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ISCR Case 15-00285.h1 — CASE

ISCR Case 15-00285.h1denied

Case Headnote

ISCR Case No. 15-00285.h1

deniedOct 18, 2016· Hon. Darlene Lokey Anderson· hearing

Summary

A 26-year-old software engineer with a bachelor's degree was denied a security clearance under Guideline H (Drug Involvement) due to a history of illegal drug use. The Statement of Reasons detailed several instances of drug use, including the purchase and use of injectable steroids without a prescription in April 2013 and May 2014 to gain muscle mass. Additionally, the applicant admitted to using marijuana on approximately ten occasions at various social events on campus between February 2011 and October 2013. The applicant also used ecstasy.

The judge determined that the applicant's drug involvement demonstrated poor judgment and unreliability, citing Disqualifying Conditions 25.(a) and 25.(c). The denial was based on the applicant's admitted history of using steroids, marijuana, and ecstasy, which was seen as indicative of poor judgment.

Crucially, the applicant failed to provide any mitigating evidence or rebuttal to the government's case, leading to the final decision to deny the security clearance.

Why the Applicant Was Denied

The applicant admitted to a history of illegal drug use, including steroids, marijuana, and ecstasy.
The applicant's drug use was characterized by poor judgment and unreliability.
The applicant did not provide any mitigating evidence or rebuttal to the government's case.

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

Key Rule Quoted

“A security clearance is a privilege, not a right.”

Procedural Posture

SOR issuedSep 18, 2015
Answer filedOct 16, 2015Applicant elected to have the case determined on a written record.
Hearing held—No hearing; case determined on written record.
Decision dateOct 18, 2016

Cite For

Denial of Security Clearance Due to Illegal Drug Use Under Guideline H
Lack of Mitigating Conditions for Drug Involvement
Importance of Demonstrating Reliability and Trustworthiness for Security Clearance Eligibility

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 judge found that the applicant engaged in illegal drug use, including marijuana, ecstasy, and injectable steroids, which raised significant concerns about his reliability and trustworthiness. The applicant's admissions and lack of mitigating evidence led to a decision against him on all allegations under Guideline H, resulting in the denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The Applicant has a history of illegal drug use that includes injectable steroids without a prescription, marijuana, and ecstasy.	Against Applicant	Prescription Stimulant Misuse	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	Applicant stated that in April 2013 and in May 2014, he purchased an eight week course of injectable steroids for the purposes of gaining muscle mass.	Against Applicant	Prescription Stimulant Misuse	Not Applicable	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.c	From February 2011 to October 2013, Applicant used marijuana on approximately ten occasions at various social events on campus.	Against Applicant	Marijuana	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—

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. 15-00285 ) ) Applicant for Security Clearance )

For Government: Gregg A. Cervi, Department Counsel For Applicant: Pro se

October 18, 2016

______________

STATEMENT OF CASE

______________

LOKEY ANDERSON, Darlene D., Administrative Judge:

Applicant submitted his Electronic Questionnaire for Investigations Processing dated June 30, 2014. (Government Exhibit 3.) On September 18, 2015, the Department of Defense (DoD) 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) effective within the Department of Defense after September 1, 2006.

Applicant responded to the SOR in writing on October 16, 2015, and 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 Applicant on or about December 4, 2015. Applicant received the FORM on December 10, 2015. Applicant was instructed to submit information in rebuttal, extenuation or mitigation within 30 days of receipt. Applicant did not submit a reply to the FORM. This case was assigned to the undersigned on September 13, 2016. Based upon a review of the pleadings and exhibits, eligibility for access to classified information is denied.

FINDINGS OF FACT

Applicant is 26 years old and unmarried. He has a Bachelor’s degree. He is employed by a defense contractor as a Software Engineer. He 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.

Applicant admitted the allegations set forth under this guideline. (See Applicant’s Answer to the SOR.) Applicant graduated from high school in June 2010, and then from college in September 2013. He has been working for his current employer since December 2013. He has never held a security clearance.

Applicant has a history of illegal drug use that includes injectable steroids without a prescription, marijuana, and ecstacy. Applicant stated that in April 2013 and in May 2014, he purchased an eight week course of injectable steroids for the purposes of gaining muscle mass. He paid approximately $300 for the steroids on each occasion. He believes the steroids had no effects on his personality or behavior and that since he is using them safely and responsibly there is no danger in the use.

In May or June 2011, he also used ecstacy in pill form, once at a social gathering in college and the other one at a night club. The pills were given to him by a friend. He states that the ecstasy pills made him feel good and relaxed. He states that he used it for experimental purposes and decided to stop using it on his own. (Government Exhibit 5.)

From February 2011 to October 2013, Applicant used marijuana on approximately ten occasions at various social events on campus. On each occasion he injested about four inhalations from a marijuana cigarette or pipe. He states that the marijuana made him relaxed and silly. Applicant was always given the marijuana he used and never had to purchase it. He did not feel that he was dependent on the drug.

When asked in his security clearance application dated June 30, 2014, what his future intentions about illegal drug use were, Applicant stated, “I don’t really care about it one way or the other. I felt no need or desire to take any.” (Government Exhibit 3.)

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)

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; and

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

Conditions that could mitigate security concerns:

None.

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 behavioral 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 illegal 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 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 not introduced persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome the Government's case under Guideline H of the SOR.

Applicant’s history of illegal drug use that began in 2011 and continued until at least 2014 shows poor judgment and unreliability. Applicant does not state that he is opposed to recreational drug use, in fact he states that he experimented with the drugs, and they helped him to relax. This recent use of illegal drugs call into question his maturity, character, judgment, and ability to abide by the law. Applicant’s behavior and attitude is inconsistent with being cleared for access to classified information. His conduct shows extreme immaturity and raises serious security concerns about his reliability and trustworthiness. 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. None of the mitigating conditions are applicable.

I have also considered the “whole-person concept” in evaluating the Applicant’s eligibility for access to classified information. He has not earned the privilege of holding a security clearance. There is no mitigating evidence in the record. There is no clear indication from the Applicant whether he will continue to use illegal drugs in the future or not. I am not convinced by his statement “I don’t really care about it one way or the other. I feel no need or desire to take any,” that he will not continue to use illegal drugs in the future. He has not demonstrated the level of maturity, and responsibility, expected of an employee who works for the defense industry and has access to classified information. He has not shown a pattern of following rules and regulations. In fact, he has violated the law and DoD policy, which prohibits illegal drug use. Applicant’s past illegal drug use is a clear indicator of poor judgment and unreliability that preclude him from security clearance eligibility at this time.

Under the particular facts of this case, the totality of the conduct set forth under all of the guidelines viewed as a whole, support a whole-person assessment of poor judgment, untrustworthiness, unreliability, a lack of candor, an unwillingness to comply with rules and regulations, and/or other characteristics indicating that the person may not properly safeguard classified information.

A security clearance is a privilege, not a right. In order to meet the qualifications for access to classified information, it must be determined that the Applicant is, and has been, sufficiently trustworthy on the job and in his everyday life to adequately protect the government’s national interest. Based upon the conduct outlined here, Applicant has fallen short of this requirement. He has demonstrated that he is not trustworthy, and he does not meet the eligibility requirements for access to classified information.

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

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: Against the Applicant. Subpara. 1.a.: Against the Applicant. Subpara. 1.b.: Against the Applicant. Subpara. 1.c.: Against the Applicant.

DECISION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for the Applicant.

Darlene Lokey Anderson Administrative Judge