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ISCR Case 16-00950.h1 — CASE

ISCR Case 16-00950.h1denied

Case Headnote

ISCR Case No. 16-00950.h1

deniedOct 25, 2017· Hon. Gregg A. Cervi· hearing

Summary

A 36-year-old field engineer for a defense contractor was denied a security clearance due to concerns under Guideline H (Drug Involvement and Substance Misuse) and Guideline E (Personal Conduct). The applicant admitted to using LSD and psilocybin mushrooms from May 2005 to August 2011, cocaine from June 2006 to September 2009, and marijuana in July 2009. Critically, this illegal drug use occurred while he held a Department of Defense security clearance.

The Statement of Reasons specifically cited his use of illegal drugs, including while cleared, as disqualifying conduct. Disqualifying conditions raised included H.25(a), H.25(f), E.16(d), E.16(e), and E.16(g).

The denial was based on the applicant's admitted history of illegal drug use while holding a security clearance. The judge found that he failed to provide sufficient evidence of a commitment to abstain from future drug use, despite his claim of cessation since 2011. This past conduct raised substantial doubts about his reliability and trustworthiness, leading to the denial of his security clearance application.

Why the Applicant Was Denied

The applicant admitted to a history of illegal drug use while holding a security clearance.
He failed to provide sufficient evidence of a commitment to abstain from future drug use.
The applicant's past drug use raised substantial doubts about his reliability and trustworthiness.

Conditions Referenced

Disqualifying

H.25(a)raisedAny Substance Misuse
H.25(f)raisedIllegal Drug Use While Granted Access to Classified Information
E.16(d)raisedCredible Adverse Information
E.16(e)raisedPersonal Conduct Creating Vulnerability to Exploitation
E.16(g)raisedAssociation with Persons Involved in Criminal Activity

Key Rule Quoted

“[N]o one has a ‘right’ to a security clearance.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedJun 22, 2016
Answer filedNov 8, 2016Applicant elected to have the case decided on the written record.
Hearing held—No hearing; decided on written record.
Decision dateOct 25, 2017

Cite For

Denial Based on History of Illegal Drug Use While Holding a Security Clearance
Insufficient Evidence of Commitment to Abstain From Drug Use
Impact of Personal Conduct on Security Clearance Eligibility

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 the personal conduct allegations under Guideline E, specifically regarding the applicant's illegal drug use. The applicant's history of drug use, particularly while holding a security clearance, raised significant concerns about his reliability and trustworthiness, leading to a denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant’s use of illegal drugs as discussed above, including while holding a DOD security clearance, is disqualifying conduct.	Against Applicant	Pattern of Dishonesty or Rule ViolationsFOUND DELIBERATE	—	Admitted	—	—	—

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 that the applicant had a history of illegal drug use, including the use of LSD, psilocybin mushrooms, cocaine, and marijuana, particularly while holding a security clearance. The applicant's claims of abstinence and intent to refrain from drug use were not deemed credible, leading to a denial of eligibility for access to classified information under Guideline H.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Used LSD and psilocybin mushrooms from May 2005 to August 2011.	Against Applicant	LSDWHILE CLEARED	Regular	Admitted	(a) any substance misuse (f) any illegal drug use while holding a clearance or sensitive position	—	—
1.b	Used cocaine from June 2006 to September 2009.	Against Applicant	CocaineWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (f) any illegal drug use while holding a clearance or sensitive position	—	—
1.c	Used marijuana in July 2009.	Against Applicant	MarijuanaWHILE CLEARED	Experimental	Admitted	(a) any substance misuse (f) any illegal drug use while holding a clearance or sensitive position	—	—
1.d	Used illegal drugs while holding a DOD security clearance.	Against Applicant	Unspecified Drug InvolvementWHILE CLEARED	Unspecified	Admitted	(a) any substance misuse (f) any illegal drug use while holding a clearance or sensitive position	—	—
1.e	specific text not stated in this decision	Against Applicant	Unspecified Drug InvolvementWHILE CLEARED	Unspecified	Unknown	—	—	—

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. 16-00950 ) Applicant for Security Clearance )

For Government: Jeff A. Nagel, Esq., Department Counsel For Applicant: Pro se

10/25/2017

STATEMENT OF CASE

CERVI, Gregg A., Administrative Judge

This case involves security concerns raised under Guideline H (Drug Involvement and Substance Misuse) and Guideline E (Personal Conduct). Eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application (SCA) on October 6, 2016. On June 22, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline H and Guideline E.1

Applicant answered the SOR on November 8, 2016, and elected to have the case decided on the written record in lieu of a hearing. The Government’s written brief with supporting documents, known as the File of Relevant Material (FORM), dated December 13, 2016, was submitted by Department Counsel. I made a clerical amendment to the SOR to label the subparagraph under paragraph 2, as subparagraph 2 “a.”

A complete copy of the FORM was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on December 8, 2016. He submitted a response to the FORM, marked as Applicant Exhibit (AE) A. The Government’s exhibits included in the FORM (Items 1 to 4) and AE A are admitted into evidence. The case was assigned to me on October 1, 2017.

FINDINGS OF FACT

Applicant is a 36-year-old field engineer for a defense contractor, employed since 2004. He graduated from high school in 1999 and is unmarried. In 2005, Applicant applied for a DOD security clearance. As part of the investigation, Applicant provided an affidavit discussing his use of methamphetamine on three occasions,1 from December 2001 to January 2002. During the last use, he was transported to the hospital due to a negative reaction to the drug. He was treated in a 30-day outpatient drug rehabilitation program. In the affidavit, he noted his intent to refrain from any further drug use. He was granted a security clearance in September 2005.

The SOR alleges under Guideline H, that Applicant used LSD and psilocybin mushrooms from May 2005 to August 2011; cocaine from June 2006 to September 2009; and marijuana in July 2009. He was granted a DOD security clearance in September 2005, and used illegal drugs while holding a clearance. Additionally, the SOR cross-alleges Applicant’s illegal drug use under Guideline E. He admitted the SOR allegations.

Applicant reported his illegal drug use in his 2016 SCA, and discussed it during his personal subject interview (PSI) with a government investigator. He disclosed that he began using illegal drugs when he was 19 years old. Since 2005, he used LSD, psilocybin mushrooms, cocaine, and marijuana while at parties. He noted that this drug use occurred while he had a DOD security clearance and in violation of his employer’s drug policy. He also discussed his previous use of crystal methamphetamine with a neighbor in 2000 and 2001. During this period, he noted that he attended a 30-day outpatient drug treatment facility. No documentary evidence was provided showing the treatment received, a diagnosis, or prognosis.

Applicant stated that he discontinued his drug use in 2011 because it is illegal, and his freedom and career are more important to him. He stated that he avoids environments where drugs are used, and people that use them. He provided several positive character letters from his managers and co-workers, but none of the letters indicated that they were aware of his drug abuse history. He also provided outstanding performance evaluations, a promotion recommendation, and several awards and certificates of recognition for his outstanding work performance. He did not submit documentary evidence of recent drug counseling or a signed statement of intent to abstain from further drug involvement.

Law and Policies

The Director of National Intelligence (DNI) issued revised adjudicative guidelines (AG) in a Security Executive Agent Directive, effective on June 8, 2017. These AGs are applicable to this decision.

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865 § 2.

National security eligibility is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider a person’s stability, trustworthiness, reliability, discretion, character, honesty, and judgment. AG ¶ 1(b).

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993). Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005).

An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01- 20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 1(d).

ANALYSIS

Guideline H: Drug Involvement and Substance Misuse

The security concern for drug involvement and substance misuse is set out in 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 notes conditions that could raise security concerns under AG ¶ 25. The disqualifying condition potentially applicable in this case includes:

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

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

Applicant has a history of illegal drug use, particularly from May 2005 to 2011. Additionally, he used illegal drugs after being granted a DOD security clearance in September 2005. Disqualifying conditions under AG ¶¶ 25 (a) and (f) are applicable.

AG ¶ 26 provides conditions that could mitigate security concerns. The following are potentially 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; (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; 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.

Applicant is a mature adult. He began using drugs when he was 19 years old. He discussed his drug use and treatment in his 2005 security clearance investigation, and attested to his intent to refrain from future use. He was granted a security clearance in 2005. He continued to use illegal drugs while holding a security clearance, with knowledge that illegal drug use is not permitted by Federal law or his company’s drug-free workplace policy. His renewed claim to refrain from future illegal drug use is not credible. He has not shown a clear and convincing commitment to discontinue further drug use or to change the environment where illegal drugs are being used. He was treated in 2001 or 2002 in a drug treatment program, and swore that he did not intend to use drugs again, but despite this, he continued his illegal drug use.

There is insufficient evidence to fully mitigate Applicant’s drug use. His claimed abstinence since 2011 was not accompanied by sufficient evidence to show a change in attitude and lifestyle, or that future illegal drug use is unlikely to recur. He has not participated in drug treatment or avoidance counseling since his failed treatment in 2001 or 2002, and he did not present a recent signed statement of intent to avoid future use. His history of illegal drug use despite receiving drug treatment, swearing to stop future use, and after being granted a security clearance, continues to cast doubt on his reliability, trustworthiness, and good judgment. No mitigation is fully applicable.

Guideline E: Personal Conduct

AG ¶ 15 expresses the personal conduct security concern:

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.

AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying in this case. The following disqualifying conditions are potentially applicable:

(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 person may not properly safeguard protected 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 other government protected information:

. . .

(3) a pattern of dishonesty or rule violations;

. . .

(e) personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress by a foreign intelligence entity or other individual or group. Such conduct includes:

(1) engaging in activities which, if known, could affect the person’s personal, professional, or community standing; and

. . .

(g) association with persons involved in criminal activity.

Applicant’s use of illegal drugs as discussed above, including while holding a DOD security clearance, is disqualifying conduct. AG ¶¶ 16(d), (e), and (g) apply.

The guideline also includes conditions that could mitigate security concerns arising from personal conduct. I have considered all of the mitigating conditions under AG ¶ 17 and found the following relevant:

(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; (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.

I considered all of the facts and circumstances of Applicant’s use of illegal drugs, including the type of drugs used and frequency, his age and employment, his drug abuse treatment, his stated intentions with regard to future drug use, and his clearance status. I find that he intentionally continued to use illegal drugs after promising to refrain from use to obtain a favorable security determination. Applicant did not present sufficient evidence to apply any mitigating condition. His actions as described above create substantial doubts about his overall trustworthiness, reliability, and good judgment. AG ¶ 17 does not apply.

WHOLE PERSON CONCEPT

Under AG ¶¶ 2(a), 2(c), and 2(d), 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. Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance 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). Although adverse information concerning a single criterion may not be sufficient for an unfavorable eligibility determination, the individual may be found ineligible if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility, or unstable behavior. AG ¶ 2(e).

I considered all of the potentially disqualifying and mitigating conditions in light of the facts and circumstances surrounding this case. I have incorporated my findings of fact and comments under Guidelines H and E in my whole-person analysis. Applicant is a mature, adult whose history of illegal drug use, especially after receiving a favorable security determination in 2005, leaves me with serious questions about his future intent and his willingness to follow rules and regulations. I am not convinced that he fully appreciates the legal and policy implications of his actions, and he has not clearly and convincingly established a commitment to discontinue further illegal drug use.

Accordingly, I conclude Applicant has not carried his burden of showing that it is clearly consistent with the national security interests of the United States to grant him eligibility for access to classified information.

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

Subparagraph 1.a – 1.e: Against Applicant

Paragraph 2, Guideline E: Against Applicant

Subparagraph 2.a: Against Applicant

CONCLUSION

I conclude that it is not clearly consistent with the national security interests of the United States to grant Applicant eligibility for access to classified information. Clearance is denied.

Gregg A. Cervi Administrative Judge

FOOTNOTES

1 The DOD CAF acted under Executive Order (Exec. Or.) 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 (AG) implemented by the DOD on September 1, 2006. 1 In the 2005 affidavit, Applicant could not recall who was present during his use of methamphetamine in 2001 and 2002. In his 2016 clearance investigation, he disclosed that he used meth with his neighbor in 2000 and 2001.