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ISCR Case 15-04976.h1 — CASE

ISCR Case 15-04976.h1granted

Case Headnote

ISCR Case No. 15-04976.h1

grantedAug 17, 2017· Hon. Robert Robinson Gales· hearing

Summary

A 34-year-old defense contractor was granted a security clearance despite initial concerns under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct). The Statement of Reasons alleged that the applicant purchased, possessed, and used Oxycodone without a prescription from January 2002 until November 2009. This history raised disqualifying conditions related to drug involvement and criminal conduct.

However, the applicant successfully mitigated these concerns. He demonstrated a clear pattern of abstinence from drug use for nearly eight years, completing a prescribed drug treatment program and remaining under continuous medical supervision.

Furthermore, the applicant provided substantial evidence of positive changes in his lifestyle and submitted character references that supported his reliability. Based on this evidence of sustained abstinence, successful treatment, and positive character, the judge found that the applicant had successfully mitigated the security concerns, and his eligibility for a security clearance was granted.

Why the Applicant Prevailed

The applicant demonstrated a clear pattern of abstinence from drug use for nearly eight years.
He completed a prescribed drug treatment program and was under continuous medical supervision.
The applicant provided substantial evidence of positive changes in his lifestyle and character references supporting his reliability.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedSubstance Misuse
AG ¶ 25(c)raisedIllegal Possession of a Controlled Substance
AG ¶ 31(b)raisedEvidence of Criminal Conduct
AG ¶ 31(c)raisedCurrently on Probation

Mitigating

AG ¶ 26(a)appliedBehavior Unlikely to Recur
AG ¶ 26(b)appliedAcknowledgment of Drug Involvement and Actions Taken to Overcome It
AG ¶ 26(d)appliedSatisfactory Completion of a Drug Treatment Program

Key Rule Quoted

“The entire process is a conscientious scrutiny of a number of variables known as the 'whole-person concept.'”

Procedural Posture

SOR issuedDec 11, 2015
Answer filedJan 22, 2016
Hearing heldSep 21, 2016
Decision dateAug 17, 2017

Cite For

Mitigation of Drug Involvement Under Guideline H
Successful Rehabilitation and Abstinence From Substance Misuse
Impact of Character References on 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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated the security concerns regarding drug involvement and substance misuse. The applicant's history of Oxycodone use was acknowledged, but he demonstrated a significant period of abstinence and sought treatment, leading to a favorable decision for his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant purchased, possessed, and used Oxycodone without a prescription from January 2002 until November 2009.	For Applicant	Prescription Opioid Misuse	Regular	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (d) diagnosis of a substance use disorder	(b) acknowledges involvement; evidence of action; established abstinence (d) satisfactory completion of treatment with a favorable prognosis	Documented Substance Treatment Completed Documented Abstinence Period Documented Documented Severed Ties to Using Friends

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 judge found that the applicant mitigated the security concerns regarding criminal conduct. The allegations related to the applicant's past drug involvement and criminal conduct were ruled in favor of the applicant, leading to the granting of eligibility for a security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a–2.b	2 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant		Conduct No Charge		—	—	—

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. 15-04976 ) Applicant for Security Clearance )

For Government: Ross Hyams, Esquire, Department Counsel For Applicant: Pro se

08/17/2017 ______________

STATEMENT OF CASE

______________

GALES, Robert Robinson, Administrative Judge:

Applicant mitigated the security concerns regarding drug involvement and substance misuse and criminal conduct. Eligibility for a security clearance and access to classified information is granted.

Statement of the Case

On November 2, 2014, Applicant applied for a security clearance and submitted an Electronic Questionnaire for Investigations Processing (e-QIP) version of a Security Clearance Application.1 On December 11, 2015, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a Statement of Reasons (SOR) to him, under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended and modified; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended and modified (Directive); and the Adjudicative Guidelines for Determining Eligibility For Access to Classified Information (December 29, 2005) applicable to all adjudications and other determinations made under the Directive, effective September 1, 2006.2 The SOR alleged security concerns under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct), and detailed reasons why the DOD adjudicators were unable to find that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. The SOR recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

Applicant received the SOR on January 5, 2016. In a sworn statement, dated January 22, 2016, Applicant responded to the SOR and requested a hearing before an administrative judge. Department Counsel indicated the Government was prepared to proceed on June 1, 2016. The case was assigned to me on August 4, 2016. A Notice of Hearing was issued on August 31, 2016. I convened the hearing as scheduled on September 21, 2016.

During the hearing, three Government Exhibits (GE) 1 through GE 3, one Administrative exhibit, and six Applicant exhibits (AE) A through AE F were admitted into evidence without objection. Applicant testified. The transcript (Tr.) was received on September 29, 2016. I kept the record open to enable Applicant to supplement it. He took advantage of that opportunity and timely submitted a number of documents, which were marked and admitted as AE G through AE I, without objection. The record closed on October 19, 2016.

FINDINGS OF FACT

In his Answer to the SOR, Applicant admitted, generally comments, both of the factual allegations pertaining to drug involvement (¶¶ 1.a. and 1.b.) and criminal conduct (¶¶ 2.a. and 2.b.) of the SOR. Applicant’s admissions and comments are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact:

Applicant is a 34-year-old employee of a defense contractor. He has been a modelling autonomic communication environments (MACE) developer with the company since October 2014. He previously held a number of diverse full-time and part-time positions with a variety of other employers. He was a lawn care, landscaping, and decorative lighting specialist, a quality assurance technician, and a cashier. He also went through extensive periods of relatively short-term unemployment. He is a May 2001 high school graduate, and he earned an associate’s degree in December 2009 and a bachelor’s of science degree in August 2014. Applicant has never served in the U.S. military. He has never held a security clearance. He was married under common law, effective January 2009. He has one son from this relationship, born in 2008. Drug Involvement and Substance Misuse, and Criminal Conduct3

Applicant was a substance abuser whose choice of substances was Oxycodone, an opioid pain medication prescribed and used to treat moderate to severe pain. He was never prescribed Oxycodone. Applicant commenced purchasing and using Oxycodone, without a prescription, in January 2002, around his 20th birthday, when he was with his high school girlfriend (and eventual fiancée). At first, they split one tablet, but eventually they each took an entire tablet, and then sometimes two tablets. He enjoyed the euphoric feelings he derived from the drug (that lasted for up to six hours) and was still able to perform his normal duties. Within about two and one-half years later, he started snorting the substance instead of ingesting it. At one point, he snorted Oxycodone on an almost daily basis. Applicant usually purchased 20mg to 60mg of Oxycodone for each use, and he would spend $50 per day.

By late 2006, Applicant’s use of Oxycodone declined to “a handful of times per month (versus) a handful of times per week. However, at the beginning of 2009, a number of factors caused him, once again, to increase his usage to enable him to escape certain life problems. The factors he cited were the pressures associated with beginning college again; a newborn child; financial strain; and his grandfather’s terminal illness. Applicant acknowledged that Oxycodone did not allow him to reach his full potential as he could not follow through on things. He had no self-confidence, and that affected his employment. His use of Oxycodone contributed to his financial issues and earning ability.

Applicant’s use or possession of Oxycodone resulted in two incidents involving law enforcement authorities:

In April 2006, Applicant was arrested and charged with possession of a controlled substance after he was stopped by the police for a traffic infraction. A search of the vehicle revealed seven Oxycodone pills that Applicant had purchased earlier in the day through a friend. Applicant was eventually convicted of the charge, fined $4,500, and placed on supervised probation for two years;

On September 29, 2013, Applicant was stopped by police, arrested, and charged with unlawful possession of a controlled substance, a felony, and attempt to elude, a misdemeanor. A search of Applicant’s vehicle did not turn up any drugs, but the search of his passenger – a coworker and former source for Oxycodone – found a prescription bottle and plastic bag containing pills that were actually prescribed for his passenger. Nevertheless, Applicant was jailed overnight and eventually scheduled for trial when Applicant was unable to furnish the police with evidence against his passenger. The charge of unlawful possession of a controlled substance was reduced to illegal possession of a prescription drug, and the charge of attempt to elude was dismissed. On his plea, Applicant was convicted of the charge, fined, incarcerated for 365 days (suspended for the term of probation, and given credit for time served), ordered to perform 20 hours of community service, and placed on unsupervised probation for two years, commencing on November 12, 2015.4 It appears that Applicant is still on probation. Despite his plea, Applicant denied that he was involved in the drug possession charges, and he stated that he simply entered the plea because his attorney advised him that the deal calling for a simple violation of one charge would be better than a conviction on two criminal charges. Applicant completed his community service at the local animal shelter in February 2016,5 and paid off his fine in October 2016.6

Applicant’s Oxycodone misuse peaked in late 2009, and with encouragement from his wife, who does not use drugs, he sought treatment. In November 2009, Applicant underwent a complete physical examination and assessment by physicians and licensed practical nurses. He was diagnosed with opioid dependence, continuous (ICD-9-CM Diagnosis Code 304.01),7 and he was prescribed Suboxone®, used in the treatment of opioid addiction. Applicant was under the continuous medical supervision of the clinic from November 12, 2009 until at least April 30, 2015. During that period, he was administered routine drug tests and given physical examinations. He also attended several required sessions of Alcoholics Anonymous (AA). Applicant last used Oxycodone in early November 2009.8 Applicant’s last prescription for Suboxone® expired in early June 2015, and it was never renewed as he no longer needed it. Applicant does not have any cravings for Oxycodone.9 Applicant has dissociated himself for known drug users.

Applicant’s intentions regarding the future use of any illegal substance or medication that was not prescribed for him are unambiguous:10

I have been prescribed this medicine [since 2009] and I have been drug- free for the past 5 years. I will not say that it is the only reason I have not used drugs because that would be false, but I will say that it is a factor. I have no intention of ever using illegal drugs and hate just the thought of my mind being altered by them or even the euphoric feeling they may produce. My feelings toward having an altered state-of-mind are so strong that I rarely even drink alcohol. I have [consumed] alcohol maybe 5 times in the past 5 years. I even quit smoking cigarettes 3 years ago (after smoking them for at least 12 years) because I started hating them so much! I would just like to add that I never stole to try to pay for drugs or anything like that but I know that often people with drug problems will do such things. I know that continued use of drugs would have eventually taken everything I loved from me and it sends chills up my spine sometimes when I think about the fact that it could have happened to me. I feel like I lost a lot of time because of my use of this terrible substance and I refuse to lose even another minute to drugs. I deal with my problems in normal ways now and I plan on making the next 50 years of my life as drug-free as the last 5.

Character References

Applicant’s team lead and several coworkers are supportive of Applicant’s application for a security clearance. He is considered an enthusiastic, excellent, eager, reliable, diligent, dependable, supportive, cooperative, helpful, level-headed, and dedicated team member. He shares his skills, takes initiative, and gets along well with everyone. One test engineer is also a friend, and they share common extracurricular hobbies and interests. .Applicant’s personality is consistent in and out of the work place.11

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.”12 As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information. The President has authorized the Secretary of Defense or his designee to grant an applicant eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.”13

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the guidelines in SEAD 4. In addition to brief introductory explanations for each guideline, the guidelines list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an applicant’s eligibility for access to classified information.

An administrative judge need not view the guidelines as inflexible, ironclad rules of law. Instead, acknowledging the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. 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 meaningful decision. In the decision-making process, facts must be established by “substantial evidence.”14 The Government initially has the burden of producing evidence to establish a potentially disqualifying condition under the Directive, and has the burden of establishing controverted facts alleged in the SOR. Once the Government has produced substantial evidence of a disqualifying condition, under Directive ¶ E3.1.15, the applicant has the burden of persuasion to present evidence in refutation, explanation, extenuation or mitigation, sufficient to overcome the doubts raised by the Government’s case. The burden of disproving a mitigating condition never shifts to the Government.15

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 as well. It is because of this special relationship that the Government must be able to repose a high degree of trust and confidence in those 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 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. Furthermore, “security clearance determinations should err, if they must, on the side of denials.”16

Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”17 Thus, nothing in this decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism. It is merely an indication the Applicant has or has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. 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.

ANALYSIS

Guideline H, Drug Involvement and Substance Misuse

The security concern relating to the guideline for Drug Involvement and Substance Misuse is set out in AG ¶ 24: The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, and the use of other substances that cause physical or mental impairment or are used in a manner inconsistent with their intended purpose can raise questions about an individual's reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person's ability or willingness to comply with laws, rules, and regulations. Controlled substance means any "controlled substance" as defined in 21 U.S.C. 802. Substance misuse is the generic term adopted in this guideline to describe any of the behaviors listed above.

The guideline notes several conditions under AG ¶ 25 that could raise security concerns in this case: “(a) any substance misuse (see above definition); (c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and (d) diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of substance use disorder.”

Applicant purchased, possessed, and used Oxycodone without a prescription from January 2002 until November 2009. He was diagnosed by a duly qualified medical professional as opioid dependent, continuous. AG ¶¶ 25(a), (c), and (d) have been established.

The guideline also includes examples of conditions under AG ¶ 26 that could mitigate security concerns arising from Drug Involvement and Substance Misuse: AG ¶ 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; and AG ¶ 26 (b):

the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence, including, but not limited to: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; and (3) providing a signed statement of intent to abstain from all drug involvement and substance misuse, acknowledging that any future involvement or misuse is grounds for revocation of national security eligibility.

In addition, the “satisfactory completion of a prescribed drug treatment program, including, but not limited to, rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional,” is potentially mitigating under AG ¶ 26 (d). I have concluded that AG ¶¶ 26(b), and 26(d) apply, and AG ¶ 26(a) partially applies. Applicant’s substance abuse took place frequently, at times on a daily basis, when he purchased, possessed, and used Oxycodone without a prescription from January 2002 until November 2009. He stopped using Oxycodone nearly eight years ago when he decided to seek medical assistance. He was diagnosed with opioid dependence, continuous and he was prescribed Suboxone.® Applicant was under the continuous medical supervision of the clinic from November 12, 2009 until at least April 30, 2015, during which time he was administered routine drug tests and given physical examinations. He also attended several required sessions of AA. Applicant’s last prescription for Suboxone® expired in early June 2015, and it was never renewed as he no longer needed it. Applicant does not have any cravings for Oxycodone.

Applicant has dissociated himself from known drug users. The factors which led him to use Oxycodone no longer exist: being with his ex-fiancée, the pressures associated with beginning college again, a newborn child, financial strain, and his grandfather’s terminal illness. Applicant’s intentions regarding the future use of any illegal substance or medication that was not prescribed for him is unambiguous. He has provided substantial evidence of actions he has taken to overcome his drug problem, and he has established a clear pattern of abstinence. Applicant’s nearly eight years of sustained abstinence, and his intentions to remain abstinent should be encouraged. Applicant has presented a stable lifestyle with his wife and child, as well as a satisfactory employment record. Despite the negative aspects of his earlier behavior and actions, his more recent positive actions – for the past eight years – under the circumstances, no longer cast doubt on his current reliability, trustworthiness, and good judgment.

Guideline J, Criminal Conduct

The security concern relating to the guideline for Criminal Conduct is set out in AG ¶ 30: “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 guideline notes several conditions under AG ¶ 31 that could raise security concerns in this case: AG ¶ 31(b) “evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted” and AG ¶ 31(c) “individual is currently on parole or probation.”

In April 2006, Applicant was arrested and charged with possession of a controlled substance. He was eventually convicted of the charge, fined $4,500, and placed on supervised probation for two years. In September 2013, Applicant was arrested, and charged with unlawful possession of a controlled substance and attempt to elude. The charge of unlawful possession of a controlled substance was reduced to illegal possession of a prescription drug, and the charge of attempt to elude was dismissed. On his plea, Applicant was convicted of the charge, fined, incarcerated for 365 days (suspended for the term of probation, and given credit for time served), ordered to perform 20 hours of community service, and placed on unsupervised probation for two years, commencing on November 12, 2015. It appears that Applicant is still on probation. Applicant completed his community service and paid off his fine in 2016. AG ¶¶ 31(b) and 31(c) have been established.

The guideline also includes examples of conditions under AG ¶ 32 that could mitigate security concerns arising from Criminal Conduct: AG ¶ 32(a) “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; and AG ¶ 32(d) “there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement.”

I have concluded that AG ¶¶ 32(a) and 32(d) apply. Over ten years ago, Applicant engaged in criminal behavior that led to his arrest. He was convicted, fined $4,500, and placed on supervised probation for two years. Nearly four years ago, he was again arrested for criminal behavior. He was convicted, fined, incarcerated for 365 days (suspended for the term of probation, and given credit for time served), ordered to perform 20 hours of community service, and placed on unsupervised probation for two years. Both incidents involved police stops and drugs. Applicant acknowledged his 2007 criminal behavior. Although he entered a plea of guilty to a reduced charge in 2013, he steadfastly denied the allegations for which he was initially arrested and the one for which he was subsequently convicted. Four facts associated with the 2013 incident stand out: (1) the prescription drugs that were found on the passenger were prescribed for that individual; (2) no drugs were found on Applicant or elsewhere in his car; (3) the police authorities wanted Applicant to furnish evidence against the passenger, but he was unable to do so; and (4) Applicant was placed on unsupervised probation. The first three of those factors indicate that unusual circumstances were present, and the fourth factor seems to be the result of those other factors.

Two criminal incidents during a lifetime of 54 years is still two incidents too many. However, Applicant has turned his life around and now has a stable lifestyle; he has rehabilitated himself by avoiding further criminal activity for the past four years; he has established himself with his employer and coworkers, and is well-liked; and he has been a good and loving husband and father. And, not to be overlooked, Applicant has been abstinent since November 2009 – nearly eight years – and he no longer associates with substance abusers. I recognize that for the next three months, Applicant will still be on unsupervised probation. However, under the circumstances of this case, I do not consider his brief period of continued supervision to constitute a mandated disqualification for a security clearance. Applicant’s intentions regarding the future use of any illegal substance or medication that was not prescribed for him and other criminal conduct are unambiguous, and so is his vow to disassociate himself from other lawbreakers. Despite the negative aspects of his earlier behavior and actions, his more recent positive actions, under the circumstances, no longer cast doubt on his current reliability, trustworthiness, and good judgment.

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 SEAD 4, App. A, ¶ 2(d):

(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 SEAD 4, App. A, ¶ 2(c), the ultimate determination of whether to grant a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. Moreover, I have evaluated the various aspects of this case in light of the totality of the record evidence and have not merely performed a piecemeal analysis.18

There is some evidence against mitigating Applicant’s conduct. Applicant purchased, possessed, and used Oxycodone without a prescription from January 2002 until November 2009. He was diagnosed by a duly qualified medical professional as opioid dependent, continuous. He was arrested and convicted in 2006 and 2013 for drug-related charges.

The disqualifying evidence under the whole-person concept is more substantial. There is no evidence of misuse of information technology systems, or mishandling protected information. Applicant purchased, possessed, and used Oxycodone without a prescription from January 2002 until November 2009. He was diagnosed as opioid dependent, continuous. Applicant candidly acknowledged his lengthy and frequent illegal association with Oxycodone. He stopped using Oxycodone nearly eight years ago when he decided to seek medical assistance. Applicant was under the continuous medical supervision of the clinic from November 12, 2009 until at least April 30, 2015, during which time he was administered routine drug tests and given physical examinations. He also attended several required sessions of AA. Applicant’s last prescription for Suboxone® expired in early June 2015, and it was never renewed as he no longer needed it. Applicant does not have any cravings for Oxycodone.

Applicant has dissociated himself from known drug users. The factors which led him to use Oxycodone no longer exist. Applicant’s intentions regarding the future use of any illegal substance or medication that was not prescribed for him are unambiguous. He has provided substantial evidence of actions he has taken to overcome his drug problem, and he has established a clear pattern of abstinence. Applicant has presented a stable lifestyle with his wife and child, as well as a satisfactory employment record. He is within three months of being released from unsupervised probation. Despite the negative aspects of his earlier behavior and actions, his more recent positive actions – abstinence for the past eight years, and no criminal behavior or arrests for nearly four years – under the circumstances, no longer cast doubt on his current reliability, trustworthiness, and good judgment.

Overall, the evidence leaves me without questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all of these reasons, I conclude Applicant has mitigated the security concerns arising from his drug involvement and substance misuse and criminal conduct. See SEAD 4, App. A, ¶¶ 2(d)(1) through 2(d)(9).

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. and 1.b: For Applicant

Paragraph 2, Guideline J: FOR APPLICANT

Subparagraphs 2.a. and 2.b: For Applicant

CONCLUSION

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

________________________ ROBERT ROBINSON GALES Administrative Judge

FOOTNOTES

1 GE 1 (e-QIP, dated November 2, 2014). 2 Effective June 8, 2017, by Directive 4 of the Security Executive Agent (SEAD 4), dated December 10, 2016, National Security Adjudicative Guidelines (AG) for all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position, were established to supersede all previously issued national security adjudicative criteria or guidelines. Accordingly, those guidelines previously implemented on September 1, 2006, under which this security clearance review case was initiated, no longer apply. In comparing the two versions, there is no substantial difference that might have a negative effect on Applicant in this case. 3 The sources of the information regarding Applicant’s association with drugs are found in GE 1, supra note 1, at 48-53; GE 2 (Personal Subject Interview, dated February 24, 2015, at 4-6); and GE 3 (Federal Bureau of Investigation (FBI) Identification Record, dated November 4, 2014). 4 AE A (Plea Agreement and Order, dated November 12, 2015).

5 AE B (Community Service Completion Report, dated February 8, 2016).

6 AE C (Receipt, dated August 30, 2016); AE H (Receipt, dated October 14, 2016).

7 The International Classification of Diseases (ICD) is the standard diagnostic tool for epidemiology, health management and clinical purposes.

8 AE D (Medical Notes, various dates); AE E (Procedure Notes, various dates); AE F (Medical Notes, various dates).

9 Tr. at 39-40.

10 GE 1, supra note 1, at 51-52. 11 AE G (Character References, various dates).

12 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

13 Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended and modified. 14 “Substantial evidence [is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all contrary evidence in the record.” ISCR Case No. 04-11463 at 2 (App. Bd. Aug. 4, 2006) (citing Directive ¶ E3.1.32.1). “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994).

15 See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).

16 Egan, 484 U.S. at 531.

17 See Exec. Or. 10865 § 7. 18 See U.S. v. Bottone, 365 F.2d 389, 392 (2d Cir. 1966); See also ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006).