ISCR Case No. 23-02183

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 23-02183 ) ) Applicant for Security Clearance ) Appearances For Government: Jeff Nagel, Esquire, Department Counsel For Applicant: Pro se 05/22/2024

CEFOLA, Richard A., Administrative Judge: On January 23, 2023, Applicant submitted his Electronic Questionnaire for Investigations Processing (e-QIP). On November 13, 2023, the Defense Counterintelligence and Security Agency Consolidated Adjudication Services (DCSA CAS) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline H (Drug Involvement and Substance Misuse). The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the Adjudicative Guidelines effective June 8, 2017. Applicant answered the SOR in writing (Answer) on January 12, 2024, and requested a hearing before an administrative judge. Appended to that Answer are eleven exhibits, marked as AppXs A~K, and admitted into evidence as part of Applicant’s Answer. The Defense Office of Hearings and Appeals (DOHA) received the request soon thereafter. I received the case assignment on February 20, 2024. DOHA issued a Notice of Hearing on February 29, 2024, and I convened the hearing as

scheduled on March 11, 2024. The Government offered Exhibits (GXs) 1 through 3, which were received without objection. Applicant testified on his own behalf. DOHA received the transcript of the hearing (TR) on March 22, 2024. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is denied.

In his Answer to the SOR Applicant admitted the factual allegations in Paragraph 1 of the SOR, with explanations He also provided additional information to support his request for eligibility for a security clearance. Applicant is 47 years old, married, and has two adult children. (GX 1 at pages 5, 16, and 19–20.). He has worked for a defense contractor since June of 2022. Guideline H – Drug Involvement and Substance Misuse 1.a. Applicant admits he used marijuana about 300 times over a period of 28 years, from June of 1995, while attending high school, until his last usage in April 2023, less than a year prior to his hearing and three months after executing his e-QIP. (TR at page 16 line 20 to page 23 line 17.) 1.b. Applicant used hallucinogenic mushrooms, once in May of 2021. Applicant has submitted a Signed Statement of Intent to eschew any future drug involvement. (AppX C.) He has also submitted a negative drug screen; certificates of education re marijuana usage, drug awareness, and behavior modification; and letters of recommendation. (AppXs D ~G.)

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), 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.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “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, and has the ultimate burden of persuasion as to obtaining a favorable clearance 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 protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Section 7 of Executive Order 10865 provides that 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 relating to the guideline for Drug Involvement and Substance Misuse is set forth at 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 at AG ¶ 25 contains seven conditions that could raise a security concern and may be disqualifying. One such condition was established: (a) any substance misuse (see above definition). Appellant used marijuana about 300 times over a period of 18 years. He also used hallucinogenic mushrooms, once in 2021. Therefore, security concerns AG ¶ 25 (a) are established. The guideline at AG ¶ 26 contains four conditions that could mitigate security concerns. Two conditions may be 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. Although Applicant has submitted a signed statement of intent to abstain from all drug involvement and substance misuse, his marijuana use was extensive, and ended less than a year prior to his hearing. Given the extent, duration, and recency of that drug abuse, it is too soon to find his marijuana involvement is not of present security significance. Drug Involvement and Substance Misuse is found against Applicant.

_________________

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of an applicant’s conduct and all the 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. AG ¶ 2(b) requires each case must be judged on its own merits. 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. Applicant is well respected in the workplace. (AppXs H~J.) However, overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising from his drug involvement and substance abuse. This should not dissuade Applicant from reapplying for a security clearance after a more significant period of abstinence.

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline H: AGAINST APPLICANT Subparagraphs 1.a. and 1.b: Against Applicant

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 national security eligibility for a security clearance. Eligibility for access to classified information is denied. Richard A. Cefola Administrative Judge