ISCR Case No. 23-00130

__________ __________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 23-00130 ) Applicant for Security Clearance ) Appearances For Government: Erin Thompson, Esq., Department Counsel For Applicant: Pro se 03/21/2024

WESLEY, ROGER C. Administrative Judge Based upon a review of the case file, pleadings, and exhibits, Applicant did not mitigate drug and personal conduct concerns. Eligibility for access to classified information or to hold a sensitive position is denied. Statement of the Case On May 10, 2023, the Defense Counterintelligence Security Agency DCSA) Consolidated Adjudications Service (CAS) issued a statement of reasons (SOR) to Applicant detailing reasons why under the drug involvement and substance misuse and personal conduct guidelines the DSCA CAS could not make the preliminary affirmative determination of eligibility for granting a security clearance, and recommended referral to an administrative judge to determine whether a security clearance should be granted, continued, denied, or revoked. The action was taken under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960); Defense Industrial Personnel Security Clearance Review Program, Department of Defense (DoD) Directive 5220.6 (January 2, 1992) (Directive); 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.

Applicant responded to the SOR on June 11, 2023, and requested his case be decided on the written record. The case was assigned to me on March 5, 2024. Applicant received the File of Relevant Material (FORM) on November 1, 2023, and was instructed to file any objections to the FORM or supply additional information for consideration within 30 days of receipt. Applicant did not file any response to the FORM, and the Government’s materials included in the FORM are admitted. Summary of Pleadings Under Guideline H, Applicant allegedly (a) used marijuana with varying frequency from about September 2010 through about September 2021 and (b) used marijuana with varying frequency in about November 2021 after being granted access to classified information. Allegations covered by Guideline H are incorporated under Guideline E. Additionally, Applicant allegedly was granted a security clearance on or about July 31, 2021 with a waiver for prior illegal drug use, and despite the waiver, he resumed his use of illegal drugs as described in SOR with varying frequency. In Applicant’s response to the SOR, he admitted the allegations covered by SOR ¶ 1.a, but denied the allegations covered by SOR ¶ 1.b with explanations. He claimed his use of marijuana since 2016 has been very rare and infrequent with only a one-time occurrence after being granted a security clearance in 2021. Addressing the allegations covered by SOR ¶ 1.b, he claimed (a) he never received a receipt of acknowledgement of being granted a security clearance at the time and (b) he never received a waiver.

Applicant is a 47-year-old systems engineer for a defense contractor who seeks a security clearance. The admitted allegations are incorporated and adopted as relevant and material findings. Additional findings follow. Background Applicant never married and has no children. (Item 3) He attended college classes between August 2009 and May 2010 without earning a degree or diploma. He earned an associate degree in May 2011 and a bachelor’s degree in May 2013. He reported no military service. (Item 3) Since September 2020, Applicant has been employed by his current defense contractor as a pricing analyst. (Item 3) Previously, he worked for other employers in various jobs. He reported part-time work between August 2008 and May 2016 as a referee for youth football and basketball. (Item 3) Applicant was granted access to classified information in July 2021 with a waiver for prior illegal drug use. (Item 5) Applicant’s drug history Applicant used marijuana with varying frequency from about September 2010 through about September 2021. (Items 2-5) In his electronic questionnaires for

investigations processing (e-QIP, he reported “moderately, or recreationally” smoking of marijuana. (Item 3) Elaborating on his past marijuana use, he acknowledged his past use of marijuana in a friendly group environment where his employment would not be impacted. (Item 3) He assured that since his submission of his e-QIP in November 2020, he has not used marijuana. (Item 3) In an updated personal subject interview (PSI) of February 2021, he assured that he last used marijuana in November 2021 with friends over a Thanksgiving weekend and used the drug only “sporadically” prior to his last use. (Item 4) Asked about his last use of marijuana while he was granted access to classified information, Applicant denied any notice of access to classified information before November 2021. (Item 4) In an updated April 2022 PSI, he claimed an understanding at the time that he thought he only has a temporary clearance and could not recall whether he was granted a full clearance before his last use of marijuana during the Thanksgiving holidays. (Item 4) DISS CATS records document that Applicant was granted a full security clearance on July 31, 2021. DISS CATS records further document that he signed a non- disclosure agreement (NDA) on August 9, 2021. (Item 5) Applicant’s use of marijuana after being granted access to classified information in July 2021, signing an NDA in 2021, and completing an e-QIP in 2023, not only conflicts with his own claims of unknowing use of marijuana while having access to classified information, but contrasts and contradicts with his commitments to avoidance of all uses of illegal drugs while holding a security clearance. Summarized, Applicant’s claims of isolated use of marijuana in November 2021 without any awareness of his violating his abstinence commitments cannot be reconciled with his received notices and acknowledged understandings of illegal drug avoidance requirements for anyone with granted access to classified information. Commitments made to avoid illegal drugs while holding a security clearance cannot be discounted or relaxed absent exigent circumstances, which are not present in Applicant’s case.

By virtue of the jurisprudential principles recognized by the U.S. Supreme Court in Department of the Navy v. Egan, 484 U.S. 518, 528 (1988), “no one has a ‘right’ to a security clearance.” 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. Eligibility for access to classified information may only be granted “upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended. 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 AGs list guidelines to be considered by judges in the decision-making process covering DOHA cases. These AG guidelines take into account factors that could create a potential conflict of interest for the individual applicant, as well as considerations that could affect the individual’s reliability, trustworthiness, and ability to protect classified information. The AG guidelines include conditions that could raise a security concern and may be disqualifying (disqualifying conditions), if any, and all of the conditions that could mitigate security concerns, if any. These guidelines must be considered before deciding whether or not a security clearance should be granted, continued, or denied. Although, the guidelines do not require judges to place exclusive reliance on the enumerated disqualifying and mitigating conditions in the guidelines in arriving at a decision. In addition to the relevant AGs, judges must take into account the pertinent considerations for assessing extenuation and mitigation set forth in ¶ 2(a) of the AGs, which are intended to assist the judges in reaching a fair and impartial, commonsense decision based on a careful consideration of the pertinent guidelines within the context of the whole person. The adjudicative process is designed to examine a sufficient period of an applicant’s life to enable predictive judgments to be made about whether the applicant is an acceptable security risk. When evaluating an applicant’s conduct, the relevant guidelines are to be considered together with the following ¶ 2(d) factors: (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 of the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Viewing the issues raised and evidence as a whole, the following individual guidelines are pertinent herein: Drug Involvement The Concern: The illegal use of controlled substances, to include the misuse of 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 Concern: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, and 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 . . . AG ¶ 15. Personal Conduct Burdens of Proof

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. See also Exec. Or. 12968 (Aug. 2, 1995), § 3.1. 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 guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996). 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).

Security concerns are raised over Applicant’s lengthy history of marijuana use (dating to 2010) and violation of his commitment to abstain from marijuana use after he was granted access to classified information in July 2021. Considered together, Applicant’s involvement with illegal drugs raises security concerns over whether his actions reflect an historical pattern of marijuana use incompatible with the good judgment, reliability, and trustworthiness requirements for gaining access to classified information. Drug involvement concerns Applicant’s admissions to using marijuana raise security concerns over judgment and risks of recurrence. On the strength of the evidence presented, three disqualifying conditions (DCs) of the AGs for drug involvement apply to Applicant’s situation: DC ¶¶ 25(a), ”any substance misuse”; 25(c), “illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of Illegal drugs or drug paraphernalia”; and 25(f), “any illegal drug use while granted access to classified information or holding a sensitive position.” To his credit, Applicant has committed to abandoning all involvement with marijuana. For over two years, he has remained abstinent from illegal drugs (inclusive of marijuana) and exhibits no visible signs or indications of succumbing to any risks or pressures he might encounter to return to illegal drug use in the foreseeable future. Applicant’s assurances of sustained abstinence from illegal drugs (inclusive of marijuana) are encouraging. And, his efforts warrant partial application of two mitigating conditions (MCs) of the drug involvement guideline: MC ¶¶ 26(a), “the behavior happened so long ago, was so infrequent, or happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment”; and 26(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 . . . , (2) changing or avoiding the environment where drugs were used . . . Still, with the combination of a lengthy history of marijuana use (2010-2021) and his continued use of the drug over a Thanksgiving holiday after being previously notified of his approved access to classified information, it is still too soon to absolve Applicant of risks of recurrence. Without more time and evidence from corroborating sources to establish a probative pattern of sustained abstinence from the use of illegal drugs by Applicant, none of the mitigating conditions are fully available to him. While this is not a close case, even close cases must be resolved in the favor of the national security. See Dept. of Navy v. Egan, supra. Quite apart from any judgment reservations the Government may have for the clearance holder employed by a defense contractor, the Government has the right to expect the keeping of promises and

__________________________ commitments from the trust relationship it has with the clearance holder. See Snepp v. United States, 444 U.S. 507, 511n.6 (1980) Whole-person assessment From a whole-person perspective, Applicant has failed to establish enough independent probative evidence of his overall trustworthiness, reliability, and good judgment required of those who seek eligibility to hold a security clearance or sensitive position. He lacks enough positive reinforcements and time in abstinence from active use of illegal drugs to facilitate safe predictions he is at no risk of recurrence Considering the record as a whole at this time, there is insufficient evidence of sustainable mitigation in the record to make safe predictable judgments about Applicant’s trusted ability to avoid illegal drugs in the foreseeable future. Taking into account all of the facts and circumstances surrounding Applicant’s drug activities over a 10-plus- year periods, he does not mitigate security concerns with respect to the allegations covered by SOR ¶¶ 1.a-1.b and 2.a-2-b. I have carefully applied the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person, I conclude drug involvement and personal conduct security concerns are not mitigated. Eligibility for access to classified information is denied.

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: GUIDELINE H (DRUG INVOLVEMENT): AGAINST APPLICANT Subparagraph 1.a-1.b: Against Applicant AGAINST APPLICANT Subparagraphs 2.a-2.b: Against Applicant GUIDELINE E (PERSONAL CONDUCT):

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 eligibility for a security clearance. Eligibility for access to classified information is denied. Roger C. Wesley Administrative Judge