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ISCR 14-03998.h1: Guideline H security clearance hearing, denied (2016) · CASE

ISCR Case 14-03998.h1denied

Case headnote

ISCR Case No. 14-03998.h1

deniedMar 4, 2016· Hon. Wilford H. Ross· hearing

Summary

A 30-year-old defense contractor was denied a security clearance under Guideline H (Drug Involvement) due to a history of illegal drug use. The applicant admitted to using marijuana approximately ten times between December 2005 and August 2013. Additionally, the applicant used speed, crystal methamphetamine, or ecstasy about two times between December 2010 and April 2012.

Further admissions included using hallucinogenic mushrooms, PCP, or LSD approximately two times between December 2010 and February 2011, and cocaine about three times between November 2010 and November 2011. These admissions raised a disqualifying condition under AG ¶ 25(a).

While mitigating conditions AG ¶ 26(a) and AG ¶ 26(b) were considered, the denial was based on the applicant's admitted drug use over several years, the lack of evidence of rehabilitation or good judgment, such as character references or a signed statement of intent to abstain, and the fact that the last reported drug use occurred only two years prior to the decision.

Why the applicant was denied

The applicant admitted to using various illegal drugs over several years, including marijuana, cocaine, and hallucinogens.
The applicant provided no evidence of rehabilitation or good judgment, such as character references or a signed statement of intent to abstain from drug use in the future.
The applicant's drug use ended only two years prior to the decision, raising concerns about the likelihood of recurrence.

Conditions referenced

Disqualifying

AG ¶ 25(a)raisedDrug Abuse

Mitigating

AG ¶ 26(a)rejectedInfrequent UseThe applicant's drug use was not sufficiently infrequent or under circumstances that would mitigate concerns.
AG ¶ 26(b)rejectedIntent Not to Use DrugsThe applicant did not provide a signed statement of intent or other evidence to support claims of future abstinence.

Key rule quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural posture

SOR issuedJan 29, 2015
Answer filedFeb 17, 2015
Hearing held—Applicant requested a decision without a hearing.
Decision dateMar 4, 2016

Cite for

Denial of Security Clearance Due to Drug Involvement Under Guideline H
Insufficient Evidence of Rehabilitation or Intent to Abstain From Drug Use
Consideration of the Whole-person Concept in Security Clearance Decisions

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.

Tenure: ~2 years: “He has been employed by a defense contractor since January 2014 and seeks to obtain a security clearance in connection with his employment.”

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations related to drug involvement under Guideline H. The applicant admitted to using various illegal drugs, including marijuana, methamphetamine, hallucinogens, and cocaine, but failed to provide sufficient evidence of rehabilitation or intent to abstain from drug use in the future. Consequently, the judge concluded that the applicant did not mitigate the security concerns arising from his drug use, 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. 14-03998 ) Applicant for Security Clearance )

For Government: Allison O’Connell, Esquire, Department Counsel

For Applicant: Pro se

March 4, 2016

______________

STATEMENT OF CASE

______________

ROSS, Wilford H., Administrative Judge:

Applicant submitted his Electronic Questionnaire for Investigation Processing (e- QIP) on February 4, 2014. (Item 4.) On January 29, 2015, the Department of Defense issued a Statement of Reasons (SOR) detailing the security concerns under Guideline H (Drug Involvement) concerning Applicant. The action was taken 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) effective within the Department of Defense for SORs issued after September 1, 2006.

Applicant answered the SOR in writing on February 17, 2015, and requested a decision by an administrative judge without a hearing. (Item 3.) Department Counsel submitted the Government’s written case (FORM) to Applicant on July 15, 2015. The FORM contained five documents. Applicant acknowledged receipt of the FORM on August 3, 2015. He was given 30 days from receipt of the FORM to submit any additional documentation. Applicant did not submit any additional information. This case was assigned to me on October 13, 2015. Based upon a review of the pleadings and exhibits, eligibility for access to classified information is denied.

FINDINGS OF FACT

Applicant is 30, and single. He has been employed by a defense contractor since January 2014 and seeks to obtain a security clearance in connection with his employment. (Item 4 at Section 13A.) Applicant admitted all the allegations of the SOR, with explanations. Applicant’s admissions are incorporated into the following findings of fact.

Paragraph 1 (Guideline H, Drug Involvement)

The Government alleges in this paragraph that Applicant is ineligible for clearance because he used illegal drugs.

Applicant admits that he used marijuana approximately ten times between December 2005 and his last use in August 2013; speed, crystal methamphetamine, or ecstasy about two times between December 2010 and April 2012; hallucinogenic mushrooms, PCP, or LSD approximately two times between December 2010 and February 2011; and cocaine about three times between November 2010 and November 2011. He states that all of his drug use was, “infrequent,” and that he has, “no interest in using in the future.” (Item 4 at Section 23.)

In his answer to the SOR (Item 3) Applicant states, “I was young, dumb, and not thinking about my future. I have since disassociated myself from all drug using contacts; moving from [State A] back to [State B] in pursuit of a long term career. I am committed to being a upstanding professional in my community and not making the mistakes of my youth.”

Applicant provided no evidence concerning the quality of his professional performance, the level of responsibility his duties entail, or his track record with respect to handling sensitive information and observation of security procedures. He submitted no character references or other evidence tending to establish good judgment, trustworthiness, or reliability. I was unable to evaluate his credibility, demeanor, or character in person since he elected to have his case decided without a hearing.

POLICIES

Security clearance decisions are not made in a vacuum. 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 to be used as appropriate 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 AG ¶ 2(a) describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny 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. In addition, the administrative judge may also rely on his or her own common sense, as well as knowledge of the law, human nature, and the ways of the world, in making a reasoned decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that, “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, “The 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 who seeks access to classified information enters 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 access to classified information. Security clearance decisions include, by necessity, consideration of the possible risk that 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 information.

Finally, as emphasized in Section 7 of Executive Order 10865, “Any 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 EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Paragraph 1 (Guideline H - Drug Involvement)

The security concern relating to the guideline for Drug Involvement is set out in AG ¶ 24:

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. Drugs are defined as mood and behavior altering substances, and include: (1) Drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens), and (2) inhalants and other similar substances; drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.

I have considered the disqualifying conditions under AG ¶ 25 and especially considered the following:

(a) any drug abuse.

Applicant admits using various drugs including marijuana, hallucinogens, stimulants, and cocaine, from 2005 through August 2013.

I have studied all of the mitigating conditions under AG ¶ 26 and especially considered the following:

(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) a demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence; (4) a signed statement of intent with automatic revocation of clearance for any violation.

Applicant offered insufficient evidence that would support mitigation under AG ¶¶ 26(a) or (b). Applicant’s drug use ended approximately two years before the record closed. Applicant stated that he did not intend to use any drugs in the future, and that he no longer associated with drug users. However, he elected not to submit a signed statement of intent, or any other evidence in response to the FORM. There is a distinct lack of mitigating evidence in this case. Based on the available record, it is simply too soon to find that he has mitigated security concerns arising from his pattern and history of drug abuse. Paragraph 1 is found against Applicant.

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 applicant’s conduct and all the relevant circumstances. Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

(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 considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Under AG ¶ 2(a)(3), Applicant’s conduct is recent. Based on the state of the record, or lack thereof, I cannot find that there have been permanent behavioral changes under AG ¶ 2(a)(6). Accordingly, at the present time, I find that there is the potential for pressure, coercion, exploitation, or duress (AG ¶ 2(a)(8)), and that there is an unacceptable likelihood of recurrence (AG ¶ 2(a)(9)).

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 drug use.

On balance, it is concluded that Applicant has not successfully overcome the Government's case opposing his request for a DoD security clearance. Accordingly, the evidence supports a finding against Applicant as to the factual and conclusionary allegations expressed in Paragraph 1of the Government's Statement of Reasons.

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

Subparagraphs 1.a through 1.d: 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 eligibility for a security clearance. Eligibility for access to classified information is denied.

WILFORD H. ROSS Administrative Judge

FOOTNOTES

Item 5 is inadmissible and will not be considered or cited as evidence in this case. It is the summary of an unsworn interview of Applicant conducted by an interviewer from the Office of Personnel Management on February 26, 2014. It was never adopted by Applicant as his own statement, or otherwise certified by him to be accurate. Under Directive ¶ E3.1.20, this Report of Investigation summary is inadmissible in the absence of an authenticating witness. Given Applicant’s admissions, it is also cumulative.