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ISCR Case 16-02763.h1 — CASE

ISCR Case 16-02763.h1denied

Case Headnote

ISCR Case No. 16-02763.h1

deniedOct 4, 2017· Hon. Shari Dam· hearing

Summary

A 42-year-old male applicant was denied a security clearance under Guideline H (Drug Involvement) due to a long history of marijuana use. The Statement of Reasons alleged that the applicant possessed, purchased, and used marijuana between 1996 and 2017, and also failed a pre-employment drug test due to a positive marijuana result. These allegations raised disqualifying conditions H.25.a and H.25.c.

Despite the applicant's assertion that his marijuana use was for medical purposes and that he had relinquished his medical marijuana status, the judge found these claims insufficient to mitigate the security concerns. The decision highlighted that the applicant's history included illegal use prior to obtaining medical authorization, and his medical marijuana use did not override federal prohibitions.

Ultimately, the applicant failed to demonstrate a consistent pattern of abstinence or rehabilitation from drug use. Based on these factors, the security clearance was denied.

Why the Applicant Was Denied

The applicant has a long history of marijuana use, including illegal use prior to obtaining medical authorization.
The applicant's medical marijuana use did not mitigate the federal law prohibiting marijuana use.
The applicant failed to demonstrate a pattern of abstinence or rehabilitation from drug use.

Conditions Referenced

Disqualifying

H.25.araisedSubstance Misuse
H.25.craisedIllegal Possession of a Controlled Substance

Key Rule Quoted

“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).

Procedural Posture

SOR issuedNov 7, 2016
Answer filedDec 7, 2016
Hearing heldMay 31, 2017
Decision dateOct 4, 2017

Cite For

Insufficient Mitigation of Drug Involvement Under Guideline H
Long-term Marijuana Use Raises Questions About Reliability and Trustworthiness
Federal Law Prohibiting Marijuana Use Remains Relevant 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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant's drug involvement and substance misuse raised significant security concerns. The applicant admitted to using marijuana over a long period, including while holding a security clearance, and failed to provide sufficient evidence to mitigate these concerns. Consequently, the applicant's request for national security eligibility was denied.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant possessed, purchased, and used marijuana between 1996 and 2017.	Against Applicant	MarijuanaWHILE CLEARED	Regular	Admitted	—	—	—
1.b	Applicant failed a pre-employment drug test because he tested positive for marijuana.	Against Applicant	Drug Test Failure	Not Applicable	Admitted	—	—	—

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: ) ) ) ISCR Case No. 16-02763 ) ) Applicant for Security Clearance

For Government: Nicole A. Smith, Esq., Department Counsel For Applicant: Robert Dubin, Esq.

10/04/2017 ______________

STATEMENT OF CASE

______________

DAM, Shari, Administrative Judge:

Applicant failed to mitigate the drug involvement and substance misuse security concerns. National security eligibility for access to classified information is denied.

Statement of the Case

On November 25, 2015, Applicant submitted an Electronic Questionnaire for Investigations Processing (e-QIP.) On November 7, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued to Applicant a Statement of Reasons (SOR), 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 effective within the DOD for SORs issued after September 1, 2006. Security Executive Agent Directive (SEAD) 4, National Security Adjudicative Guidelines, implemented new adjudicative guidelines that came into effect on June 8, 2017. All national security eligibility determinations issued on or after June 8, 2017, are to be decided using the new National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AG), as promulgated in Appendix A of SEAD 4. I considered the previous adjudicative guidelines, as well as the new AG, in adjudicating Applicant’s national security eligibility. This decision is issued pursuant to, and cites, the new AG, but my decision would be the same under either set of guidelines.

Applicant answered the SOR in writing on December 7, 2016 (Answer), and requested a hearing before an administrative judge. The Defense Office of Hearings and Appeals (DOHA) assigned the case to me on February 8, 2017. It issued a Notice of Hearing on May 3, 2017, scheduling the hearing for May 31, 2017. The hearing convened as scheduled. Department Counsel offered Government Exhibits (GE) 1 through 3 into evidence. Applicant testified and offered Applicant Exhibits (AE) A through C into evidence. All exhibits were admitted. DOHA received the hearing transcript (Tr.) on June 8, 2017. The record remained open until June 26, 2017, to give Applicant an opportunity to provide additional exhibits. Applicant timely submitted AE D that included 10 pages. That exhibit is admitted without objection from Department Counsel.

FINDINGS OF FACT

Applicant admitted the allegations contained in the SOR ¶¶ 1.a and 1.b, with explanations. (Answer).

Applicant is 42 years old and unmarried. He earned a bachelor’s degree in 1998 and work-related certifications. After graduating from college, he worked in private industry. In November 2015, he began his current position with a federal contractor. (GE 1.)

Applicant began smoking marijuana in 1996 or 1997 while in college. (Tr. 22.) In 2005 or 2006, Applicant suffered a major head injury. In 2007, he had a hip socket replacement. He used marijuana in 2006 or 2007, a couple times a week for a few months, as a method of managing pain. (Tr. 23, 50, 37.) Between 2005 and 2006, he failed a pre- employment drug test because he tested positive for marijuana. (Tr. 37; GE 2.)

After surgery in 2007, Applicant used ice, physical therapy, over-the-counter (OTC) medications, and cortisone injections to manage the resulting and ongoing pain. (Tr. 16- 18.) His orthopedic surgeon prescribed narcotics to alleviate post-surgical pain. The last controlled substance he prescribed for Applicant was acetaminophen with codeine in 2012. (Tr. 51.)

In May 2011, a licensed physician certified that Applicant suffered from chronic pain related to his hip and authorized the Appellant’s use of marijuana for palliative purposes. As a consequence, in October 2011, Applicant became a state-approved medical marijuana patient and was placed on its marijuana use registry. In July 2013 and May 2015, Applicant renewed his status as a medical marijuana patient. (Tr. 45; AE D.) After receiving an appropriate identification card, Applicant obtained marijuana from an authorized caregiver. The state law permitted Applicant to receive two-and-a-half ounces of marijuana at one time, which is equivalent to three or four dozen cigarettes. (Tr. 27, 54.) Applicant has not discussed in detail his use of marijuana for medicinal purposes with his orthopedic doctor. (Tr. 52.)

In early 2015, Applicant purchased marijuana from an individual who was not registered with Applicant’s state as a licensed caregiver. Applicant said he mistakenly purchased marijuana from that individual two or three times from 2015 through 2016, on the basis of incorrect advice he received from his certifying physician and his own misunderstanding of the state law. (Tr. 27-29, 34-35, 45.)

In May 2017, Applicant relinquished his status as an approved medical marijuana patient. (Tr. 38, 48.) He said the last time he used marijuana under his medical status was in February 2017. Between April 2016 and February 2017, he used it once a month. (Tr. 40.) The last time he purchased or procured medical marijuana was a year-and-a- half ago. (Tr. 53.) He relinquished his status in the medical marijuana registry in order to demonstrate his trustworthiness to DOD. (Tr. 30.) Applicant believed his marijuana use was legal under state laws. (Tr. 31) He does not intend to use marijuana in the future. (Tr. 36.) He uses other methods for managing his pain.

Applicant has never been evaluated for marijuana addiction or dependency. (Tr. 52.) He does not believe he is a habitual user of marijuana or addicted to it. (Tr. 53.) He does not associate with anyone who smokes marijuana. (Tr. 54.) He used marijuana a “couple times” while holding an interim security clearance for about a year.1 (Tr. 53, 57.) After an initial pre-employment drug screening that was negative for illegal drugs, his current employer did not screen him again. (Tr. 55, 57.)

Applicant submitted two affidavits, one from his manager and another from a co- worker. Both attest to his reliability and dedication. They complement him on his work performance and support his request for a security clearance. (Tr. 32-33; AE B, C.) They are unaware of the recency of his marijuana use or of the marijuana allegations underlying this investigation. (Tr. 41.)

POLICIES

When evaluating an applicant’s national security eligibility, the administrative judge must consider the AG. In addition to brief introductory explanations for each guideline, the AG list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s eligibility for a security clearance.

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. 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 national security eligibility 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.

Directive ¶ E3.1.14 requires the Government to present evidence to establish controverted facts alleged in the SOR. According to 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.”

A person applying for a security clearance 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 national security eligibility. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to protect or safeguard sensitive information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of sensitive information.

Finally, as emphasized in Section 7 of EO 10865: “[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.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information.)

ANALYSIS

Guideline H: Drug Involvement and Substance Misuse

AG ¶ 24 describes the security concerns related to this guideline: 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 sets out two conditions that could raise security concerns and may be disqualifying in this case:

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

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

Applicant possessed, purchased, and used marijuana2 between 1996 and 2017. The evidence established the above two disqualifying conditions, thereby shifting the burden to Applicant to rebut, extenuate, or mitigate those concerns.

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).

DNI Memorandum ES 2014-00674, “Adherence to Federal Laws Prohibiting Marijuana Use,” October 25, 2014, states:

[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.

There is insufficient information to establish any of the above mitigating conditions. Additionally, Federal law prohibits the use of marijuana for any purpose. Applicant has a long history of using marijuana. From 1996 or 1997 to 2010, he used it illegally while in college and later for pain management. From October 2011 to February, 2017, he had authorization from his state to use it for medicinal purposes. During the latter part of that time he worked for a federal contractor and held an interim security clearance. His state authorization does not establish sufficient mitigation under Guideline H to warrant approval of access to classified information. Drug involvement and substance misuse security concerns are not mitigated.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s national security eligibility 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(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.

According to AG ¶ 2(c), the ultimate determination of whether to grant national security eligibility 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 is an intelligent and candid 42-year-old man, who has successfully worked for a defense contractor since 2015. He has gained the support of his employer in his request for a security clearance. These are positive facts in favor of granting his request.

The evidence against granting access to classified information is more substantial. Applicant has a 20-year history of using marijuana, including while recently working for a federal contractor and holding a security clearance. From October 2011 to May 2017, he had authorization under his state’s law to use marijuana to reduce physical pain. His employer was unaware of his marijuana use for medical purposes. Notwithstanding that authorization, possession of marijuana is a federal crime, and marijuana use by security clearance holders violates federal policy. His long-term use of marijuana possession, purchase, and use raises unresolved “questions about [his] reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about [his] ability or willingness to comply with laws, rules, and regulations.” See AG ¶ 24. Overall, the record evidence leaves me with substantial doubt as to Applicant’s judgment, eligibility, and suitability for a security clearance. He did not mitigate the security concerns raised under the guideline for drug involvement and substance misuse.

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 and 1.b: Against Applicant

CONCLUSION

In light of all circumstances presented by the record in this case, it is not clearly consistent with the interests of national security to grant Applicant access to classified information. National security eligibility is denied.

SHARI DAM Administrative Judge

FOOTNOTES

1 The SOR did not allege illegal drug use while holding a security clearance; hence, that information that he did use it will not be considered in the analysis of disqualifying conditions, but may be considered in my analysis of mitigating conditions, the whole-person concept, and in evaluating Applicant’s credibility. 2 Schedules I, II, III, IV, and V, as referred to in the Controlled Substances Act are contained in 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 v. Raish, 545 U.S. 1 (2005) (discussing placement of marijuana on Schedule I).