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ISCR Case 15-01611.h1 — CASE

ISCR Case 15-01611.h1granted

Case Headnote

ISCR Case No. 15-01611.h1

grantedAug 11, 2016· Hon. Richard A. Cefola· hearing

Summary

A 28-year-old defense contractor was granted a security clearance despite concerns under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct). The allegations included admitted use of marijuana approximately 100 times from 2005 to 2011, cocaine three or four times between 2007 and 2010, Ecstasy three times from 2007 to 2010, hallucinogenic mushrooms twice from 2008 to 2009, and unprescribed Xanax once, Adderall three times, and Vicodin three times between 2006 and 2011. The applicant denied ever purchasing marijuana.

Additionally, the applicant admitted to two instances of criminal conduct. In December 2006, at age 19, he was arrested and charged with beer theft, resulting in a citation and fine. In March 2011, he was charged with public intoxication, which was subsequently dropped. The applicant acknowledged that his drug involvement also constituted criminal conduct.

The judge found that the applicant's drug involvement and criminal conduct had both ceased approximately five years prior to the decision and that his drug use was infrequent. The applicant demonstrated a commitment to abstain from future drug use, providing a signed statement of intent with an agreement for automatic clearance revocation upon any violation. These factors, along with positive behavioral changes, led to the favorable outcome.

Why the Applicant Prevailed

The applicant's drug involvement ended nearly five years ago and was infrequent.
He provided a signed statement of intent to avoid future drug use, with automatic revocation of clearance for any violations.
The applicant's criminal conduct also ended about five years ago, and he has shown positive behavioral changes.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedDrug Abuse
AG ¶ 31(a)raisedCriminal Conduct

Mitigating

AG ¶ 26(a)appliedBehavior Occurred Long Ago
AG ¶ 26(b)(4)appliedDemonstrated Intent Not to Abuse Drugs
AG ¶ 32(a)appliedTime Elapsed Since Criminal Behavior

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedNov 9, 2015
Answer filedDec 8, 2015
Hearing heldApr 5, 2016Applicant testified and submitted additional evidence.
Decision dateAug 11, 2016

Cite For

Mitigating Conditions for Past Drug Involvement Under Guideline H
Mitigating Conditions for Criminal Conduct Under Guideline J
Whole-person Concept in Security Clearance Evaluations

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's past drug involvement, which included the use of marijuana, cocaine, ecstasy, hallucinogenic mushrooms, Xanax, Adderall, and Vicodin, occurred several years ago and was infrequent. The applicant demonstrated a commitment to abstain from drug use in the future, which contributed to the decision to grant eligibility for a security clearance. Overall, the judge concluded that the applicant mitigated the security concerns related to drug involvement.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant admits that he used marijuana, “about 100 or so times,” from about December of 2005 to the “summer or early fall of 2011.”	For Applicant	Marijuana	Regular	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	—
1.b	Applicant admits that he used cocaine “three or four times” while attending parties from about January of 2007 to January of 2010.	For Applicant	Cocaine	Occasional	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	—
1.c	Applicant admits that he used Ecstasy three times from about January of 2007 to January of 2010.	For Applicant	MDMA	Occasional	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	—
1.d	Applicant admits that he used Hallucinogenic Mushrooms twice from about June of 2008 to February of 2009.	For Applicant	Psilocybin	Experimental	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	—
1.e	Applicant admits that he used Xanax once in 2007, Aderall three times from January 2006 to January of 2009, and Vicadine three times from January 2007 to January 2011, all without having prescriptions for their usage.	For Applicant	Benzodiazepine Misuse	Occasional	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	—
1.f–1.g	2 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)	For Applicant	Unspecified Drug Involvement	Unspecified		—	—	—
1.h	Applicant denies that he ever purchased marijuana.	For Applicant	Unspecified Drug Involvement	Not Applicable	Denied	—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The Administrative Judge found in favor of the Applicant regarding the criminal conduct allegations. The judge determined that the Applicant's past criminal behavior, which included a theft charge and a public intoxication charge, was sufficiently mitigated by the time elapsed since the incidents and the Applicant's demonstrated intent to avoid future criminal conduct.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant admits that in December of 2006, at the age of 19, he was arrested and charged for the theft of beer. He was cited and fined. (TR at page 34 line 10 to page 35 line 7, and at page 49 lines 17~21.)	For Applicant	Theft or Larceny	Conduct No Charge	Admitted	—	—	—
2.b	Applicant admits that in March of 2011, during Saint Patrick’s Day celebrations, he was charged with public intoxication. The charge was eventually dropped. (TR at page 35 line 15 to page 36 line 21, and at page 49 line 22 to page 52 line 4.)	For Applicant	Unspecified Criminal Conduct	Dismissed or Nolle Prossed	Admitted	—	—	—
2.c	Applicant admits that his Drug Involvement, noted in Paragraph 1 of the SOR, also constituted Criminal Conduct.	For Applicant	Drug Related Criminal Charge	Conduct No Charge	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline J). 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. 15-01611 ) ) Applicant for Security Clearance )

For Government: Jeff Nagel, Esquire, Department Counsel For Applicant: Sean Bigley, Esquire

August 11, 2016

______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Applicant submitted his Electronic Questionnaires for Investigations Processing (e-QIP) on November 7, 2012. On November 9, 2015, the Department of Defense (DOD) issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines H and J 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 acknowledged receipt of the SOR on November 30, 2015. He answered the SOR in writing through counsel (Answer) on December 8, 2015, and requested a hearing before an Administrative Judge. The Defense Office of Hearings and Appeals (DOHA) received the request soon thereafter, and I received the case assignment on March 15, 2016. DOHA issued a notice of hearing on March 16, 2016, and I convened the hearing as scheduled on April 5, 2016. The Government offered Exhibits (GXs) 1 through 4. Applicant’s counsel objected to GXs 2 and 4, which were admitted on a limited basis. (Transcript (TR) at page 12 line 14 to page 13 line 15, and at page 14 line 6 to page 15 line 16.) Applicant testified on his own behalf, as did his wife, and submitted Exhibits (AppXs) A through E, which were received without objection. DOHA received the transcript of the hearing on April 13, 2016. I granted Applicant’s request to keep the record open until April 12, 2016, to submit additional matters. On April 5, 2016, he submitted Exhibit F, which was received without objection. The record closed on April 13, 2016, the date the transcript was received. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is granted.

FINDINGS OF FACT

In his Answer to the SOR, Applicant admitted the factual allegations in Subparagraphs 1.b.~1.g., and 2.a.~2.c. of the SOR, with explanations. He denied the factual allegations in Subparagraphs 1.a. and 1.h. of the SOR. He also provided additional information to support his request for eligibility for a security clearance.

Guideline H - Drug Involvement

Applicant is 28 years old and has been employed by a defense contractor for more than four years. (TR at page 26 lines 14–23.) While attending college, at the age of nineteen and just prior to his present employment, he used a number of illegal substances, which will be delineated below. (TR at page 28 line 21 to page 30 line 11.) Since his present employment, he no longer associates with those fellow students with whom he did drugs. (TR at page 33 line 15 to page 34 line 9, and at page 48 lines 1–15.) This is also attested to by his wife. (TR at page 24 line 15 to page 25 line 1.) Applicant has submitted “a signed statement of intent with automatic revocation of his clearance” as to any illegal substance abuse. (AppX C.) He has also submitted an evaluation from a “Substance Abuse Professional,” who avers that Applicant “is trustworthy,” and that Applicant does not pose “any threat to public safety or the interest of national security.” (AppXs A and F.)

1.a. Applicant admits that he used marijuana, “about 100 or so times,” from about December of 2005 to the “summer or early fall of 2011.” (TR at page 40 line 19 to page 41 line 3, and Answer at pages1–2.)

1.b. Applicant admits that he used cocaine “three or four times” while attending parties from about January of 2007 to January of 2010. (TR at page 41 line 4 to page 42 line 2, and Answer at pages 2–3.)

1.c. and 1.d. Applicant admits that he used Ecstasy three times from about January of 2007 to January of 2010, and that he used Hallucinogenic Mushrooms twice from about June of 2008 to February of 2009. (TR at page 42 line 10 to page 43 line 10, and Answer at page 3.) 1.e.~1.g. Applicant admits that he used Xanax once in 2007, Aderall three times from January 2006 to January of 2009, and Vicadine three times from January 2007 to January 2011, all without having prescriptions for their usage. (TR at page 45 line 6 to page 46 line 5, and Answer at page 3.)

1.h. Applicant denies that he ever purchased marijuana. (TR at page 30 lines 12–16.)

Guideline J - Criminal Conduct

2.a. Applicant admits that in December of 2006, at the age of 19, he was arrested and charged for the theft of beer. He was cited and fined. (TR at page 34 line 10 to page 35 line 7, and at page 49 lines 17–21.)

2.b. Applicant admits that in March of 2011, during Saint Patrick’s Day celebrations, he was charged with public intoxication. The charge was eventually dropped. (TR at page 35 line 15 to page 36 line 21, and at page 49 line 22 to page 52 line 4.)

2.c. Applicant admits that his Drug Involvement, noted in Paragraph 1 of the SOR, also constituted Criminal Conduct.

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the revised adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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 the adjudicative process. The administrative judge’s over-arching adjudicative goal is a fair, impartial and commonsense decision. According to AG Paragraph 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.

The protection of the national security is the paramount consideration. AG Paragraph 2(b) requires that “[a]ny 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 Paragraph E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive Paragraph E3.1.15, the Applicant is responsible “to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The Applicant has the ultimate burden of persuasion as to obtaining a favorable security 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. Decisions include, by necessity, consideration of the possible risk 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.

Section 7 of Executive Order 10865 provides that decisions shall be “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

Guideline H - Drug Involvement

The security concern relating to the guideline for Drug Involvement is set out in Paragraph 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.

The guideline also notes several conditions that could raise security concerns. Under Subparagraph 25(a), “any drug abuse,” may be disqualifying. Here, the Applicant used drugs over a five year period ending the summer or early fall of 2011. However, I find two countervailing mitigating conditions that are applicable here. Under Subparagraph 26(a) it may be mitigating where “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.” Applicant’s past drug involvement occurred nearly five years ago. Furthermore, under Subparagraph 26(b)(4) it may also be mitigating where there is “a demonstrated intent not to abuse any drugs in the future, such as: (4) a signed statement of intent with automatic revocation of clearance for any violation.” Applicant has submitted such a declaration. (AppX C.) Drug involvement is found for Applicant. Guideline J - Criminal Conduct

Paragraph 30 of the adjudicative guidelines sets out the security concern relating to Criminal Conduct:

Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules and regulations.

The adjudicative guidelines set out certain conditions that could raise security concerns. Paragraph 31(a) provides that “a single serious crime or multiple lesser offenses,” may raise security concerns. Applicant was charged with theft in 2006, with public intoxication in 2011, and used illegal substances over a five year period ending the summer or early fall of 2011. However, I find the countervailing mitigating condition under Subparagraph 32(a) to be applicable, here. It may be mitigating when “so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment.” Applicant’s Criminal Conduct ended about five years ago, with his swearing off the use of illegal substances. Criminal Conduct is found for 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 the Applicant’s conduct and all the circumstances. Under AG Subparagraph 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 also consider the nine adjudicative process factors listed at AG Subparagraph 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 all of the evidence, including the potentially disqualifying and mitigating conditions surrounding this case. Those who know the Applicant in the workplace speak most highly of him. (AppXs B and E.) The record evidence leaves me without questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant has mitigated the security concerns arising from his admitted Drug Involvement and Criminal Conduct.

FORMAL FINDINGS

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, Guideline H: FOR APPLICANT

Subparagraphs 1.a.~1.h.: For Applicant

Paragraph 2, Guideline J: FOR APPLICANT

Subparagraph 2.a.~2.c.: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

Richard A. Cefola Administrative Judge