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ISCR Case 16-01687.h1 — CASE

ISCR Case 16-01687.h1denied

Case Headnote

ISCR Case No. 16-01687.h1

deniedAug 16, 2017· Hon. Thomas M. Crean· hearing

Summary

A 51-year-old male applicant with a construction and military background was denied a security clearance under Guideline H (Drug Involvement). The Statement of Reasons alleged, and the applicant admitted, to using marijuana three times a week from June 1983 until January 2015. This extensive history of drug use, spanning over 32 years, raised significant security concerns regarding the applicant's reliability and trustworthiness.

Despite the applicant's claim of sobriety since January 2015, the judge found insufficient evidence to mitigate these concerns. Specifically, there was no corroborating evidence of rehabilitation or ongoing treatment for drug use presented. The judge concluded that the recent cessation of drug use alone was not enough to demonstrate a reliable commitment to abstain from future drug use.

Consequently, the applicant failed to mitigate the disqualifying conditions under Guideline H, leading to the denial of his security clearance. The decision highlighted the lack of demonstrated rehabilitation and the long duration of past drug involvement as key factors in the denial.

Why the Applicant Was Denied

Applicant admitted to using marijuana three times a week for over 32 years until January 2015.
The judge found no corroborating evidence of rehabilitation or ongoing treatment for drug use.
The applicant's recent cessation of drug use was deemed insufficient to mitigate concerns about reliability and trustworthiness.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedSubstance Misuse
AG ¶ 25(c)raisedIllegal Possession of a Controlled Substance

Mitigating

AG ¶ 26(a)rejectedBehavior Happened Long Ago or InfrequentThe applicant's drug use was recent and frequent, undermining this condition.
AG ¶ 26(b)rejectedAcknowledgment of Drug Involvement and Evidence of Actions Taken to Overcome ProblemsThe applicant provided minimal evidence of rehabilitation or a pattern of abstinence.

Key Rule Quoted

“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.”

Procedural Posture

SOR issuedSep 6, 2016
Answer filedSep 26, 2016Applicant admitted the allegations.
Hearing held—Decided on the written record.
Decision dateAug 16, 2017

Cite For

Denial of Security Clearance Due to Extensive Drug Involvement Under Guideline H
Insufficient Evidence of Rehabilitation and Commitment to Abstain From Drug Use
Consideration of the Whole-person Concept in Security Clearance Decisions

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant admitted to using marijuana three times a week from June 1983 until January 2015. The judge found that the applicant failed to mitigate the drug involvement security concerns, leading to a denial of eligibility for access to classified information.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The SOR alleges, and Applicant admits, in response to question 23 of the e-QIP, that he used marijuana three times a week from June 1983 until January 2015.	Against Applicant	Marijuana	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—

Descriptive standardized rendering of a decided public case (Guideline H). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-01687 ) ) ) Applicant for Security Clearance

For Government: Julie R. Mendez, Esq., Department Counsel For Applicant: Pro se

08/16/2017 ______________

STATEMENT OF CASE

______________

CREAN, THOMAS M., Administrative Judge:

Based on a review of the pleadings, Applicant failed to mitigate drug involvement security concerns. Eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted an Electronic Questionnaire for Investigations Processing (e- QIP) on May 26, 2015, to obtain a security clearance required for a position with a defense contractor. (Item 3) The Department of Defense (DOD) could not make the affirmative findings required to issue a security clearance. On September 6, 2016, DOD issued Applicant a Statement of Reasons (SOR) detailing security concerns for drug involvement (Guideline H). (Item 1) The action was taken under Executive Order (EO) 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 (AG) effective in the Department of Defense on September 1, 2006. On June 8, 2017, new AGs were implemented and are effective for decisions issued after that date.1

Applicant answered the SOR on September 26, 2016, admitting the allegation of marijuana use from June 1983 until January 2015. Applicant elected to have the matter decided on the written record. (Item 2) Department Counsel submitted the Government’s written case on October 19, 2016. Applicant received a complete file of relevant material (FORM) on November 1, 2016, and he was provided the opportunity to file objections and to submit material to refute, extenuate, or mitigate the disqualifying conditions. Applicant provided additional information in response to the FORM on November 18, 2016. I was assigned the case on July 1, 2017.

FINDINGS OF FACT

After a thorough review of the case file, I make the following findings of fact. Applicant is a 51-year-old 1983 high school graduate. He served on active duty in the Marine Corps from August 1983 until March 1989 when he received an honorable discharge. He spent 32 years working in the construction trades. He has been employed in a shipyard working on submarine construction since May 2015. He married in September 1996 and has one child. (Item 3, e-QIP, dated May 26, 2015)

The SOR alleges, and Applicant admits, in response to question 23 of the e-QIP, that he used marijuana three times a week from June 1983 until January 2015. (SOR 1.a) Applicant also wrote to a security adjudicator that he no longer used drugs or alcohol, and has eight years of sobriety and two years of not using marijuana. He reported in his letter to the security adjudicator that he is clean, sober, and of right mind thanks to the help of Alcoholics Anonymous (AA); that he is proud of his service as a Marine; that he is reliable and trustworthy in his job in the shipyard; that his career in the shipyard started him on a new life; and that he is sincere and honest and will submit to drug testing at any time. (Item 2, Letter, dated September 20, 2016)

In his response to the FORM, Applicant noted that he did not use marijuana during his Marine Corps service. In his answer to the SOR and on his e-QIP, he admitted using marijuana during the time he was an active duty Marine. During the years he used marijuana, he stated he did not use the illegal drug constantly. This is a distinction without a difference, and I conclude that Applicant used marijuana while on active duty with the Marine Corps. He is now sober and drug-free and intends to remain that way. He notes as a positive to remain drug free that he is the father of a 12-year-old girl. However, since she was born in 2004, he used marijuana for the first nine years of her life. He stated that his recovery has taken time but he built a solid foundation. He spends his spare time enjoying a clean and sober lifestyle and helping those struggling with drug and alcohol addiction. (Item 5)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the Administrative Guidelines. 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, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s over-arching adjudicative goal is a fair, impartial and common sense 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 access to classified information will be resolved in favor of 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, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by department counsel. . .” The applicant has the burden of persuasion to obtaining 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 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 EO 10865 provides that decision shall be “in terms of eh 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 and sensitive information).

ANALYSIS

Drug Involvement

The illegal use of a controlled substance 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 ¶ 24)

Applicant admits that he used marijuana three times a week from June 1983 until January 2015. Marijuana is a controlled substance. These facts raise the following Drug Involvement Disqualifying Conditions under AG ¶ 25:

(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.

I considered the following Drug Involvement Mitigating Conditions under AG ¶ 26:

(a) the behavior happened so long ago, was so infrequent, or happened under such unusual 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 problems, 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 further involvement or misuse is grounds for revocation of national security eligibility. While there is no "bright line" rule for determining when conduct is recent or sufficient time has passed since the incidents, a determination whether past conduct affects an individual's present reliability and trustworthiness must be based on a careful evaluation of the totality of the evidence. If the evidence shows a significant period of time has passed without evidence of drug involvement, there must be an evaluation whether that period of time demonstrates changed circumstances or conduct sufficient to indicate a finding of reform or rehabilitation.

The mitigating conditions do not apply. Applicant admits to using marijuana three times weekly for over 32 years from June 1983 until January 2015. He reports that he stopped using marijuana in January 2015, just 32 months ago. This timing makes his misuse frequent, recent, and deliberate. Other than his statement that he has ceased using marijuana, there are no other indications that he stopped using illegal drugs. He did not present any evidence that would bolster or corroborate his non-use of marijuana. There is no evidence of counseling, rehabilitation, or ongoing after care programs. Even if he has stopped, he could easily use marijuana again since he misused the illegal substance for over 32 years and only reported stopping in the last few years. His misuse could start at any time. Applicant has not provided sufficient information for me to be convinced that he has stopped misusing marijuana.

Applicant stated an intent not to misuse controlled substances again, but he did not execute an agreement to that effect. The only evidence of his intent is his statement. There is some evidence that he participated in AA and may have received counseling about drug abuse. There is no evidence of the extent of his participating in and the results of drug treatment and counseling programs. There are no evaluations from counselors as to his prognosis for not using illegal drugs in the future. Since Applicant provided no documentation to verify that he no longer uses illegal drugs; that he successfully completed a drug abuse treatment program; and that his statement of intent not to use illegal drugs in the future is reliable, Applicant has failed to mitigate drug involvement security concerns.

WHOLE PERSON CONCEPT

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 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. 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 considered Applicant’s six years of active and reserve service as a Marine. Applicant admitted substance misuse from June 1983 until June 2015. He presented minimal evidence of counseling and rehabilitation. Overall, these facts leave me with questions and doubts about Applicant’s judgment, reliability, trustworthiness, and eligibility and suitability for access to classified information. For all these reasons, I conclude that Applicant has not mitigated drug involvement security concerns. Eligibility for access to classified information is denied.

FORMAL FINDINGS

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: Against Applicant

CONCLUSION

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 eligibility for a security clearance. Eligibility for access to classified information is denied.

_________________ TH0MAS M. CREAN Administrative Judge

FOOTNOTES

1 I considered the previous AGs, effective September 1, 2006, as well as the new AGs, effective June 8, 2017. My decision would be the same if the case were considered under the previous AGs.