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ISCR Case 16-02528.h1 — CASE

ISCR Case 16-02528.h1granted

Case Headnote

ISCR Case No. 16-02528.h1

grantedOct 6, 2017· Hon. Mark W. Harvey· hearing

Summary

This case concerns a 32-year-old Ph.D. applicant whose security clearance was granted despite concerns under Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The Statement of Reasons alleged that the applicant used marijuana over 100 times from 2000 to August 2014, and possessed it, which constitutes a federal criminal offense. These allegations raised disqualifying conditions under Adjudicative Guidelines ¶ 25(a), ¶ 25(c), and ¶ 25(g).

However, the judge applied mitigating conditions under Adjudicative Guidelines ¶ 26(a), ¶ 26(b), ¶ 26(c), and ¶ 26(d). The applicant ceased all marijuana use in August 2014 and has maintained abstinence since. He also actively distanced himself from associates who use marijuana and avoids environments where it is present.

Crucially, the applicant provided a clear and credible commitment to abstain from all illegal drug use in the future. The judge determined that these actions effectively mitigated the security concerns related to his past drug involvement, personal conduct, and criminal conduct, leading to the decision to grant the security clearance.

Why the Applicant Prevailed

Applicant ceased marijuana use in August 2014 and has not used it since.
He distanced himself from known marijuana users and avoids locations where it is used.
Applicant provided a clear commitment to abstain from illegal drug use in the future.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedSubstance Misuse
AG ¶ 25(c)raisedIllegal Possession of a Controlled Substance
AG ¶ 25(g)raisedIntent to Continue Drug Involvement

Mitigating

AG ¶ 26(a)appliedBehavior Happened Long Ago
AG ¶ 26(b)rejectedAcknowledgment of Drug Involvement and Actions TakenApplicant did not provide a signed statement of intent to abstain from all drug involvement.
AG ¶ 26(c)notedAbuse of Prescription Drugs After Illness
AG ¶ 26(d)notedCompletion of Drug Treatment Program

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines.”

Procedural Posture

SOR issuedSep 21, 2016
Answer filedOct 20, 2016Applicant did not request a hearing.
Hearing held—
Decision dateOct 6, 2017

Cite For

Mitigation of Drug Involvement Under Guideline H Due to Cessation of Use and Lifestyle Changes
Consideration of Personal Conduct in Relation to Past Drug Use
Impact of Applicant's Commitment to Abstain From Illegal Drug Use 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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's personal conduct concerns were mitigated. The applicant's history of marijuana use from 2000 to August 2014 was acknowledged, but he demonstrated a commitment to abstain from illegal drug use and did not associate with known marijuana users. The judge ruled in favor of the applicant regarding the personal conduct allegations.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	specific text not stated in this decision	For Applicant	Unspecified Personal Conduct	—	Unknown	—	—	—

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 applicant used marijuana more than 100 times from 2000 to August 2014 but has not used it since. The judge found that the applicant did not hold a security clearance during his marijuana use and has taken steps to avoid future use, leading to a decision to grant eligibility for access to classified information.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana more than 100 times from 2000 to August 2014. He possessed marijuana before he used it, which is a federal criminal offense.	For Applicant	Marijuana	Regular	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	(a) behavior happened long ago / infrequent / unlikely to recur	Claimed Acknowledgment and Remorse

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

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's past marijuana use from 2000 to August 2014 raised security concerns under Guideline J. However, the applicant demonstrated a commitment to abstain from illegal drug use and took steps to mitigate the concerns, leading to a favorable decision for the applicant.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	Applicant used marijuana from 2000 to August 2014.	For Applicant	Drug Related Criminal Charge	Conduct No Charge	Admitted	—	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur	—

Descriptive standardized rendering of a decided public case (Guideline J). 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: ) ) ) ISCR Case No. 16-02528 ) ) Applicant for Security Clearance

For Government: Benjamin Dorsey, Esq., Department Counsel For Applicant: Pro se

10/06/2017 ___________

STATEMENT OF CASE

___________

HARVEY, Mark, Administrative Judge:

Applicant used marijuana from 2000 to August 2014. He has not used marijuana after August 2014. He did not hold a security clearance when he used marijuana. He does not associate with known marijuana users; he avoids locations where marijuana is being used; and he promised not to use marijuana in the future. Drug involvement and substance abuse, criminal conduct, and personal conduct security concerns are mitigated. Eligibility for access to classified information is granted.

Statement of the Case

On November 24, 2014, Applicant completed and signed his Questionnaire for National Security Positions (SF 86) or security clearance application (SCA). Item 3. On September 21, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued an SOR to Applicant under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry, February 20, 1960; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), January 2, 1992; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, effective on September 1, 2006 (Sept. 1, 2006 AGs). The SOR set forth security concerns arising under the drug involvement and substance abuse, criminal conduct, and personal conduct guidelines. On October 20, 2016, Applicant provided a response to the SOR, and he did not request a hearing. Item 2. On November 3, 2016, Department Counsel completed the File of Relevant Material (FORM). On December 6, 2016, Applicant responded to the FORM. On October 1, 2017, the case was assigned to me. The case file consists of five exhibits. Items 1-4; FORM response. Applicant did not object to any of the Government exhibits, and they are admitted into evidence.

While this case was pending a decision, the Director of National Intelligence (DNI) issued Security Executive Agent Directive 4, establishing in Appendix A the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AGs), which he made applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position. The new AGs supersede the Sept. 1, 2006 AGs and are effective “for all covered individuals” on or after June 8, 2017. Accordingly, I have evaluated Applicant’s security clearance eligibility under the new AGs.1

Findings of Fact2

Applicant’s SOR response admitted the allegation in SOR ¶ 1.a. Item 2. He also provided extenuating and mitigating information. Applicant’s admissions are accepted as findings of fact. Additional findings of fact follow.

Applicant is 32 years old.3 In 2003, he graduated from high school. In 2007, he received a bachelor’s degree, and in 2014, he received a Ph.D. He worked for a federal contractor from September 2014 to present. He was employed as a graduate teaching assistant from 2008 to 2014. In 2013, he married, and he does not have any children. He has never served in the military.

Drug Involvement and Substance Abuse, Criminal Conduct, and Personal Conduct

Applicant used marijuana from around 2000 to August 2014 on “more than 100 instances.” He said his drug use “involve[d] the drug as an enhancement for deep conversational dialogue, making music or watching movies.” His most recent marijuana use was at a bachelor party in August 2014. Before his marijuana use in August 2014, he used marijuana three years earlier in 2011. Applicant’s November 24, 2014 SCA, asked whether he intended to use marijuana in the future. He responded that he was “not sure.” He said he did not understand why marijuana was classified as an illegal substance. He opined that “marijuana is safer and less risky” than using alcohol “to relax or alter one’s mind state.” He continued:

If the drug happens to become legal at the State level, like in Colorado, and I happen to find myself living in a state where this is the case then I would likely use the substance again periodically as I have in my past; as an enhancement for deep thought and focus.[4] . . . [However, it], is also not in my interest to jeopardize my career by engaging in an illegal activity so until I find myself in a situation where I can participate in its use legally I will likely avoid it entirely. However, I am not able to say with certainty that I will not engage, like I did most recently at a bachelor party, with the drug in the future because the future is unpredictable and given my past it would be untruthful to claim such certainty as I will not use the drug (legally/or illegally) in the future. This is the most honest answer I can provide.

At his March 3, 2015 Office of Personnel Management personal subject interview (OPM PSI) he confirmed his marijuana use from 2000 to August 2014. Item 4. He said that it would not be a problem for him never to use marijuana again to keep his job and security clearance. Item 4.

In his SOR response, Applicant said his SCA comments were “not frank and potentially too honest,” and he wanted to clarify that he would not engage in any conduct that would jeopardize his ability “to help the United States solve critical science and technology policy issues.”5 He acknowledged his response on his SCA was “ambiguous,” and he has taken action to disassociate himself from personal relationships where marijuana could be involved.” He has also limited his access to venues where marijuana use may occur. He promised that he would not use marijuana as long as it remained illegal in the United States. He volunteered to participate in “further remediation” as necessary to alleviate security concerns, and he suggested, if necessary, he could attend a program for those who abused illegal drugs. In his FORM response, Applicant reiterated that he would not “bring harm to this country by using marijuana.”

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no 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 applicant’s 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 meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied 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, 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 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 “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, nothing in this decision should be construed to suggest that it is based, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. It is merely an indication the applicant has not met the strict guidelines the President, Secretary of Defense, and DNI 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. 95-0611 at 2 (App. Bd. May 2, 1996). 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 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). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). “[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

Drug Involvement and Substance Abuse

AG ¶ 24 articulates the security concern for drug involvement:

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.

AG ¶ 25 lists three conditions that could raise a security concern and may be disqualifying in this case:

(a) any substance misuse (see above definition);

(c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and

(g) expressed intent to continue drug involvement and substance misuse, or failure to clearly and convincingly commit to discontinue such misuse.

Applicant’s SCA and OPM PSI, establish Applicant possessed and used marijuana6 from 2000 to August 2014. He made ambiguous comments about his intent to continue marijuana involvement on his SCA and on his OPM PSI. AG ¶¶ 25(a) and 25(c) are established. In his SOR response and FORM response, after learning marijuana

6 Schedules I, II, III, IV, and V, as referred to in the Controlled Substances Act are contained in

v. Raish, 545 U.S. 1 (2005) (discussing placement of marijuana on Schedule I). use is inconsistent with holding a security clearance, he clearly and convincingly committed to discontinue his marijuana use. AG ¶ 25(g) is not established.

AG ¶ 26 details conditions that could mitigate security concerns:

(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;

(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 where drugs were used; and

(3) providing a signed 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;

(c) abuse of prescription drugs was after a severe or prolonged illness during which these drugs were prescribed, and abuse has since ended; and

(d) satisfactory completion of a prescribed drug treatment program, including, but not limited to, rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional.

The DOHA Appeal Board concisely explained Applicant’s responsibility for proving the applicability of mitigating conditions as follows:

Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b).

ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013). AG ¶ 26(a) can mitigate security concerns when drug offenses are not recent. There are no “bright line” rules for determining when such conduct is “recent.” The determination must be based “on a careful evaluation of the totality of the record within the parameters set by the directive.” ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). If the evidence shows “a significant period of time has passed without any evidence of misconduct,” then an administrative judge must determine whether that period of time demonstrates “changed circumstances or conduct sufficient to warrant a finding of reform or rehabilitation.”7

Applicant stopped using marijuana in August 2014. In his SOR response, he provided a clear resolution not to use marijuana in the future. He recognized the adverse impact of drug abuse in connection with access to classified information. He also understands that possession of marijuana violates federal law and constitutes criminal conduct. I accept Applicant’s statement that he intends to continue to abstain from illegal drug possession and use as truthful. AG ¶ 26(a) partially applies to his possession and use of illegal drugs.8 AG ¶ 26(a) applies.

AG ¶¶ 26(b), 26(c), and 26(d) are not fully applicable. AG ¶ 26(b) does not apply because he did not provide “a signed 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.” Applicant did not abuse drugs after being issued a prescription that is lawful under federal law. He did not complete a drug counseling or treatment program.

Applicant has not used marijuana since August 2014; he did not hold a security clearance when he used marijuana; he does not associate with known marijuana users; he avoids locations where marijuana is being used; and he promised not to use marijuana in the future. Drug involvement security concerns are mitigated.

Personal Conduct

AG ¶ 15 explains why personal conduct is a security concern stating:

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.

AG ¶ 16 describes three conditions that could raise a security concern and may be disqualifying in this case:

(c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, 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;

(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 . . . ; (3) a pattern of . . . rule violations; and

(e) personal conduct . . . that creates a vulnerability to exploitation, manipulation, or duress by a foreign intelligence entity or other individual or group. Such conduct includes: (1) engaging in activities which, if known, could affect the person’s personal, professional, or community standing. SOR ¶ 2.a cross-alleges under the personal conduct guideline the same conduct alleged under the drug involvement and substance abuse guideline. All of Applicant’s conduct causing a security concern in SOR ¶ 2.a is explicitly covered under Guideline H in SOR ¶¶ 1.a and 1.b. AG ¶¶ 16(c) and 16(d) do not apply. Applicant’s involvement with marijuana affects his professional and community standing. However, this conduct does not create a vulnerability to exploitation, manipulation, or duress because security officials are aware of it. Applicant freely and frankly revealed his marijuana possession and use on his SCA and discussed it during his OPM PSI. There is no evidence of record, aside from Applicant’s admissions, that he has any involvement with illegal drugs. AG ¶ 16(e) is not established. Guidelines H and E address identical issues involving judgment, trustworthiness, and reliability. The judgment concerns under Guideline E may be independently disqualifying from the judgment concerns under Guideline H and further assessment of mitigating conditions is required.

AG ¶ 17 lists conditions that could mitigate security concerns:

(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts;

(b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by advice of legal counsel or of a person with professional responsibilities for advising or instructing the individual specifically concerning security processes. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully;

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

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

(f) the information was unsubstantiated or from a source of questionable reliability; and

(g) association with persons involved in criminal activities was unwitting, has ceased, or occurs under circumstances that do not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations. AG ¶¶ 17(c) and 17(d) are established for the reasons stated in the previous drug involvement and substance abuse section and under the whole-person concept, infra. Personal conduct security concerns are mitigated.

Criminal Conduct

AG ¶ 30 describes the security concern about criminal conduct, “Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness. By its very nature, it calls into question a person’s ability or willingness to comply with laws, rules, and regulations.”

AG ¶ 31 describes two conditions that could raise a security concern and may be disqualifying in this case:

(a) a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual's judgment, reliability, or trustworthiness; and

(b) evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted.

Applicant used marijuana more than 100 times from 2000 to August 2014. He possessed marijuana before he used it, which is a federal criminal offense. All of Applicant’s conduct causing a security concern in SOR ¶ 3.a is explicitly covered under Guideline H in SOR ¶¶ 1.a and 1.b. AG ¶¶ 31(a) and 31(b) are established.

AG ¶ 32 lists conditions that could mitigate security concerns:

(a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment;

(b) the individual was pressured or coerced into committing the act and those pressures are no longer present in the person's life;

(d) there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement. AG ¶¶ 32(a) and 32(d) are established for the reasons stated in the previous drug involvement and substance abuse section and under the whole-person concept, infra. The criminal conduct security concerns are mitigated.

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 the circumstances. The 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.

Under AG ¶ 2(c), “[t]he ultimate determination” of whether to grant a security clearance “must be an overall commonsense judgment based upon careful consideration of the guidelines” and the whole-person concept. My comments under Guidelines H, E, and J are incorporated in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines but some warrant additional comment.

Applicant is 32 years old. In 2003, he graduated from high school. In 2007, he received a bachelor’s degree, and in 2014, he received a Ph.D. He worked for a federal contractor from September 2014 to present. He was employed as a graduate teaching assistant from 2008 to 2014. In 2013, he married, and he does not have any children.

Applicant used marijuana on multiple occasions from 2000 to August 2014. From 2000 to 2011, he used marijuana more than 100 times. In his 2014 SCA and 2015 OPM PSI, he made statements about his intention to use marijuana in the future. He asserted it was better to use marijuana than to drink alcohol, and he indicated if marijuana use were legal, he would resume his marijuana consumption. Once he realized that marijuana use was absolutely forbidden for security clearance holders, he clearly and unequivocally rejected marijuana use. He frankly and candidly described his history of marijuana use. He has not used marijuana since August 2014; he did not hold a security clearance when he used marijuana; he does not associate with known marijuana users; he avoids locations where marijuana is being used; and he promised not to use marijuana in the future.

I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. Drug involvement and substance abuse, personal conduct, and criminal conduct security concerns are mitigated. It is clearly consistent with the interests of national security to grant Applicant security clearance eligibility at this time.

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: FOR APPLICANT

Subparagraphs 1.a and 1.b: For Applicant

Paragraph 2, Guideline E: FOR APPLICANT

Subparagraph 2.a: For Applicant

Paragraph 3, Guideline J: FOR APPLICANT

Subparagraph 3.a: For Applicant

CONCLUSION

In light of all of the circumstances in this case, it is clearly consistent with the interests of national security to grant Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted.

_________________________ Mark Harvey Administrative Judge

FOOTNOTES

1 Application of the AGs that were in effect as of the issuance of the SOR would not change my decision in this case. The new AGs are available at http://ogc.osd.mil/doha/SEAD4 20170608.pdf.

2 Some details were excluded to protect Applicant’s right to privacy. Specific information is available in the cited exhibits.

3 Unless stated otherwise, the source of the information in this paragraph and the next two paragraphs is Applicant’s November 24, 2014 Questionnaire for National Security Positions (SF 86) or security clearance application (SCA). Item 3. 4 Director of National Intelligence Memorandum ES 2014-00674, “Adherence to Federal Laws Prohibiting Marijuana Use,” October 25, 2014, indicates:

[C]hanges to state laws and the laws of the District of Columbia pertaining to marijuana use do not alter the existing National Security Adjudicative Guidelines . . . . An individual’s disregard of federal law pertaining to the use, sale, or manufacture of marijuana remains adjudicatively relevant in national security determinations. As always, adjudicative authorities are expected to evaluate claimed or developed use of, or involvement with, marijuana using the current adjudicative criteria. The adjudicative authority must determine if the use of, or involvement with, marijuana raises questions about the individual’s judgment, reliability, trustworthiness, and willingness to comply with law, rules, and regulations, including federal laws, when making eligibility decisions of persons proposed for, or occupying, sensitive national security positions.

5 The source for the information in this paragraph is Applicant’s October 20, 2016, SOR response. Item 2. 21 U.S.C. § 812(c). Marijuana is a Schedule (Sch.) I controlled substance. See Drug Enforcement Administration listing at http://www.deadiversion.usdoj.gov/21cfr/cfr/1308/1308 11.htm. See also Gonzales 7 ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). In ISCR Case No. 04-09239 at 5 (App. Bd. Dec. 20, 2006), the Appeal Board reversed the judge’s decision denying a clearance, focusing on the absence of drug use for five years prior to the hearing. The Appeal Board determined that the judge excessively emphasized the drug use while holding a security clearance, and the 20 plus years of drug use, and gave too little weight to lifestyle changes and therapy. For the recency analysis the Appeal Board stated:

Compare ISCR Case No. 98-0394 at 4 (App. Bd. June 10, 1999) (although the passage of three years since the applicant's last act of misconduct did not, standing alone, compel the administrative judge to apply Criminal Conduct Mitigating Condition 1 as a matter of law, the Judge erred by failing to give an explanation why the Judge decided not to apply that mitigating condition in light of the particular record evidence in the case) with ISCR Case No. 01-02860 at 3 (App. Bd. May 7, 2002) (“The administrative judge articulated a rational basis for why she had doubts about the sufficiency of Applicant's efforts at alcohol rehabilitation.”) (citation format corrections added).

In ISCR Case No. 05-11392 at 1-3 (App. Bd. Dec. 11, 2006) the Appeal Board, affirmed the administrative judge’s decision to revoke an applicant’s security clearance after considering the recency analysis of an administrative judge stating:

The administrative judge made sustainable findings as to a lengthy and serious history of improper or illegal drug use by a 57-year-old Applicant who was familiar with the security clearance process. That history included illegal marijuana use two to three times a year from 1974 to 2002 [drug use ended four years before hearing]. It also included the illegal purchase of marijuana and the use of marijuana while holding a security clearance.

8 In ISCR Case No. 02-08032 at 8 (App. Bd. May 14, 2004), the Appeal Board reversed an unfavorable security clearance decision because the administrative judge failed to explain why drug use was not mitigated after the passage of more than six years from the previous drug abuse. In ISCR Case No. 14-00775 (App. Bd. July 2, 2015), the Appeal Board sustained the revocation of a security clearance for an Applicant, who did not hold a security clearance that used marijuana 20 months before the administrative judge decided the case.