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ISCR Case 15-05229.h1 — CASE

ISCR Case 15-05229.h1denied

Case Headnote

ISCR Case No. 15-05229.h1

deniedOct 17, 2017· Hon. Eric H. Borgstrom· hearing

Summary

A 33-year-old electrical engineer was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The applicant had a history of illegal drug use, specifically marijuana, which he used on multiple occasions between 1998 and November 2012. Notably, he admitted to using marijuana a "few" times after his college graduation in December 2007, and some of this use occurred while he already held a Department of Defense security clearance.

The Statement of Reasons cross-alleged his illegal drug use as a personal conduct security concern, citing disqualifying conditions H.25(a), H.25(f), E.16(d), and E.16(e). The judge determined that the applicant's illegal drug use while holding a clearance raised significant security concerns.

Ultimately, the application was denied because the applicant failed to provide sufficient evidence of rehabilitation or changed circumstances to mitigate these concerns. Furthermore, his lack of candor regarding his drug use undermined his credibility, leading to ongoing doubts about his reliability and trustworthiness.

Why the Applicant Was Denied

Applicant's illegal drug use occurred while holding a security clearance, raising significant security concerns.
He did not provide evidence of rehabilitation or changed circumstances to mitigate the concerns.
Applicant's lack of candor regarding his drug use undermined his credibility.

Conditions Referenced

Disqualifying

H.25(a)raisedAny Substance Misuse
H.25(f)raisedAny Illegal Drug Use While Granted Access to Classified Information or Holding a Sensitive Position
E.16(d)raisedCredible Adverse Information That Is Not Explicitly Covered Under Any Other Guideline
E.16(e)raisedPersonal Conduct That Creates a Vulnerability to Exploitation

Key Rule Quoted

“Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

Procedural Posture

SOR issuedMar 4, 2016
Answer filedJun 23, 2016Applicant elected a decision on the written record.
Hearing held—No hearing; decision based on written record.
Decision dateOct 17, 2017

Cite For

Denial of Security Clearance Due to Illegal Drug Use While Holding a Clearance
Lack of Evidence for Rehabilitation in Drug Involvement Cases
Impact of Personal Conduct on 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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on the personal conduct concerns related to his illegal drug use. The applicant's marijuana use, including after being granted a security clearance, raised significant questions about his reliability and judgment, leading to a denial of eligibility for access to classified information.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	The SOR cross-alleges Applicant’s illegal drug use, including after having been granted a DOD clearance, as a personal conduct security concern.	Against Applicant	Pattern of Dishonesty or Rule Violations	—	Denied	(d) pattern of dishonesty, rule violations, or other untrustworthy behavior (e) personal conduct or concealment creating vulnerability to exploitation	—	—

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: denied

The judge found that the applicant's illegal drug use, specifically marijuana, raised significant security concerns. The applicant's admissions of continued use after being granted a security clearance, along with a lack of evidence demonstrating rehabilitation or changed circumstances, led to a denial of eligibility for access to classified information.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana on multiple occasions between 1998 and November 2012, and he admitted using marijuana on a “few” occasions after his college graduation [December 2007].	Against Applicant	MarijuanaWHILE CLEARED	Frequent	Denied	(a) any substance misuse (f) any illegal drug use while holding a clearance or sensitive position	—	—
1.b	specific text not stated in this decision	Against Applicant	Unspecified Drug Involvement	Unspecified	Unknown	—	—	—

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: ) ) [NAME REDACTED] ) ISCR Case No. 15-05229 ) ) Applicant for Security Clearance

For Government: Carroll Connelley, Esq., Department Counsel For Applicant: Pro se

10/17/2017 ______________

STATEMENT OF CASE

______________

BORGSTROM, Eric H., Administrative Judge:

Applicant did not mitigate the security concerns about his illegal drug use. Eligibility for access to classified information is denied.

Statement of the Case

On March 4, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline H (drug involvement) and Guideline E (personal conduct).1 Applicant responded to the SOR on June 23, 2016, and he elected a decision on the written record in lieu of a hearing. On August 22, 2016, Department Counsel submitted his file of relevant material (FORM) and provided a complete copy to Applicant. Applicant received the FORM on August 31, 2016. He was afforded an opportunity to respond within 30 days of its receipt, to file objections, and to submit material to refute, extenuate, or mitigate the security concerns. On September 29, 2016, Applicant responded to the FORM. The case was assigned to me on June 2, 2017. Procedural Issues

On August 10, 2017, I issued an order informing both parties that although the SOR referenced the adjudicative guidelines implemented by the DOD on September 1, 2006, I would be applying the revised adjudicative guidelines (AG) effective as of June 8, 2017, pursuant to Security Executive Agent Directive 4 (SEAD 4). I also permitted the parties to supplement the record with additional evidence and argument. Both parties acknowledged receipt of my order. Applicant submitted four exhibits, which were into evidence as Applicant Exhibits (AE) A-D without objection.2

In the FORM, Department Counsel references FORM Items 1-5.3 FORM Item 3 is an unauthenticated summary of an interview with a government investigator conducted on September 3, 2013. Department Counsel advised Applicant that he could object to FORM Item 3 and it would not be admitted, or that he could make corrections, additions, deletions, and update the document to make it accurate. Applicant was informed that his failure to respond to the FORM or to raise any objections may constitute waiver, and the evidence would be considered by me. Applicant responded to the FORM and did not file any objections. Given Department Counsel’s advisement and Applicant’s education, I find his waiver to be knowing and intelligent.4 FORM Items 2-5 are admitted into evidence as Government Exhibits (GE) 2-5, without objection.

FINDINGS OF FACT

The SOR alleges security concerns based upon Applicant’s marijuana use, including after having been granted a DOD security clearance. In his response to the SOR, Applicant neither clearly admits nor denies the alleged conduct. I therefore construed his answers as denials. After a thorough and careful review of the pleadings and exhibits, I make the following findings of fact:

Applicant is 33 years old. From August 2002 to December 2007, he attended college, earning a bachelor’s degree. He earned a master’s degree in May 2012. From May to August 2005, he was employed full time as an engineering intern for a DOD contractor. He was married in April 2016 and has no children.5 Since January 2008, he has been employed full time as an electrical engineer for a DOD contractor. Following the submission of a security clearance application (SCA) disclosing his prior illegal drug use, Applicant was granted a DOD interim secret clearance in March 2008, followed by a final secret clearance in June 2008. During the 2008 clearance investigation, Applicant disclosed he had no future intent to use illegal drugs.6

In July 2013, Applicant submitted an updated SCA and disclosed using marijuana on multiple occasions between June 1998 and November 2012. During his September 2013 security interview, he again admitted using marijuana on multiple occasions between June 1998 and November 2012. He also confirmed his understanding of the consequences of his illegal drug use, including a negative impact to his professional standing. In his May 2015 response to interrogatories, Applicant listed the date of his last use of illegal drugs as 2006.7

In his response to the SOR, Applicant neither admitted nor denied the specific allegations, but admitted generally that he had exhibited poor judgment by using marijuana. He referenced his work performance and cited excerpts of several performance reviews; however, he did not provide any documentary evidence.

In his response to the FORM, Applicant admitted that his marijuana use continued on a “few” occasions during the five years after his college graduation [December 2007] and that his last use was in November 2012.

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be used 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, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching 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 national security eligibility will be resolved in favor of the national security.” 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 to obtain 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 safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

Section 7 of EO 10865 provides that adverse 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 and Substance Misuse

The security concern for drug involvement 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 that could raise security concerns under AG ¶ 25. The following are potentially applicable in this case:

(a) any substance misuse (see above definition); and

(f) any illegal drug use while granted access to classified information or holding a sensitive position.

Applicant used marijuana on multiple occasions between 1998 and November 2012, and he admitted using marijuana on a “few” occasions after his college graduation [December 2007]. Because his employment with a DOD contractor began in January 2008 and he was granted a clearance in March 2008, it is reasonable to conclude that Applicant used marijuana on multiple occasions after having been granted a security clearance. The Government produced substantial evidence to raise the disqualifying conditions in AG ¶¶ 25(a) and 25(f).

Conditions that could mitigate the financial considerations security concerns are provided under AG ¶ 26. The following are potentially applicable:

(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

(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) provided 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.

The first prong of AG ¶ 26(a) (Ahappened so long ago@) focuses on whether the drug involvement was recent. There are no Abright line@ rules for determining when conduct is Arecent.@ The determination must be based on a careful evaluation of the totality of the evidence. If the evidence shows Aa significant period of time has passed without any evidence of misconduct,@ then an administrative judge must determine whether that period of time demonstrates Achanged circumstances or conduct sufficient to warrant a finding of reform or rehabilitation.@8

Applicant’s illegal drug use spanned over 14 years – beginning in high school, occurring in college, continuing into his employment with a DOD contractor and while possessing a security clearance, occurring during graduate school, and continuing until at least November 2012. Such conduct not only was illegal and violated DOD policies, but it also represented a breach of trust bestowed upon those entrusted with safeguarding classified information. Applicant has not presented any evidence about the circumstances leading to his more recent illegal drug use nor evidence of changed circumstances or conduct, thereby precluding a finding of reform or rehabilitation. Because his conduct casts doubt on his reliability and judgment, AG ¶ 26(a) does not apply. Applicant provided a signed statement of intent to abstain from future illegal drug use. Notably, he previously agreed to abstain from future drug use when he was granted a DOD clearance in 2008. His statement of intent is further undercut due to his lack of candor in his response to the drug interrogatories, in which he falsely indicated that his last use of illegal drugs was in 2006. Applicant’s answer and FORM response both focus on his professional achievements and fail to explain why he repeatedly used marijuana while possessing a clearance. Without more information as to the circumstances which led to his more recent marijuana use or his actions to put that conduct behind him, I cannot conclude that either the environment or circumstances have changed. Notwithstanding his statement of intent to cease further drug use, he has not provided evidence of actions he has taken to overcome his illegal drug use. AG ¶ 26(b) does not apply.

Applicant’s repeated marijuana use while possessing a DOD security clearance is a serious security concern. Notwithstanding his professional accomplishments, Applicant has not provided documentary evidence as to his changed circumstances, good judgment, and rehabilitation. Applicant did not mitigate the drug involvement and substance misuse security concerns.

Guideline E, Personal Conduct

The concern under this guideline is set out in AG ¶ 15:

Conduct involving questionable judgment, lack of candor, dishonesty or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified or sensitive information. . . .

The guideline notes several conditions that could raise security concerns under AG ¶ 16. The following disqualifying conditions are potentially applicable in this case:

(d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information. This includes, but is not limited to, consideration of . . . (3) a pattern of dishonesty or rule violations; and

(e) personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress by a foreign intelligence entity or other individual or group. Such conduct includes . . . (1) engaging in activities which, if known, could affect the person’s personal, professional, or community standing. The SOR cross-alleges Applicant’s illegal drug use, including after having been granted a DOD clearance, as a personal conduct security concern.9 Applicant’s marijuana use violated state and federal laws and violated DOD policies governing cleared personnel. Applicant acknowledged that his illegal drug use could affect his clearance and his career. There is no evidence that he has disclosed this information to his employer. AG ¶¶ 16(d)(3) and 16(e)(1) apply.

The following mitigating conditions under AG ¶ 17 are potentially relevant:

(c) the offense is so minor, or such much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; and

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.

Applicant’s repeated marijuana use while possessing a clearance is a serious breach of the DOD’s trust and demonstrates poor judgment. The paucity of evidence about the circumstances that led to his more recent marijuana use preclude a conclusion that those circumstances are unlikely to recur. AG ¶ 17(c) does not apply.

Applicant acknowledged that a positive drug test could have a significant impact on his professional standing. There is no evidence that he has revealed his illegal drug use while possessing a clearance to his employer, a DOD contractor, or that he has taken any steps to reduce his vulnerability to exploitation.10 AG ¶ 17(e) does not apply.

Applicant acknowledged the poor judgment displayed by his illegal drug use while possessing a security clearance, but also argues that he has never violated any security rules, regulations, or policies. To the contrary, his illegal drug use directly violated state and federal laws and DOD policies and breached the trust bestowed upon cleared personnel. Even if he has ceased his illegal drug use, concerns about his poor judgment and his vulnerability to exploitation remain. Applicant has not mitigated the personal conduct security concerns.

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 relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 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 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. I have incorporated my comments under Guidelines H and E and the factors in AG ¶ 2(d) in this whole-person analysis.

Applicant did not provide any documentary evidence demonstrating reform and rehabilitation in light of the serious breach of trust resulting from his marijuana use while possessing a security clearance. Moreover, there is no evidence that he has taken steps to reduce or eliminate his vulnerability to exploitation given the impact to his professional standing due to his misconduct. He did not adhere to his previous statements to cease further drug use and he was not forthright in his disclosures about his illegal drug use in response to the drug interrogatories. I conclude Applicant did not mitigate the drug involvement and personal conduct security concerns.

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: AGAINST APPLICANT

Subparagraphs 1.a.-1.b.: Against Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT

Against Applicant Subparagraph 2.a.

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the interests of national security to grant Applicant eligibility for a security clearance.11 Eligibility for access to classified information is denied.

_______________________ Eric H. Borgstrom Administrative Judge

FOOTNOTES

1 The action was taken under Executive Order (EO) 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 implemented by the DOD on September 1, 2006. 2 Hearing Exhibit I includes my order and the parties’ emails acknowledging receipt.

3 FORM Item 1 consists of the SOR and Applicant’s answer, which are pleadings and are included in the administrative record.

4 See ISCR Case No. 15-05252 at 3 (App. Bd. Apr. 13, 2016) (Applicant’s waiver of the authentication element must be knowing and intelligent.). See ISCR Case No. 12-10810 at 2 (App. Bd. Jul. 12, 2016) (“Although pro se applicants are not expected to act like lawyers, they are expected to take timely and reasonable steps to protect their rights under the Directive.”)

5 GE 2-3; Supplemental Response to FORM (Closing Argument). 6 GE 2, 3, and 5.

7 GE 2-4. 8 ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). 9 Although the Government argues in its FORM that Applicant falsified his interrogatory response, no such falsification was alleged in the SOR.

10 In his response to the FORM, Applicant references statements from the September 2013 security interview about his vulnerability to blackmail and coercion. These statements reflect Applicant’s responses to questions from the interviewer and not the interviewer’s conclusions. 11 See SEAD 4, Appendix A, ¶¶ 1(d) and 2(c).