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ISCR Case 15-08840.h1 — CASE

ISCR Case 15-08840.h1denied

Case Headnote

ISCR Case No. 15-08840.h1

deniedMar 27, 2018· Hon. Nichole L. Noel· hearing

Summary

A 36-year-old electronics technician was denied a security clearance under Guidelines E (Personal Conduct), H (Drug Involvement), and J (Criminal Conduct). The denial stemmed from a history of alcohol and substance abuse, including a DUI conviction and a failed drug test.

Specifically, the applicant was convicted of a DUI in 2012 and subsequently violated the terms of his probation, which resulted in a two-year extension. In March 2015, he tested positive for marijuana during a random urinalysis, leading to the termination of his employment. The applicant had also been fired multiple times from previous jobs for violating employer policies related to tardiness and substance use.

The judge determined that the applicant failed to mitigate the concerns raised by his past misconduct, demonstrating a lack of reliability and poor judgment. Consequently, the security clearance was denied.

Why the Applicant Was Denied

The applicant had a DUI conviction in 2012 and failed to comply with probation terms.
He tested positive for marijuana in March 2015, leading to termination from employment.
The applicant was fired multiple times for violating employer policies related to tardiness and substance use.

Conditions Referenced

Disqualifying

AG ¶ 31(b)raisedCriminal Conduct
AG ¶ 25(a)raisedDrug Involvement and Substance Misuse
AG ¶ 16(d)raisedPersonal Conduct

Key Rule Quoted

“Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of national security.”

Procedural Posture

SOR issuedJun 8, 2016
Answer filed—Applicant requested a decision without a hearing.
Hearing held—Decision made without a hearing.
Decision dateMar 27, 2018

Cite For

Failure to Mitigate Concerns Related to Substance Abuse Under Guideline H
Disqualifying Conditions Related to Criminal Conduct and Personal Conduct
Importance of Demonstrating Rehabilitation and Compliance with Legal Obligations.

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: denied

The judge found against the applicant on all allegations under Guideline E, citing a history of alcohol and substance abuse that resulted in multiple job terminations and a DUI conviction. The applicant failed to mitigate the concerns regarding his personal conduct, leading to a denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a–3.c	3 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant		—		—	—	—

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: denied

The judge found against the applicant on the drug involvement and substance misuse allegations, citing a history of substance abuse and a failed drug test. The applicant's claims of rehabilitation and abstinence were not sufficient to mitigate the security concerns, leading to a denial of the security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a	Use of marijuana in March 2015, which resulted in a failed random urinalysis test and the termination of his employment.	Against Applicant	MarijuanaWHILE CLEARED	Not Applicable	Admitted	—	—	—

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: denied

The judge denied the applicant's request for a security clearance due to concerns regarding his criminal conduct, specifically a DUI conviction and a history of substance abuse. The applicant failed to mitigate these concerns, leading to a negative assessment of his reliability and judgment.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was convicted of a DUI in 2012, and that he violated the terms of his probation, resulting in the extension of his probation by two years.	Against Applicant	DUI or DWI Criminal	Convicted	Admitted	(b) evidence of criminal conduct, regardless of charge or conviction (d) violation of parole/probation or failure to complete a court program	—	—
1.b–1.e	4 sub-charges — specific text not stated in this decision (rulings shown). (low confidence)	Mixed		—		—	—	—

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. 15-08840 ) Applicant for Security Clearance )

For Government: Aubrey M. De Angelis, Esq., Department Counsel For Applicant: Pro se 03/27/2018 ______________

STATEMENT OF CASE

______________

NOEL, Nichole L., Administrative Judge:

Applicant contests the Department of Defense’s (DOD) intent to deny his eligibility for a security clearance to work in the defense industry. Applicant failed to mitigate concerns raised by his history of alcohol and substance abuse and related misconduct. Clearance is denied.

Statement of the Case

On June 8, 2016, the DOD issued a Statement of Reasons (SOR) detailing security concerns under the criminal conduct, drug involvement and substance misuse, and personal conduct guidelines.1 DOD adjudicators were unable to find that it is clearly consistent with the national interest to continue Applicant’s security clearance and recommended that the case be submitted to an administrative judge for a determination whether to deny or revoke his security clearance. Applicant answered the SOR and requested a decision without a hearing.2 The Government submitted its written case on October 3, 2016. A complete copy of the file of relevant material (FORM) and the Directive were provided to Applicant. He received the FORM on October 19, 2016, and provided a response in November 2016. The documents appended to the FORM are admitted as Government’s Exhibits (GE) 1 through 93 and Applicant’s Exhibits (AE) A through D, are admitted without objection.

While the case was pending decision, the Director of National Intelligence (DNI) issued Security Executive Agent Directive 4, establishing the National Security Adjudicative Guidelines (AG) applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position. The 2017 AG superseded the AG implemented in September 2006, and they are effective for any adjudication made on or after June 8, 2017. Accordingly, I have applied them in this case.

FINDINGS OF FACT

Applicant, 36, has worked for his current employer as an electronics technician since April 2015. Between 2007 and present, Appellant has held five position with federal contracting companies. Applicant reported that he applied for and received his first security clearance in February 2009 and completed his most recent security clearance application in May 2015. Based on information from the two investigations, the SOR alleges the following: a 2012 DUI conviction and subsequent probation sentence; use of marijuana in March 2015, which resulted in a failed random urinalysis test and the termination of his employment; and termination from employment in September 2009 and May 2011 for tardiness.4

Over the course of 14 years, Applicant was fired four times for violating employer’s rules or policies. Applicant was fired in 2004 for failing to show up for an assigned shift. Three years later in May 2007, Applicant was fired from a gas station for failing to attend a mandatory safety meeting. Applicant also admits that he was fired from positions with federal contracting companies in September 2009 and March 2011 for violating the terms of his probationary employment period by reporting to work late. Applicant admits he had a past problem with alcohol. He regularly consumed alcohol to the point that he experienced difficulty waking up for work in the morning, causing him to report to work late. His alcohol consumption habits also frequently prevented him from taking his children to school, which resulted in a 2011 citation from the local sheriff’s office.5 Applicant’s alcohol consumption resulted in a 2012 DUI conviction. He was fined, required to attend an alcohol counseling class, and was placed on three years unsupervised probation. In May 2015, Applicant’s probation was revoked for failure to pay the assessed fine, which he could not pay after being fired from his job two months earlier. The court extended Applicant’s probation two years until October 2017. Applicant successfully completed the terms of his sentence and was released from court supervision.6

In March 2015, Applicant was fired from a third federal contracting company for failing a random drug test. Applicant obtained a medical marijuana card and used the drug to treat severe pain. He claims to have used the drug once. At the time, Appellant was still on probation for the 2012 DUI conviction. Even though Applicant was working for a federal contracting company, it is unclear if the security clearance Applicant received in 2009 was active. Applicant’s drug use is not limited to the March 2015 incident. In his 2009 security clearance application, Applicant admits that he used methamphetamines four times between August 2004 and October 2005. He also used marijuana three times between March 2003 and May 2005. In 2013, Applicant claimed responsibility for marijuana police found in his home, during a search the court ultimately deemed illegal, to protect his wife from possible criminal liability. He received a citation, but was not prosecuted.7

Applicant claims that he has not used drugs since March 2015 and that he has not consumed alcohol since his DUI arrest, over six years ago. He is able to report to work on time and his children now have improved attendance records. Applicant offers his record with his current employer, of which he did not provide any documentation, and a recent his credit report, which shows his open accounts in good standing with no missed payments, as evidence of his rehabilitation, reform, and security worthiness.8

POLICIES

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

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the 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.” The applicant has the ultimate burden of persuasion to obtain a favorable security 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 safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

Section 7 of EO 10865 provides that adverse 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

The record establishes the Government’s prima facie case under the criminal conduct, drug involvement and substance misuse, and personal conduct guidelines. The record establishes that Applicant was convicted of a DUI in 2012, and that he violated the terms of his probation, resulting in the extension of his probation by two years.9 The record also establishes that in March 2015, Applicant used and tested positive for an illegal drug, marijuana.10 Finally, the record establishes that between 2009 and 2015, Applicant was fired from three jobs for violating his employers’ policies. These terminations, which resulted from Applicant’s alcohol and substance abuse, supports a negative whole-person assessment of questionable judgment, unreliability, unwillingness to comply with rules and regulations, or other characteristics that indicate Applicant may not properly safeguard classified or sensitive information.11

After reviewing the relevant mitigating conditions under each guideline, I find that Applicant failed to meet his burdens of production or persuasion regarding mitigation. None of the available mitigating conditions available under the relevant guidelines apply. Each instance of alleged misconduct involved alcohol or substance abuse. Despite the age of the events, Applicant claims of six years of sobriety and his statements that he will not engage in illegal drug use in the future do not carry much weight. Aside from attending a court-ordered alcohol education class, Applicant has not submitted to substance abuse counseling. He did not provide any evidence of a sobriety management plan, such as participation in Alcoholics or Narcotics Anonymous. Furthermore, he did not provide a written statement of intent to abstain from future drug use with automatic revocation of his security clearance for any violation. Given his history of alcohol and substance abuse, Applicant failed to establish that relapse and the associated personal and professional misconduct is unlikely to recur.

WHOLE PERSON CONCEPT

Based on the record, I have significant reservations about Applicant’s current security worthiness. In reaching this conclusion, I have also considered the whole- person factors at AG ¶ 2(d). In addition to the alleged conduct, unalleged conduct is relevant in a whole-person assessment. Here, Applicant’s personal and professional conduct shows a disregard for the law, rules, and regulations. He has also demonstrated a history of poor judgment. Because of his years of employment with federal contracting companies and his prior investigation for access to classified information, Applicant knew or should have known about the prohibition against illegal drug use and the use of random drug tests to ensure compliance with the policy. Despite this, Applicant still chose to use illegal drugs, in violation of federal law, his employer’s policy, and without regard for the potential consequences. The favorable information Applicant presented does not outweigh the security concerns in this case.

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, Criminal Conduct AGAINST APPLICANT

Subparagraph 1.a Against Applicant

Paragraph 2, Drug Involvement and Substance Misuse: AGAINST APPLICANT

Subparagraph 2.a Against Applicant

Paragraph 3, Personal Conduct AGAINST APPLICANT

Subparagraphs 3.a – 3.c Against Applicant

CONCLUSION

In light of all of the circumstances presented, it is not clearly consistent with the national interest to grant Applicant a security clearance. Eligibility for access to classified information is denied.

________________________ Nichole L. Noel Administrative Judge

FOOTNOTES

1 The DOD CAF acted under Executive Order (EO) 10865, Safeguarding Classified Information within Industry, signed by President Eisenhower on February 20, 1960, as amended; as well as DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program, dated January 2, 1992, as amended (Directive), and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, implemented on September 1, 2006. 2 GE 1.

3 GEs 8 and 9 are reports of investigation (ROI) summarizing the interview Applicant had with a background investigator in April 2009 and September 2017, respectively. While Applicant did not specifically waive any objections to the admissibility of the ROI, in his response to the FORM, he addressed and provided documents for issues only addressed in those documents. Accordingly, I construe Applicant’s conduct as a waiver of any objections to the ROI.

4 GE 3-9; AE A. 5 GE 3-9; AE A. 6 GE 6-7; AE C.

7 GE 4, 6-7, 9. 8 GE 3; AE A, D. 9 AG ¶¶ 31(b) and (d). 10 AG ¶¶ 25(a)-(b). 11 AG ¶ 16(d).