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ISCR Case 17-01578.h1 — CASE

ISCR Case 17-01578.h1denied

Case Headnote

ISCR Case No. 17-01578.h1

deniedDec 11, 2017· Hon. Gregg A. Cervi· hearing

Summary

A 27-year-old engineer for a defense contractor was denied a security clearance under Guideline H (Drug Involvement) due to admitted marijuana use while already holding a clearance. The Statement of Reasons (SOR) specifically alleged that the applicant used marijuana from February to March 2016.

The applicant admitted to this allegation, reporting in his Security Clearance Application (SCA) that he used marijuana six times with a friend, approximately once every other week, during that two-month period. This conduct raised disqualifying conditions H.25(a) and H.25(f).

The denial was based on the applicant's admission of illegal drug use while holding a security clearance. Crucially, he failed to demonstrate a commitment to discontinue drug use or to change his environment to mitigate future risk. Consequently, no mitigating conditions were found applicable due to the lack of evidence or actions taken by the applicant to address the security concerns.

Why the Applicant Was Denied

The applicant admitted to illegal drug use while holding a security clearance.
He did not demonstrate a commitment to discontinue drug use or change his environment.
No mitigating conditions were applicable due to lack of evidence or action taken by the applicant.

Conditions Referenced

Disqualifying

H.25(a)raisedAny Substance Misuse
H.25(f)raisedAny Illegal Drug Use While Granted Access to Classified Information or Holding a Sensitive Position

Key Rule Quoted

“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)

Procedural Posture

SOR issuedJun 7, 2017
Answer filedJun 29, 2017Applicant elected to have the case decided on the written record.
Decision dateDec 11, 2017

Cite For

Denial of Security Clearance Due to Illegal Drug Use While Holding a Clearance
Lack of Mitigating Evidence or Commitment to Abstain From Drug Use
Importance of Demonstrating Reliability and Trustworthiness Under Guideline H

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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant was denied eligibility for access to classified information due to illegal drug use, specifically marijuana, while holding a security clearance. The judge found that the applicant's recent drug use raised significant concerns about his reliability and trustworthiness, and no mitigating conditions were applicable.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The SOR alleges that Applicant used marijuana from at least February 2016 to March 2016. He admitted the allegation, and reported in his SCA that he used marijuana six times with a friend, once every other week from February to March 2016, while holding a security clearance.	Against Applicant	MarijuanaWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (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. 17-01578 ) Applicant for Security Clearance )

For Government: Rhett Petcher, Esq., Department Counsel For Applicant: Pro se

12/11/2017

STATEMENT OF CASE

CERVI, Gregg A., Administrative Judge

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

Statement of the Case

Applicant submitted a security clearance application (SCA) on September 22, 2016. On June 7, 2017, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) alleging security concerns under Guideline H.1

Applicant answered the SOR on June 29, 2017, 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 July 12, 2017, was submitted by Department Counsel. 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 July 18, 2017. He did not respond to the FORM. The Government’s exhibits included in the FORM (Items 1 to 4) are admitted into evidence. The case was assigned to me on November 29, 2017.

FINDINGS OF FACT

Applicant is a 27-year-old engineer for a defense contractor, employed since 2012. He received his bachelor’s degree in 2013. He is unmarried. He was granted a DOD security clearance in 2013.

The SOR alleges that Applicant used marijuana from at least February 2016 to March 2016. He admitted the allegation, and reported in his SCA that he used marijuana six times with a friend, once every other week from February to March 2016, while holding a security clearance. In his personal subject interview (PSI), he noted that he does not intend to use marijuana in the future, but continues to associate with the friend with whom he used marijuana.

Since Applicant elected to have this case decided on the written record in lieu of a hearing, I was unable to further inquire into these allegations. He did not submit documentary evidence in mitigation.

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 conditions 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 admitted to illegal drug use in 2016 after being granted a DOD security clearance. 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 employed by a defense contractor since 2012. He was granted a security clearance in approximately 2013. He used marijuana while holding a security clearance, with knowledge that illegal drug use is not permitted. He has not shown a clear and convincing commitment to discontinue further drug use or to change his environment which resulted in his use of marijuana. He has not submitted a signed statement of intent to abstain from all drug involvement and substance misuse. Applicant’s relatively recent use of marijuana after being granted a security clearance, without further explanation or mitigation, continues to cast doubt on his reliability, trustworthiness, and good judgment. No mitigating conditions are applicable.

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 Guideline H in my whole-person analysis. Applicant is a mature adult whose use of marijuana in 2016, especially after receiving a favorable security determination in 2013, leaves me with serious questions about his future intent and his willingness to follow rules and regulations. I am not convinced that he 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: 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.