ISCR Case No. 23-02833

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 23-02833 ) Applicant for Security Clearance ) Appearances For Government: Rhett Petcher, Esq., Department Counsel For Applicant: Pro se 10/24/2024

CEFOLA, Richard A., Administrative Judge: Statement of the Case Applicant submitted a security clearance application (SCA) on August 7, 2023. (Item 2.) On January 16, 2024, the Defense Counterintelligence and Security Agency Consolidated Adjudications Services (DCSA CAS) sent him a Statement of Reasons (SOR) alleging security concerns under Guidelines E (Personal Conduct), H (Drug Involvement and Substance Misuse) and J (Criminal Conduct). (Item 1.) The DCSA CAs acted 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) implemented by the DOD on June 8, 2017. Applicant answered the SOR on February 16, 2024 (Item 1), and requested a decision on the record without a hearing. Department Counsel submitted the Government’s written case on March 25, 2024. A complete copy of the file of relevant material (FORM) was sent to Applicant, including documents identified as Items 1 through 5. He was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. He received the FORM on April 8, 2024, and did

not respond. Items 1 through 5 are admitted into evidence. The case was assigned to me on August 8, 2024.

Applicant, age 28, is not married and has no children. (Item 2 at pages 5 and 17.) Guideline E: Personal Conduct

1.a. Applicant admits that he falsified his March 15, 2023, SCA when he answered “No” to “Section 23 – Illegal Use of Drugs . . . In the last seven (7) years, have you illegally used any drugs or controlled substances.” (Item 3 at page 31.) Applicant used cocaine from about December 2021 to December 2022, and marijuana from March 2014 to about 2022. This was a willful falsification.

1.b. On his March 15, 2023, SCA, Applicant answered “No” to “Section 23 – Illegal Use of Drugs . . . While possessing a Security Clearance – Have you EVER illegally used . . . [a] controlled substance while possessing a security clearance. (Item 3 at page 31.) Applicant left Federal employment in November of 2021. (Item 3 at pages 13.) Although he never used cocaine while possessing a security clearance, he admits his falsification as he used marijuana from about December 2021 to December 2022. This was a willful falsification.

1.c. Applicant admits that he falsified his November 3, 2020, SCA when he answered “No” to “Section 23 – Illegal Use of Drugs . . . In the last seven (7) years, have you illegally used any drugs or controlled substances.” (Item 4 at page 28.) Applicant used marijuana from March 2014 to about 2022. This was a willful falsification. Guideline H: Drug Involvement and Substance Misuse & Guideline J: Criminal Conduct

2.a. and 3.a. Applicant admits he used cocaine from about December 2021 to December 2022. He also admits this constitutes criminal conduct.

2.b. and 2.c. Applicant admits he used marijuana from March 2014 to about 2022, while possessing a security clearance. He also admits this constitutes criminal conduct.

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 (AG) list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s national security eligibility. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied 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. The entire process is a conscientious scrutiny of applicable guidelines in the context 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, “Any 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. I have not drawn inferences based on mere speculation or conjecture. Directive ¶ E3.1.14 requires the Government to present evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.15 states, “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, 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 national security eligibility. 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 or sensitive information. Finally, as emphasized in Section 7 of EO 10865, “Any determination under this order adverse to an applicant shall be a determination 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 E: Personal Conduct The concern under this guideline is set out in AG ¶ 15: 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 investigative or adjudicative processes. The following will normally result in

an unfavorable national security eligibility determination, security clearance action, or cancellation of further processing for national security eligibility: (a) refusal, or failure without reasonable cause, to undergo or cooperate with security processing, including but not limited to meeting with a security investigator for subject interview, completing security forms or releases, cooperation with medical or psychological evaluation, or polygraph examination, if authorized and required; and (b) refusal to provide full, frank, and truthful answers to lawful questions of investigators, security officials, or other official representatives in connection with a personnel security or trustworthiness determination. Based on Applicant’s deliberate falsification of his SCAs, the following disqualifying condition applies: AG ¶ 16 (a): deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine national security eligibility or trustworthiness, or award fiduciary responsibilities. Applicant admits he falsified his March 2023 and November 2020 SCAs. Therefore, AG ¶ 16(a) is established. The personal conduct security concerns raised in the SOR may be mitigated by any of the following potentially applicable factors in AG ¶ 17: (a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; (b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by advice of legal counsel or of a person with professional responsibilities for advising or instructing the individual specifically concerning security processes. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully; and (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. None of these apply. Applicant provided no information that indicates he was ill- advised in completing his SCAs. Falsifying information is a serious offense, and Applicant

has shown that similar lapses in judgment are likely to occur. He has not provided sufficient information in this record to demonstrate that he has met his burden of proof for his personal conduct. Personal Conduct is found against Applicant. 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. Two conditions are established: (a) any substance misuse (see above definition); and (f) any illegal drug use while granted access to classified information or holding a sensitive position. Appellant used both cocaine and marijuana. His marijuana use occured while he had a security clearance. Therefore, AG ¶ 25 (a), and (f) 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. None of these apply. Applicant used cocaine less than two years ago, and his use of marijuana occurred while he held a security clearance. He has also not submitted a signed statement of intent to abstain from all drug involvement and substance misuse. Drug Involvement and Substance Misuse is found against Applicant. Guideline J: Criminal Conduct AG ¶ 30 sets forth the security concerns pertaining to criminal conduct: Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules and regulations. AG ¶ 31 describes two conditions that could raise a security concern and may be disqualifying in this case: (a) a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual’s judgment, reliability, or trustworthiness; and (b) evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted. Applicant violated criminal law by his eight years of marijuana use, and his year of cocaine use. The evidence establishes the above two disqualifying conditions. AG ¶ 32 provides two conditions that could mitigate the above security concerns raised in this case: (a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; and (d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement.

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Sufficient time has not passed since Applicant’s illegal drug usage. The evidence does not establish mitigation under either of the above conditions. Criminal Conduct is found against Applicant.

Under AG ¶ 2(c), the ultimate determination of whether the granting or continuing of national security eligibility is clearly consistent with the interests of national security must be an overall common sense judgment based upon careful consideration of the applicable guidelines, each of which is to be evaluated in the context of the whole person. 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 Guidelines E, H and J in my whole-person analysis, and I have considered the factors in AG ¶ 2(d). After weighing the disqualifying and mitigating conditions under Guidelines E, H and J, and evaluating all the evidence in the context of the whole person, I conclude that Applicant failed to mitigate the security concerns raised by the falsification of his SCAs under his personal conduct, his drug involvement and substance misuse, and his criminal conduct. Accordingly, Applicant has not carried his burden of showing that it is clearly consistent with the national interest to grant him eligibility for access to classified information.

I make the following formal findings on the allegations in the SOR: Paragraph 1 Guideline E (Personal Conduct): AGAINST APPLICANT Subparagraphs 1.a~1.c: Against Applicant Paragraph 2 Guideline H (Drug Involvement): AGAINST APPLICANT Subparagraphs 2.a~1.c: Against Applican Paragraph 3 Guideline J (Criminal Conduct): AGAINST APPLICANT Subparagraph 3.a.: 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