Loading case…

ISCR 16-03436.h1: Guideline H security clearance hearing, denied (2018) · CASE

ISCR Case 16-03436.h1denied

Case headnote

ISCR Case No. 16-03436.h1

deniedMar 30, 2018· Hon. Marc E. Curry· hearing

Summary

A 55-year-old electrician, employed by a federal contractor, was denied a security clearance under Guideline H (Drug Involvement). The denial stemmed from a 40-year history of marijuana use, which the applicant stated he intends to continue.

Key allegations included the applicant's long-term marijuana use and a failed pre-employment drug test. The applicant admitted to failing the test but claimed he "really didn’t care about passing [it] because he did not want the job." This nonchalant attitude, coupled with daily marijuana use, raised significant concerns.

The denial was based on the applicant's extensive history of marijuana use and his stated intent to continue. His failure to pass a drug test demonstrated a disregard for security protocols, and his indifferent attitude toward his drug use and its implications for national security were significant factors in the decision.

Why the applicant was denied

Applicant has been smoking marijuana for 40 years and intends to continue using it.
Applicant's failure to pass a pre-employment drug test demonstrated a disregard for security protocols.
Applicant's nonchalant attitude towards his drug use and its implications for national security were significant concerns.

Conditions referenced

Disqualifying

AG ¶ 24raisedDrug Involvement
AG ¶ 25(a)appliedCurrent Use of an Illegal Drug
AG ¶ 25(b)notedIllegal Drug Use After Being Granted Access to Classified Information
AG ¶ 25(c)appliedFailure to Comply with Drug Testing
AG ¶ 25(g)appliedIntent to Continue Drug Use

Key rule quoted

“no one has a ‘right’ to a security clearance.”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedJul 27, 2017
Answer filedSep 13, 2017Applicant requested a decision based on the administrative record.
Hearing held—No hearing; decision based on administrative record.
Decision dateMar 30, 2018

Cite for

Disqualifying Conditions Related to Long-term Drug Use Under Guideline H
Impact of Intent to Continue Illegal Drug Use on Security Clearance Eligibility
Consideration of Applicant's Attitude Towards Drug Testing and Security Protocols.

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 55: “Applicant is a 55-year-old man who works with a federal contractor as an electrician.”

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant has a long history of marijuana use, admitting to smoking it for 40 years and expressing an intention to continue. He failed a pre-employment drug test but showed a nonchalant attitude towards it. The judge found this conduct rendered him an unacceptable security risk, leading to a denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation

Descriptive standardized rendering of a decided public case. 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. 16-03436 ) Applicant for Security Clearance )

For Government: Daniel F. Crowley, Esq., Department Counsel For Applicant: Pro se

03/30/2018 ______________

STATEMENT OF CASE

______________

Curry, Marc E., Administrative Judge:

Applicant has been smoking marijuana for 40 years and intends to continue smoking it. Clearance is denied.

Statement of the Case

On July 27, 2017, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing the security concerns under Guideline H, drug involvement, explaining why it was unable to find it clearly consistent with the national interest to grant security clearance eligibility for him. The DOD CAF took the action 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 Nat. Sec. Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG) effective within the DOD on June 8, 2017.

On September 13, 2017, Applicant answered the SOR allegations, admitting subparagraphs 1.a and 1.b, and denying subparagraph 1.c. He requested a decision based on the administrative record instead of a hearing. On September 25, 2017, Department Counsel prepared a File of Relevant Material (FORM). Applicant did not file a response, whereupon the case was assigned to me on March 15, 2018.

FINDINGS OF FACT

Applicant is a 55-year-old man who works with a federal contractor as an electrician. He is a high school graduate and earned a vocational certification in electronics. (Item 2 at 15) He has been smoking marijuana with varying frequency, including daily, for 40 years. (Item 2 at 1) His marijuana use once caused him to fail a pre- employment drug test (subparagraph 1.c) He admits failing the test, but “really didn’t care about passing [it] because he did not want the job.” (Item 2 at 1) Currently, he is using marijuana every day. He enjoys using marijuana, characterizing it as “enjoyable and mellowing,” and believes that it “brings [him] closer to God.”(Item 4 at 2).

POLICIES

The U.S. Supreme Court has recognized the substantial discretion the Executive Branch has in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 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 required to be considered 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, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overall adjudicative goal is a fair, impartial, and commonsense decision. The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

Under the whole-person concept, the administrative judge must consider the totality of an applicant’s conduct and all relevant circumstances in light of the nine adjudicative process factors in AG ¶ 2(d).1

ANALYSIS

Guideline H, Drug Involvement

Applicant’s longtime use of marijuana, his nonchalant attitude about failing a pre-employment drug screening, and his expressed intent to continue using marijuana render him an unacceptable security risk. (AG ¶¶ 24, 25(a) – 25(c), and 25(g))

FORMAL FINDINGS

Formal findings for 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 – 1.c: Against Applicant

CONCLUSION

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

_____________________ Marc E. Curry Administrative Judge

FOOTNOTES

1 The factors under AG ¶ 2(d) are as follows:

(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.