ISCR Case No. 16-02005.h1

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-02005 ) ) Applicant for Security Clearance )

For Government: Jeff Nagel, Esq., Department Counsel For Applicant: Ryan Nerney, Esq.

March 8, 2017 ______________

______________

GOLDSTEIN, Jennifer I., Administrative Judge:

Applicant failed to mitigate the Drug Involvement and Personal Conduct security concerns. Applicant used cocaine infrequently from 1996 to 2014; helped a friend harvest marijuana in 2014; and used peyote in 2015. His peyote use was after submitting his electronic Questionnaires for Investigations Processing (e-QIP). Eligibility for access to classified information is denied.

Statement of the Case

On May 18, 2015, Applicant submitted an e-QIP. On September 2, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline H, Drug Involvement, and Guideline E, Personal Conduct. 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 29, 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 1, 2016. The Government offered Exhibits (GE) 1 and 2, which were admitted without objection. Applicant offered exhibits (AE), marked AE A through AE F. Department Counsel had no objections to AE A through AE F, and they were admitted. Applicant testified on his own behalf. The record was left open for receipt of additional documents. On January 3, 2017, applicant presented AE G through AE J. Department Counsel had no objections to AE G through AE J, and they were admitted. The record then closed. DOHA received the hearing transcript (Tr.) on December 13, 2016.

Department Counsel moved to amend SOR ¶ 1.a to change “1976” to “1996.” Applicant did not object to the amendment. The motion was granted. (Tr. 9.)

Under the guideline for Drug Involvement, the SOR alleged security concerns related to: Applicant’s cocaine use infrequently from 1996 to 2014; helping his friend harvest marijuana in 2014; and using peyote in 2015. His peyote use was after submitting his electronic Questionnaires for Investigations Processing (e-QIP). SOR ¶ 2.a alleged that the same conduct raised security concerns under the guideline for Personal Conduct. In his Answer and during his testimony, Applicant admitted all of the allegations. (Answer.)

Applicant is a 37-year-old employee of a government contractor. He applied for a security clearance in connection with his job offer from a defense contractor. He is not married and has no children. (GE 1; AE B; Tr. 17-18.)

SOR subparagraph 1.a alleged that Applicant used cocaine from 1996 to 2014 with varying frequency. On his e-QIP, he reported that he used cocaine “less than five times.” He testified that he estimated his cocaine use to be closer to three-or-four times over the course of those same 18 years, and attributed his cocaine use to experimentation. He first tried it in high school. His last cocaine use occurred in January 2014. He did not specifically recall any other usage. He believed that his use of alcohol in social settings contributed to his lack of judgment on the occasions that he chose to use cocaine. He pledged to never use an illegal substance again on both his e-QIP and at the hearing. Applicant was aware at the time of his 2014 cocaine use that all illegal drug use was in violation of his employer’s policies, but he was between contracts at that time. Applicant no longer associates with any cocaine users. (GE 1; Tr. 19-21, 32- 38.) SOR subparagraph 1.b alleged that Applicant helped a friend harvest marijuana in August 2014.1 Applicant truthfully disclosed this harvest on his e-QIP. Applicant had a friend that grew marijuana for his own personal medical use. State laws where Applicant resides permit the legal cultivation and use of marijuana for medicinal purposes. The friend paid Applicant to help him unearth the cannabis plants and hang them to dry. Applicant assisted his friend with this task once. He did not use any of the marijuana. He no longer associates in person with this friend. (AE J; Tr. 21-22, 38-42.)

SOR subparagraph 1.c alleged that Applicant used peyote in June 2015, and subparagraph 1.d alleged that this peyote use was after completing his e-QIP in May 2015. Applicant testified that peyote is a succulent plant that grows in the desert. It is known to have psychoactive effects. He acknowledged it is a controlled substance in the United States. While on a trip to Mexico in June 2015, Applicant’s friend2 invited Applicant to participate in an indigenous pilgrimage to a sacred mountain upon which it was legal to consume peyote. Applicant attended out of curiosity, and consumed peyote during the pilgramage. Applicant disclosed his use of peyote during his security clearance interview in February 2016. (Tr. 23-27, 42-46.)

Applicant testified that he had no intent to use illegal substances again. (Tr. 28.) He signed a statement of intent to that effect. (AE F.) He introduced evidence that shows he is subject to random urinalysis. (AE I.) He produced copies of his “drug-free certification” dated August 2013; December 2014, April 2015; December 2015; May 2, 2016; and November 14, 2016. (AE C.)

Applicant also provided a psychological evaluation from a clinical psychologist, who evaluated Applicant for substance dependency disorder. The substance abuse subtle screening inventory (SASSI) administered to Applicant reflected a “low probability of having a substance dependence disorder.” (AE G; AE H.)

Applicant is respected by those that know him personally and professionally. His co-workers indicate he is hardworking and an “outstanding American citizen.” His friends indicate he is a “confident and honorable man.” A merchant marine captain, under whom Applicant served indicated Applicant is “a disciplined, sober and reliable officer.” Applicant was lauded in many of the letters for saving the lives of two fishermen. (AE A; AE E.) His performance evaluation demonstrates he performs satisfactorily, above average, or outstanding in all criteria measured. (AE D.)

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.d. regarding Applicant’s cocaine use, cultivation or processing of marijuana, and peyote use.

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 two years have passed since Applicant’s use of a controlled substance. He has signed a statement of intent, indicating he will “never use illegal drugs again.” A clinical psychologist found Applicant has a low propensity of having a substance dependence disorder. He no longer associates with known drug users. 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 consumed peyote in June 2015. He was the bearer of a “drug-free” credential at the time he chose to use it. Further, he chose to use peyote after explicitly stating, “I never intend on using a controlled substance again,” on the e-QIP that he submitted one month prior to his peyote use. While the use of peyote may have been legal in that particular location, its use creates questions and doubts about Applicant’s judgment and reliability. 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 19-year history of casual drug abuse.

Guideline E, Personal Conduct

The security concern for the Personal Conduct 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 information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying. The following disqualifying condition is potentially applicable:

(e) personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person’s personal, professional, or community standing, or (2) while in another country, engaging in any activity that is illegal in that country or that is legal in that country but illegal in the United States and may serve as a basis for exploitation or pressure by the foreign security or intelligence service or other group.

Applicant’s decision to use peyote after promising not to use controlled substances on his e-QIP, and his decisions to violate Federal law by using cocaine and harvesting marijuana, create a vulnerability to exploitation, manipulation, or duress. His drug involvement, if known, could affect his professional standing. Additionally, his decision to engage in drug use in Mexico could serve as a basis for exploitation or pressure by foreign actors. The Government established sufficient evidence to raise security concerns under DC 16(e), and shift the burden to Applicant to rebut, extenuate, or mitigate those concerns.

AG ¶ 17 provides conditions that could mitigate security concerns. The following are potentially applicable: (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;

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; and

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.

While Applicant deserves credit for being forthright with the government about his drug use and abstaining from drug use since 2015, his last drug use was recent and in violation of his promise on the e-QIP to avoid controlled substances. He has presented insufficient evidence to persuasively demonstrate that future drug use is unlikely. None of the mitigating conditions set forth in AG ¶ 17 are fully supported by the record.

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 cocaine since 2014. He used peyote in 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 and Personal Conduct 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 Subparagraph 1.d: Against Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT

Subparagraph 2.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 eligibility for a security clearance. Eligibility for access to classified information is denied.

________________________ Jennifer I. Goldstein Administrative Judge

1 AE J reflects that date was October 2014, not August 2014. 2 This is a different friend; not the individual for whom he harvested the marijuana. (Tr. 26-27.)