ISCR Case No. 23-02065

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 23-02065 ) Applicant for Security Clearance ) Appearances For Government: David F. Hayes, Esq., Department Counsel For Applicant: Pro se 08/16/2024

LOUGHRAN, Edward W., Administrative Judge: Applicant did not mitigate the security concerns under Guidelines E (personal conduct) and H (drug involvement and substance misuse). Eligibility for access to classified information is denied. Statement of the Case On February 29, 2024, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines E and H. Applicant responded to the SOR on March 4, 2024, and requested a decision based on the written record in lieu of a hearing. The Government’s written case was submitted on March 12, 2024. A complete copy of the file of relevant material (FORM) was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on April 4, 2024. As of June 12, 2024, he had not responded. The case was assigned to me on August 6, 2024. The Government exhibits included in the FORM are admitted in evidence without objection.

Applicant is a 34-year-old employee of a defense contractor. He has worked for his current employer since 2011. He is applying for a security clearance for the first time. He earned a bachelor’s degree in 2022. He is married with a child and a stepchild. (Item 2) Applicant has a history of illegal drug use, primarily marijuana. He has used marijuana since about 2006. He was arrested in 2007 when he was 18 years old and issued a citation for possession of one pill of 3,4-methylenedioxymethamphetamine (MDMA or ecstasy). He entered a diversion program and had to pay a fine and fees. He failed a drug test (presumably for marijuana) that was administered in about 2008 as part of his diversion program. He successfully completed the program in 2009. (Items 1- 4) Applicant’s employer has a drug policy that prohibits illegal drug involvement or alcohol “on Company premises, on Company business, in Company vehicles, or during working hours.” There is no evidence that he violated that policy. (Item 3) Applicant applied for a security clearance and submitted a Questionnaire for National Security Positions (SF-86) in March 2023. He disclosed his 2007 MDMA arrest, diversion program, and positive drug test. He reported that he had smoked marijuana since 2006, with his most recent use in February 2023. He wrote that he smoked marijuana occasionally in social gatherings, about once a month. He stated that he intended to use marijuana in the future: “I don’t actively seek it out, but if it is present, and the setting is a controlled environment (my kids aren’t around and if I don’t have other responsibilities), I may participate.” There is no evidence that Applicant’s marijuana use occurred in a state that legalized marijuana or that he thought his marijuana use was legal. His answers in the SF 86 and below indicate that he knew his marijuana use was illegal. (Item 2) Applicant provided similar information when he was interviewed for his background investigation in June 2023. He stated that he last used marijuana in May 2023. He stated that he used marijuana with family members and friends. He told the investigator that there was a 100% chance that he would use marijuana in the future. (Item 3) Applicant responded to interrogatories in February 2024. He wrote that he last used marijuana in August 2023. He admitted SOR ¶ 1.a, which includes the sentence: “You intend to use marijuana in the future.” (Item 3) He did not respond to the FORM, so additional information about his marijuana use is unavailable.

This case is adjudicated under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2,

1992), as amended (Directive); and the adjudicative guidelines (AG), which became effective on June 8, 2017. 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.” 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).

Guideline H, Drug Involvement and Substance Misuse The security concern for drug involvement and substance misuse 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. The guideline notes several conditions that could raise security concerns under AG ¶ 25. The following are potentially applicable in this case: (a) any substance misuse (see above definition); (b) testing positive for an illegal drug; (c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and (g) expressed intent to continue drug involvement and substance misuse, or failure to clearly and convincingly commit to discontinue such misuse. On October 25, 2014, the Director of National Intelligence (the Security Executive Agent (SecEA)) 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 . . . . An individual’s disregard of federal law pertaining to the use, sale, or manufacture of marijuana remains adjudicatively relevant in national security determinations. As always, adjudicative authorities are expected to evaluate claimed or developed use of, or involvement with, marijuana using the current adjudicative criteria. 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 SecEA promulgated clarifying guidance concerning marijuana-related issues in security clearance adjudications. It states in pertinent part: [Federal] agencies are instructed that prior recreational marijuana use by an individual may be relevant to adjudications but not determinative. The SecEA has provided direction in [the adjudicative guidelines] 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 mitigation. 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 possessed and used marijuana from 2006 to 2023. He possessed MDMA in 2007. He tested positive during a drug test in about 2008. He stated that he intended to use marijuana in the future. AG ¶¶ 25(a), 25(b), 25(c), and 25(g) are applicable. SOR ¶ 1.a is a compound allegation that alleges Applicant’s marijuana use, “including after submitting an Electronic Questionnaires for Investigations Processing (for National Security Position) in March 2023,” and that he intended to continue to use marijuana in the future. All those things are true. However, the fact that the marijuana use came after he submitted the SF 86 is relevant and aggravating because he knew his marijuana use was illegal, but it does not allege any additional disqualifying conditions. See, e.g., ISCR Case No. 23-00476 at 3 (App. Bd. May 1, 2024). I am considering that information as circumstances surrounding his marijuana use, in determining mitigation, and under the whole person. 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; and

(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. There is no evidence of any involvement with MDMA after Applicant’s 2007 arrest. That conduct and the 2008 positive drug test (SOR ¶¶ 1.b and 1.c) are mitigated. Applicant is an honest man. I believe what he wrote about his marijuana use. Marijuana use is prevalent today. However, marijuana possession is still a federal crime, and inconsistent with holding a security clearance. None of the mitigating conditions are applicable, and Applicant’s illegal drug use is not mitigated. Guideline E, Personal Conduct The security concern for personal conduct is set out in AG ¶ 15, as follows: 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 or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security clearance investigative or adjudicative processes. AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying. The following disqualifying condition is potentially applicable: (g) association with persons involved in criminal activity. SOR ¶ 1.a alleges and the facts establish that Applicant “continue[s] to associate with relatives and friends involved in illegal drug use.” AG ¶ 16(g) is applicable. AG ¶ 17 provides conditions that could mitigate security concerns. The following are potentially applicable: (c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is

unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; (d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that contributed to untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; and (g) association with persons involved in criminal activities was unwitting, has ceased, or occurs under circumstances that do not cast doubt upon the individual’s reliability, trustworthiness, judgment, or willingness to comply with rules and regulations. There is nothing unusual today with having friends or family who use marijuana. If Applicant had ceased his own drug use and was no longer an active participant with his friends and family, I would find the conduct mitigated. However, he is still an active participant. None of the mitigating conditions are applicable, and the conduct is not mitigated.

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 relevant circumstances. The 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. 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 considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guidelines E and H in my whole-person analysis.

________________________ Overall, the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. I conclude Applicant did not mitigate the security concerns under Guidelines E and H.

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 Subparagraph 1.a: Against Applicant Subparagraphs 1.b-1.c:

For Applicant Paragraph 2, Guideline E:

Against Applicant Subparagraph 2.a:

Against Applicant

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. Edward W. Loughran Administrative Judge