ISCR Case No. 23-00430

___________ ___________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 23-00430 ) Applicant for Security Clearance ) Appearances For Government: Brian L. Farrell, Esq., Department Counsel For Applicant: Pro se 11/14/2023

HARVEY, Mark, Administrative Judge: Guidelines H (drug involvement and substance misuse) and J (criminal conduct) security concerns are mitigated. Guideline E (personal conduct) security concerns are refuted. Eligibility for access to classified information is granted. Statement of the Case On September 8, 2016, and January 17, 2022, Applicant completed and signed Questionnaires for National Security Positions or security clearance applications (SCA). (Government Exhibit (GE) 1; GE 2) On March 29, 2023, the Defense Counterintelligence and Security Agency (DCSA) Consolidated Adjudication Services (CAS) issued a statement of reasons (SOR) to Applicant under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry, February 20, 1960; Department of Defense (DOD) Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), January 2, 1992; and Security Executive Agent Directive 4, establishing in Appendix A the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AGs), effective June 8, 2017. (Hearing Exhibit (HE) 2) The SOR detailed reasons why the DCSA CAS did not find under the Directive that it is clearly consistent with the interests of national security to grant or continue a security clearance for Applicant and recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

Specifically, the SOR set forth security concerns arising under Guidelines E, H, and J. (HE 2) On May 25, 2023, Applicant provided his response to the SOR and requested a hearing. (HE 3) On June 29, 2023, Department Counsel was ready to proceed. On July 11, 2023, Applicant’s case was assigned to me. On July 21, 2023, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing, setting the hearing for September 6, 2023. (HE 1) The hearing was held as scheduled. Department Counsel offered four exhibits into evidence, and Applicant offered three exhibits into evidence at his hearing. (Transcript (Tr.) 19-24; GE 1-GE 4; Applicant Exhibit (AE) A-AE C) All proffered exhibits were admitted into evidence. (Tr. 21, 24) On September 15, 2023, DOHA received a transcript of the hearing. Three post-hearing exhibits were admitted into evidence without objection. (AE D-AE F) The record closed on November 8, 2023. (Tr. 59) Some details were excluded to protect Applicant’s right to privacy. Specific information is available in the cited exhibits and transcript.

In Applicant’s SOR response, he admitted SOR ¶¶ 2.a, 2.b, and 3.a. (HE 3) He denied the allegations in SOR ¶¶ 1.a and 1.b. (Id.) He also provided extenuating and mitigating information. (Id.) His admissions are accepted as findings of fact. Applicant is a 29-year-old systems engineer. (Tr. 7; SOR response at 25) In 2012, he graduated from high school, and in 2020, he received a bachelor’s degree in mechanical engineering. (Tr. 7) He has never married, and he does not have any children. (Tr. 8) Applicant served in the Army National Guard (ARNG) from 2016 to 2022. (Tr. 8, 28) He held a signal military occupational specialty (MOS) in the ARNG. He was discharged as a specialist (E-4), and he received an honorable discharge. (Tr. 8) He did not serve in a combat zone. (Tr. 9) He did not receive any nonjudicial punishments or courts-martial while in the ARNG. (Tr. 9) He received a security clearance in 2016 as part of his ARNG service. (Tr. 26) Information about his education and professional experience is detailed in his resume. (SOR response at 25) Drug Involvement and Substance Misuse and Criminal Conduct SOR ¶ 2.a alleges from about March of 2013 to about May of 2019, Applicant used cocaine with varying frequency. The first time he used cocaine was around March 2013 when he was a freshman in college. (Tr. 28-29) He used a small amount of cocaine, which he referred to as a “bump.” (Tr. 29) Prior to May 2019, Applicant most recently drilled with the ARNG in March 2019. The next time he used cocaine after March of 2013 was in May of 2019. (Tr. 30) His older brother provided the cocaine that he used. (Tr. 31) He snorted a single line of cocaine on

four different weekend nights in May 2019. (Tr. 33) He used cocaine because his brother wanted him to try it; however, he did not really like it. (Tr. 34) He realized that using cocaine was wrong, particularly because he held a security clearance. (Tr. 34) He does not intend to use cocaine in the future. (Tr. 34) On August 31, 2023, he took a drug test, which was negative for illegal substances. (Tr. 34; AE C) He visits his older brother, who lives in a different state than Applicant, once or twice a year on holidays. (Tr. 35) SOR ¶ 2.b alleges in about June 2019, Applicant used the prescription medication Xanax without a prescription. SOR ¶ 3.a alleges in about June 2019, Applicant was arrested and charged with public intoxication and possession of cocaine. Applicant’s brother gave him a bag containing cocaine in May 2019, and he used some and placed the remainder in his wallet behind a flap. (Tr. 57-58) The small bag contained cocaine residue, and Applicant forgot that he put it in his wallet. (Tr. 44, 56, 58; SOR response) In June 2019, he consumed one Xanax pill and sufficient alcohol to be intoxicated. (Tr. 53-54; SOR response) He went to a concert and argued with a spectator about seating. (Tr. 54; SOR response) Applicant was ejected from the concert. He tried to reenter the concert, and he was arrested for public intoxication. (Tr. 54-55) The police found the cocaine in his wallet and charged him with cocaine possession. (Tr. 44-45) Applicant received pretrial diversion. (Tr. 45) He was required to complete 10 hours of community service, to attend drug education, and to submit to urinalysis tests once a month for six months. (Tr. 46-47; SOR response) On June 5, 2020, he completed a 12-hour drug and alcohol awareness class. (AE D) The charges were subsequently dismissed, and his record was expunged. (Tr. 45; SOR response) He did not receive any disciplinary action from the ARNG. (Tr. 48) Applicant never failed a drug test. (Tr. 48) He emphasized that he freely and voluntarily disclosed his history of cocaine involvement and abuse of Xanax without being confronted with information about his drug involvement by security officials. (Tr. 50-51) Alleged Falsification of SCAs SOR ¶ 1.b alleges Applicant deliberately falsified material facts on his September 8, 2016 SCA in Section 23, concerning illegal use of drugs or drug activity. His September 8, 2016 SCA asked in the last seven years have you illegally used any controlled substance, for example, cocaine and crack cocaine? Applicant answered, “No,” and did not disclose his use of cocaine in 2013. In his SOR response for the alleged falsification of his September 8, 2016 SCA, Applicant said he completed this SCA as part of a Military Entrance Processing Station (MEPS) process when he was joining the ARNG. (HE 2 at 3) The SCA was completed with the help of a government representative who rapidly asked him questions. (Id.) He said, “I can only speculate that being rushed through the questions may have caused me to overlook the single instance of illegal drug use (cocaine) from March 2013.” (Id.) He contended that the falsification was not deliberate, and it was isolated and not recent. (Id.) He said he also “made prompt, good-faith efforts to correct the falsification before being

confronted with the facts.” (Id.) He disclosed the March 2013 cocaine use during his April 2022 OPM interview. (Id.) Applicant’s description of the completion of his September 8, 2016 SCA at his hearing was consistent with his SOR response. (Tr. 36) In sum, the MEPS interviewer asked the questions so quickly he did not remember his single episode of cocaine use in March of 2013. (Tr. 37-38) He said he did not deliberately or intentionally fail to disclose that cocaine use on the SCA he completed in 2016. (Tr. 38-39) SOR ¶ 1.a alleges that Applicant’s January 17, 2022 SCA asked in the last seven years have you illegally used any drugs or controlled substances, and have you ever illegally used or otherwise been involved with a drug or controlled substance while possessing a security clearance? It also asked in the last seven years, have you intentionally engaged in the misuse of prescription drugs, regardless of whether or not the drugs were prescribed for you or someone else? Applicant answered, “No,” to these questions, and he did not disclose his involvement with cocaine in May 2019 and Xanax in June 2019. In his SOR response for the alleged falsification of his January 17, 2022 SCA, Applicant said he was in a hurry when he completed his SCA because he had to catch a flight. He said he completed his SCA before the trip, and he disclosed his history of cocaine use. (Tr. 40, 43) When he returned, he was required to complete the SCA, and he erroneously believed the cocaine use was repopulated on the second SCA. (Tr. 40) The information from the 2016 SCA may have partially repopulated on to the 2022 SCAs. (Tr. 41-42) He reviewed the SCA quickly and did not notice his history of cocaine use was not on the second SCA. He forgot to disclose his Xanax use on both SCAs. (Tr. 40) His failure to disclose his cocaine and Xanax use was “due to accidental oversight” and not deliberate; and he said he “made prompt, good-faith efforts to correct the falsification before being confronted with the facts.” (HE 2 at 2) When Applicant completed his January 17, 2022 SCA, he included his arrest for public intoxication and cocaine possession in June 2019. (GE 2 at 33) He said, “I was arrested for public intoxication and possession of a controlled substance (Cocaine less than 1 gram). The cocaine offense was a felony, and the public intoxication was a misdemeanor.” (Id. at 34) These charges were dismissed and expunged. (Id. at 35; SOR response) When he had his follow-up OPM interview on April 14, 2023, he disclosed his use of cocaine on four occasions, once in 2013 and three times in May 2019, and his use of Xanax in June 2019 before his arrest at the concert. (Tr. 43; GE 3-4 at 12-13) During his hearing, he said he used cocaine a total of five time, once in 2013 and four times in May 2019. (Tr. 33) Character Evidence On March 17, 2023, and August 11, 2023, Applicant received achievement awards from his employer. (SOR response at 23; AE B) He also received a cash award for exceptional performance and an undated exceptional performance certificate. (Id. at 24; AE A) He provided six statements from coworkers and supervisors. (SOR response at

11-16) The general sense of their statements is that he is helpful, intelligent, diligent, conscientious about safeguarding sensitive information, and passionate about his work. He has sound judgment; he contributes to mission accomplishment; and he is committed to working as an engineer supporting DOD. (AE E; SOR response at 11-16)

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicant’s eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865. Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable. The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. 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 about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. Thus, nothing in this decision should be construed to suggest that it is based, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. It is merely an indication the applicant has not met the strict guidelines the President, Secretary of Defense, and DNI have established for issuing a clearance. Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). “The Directive presumes there is a nexus or rational connection between proven conduct under any of the Guidelines and an applicant’s security eligibility. Direct or objective evidence of nexus

is not required.” ISCR Case No. 18-02581 at 4 (App. Bd. Jan. 14, 2020) (citing ISCR Case No. 15-08385 at 4 (App. Bd. May 23, 2018)). Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his [or her] security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

Drug Involvement and Substance Misuse AG ¶ 24 describes the security concern about drug involvement and substance misuse: 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. AG ¶ 25 provides conditions that could raise a security concern and may be disqualifying in this case: “(a) any substance misuse (see above definition)”; “(c) illegal possession of a controlled substance . . .”; and “(f) any illegal drug use while granted access to classified information or holding a sensitive position.” The record establishes AG ¶¶ 25(a), 25(c), and 25(f). Further discussion of the disqualifying conditions and the applicability of mitigating conditions is contained in the mitigation section, infra. AG ¶ 26 lists four conditions that could mitigate security concerns: (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; (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; (c) abuse of prescription drugs was after a severe or prolonged illness during which these drugs were prescribed, and abuse has since ended; and (d) satisfactory completion of a prescribed drug treatment program, including, but not limited to, rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional. In ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013), the DOHA Appeal Board explained Applicant’s responsibility for proving the applicability of mitigating conditions as follows: Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b). Applicant possessed and used cocaine once in 2013 and four times in May 2019. Cocaine is a Schedule II substance under the Controlled Substances Act. “Schedule II drugs, substances, or chemicals are defined as drugs with a high potential for abuse, with use potentially leading to severe psychological or physical dependence.” Department of Justice, Drug Enforcement Administration website, Drug Scheduling, https://www.dea.gov/drug-information/drug-scheduling. Applicant possessed and used Xanax in June 2019 before going to a concert. Xanax is a Schedule IV substance. (Id.) “Schedule IV drugs, substances, or chemicals are defined as drugs with a low potential for abuse and low risk of dependence.” (Id.) Possession of cocaine and Xanax without a prescription are criminal offenses. He held a security clearance and a sensitive position in 2019 at the time he possessed and misused cocaine and Xanax. AG ¶ 26(a) applies because Applicant’s possession and use of cocaine and Xanax in May and June 2019 are not recent. He promised not to use illegal drugs in the future. As such, his cocaine and Xanax involvement “happened under such circumstances that

it is unlikely to recur [and] does not cast doubt on [his] current reliability, trustworthiness, [and] good judgment.” Applicant has established his rehabilitation in the context of his drug abuse. He has had a successful career as shown by his awards, certificates, and statements of support from coworkers. He understands the negative consequences for illegal drug possession and use, and he will not possess and use illegal drugs in the future. Drug involvement and substance misuse security concerns are mitigated. 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 describes one condition that could raise a security concern and may be disqualifying in this case: (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. AG ¶ 31(b) is established. Discussion is in the mitigation section, infra. AG ¶ 32 lists conditions that could mitigate security concerns: (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; (b) the individual was pressured or coerced into committing the act and those pressures are no longer present in the person’s life; (c) no reliable evidence to support that the individual committed the offense; 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. The only criminal offenses are the offenses involving Applicant’s abuse of Xanax, cocaine, and public intoxication. His most recent criminal offense was in June 2019, more

than four years ago; they are not recent; and they have low relevance to Applicant’s current status. AG ¶¶ 32(a) and 32(d) apply for the same reasons discussed in the drug involvement and substance misuse mitigation section, supra. Essentially, his overall duty performance is sufficient to mitigate the instances of criminal conduct occurring in 2013 and 2019. Criminal conduct concerns are mitigated. 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 information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process. . . . AG ¶ 16 provides one personal conduct condition that could raise a security concern and may be disqualifying in relation to his provision of inaccurate information on his SCA: (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. Applicant did not disclose on his September 8, 2016 and January 17, 2022 SCAs his history of illegal possession and use of cocaine, and on his January 17, 2022 SCA his misuse of Xanax. Applicant said he did not deliberately and intentionally provide false information in his SCAs. He hurried through the SCAs without carefully reviewing the final version before signing it. “Applicant’s statements about his intent and state of mind when he executed his Security Clearance Application were relevant evidence, but they [are] not binding on the Administrative Judge.” ISCR Case No. 04-09488 at 2 (App. Bd. Nov. 29, 2006) (citation omitted). In ADP Case No. 17-03932 at 3 (App. Bd. Feb. 14, 2019), the Appeal Board recognized the importance of circumstantial evidence of intent in falsification cases: When evaluating the deliberate nature of an alleged falsification, a Judge should consider the applicant’s mens rea in light of the entirety of the record evidence. See, e.g., ADP Case No. 15-07979 at 5 (App. Bd. May 30, 2017). As a practical matter, a finding regarding an applicant’s intent or state of mind may not always be based on an applicant’s statements, but rather may rely on circumstantial evidence. Id.

Applicant credibly explained that the person interviewing him at the MEPS in 2016 rushed through the SCA, and he did not remember his single cocaine use in 2013 when he was a freshman in college. When he completed his SCA in 2022, he was confused about the information that was repopulating the SCA from a previous version. He disclosed his June 2019 arrest for cocaine possession, which is an indication he was not attempting to conceal his history of drug involvement. When he had his follow-up OPM interview on April 14, 2023, he disclosed his use of cocaine on four occasions, once in 2013, and three times in May 2019, and his use of Xanax in June 2019 before his arrest at the concert. The OPM investigator did not confront Applicant with evidence of drug involvement before Applicant disclosed his history of involvement with cocaine and Xanax. His disclosures to the OPM investigator were not prompt, because the disclosure was not soon enough to qualify for this mitigating condition. However, Applicant was candid and credible during his OPM interview, in his SOR response, and at his hearing. He refuted the allegations that he intentionally falsified his SCAs.

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 the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a): (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 have incorporated my comments under Guidelines E, H, and J in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment. Applicant is a 29-year-old systems engineer. In 2020, he received a bachelor’s degree in mechanical engineering. He served in the ARNG from 2016 to 2022. He held a signal MOS, and he received an honorable discharge. He received a security clearance in 2016 as part of his ARNG service. Applicant was honest to the OPM investigator, in his SOR response, and at his hearing about his history of involvement with cocaine and Xanax. His possession and use of cocaine and Xanax without a prescription are not recent. He credibly promised not to misuse drugs in the future. His failures to provide complete and accurate information on

_________________________ his SCAs were not deliberate, intentional, or made with intent to deceive. There is no evidence of employment problems at his current employment. It is well settled that once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or renewal of a security clearance. See Dorfmont, 913 F. 2d at 1401. Applicant’s evidence has met his burden of establishing mitigation. I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. Personal conduct security concerns are refuted. Drug involvement and substance misuse and criminal conduct security concerns are mitigated.

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 E: FOR APPLICANT Subparagraphs 1.a and 1.b: For Applicant Paragraph 2, Guideline H FOR APPLICANT Subparagraphs 2.a and 2.b: For Applicant Paragraph 3, Guideline J: FOR APPLICANT Subparagraph 3.a: For Applicant

In light of all of the circumstances presented by the record in this case, it is clearly consistent with national security to grant or continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted. MARK HARVEY Administrative Judge