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ISCR Case 16-01944.h1 — CASE

ISCR Case 16-01944.h1denied

Case Headnote

ISCR Case No. 16-01944.h1

deniedAug 22, 2017· Hon. Matthew E. Malone· hearing

Summary

A 28-year-old software tester was denied a security clearance under Guideline H (Drug Involvement) due to extensive marijuana use between 2007 and 2015. The Statement of Reasons specifically alleged that the applicant used marijuana on multiple occasions from May 2007 to May 2015 and purchased it multiple times between January 2008 and May 2015. These actions raised disqualifying conditions under Adjudicative Guidelines Paragraphs 25(a) and 25(c).

The denial was based on several factors. The applicant's history of marijuana use was deemed extensive, and insufficient time had elapsed since his last reported use in May 2015 for it to be considered not recent.

Furthermore, the applicant's assertions of rehabilitation were undermined by his continued association with a known marijuana user. Consequently, the judge found inadequate evidence of rehabilitation or a significant period of abstinence, leading to the denial of the security clearance.

Why the Applicant Was Denied

Applicant's extensive marijuana use raised significant security concerns.
Insufficient time had passed since the applicant's last use of marijuana to consider it not recent.
The applicant's claims of rehabilitation were undermined by continued association with a marijuana user.

Conditions Referenced

Disqualifying

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

Key Rule Quoted

“A person who has access to such information enters into a fiduciary relationship with the Government based on trust and confidence.”
— Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural Posture

SOR issuedSep 19, 2016
Answer filed—Applicant requested a decision without a hearing.
Hearing held—Decision made without a hearing.
Decision dateAug 22, 2017

Cite For

Denial of Security Clearance Due to Extensive Drug Involvement Under Guideline H
Insufficient Evidence of Rehabilitation in Drug-related Cases
Importance of a Significant Period of Abstinence for Mitigating Drug Use Concerns

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 judge found that the applicant's extensive use of marijuana raised significant security concerns under Guideline H. The applicant admitted to using marijuana approximately 1,300 times and purchasing it about 75 times, which the judge determined was not sufficiently mitigated by the applicant's claims of abstinence and disassociation from drug-using peers. Consequently, the request for security clearance was denied.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The Government alleged in the SOR that Applicant used marijuana on multiple occasions between May 2007 and May 2015 (SOR 1.a);	Against Applicant	Marijuana	Regular	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	that he purchased marijuana on multiple occasions between January 2008 and May 2015 (SOR 1.b).	Against Applicant	Marijuana	Regular	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: ) ) ) [NAME REDACTED] ) ISCR Case No. 16-01944 ) ) ) Applicant for Security Clearance

For Government: Tovah Minster, Esq., Department Counsel For Applicant: Pro se

08/22/2017 ______________

STATEMENT OF CASE

______________

MALONE, Matthew E., Administrative Judge:

Applicant did not mitigate the security concerns raised by his extensive use of marijuana. Applicant’s request for eligibility for access to classified information is denied.

Statement of the Case

On November 4, 2015, Applicant submitted an Electronic Questionnaire for Investigations Processing (e-QIP) to obtain eligibility for access to classified information as required for his job with a defense contractor. After reviewing the completed background investigation, Department of Defense (DOD) adjudicators could not determine that it was clearly consistent with the interests of national security for Applicant to have access to classified information.1 On September 19, 2016, DOD issued a Statement of Reasons (SOR) alleging facts that raise security concerns addressed under Guideline H (Drug Involvement and Substance Misuse).2 At the time the SOR was written, the DOD CAF applied the adjudicative guidelines (AG) implemented by the DOD on September 1, 2006. On December 10, 2016, the Director of National Intelligence (DNI) issued a new set of AGs, effective for all security clearance adjudications conducted on or after June 8, 2017. I have based my recommended decision in this case on the June 8, 2017 AGs.3

Applicant timely responded to the SOR (Answer) and requested a decision without a hearing. On September 19, 2016, Department Counsel for the Defense Office of Hearings and Appeals (DOHA) issued a File of Relevant Material (FORM)4 in support of the SOR. Applicant received the FORM on October 20, 2016, and had 30 days from the date of receipt to object to the use of the information included in the FORM and to submit additional information in response to the FORM.5 Applicant did not provide any additional information in response to the FORM. I received the case on August 10, 2017.

FINDINGS OF FACT

The Government alleged in the SOR that Applicant used marijuana on multiple occasions between May 2007 and May 2015 (SOR 1.a); and that he purchased marijuana on multiple occasions between January 2008 and May 2015 (SOR 1.b). Applicant admitted, with remarks, both SOR allegations. (FORM, Item 1) In addition to the facts established by Applicant’s admissions, I make the following findings of fact.

Applicant is a 28-year-old software tester employed by a defense contractor since September 2015. He graduated high school in 2007 and went to work as a maintenance aide at a university. He worked there until starting his current job. In January 2008, he matriculated at a local community college and earned an associate’s degree in May 2014. He is not married, but cohabitates with his girlfriend. (FORM, Items 2 and 3)

When Applicant submitted his e-QIP, he disclosed his involvement with marijuana. He estimated he used marijuana as many as 1,300 times, purchasing small amounts of marijuana for personal use about 75 times. During a subject interview with a government investigator, and in response to the SOR, Applicant stated he stopped using marijuana because he wants to better himself and is tired of the drug’s effects on him. He further claimed he no longer associates with persons who use marijuana; however, in his subject interview he disclosed that, among those with whom he used marijuana was the girlfriend he was living with. (FORM, Items 2 and 3)

POLICIES

Each security clearance decision must be a fair, impartial, and commonsense determination based on examination of all available relevant and material information,6 and consideration of the pertinent criteria and adjudication policy in the adjudicative guidelines. Decisions must also reflect consideration of the factors listed in ¶ 2(d) of the new guidelines. Commonly referred to as the “whole-person” concept, those factors are:

(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.

The presence or absence of a disqualifying or mitigating condition is not determinative of a conclusion for or against an applicant. However, specific applicable guidelines should be followed whenever a case can be measured against them as they represent policy guidance governing the grant or denial of access to classified information. A security clearance decision is intended only to resolve whether it is clearly consistent with the national interest7 for an applicant to either receive or continue to have access to classified information. Department Counsel must produce sufficient reliable information on which DOD based its preliminary decision to deny or revoke a security clearance for an applicant. Additionally, Department Counsel must prove controverted facts alleged in the SOR.8 If the Government meets its burden, it then falls to the applicant to refute, extenuate, or mitigate the case for disqualification.9

Because no one is entitled to a security clearance, applicants bear a heavy burden of persuasion to establish that it is clearly consistent with the national interest for them to have access to protected information.10 A person who has access to such information enters into a fiduciary relationship with the Government based on trust and confidence. Thus, there is a compelling need to ensure each applicant possesses the requisite judgment, reliability, and trustworthiness of one who will protect the nation’s interests as his or her own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an applicant’s suitability for access to classified information in favor of the Government.11

ANALYSIS

Drug Involvement and Substance Misuse

The Government’s information about Applicant’s debts reasonably raised the security concern expressed 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.

More specifically, this record requires application of the disqualifying conditions at AG ¶¶ 25(a) (any substance misuse (see above definition)); and 25(c) (illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia).

By contrast, none of the AG ¶ 26 disqualifying conditions applies. In light of Applicant’s extensive use of marijuana, not enough time has passed since his last use to find it is not recent. Despite his claim he has disassociated from others who use drugs, one of those persons is his girlfriend. On balance, the security concerns about Applicant’s drug use are not mitigated.

In addition to my evaluation of the facts and application of the appropriate adjudicative factors under Guideline H, I have reviewed the record before me in the context of the whole-person factors listed in AG ¶ 2(d). Applicant is clearly diligent, having worked full-time while attending school to earn his associate’s degree. Nonetheless, this positive information, without a longer track record of abstinence, is insufficient to resolve the doubts raised by Applicant’s drug involvement. Because protection of the interests of national security is the principal focus of these adjudications, any remaining doubts must be resolved against the granting of access to classified information.

FORMAL FINDINGS

Formal findings 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 – 1.b: Against Applicant

CONCLUSION

In light of all available information, it is not clearly consistent with the interests of national security for Applicant to have access to classified information. Applicant’s request for security clearance eligibility is denied.

MATTHEW E. MALONE Administrative Judge

FOOTNOTES

1 Required by Executive Order 10865, as amended, and by the Directive. 2 See Directive, Enclosure 2. 3 My decision in this case would have been the same under either version of the adjudicative guidelines. 4 See Directive, Enclosure 3, Section E3.1.7. In the FORM, Department Counsel relies on three enclosed exhibits (Items 1 - 3). 5 See Directive, Enclosure 3, Section E3.1.7. 6 Directive. 6.3. 7 See Department of the Navy v. Egan, 484 U.S. 518 (1988). 8 Directive, E3.1.14. 9 Directive, E3.1.15. 10 See Egan, 484 U.S. at 528, 531. 11 See Egan; Adjudicative Guidelines, ¶ 2(b).