ISCR Case No. 17-03250.h1

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 17-03250 ) Applicant for Security Clearance )

For Government: Michelle Tilford, Esq., Department Counsel For Applicant: Pro se

06/07/2018 ______________

______________

HEINTZELMAN, Caroline E., Administrative Judge:

Applicant failed to mitigate security concerns raised under Guideline H (Drug Involvement). Applicant has a history of using illegal drugs and abusing prescription medication, with his last admitted drug use occurring less than two years ago. His last use of illegal drugs occurred after he submitted a security clearance application (SCA). Eligibility for access to classified information is denied.

History of the Case

Applicant submitted a SCA on March 10, 2016. On October 13, 2017, the Department of Defense (DOD) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline H (Drug Involvement). The DOD acted under Executive Order (EO) 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 (AG) promulgated in Security Executive Agent Directive 4, National Security Adjudicative Guidelines (December 10, 2016), for all decisions on or after June 8, 2017. Applicant answered the SOR on December 5, 2017, and requested a decision on the record without a hearing (answer). On January 3, 2018, a complete copy of the File of Relevant Material (FORM), containing four Items, was mailed to Applicant. He received it on January 6, 2017. The FORM notified Applicant that he had an opportunity to file objections and submit material in support of his case within 30 days of his receipt of the FORM. Applicant did not respond to the FORM. Items 1 through 4 are admitted into evidence without objection. The case was assigned to me on May 7, 2018.

Applicant is 27 years old and works as a software engineer for a defense contractor. He has worked for his employer since October 2015, and requires a clearance for his employment. He is single and has no children. He graduated from college in May 2012, and received his master’s degree in August 2015. Applicant admitted to all of the SOR allegations without explanation.

Applicant used marijuana from September 2010 until January 2017. In his March 2016 SCA, Applicant reported using marijuana from September 2010 until March 2012. He stated that he “didn’t want it to affect my employment and have no interest in using the drug in the future.” (Item 3 at 38) During his January 31, 2017 interview with a government investigator, he disclosed that he used marijuana again between March 2016 and January 2017.1 (Item 4 at 4)

Applicant used cocaine ten times between September 2011 and April 2014. He did not purchase the cocaine, but “chipped in” for the purchases. He used ketamine two times between September 2011 and July 2012.2 He also used MDMA or ecstasy five times between September 2011 and May 2012.3 Applicant used a hallucinogenic drug one time in February 2012.4 Finally, he admitted during his interview that he used his girlfriend’s Adderall between 2012 and October 2015.5 (Item 3 at 28 and Item 4 at 4)

Applicant told the investigator that most of his drug use occurred at parties while he was in college. He used drugs with his friends and girlfriend. He stated that he will not use drugs in the future when he is granted a clearance. (Item 4)

“[N]o one has a ‘right’ to a security clearance.”6 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.”7 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.”8

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG. 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 all available and reliable information about the person, past and present, favorable and unfavorable.

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.”9 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 national security eligibility.

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.10 “Substantial evidence” is “more than a scintilla but less than a preponderance.”11 The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability.12 Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts.13 An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government.14

An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.”15 “[S]ecurity clearance determinations should err, if they must, on the side of denials.”16

Guideline H: Drug Involvement and Substance Misuse

The security concern under Guideline H 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, but 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 describes two conditions that could raise a security concern and be disqualifying in this case:

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

(g) expressed intent to continue drug involvement and substance misuse, or failure to clearly and convincingly commit to discontinue such misuse.

Applicant used drugs between September 2010 and January 2017. The evidence established these two disqualifying conditions. AG ¶ 26 provides conditions that could mitigate security concerns. Two are potentially applicable in this case:

(a) the behavior happened so long ago, was so infrequent, or happened under such unusual 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 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 used drugs for over six years, including after he applied for a DOD security clearance. His recent assertions that he will discontinue all future use of drugs is unconvincing and outweighed by his history of use. Applicant’s illegal drug use is not isolated, nor did it occur under unusual circumstances. There is no evidence he has changed or avoided the environments in which he used drugs. AG ¶¶ 26(a) and 26(b) do not apply.

Applicant chose to use illegal drugs, and his decision to do so continues to reflect negatively on his current security worthiness. Applicant’s decision to use illegal drugs, after he applied for a security clearance, cannot be considered a minor lapse in judgment, but a pattern of behavior that indicates an unwillingness to follow rules and regulations. Security clearance decisions are not limited to conduct during duty hours;17 off-duty conduct, especially where it reflects poor judgment, provides a rational basis for the government to question an applicant’s security worthiness.18 Applicant’s behavior showed a disregard for the law, regulations, and the fiduciary relationship he voluntarily entered into with the Government when he applied for access to classified information.

Under AG ¶ 2(c), the ultimate determination of whether the granting or continuing of national security eligibility is clearly consistent with the interests of national security must be an overall common sense judgment based upon careful consideration of the following guidelines, each of which is to be evaluated in the context of the whole person. An 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.

I have incorporated my comments under Guideline H in my whole-person analysis, and I have considered the factors in AG ¶ 2(d). After weighing the disqualifying and mitigating conditions under Guideline H, and evaluating all the evidence in the context of the whole person, I conclude that Applicant has not mitigated the drug involvement concerns. Accordingly, 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 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, Drug Involvement and Substance Misuse: AGAINST APPLICANT

Subparagraphs 1.a. to 1.f.: Against Applicant

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

__________________________ CAROLINE E. HEINTZELMAN Administrative Judge

1 Applicant disclosed in his interview that between September 2010 and March 2012, he used marijuana once every three to four months in social gatherings. He also disclosed that between March 2016 and January 2017, he used marijuana once every six months with his neighbor. Item 4 at 4. 2 Ketamine is a schedule III drug primarily used for anesthesia. 3 MDMA or ecstasy is a schedule I drug. 4 Applicant claims this was a synthetic form of lysergic acid diethylamide (LSD) or acid. LSD is a schedule I drug. 5 Adderall is a schedule II drug. 6 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 7 Egan at 527. 8 EO 10865 § 2. 9 EO 10865 § 7. 10 See Egan, 484 U.S. at 531. 11 See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). 12 ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993). 13 Directive ¶ E3.1.15. 14 ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). 15 ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). 16 Egan, 484 U.S. at 531; See also AG ¶ 2(b). 17 See, e.g., ISCR Case No. 98-0620 at 3 (App. Bd. Jun. 22, 1999). 18 See, e.g., Cole v. Young, 351 U.S. 536, 550 n.13 (1956); Croft v. Department of Air Force, 40 M.S.P.R. 320, 321 n.1 (1989).