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ISCR 16-03455.h1: Guideline H security clearance hearing, granted (2017) · CASE

ISCR Case 16-03455.h1granted

Case headnote

ISCR Case No. 16-03455.h1

grantedSep 7, 2017· Hon. Darlene D. Lokey-Anderson· hearing

Summary

A 26-year-old defense contractor with an engineering degree was granted a security clearance despite concerns under Guideline H (Drug Involvement). The Statement of Reasons detailed the applicant's past use of various illegal drugs and misuse of prescription drugs not prescribed to him. Specifically, the applicant used marijuana, cocaine, ecstasy, methamphetamine, speed, mushrooms, and LSD. He also misused Adderall, painkillers, and sleeping pills.

The allegations further noted that the applicant used, purchased, and sold marijuana between September 2009 and August 2014, and used cocaine approximately ten times from November 2010 to December 2014. The last reported use of any illegal drug occurred in August 2015. Disqualifying conditions under Adjudicative Guidelines (AG) ¶ 25(a) and AG ¶ 25(c) were raised.

However, the clearance was granted due to several mitigating factors. The applicant had ceased all illegal drug use over two years prior to the hearing, demonstrating significant personal growth and maturity since his college years. He now associates with professionals who do not use drugs and provided evidence of rehabilitation, including favorable performance appraisals and testimonials from colleagues. Mitigating conditions under AG ¶ 26(a) and AG ¶ 26(b) were applied.

Why the applicant prevailed

The applicant ceased all illegal drug use over two years prior to the hearing.
The applicant demonstrated personal growth and maturity since college, associating with professionals who do not use drugs.
The applicant provided evidence of rehabilitation, including favorable performance appraisals and testimonials from colleagues.

Conditions referenced

Disqualifying

AG ¶ 25(a)raisedSubstance Misuse
AG ¶ 25(c)raisedIllegal Possession of a Controlled Substance

Mitigating

AG ¶ 26(a)appliedBehavior Unlikely to Recur
AG ¶ 26(b)appliedAcknowledgment and Actions Taken to Overcome Drug Involvement

Key rule quoted

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

Procedural posture

SOR issuedDec 15, 2016
Answer filedJan 5, 2017
Hearing heldApr 7, 2017
Decision dateSep 7, 2017

Cite for

Mitigation of Drug Involvement Under Guideline H
Importance of Personal Growth and Maturity in Security Clearance Decisions
Evidence of Rehabilitation and Support From Colleagues as Favorable Factors

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 26: “Applicant is 26 years old and unmarried.”
Tenure: ~1 year: “He has been working full time for a defense contractor since February 2016.”

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The applicant admitted to past illegal drug use and misuse of prescription drugs during college, with his last use occurring in August 2015. The judge found that the applicant had matured, changed his environment, and established a pattern of abstinence since then, leading to a decision to grant eligibility for a security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation

Descriptive standardized rendering of a decided public case. 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. 16-03455 ) ) Applicant for Security Clearance )

For Government: Aubrey M. DeAnglelis, Esquire, Department Counsel For Applicant: Arran S. Treadway, Esquire, Clarey & Green

September 7, 2017 ______________

STATEMENT OF CASE

______________

LOKEY-ANDERSON, Darlene D., Administrative Judge:

On December 30, 2015, Applicant submitted his Electronic Questionnaire for Investigations Processing (e-QIP). On December 15, 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 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.

Applicant answered the SOR in writing on January 5, 2017, and requested a hearing before an administrative judge. Defense Office of Hearings and Appeals (DOHA) received the request on February 6, 2017. The undersigned administrative judge received the case assignment that same day. DOHA issued a Notice of Hearing on March 15, 2017, and I convened the hearing as scheduled on April 7, 2017. The Government offered Exhibits 1 and 2, which were received without objection. Applicant called three witnesses and testified on his behalf. He also and submitted Exhibits A through I, without objection. DOHA received the transcript of the hearing (Tr.) on April 17, 2017. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is granted.

FINDINGS OF FACT

In his Answer to the SOR Applicant admitted the factual allegations in Paragraph 1 of the SOR. He also provided additional information to support his request for eligibility for a security clearance.

Applicant is 26 years old and unmarried. He has a Bachelor’s degree in Engineering. He has been working full time for a defense contractor since February 2016. He is seeking to obtain a security clearance in connection with his employment.

Applicant admitted to each of the allegations set for in the SOR concerning his illegal drug involvement and misuse of prescription drugs. During a five year period while in college, Applicant experimented with a variety of illegal and prescription drugs not prescribed to him. His last use of any illegal drug occurred in August 2015, six months before he started his current employment.

Applicant attended College A, located in the small town where he grew up from November 2010 to sometime in 2013. Illegal drug use was prevalent at the college, and almost considered a normal past time for many students. During this period, Applicant associated with many illegal drug users. In 2013, Applicant transferred to College B to finish his Bachelor’s degree in Engineering. While at College B, Applicant became much more focused on his success at school, and was not as involved in illegal drug use as he had been at College A.

From November 2010 to October 2015, Applicant no longer lived with his parents and found himself enjoying freedoms he is now not proud of. Applicant used marijuana, cocaine, ecstasy, methamphetamine, speed, mushrooms and LSD. He also used Adderal, painkillers, and sleeping pills, that were not prescribed to him. He states that he purchased these drugs from random people at school. He used these drugs on a sporatic and infrequent basis for recreational purposes, mainly at home, over the course of a five year period. Despite using these illegal drugs and prescription drugs that were not prescribed to him, Applicant states that he did well in school.

Applicant used, purchased, and sold, (meaning split the cost of the purchase of marijuana with a friend) marijuana, between September 2009 and August 2014. In total, he believes that he used marijuana in excess of 100 times. (Tr. p. 37.) He used and purchased cocaine about 10 times from November 2010 to December 2014. Applicant explained that his misuse of prescription drugs, specifically Adderal, was to help him concentrate on his school work. He believes that he used Adderal a total of 50 times. In regard to his use of sleeping pills and pain pills, his use occurred about 10 times from May 2010 to May 2013. (Tr. p. 42.) His use and purchase of stimulants, including ecstasy occurred three times, methamphetamine he used once, and speed he used once, from May 2010 to April 2011. He also used and purchased mushrooms three times, and LSD one time during the period between February 2010 to March 2011.

At College B, in 2013, Applicant’s use of illegal drugs decreased significantly. He continued to use Adderal at times, and he also used marijuana on some occasions. He completely stopped using the other illegal drugs. He found his academics to be much more demanding. The students he associated with were more mature and career driven. Applicant was also maturing, and realizing that his illegal drug use had to come to a stop. Applicant worked hard and was rewarded for doing so by graduating with honors and he was on the Dean’s list. Applicant was given the opportunity to co-op, which allowed him to work part time for a defense contractor while attending school full time while taking a rigorous schedule.

Applicant’s last use of any illegal drug was in August 2015. He was hired by his current employer in February 2016. Applicant states that he has not used any illegal drugs or misused any prescription drugs since working for his current employer. Applicant no longer associates with drug users, and if he is ever caught in a situation where he observes drug use, he states that he would remove himself from the environment. (Tr. p. 51.) Applicant currently associates with professionals who do not use illegal drugs. As time has passed, Applicant has become more and more focused on his career goals. Applicant submitted his performance appraisal for 2016 which is favorable. (Applicant’s Exhibit A.)

Three professional colleagues testified on Applicant’s behalf. They each attest to Applicant’s great character and professionalism. Applicant is considered to be a hard worker, who produces high quality work. His overall performance is described as very good. He is considered to be valuable team member and an asset to the organization. Applicant is recommended for a security clearance.

Letters of recommendation from Applicant’s college professor, coworkers and friends indicate that Applicant is reliable, trustworthy, and responsible. However, there is nothing in the letters that indicate that they are aware of Applicant’s past illegal drug use or misuse of prescription drugs. They recommended Applicant for a security clearance.

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 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.

(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.

As discussed above, Applicant used a variety of illegal drugs and misused a variety of prescription drugs that were not prescribed to him. Therefore, AG ¶ 25 (a), and (c), are established.

The guideline at AG ¶ 26 contains four conditions that could mitigate security concerns. Two conditions 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 judgment; and

(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’s illegal drug use occurred mainly in college, and his last use occurred over two years ago. Since he graduated from college, he has grown up and matured, he has joined the work force and has changed his environment and his friends. Most importantly, he stopped using illegal drugs. AG ¶ 26(a) and (b)1 and (b)2 are applicable 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 no longer uses illegal drugs nor does he misuse prescription drugs. During his younger years in college, he was surrounding by many drug users. Applicant was also a young, immature, and inexperienced student when he was abusing drugs. As time passed, he naturally matured. When he transferred to another college he started associating with more academically focused and goal oriented people. He gradually stopped using drugs, and has not used any drugs of any sort since he started working for his current employer. He understands the responsibilities involved in having access to classified information and he understands that he must always abide by the law. He has no intention of ever using any illegal drug again or misusing any prescription drug. Applicant’s evolution to maturity shows current reliability, trustworthiness, and good judgment. My comments regarding guideline H are incorporated here also.

Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising from his 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: FOR APPLICANT Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: For Applicant Subparagraph 1.d: For Applicant Subparagraph 1.e: For Applicant Subparagraph 1.f: For Applicant

CONCLUSION

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

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.