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ISCR Case 15-04289.h1 — CASE

ISCR Case 15-04289.h1granted

Case Headnote

ISCR Case No. 15-04289.h1

grantedDec 27, 2016· Hon. Noreen A. Lynch· hearing

Summary

A security clearance was granted to an applicant despite concerns raised under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The Statement of Reasons detailed the applicant's past extensive use of marijuana and other drugs, including purchase and sale, and a positive marijuana test in the military in 2001. Additionally, the applicant used cocaine on multiple occasions between 2007 and 2011. Personal conduct issues included taking a computer keyboard without permission in 2009, which was destined for surplus, and taking a corporate-licensed disc from a trash can, which he later returned.

Disqualifying conditions H.1 and E.2 were raised, but mitigating conditions H.2, H.3, E.2, and E.3 were applied. The decision to grant the clearance was based on the applicant's demonstrated significant rehabilitation and maturity. He has maintained five and a half years of sobriety, completed a treatment program with a favorable prognosis, and presented credible evidence of positive changes in his life.

The judge concluded that the applicant's current reliability and trustworthiness outweighed his past conduct, leading to the favorable outcome.

Why the Applicant Prevailed

The applicant demonstrated significant rehabilitation and maturity since his past drug and alcohol use.
He has maintained five and a half years of sobriety and completed a treatment program with a favorable prognosis.
The applicant presented credible evidence of his positive changes and current reliability.

Conditions Referenced

Disqualifying

H.1raisedIllegal Drug Use
E.2raisedPersonal Conduct That Creates a Risk of Unauthorized Disclosure

Mitigating

H.2appliedThe Drug Involvement Was Not Recent and the Applicant Has Demonstrated a Clear Change in Behavior
H.3appliedThe Applicant Has Successfully Completed a Rehabilitation Program
E.2appliedThe Applicant Has Taken Steps to Mitigate the Concerns Regarding His Past Conduct
E.3appliedThe Applicant Has Shown Evidence of Good Judgment and Reliability Since the Incidents

Key Rule Quoted

“I conclude that the security concerns are resolved under the following mitigating conditions: AG ¶¶ 26(a), 26(b), and 26(d) and AG ¶¶ 17(d) 17(e) and 17(g).”

Procedural Posture

SOR issuedFeb 8, 2016
Answer filed—
Hearing heldNov 17, 2016
Decision dateDec 27, 2016

Cite For

Mitigation of Past Illegal Drug Use Under Guideline H
Evidence of Rehabilitation and Positive Change in Personal Conduct
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.

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's personal conduct concerns were mitigated by evidence of rehabilitation and a change in behavior. The applicant admitted to past illegal drug use and alcohol dependence but demonstrated significant personal growth and responsibility since that time, leading to a decision in his favor.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant's personal conduct in 2009 concerning the computer keyboard that he took home for his use was heading to surplus and he forgot to ask for permission, which would have been granted.	For Applicant	Rules Violation at Workplace	—	Admitted	—	(a) prompt, good-faith correction before being confronted (b) omission/refusal followed advice of counsel; later cooperated fully (d) acknowledged the behavior; counseling/positive steps taken	—
2.b	Applicant took a disc from a trash can and when he arrived home he realized that it required a corporate license to use. Despite the fact that he had that license, he decided he should return the disc.	For Applicant	Rules Violation at Workplace	—	Admitted	—	(a) prompt, good-faith correction before being confronted (b) omission/refusal followed advice of counsel; later cooperated fully (d) acknowledged the behavior; counseling/positive steps taken	—

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

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 illegal drug use, including marijuana and cocaine, but demonstrated significant rehabilitation and a commitment to sobriety. The applicant's positive changes and compliance with treatment were deemed sufficient to mitigate the security concerns, leading to a decision in favor of granting the security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant admitted to extensive use of marijuana and other drugs, including the purchase and sale.	Against Applicant	Marijuana	Regular	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence (d) satisfactory completion of treatment with a favorable prognosis	Documented Rehabilitation Evidence
1.b	In 2001, while in the military, Applicant tested positive for marijuana.	Against Applicant	Drug Test Failure	Not Applicable	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence (d) satisfactory completion of treatment with a favorable prognosis	Documented Rehabilitation Evidence
1.c	Applicant used cocaine at parties on multiple occasions from 2007 to 2011.	Against Applicant	Cocaine	Frequent	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence (d) satisfactory completion of treatment with a favorable prognosis	Documented Rehabilitation Evidence
1.d	Applicant completed a treatment program for alcohol and drug dependence.	Against Applicant	Treatment Failure	Not Applicable	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence (d) satisfactory completion of treatment with a favorable prognosis	Documented Substance Treatment Completed

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. 15-04289 ) Applicant for Security Clearance )

For Government: Benjamin Dorsey, Esq., Department Counsel For Applicant: John Berry, Esq.

12/27/2016 ______________

DECISION

______________

Lynch, Noreen A., Administrative Judge:

Applicant submitted a Questionnaire for National Security Positions (SF 86 Format) on October 17, 2014. On February 8, 2016, after reviewing the application and information gathered during a background investigation, the Department of Defense Consolidated Adjudications Facility, sent Applicant a statement of reasons (SOR), explaining it was unable to find that it was clearly consistent with the national interest to grant him eligibility for access to classified information. The SOR detailed the factual reasons for the action under the security guidelines known as Guideline H for illegal drug use and Guideline E for personal conduct. Applicant timely answered the SOR and requested a hearing. The case was assigned to me on June 29, 2016. The hearing was held as scheduled on November 17, 2016. At the close of the evidence and after closing arguments, I proposed to the parties that this case was appropriate for a summary disposition in Applicant’s favor. Applicant did not object. Department Counsel had 10 days to consider the matter and provided written notice that Department Counsel did not object. 2

When Applicant was young he admits making poor decisions concerning illegal drug use, prescription drugs, and on two occasions driving under the influence of alcohol. He admitted to extensive use of marijuana and other drugs, including the purchase and sale. He worked in an industry where such use was prevalent. He does not use that as an excuse, but recognizes that association with such individuals between 2001 and 2011 caused him legal problems and he did not think about potential negative consequences of his actions. He does not deny the seriousness of his case, but presents a case that clearly shows he has matured and changed his life. His use of illegal drugs decreased after 2007. His last use of illegal drugs and alcohol was in April 2011. He received his undergraduate degree and has been accepted into a graduate program. He obtained many certifications while working for a defense contractor. Applicant has had a stable employment and has received excellent performance reviews. He has not had any disciplinary issues. He participates in community activities. He does not frequent venues that might have customers who are using illegal drugs. He completed a treatment program. The program diagnosis of alcohol dependence and cocaine dependence has convinced Applicant that he cannot drink or use illegal drugs in the future. He signed a Statement of Intent not to use illegal drugs. He was credible when he testified that his prior behavior was illegal and destructive. He has no desire to retreat to that kind of destructive life. He has rehabilitated himself.

Applicant’s alcohol and drug program service plans reflect his active compliance with all treatment groups. At the conclusion of the seven month 2011 program, Applicant received a very favorable prognosis for continued sobriety and healthy living. After the initial program, Applicant continued with individual counseling and a support group. He has five and one-half years of sobriety. He acknowledged that he had a temporary position in 2008 for two months, when he was still using some illegal drugs and that position required a public trust. Members of Applicant’s family have seen a great change in him since he has been sober. He helps his family. His father wrote a letter describing his behavioral changes. His brother testified that he trusts Applicant with his two young children. He has a support system within his family. Applicant’s current supervisor testified that Applicant informed him during an interview about his past history of alcohol and drug use. Applicant was described as one of the top performers. He recommends him for a security clearance and cites to youthful mistakes and bad judgments.

Applicant presented as a responsible, sincere, remorseful young man who wants a second chance. He does not minimize the seriousness of his past history. He disclosed his past history in full and specific detail to the government on his security clearance application in 2014. He admits his embarrassment about his illegal actions and takes full responsibility for all his prior actions. He presented overwhelming mitigation. The government conceded that Applicant presented substantial mitigation, despite the prima facie case that was established.

Based on the record evidence as a whole, I conclude that Department Counsel presented sufficient evidence to establish the facts alleged in the SOR under Guidelines H and E. I also conclude that Applicant presented sufficient evidence to explain, extenuate, or mitigate the facts admitted by Applicant or proven by Department Counsel. In particular, I conclude that the security concerns are resolved under the following mitigating conditions: AG ¶¶ 26(a), 26(b), and 26(d) and AG ¶¶ 17(d) 17(e) and 17(g).

The concerns over Applicant’s history of drug use and alcohol do not create doubt about his current reliability, trustworthiness, good judgment, and ability to protect classified information. In reaching this conclusion, I weighed the evidence as a whole and considered if the favorable evidence outweighed the unfavorable evidence or vice versa. I also gave due consideration to the whole-person concept. Accordingly, I conclude that Applicant met his ultimate burden of persuasion to show that it is clearly consistent with the national interest to grant him eligibility for access to classified information. This case is decided for Applicant.

Noreen A. L:ynch Administrative Judge

FOOTNOTES

This case is adjudicated under Executive Order 10865, Safeguarding Classified Information within Industry, signed by President Eisenhower on February 20, 1960, as amended, as well as Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program, dated January 2, 1992, as amended (Directive). In addition, the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), effective within the Defense Department on September 1, 2006, apply here. The AG were published in the Federal Register and codified in 32 C.F.R. § 154, Appendix H (2006). The AG replaced the guidelines found in Enclosure 2 to the Directive prior to September 1, 2006 and a copy of these guidelines was provided directly to the Applicant in this case. Initially, at the hearing I asked Department Counsel if he objected. He quite correctly asked for time to consider the issue. He emailed me that he had no objection immediately, and I confirmed with him a few weeks later that he had no objection.

In 2001, while in the military, Applicant tested positive for marijuana. He received a general discharge under honorable conditions on the basis of his misconduct.

In 2003, he pled guilty to the misdemeanor of marijuana and was placed on six month probation.

Applicant used cocaine at parties on multiple occasions from 2007 to 2011. Applicant’s personal conduct in 2009 concerning the computer keyboard that he took home for his use was heading to surplus and he forgot to ask for permission, which would have been granted. He had permission to take an old monitor already.

Applicant took a disc from a trash can and when he arrived home he realized that it required a corporate license to use. Despite the fact that he had that license, he decided he should return the disc