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ISCR Case 15-04661.h1 — CASE

ISCR Case 15-04661.h1granted

Case Headnote

ISCR Case No. 15-04661.h1

grantedFeb 3, 2017· Hon. Martin H. Mogul· hearing

Summary

A 24-year-old defense contractor, holding a Bachelor of Science degree in Mechanical and Aerospace Engineering, was granted a security clearance despite allegations of drug involvement under Guideline H. The Statement of Reasons detailed the applicant's admitted use of multiple substances. Specifically, the applicant used marijuana approximately 40 times between June 2010 and January 2014, and cocaine about 15 times from February 2013 to June 2014.

Further allegations included MDMA use approximately three times between December 2013 and July 2014, and unprescribed Adderall with varying frequency from June 2011 to October 2014. The applicant also used unprescribed Xanax about three times between May and June 2014, and purchased these substances from June 2010 to October 2014. Additionally, the applicant continued to associate with friends who use illegal drugs. Disqualifying conditions H.25.a and H.25.c were raised.

However, mitigating conditions H.26.a and H.26.b were applied. The clearance was granted because the applicant ceased all drug use before becoming a full-time employee, provided credible evidence of intent to abstain from illegal drug use, and the drug use was infrequent, occurred during college, and had no recent usage.

Why the Applicant Prevailed

The applicant ceased all drug use before becoming a full-time employee.
The applicant provided credible evidence of intent to abstain from illegal drug use in the future.
The applicant's drug use was infrequent and occurred during college, with no recent usage.

Conditions Referenced

Disqualifying

H.25.araisedAny Drug Abuse
H.25.craisedIllegal Drug Possession, Including Cultivation, Processing, Manufacture, Purchase, Sale, or Distribution

Mitigating

H.26.aappliedThe Behavior Was so Infrequent and Unlikely to Recur
H.26.bappliedA Demonstrated Intent Not to Abuse Any Drugs in the Future

Key Rule Quoted

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

Procedural Posture

SOR issuedFeb 5, 2016
Answer filedMar 8, 2016
Hearing heldJun 21, 2016
Decision dateFeb 3, 2017

Cite For

Mitigating Conditions for Infrequent Drug Use Under Guideline H
Demonstrated Intent to Abstain From Drug Use as a Mitigating Factor
Whole-person Concept in Evaluating 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: granted

The judge found that the applicant had used marijuana, cocaine, MDMA, Adderall, and Xanax, but concluded that the applicant had mitigated the security concerns related to drug involvement. All allegations under Guideline H were ruled in favor of the applicant, leading to the granting of the security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	used marijuana approximately 40 times between June 2010 and January 2014	For Applicant	Marijuana	Occasional	Admitted	—	(b) acknowledges involvement; evidence of action; established abstinence	—
1.b	used cocaine approximately 15 times between February 2013 and June 2014	For Applicant	Cocaine	Occasional	Admitted	—	—	—
1.c	used MDMA approximately 3 times between December 2013 and July 2014	For Applicant	MDMA	Occasional	Admitted	—	—	—
1.d	used Adderall without a prescription with varying frequency between June 2011 and October 2014	For Applicant	Prescription Stimulant Misuse	Not Applicable	Admitted	(a) any substance misuse	—	—
1.e	used Xanax without a prescription approximately 3 times between May 2014 and June 2014	For Applicant	Benzodiazepine Misuse	Occasional	Admitted	—	—	—
1.f	purchased marijuana, cocaine, MDMA, Adderall, and Xanax from approximately June 2010 to October 2014	For Applicant	Drug Distribution or Dealing	Not Applicable	Admitted	—	—	—
1.g	continues to associate with friends who use illegal drugs	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.

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. 15-04661 ) ) Applicant for Security Clearance )

For Government: Andrew Henderson, Esquire, Department Counsel For Applicant: Leon J. Schachter, Esquire

February 3, 2017

______________

STATEMENT OF CASE

______________

MOGUL, Martin H., Administrative Judge:

On February 5, 2016, 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 for SORs issued after September 1, 2006.

Applicant, through counsel, replied to the SOR (RSOR) in writing on March 8, 2016, and he requested that his case be decided by a hearing before an Administrative Judge. I received the case assignment on April 19, 2016. DOHA issued a notice of hearing on May 4, 2016, and I convened the hearing as scheduled on June 21, 2016.

At the hearing, the Government offered Exhibits 1 and 2, which were received without objection. Applicant testified on his own behalf, and submitted Exhibits A through P, which were also received without objection. Three additional witnesses testified on behalf of Applicant. The record was kept open until July 8, 2016, to allow Applicant to submit additional evidence. Three letters that were timely received have been identified and entered into evidence without objection as Exhibits Q, R, and S. DOHA received the transcript of the hearing (Tr) on June 29, 2016. Based upon a review of the pleadings, exhibits, and the testimony of Applicant and the other witnesses, eligibility for access to classified information is granted.

FINDINGS OF FACT

After a complete and thorough review of the evidence in the record, including Applicant's RSOR, the admitted documents, and the testimony of Applicant and the other witnesses, and upon due consideration of that evidence, I make the following findings of fact:

Applicant is 24 years old. He is unmarried, and he has no children. Applicant received a Bachelor of Science degree in Mechanical Engineering and Aerospace Engineering in 2014. Applicant is employed by a defense contractor, and he seeks a DoD security clearance in connection with employment in the defense sector. (Tr at 35- 36.)

Guideline H - Drug Involvement

The SOR lists seven allegations concerning drug usage and purchase (1.a. through 1.g.) under Adjudicative Guideline H. The allegations will be discussed in the same order as they were listed on the SOR:

1.a. The SOR alleges that Applicant, “used marijuana approximately 40 times between June 2010 and January 2014.” Applicant admitted this allegation in his RSOR.

At the hearing, Applicant confirmed that he used marijuana approximately 40 times from June 2010 to January 2014, so about once a month for 42 months. (Tr at 54.) He used the marijuana in his hometown, and at the two houses in which he was living while he was in college. (Tr at 56.)

1.b. The SOR alleges that Applicant, “used cocaine approximately 15 times between February 2013 and June 2014.” Applicant admitted this allegation in his RSOR.

During his testimony, Applicant confirmed the amount and frequency of his usage as alleged in the SOR. His cocaine usage occurred at his college house. (Tr at 55-56.)

1.c. The SOR alleges that Applicant, “used MDMA approximately 3 times between December 2013 and July 2014.” Applicant admitted this allegation in his RSOR.

Applicant also confirmed his MDMA or ecstacy usage on three occasions, at his college house or at a music festival. (Tr at 56-57.) 1.d. The SOR alleges that Applicant, “used Adderall without a prescription with varying frequency between June 2011 and October 2014.” Applicant admitted this allegation in his RSOR.

Applicant also testified that he used Adderall without a prescription. (Tr at 57-58.) He stated that he had previously been prescribed Adderall to help him focus while taking tests, but he did not want to continue having to go to a doctor to get a prescription, and his health insurance would not pay for the prescription, so he got the Adderalll from a friend. (Tr at 62-63.)

1.e. The SOR alleges that Applicant, “used Xanax without a prescription approximately 3 times between May 2014 and June 2014.” Applicant admitted this allegation in his RSOR.

Applicant also testified that he used Xanax without a prescription on three occasions at his college house. (Tr at 57.)

1.f. The SOR alleges that Applicant, “purchased marijuana, cocaine, MDMA, Adderall, and Xanax from approximately June 2010 to October 2014.” Applicant admitted in part and denied in part this allegation in his RSOR.

He did not have an estimate as to the amount he spent for the purchase of drugs, but he did testify that it was just through available funds, and it did not cause him any financial problems. (Tr at 69.)

1.g. The SOR alleges that Applicant, “continues to associate with friends who use illegal drugs.” Applicant denied this allegation in his RSOR.

Applicant testified that most of his usage of illegal drugs, or drugs without a prescription, occurred while he was a student. He did use Adderall without a prescription and MDMA one time while he was an intern at his present employer, before he became a full-time employee. He was still a student at this time. (Tr at 65-66, 70.) Applicant confirmed that around October 2014, during his fifth year in college, he stopped using all drugs. (Tr at 21-22.)

Mitigation

Applicant submitted a signed a letter, dated June 5, 2016, in which he wrote that he has no future intent to use any illegal controlled substance or abuse prescription drugs in the future, and he willingly will submit to random drug testing and to unqualified revocation of his security clearance in the event of any future drug usage. (Exhibit A.)

Applicant also talked about some of the activities in which he is engaged that are not compatible with his drug usage. These include rock climbing, running, and other forms of exercise. Applicant submitted evidence showing he has engaged in a 4 mile walk/run and also that he has joined a gym. Applicant also averred that he has made new friends during his fitness activities who do not, to his knowledge, abuse illegal drugs. (Tr at 27-32, Exhibits D, E.) Exhibit F establishes that Applicant was a volunteer for one day at a food bank.

As reviewed above, three witnesses testified on Applicant’s behalf. Two of the witnesses were co-workers and the third was a longtime friend. All of the witnesses believe that Applicant will not be using any illegal drugs in the future. (Tr at 77-92.) The witnesses also submitted character letters as well. (Exhibits N, O, P.) Several other positive and laudatory character letters were also submitted on Applicant’s behalf. (Exhibits G, H, L.)

A Biopsychosocial Assessment, prepared by a Licensed Social Worker (LSW), was offered into evidence. (Exhibit M.) This person opined “that although [Applicant] is two years out of college, he is sincere in his avowal to not engage in the use of mood or mind-altering substances in his life again.” There was some concern that this LSW did not know, or refer to in her report, the full extent of Applicant’s drug use history. However, upon careful review I find that the report was quite complete and thorough, specifically in paragraph nine of her report, Substance Abuse History, where most of Applicant’s drug history was discussed.

During Applicant’s testimony he conceded that his parents were not fully aware of his previous drug usage. After the hearing, he submitted letters, dated June 30, 2016, and signed by both of Applicant’s parents, in which they acknowledged that theat they are aware of the allegations in the SOR regarding Applicant’s drug history. They further wrote that while they are disappointed by his previous conduct, they do believe he has matured and they believe very highly in him. (Exhibit B.)

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 AG ¶ 2(a) describing the adjudicative process. The administrative judge’s over-arching 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.

The protection of the national security is the paramount consideration. AG ¶ 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 ¶ 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. . . .” The applicant 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. 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 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 judgement and because it raises questions about a person’s ability or willingness to comply with laws, rules and regulations.

With respect to Guideline H, the Government has established its case. Applicant's improper and illegal drug abuse, specifically the use of marijuana approximately 40 times and as recently as October 2014, while he was working for his current employer as an intern, is of great concern, especially in light of his continued desire to have access to the nation's secrets. Applicant's overall conduct pertaining to his illegal substance abuse clearly falls within Drug Involvement ¶ 25(a) “any drug abuse;” and (c) “illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution.” However, I find credible his testimony and his written statement that he intends to abstain from using marijuana or any illegal drug in the future. I also considered that Applicant stopped using any illegal drug before he became a full-time employee of his current employer.

Therefore, I conclude that ¶ 26(a) is applicable since “the behavior . . . was so infrequent” and “happened under such circumstances that it is unlikely to recur.” Also, ¶ 26(b) “a demonstrated intent not to abuse any drugs in the future,” including (3) “an appropriate period of abstinence;” and (4) “a signed statement of intent with automatic revocation of clearance for any violation,” is applicable and mitigating.

In this case, the Government has met its initial burden of proving that Applicant has used illegal drugs under Guideline H. Applicant, on the other hand, has introduced persuasive evidence in rebuttal, explanation, or mitigation, which is sufficient to overcome the Government's case against him. Accordingly, Guideline H of the SOR is concluded 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. 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.

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.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Based on all of the reasons cited above as to why the mitigating conditions are applicable and controlling, I find that the record evidence leaves me with no significant questions or doubts as to Applicant’s eligibility and suitability for a security clearance under the whole-person concept. For all these reasons, I conclude Applicant has mitigated the security concerns.

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: FOR APPLICANT

Subparagraph 1.a.: For Applicant Subparagraph 1.b.: For Applicant Subparagraph 1.c.: For Applicant Subparagraph 1.d.: For Applicant Subparagraph 1.e.: For Applicant Subparagraph 1.f.: For Applicant Subparagraph 1.g.: 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.

Martin H. Mogul Administrative Judge