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ISCR Case 15-00263.h1 — CASE

ISCR Case 15-00263.h1granted

Case Headnote

ISCR Case No. 15-00263.h1

grantedJan 12, 2017· Hon. John Grattan Metz, Jr.· hearing

Summary

A 38-year-old systems engineer was granted a security clearance despite concerns under Guideline H (Drug Involvement). The Statement of Reasons alleged that between July 1994 and July 2013, the applicant used marijuana and hashish at varying frequencies, and purchased user amounts of marijuana between July 1994 and April 2013. These allegations raised disqualifying conditions H ¶ 25 (a) and H ¶ 25 (c).

However, the decision applied mitigating conditions H ¶ 26 (a) and H ¶ 26 (b) due to the applicant's demonstrated rehabilitation. He made a conscious decision to discontinue illegal drug use in July 2013 and has maintained abstinence since October 2013, marking a significant period without drug use.

Furthermore, the applicant disassociated from drug-using associates and actively avoided environments where drugs were used. This commitment to a drug-free lifestyle and clear evidence of rehabilitation led to the granting of his security clearance.

Why the Applicant Prevailed

Applicant made a conscious decision to discontinue illegal drug use in July 2013.
He has not used illegal drugs since October 2013, demonstrating a significant period of abstinence.
Applicant disassociated from drug-using associates and avoided environments where drugs were used.

Conditions Referenced

Disqualifying

H ¶ 25 (a)raisedAny Drug Abuse
H ¶ 25 (c)raisedIllegal Drug Possession

Mitigating

H ¶ 26 (a)appliedBehavior Happened so Long Ago, Was Infrequent, or Unlikely to Recur
H ¶ 26 (b)appliedDemonstrated Intent Not to Abuse Drugs in the Future

Key Rule Quoted

“The presence or absence of a disqualifying or mitigating condition is not determinative for or against an applicant.”
— AG ¶ 2(a)

Procedural Posture

SOR issuedAug 28, 2015
Answer filed—
Hearing heldDec 1, 2016
Decision dateJan 12, 2017

Cite For

Mitigating Factors Under Guideline H for Drug Involvement
Demonstrated Intent Not to Abuse Drugs in the Future
Significant Period of Abstinence From Drug Use

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 judge found that the applicant had a history of marijuana use from 1994 to 2013 but made a conscious decision to discontinue illegal drug use in 2013. The applicant has not used illegal drugs since then and has taken steps to avoid drug-using environments and associates. The judge concluded that granting the security clearance was consistent with the national interest.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Between July 1994 and July 2013, Applicant used marijuana and hashish at varying frequencies.	For Applicant	Marijuana	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	Documented Abstinence Period Documented Documented Severed Ties to Using Friends Documented Signed Intent with Revocation Clause
1.b	Between July 1994 and April 2013, he purchased user amounts of marijuana.	For Applicant	Marijuana	Not Applicable	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	Documented Abstinence Period Documented Documented Severed Ties to Using Friends Documented Signed Intent with Revocation Clause
1.c	specific text not stated in this decision	For Applicant	Unspecified Drug Involvement	Unspecified	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	Documented Abstinence Period Documented Documented Severed Ties to Using Friends 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: ) ) XXXXXXXXXXXXXXXXXXX ) ISCR Case No. 15-00263 ) Applicant for Security Clearance )

For Government: Bryan J. Olmos, Esquire, Department Counsel For Applicant: Eric N. Eisen, Esquire

01/12/2017 ______________

STATEMENT OF CASE

______________

METZ, John Grattan, Jr., Administrative Judge:

Based on the record in this case, I grant Applicant’s clearance.

On 28 August 2015, the Department of Defense (DoD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline H, Drug Involvement. Applicant timely answered the SOR, requesting a hearing before the Defense Office of Hearings and Appeals (DOHA). DOHA assigned the case to me 19 October 2016, and I convened a hearing 1 December 2016. DOHA received the transcript (Tr.) 13 December 2016, and the record closed.

FINDINGS OF FACT

Applicant admitted the SOR allegations. He is a 38-year-old systems engineer employed by a defense contractor since September 2015. He held a similar position from February 2014 to September 2015. He has not previously held a clearance.

Between July 1994 and July 2013, Applicant used marijuana and hashish at varying frequencies (SOR 1.a-1.b). Between July 1994 and April 2013, he purchased user amounts of marijuana (SOR 1.c). Applicant fully disclosed his drug history on his August 2014 clearance application (GE 1).

Applicant began using marijuana in 1994, while in high school. He continued to use marijuana while in high school, during college, through his first post-graduate job, an internship, throughout graduate school, and during his post-doctoral fellowship (GE 1). In July 2013, facing his first real foray into the working world and his impending October 2013 wedding, Applicant made a conscious decision to 1) permanently discontinue illegal drug use, 2) end his contacts with his drug-using associates, and 3) avoid locations where drugs were likely to be used. He made this choice out of concerns for his health, family, and livelihood. He has used no illegal drugs since October 2013. He married, and he and his wife eventually moved to a new city to start their careers. They recently bought a house (Tr. 14).

Applicant has no ongoing contact with any of the people with whom he used illegal drugs. His work references—including current and former supervisors—(AE A), and his wife and mother (AE B) consider him honest and trustworthy. He has signed the statement of intent contemplated by the Directive (AE C).

POLICIES

The adjudicative guidelines (AG) list factors to be considered in evaluating an applicant’s suitability for access to classified information. Administrative judges must assess both disqualifying and mitigating conditions under each issue fairly raised by the facts and circumstances presented. Each decision must also reflect a fair and impartial commonsense consideration of the factors listed in AG ¶ 2(a). The presence or absence of a disqualifying or mitigating condition is not determinative for or against an applicant. However, specific adjudicative guidelines should be followed where a case can be measured against them, as they represent policy guidance governing the grant or denial of access to classified information. Considering the SOR allegations and the evidence as a whole, the relevant adjudicative guideline is Guideline H (Drug Involvement). . Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an applicant’s security clearance. The government must prove, by something less than a preponderance of the evidence, controverted facts alleged in the SOR. If it does, it establishes a baseline case against granting a clearance. Applicant must then refute, extenuate, or mitigate the government’s case. Because no one has a right to a security clearance, an applicant bears a heavy burden of persuasion.

Persons with access to classified information enter into a fiduciary relationship with the government based on trust and confidence. Therefore, the government has a compelling interest in ensuring each Applicant possesses the requisite judgement, reliability, and trustworthiness of those who must protect national interests as their own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an Applicant’s suitability for access in favor of the government.5

ANALYSIS

The Government established a case for disqualification under Guideline H, by demonstrating Applicant’s extensive illegal drug abuse between July 1994 and July 2013. However, Applicant mitigated the security concerns. Despite the extent of Applicant’s illegal drug involvement, that drug history encompasses periods when Applicant was in educational environments, his first exploratory jobs after college, and times when he was involved in music scenes where drug use was tolerated. However, after he obtained his doctorate and completed his post-doctoral degree, he decided that drug use was incompatible with the career and lifestyle he was embarking upon. He has used no illegal drugs since July 2013.

Drug involvement mitigating conditions give substantial support to Applicant. His illegal drug abuse was frequent, and covered an extensive period. However, his last illegal drug use was July 2013, over three years ago, in a different time and environment. The issue is not so much the 19 years that he used marijuana recreationally, but the clear-eyed decision he made as he approached an adult commitment to marriage and embarked on his adult career. Further, he demonstrated intent to not abuse drugs in the future by abstaining altogether for more than three years, disassociating himself from drug using contacts and avoiding the environments where he used drugs with friends, and executing the statement of intent contemplated by the Directive. I conclude Applicant is unlikely to abuse illegal drugs in the future. Accordingly, I resolve Guideline H for Applicant.

FORMAL FINDINGS

Paragraph 1. Guideline H: FOR APPLICANT

Subparagraph a-c: For Applicant

CONCLUSION

Under 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 Applicant. Clearance granted.

JOHN GRATTAN METZ, JR Administrative Judge

FOOTNOTES

Consisting of the transcript (Tr.), Government exhibit (GE) 1, and Applicant exhibits (AE) A-C.

DoD acted under Executive Order 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) effective within the DoD on 1 September 2006. Applicant obtained his undergraduate degree in June 2000.

Applicant obtained his master’s degree in April 2009; he obtained his doctorate in December 2012. See, Department of the Navy v. Egan, 484 U.S. 518 (1988).

¶25 (a) any drug abuse ; (c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia;

¶ 26 (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 [Emphasis supplied]; ¶ 26 (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;