ISCR Case No. 16-01842.h1

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-01842 ) ) Applicant for Security Clearance )

For Government: Andrew Henderson, Esq., Department Counsel For Applicant: Pro se

April 11, 2017 ______________

______________

GOLDSTEIN, Jennifer I., Administrative Judge:

Applicant failed to mitigate the Drug Involvement security concerns. Applicant used marijuana with varying frequency from 1986 to 2015; used cocaine from October 2013 to December 2014; and indicated in his electronic Questionnaire for Investigations Processing (e-QIP) that he would use marijuana again. Eligibility for access to classified information is denied.

Statement of the Case

On March 27, 2015, Applicant submitted an e-QIP. On August 29, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline H, Drug Involvement. 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 after September 1, 2006. Applicant responded to the SOR (Answer) on September 23, 2016, and requested a hearing before an administrative judge. The case was assigned to me on November 1, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on November 2, 2016, and the hearing was convened as scheduled on December 6, 2016. The Government offered Exhibits (GE) 1 and 2, which were admitted without objection. Applicant testified on his own behalf and called one witness. The record was left open for receipt of additional documents. Applicant presented no further exhibits. The record then closed. DOHA received the hearing transcript (Tr.) on December 19, 2016.

Under the guideline for Drug Involvement, the SOR alleged security concerns related to: Applicant’s use of marijuana with varying frequency from 1986 to 2015 (SOR 1.a); his cocaine use from October 2013 to December 2014 (SOR 1.b); and his expressed intent to use marijuana in the future (SOR 1.c). In his Answer and during his testimony, Applicant admitted SOR subparagraphs 1.a and 1.b, with clarifications. He denied SOR subparagraph 1.c. (Answer.)

Applicant is a 52-year-old employee of a government contractor. He is a high school graduate. He applied for a security clearance in connection with his job with a defense contractor. He is married. (GE 1; Tr. 20, 29.)

SOR subparagraph 1.a alleged that Applicant used marijuana with varying frequency from October 1986 to at least December 2015. Applicant testified he first tried marijuana in the 1980’s, but did not “start to use it on a bi-yearly basis until the 2000’s.” (GE 1; GE 2; Tr. 18-24, 30-32.) He last used marijuana at a party at his house in December 2015, after submitting his e-QIP and being told by his assistant facility security officer that drug use is a “no-no.” (GE 1; GE 2; Tr. 23-24, 41.) He has not used marijuana since then, although his wife still smokes marijuana three of four times per year, alone. (GE 1; GE 2; Tr. 18-24, 30-32.)

SOR subparagraph 1.b alleged that Applicant used cocaine with varying frequency, from approximately October 2013 to December 2014. Applicant explained that his mother-in-law was diagnosed with stage four cancer in 2014, and his wife turned to cocaine use to manage her grief. He used cocaine with his wife on two occasions during that time period. He does not condone the use of cocaine. (GE 1; GE 2; Tr. 16-17, 25.)

SOR subparagraph 1.c alleged that Applicant intended to use marijuana in the future. On his e-QIP, he stated:

I do not intend or expect to use this drug in the future, however I do expect to be around its use in some social settings. When my mother-in-law passes away, my wife and I will probably smoke some pot together. (GE 1.) Applicant testified that when his mother-in-law passed away, he did not follow through with this plan. (Tr. 26-27.) He testified he was willing to sign a statement of intent, and the record was left open for him to do so, but he submitted nothing further in that regard. (Tr. 33.)

Applicant’s assistant facility security officer testified as to his honestly, trustworthiness, and good character. She indicated that he has a unique skill set and now understands security regulations. (Tr. 35-41.)

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 (DCs) and mitigating conditions (MCs), 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, 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. According to AG ¶¶ 2(a) and 2(c), 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 that “[a]ny doubt concerning personnel being considered for access to classified information 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, “[t]he 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.” Section 7 of Executive Order 10865 provides: “[a]ny 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.”

A person applying for access to classified information seeks to enter 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.

Guideline H, Drug Involvement

AG ¶ 24 expresses the security concern pertaining to Drug Involvement:

Use of an illegal drug or misuse of a prescription drug can raise questions about an individual’s reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations.

I have considered all of the evidence in this case and the disqualifying conditions under Drug Involvement AG ¶ 25, and the following two are potentially applicable:

(a) any drug abuse; and

(c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia.

The Government presented sufficient information to support the factual allegations under SOR subparagraphs 1.a through 1.c. regarding Applicant’s marijuana use, his cocaine use, and his expressed into to use marijuana again.

I have considered all of the evidence in this case and the mitigating conditions under Drug Involvement AG ¶ 26, and 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) a demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence; (4) a signed statement of intent with automatic revocation of clearance for any violation.

Only one year has passed since Applicant’s use of a controlled substance. He testified he will never use illegal drugs again. He has been forthright with the Government concerning his past use and future intent. These are factors that weigh in Applicant’s favor. However, Applicant was a mature adult and had already applied for a security clearance when he used marijuana in December 2015. He has been warned by his assistant facility security officer that drug use was not tolerated, yet he opted to use it at that time. Further, his wife continues to use marijuana. Because of his recent usage and continued association with a drug user, I cannot find that future use is unlikely to occur without the passage of more time. In this instance, an appropriate period of abstinence has not been demonstrated.

The evidence does not support the full mitigation under AG ¶¶ 26(a) or 26(b). Applicant has not provided sufficient evidence to meet his burden of proof to overcome the concerns raised by his poor judgment related to his 29-year history of casual drug abuse.

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(a):

(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 pertinent facts and circumstances surrounding this case. Applicant stated that he has not used marijuana since December 2015. He honestly divulged information about his drug use on his e-QIP, to the investigator, and at the hearing. He testified that he will not use illegal substances in the future. However, Applicant was a mature adult when he knowingly violated Federal laws and his employer’s policies regarding drug use. Not enough time has passed since Applicant’s drug use in 2015 to support a finding that drug abuse is unlikely to recur. Although Applicant’s honest disclosure of his drug abuse makes this is a close case, the adjudicative guidelines require that any doubt concerning personnel being considered for access to classified information must be resolved in favor of the national security. 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 Drug Involvement security concerns.

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

Subparagraph 1.a: Against Applicant Subparagraph 1.b: Against Applicant Subparagraph 1.c: 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 eligibility for a security clearance. Eligibility for access to classified information is denied.

________________________ Jennifer I. Goldstein Administrative Judge