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ISCR Case 15-05251.h1 — CASE

ISCR Case 15-05251.h1granted

Case Headnote

ISCR Case No. 15-05251.h1

grantedOct 10, 2017· Hon. Stephanie C. Hess· hearing

Summary

A 65-year-old meteorological equipment specialist was granted a security clearance despite concerns under Guideline H (Drug Involvement). The applicant had a history of marijuana use from 1979 to 1984 and again from November 2013 to June 2014, periods during which he held a security clearance. This included positive drug tests in October 1983 while in the Air Force and in June 2014 while working for a defense contractor.

The judge determined that the applicant successfully mitigated these concerns. Key factors included a significant period of abstinence from drug use since June 2014 and the successful completion of a substance abuse treatment program in September 2014.

Furthermore, the applicant demonstrated a credible commitment to avoid future drug use, which was supported by a positive recommendation from his supervisor. Based on these mitigating factors, the applicant was granted eligibility for access to classified information.

Why the Applicant Prevailed

The applicant demonstrated a significant period of abstinence from drug use since June 2014.
He successfully completed a substance abuse treatment program in September 2014.
The applicant's credible commitment to avoid future drug use was supported by his supervisor's positive recommendation.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedAny Substance Misuse
AG ¶ 25(f)raisedAny Illegal Drug Use While Granted Access to Classified Information or Holding a Sensitive Position

Mitigating

AG ¶ 26(a)appliedThe 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
AG ¶ 26(b)appliedThe 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

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the applicant’s meeting the criteria contained in the AG.”

Procedural Posture

SOR issuedMar 1, 2016
Answer filedMar 18, 2016
Hearing heldJan 11, 2017
Decision dateOct 10, 2017

Cite For

Mitigation of Drug Use Under Guideline H Due to Significant Time Elapsed Since Last Use
Successful Completion of a Substance Abuse Treatment Program as a Mitigating Factor
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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated security concerns related to his marijuana use from 1979 to 1984 and from November 2013 to June 2014, while holding a security clearance. The applicant's admissions and subsequent actions demonstrated a commitment to abstinence and responsibility, leading to a decision to grant eligibility for access to classified information.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	used marijuana on numerous occasions from 1979 until 1984, and between November 2013 and June 2014, while holding a security clearance	For Applicant	MarijuanaWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (f) any illegal drug use while holding a clearance or sensitive position	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	Claimed Acknowledgment and Remorse Documented Rehabilitation Evidence
1.b	tested positive for marijuana use in October 1983 while on active duty in the Air Force and in June 2014 while employed by a defense contractor	For Applicant	Drug Test FailureWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse (f) any illegal drug use while holding a clearance or sensitive position	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	Claimed Acknowledgment and Remorse Documented Rehabilitation Evidence

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: ) ) [REDACTED] ) ISCR Case No. 15-05251 ) ) Applicant for Security Clearance

For Government: Braden M. Murphy, Esq., Department Counsel For Applicant: Pamela B. Stuart, Esq.

10/10/2017 ______________

STATEMENT OF CASE

______________

HESS, Stephanie C., Administrative Judge:

Applicant mitigated the potential security concerns raised by his marijuana use from 1979 to 1984 and from November 2013 to June 2014, while holding a security clearance. Eligibility for access to classified information is granted.

Statement of the Case

Applicant submitted a security clearance application (e-QIP) on December 10, 2014. On March 1, 2016, the Department of Defense (DOD) sent him a Statement of Reasons (SOR), alleging security concerns under Guideline H. The DOD acted under Executive Order (Ex. Or.) 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 (AG) implemented by DOD on September 1, 2006.

Applicant submitted his Answer to the SOR on March 18, 2016, and requested a hearing before an administrative judge. Department Counsel was ready to proceed on April 18, 2016, and the case was assigned to me on September 26, 2016. On December 21, 2016, the Defense Office of Hearings and Appeals (DOHA) notified Applicant through counsel that the hearing was scheduled for January 11, 2017. I convened the hearing as scheduled. Government Exhibits (GX) 1 and 2 were admitted into evidence without objection. GX 3 through 5 were admitted over Applicant’s counsel’s objections. Applicant testified and Applicant’s Exhibit (AX) A was admitted without objection. DOHA received the transcript (Tr.) on January 23, 2017.

The SOR was issued under the AG implemented on September 1, 2006. The DOD implemented the amended AG on June 8, 2017, while this decision was pending. This decision will be decided based on the amended AG effective June 8, 2017. The outcome of this case would have been the same if decided based on the former AG.

FINDINGS OF FACT

Applicant is a 65-year-old meteorological equipment specialist employed by a defense contractor since 1984. He served on active duty in the U.S. Air Force from March 1978 until March 1984. He received an associate’s degree in electronic technology in May 1996. He was granted his first secret security clearance in 1978. (GX 1; GX 2; Tr. 37.)

Under Guideline H, the SOR alleges that Applicant used marijuana on numerous occasions from 1979 until 1984, and between November 2013 and June 2014, while holding a security clearance. The SOR further alleges that Applicant tested positive for marijuana use in October 1983 while on active duty in the Air Force and in June 2014 while employed by a defense contractor. Applicant admits each of the SOR allegations.

While stationed abroad on active duty in the Air Force between 1979 and 1984, Applicant recreationally used marijuana with other members of his squadron, including while attending weekend and holiday parties. (Tr. 79-80.) After he tested positive for marijuana during a random urinalysis in 1984, he was discharged from the military, receiving a general discharge under honorable conditions. During his 1986 background investigation, Applicant disclosed the circumstances surrounding his discharge from the Air Force, but denied his marijuana usage. (GX 4.) Subsequently, he was forthcoming about using marijuana while on active duty. Neither his discharge for marijuana usage nor his initial denial of that usage affected Applicant’s ability to maintain a security clearance. At the time of his discharge, Applicant’s squadron commander informed Applicant that if he stayed out of trouble, his discharge would be converted to an honorable discharge. (Tr. 61.) Applicant received a Certification of Military Service, dated August 20, 2014, which reflects his honorable discharge. (AX A.)

Applicant did not use marijuana between 1984 and November 2013. During the entire course of his employment as a defense contractor since 1984, Applicant was subjected to random drug screening. He underwent random screenings in 1986, 1989, and 1992, and passed each of these tests.

As a meteorologist equipment specialist, Applicant’s job requires him to climb 54- foot and 200-foot towers, as well as drive for hours to off-road sites. Beginning in 2010, Applicant began having difficulty sleeping and started experiencing neck stiffness during the workday. He attributed his stiff neck to improper positioning during sleep. Unable to sleep comfortably at night, Applicant was often sleepy during work, which began to concern began to concern Applicant and his supervisor about Applicant’s ability to perform his job safely. (Tr. 38-41; Tr. 46-53.)

At some point in 2012 or 2013, Applicant sought medical treatment for his sleep issues and neck pain. According to Applicant, the doctor determined that Applicant’s neck pain was the result of incorrect body-positioning while sleeping, and prescribed hydrocodone for the neck pain. Applicant was aware of the high rate of addiction to hydrocodone and was concerned about taking it. Additionally, he understood that while the hydrocodone could alleviate his pain, it would do nothing to resolve its underlying cause. Applicant chose not to use the hydrocodone on a regular basis, and “began to insist to the doctor that he send [Applicant] somewhere” to properly diagnose the source of Applicant’s pain. (Tr. 48-49.)

Applicant continued to have difficulty sleeping, which resulted in his increased concern over being able to safely perform his job duties. In November 2013, while continuing to pursue an accurate diagnosis and treatment for his neck pain and resolve his difficulty sleeping, Applicant began smoking marijuana nightly to induce sleep.

But knowing that it would let me get to sleep that’s when I started taking it mainly because I was afraid to climb and drive when I was in such a sleepy state because I could drop off… So it was bad enough driving, but the climbing was bad because if somebody else got hurt I couldn’t trust myself to aid them correctly. So that’s why I started smoking marijuana because I knew it would let me get some sleep. (Tr. 48-49.)

Applicant obtained the marijuana through neighborhood acquaintances who purchased it from third parties unknown to Applicant. (Tr. 69-70.)

Applicant continued to seek resolution through his doctor. In April 2014, after again complaining to his doctor of pain and sleeplessness, Applicant’s doctor sent Applicant for a magnetic resonance imaging (MRI) exam of his cervical spine. Applicant underwent a second MRI exam and an x-ray in May 2014. The exams revealed extensive damage to two cervical discs. Applicant was referred to a specialist and then to an orthopedic surgeon. In July 2014, Applicant underwent an anterior cervical discectomy infusion, wherein the two severely damaged discs were permanently removed and replaced with spacers and a plate. Following the surgery, Applicant was required to wear a neck brace and participate in physical therapy for approximately three months. Despite the discomfort from the surgery and the fact that Applicant “had to sleep sitting up in a chair, [he] was still getting more sleep than [he] did before [he] took the marijuana.” (Tr. 52-54.)

In June 2014, approximately two weeks before Applicant’s scheduled surgery, he was subjected to a random drug screening by his employer, which he failed. (Tr. 54.) He immediately informed his supervisor. (Tr. 59; AX A.) Applicant was placed on medical leave and agreed to participate in an employee assistance program for substance abuse. (GX 3.) The treatment program consisted of two-hour group counseling sessions every Thursday for three months, as well as intake and outgoing drug screening. Applicant successfully completed the treatment program in September 2014, and no further treatment was recommended. (AX A; GX 3.)

Applicant’s supervisor, who has known applicant for over 26 years and has been his supervisor for 17 years, states that Applicant “is highly trustworthy, loyal to the United States, exhibits strong ethics, and should be granted a clearance at the secret level.” Applicant’s supervisor has been aware for years of Applicant’s prior marijuana use and military discharge. Upon failing the random drug screening, Applicant self-reported to his supervisor. Applicant’s supervisor states:

Having been informed of these things by [Applicant], I have no concerns regarding his continued suitability for clearance to handle classified information. The incidents he reported to me appear to be isolated infractions and not indicative of any pattern of questionable behavior or judgment. In the 26 years that I have been working with him, I have not noticed any pattern of questionable judgment or behavior…Knowing all of these facts and [Applicant], I recommend him for a secret level security clearance without hesitation. (AX A.)

Applicant unequivocally stated that he has no intent to use marijuana in the future. (Tr. 54; AX A; Answer.) He further testified that if a medical condition again caused him significant pain, he would be more forceful in seeking medical treatment. (Tr. 73.) Applicant testified that his November 2013 to June 2014 self-medicating with marijuana was wrong. He no longer associates with people who use or sell marijuana, and avoids social settings where marijuana is being used. (Tr. 56; Tr. 74-75.) Although Applicant explained that his marijuana use was solely to help him sleep, he did not justify his conduct or make excuses for it. Applicant has not had any security incidents with his current employer of more than 33 years. He was sincere, candid, and contrite while testifying.

POLICIES

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 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.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended.

Eligibility for a security clearance is predicated upon the applicant’s meeting the criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available and reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “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). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005).

An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01- 20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Guideline H, Drug Involvement and Substance Misuse

The concern under this guideline is set out in AG ¶ 24:

The illegal use of controlled substances . . . 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.

Applicant’s admissions, corroborated by the record evidence, establish the potentially disqualifying conditions under this guideline:

AG ¶ 25(a) any substance misuse; and

AG ¶ 25(f) any illegal drug use while granted access to classified information or holding a sensitive position.

The following mitigating conditions may also apply:

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;

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 were drugs were used; and

(3) providing a signed a 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.

Applicant’s marijuana use can be characterized as having occurred under two distinct sets of circumstances and does not constitute a pattern. Applicant’s marijuana use over 30 years ago occurred when he was stationed overseas and recreationally used marijuana. He got caught, was disciplined, quit using marijuana, and moved on with his life. This conduct happened under circumstances that are unlikely to recur and do not cast doubt on his current reliability, trustworthiness, or good judgment. However, Applicant’s prior marijuana use must be considered when evaluating the potential security significance of his November 2013 to June 2014 marijuana use. Specifically, Applicant had empirical knowledge of the negative impact that using marijuana could have on his employment and security clearance. Despite this knowledge, Applicant opted to use marijuana for approximately seven months.

What distinguishes these two periods of marijuana use is Applicant’s motivation. When Applicant used marijuana as a young airman, he was partying with friends. However, when Applicant used marijuana from November 2013 until June 2014, he was seeking relief for a medical condition. Applicant began seeking medical treatment for his neck pain in 2011 or 2012. As his condition worsened, he was no longer able to sleep comfortably. Due to the physical demands of Applicant’s job, he became concerned that his lack of sleep could endanger his coworkers and himself. He was prescribed hydrocodone for pain, however, he was concerned about becoming addicted. He recognizes that his decision to use marijuana was a mistake.

Applicant’s last use of marijuana in June 2014 is not recent. The Directive does not define "recent," and there is no "bright-line" definition of what constitutes "recent" conduct. ISCR Case No. 03-02374 at 4 (App. Bd. Jan. 26, 2006). The Judge is required to evaluate the record evidence as a whole and reach a reasonable conclusion as to the recency of an applicant's conduct. ISCR Case No. 03- 02374 at 4 (App. Bd. Jan. 26, 2006). Applicant has successfully completed a treatment program, does not associate with people who use marijuana, and avoids social settings where marijuana is being used. He will not use marijuana in the future. Applicant has mitigated the Guideline H concern.

WHOLE PERSON CONCEPT

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. In applying the whole- person concept, an 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. An 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.

I have incorporated my comments under Guideline H in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under that guideline, but I have also considered the following: Applicant’s supervisor, who has worked with Applicant for more than 26 years, is aware of Applicant’s periods of marijuana use. He thinks that Applicant is trustworthy and should maintain his security clearance. Applicant accepts responsibility for his conduct and acknowledges that it was wrong. He has worked for the same employer without any security incidents since 1984. Applicant’s testimony was credible and sincere. His credibility was further bolstered by the fact that he passed three random drug screenings between 1984 and 1992, a period when Applicant states he did not use marijuana.

After weighing the disqualifying and mitigating conditions under Guideline H, and evaluating all the evidence in the context of the whole person, I conclude Applicant has mitigated the security concerns raised by his illegal drug use. Accordingly, I conclude he has carried his burden of showing that it is clearly consistent with the national interest to grant him eligibility for access to classified information.

FORMAL FINDINGS

As required by section E3.1.25 of Enclosure 3 of the Directive, I make the following formal findings on the allegations in the SOR:

Paragraph 1, Guideline H (Drug Involvement): FOR APPLICANT

Subparagraphs 1.a – 1.b: For Applicant

CONCLUSION

I conclude that it is clearly consistent with the national interest to grant Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted.

Stephanie C. Hess Administrative Judge