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ISCR Case 09-04233.h1 — CASE

ISCR Case 09-04233.h1granted

Case Headnote

ISCR Case No. 09-04233.h1

grantedMar 31, 2010· Hon. Darlene Lokey Anderson· hearing

Summary

A 30-year-old defense contractor with a Bachelor's Degree was granted a security clearance despite initial concerns under Guideline H (Drug Involvement). The Statement of Reasons detailed a history of illegal drug use, specifically marijuana and cocaine. The applicant used marijuana approximately 20 to 30 times between 1998 and July 2007, and cocaine between 10 and 20 times from 2003 to July 2008.

However, the applicant demonstrated significant rehabilitation. There has been no illegal drug use since 2008, and the applicant expressed a strong commitment to a drug-free future. This commitment was further solidified by a signed statement agreeing to automatic clearance revocation for any future drug use.

The decision to grant clearance was supported by several mitigating factors. The applicant's sustained abstinence from illegal drugs since 2008, coupled with a clear intent to remain drug-free, was a key consideration. Additionally, letters of recommendation attested to the applicant's professionalism, integrity, and dedication to a drug-free lifestyle.

Why the Applicant Prevailed

The applicant has not used illegal drugs since 2008 and has a demonstrated intent not to abuse drugs in the future.
The applicant submitted a signed statement of intent agreeing to automatic revocation of clearance for any drug use.
Letters of recommendation highlighted the applicant's professionalism, integrity, and commitment to a drug-free lifestyle.

Conditions Referenced

Disqualifying

25.(a)raisedAny Drug Abuse
25.(c)raisedIllegal Drug Possession, Including Cultivation, Processing, Manufacture, Purchase, Sale, or Distribution; or Possession of Drug Paraphernalia

Mitigating

26.(b)appliedA Demonstrated Intent Not to Abuse Any Drugs in the Future, Such As:
26.(b).(1)appliedDisassociation From Drug-using Associates and Contacts
26.(b).(3)appliedAn Appropriate Period of Abstinence
26.(b).(4)appliedA Signed Statement of Intent with Automatic Revocation of Clearance for Any Violation

Key Rule Quoted

“The adjudicative process is an examination of a sufficient period of a person’s life to make an affirmative determination that the person is an acceptable security risk.”

Procedural Posture

SOR issuedOct 5, 2009
Answer filedNov 23, 2009Applicant elected to have the case determined on a written record.
Hearing held—No hearing; case determined on written record.
Decision dateMar 31, 2010

Cite For

Demonstrated Intent Not to Abuse Drugs Under Guideline H
Importance of Letters of Recommendation in Security Clearance Cases
Commitment to a Drug-free Lifestyle as a Mitigating Factor

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: granted

The Applicant had a history of illegal drug use, including marijuana and cocaine, but has not used any illegal drugs since 2008. The judge found that the Applicant demonstrated a commitment to a drug-free lifestyle and had matured significantly since his college years. The decision to grant the security clearance was based on the Applicant's persuasive evidence of rehabilitation and intent not to use drugs in the future.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The Applicant has a history of illegal drug use, including marijuana and cocaine.	For Applicant	Marijuana	Occasional	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	(b) acknowledges involvement; evidence of action; established abstinence	Documented Abstinence Period Documented Documented Signed Intent with Revocation Clause
1.b	The Applicant used marijuana between 20 and 30 times from 1998 until July 2007.	For Applicant	Marijuana	Occasional	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	(b) acknowledges involvement; evidence of action; established abstinence	Documented Abstinence Period Documented Documented Signed Intent with Revocation Clause
1.c	The Applicant used cocaine between 2003 and July 2008, admitting to using it between 10 and 20 times.	For Applicant	Cocaine	Occasional	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	(b) acknowledges involvement; evidence of action; established abstinence	Documented Abstinence Period Documented Documented Signed Intent with Revocation Clause
1.d	The Applicant has not used any illegal drugs since 2008 and has expressed a commitment to remain drug-free.	For Applicant	Unspecified Drug Involvement	Not Applicable	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	(b) acknowledges involvement; evidence of action; established abstinence	Documented Abstinence Period Documented Documented Signed Intent with Revocation Clause

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. 09-04233 SSN: ------------------- ) ) Applicant for Security Clearance )

For Government: Julie R. Mendez, Department Counsel For Applicant: Pro Se

March 31, 2010

______________

STATEMENT OF CASE

______________

LOKEY ANDERSON, Darlene D., Administrative Judge:

Applicant submitted his Electronic Questionnaires for Investigations Processing (e-QIP) on March 10, 2009. On October 5, 2009, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns under Guideline H for Applicant. 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 (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006.

The Applicant responded to the SOR in writing on November 23, 2009, in which he elected to have the case determined on a written record in lieu of a hearing. Department Counsel submitted the Government’s File of Relevant Material (FORM) to the Applicant on December 15, 2009. The Applicant was instructed to submit information in rebuttal, extenuation or mitigation within 30 days of receipt. Applicant received the FORM on January 13, 2010, and he submitted a reply dated February 16, 2010, which was admitted without objection. The case was assigned to the undersigned for resolution on March 11, 2010. Based upon a review of the case file, pleadings and exhibits, eligibility for access to classified information is granted.

FINDINGS OF FACT

The Applicant is 30 years old and has a Bachelor’s Degree. He is employed by a defense contractor, and is applying for a security clearance in connection with his employment.

Paragraph 1 (Guideline H - Drug Involvement). The Government alleges that the Applicant is ineligible for clearance because he abuses illegal drugs.

The Applicant admitted each of the allegations set forth in the SOR. He has a history of illegal drug use. He began using marijuana in 1998, that continued until July 2007. Applicant states that the bulk of his marijuana use occurred while in high school, from 1998 to 1999. He use marijuana every few months with friends. In total, the Applicant admits to using marijuana between 20 and 30 times. On some occasions, the Applicant purchased marijuana, but it was strictly for his use. In November 2000, at the age of twenty-one, the Applicant was diagnosed with cancer in his sinus cavity and from then until July 2001, he underwent daily radiation and chemotherapy and did not use any illegal drugs during that time. He then moved out of state and came away with a “you only live once attitude”.

In 2003, the Applicant used cocaine for the first time. His girlfriend at the time introduced him to cocaine and he used it, never alone, but with her and her friends. From 2003 through July 2008, the Applicant used cocaine. During this period he was in college. Applicant used cocaine every couple of months during a five month period. Applicant admits to using cocaine between 10 and 20 times. The majority of his cocaine usage occurred in 2003 and 2004. Applicant also tried mushrooms on two occasions between 1998 and 2001. (Government Exhibit 3). The Applicant graduated from college in 2008 and stopped using illegal drugs. (Government Exhibit 3).

Applicant now no longer associates with individuals who use illegal drugs. He has recently completed his second bout with cancer and is undergoing treatment for a tumor. Once he beats cancer for the second time, his indicates that his singular goal is to maintain a successful career that will allow him to pay off his student loans and someday raise a family. (Government Exhibit 3).

Applicant submitted a letter of intent dated February 3, 2010, indicating that he swears never to use any illegal drug in the future. He understands that if he violates any provision set forth in DoD Directive 5220.6, he willingly agrees to have his security clearance automatically revoked. (Applicant’s Reply to the FORM).

Letters of recommendation from the Applicant’s direct supervisor and from a coworker indicate that the Applicant has developed a great deal of respect based upon his wonderful attributes that include, professionalism, integrity, unwavering work ethic, excellent team player, positive attitude, dedication to the company, organization skills, rapid learning abilities, self supervision/discipline and multi-discipline technical prowess. Applicant is said to be easy to get along with and is an excellent problem solver. He has their highest recommendation for a position of trust. (Applicant’s Reply to the FORM)

POLICIES

Enclosure 2 and Section E.2.2. of the Directive sets forth adjudication policies divided into "Disqualifying Factors" and "Mitigating Factors." The following Disqualifying Factors and Mitigating Factors are found to be applicable in this case:

Guideline H (Drug Involvement)

24. The Concern. Use of an illegal drug or misuse of a prescription drug can raise questions about an individual’s reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations.

Conditions that could raise a security concern:

25. (a) any drug abuse;

25.(c) Illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia;

Conditions that could mitigate security concerns:

26. (b) a demonstrated intent not to abuse any drugs in the future, such as:

(1) disassociation from drug-using associates and contacts;

(3) an appropriate period of abstinence;

4) a signed statement of intent with automatic revocation of clearance for any violation.

In addition, as set forth in Enclosure 2 of the Directive at pages 18-19, in evaluating the relevance of an individual’s conduct, the Administrative Judge should consider the following general factors:

a. The nature, extent, and seriousness of the conduct;

b. The circumstances surrounding the conduct, to include knowledgeable participation; c. The frequency and recency of the conduct;

d. The individual’s age and maturity at the time of the conduct;

e. The extent to which participation is voluntary;

f. The presence or absence of rehabilitation and other permanent behavior changes;

g. The motivation for the conduct;

h. The potential for pressure, coercion, exploitation or duress; and

i. The likelihood of continuation or recurrence.

The eligibility criteria established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question, posed in Section 2 of Executive Order 10865, of whether it is “clearly consistent with the national interest” to grant an Applicant’s request for access to classified information.

The DoD Directive states, “The adjudicative process is an examination of a sufficient period of a person’s life to make an affirmative determination that the person is an acceptable security risk. Eligibility for access to classified information is predicated upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable should be considered in reaching a determination.” The Administrative Judge can draw only those inferences or conclusions that have reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. Finally, as emphasized by President Eisenhower in Executive Order 10865, “Any determination under this order . . . 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.”

CONCLUSION

In the defense industry, the security of classified industrial secrets is entrusted to civilian workers who must be counted upon to safeguard such sensitive information twenty-four hours per day, seven days per week. The Government is therefore appropriately concerned when available information indicates that an Applicant for clearance may be involved in drug abuse that demonstrates poor judgment or unreliability.

It is the Government’s responsibility to present substantial evidence to support the finding of a nexus, or rational connection, between the Applicant’s conduct and the continued holding of a security clearance. If such a case has been established, the burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation or mitigation, which is sufficient to overcome or outweigh the Government’s case. The Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent with the national interest to grant him a security clearance.

In this case the Government has met its initial burden of proving that the Applicant has engaged in drug involvement (Guideline H). The totality of this evidence indicates poor judgment, unreliability and untrustworthiness on the part of the Applicant. Because of the scope and nature of the Applicant's conduct, I conclude there is a nexus or connection with his security clearance eligibility.

Considering all of the evidence, the Applicant has introduced persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome the Government's case under Guidelines H of the SOR. I have considered all of the evidence presented in this case, including the letters of recommendation, and the letter of intent signed by the Applicant. The Applicant has not used any illegal drug since 2008, over two years ago, and he has no intentions of ever using any illegal drug again. He now has a better understanding of the seriousness and negative effects of illegal drugs, namely how they can destroy your mind, your body and your career potential. He realizes that he used bad judgment during the period he used illegal drugs and is now committed to a drug free lifestyle. He has significantly matured since college, and no longer associates with illegal drug users. He has obviously increased his self- confidence and no longer needs to hang around with losers in society. Applicant has signed a statement of intent indicating that he will not use illegal drugs in the future, and if he does, his security clearance will be immediately revoked. This further demonstrates his commitment to a drug free lifestyle.

Under Guideline H, Drug Involvement, Disqualifying Conditions, 25.(a) any drug abuse, and 25.(c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia, apply. Mitigating Conditions 26.(b) a demonstrated intent not to abuse any drugs in the future, such as: 26.(b).(1) disassociation from drug-using associates and contacts; 26.(b).(3) an appropriate period of abstinence, and 26.(b).(4) a signed statement of intent with automatic revocation of clearance for any violation applies. Accordingly, I find for the Applicant under Guideline H, Drug Involvement.

I have also considered the “whole person concept” in evaluating the Applicant’s eligibility for access to classified information. The Applicant is 30 years old, educated, intelligent and successful. He understands the responsibilities of an individual who has the privilege of holding a security clearance. He realizes the seriousness of illegal drug use and how negatively it can effect his life. He no longer uses illegal drugs, and is looking forward to a successful career and a good life. Under the particular facts of this case, the totality of the conduct set forth above, when viewed under all of the guidelines as a whole, support a whole person assessment of good judgement, trustworthiness, reliability, a willingness to comply with rules and regulations, and/or other characteristics indicating that the person may properly safeguard classified information. This Applicant has demonstrated that he is trustworthy, and that he meets the eligibility requirements for access to classified information at this time. Accordingly, I find for the Applicant under Guideline H (Drug Involvement).

On balance, it is concluded that the Applicant has overcome the Government's case opposing his request for a security clearance. Accordingly, the evidence supports a finding for the Applicant as to the factual and conclusionary allegations expressed in Paragraph 1.

FORMAL FINDINGS

Formal findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive are:

Paragraph 1: For the Applicant. Subpara. 1.a.: For the Applicant. Subpara. 1.b.: For the Applicant. Subpara. 1.c.: For the Applicant. Subpara. 1.d.: For the Applicant.

DECISION

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant.

Darlene Lokey Anderson Administrative Judge