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ISCR Case 16-02450.h1 — CASE

ISCR Case 16-02450.h1denied

Case Headnote

ISCR Case No. 16-02450.h1

deniedOct 20, 2017· Hon. Robert J. Tuidar· hearing

Summary

A 31-year-old software test engineer was denied a security clearance due to unmitigated concerns under Guideline H (Drug Involvement), despite some mitigation of Guideline E (Personal Conduct) concerns. The Statement of Reasons specifically alleged that the applicant possessed and used marijuana on numerous occasions while already holding a security clearance.

The judge found that the applicant admitted to this marijuana use. While the applicant offered assurances of future abstinence, these were deemed unconvincing given prior similar statements. Consequently, the applicant failed to provide sufficient evidence to mitigate the drug involvement concerns.

Disqualifying conditions H.25(a), H.25(c), and H.25(f) were raised, while mitigating conditions H.26(a), H.26(b), H.26(c), and H.26(d) were applied. Ultimately, the security clearance was denied because the drug involvement concerns remained unresolved.

Why the Applicant Was Denied

The applicant admitted to using marijuana on multiple occasions while holding a security clearance.
The applicant's assurances of future abstinence were deemed unconvincing due to prior similar statements.
The applicant failed to provide sufficient evidence to mitigate the drug involvement concerns.

Conditions Referenced

Disqualifying

H.25(a)raisedSubstance Misuse
H.25(c)raisedIllegal Possession of a Controlled Substance
H.25(f)raisedIllegal Drug Use While Granted Access to Classified Information

Mitigating

H.26(a)rejectedBehavior Unlikely to RecurThe applicant's past drug use while holding a clearance undermined claims of future abstinence.
H.26(b)rejectedAcknowledgment of Drug Involvement and Actions TakenThe applicant did not provide evidence of a pattern of abstinence or disassociation from drug-using associates.
H.26(c)notedAbuse of Prescription Drugs After Severe Illness
H.26(d)notedCompletion of a Drug Treatment Program

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.”
— Directive, Enclosure 2 ¶ 2(b).

Procedural Posture

SOR issuedSep 27, 2016
Answer filedOct 19, 2016Applicant elected to have the case decided on the written record.
Hearing held—No hearing; decided on the written record.
Decision dateOct 20, 2017

Cite For

Denial of Security Clearance Due to Unmitigated Drug Involvement Under Guideline H
Mitigating Conditions Under Guideline E Not Applicable Due to Overlapping Issues with Guideline H
Importance of Providing Evidence of Rehabilitation and Abstinence in Drug Involvement 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: denied

The judge found that the personal conduct concerns under Guideline E were mitigated, leading to a favorable finding for the applicant on the relevant subparagraph. However, the overall security clearance was denied due to unmitigated drug involvement concerns under Guideline H.

¶	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	—	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's drug involvement raised significant security concerns, particularly due to the use of marijuana while holding a security clearance. Despite the applicant's admissions and expressions of remorse, the judge concluded that the concerns were not mitigated, leading to a denial of the security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant possessed and used marijuana on numerous occasions while holding a security clearance.	Against Applicant	MarijuanaWHILE CLEARED	Frequent	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	specific text not stated in this decision	Against Applicant	Unspecified Drug Involvement	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. 16-02450 ) Applicant for Security Clearance )

For Government: Candace L. Garcia, Esq., Department Counsel For Applicant: Pro se

10/20/2017 __________

STATEMENT OF CASE

__________

TUIDER, Robert, Administrative Judge:

Guideline E (personal conduct) security concerns are mitigated; however, Guideline H (drug involvement) security concerns are not mitigated. Clearance is denied.

Statement of the Case

On September 27, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines H and E. On October 19, 2016, Applicant responded to the SOR, and elected to have the case decided on the written record in lieu of a hearing.

The Government’s written case was submitted on February 1, 2017. A complete copy of the file of relevant material (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 February 6, 2017. He was afforded a period of 30 days to file objections and submit material in refutation, extenuation, or mitigation. Applicant did not submit any additional information within the 30-day period. On October 1, 2017, the case was assigned to me. The Government exhibits, Items 1 through 5, included in the FORM are admitted in evidence.

FINDINGS OF FACT

Applicant admitted all of the SOR allegations, with explanations. His admissions are accepted as findings of fact. Additional findings of fact follow.

Background Information1

Applicant is a 31-year-old software test engineer employed by a defense contractor since June 2008. He seeks to retain his security clearance for his current employment. Applicant graduated from high school in June 2004. He was awarded a bachelor’s degree in April 2008. Applicant has never married and has no dependents. He did not serve in the U.S. armed forces.

Drug Involvement and Substance Misuse

Applicant admitted using marijuana with varying frequency from about August 2004 through July 2013. (Items 3-5) He began experimenting with marijuana in September 2004, about one month after he started college. He estimated that he used marijuana about 12 times while in college. After college, he used marijuana on at least two occasions during the approximate timeframe of August 2011 through July 2013, after he was granted a DOD security clearance in October 2010.

Applicant stated in his October 2016 SOR answer that he had no future intentions of using marijuana; however, he voiced the same intention in his September 14, 2010 Office of Personnel Management Personal Subject Interview (OPM PSI). (Items 2 and 5) He still associates with the friend who supplied the marijuana during his post-security clearance marijuana use; although he stated he rarely see this friend more than once or twice a year. (Item 2) Applicant did express remorse for using marijuana while holding a security clearance recognizing “immediately afterwards that [he] made a mistake.” (Item 2)

Personal Conduct

Applicant’s SOR cross-alleges the same conduct under the personal conduct guideline as alleged under the drug involvement guideline.

POLICIES

This case is adjudicated under Executive Order (EO) 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), which became effective on June 8, 2017.

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(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.”

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

Drug Involvement and Substance Misue

AG ¶ 24 articulates the security concern for drug involvement:

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.

AG ¶ 25 provides three conditions that could raise a security concern and may be disqualifying in this case: “(a) any substance misuse (see above definition);” “(c) illegal possession of a controlled substance . . . ;” and “(f) any illegal drug use while granted access to classified information or holding a sensitive position.”

Applicant possessed and used marijuana2 on numerous occasions while holding a security clearance. AG ¶¶ 25(a), 25(c), and 25(f) are established.

AG ¶ 26 details conditions that could mitigate security concerns:

(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;

(c) abuse of prescription drugs was after a severe or prolonged illness during which these drugs were prescribed, and abuse has since ended; 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.

The DOHA Appeal Board concisely explained Applicant’s responsibility for proving the applicability of mitigating conditions as follows:

Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b).

ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013).

None of the mitigating conditions apply. DNI Memorandum ES 2014-00674, “Adherence to Federal Laws Prohibiting Marijuana Use,” October 25, 2014, indicates:

[C]hanges to state laws and the laws of the District of Columbia pertaining to marijuana use do not alter the existing National Security Adjudicative Guidelines . . . . An individual’s disregard of federal law pertaining to the use, sale, or manufacture of marijuana remains adjudicatively relevant in national security determinations. As always, adjudicative authorities are expected to evaluate claimed or developed use of, or involvement with, marijuana using the current adjudicative criteria. The adjudicative authority must determine if the use of, or involvement with, marijuana raises questions about the individual’s judgment, reliability, trustworthiness, and willingness to comply with law, rules, and regulations, including federal laws, when making eligibility decisions of persons proposed for, or occupying, sensitive national security positions.

None of the mitigating conditions fully apply. Applicant used marijuana on varying occasions from August 2004 to July 2013, and used marijuana on at least two occasions while holding a security clearance. It is unfortunate that Applicant did not adhere to the prohibition against using drugs while holding a security clearance. His assurances of future drug avoidance ring hollow in light of his previous promise to avoid drug use during his September 14, 2010 OPM PSI. Drug involvement security concerns are not mitigated.

Personal Conduct

AG ¶ 15 explains why personal conduct is a security concern stating:

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 three conditions that could raise a security concern and may be disqualifying 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 . . . ; (3) a pattern of . . . rule violations; and

(e) personal 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.

SOR ¶ 2.a cross-alleges under the personal conduct guideline the same conduct alleged under the drug involvement guideline. All of Applicant’s conduct causing a security concern in SOR ¶ 2.a is explicitly covered under Guideline H, and that conduct is sufficient to warrant revocation of his security clearance under Guideline H. AG ¶¶ 16(c) and 16(d) do not apply. Applicant’s involvement with marijuana affects his professional and community standing. However, this conduct does not create a vulnerability to exploitation, manipulation, or duress because security officials are aware of it. AG ¶ 16(e) is not established. Guidelines H and E address identical issues involving judgment, trustworthiness, and reliability. Guideline E concerns constitute a duplication of the concerns under Guideline H, and accordingly, personal conduct security concerns in SOR ¶ 2.a are found for Applicant.

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):

(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.

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. I have incorporated my comments under Guidelines H and E in my whole-person analysis. Unmitigated drug involvement security concerns lead me to conclude that grant of a security clearance to Applicant is not warranted at this time. This decision should not be construed as a determination that Applicant cannot or will not attain the state of reform necessary for award of a security clearance in the future. With more effort towards documented drug abstinence and compliance with applicable regulations, he may well be able to demonstrate persuasive evidence of his security clearance worthiness.

In closing, Applicant chose to rely on the written record versus a hearing. In so doing, however, and with regard to drug involvement, he failed to submit sufficient evidence to supplement the record with relevant and material facts regarding his circumstances, articulate his position limiting my assessment that . In particular, his evidence did not adequately address the drug involvement concerns outlined in AG ¶¶ 26(a) and 26(b), and my decision was limited to that discussed in the FORM. I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, and the AGs, to the facts and circumstances in the context of the whole person. Personal conduct security concerns are mitigated; however, drug involvement security concerns are not mitigated.

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

Subparagraphs 1.a and 1.b: Against Applicant

Paragraph 2, Guideline E: FOR APPLICANT

Subparagraph 2.a: For Applicant

CONCLUSION

In light of all of the record as a whole, it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Clearance is denied.

_________________________ ROBERT TUIDER Administrative Judge

FOOTNOTES

1 The limited background information regarding Applicant was derived from the FORM and was the most current information available. 2 Schedules I, II, III, IV, and V, as referred to in the Controlled Substances Act are contained in 21 U.S.C. § 812(c). Marijuana is a Schedule (Sch.) I controlled substances. See Drug Enforcement Administration listing at http://www.deadiversion.usdoj.gov/21cfr/cfr/1308/1308 11.htm. See also Gonzales v. Raish, 545 U.S. 1 (2005) (discussing placement of marijuana on Schedule I).