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ISCR Case 16-02134.h1 — CASE

ISCR Case 16-02134.h1denied

Case Headnote

ISCR Case No. 16-02134.h1

deniedApr 21, 2017· Hon. Eric H. Borgstrom· hearing

Summary

A 39-year-old engineer working for a Department of Defense contractor was denied a security clearance under Guideline H (Drug Involvement). The Statement of Reasons alleged the applicant used marijuana multiple times between June 1995 and October 2015, including after receiving a DOD security clearance in October 2005.

Disqualifying conditions related to illegal drug use were raised, specifically concerning the frequency and recency of use, and continued association with drug users. While mitigating conditions for the passage of time and a stated intent to cease drug use were considered, they were not sufficient to overcome the security concerns.

The denial was based on the applicant's admitted illegal drug use while holding a security clearance, his continued association with individuals who use illegal drugs, and his failure to adequately explain his drug use after a period of abstinence. The judge found insufficient evidence of rehabilitation or changed circumstances, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant admitted to illegal drug use while possessing a security clearance.
He continued to associate with individuals who use illegal drugs, raising concerns about his judgment and reliability.
The applicant failed to provide a satisfactory explanation for his drug use after a period of abstinence.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedDrug Abuse
AG ¶ 25(g)raisedIllegal Drug Use After Clearance

Mitigating

AG ¶ 26(a)rejectedBehavior Happened so Long AgoThe applicant's drug use included incidents after being granted a security clearance, casting doubt on his reliability.
AG ¶ 26(b)rejectedDemonstrated Intent Not to Abuse DrugsThe applicant's continued association with drug users and lack of explanation for past drug use undermined his claims of intent to abstain.

Key Rule Quoted

“"the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials."”
— Department of Navy v. Egan, 484 U.S. 518, 531 (1988)

Procedural Posture

SOR issuedSep 19, 2016
Answer filedOct 4, 2016
Hearing heldMar 7, 2017
Decision dateApr 21, 2017

Cite For

Denial of Security Clearance Due to Drug Involvement Under Guideline H
Insufficient Evidence of Rehabilitation in Drug Use Cases
Impact of Continued Association with Drug Users on Security Clearance Eligibility

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 drug involvement raised significant security concerns, particularly due to illegal marijuana use on multiple occasions, including after being granted a security clearance. The applicant did not successfully mitigate these 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 that Applicant used marijuana on multiple occasions between June 1995 and October 2015 (SOR ¶ 1.a.)	Against Applicant	Marijuana	Frequent	Admitted	(a) any substance misuse (g) expressed intent to continue, or failure to commit to discontinue	—	—
1.b	The SOR alleges that Applicant used marijuana after he was granted a DOD security clearance in October 2005 (SOR ¶ 1.b.)	Against Applicant	MarijuanaWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (g) expressed intent to continue, or failure to commit to discontinue	—	—

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. 16-02134 ) ) Applicant for Security Clearance

For Government: Carroll Connelley, Esq., Department Counsel For Applicant: Pro se

04/21/2017 ______________

STATEMENT OF CASE

______________

BORGSTROM, Eric H., Administrative Judge:

Applicant did not mitigate the security concerns about his drug involvement. Eligibility for access to classified information is denied.

Statement of the Case

On September 19, 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; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the DOD on September 1, 2006.

Applicant responded to the SOR on October 4, 2016, and he requested a hearing before an administrative judge. Department Counsel was ready to proceed on October 24, 2016, and the case was assigned to me on January 25, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on February 17, 2017, scheduling the hearing for March 7, 2017. I convened the hearing as scheduled. Government Exhibits (GE) 1 and 2 were admitted without objection. Applicant testified, and he submitted no documents. The record remained open until March 21, 2017, to allow Applicant to submit documents. None were received and the record closed. I received the hearing transcript (Tr.) on March 27, 2017.

FINDINGS OF FACT

The SOR alleges that Applicant used marijuana on multiple occasions between June 1995 and October 2015 (SOR ¶ 1.a.), including after he was granted a DOD security clearance in October 2005 (SOR ¶ 1.b.). His SOR and hearing admissions are incorporated into my findings. After a thorough and careful review of the pleadings and exhibits, I make the following findings of fact:

Applicant is 39 years old. He graduated from high school in 1995, and he attended college from 1995 to 1999, receiving a bachelor’s degree. He has been employed as an engineer for a DOD contractor since 2004. He was granted a DOD secret clearance in 2005. He was first married from 2003 to 2009, and he has been married to his second wife since 2012. He has two children, ages one and three.1

On his October 2015 security clearance application (SCA), Applicant listed that he used marijuana “no more than 20 times” between June 1995 and March 2015. He admitted to illegal drug use while possessing a security clearance and stated his intent not to use illegal drugs in the future.2

During his April 2016 interview with a government investigator, Applicant clarified his previous disclosures about his marijuana use. He estimated that he used marijuana approximately 3 to 4 times between June 1995 and 2003 and that he used marijuana approximately 3 to 4 times between 2003 and October 2015. He admitted to using marijuana at least two times after having been granted a security clearance in 2005. He acknowledged his poor judgment, refused to disclose with whom he had used the marijuana, and stated his intent not to use illegal drugs in the future. He told the investigator that he no longer associates with any individuals who use illegal drugs.3

Applicant testified that he used marijuana about four to six times between 1995 and 1997 and an additional three to four times after being granted a clearance in 2005. He corrected his April 2016 interview by testifying that his last date of use was March 2015. He admitted that he knew at the time of his drug use that such conduct was prohibited for individuals possessing a security clearance. He testified that he continues to associate with individuals who use illegal drugs. He provided no explanation for his more recent drug use after his eight-year period of abstinence from 1997 to 2005 and attributed his illegal drug use to poor judgment. 4

Applicant identified no change in circumstances since his last use of marijuana in March 2015, other than the birth of his second child. He received a performance award from his employer in September 2016. His supervisor and co-workers are unaware of his illegal drug use.5

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, 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, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), 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. As noted by the Supreme Court in Department of Navy v. Egan, “the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.”6 Under Egan, EO 10865, and the Directive, any doubt about whether an applicant should be allowed access to classified information will be resolved in favor of protecting national security.

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 the applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain 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 safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

Section 7 of EO 10865 provides that adverse decisions shall be “in terms of the 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 or sensitive information).

ANALYSIS

Guideline H, Drug Involvement

The concern under this guideline is set out in AG ¶ 24:

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.

Drugs are defined in AG ¶ 24(a)(1) as A[d]rugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens).”

Disqualifying conditions under this guideline include:

AG ¶ 25(a): any drug abuse, defined in AG ¶ 24(b) as the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction; and

AG ¶ 25(g): any illegal drug use after being granted a security clearance.

Between 1995 and March 2015, Applicant illegally used marijuana on at least eight occasions, including while he possessed a security clearance. Thus, AG ¶¶ 25(a) and 25(g) apply.

The Government established a case for disqualification. Accordingly, the burden shifted to Applicant to produce evidence to rebut, explain, extenuate, or mitigate the facts.7 An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government.8 The following mitigating conditions are potentially 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): 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; and (4) a signed statement of intent with automatic revocation of clearance for any violation.

The first prong of AG ¶ 26(a) (Ahappened so long ago@) focuses on whether the drug involvement was recent. There are no Abright line@ rules for determining when conduct is Arecent.@ The determination must be based on a careful evaluation of the totality of the evidence. If the evidence shows Aa significant period of time has passed without any evidence of misconduct,@ then an administrative judge must determine whether that period of time demonstrates Achanged circumstances or conduct sufficient to warrant a finding of reform or rehabilitation.@9

In the present case, Applicant’s admitted drug use between 1995 and March 2015 included at least three or four occasions when he was employed by a DOD contractor and after he was granted a DOD secret clearance. Such conduct not only was illegal and violated DOD policies, but it also represented a breach of trust bestowed upon those entrusted with safeguarding classified information. Applicant has not presented evidence of changed circumstances or conduct sufficient to warrant a finding of reform or rehabilitation. Because his conduct casts doubts on his reliability and judgment, AG ¶ 26(a) does not apply.

Although Applicant has abstained from illegal drug use for about two years, he continues to associate with individuals who use illegal drugs. He expressed an intent to cease any further illegal drug use; however, he failed to provide an explanation as to what circumstances – beyond his admitted poor judgment – prompted him to use illegal drugs after having been granted a security clearance in 2005. Given Applicant’s drug use after an eight-year period of abstinence between 1997 and 2005, without further explanation, the evidence is insufficient to conclude that he has established an “appropriate period of abstinence.” Because Applicant’s statements on his SCA are the functional equivalent of a signed statement of intent to not use illegal drugs, AG ¶ 26(b)(4) applies.

Notwithstanding Applicant’s expressed intent to cease further illegal drug use, his continued association with drug users and the gravity of his repeated illegal drug use while possessing a security clearance cast doubts as to his judgment and reliability. Therefore, I find that drug involvement concerns remain.

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 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. In light of all the facts, I have considered the potentially disqualifying and mitigating conditions, and I have incorporated my comments under Guideline H and the factors in AG ¶ 2(c) in this whole- person analysis.

Applicant is a mature, educated professional, who voluntarily disclosed his illegal drug use and has performed well during his employment with a DOD contractor. Nonetheless, he failed to adequately explain what circumstances triggered his repeated drug use while possessing a clearance or to identify changed circumstances since his last use. His continued association with drug users and his repeated use of marijuana while possessing a security clearance leave doubts as to his reliability and good judgment. The record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. Applicant did not mitigate the drug involvement security concerns.

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.-1.b.: 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.

________________________ Eric H. Borgstrom Administrative Judge

FOOTNOTES

1 GE 1; Tr. 22, 25. 2 GE 1. 3 GE 2. 4 Tr. 19, 22, 31, 34-44. 5 Tr. 36, 37, 42, 44. 6 Department of Navy v. Egan, 484 U.S. 518, 531 (1988). See Duane v. Department of Defense, 275 F.3d 988, 994 (10th Cir. 2002) (no right to a security clearance). 7 Directive ¶ E3.1.15. 8 See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). 9 ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004).