ISCR Case No. 23-00521

EA c; ... o _.~ .t::~! ~ o ______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS \\ In the matter of: ) ) ) ISCR Case No. 23-00521 ) Applicant for Security Clearance ) Appearances For Government: Aubrey M. De Angelis, Esq., Department Counsel For Applicant: Pro se 01/12/2024

FOREMAN, LeRoy F., Administrative Judge: This case involves security concerns raised under Guideline H (Drug Involvement and Substance Misuse). Eligibility for access to classified information is denied. Statement of the Case Applicant submitted a security clearance application (SCA) on April 15, 2022. On May 24, 2023, the Defense Counterintelligence and Security Agency Consolidated Adjudication Services (DCSA CAS) send her a Statement of Reasons (SOR) alleging security concerns under Guideline H. The CAS acted under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense (DOD) Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) promulgated in Security Executive Agent Directive 4, National Security Adjudicative Guidelines (December 10, 2016) (SEAD 4). Applicant answered the SOR on June 12, 2023, and requested a decision on the written record without a hearing. Department Counsel submitted the Government’s written case on August 25, 2023. On August 25, 2023, a complete copy of the file of relevant

material (FORM) was sent to Applicant, who was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. She received the FORM on September 14, 2023, and submitted a statement, which was admitted in evidence without objection by Department Counsel, as Applicant’s Exhibit (AX) A. The case was assigned to me on January 4, 2024.

In Applicant’s answer to the SOR, she admitted using marijuana, but she denied the allegation in part, denying that her prior legal use of medical marijuana “is any way indicative of [her] ability to serve the national interest in trustworthiness and reliability.” Her partial admission is incorporated in my findings of fact. Applicant is a 29-year-old cybersecurity penetration tester employed by a defense contractor since January 2022. She received an associate degree in September 2015, a bachelor’s degree in August 2017, and a master’s degree in August 2021. She married in September 2017. She has never held a security clearance. Applicant disclosed her marijuana use in her SCA. She disclosed that she used it experimentally once in 2013, abstained until 2019, used it both recreationally and medically about seven times from 2019 to August 2021, and had abstained from about August 2021 until April 2022. She stated that she intended to use it in the future, especially in legal jurisdictions permissible by ongoing progressive federal and state cannabis legislation and regulations.” She explained, “When the controlled substance is not abused, there are numerous medical benefits for [her] dietary conditions . . . as well as occasional stress-relief alternative benefits.” When Applicant was interviewed by a security investigator in May 2022, she stated that she did not plan to continue her marijuana use unless it becomes “federally legal” and she received a medical prescription for health reasons. (FORM Item 5 at 5) In response to DOHA interrogatories on May 4, 2023, she declined to provide a signed statement of intent to abstain from all drug involvement and substance misuse and to acknowledge that any future involvement or misuse is grounds for revocation of national security eligibility. (FORM Item 5 at 11) In her response to the FORM, she submitted a copy of her state-issued medical marijuana card and asked for a waiver, based on her recent diagnosis of exocrine pancreatic insufficiency and fibromyalgia, and promising that her use of cannabis would be strictly medical and not recreational. (AX A)

“[N]o 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 applicants

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 § 2. 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, an administrative judge applies these guidelines 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 and 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 that 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 made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense 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 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. 15-01253 at 3 (App. Bd. Apr. 20, 2016). 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 burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005). An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01- 20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531.

Guideline H (Drug Involvement and Substance Misuse) The concern under this guideline is set out in 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. Applicant’s admissions and the evidence in the FORM establish the following disqualifying conditions under this guideline: AG ¶ 25(a): any substance misuse (see above definition); AG ¶ 25(c): illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and AG ¶ 25(g): expressed intent to continue drug involvement and substance misuse, or failure to clearly and convincingly commit to discontinue such misuse. The following mitigating conditions are potentially applicable: AG ¶ 26(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; AG ¶ 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: (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. AG ¶ 26(a) is not established. Applicant’s marijuana use was frequent, recent, and did not occur under circumstances making recurrence unlikely. AG ¶ 26(b) is not established. Applicant has acknowledged her previous marijuana use, but her environment is essentially unchanged, and she specifically declined to provide the signed statement of intent under AG ¶ 26(b)(3). On October 25, 2014, the Director of National Intelligence issued DNI Memorandum ES 2014-00674, “Adherence to Federal Laws Prohibiting Marijuana Use,” which states, “[C]hanges to state laws and the laws of the District of Columbia pertaining to marijuana use do not alter the existing National Security Adjudicative Guidelines . . . .” The DOHA Appeal Board has observed that “DOHA proceedings are not a proper forum to debate the pros and cons of whether marijuana should be legal for some purposes, how it should be classified as a controlled substance, or the merits of DoD policy concerning drug abuse.” ISCR Case No. 14-03734 at 3 (App. Bd. Feb. 18, 2016).

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. In applying the whole- person concept, an 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. An 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. I have incorporated my comments under Guideline H in my whole-person analysis and applied the adjudicative factors in AG ¶ 2(d). Because Applicant requested a determination on the record without a hearing, I had no opportunity to evaluate her

credibility and sincerity based on demeanor. See ISCR Case No. 01-12350 at 3-4 (App. Bd. Jul. 23, 2003). After weighing the disqualifying and mitigating conditions under Guideline H and evaluating all the evidence in the context of the whole person, I conclude Applicant has not mitigated the security concerns raised by her drug involvement. Waiver In Applicant’s response to the FORM, she requested a waiver of the disqualifying conditions under Guideline H. Appendix C to SEAD 4 provides that “approval authorities may approve a waiver only when the benefit of initial or continued eligibility clearly outweighs any security concerns.” Applicant has not provided sufficient evidence to establish that her qualifications and potential contributions to national security clearly outweigh the security concerns under Guideline H.

I make the following formal findings on the allegations in the SOR: Paragraph 1, Guideline H: AGAINST APPLICANT Subparagraph 1.a: Against Applicant

I conclude that it is not clearly consistent with the national security interests of the United States to grant Applicant eligibility for access to classified information. Clearance is denied. LeRoy F. Foreman Administrative Judge