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ISCR Case 16-02990.h1 — CASE

ISCR Case 16-02990.h1denied

Case Headnote

ISCR Case No. 16-02990.h1

deniedNov 8, 2017· Hon. Richard A. Cefola· hearing

Summary

A 29-year-old Composite Technician was denied a security clearance due to concerns under Guideline G (Alcohol Consumption) and Guideline H (Drug Involvement and Substance Misuse). The applicant admitted to two alcohol-related incidents: a conviction for Driving While Intoxicated 1st Offense in October 2008, and a subsequent arrest in August 2014 for Driving While Intoxicated 2nd Offense, which resulted in a conviction for Driving While Intoxicated 1st Offense (reduced).

Additionally, the applicant admitted to using marijuana with varying frequency from approximately August 2014 to October 2014, and purchasing the drug on at least three occasions during that period. Crucially, this marijuana use occurred after he had already been granted a security clearance.

The judge found that the applicant's conduct raised significant doubts about his reliability and trustworthiness. Despite the application of some mitigating conditions, the denial was based on the admitted post-clearance marijuana use, the two alcohol-related incidents (including a second DUI offense), and the lack of evidence demonstrating rehabilitation or a commitment to abstain from drug use.

Why the Applicant Was Denied

The applicant admitted to using marijuana after being granted a security clearance.
The applicant has two alcohol-related incidents, including a second DUI offense.
The applicant did not provide evidence of rehabilitation or a commitment to abstain from drug use.

Conditions Referenced

Disqualifying

H.25.aappliedSubstance Misuse
H.25.cappliedIllegal Possession of a Controlled Substance
H.25.fappliedIllegal Drug Use While Holding a Security Clearance
G.21.aappliedAlcohol-related Incidents

Mitigating

H.26.arejectedBehavior Unlikely to RecurThe applicant's last drug use was recent and while holding a security clearance.
H.26.brejectedAcknowledgment of Drug InvolvementThe applicant did not provide evidence of actions taken to overcome substance misuse.
G.22.arejectedTime Passed Since Last IncidentThe applicant's last alcohol-related incident was recent.

Key Rule Quoted

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

Procedural Posture

SOR issuedSep 29, 2016
Answer filedOct 25, 2016
Hearing held—Decision made on the record without a hearing.
Decision dateNov 8, 2017

Cite For

Denial Based on Recent Drug Use While Holding a Security Clearance
Impact of Multiple Alcohol-related Incidents on Security Clearance Eligibility
Lack of Evidence for Rehabilitation in Substance Misuse 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 G (Alcohol Consumption) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant had two alcohol-related incidents, including a DWI in 2008 and another DWI in 2014. The judge ruled against the applicant on all allegations related to alcohol consumption, concluding that the applicant did not mitigate the security concerns arising from his alcohol use.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
2.a	Applicant admits that in August of 2014, he was arrested, in part, for Driving While Intoxicated 2nd Offense. He was subsequently convicted, in part, of Driving While Intoxicated 1st Offense (reduced).	Against Applicant	DUI or DWI Alcohol	Admitted	—	—	—
2.b	Applicant admits that in October of 2008, he was arrested for, and subsequently convicted of, Driving While Intoxicated 1st Offense.	Against Applicant	DUI or DWI Alcohol	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline G). 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 applicant admitted to using marijuana on multiple occasions and purchasing it while holding a security clearance. The judge found against the applicant on all allegations under Guideline H, concluding that the applicant's drug involvement raised significant security concerns that were not mitigated.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant admits that he used marijuana with varying frequency from about August 2014~October 2014.	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	He also admits that he purchased marijuana on at least three occasions during that time frame.	Against Applicant	MarijuanaWHILE CLEARED	Not Applicable	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.c	Although it is not clear when Applicant was granted a security clearance, he does admit using the drug after having been granted a security clearance.	Against Applicant	Unspecified Drug InvolvementWHILE CLEARED	Not Applicable	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	—	—

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. 16-02990 ) ) Applicant for Security Clearance )

For Government: Rhett Petcher, Esquire, Department Counsel For Applicant: Pro se

November 8, 2017 ______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

On January 3, 2012, Applicant submitted his Electronic Questionnaire for Investigations Processing (e-QIP). On September 29, 2016, the Department of Defense Consolidated Adjudications Facility (DODCAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guidelines H (Drug Involvement and Substance Misuse); and G (Alcohol Consumption).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, effective on September 1, 2006.

Applicant answered the SOR on October 25, 2016 (Item 1), and requested a decision on the record without a hearing. Department Counsel submitted the Government’s written case on November 30, 2016. A complete copy of the file of relevant material (FORM) was sent to Applicant, including documents identified as Items 1 through 6. He was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. He received the FORM on December 5, 2016, and did not respond. Items 1 through 6 are admitted into evidence. The case was assigned to me on October 1, 2017.

FINDINGS OF FACT

In his Answer to the SOR Applicant admitted the factual allegations in Paragraphs 1 and 2of the SOR, without any explanation. Applicant is 29 years old, unmarried, and has no children. (Item 2 at pages 5 and 18.) He works for a defense contractor as a “Composite Technician.” (Item 2 at page 9.)

Guideline H - Drug Involvement and Substance Misuse

1.a.~1.c. Applicant admits that he used marijuana with varying frequency from about August 2014~October 2014. He also admits that he purchased marijuana on at least three occasions during that time frame. Although it is not clear when Applicant was granted a security clearance, he does admit using the drug after having been granted a security clearance.

Guideline G - Alcohol Consumption

2.b.2 Applicant admits that in October of 2008, he was arrested for, and subsequently convicted of, Driving While Intoxicated 1st Offense.

2.a. Applicant admits that in August of 2014, he was arrested, in part, for Driving While Intoxicated 2nd Offense. He was subsequently convicted, in part, of Driving While Intoxicated 1st Offense (reduced). (See Items 4 and 6.) On March 3, 2015, he was fined $500, his licensed was suspended until March of 2017, and ordered to have an ignition interlock device installed in his vehicle, and remain so installed until March of 2018. (Id.)

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 G - Alcohol Consumption

The security concern relating to the guideline for Alcohol Consumption is set out in AG ¶ 21:

Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual's reliability and trustworthiness.

The guideline at AG ¶ 22 contains seven conditions that could raise a security concern and may be disqualifying. One condition clearly applies: (a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of the frequency of the individual's alcohol use or whether the individual has been diagnosed with alcohol use disorder.

Applicant has two alcohol-related incidents, one in 2008 and one in 2014.

The guideline at AG ¶ 23 contains four conditions that could mitigate security concerns. One conditions may apply:

(a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or judgment.

Although Applicant’s last conviction was in March of 2015, he is still subject to the utilization of an ignition interlock device installed in his vehicle. This allegation is found against Applicant.

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. Three conditions are established:

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

(c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and (f) any illegal drug use while granted access to classified information or holding a sensitive position.

Appellant purchased marijuana, and used the drug after having been granted a security clearance for his job. Therefore, AG ¶ 25 (a), (c), 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; 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 last used marijuana, while holding a security clearance, only two years prior to the issuance of the SOR. Furthermore, he has not provided information as to disassociation from drug-using associates, of any change in environment as to illegal substances, or of any intent to abstain in the future from marijuana usage.

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 the facts and circumstances surrounding this case. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant has not mitigated the security concerns arising from his alcohol consumption, and 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: AGAINST APPLICANT

Subparagraph 1.a.~c.: Against Applicant

Paragraph 2, Guideline G: AGAINST APPLICANT

Subparagraph 2.a.~2.b.: Against Applicant

CONCLUSION

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

_________________ Richard A. Cefola 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. 2 These allegations will be discussed chronologically.