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ISCR 15-07110.h1: Guideline H security clearance hearing, denied (2017) · CASE

ISCR Case 15-07110.h1denied

Case headnote

ISCR Case No. 15-07110.h1

deniedMar 20, 2017· Hon. Eric H. Borgstrom· hearing

Summary

A 29-year-old technician was denied a security clearance under Guideline H (Drug Involvement) due to a decade-long history of marijuana use. The applicant admitted to approximately 250 instances of illegal marijuana use between October 2004 and November 2014. This extensive history raised significant concerns regarding his reliability and judgment.

While the applicant reported a 20-month period of abstinence, the adjudicator found this insufficient to demonstrate rehabilitation. Disqualifying conditions under Adjudicative Guideline (AG) ¶ 25(a) were raised, while mitigating conditions under AG ¶ 26(a) and AG ¶ 26(b) were considered but ultimately not applied to overcome the concerns.

The denial was based on the applicant's prolonged drug involvement, his continued association with individuals with whom he had used marijuana, and a lack of sufficient evidence demonstrating an intent to avoid future drug use. Consequently, the security clearance application was denied.

Why the applicant was denied

The applicant's drug involvement spanned a decade, raising significant concerns about his reliability and judgment.
He continued to associate with individuals with whom he used marijuana, indicating a lack of reform.
The applicant did not provide sufficient evidence of an intent to avoid future drug use.

Conditions referenced

Disqualifying

AG ¶ 25(a)appliedDrug Abuse

Mitigating

AG ¶ 26(a)rejectedBehavior Happened so Long AgoThe applicant's drug use ended only 20 months before the decision, and he did not demonstrate changed circumstances.
AG ¶ 26(b)rejectedDemonstrated Intent Not to Abuse Drugs in the FutureThe applicant did not disassociate from drug-using associates or provide a signed statement of intent.

Key rule quoted

“"the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials."”
Department of Navy v. Egan, 484 U.S. 518, 531 (1988)

Procedural posture

SOR issuedMay 6, 2016
Answer filedMay 18, 2016
Hearing held—Decided on the written record.
Decision dateMar 20, 2017

Cite for

Denial of Security Clearance Due to Extensive Drug Involvement Under Guideline H
Insufficient Evidence of Rehabilitation and Intent to Avoid Future Drug Use
Consideration of the Whole-person Concept in Security Clearance Determinations

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 29: “Applicant is 29 years old.”
Tenure: ~7 years: “He has been gainfully employed as a technician since January 2010, including with a DOD contractor since May 2015.”

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 use of marijuana, which occurred approximately 250 times over a ten-year period, raised significant security concerns. Despite the applicant's claims of having ceased use and provided a letter of recommendation, the judge concluded that the applicant did not mitigate the concerns regarding his drug involvement, resulting in a denial of eligibility for a security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation

Descriptive standardized rendering of a decided public case. 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. 15-07110 ) ) Applicant for Security Clearance

For Government: Charles Hale, Esq., Department Counsel For Applicant: Pro se

03/20/2017 ______________

STATEMENT OF CASE

______________

BORGSTROM, Eric H., Administrative Judge:

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

Statement of the Case

On May 6, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline H, drug involvement. 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 (AG) implemented by the DOD on September 1, 2006.

Applicant responded to the SOR on May 18, 2016, and he elected to have the case decided on the written record in lieu of a hearing. On June 17, 2016, the Government submitted its file of relevant material (FORM) and provided a complete copy to Applicant. Applicant received the FORM on June 27, 2016. He was afforded an opportunity to respond to the FORM within 30 days of its receipt and to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant responded to the FORM on July 23, 2016. The case was assigned to me on February 17, 2016.

Procedural Issues

In the FORM, Department Counsel references FORM Items 1-4. FORM Item 3 is admitted into evidence as Government Exhibit (GE) 3, without objection.1

FORM Item 4 is an unauthenticated summary of a July 15, 2015 interview with a government background investigator. In the FORM, Department Counsel advised Applicant that he could object to FORM Item 4 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 could be constituted as a waiver, and the evidence would be considered by me. Applicant responded to the FORM, and he raised no objections. Given Department Counsel’s advisement and Applicant’s education and work experience, I find his waiver to be knowing and intelligent.2 Therefore, FORM Item 4 is admitted into evidence as GE 4, without objection.

Applicant’s response to the FORM included a cover letter and a letter of recommendation. These two documents are admitted into evidence as Applicant Exhibits (AE) A and B, without objection.

FINDINGS OF FACT

Applicant is 29 years old. He attended college from March 2012 to December 2014, and he received an associate’s degree. He has been gainfully employed as a technician since January 2010, including with a DOD contractor since May 2015.3

On his June 2015 security clearance application (SCA) and during his July 2015 security interview, Applicant admitted that he used marijuana every other week from October 2004 to November 2014. In his FORM response, Applicant recanted the frequency of his marijuana use and claimed that he has used marijuana approximately 100 times over this period. Given that Applicant listed his frequency of marijuana use on his SCA and during his security interview as “every other week” and admitted his drug use without clarification in his Answer, I find that he used marijuana about “every other week” or approximately 250 times during this ten-year span. He had multiple opportunities to correct or clarify his frequency of marijuana use prior to his FORM response and did not do so. He has continuing contact with the individuals with whom he used marijuana in the past.4

In his FORM response, Applicant included a letter of recommendation from a co- worker that highly praised his work performance and character. This letter does not indicate whether the co-worker was informed as to full extent of Applicant’s drug involvement.5

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. As noted by the Supreme Court in Department of Navy v. Egan, “the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.”6 Under Egan, EO 10865, and the Directive, any doubt about whether an applicant should be allowed access to classified information will be resolved in favor of protecting 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

The concern under this guideline is set out in AG ¶ 24: AUse of an illegal drug or misuse of a prescription drug can raise questions about an individual's reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person's ability or willingness to comply with laws, rules, and regulations.@ Drugs are defined in AG ¶ 24(a)(1) as A[d]rugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens).”

Disqualifying conditions under this guideline include:

AG ¶ 25(a): any drug abuse, defined in AG ¶ 24(b) as “the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.”

Between October 2004 and November 2014, Applicant illegally used marijuana approximately 250 times. AG ¶¶ 25(a) applies.

The Government established a case for disqualification, thereby shifting the burden to Applicant to produce evidence to rebut, explain, extenuate, or mitigate the facts.7 The following mitigating conditions are potentially relevant:

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): a demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence; and (4) a signed statement of intent with automatic revocation of clearance for any violation.

The first prong of AG ¶ 26(a) (Ahappened so long ago@) focuses on whether the drug involvement was recent. There are no bright-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

In the present case, Applicant’s admitted drug involvement spanned a decade, beyond his college education and well into his professional career. His regular marijuana use only ended 20 months before the close of the record. His illegal drug use violated federal and state law, and he continues to associate with the individuals with whom he used marijuana. Although he has changed his employment since his cessation of illegal drug use, there is no evidence of other changed circumstances or conduct sufficient to warrant a finding of reform or rehabilitation. Applicant’s conduct casts doubt on his reliability and judgment. AG ¶ 26(a) does not apply.

Juxtaposing Applicant’s 20-month period of abstinence against his 10-year period of regular marijuana use, he has not established an “appropriate period of abstinence.” He continues to associate with friends with whom he used marijuana, and there is no evidence that he avoids environments wherein he previously had used drugs. He has not provided a signed, sworn statement of intent not to use illegal drugs in the future. AG ¶ 26(b) does not apply.

Applicant’s lengthy drug history, insufficient evidence of reform and rehabilitation, and the absence of evidence that he has disassociated himself from other drug users, cast doubt as to his judgment and reliability. I find that drug involvement concerns remain.

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(a):

(1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (3) the frequency and recency of the conduct; (4) the individual’s age and maturity at the time of the conduct; (5) the extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. In light of all the facts, I have considered the potentially disqualifying and mitigating conditions, and I have incorporated my comments under Guideline H and the factors in AG ¶ 2(c) in this whole- person analysis.

Applicant voluntarily disclosed his drug use, and he has performed well during his employment with a DOD contractor. Nonetheless, the frequency and span of his marijuana use and his continued contact with his drug-using associates, leave doubts as to his reliability and good judgment. As a result, the totality of the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. I conclude Applicant did not mitigate the drug involvement 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

Subparagraph 1.a.: Against Applicant

CONCLUSION

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

________________________ Eric H. Borgstrom Administrative Judge

FOOTNOTES

1 FORM Items 1 and 2 consist of the SOR and Applicant’s response to the SOR. These documents are pleadings and are admitted into the record.

2 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.”).

3 GE 3. 4 GE 3; GE 4; AE A; AE B.

5 AE B.

6 Department of Navy v. Egan, 484 U.S. 518, 531 (1988). See Duane v. Department of Defense, 275 F.3d 988, 994 (10th Cir. 2002) (no right to a security clearance). 7 Directive ¶ E3.1.15. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005) (An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government.). 8 ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004).