia. None of the guideline’s mitigating conditions apply. The legalization of marijuana use or purchase from state-sanctioned dispensaries in Applicant’s state of residency does not alter federal law or existing National Security Guidelines. No state can authorize the violation of federal law. Applicant’s marijuana use violates the Controlled Substances Act, which identifies marijuana as a Schedule I controlled drug. Under the Intelligence Reform and Terrorism Prevention Act (IRTPA), as amended, federal agencies remain prohibited from granting a security clearance to an unlawful user of a controlled substance. (See Director of National Intelligence Memorandum, Adherence to Federal Laws Prohibiting Marijuana Use, dated November 17, 2014). The Agency clarified its guidance concerning marijuana for individuals eligible to access classified information in a memorandum dated December 21, 2021: With regard to the first topic, agencies are instructed that prior recreational marijuana use by an individual may be relevant to adjudications but not determinative. The [Security Executive Agent (SecEA)] has provided direction in SEAD 4 to agencies that requires them to use a "whole-person concept." This requires adjudicators to carefully weigh a number of variables in an individual's life to determine whether that individual's behavior raises a security concern, if at all, and whether that concern has been mitigated such that the individual may now receive a favorable adjudicative determination. Relevant mitigations include, but are not limited to, frequency of use and. whether the individual can demonstrate that future use is unlikely to recur, including by signing an attestation or other such appropriate litigation. Additionally, in light of the long-standing- federal law and policy prohibiting illegal drug use while occupying a sensitive position or holding a security clearance, agencies are encouraged to advise prospective national security workforce employees that they should refrain from any future marijuana use upon initiation of the national security vetting process, which commences once the individual signs the certification contained in the Standard Form 86 (SF-86), Questionnaire for National Security Positions.

________________________ Applicant has a 25-year history of recreational marijuana use. His March 2023 statement that he will not use marijuana in the future carries little weight. He continued to use marijuana for almost two years after applying for access to classified information. He reported to the Government in two official statements that he that he intended to use the drug in the future. Given his recent and extensive drug use and his failure to demonstrate a sufficient period of abstinence, he has not produced sufficient evidence to mitigate the alleged security concerns.

Based on the record, doubts remain about Applicant’s current security worthiness. This decision is not changed by a consideration of the facts under the whole-person factors listed in AG ¶ 2(d). Applicant failed to meet his burdens of persuasion and production to mitigate the alleged concerns.

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, Drug Involvement and Substance Misuse: AGAINST APPLICANT Subparagraphs 1.a – 1.b: Against Applicant

In light of all of the circumstances presented, it is not clearly consistent with the national interest to grant Applicant a security clearance. Eligibility for continued access to classified information is denied. Nichole L. Noel Administrative Judge