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ISCR Case 15-06008.h1 — CASE

ISCR Case 15-06008.h1denied

Case Headnote

ISCR Case No. 15-06008.h1

deniedAug 11, 2017· Hon. John Grattan Metz, Jr.· hearing

Summary

A 53-year-old production planner for a defense contractor was denied a security clearance under Guideline H (Drug Involvement) due to a prolonged history of illegal marijuana use and purchases. The Statement of Reasons detailed that the applicant used marijuana at varying frequencies from June 1979 to August 2014, and purchased user amounts of the drug between February 2008 and October 2011. These actions raised disqualifying conditions H ¶ 25(a) and H ¶ 25(c).

The denial was based on several factors. The applicant's illegal drug use spanned 35 years, with his most recent use occurring in August 2014. Furthermore, he did not present evidence of concrete steps taken to manage his anxiety and stress without resorting to marijuana.

The judge also noted that the applicant's period of abstinence was less than two years at the time of the decision, and he continued to reside in an environment where drug use was present. Despite the applicant's acknowledgment of past use and stated intent to abstain, the judge found insufficient evidence of rehabilitation or a significant change in circumstances to mitigate the security concerns.

Why the Applicant Was Denied

The applicant had a long history of illegal drug use spanning 35 years, with recent use until August 2014.
He failed to provide evidence of steps taken to address his anxiety and stress without marijuana.
The applicant's pattern of abstinence was less than two years, and he continued to live in an environment where drug use occurred.

Conditions Referenced

Disqualifying

H ¶ 25(a)raisedAny Substance Misuse
H ¶ 25(c)raisedIllegal Possession of a Controlled Substance, Including Purchase

Key Rule Quoted

“The Government has a compelling interest in ensuring each applicant possesses the required judgment, reliability, and trustworthiness of those who must protect national interests as their own.”
— Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural Posture

SOR issuedAug 20, 2016
Answer filedDec 2, 2016Applicant requested a decision without hearing.
Decision dateAug 11, 2017

Cite For

Denial Based on Long-term Illegal Drug Use Under Guideline H
Insufficient Evidence of Rehabilitation or Change in Circumstances
Importance of Demonstrating a Pattern of Abstinence and Addressing Underlying Issues for Mitigating Conditions

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: denied

The judge found that the applicant's long history of marijuana use and illegal purchases raised significant security concerns under Guideline H. Despite the applicant's acknowledgment of past drug use and intent to abstain, the judge concluded that the applicant did not sufficiently mitigate these concerns, leading to a denial of the security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana at varying frequencies from June 1979 to August 2014.	Against Applicant	Marijuana	Regular	Admitted	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.b	He also bought user amounts of marijuana from February 2008 to October 2011.	Against Applicant	Drug Distribution or Dealing	Not Applicable	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—

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: ) ) XXXXXXXXXXXXXXXXXXXXX ) ISCR Case No. 15-06008 ) Applicant for Security Clearance )

For Government: Robert J. Kilmartin, Esquire, Department Counsel For Applicant: Pro se

08/11/2017 ______________

STATEMENT OF CASE

______________

METZ, John Grattan, Jr., Administrative Judge:

Based on the record in this case. I deny Applicant’s clearance.

On 20 August 2016, the Department of Defense (DoD) sent Applicant a Statement of Reasons (SOR) raising security concerns under Guideline H, Drug Involvement. Applicant timely answered the SOR, requesting a decision without hearing by the Defense Office of Hearings and Appeals (DOHA). The record in this case closed 2 December 2016, when Applicant’s response to the FORM was due. Applicant provided no additional documentation. DOHA assigned the case to me 8 August 2017.

FINDINGS OF FACT

Applicant admitted the SOR allegation. He is a 53-year-old production planner employed by a defense contractor since January 2015. He was previously employed by different defense contractors from August 1989 to June 2012, and from December 2012 to October 2014. He has not previously held a clearance. Apparently, neither of the two earlier jobs required a clearance, but he now requires one for his employment.

Applicant used marijuana at varying frequencies from June 1979 to August 2014. He also bought user amounts of marijuana from February 2008 to October 2011. He used marijuana at home, frequently with his wife, to help him deal with anxiety and stress. He occasionally used in social settings. He reported his marijuana use on his March 2015 clearance application (Item 2), on which he was unequivocal about his future intent, recognizing that continued marijuana use was incompatible with holding a clearance. He confirmed these statements during a May 2015 interview with a Government investigator (Item 3). He also stated that his wife stopped using marijuana when he did, and that he had not seen the friend from whom he bought the marijuana since 2013.

Applicant submitted no work or character references, and provided no evidence of any community involvement.

POLICIES

The AG list factors to evaluate a person’s suitability for access to classified information. Administrative judges must assess disqualifying and mitigating conditions under each issue fairly raised by the facts and situation presented. Each decision must also show a fair, impartial, and commonsense consideration of the factors listed in AG ¶ 2(d). The applicability of a disqualifying or mitigating condition is not, by itself, conclusive. However, specific guidelines should be followed when a case can be measured against them, as they are policy guidance governing the grant or denial of a clearance. Considering the SOR allegations and the evidence as a whole, the relevant adjudicative guideline is Guideline H (Drug Involvement).

Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an applicant’s security clearance. The Government must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, the burden shifts to applicant to refute, extenuate, or mitigate the Government’s case. Because no one has a right to a security clearance, the applicant bears a heavy burden of persuasion.

Persons with access to classified information enter into a fiduciary relationship with the Government based on trust and confidence. Therefore, the Government has a compelling interest in ensuring each applicant possesses the required judgment, reliability, and trustworthiness of those who must protect national interests as their own. The “clearly consistent with the national interest” standard compels deciding any reasonable doubt about an Applicant’s suitability for access in favor of the Government.5

ANALYSIS

The Government established a case for disqualification under Guideline H, by demonstrating Applicant’s illegal drug abuse between June 1979 and August 2014, and his illegal drug purchases between at least February 2008 and October 2011, and Applicant did not mitigate the security concerns. Applicant used marijuana for 35 years. His use was illegal at all times. His use covered periods that he was employed by defense contractors, and despite the fact that he did not hold a clearance, it is unlikely that either employer tolerated illegal drug involvement. Moreover, Applicant has only been drug free for little more than a year.

Drug involvement mitigating conditions give little support to Applicant. His illegal drug abuse was recent, occasionally frequent, and the facts do not support circumstances (stress, anxiety) unlikely to recur. The record contains no evidence of what steps Applicant has taken to address his stress and anxiety without using marijuana. Further, his pattern of abstinence is less than two years, and while he has disassociated himself from his supplier, he still lives with his wife in the environment where most of his use occurred. Finally, his strongly-stated disavowal of future use does not constitute a statement of intent, either within the old guidelines or the new guidelines. Under the circumstances, I cannot conclude Applicant is unlikely to abuse illegal drugs in the future. Accordingly, I resolve Guideline H against Applicant.

FORMAL FINDINGS

Paragraph 1. Guideline H: Against Applicant

Subparagraphs a-b: Against Applicant

CONCLUSION

Under the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance denied.

JOHN GRATTAN METZ, JR Administrative Judge

FOOTNOTES

Consisting of the File of Relevant Material (FORM), Items 1-3.

DoD acted under Executive Order 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) effective within the DoD on 1 September 2006. On 10 December 2016, the Director of National Intelligence (DNI) signed Security Executive Agent Directive 4, implementing new AG, effective with any decision issued on or after 8 June 2017. This decision is issued under the original AG, but I have examined the new AG to ensure that I would not reach a different result if I issued this decision under the new AG. I would not rule differently under either set of AG. On his March 2015 clearance application (Item 2), he stated that there were periods when he did not use for years at a time, and periods when he used several times weekly.

The drug use and drug purchase questions ask for use or purchase within the last seven years, but then ask specifically for the dates of first use and purchase. Applicant followed the instructions on his drug use, but limited his answer on his drug purchases to the last seven years, leaving open the issue of how he obtained his marijuana between June 1979 and February 2008. See, Department of the Navy v. Egan, 484 U.S. 518 (1988).

¶25(a) any substance misuse; (c) illegal possession of a controlled substance, including . . . purchase. . . :

¶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 [Emphasis supplied];

¶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) 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;