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ISCR Case 15-07722.h1 — CASE

ISCR Case 15-07722.h1granted

Case Headnote

ISCR Case No. 15-07722.h1

grantedMar 30, 2018· Hon. Richard A. Cefola· hearing

Summary

A 30-year-old defense contractor employee was granted a security clearance despite concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). Disqualifying conditions H.25(a), H.25(f), E.16(c), E.16(d), and E.16(g) were raised due to past marijuana use.

However, the judge applied mitigating conditions H.26(a), H.26(b), E.17(c), E.17(d), and E.17(g), finding that the applicant had taken significant steps toward rehabilitation. The applicant demonstrated a substantial period of abstinence from drug use, with the last incident occurring approximately eight years prior to the decision.

Furthermore, the applicant underwent extensive drug abuse counseling, consistently tested negative for drug use, and no longer associates with individuals involved in drug use. He also signed a statement of intent to abstain from future drug involvement, leading to the favorable decision to grant the security clearance.

Why the Applicant Prevailed

The applicant demonstrated a significant period of abstinence from drug use, with the last incident occurring approximately eight years prior.
He underwent extensive drug abuse counseling and consistently tested negative for drug use.
The applicant no longer associates with individuals involved in drug use and signed a statement of intent to abstain from future drug involvement.

Conditions Referenced

Disqualifying

H.25(a)raisedSubstance Misuse
H.25(f)raisedIllegal Drug Use While Holding a Security Clearance
E.16(c)raisedCredible Adverse Information in Several Adjudicative Issue Areas
E.16(d)raisedCredible Adverse Information Not Covered Under Any Other Guideline
E.16(g)raisedAssociation with Persons Involved in Criminal Activity

Mitigating

H.26(a)appliedBehavior Unlikely to Recur
H.26(b)appliedAcknowledgment of Drug Involvement and Evidence of Actions Taken to Overcome the Problem
E.17(c)appliedOffense Is Minor or Occurred Long Ago
E.17(d)appliedAcknowledgment of Behavior and Obtaining Counseling
E.17(g)appliedAssociation with Criminal Activity Was Unwitting or Has Ceased

Key Rule Quoted

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

Procedural Posture

SOR issuedSep 19, 2016
Answer filedNov 10, 2016
Hearing heldMar 8, 2017
Decision dateMar 30, 2018

Cite For

Mitigating Factors for Past Drug Use Under Guideline H
Consideration of Rehabilitation Efforts in Security Clearance Decisions
Whole-person Assessment in Adjudicating Security Clearance Cases

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 past marijuana use was acknowledged, but he demonstrated significant rehabilitation and no longer associates with drug users. The judge ruled in favor of the applicant on all allegations under Guideline E.

¶	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 judge found that the applicant's past marijuana use did not disqualify him from holding a security clearance. The applicant used marijuana approximately eight times, including twice after being granted a security clearance, but he has since undergone counseling, tested negative for drug use, and signed a statement of intent to abstain from future drug involvement. The decision was granted, indicating that the applicant mitigated the concerns related to drug involvement.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a–1.b	2 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Drug Involvement	Unspecified		—	—	—

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. 15-07722 ) ) Applicant for Security Clearance )

For Government: Aubrey De Angelis, Esq., Department Counsel For Applicant: Ryan C. Nerney, Esq., Applicant’s Counsel

March 30, 2018 ______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Statement of the Case

On September 5, 2014, Applicant submitted a security clearance application (SF- 86). On September 19, 2016, in accordance with DoD Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guidelines H and E. 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 (AG) effective within the Department of Defense on September 1, 2006.

Applicant answered the SOR in writing (Answer) on November 10, 2016, which contained Applicant Exhibits (AppXs) A through I, and requested a hearing before an administrative judge. The case was assigned to me on January 17, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a Notice of Hearing on January 25, 2017. I convened the hearing as scheduled on March 8, 2017. The Government offered Government Exhibits (GXs) 1 through 4, which were admitted without objection. Applicant testified on his own behalf and presented AppXs J through L, which, along with AppXs A through I, were admitted into evidence. DOHA received the transcript of the hearing (TR) on March 21, 2017. Pursuant to the Government’s request, the record was left open until May 8, 2017, for possible submission of additional documentation and/or reopening the Government’s case. (TR at page 28 line 13 to page 30 line 5.) The Government submitted nothing further in this regard, and on May 26, 2017 Applicant submitted a written closing argument. The record closed at that time.

The SOR in this case was issued under the adjudicative guidelines that came into effect within the DoD on September 1, 2006. Security Executive Agent Directive (SEAD) 4, National Security Adjudicative Guidelines (December 10, 2016), implements new adjudicative guidelines, effective June 8, 2017. All national security eligibility decisions1 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 implemented 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. My decision would be the same under either set of guidelines, although this decision is issued pursuant to the new AG promulgated in SEAD 4.

FINDINGS OF FACT

Applicant admitted to the allegation in SOR ¶ 1.b. He denied SOR allegations ¶¶ 1.a. and 2.a., disputing the year he last used marijuana. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is a 30-year-old employee of a defense contractor. (GX 1 at page 5.) He has been employed with the defense contractor since November of 2008. (GX 1 at pages 10–11.) He has held a security clearance since May of 2009. (GX 1 at pages 34–35.) He is married, and has one child. (TR at page 23 line 2–7, and GX 1 at pages 18–21.)

Guideline H – Drug Involvement and Substance Misuse & Guideline E – Personal Conduct

1.a., 1.b., and 2.a. Applicant used marijuana about six times from his time in high school until about 2005. (TR at page 15 line 6 to page 26 line 25, and at page 30 line 10 to page 31 line 6.) As noted above, he was granted a security clearance in May of 2009, but also used marijuana on two separate occasions in November of 2009. (Id.) At the time of his last usage, he was unmarried and in his early 20s. (GX 1 at pages 5 and 18–19.) He no longer associates with those who are involved in drugs. (TR at page 22 line 15 to page 23 line 7.) Applicant has undergone extensive drug abuse counseling (AppX I), has repeatedly tested negative for any drug abuse (AppXs E and J), and has signed a statement of intent eschewing any future illegal drug involvement (AppX G).

POLICIES

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

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. I have not drawn inferences based on mere speculation or conjecture.

Directive ¶ E3.1.14, requires the Government to 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 applying for national security eligibility 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 classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified or sensitive information. Finally, as emphasized in Section 7 of Executive Order 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 Executive Order 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. Two conditions are established:

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

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

Appellant smoked marijuana on several occasions, twice after having been granted a security clearance. Therefore, AG ¶¶ 25 (a) and (f) 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; (3) an appropriate period of abstinence; and (4) 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 used marijuana a total of about eight times, twice after holding a security clearance. His last usage was about eight years ago, he no longer associates with drug users, and he has signed a statement of intent to abstain from future usage. Drug Involvement is found for Applicant.

Guideline E - Personal Conduct

The security concern relating to the guideline for Personal Conduct is set out in AG ¶ 15:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness, and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes.

The guideline notes several conditions that could raise security concerns under AG ¶ 16. Three are potentially applicable 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 to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or government protected information; (2) any disruptive, violent, or other inappropriate behavior;

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

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

(g) association with persons involved in criminal activity.

Applicant engaged with others in using marijuana on about eight occasions, which is also a pattern of rule violations. The evidence is sufficient to raise these disqualifying conditions.

AG ¶ 17 provides conditions that could mitigate security concerns. I considered all of the mitigating conditions under AG ¶ 17 including:

(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; 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.

The Applicant’s conduct occurred about eight years ago. He has participated in counseling so as to not repeat that behavior, and he no longer associates with drug users. Personal Conduct is found for Applicant.

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 applicable guidelines and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. I have incorporated my comments under Guidelines H and E in my whole-person analysis. I also considered that Applicant is highly respected in the workplace. (AppXs B, C, D and K.)

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 Drug Involvement and Personal Conduct security concerns.

FORMAL FINDINGS

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

Paragraph 1, Guideline H: FOR APPLICANT

Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant

Paragraph 1, Guideline E: FOR APPLICANT

Subparagraph 2.a: 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 national security eligibility for a security clearance. Eligibility for access to classified information is granted.

________________________ Richard A. Cefola Administrative Judge

FOOTNOTES

1 SEAD 4 ¶ D.7 defines “National Security Eligibility” as, “Eligibility for access to classified information or eligibility to hold a sensitive position, to include access to sensitive compartmented information, restricted data, and controlled or special access program information.”