ISCR Case No. 24-00710

EA c; ... o _.~ .t::~! ~ o ______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS \\ In the matter of: ) ) [Redacted] ) ISCR Case No. 24-00710 ) Applicant for Security Clearance ) Appearances For Government: Tara Karoian, Esq., Department Counsel For Applicant: Pro se 10/04/2024

FOREMAN, LeRoy F., Administrative Judge: This case involves security concerns raised under Guidelines 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 October 28, 2022. On May 8, 2024, 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 DCSA 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), which became effective on June 8, 2017. Applicant answered the SOR on May 20, 2024, and requested a decision on the written record in lieu of a hearing. Department Counsel submitted the Government’s

written case on June 25, 2024. On June 27, 2024, 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 July 5, 2024, and responded on July 29, 2024. His response has been marked as Applicant’s Exhibit (AX) A and admitted in evidence without objection by Department Counsel. The case was assigned to me on September 26, 2024.

In Applicant’s answer to the SOR, he admitted all the allegations in the SOR. His admissions are incorporated in my findings of fact. Applicant is a 24-year-old risk analyst employed by a federal contractor since August 2022. He also has worked as a bartender at several establishments since June 2021. He received a bachelor’s degree in June 2022. He has never married and has no children. He worked as an engineering intern at a military facility from June to August 2016 and was cleared to participate in the program, but does not know what level of clearance, if any, that he received. He does not have an active clearance. The SOR alleges and Applicant admits that he used several drugs with varying frequency from February 2019 to April 2023, to include cocaine, tetrahydrocannabinol (THC), methylenedioxymethamphetamine (MDMA), lysergic acid diethylamide (LSD), psilocybin mushrooms, and ketamine. (SOR ¶¶ 1.a-1.f) The SOR also alleges and Applicant admits purchasing and using Adderall, Ritalin, and Xanax without a prescription. (SOR ¶¶ 1.g-1.j and 1.l-1.p) Finally, the SOR alleges and Applicant admits that he sold THC between June 2020 and August 2020 (SOR ¶ 1.k). He disclosed his drug involvement in his SCA. In his answer to the SOR and response to the FORM, Applicant attributed his drug use to participation in a college fraternity that “normalized and glorified the use of illegal drugs.” He asserted that he is not physically dependent on drugs. He also asserted that he stopped most of his drug use after he left the fraternity in the summer of 2020, but he admitted that he used drugs through the summer and early autumn of 2022. He admitted that he last used cocaine in April 2023, after he submitted his SCA. In his answer to the SOR, he included a statement of intent to abstain from illegal drug use and acknowledging that any future illegal drug use would be grounds for revocation of national security eligibility. When Applicant was interviewed by a security investigator in September 2023, he disclosed and described his use of MDMA with his cohabitant. In his SCA, he disclosed a dating relationship since November 2021 with the same woman. Although he stated in his answer to the SOR and response to the FORM that he no longer associates with drug users, he has not stated whether he is still cohabiting or otherwise associating with the woman with whom he used MDMA.

In Applicant’s response to the FORM, he stated that he left the fraternity in July 2020 and spent much of the COVID-19 lockdown in isolation. He also stated that he has learned that his family has a history of cardiomyopathy and that he recently experienced faintness and heart flutters when exercising heavily, indicating that he may be at risk when using stimulants, especially cocaine, MDMA, Adderall, or Ritalin. He stated that he is no longer willing to accept the risk to his cardiovascular health that illegal drug use can cause.

“[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 at 531. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all the contrary evidence in the same record.” See ISCR

Case No. 17-04166 at 3 (App. Bd. Mar. 21, 2019) It is “less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [a Judge’s] finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). “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. 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 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 establish the following disqualifying conditions under this guideline: AG ¶ 25(a): any substance misuse (see above definition); and AG ¶ 25(c): illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia.

The following mitigating conditions are relevant: 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; and 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 drug involvement was recent, frequent, and did not occur under circumstances making recurrence unlikely.

AG ¶¶ 26(b)(1) and 26(b)(2) are not fully established. Applicant has left the fraternity where drug abuse was rampant, but he continued to use cocaine until at least April 2023. As of the date of his security interviews in September 2023, he was still cohabiting with a woman with whom he had used MDMA. AG ¶ 26(b)(3) is established by Applicant’s signed statement of intent in his response to the SOR. Notwithstanding Applicant’s responses to the SOR and the FORM, not enough time has passed to establish a pattern of abstinence. He has a long history of drug abuse. He used cocaine in April 2023, after submitting his SCA. He was still cohabiting with a woman with whom he used MDMA at the time of his security interview in September 2023. He did not promise to abstain from drugs until he received the SOR and realized that his drug use was an impediment to obtaining a security clearance. I am not satisfied that he will not resume his drug involvement, albeit in a more limited manner because of his concerns about the health risks, once the pressure of qualifying for a security clearance is removed. “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.” ISCR Case No. 09-01652 at 3 (App. Bd. Aug. 8, 2011), citing Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991).

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 question him or 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 drug involvement.

I make the following formal findings on the allegations in the SOR: Paragraph 1, Guideline H: AGAINST APPLICANT Subparagraphs 1.a-1.p: 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