ISCR Case No. 23-01164

__________ __________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) [Name Redacted] ) ISCR Case No. 23-01164 ) Applicant for Security Clearance ) Appearances For Government: Tara R. Karoian, Esq., Department Counsel For Applicant: Pro se 01/26/2024

HOGAN, Erin C., 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 on December 22, 2022. On July 26, 2023, the Defense Counterintelligence and Security Agency Consolidated Adjudication Services (DCSA CAS) sent him 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). Applicant timely answered the SOR and requested a decision on the written record without a hearing. Department Counsel submitted the Government’s written case on August 28, 2023. On August 30, 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. He received the FORM on September 11, 2023, and did not respond. The case was assigned to me on January 3, 2024. There being no objections, I admitted and considered all of the FORM’s evidence, Items 1-4.

Applicant is a 24-year-old employee of a DOD contractor. He has worked for them since January 2022. He received a bachelor’s degree in December 2021. He has never been married and has no children. This is his first time applying for a security clearance. (Item 2) SOR ¶ 1.a alleged that Applicant used marijuana and other products containing tetrahydrocannabinol (THC) with varying frequency from about March 2013 to about June 2023. SOR ¶ 1.b alleged that Applicant purchased marijuana and other products containing THC from about February 2023 until about June 2023. He admitted both SOR allegations. His SOR admissions are incorporated as findings of fact. After a thorough review of the record evidence, I make the following additional findings of fact: In his answers to Section 23 (Illegal Use of Drugs or Drug Activity) of his December 2022 security clearance application, Applicant disclosed that he illegally used marijuana with varying frequency between March 2013 and July 2021. (Item 3 at 44) He described his illegal marijuana use as follows: I smoked marijuana a few times in college. It is not illegal in [state where I currently live] but illegal in [state] where I went to school. (Item 3 at 44) I had a year in high school where I used it frequently. And now I probably use it twice a year. (Id.) On February 13, 2023, Applicant was interviewed by an investigator conducting his background investigation. In response to DOHA interrogatories dated July 18, 2023, he reviewed a summary of the interview and indicated that he found it to be accurate after adding some additional information. During the background investigation interview, he was questioned about his illegal use of marijuana. He indicated that his last use of marijuana was in February 2023, after he completed his security clearance application in December 2022. From March 2013 to July 2021, Applicant did not purchase marijuana. He obtained marijuana from his friends. He began using marijuana again in February 2023. He purchased marijuana from a dispensary. Marijuana is legal in the state where he currently resides. He began using marijuana again because he is around friends who smoke marijuana, and it is legal. He is willing to stop smoking marijuana if it affects his security clearance. He told the investigator that he will likely use marijuana in the future. (Item 4)

In his July 2023, interrogatory responses, Applicant indicated that the last time he used marijuana was on June 10, 2023, but he no longer uses marijuana. (Item 4 at 3) In his response to the SOR, Applicant indicated that a lot of his mistakes occurred when he was young and immature. He has since matured and become more responsible. He believes he can contribute to his country and community. (Item 2)

The SOR was issued under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information Within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive) (January 2, 1992), as amended; and the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AGs), applicable to all adjudicative decisions issued on or after June 8, 2017. Eligibility for access to classified information may be granted “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, § 2. The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). The AGs list disqualifying and mitigating conditions for evaluating a person’s suitability for access to classified information. Any one disqualifying or mitigating condition is not, by itself, conclusive. However, the AG should be followed where a case can be measured against them, as they represent policy guidance governing access to classified information. Each decision must reflect a fair, impartial, and commonsense consideration of the whole person and the factors listed in National Security Adjudicative Guidelines (Security Executive Agent Directive 4, effective June 8, 2017, or SEAD 4) App. A ¶¶ 2(d) and 2(f). All available, reliable information about the person, past and present, favorable and unfavorable, must be considered. Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an applicant’s security clearance. The Government must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. The applicant bears the heavy burden of demonstrating that it is clearly consistent with the national interest to grant or continue his or her security clearance. Persons with access to classified information enter into a fiduciary relationship with the Government based on trust and confidence. Thus, the Government has a compelling interest in ensuring each applicant possesses the requisite judgment, reliability, and trustworthiness of those who must protect national interest as their own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an applicant’s suitability for access in favor of the Government. “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S.

at 531; SEAD 4, ¶ E(4); SEAD 4, App. A, ¶¶ 1(d) and 2(b). Clearance decisions are not a determination of the loyalty of the applicant concerned. They are merely an indication that the applicant has or has not met the strict guidelines the Government has established for issuing a clearance. In reaching my decision, I specifically considered the following: On October 25, 2014, the Director of National Intelligence Memorandum Adherence to Federal Laws Prohibiting Marijuana Use, made it clear that state laws do not authorize citizens to violate federal law, including the Controlled Substances Act (21 U.S.C. §§ 801-971 (1970)), which identifies marijuana as a Schedule I controlled drug. Changes to state laws or the District of Columbia, pertaining to marijuana use do not alter the existing National Security Adjudicative Guidelines. An individual's disregard of federal law pertaining to the use, sale, or manufacture of marijuana remains adjudicatively relevant in national security determinations. The adjudicative authority must determine if the use of, or involvement with, marijuana raises questions about the individual's judgment, reliability, trustworthiness, and willingness to comply with law, rules, and regulations, including federal laws, when making eligibility decisions of persons proposed for, or occupying, sensitive national security positions. On December 21, 2021, the Director of National Intelligence signed the memorandum, Security Executive Agent Clarifying Guidance Concerning Marijuana for Agencies Conducting Adjudications of Persons Proposed for Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position. It emphasizes that federal law remains unchanged with respect to the illegal use, possession, production, and distribution of marijuana. Individuals who hold a clearance or occupy a sensitive position are prohibited by law from using controlled substances. Disregard of federal law pertaining to marijuana (including prior recreational marijuana use) remains relevant, but not determinative, to adjudications of eligibility. Agencies are required to use the “whole- person concept” stated under SEAD 4, to determine whether the applicant’s behavior raises a security concern that has not been mitigated.

Drug Involvement and Substance Misuse AG ¶ 24 articulates the security concern for the illegal use of drugs: 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 disqualifying conditions that could raise a security concern and may be disqualifying in this case: (a) any substance misuse; and (c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia. AG ¶¶ 25(a) and 25(c) apply with regard to Applicant’s illegal use and purchase of marijuana on varying occasions from March 2013 to June 2023. The record established the above disqualifying conditions. An evaluation of applicable mitigating conditions is required. AG ¶ 26 provides conditions that could mitigate security concerns. The following are potentially 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; (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. The Appeal Board concisely 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). ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013). Considering Applicant’s history of marijuana abuse, none of the mitigating conditions apply. Applicant has a long history of marijuana use. An aggravating factor is his continued use of marijuana after submitting his security clearance application in December 2022 and then after being interviewed in February 2023 in conjunction with his security clearance background investigation. His purported last use of marijuana was in June 2023. He professed he would stop using marijuana if it affected his ability to maintain a security clearance, yet he continued to use marijuana throughout the security clearance process. AG ¶ 26(a) does not apply because his marijuana use was recent and raises questions about his judgment and trustworthiness. During his background investigation, Applicant indicated it was likely he would use marijuana in the future. His friends use marijuana. There is no indication that he no longer associates with friends who use marijuana. While marijuana is legal in the state where he resides, it remains illegal under federal law. He did not submit a signed statement of intent to abstain from all drug involvement and substance misuse. Even if he provided one, it would carry less weight considering his continued use of marijuana during the security clearance process. AG ¶ 26(b)(3) does not apply.

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 his 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 his marijuana use.

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 H: AGAINST APPLICANT Subparagraphs 1.a, 1.b: Against Applicant

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest of the United States to grant Applicant’s eligibility for a security clearance. Clearance is denied. ERIN C. HOGAN Administrative Judge