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ISCR Case 16-02877.h1 — CASE

ISCR Case 16-02877.h1denied

Case Headnote

ISCR Case No. 16-02877.h1

deniedJul 5, 2017· Hon. Darlene Lokey Anderson· hearing

Summary

Administrative Judge Darlene D. Lokey Anderson denied a security clearance application for a 29-year-old female applicant under Guideline H (Drug Involvement). The denial stemmed from the applicant's admitted illegal marijuana use on multiple occasions while already holding a security clearance, and her subsequent failure to report this conduct.

Specifically, the Statement of Reasons alleged the applicant used marijuana three times and purchased $20 worth from a classmate, all while holding a security clearance. She also did not report this marijuana use in 2009, 2010, or 2013 to her security department. These actions raised disqualifying conditions under Adjudicative Guidelines paragraphs 25(a), 25(c), and 25(f).

Although mitigating conditions under paragraphs 26(a) and 26(b) were considered, the clearance was denied. The judge concluded that the applicant's repeated marijuana use while cleared, coupled with her failure to report it, demonstrated a lack of honesty and poor judgment, thereby diminishing her reliability and trustworthiness.

Why the Applicant Was Denied

Applicant used marijuana on multiple occasions while holding a security clearance.
Applicant failed to report her drug use to her security department or on her security clearance application.
The applicant's lack of honesty and poor judgment diminished her reliability and trustworthiness.

Conditions Referenced

Disqualifying

AG ¶ 25(a)appliedSubstance Misuse
AG ¶ 25(c)appliedIllegal Possession of a Controlled Substance
AG ¶ 25(f)appliedIllegal Drug Use While Granted Access to Classified Information

Mitigating

AG ¶ 26(a)rejectedBehavior Unlikely to RecurThe applicant's past drug use while holding a security clearance raises ongoing concerns.
AG ¶ 26(b)rejectedAcknowledgment of Drug Involvement and Actions TakenThe applicant's failure to disclose her drug use until confronted undermines her credibility.

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedOct 29, 2016
Answer filedNov 26, 2016
Hearing heldMar 1, 2017
Decision dateJul 5, 2017

Cite For

Disqualifying Conditions Under Guideline H for Illegal Drug Use
Importance of Honesty in Security Clearance Applications
Impact of Past Drug Use on Current Reliability and Trustworthiness

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 used marijuana on three separate occasions while holding a security clearance, which raised significant concerns regarding her reliability and trustworthiness. Despite her claims of abstaining from drug use since 2013 and providing a statement of intent to avoid future use, the judge concluded that the applicant's past behavior and lack of honesty about her drug use did not mitigate the security concerns. Therefore, the application for a security clearance was denied.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Used marijuana not once, but on three separate occasions while holding a security clearance.	Against Applicant	MarijuanaWHILE CLEARED	Occasional	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (f) any illegal drug use while holding a clearance or sensitive position	—	—
1.b	Purchased marijuana in the amount of $20 from a classmate while holding a security clearance.	Against Applicant	MarijuanaWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (f) any illegal drug use while holding a clearance or sensitive position	—	—
1.c	Did not report her marijuana use in 2009, 2010, or 2013 to her security department.	Against Applicant	Unspecified Drug InvolvementWHILE CLEARED	Unspecified	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (f) any illegal drug use while holding a clearance or sensitive position	—	—

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. 16-02877 ) ) Applicant for Security Clearance )

For Government: Aubrey De Angelis, Department Counsel For Applicant: Martin L. Pitha, Attorney At Law

July 5, 2017 ______________

STATEMENT OF CASE

______________

LOKEY ANDERSON, Darlene D., Administrative Judge:

On October 28, 2015, Applicant submitted her Electronic Questionnaire for Investigations Processing (e-QIP). On October 29, 2016, the Department of Defense Consolidated Adjudications Facility (DODCAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline H.1 The action was taken under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the Adjudicative Guidelines effective September 1, 2006.

Applicant answered the SOR in writing on November 26, 2016, and requested a hearing before an administrative judge. The Defense Office of Hearings and Appeals (DOHA) received the request on January 31, 2017, and I received the case assignment that same day. DOHA issued a Notice of Hearing on February 6, 2017, and I convened the hearing as scheduled on March 1, 2017. The Government offered Exhibits 1 and 2, which were received without objection. Applicant testified and submitted Exhibits A through H, without objection. Applicant submitted one Post Hearing Exhibit which was admitted into evidence as Applicant’s Post-Hearing Exhibit A. DOHA received the transcript of the hearing (Tr.) on March 9, 2017. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is denied.

FINDINGS OF FACT

In her Answer to the SOR Applicant admitted the factual allegations in Paragraph 1 of the SOR. Applicant is 29 years old and single. She has a Bachelor’s degree. She holds the position of PC Network Support for a defense contractor. She is seeking to retain a security clearance in connection with her employment in the defense industry. Applicant has worked for her current employer since 2008. Her past includes one security violation or infraction for not locking her classified computer (Tr. p. 50.)

Applicant testified that she began working part-time as an on call receptionist in the security department for her current employer in 2008 at the age of 21, while in college. It was about this time that she first tried marijuana. In early 2009, she applied for and received a DoD security clearance. In 2010, at age 22, Applicant purchased marijuana in the amount of $20 from a classmate, and she and a friend used it on two occasions that year. In 2011, Applicant became a full time employee. Applicant used marijuana a fourth time in 2013. In summary, Applicant used marijuana once in March 2009, and twice in 2010, and once 2013 while holding a security clearance. She also purchased it on one occasion in 2010 while holding a security clearance.

Applicant explained in detail the situation involving her use of marijuana in 2013. She was at a birthday party where people were using marijuana. They wanted her to partake in the smoking of marijuana with them, and she took a hit. Applicant states that she was young and did not realize the significance of holding a security clearance nor the responsibilities that come with it. (Tr. pp. 34-35.)

When Applicant used marijuana, she was aware of DoD policy that prohibits the use of illegal drugs. (Tr. p. 44.) She did not report her marijuana use in 2009, 2010 or 2013 to her security department. (Tr. pp. 44- 45.) Applicant did not disclose her use of marijuana in 2013 on her security clearance application of 2014. Following this, she was contacted by investigators on two separate occasions and asked about illegal drug use. It was only upon the suggestion of a polygraph that Applicant disclosed her use of marijuana in 2013. (Tr. p. 50.) At no time did Applicant voluntarily report any of her marijuana use to her security officer or employer following the use. Applicant testified that she was afraid to approach her managers in the security department about her marijuana use. (Tr. p. 47.)

A letter from the Applicant’s psycho-therapist with whom she has been voluntarily seeking outpatient psychotherapy states that in her opinion, the Applicant is not an illegal substance user or abuser nor is she at risk of developing the condition in the future. (Applicant’s Post-Hearing Exhibit A.)

Applicant submitted a letter of intent to abstain from all illegal drug use as defined in Guideline H, paragraph 24 of the Directive. (Applicant’s Exhibit H.)

Performance appraisals of the Applicant reflect that she always achieves expectations, until her most recent evaluation which indicates excellent performance as an employee. (Applicant’s Exhibits A, B, C and D.) She testified that she is subject to promotion if she receives a security clearance. (Tr. p. 35.)

A letter of recommendation from her friend and former manager states this person considers Applicant to be reliable, trustworthy, responsible, honest and mature. She recommends the Applicant for a security clearance. (Applicant’s Exhibit G.)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), 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. 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.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “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 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 protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 10865 provides that 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 and Substance Misuse

The security concern relating to the guideline for Drug Involvement and Substance Misuse is set forth at AG ¶ 24:

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.

The guideline at AG ¶ 25 contains seven conditions that could raise a security concern and may be disqualifying. Three conditions are established:

(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

(f) any illegal drug use while granted access to classified information or holding a sensitive position. Appellant was granted a security clearance in early 2009. She smoked marijuana in 2009, twice in 2010, and in 2013, after receiving a security clearance from the Department of Defense, and after having been trusted with the national secrets. She used marijuana not once, but on three separate occasions while holding a security clearance. Therefore, AG ¶ 25 (a), (c), and (f) are established.

The guideline at AG ¶ 26 contains two conditions that could mitigate security concerns. One condition may be applicable:

(a) The behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness or good judgement.

(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.

Applicant states that she has not used marijuana since 2013. She indicates that she no longer associates with illegal drug users. She also provided a Statement of Intent to abstain from drug involvement acknowledging that if she does use, her security clearance is subject to immediate revocation. However, the facts here show that there is no excuse that fully mitigates Applicant’s use and purchase of marijuana while holding a security clearance. Furthermore, the fact that she did not report this adverse information to her security department shows poor judgment, unreliability and untrustworthiness. Finally, she did not disclose her use of marijuana in 2013 to the investigator until she was confronted with the possibility of being subject to a polygraph examination. The Defense Department must be able to trust their employees at all times to be open, honest, and truthful. Applicant’s credibility is in question here.

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 an 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.

AG ¶ 2(b) requires each case must be judged on its own merits. Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole person concept.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant has been a valuable employee on the job. However, she has made a series of mistakes by using and purchasing marijuana while holding a security clearance, and not being honest with the Government about her use. This conduct clearly diminishes Applicant’s reliability, trustworthiness, or good judgment. My comments regarding this guideline are incorporated here also.

Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant has not mitigated the security concerns arising from her drug involvement and substance abuse.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline H: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant Subparagraph 1.b: Against Applicant Subparagraph 1.c: Against Applicant

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.

_________________ Darlene Lokey Anderson Administrative Judge

FOOTNOTES

1 I considered the previous Adjudicative Guidelines, effective September 1, 2006, as well as the new Adjudicative Guidelines, effective June 8, 2017. My decision would be the same if the case was considered under the previous Adjudicative Guidelines.