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ISCR Case 16-02352.h1 — CASE

ISCR Case 16-02352.h1granted

Case Headnote

ISCR Case No. 16-02352.h1

grantedOct 19, 2017· Hon. Stephanie C. Hess· hearing

Summary

A 32-year-old project management specialist was granted a security clearance despite concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The Statement of Reasons detailed two primary issues: in May 2014, the applicant improperly charged her employer for unworked hours, resulting in a three-day suspension and a corrective action memo. Additionally, in September 2014, after receiving a security clearance, she used marijuana on one occasion.

The judge applied several mitigating conditions, noting that the applicant accepted responsibility and expressed remorse for her past conduct. Both incidents were deemed isolated, having occurred over three years prior to the decision with no subsequent recurrence. The applicant demonstrated positive behavioral changes and a commitment to integrity in her professional life.

Ultimately, the judge concluded that the applicant's actions were isolated incidents unlikely to recur. Her current reliability, trustworthiness, and judgment were not in doubt, leading to the decision to grant the security clearance.

Why the Applicant Prevailed

The applicant accepted responsibility for her past conduct and demonstrated remorse.
The incidents were isolated and occurred over three years ago, with no recurrence since.
The applicant has shown positive behavioral changes and a commitment to integrity in her professional life.

Conditions Referenced

Disqualifying

AG ¶ 16(d)raisedCredible Adverse Information
AG ¶ 25(a)raisedAny Substance Misuse
AG ¶ 25(f)raisedIllegal Drug Use While Holding a Security Clearance

Mitigating

AG ¶ 17(c)appliedThe Offense Is Minor or Unlikely to Recur
AG ¶ 17(d)appliedAcknowledgment of Behavior and Positive Steps Taken
AG ¶ 26(a)appliedBehavior Happened Long Ago and Is Unlikely to Recur
AG ¶ 26(b)appliedAcknowledgment of Drug Involvement and Pattern of Abstinence

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant’s meeting the criteria contained in the AG.”

Procedural Posture

SOR issuedAug 21, 2016
Answer filedSep 2, 2016
Hearing heldJan 13, 2017
Decision date[REDACTED]

Cite For

Mitigation of Personal Conduct Issues Under Guideline E
Mitigation of Drug Involvement Concerns Under Guideline H
Whole-person Assessment in Security Clearance Determinations

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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's improper entry of work hours and one-time marijuana use did not cast doubt on her reliability, trustworthiness, or judgment. The applicant successfully mitigated the personal conduct concerns, leading to a decision to grant her eligibility for access to classified information.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	In May 2014, Applicant charged her employer for hours that she did not actually perform work, which resulted in a three-day suspension without pay and receipt of a corrective action memo.	For Applicant	Rules Violation at Workplace	—	Admitted	(d) pattern of dishonesty, rule violations, or other untrustworthy behavior	(c) offense is minor, long ago, infrequent, or unique circumstances (d) acknowledged the behavior; counseling/positive steps taken	Credited Acknowledgment and Remorse Claimed Other

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The judge found that the applicant's one-time use of marijuana while holding a security clearance did not cast doubt on her reliability, trustworthiness, or judgment. The applicant acknowledged her past behavior and demonstrated a commitment to abstain from illegal drug use in the future. Consequently, the judge granted the applicant's eligibility for access to classified information.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana one time in September 2014, after being granted a security clearance.	For Applicant	MarijuanaWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse (f) any illegal drug use while holding a clearance or sensitive position	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	Claimed Substance Treatment Completed Claimed Signed Intent with Revocation Clause

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: ) ) [REDACTED] ) ISCR Case No. 16-02352 ) ) Applicant for Security Clearance

For Government: Braden B. Murphy, Esq., Department Counsel For Applicant: Maurice Arcadier, Esq.

10/19/2017 ______________

STATEMENT OF CASE

______________

HESS, Stephanie C., Administrative Judge:

Applicant’s improper entry of work hours and her one-time marijuana use while holding a security clearance are not likely to recur and do not cast doubt on her current reliability, trustworthiness, or judgment. Applicant has mitigated the Guidelines E (Personal Conduct) and H (Drug Involvement and Substance Misuse) security concerns. Eligibility for access to classified information is granted.

Statement of the Case

Applicant submitted a security clearance application (e-QIP) on June 21, 2011. On August 21, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent her a Statement of Reasons (SOR) alleging security concerns under Guidelines H and E. The DOD CAF acted under Executive Order (Ex. Or.)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 answered the SOR on September 2, 2016, and requested a hearing before an administrative judge. Department Counsel was ready to proceed on October 12, 2016, and the case was assigned to me on December 19, 2016. On December 21, 2016, the Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for January 13, 2017. I convened the hearing as scheduled. Government Exhibits (GX) 1 and 4 through 6 were admitted in evidence without objection. Applicant’s counsel, who entered his appearance at the hearing, objected to GX 2 and GX 3, and I sustained his objections. Applicant testified and Applicant’s Exhibits (AX) A and B were admitted without objection. DOHA received the transcript (Tr.) on January 24, 2017.

The SOR was issued under the AG implemented on September 1, 2006. The DOD implemented the amended AG on June 8, 2017, while this decision was pending. This decision will be based on the amended AG effective June 8, 2017. The outcome of this case would have been the same if decided based on the former AG.

FINDINGS OF FACT

The SOR alleges under Guideline E that in May 2014, Applicant charged her employer for hours that she did not actually perform work, which resulted in a three-day suspension without pay and receipt of a corrective action memo. The SOR further alleges under Guideline H that Applicant used for marijuana one time in September 2014, after being granted a security clearance. Applicant admits each of the SOR allegations.

Applicant is a 32-year-old project management specialist employed by her current employer, a defense contractor, since October 2016. She was first granted a security clearance in 2011, and has worked in the defense industry since 2009. She earned her bachelor’s degree in May 2009, and her Master’s degree in October 2013. (GX 1; Tr. 21- 22.) She and her husband married in 2013, and have a one-year-old daughter.

From May 5, 2014, through May 19, 2014, Applicant’s direct supervisor was out of the office on business travel. He attempted to contact Applicant at her desk on May 12, 2014, during her regular work hours. Later, he checked her time log, and noted that she had claimed eight hours for that day. He emailed her requesting verification of her time entry for May 12, 2014. Applicant responded by email that she had started her work day at 11:00 a.m. due to an appointment, and had worked until 7:00 p.m. Her supervisor suspected that Applicant had not worked the hours she claimed and initiated an investigation.

The investigation revealed that in the course of two weeks, Applicant had claimed 21 “questionable” hours. Applicant explained that she had been approved to take a computer-based training course, had printed the course materials, and studied the course materials off-line, both at home and at her desk, claiming hours for studying the materials. Applicant stated during the investigation that she had left work early on several occasions to complete her work at home, which could account for 10 of the hours she had entered but was not actually present at work. Applicant was unable to adequately account for the 21 “questionable” questionable hours. The investigation concluded that Applicant had entered 21 hours which could not be supported by computer login or logoff times, entry or exit gate logs, or video camera surveillance. Applicant’s supervisor stated that that he was not aware of any other attendance or behavioral issues from Applicant. As a result of the investigation, Applicant was issued a corrective action memo that remains in her personnel file, and was given a three-day suspension without pay. Applicant signed the memo, accepted responsibility, and apologized for her actions. (GX 6.)

Applicant describes this incident as isolated, and states that it was not her intention to be compensated for hours she did not work, but acknowledges that she did not properly follow her employer’s accountability protocol. Applicant has not had any other disciplinary actions while employed by a defense contractor. She was promoted since this incident, and her 2015 annual performance review was favorable. (AX B.) She was later recruited by her current employer, and offered a higher level position as incentive, which she accepted in October 2016. (Tr. 24-25.)

In September 2014, while visiting her hometown, Applicant and a group of her high school classmates gathered for a casual reunion at a hookah bar. The group had drinks and socialized, and at some point, someone offered her marijuana, which she smoked. Applicant had not anticipated that marijuana would be present at the gathering, and she spontaneously smoked it, in part due to curiosity. (Tr. 24-25; Tr. 51.) She recognizes that this conduct was wrong and in violation of the law, the requirements of her security clearance, and of her then-employer’s drug policy. (Answer; Tr. 52.) Applicant states that she listed this use on her most recent e-QIP and disclosed it to the investigator during her subject interview in January 2016. (Tr. 27.) She had never previously used marijuana, nor has she done so since. Applicant has no intention of using marijuana or any other illegal drug in the future, and has agreed to the automatic revocation of her security clearance if she should do so. (AX A; Tr. 25.) She does not maintain contact with her high school classmates and has not been in the presence of illegal drug usage since the 2014 incident. (Tr. 54.)

Applicant is committed to her career supporting the DOD and recognizes the importance of conducting herself with integrity and honesty. She views her misconduct as two isolated incidents that do not represent who she is or who she “want [s] to be as a professional.” (Tr. 36-37.) Her stated intention to conduct herself in a professional, trustworthy manner was sincere and credible. The birth of her daughter caused Applicant to refocus on the importance of her values. (Tr. 54.)

POLICIES

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended.

Eligibility for a security clearance is predicated upon the applicant’s meeting the criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available and reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005).

An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01- 20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Guideline E, Personal Conduct

The concern under this 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 or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes. The following will normally result in an unfavorable national security eligibility determination, security clearance action, or cancellation of further processing for national security eligibility:

Applicant’s admissions, corroborated by the record evidence, establish the following disqualifying condition under this guideline:

AG ¶ 16(d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information. This includes, but is not limited to, consideration of:

(1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or government protected information;

(2) any disruptive, violent, or other inappropriate behavior;

(3) a pattern of dishonesty or rule violations; and

(4) evidence of significant misuse of Government or other employer's time or resources.

The following mitigating conditions are applicable:

AG ¶ 17(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; and AG ¶ 17(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 contributed to untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur.

Applicant’s 2014 improper entry of work hours resulted in disciplinary action by her employer. In the course of the investigation into Applicant’s conduct, her supervisor stated that he did not think Applicant had previously inaccurately submitted her time, and she has not done so since. She continued to work for this employer without incident, was promoted in 2014, and received a positive performance evaluation for 2015. She accepts responsibility for her conduct and has apologized. This past conduct does not cast doubt on Applicant’s reliability, trustworthiness, or good judgment and is unlikely to recur.

Guideline H, Drug Involvement and Substance Misuse

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

The illegal use of controlled substances . . . 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.

Applicant’s admissions, corroborated by the record evidence, establish the potentially disqualifying conditions under this guideline:

AG ¶ 25(a) any substance misuse; and

AG ¶ 25(f) any illegal drug use while granted access to classified information or holding a sensitive position.

The following mitigating conditions may also apply:

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) the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome this problem, 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 were drugs were used; and (3) providing a signed a statement of intent to abstain from all drug involvement and substance misuse, acknowledging that any future involvement or misuse is grounds for revocation of national security eligibility.

The Directive does not define “recent,” and there is no “bright-line” definition of what constitutes “recent” conduct. ISCR Case No. 03-02374 at 4 (App. Bd. Jan. 26, 2006). The Judge is required to evaluate the record evidence as a whole and reach a reasonable conclusion as to the recency of an applicant’s conduct. ISCR Case No. 03- 02374 at 4 (App. Bd. Jan. 26, 2006).

Applicant’s one-time use of marijuana in September 2014 while holding a security clearance occurred sufficiently long ago and under such unusual circumstances that it is unlikely to recur. She accepts responsibility for her actions, and has matured. She does not associate with people who use marijuana, and has not been around any illegal drug use since 2014. She has signed a statement of intent to not use any illegal drugs in the future, and has acknowledged that her clearance could be revoked should she do so. Her single use of marijuana does not cast doubt on her current reliability, trustworthiness, or good judgment. All of the above mitigating conditions apply.

WHOLE PERSON CONCEPT

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 applying the whole- person concept, an 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. An 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.

I have incorporated my comments under Guidelines E and H in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but I have also considered the following:

Applicant’s testimony was sincere and she regrets and accepts responsibility for her conduct. Both incidents of concern occurred over three years ago, and Applicant has learned and grown from her mistakes. After weighing the disqualifying and mitigating conditions under Guidelines E and H, and evaluating all the evidence in the context of the whole person, I conclude Applicant has mitigated the security concerns raised by her improper entry of work hours and her one-time marijuana use while holding a security clearance. Accordingly, I conclude she has carried her burden of showing that it is clearly consistent with the national interest to grant her eligibility for access to classified information.

FORMAL FINDINGS

As required by section E3.1.25 of Enclosure 3 of the Directive, I make the following formal findings on the allegations in the SOR:

Paragraph 1, Guideline H (Drug Involvement): FOR APPLICANT

Subparagraph 1.a: For Applicant

Paragraph 2, Guideline E (Personal Conduct): FOR APPLICANT

Subparagraph 2.a: For Applicant

CONCLUSION

I conclude that it is clearly consistent with the national interest to grant or continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted.

Stephanie C. Hess Administrative Judge