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ISCR Case 15-08838.h1 — CASE

ISCR Case 15-08838.h1granted

Case Headnote

ISCR Case No. 15-08838.h1

grantedAug 11, 2017· Hon. Arthur E. Marshall, Jr.· hearing

Summary

A 36-year-old naval laborer was granted a security clearance despite concerns raised under Guideline H (Drug Involvement). The Statement of Reasons alleged that the applicant had used marijuana, an illegal substance, for many years. This raised a disqualifying condition under Adjudicative Guideline (AG) ¶ 25(a).

However, the decision found that mitigating conditions applied, specifically AG ¶ 26(a) and AG ¶ 26(b). The applicant demonstrated significant personal growth and a strong commitment to abstinence. He ceased all marijuana use in May 2014 and has maintained sobriety since then.

Further mitigating factors included the applicant establishing a stable family life and committing to providing a safe environment for his child. He also disassociated from former drug-using associates and clearly expressed his intent to remain drug-free. Based on these demonstrated changes and commitment, the security clearance was granted.

Why the Applicant Prevailed

The applicant ceased marijuana use in May 2014 and has not used since.
He has established a stable family life and committed to providing a safe environment for his child.
The applicant disassociated from former drug-using associates and expressed a clear intent to remain drug-free.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedAny Substance Misuse

Mitigating

AG ¶ 26(a)appliedBehavior Happened Long Ago or Infrequent
AG ¶ 26(b)appliedAcknowledgment of Past Drug Involvement and Established Pattern of Abstinence

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedJun 10, 2016
Answer filedJul 1, 2016Notarized response admitting the allegation.
Hearing held—Determination based on written record.
Decision dateAug 11, 2017

Cite For

Mitigation of Drug Involvement Under Guideline H
Importance of Personal Growth and Stability in Security Clearance Decisions
Disassociation From Drug-using Associates as a Mitigating Factor

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's past marijuana use raised security concerns under Guideline H, but these concerns were mitigated by the applicant's commitment to abstain from drug use, his disassociation from drug-using associates, and his demonstrated maturity and responsibility since quitting marijuana in May 2014. The applicant's overall conduct and circumstances led to a favorable decision regarding his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant disclosed that he used marijuana, an illegal substance, for many years.	For Applicant	Marijuana	Regular	Admitted	(a) any substance misuse	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	Claimed Acknowledgment and Remorse Claimed Severed Ties to Using Friends Claimed Signed Intent with Revocation Clause

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: ) ) -------------------- ) ISCR Case No. 15-08838 ) ) Applicant for Security Clearance

For Government: Tovah Minster, Esquire For Applicant: Pro se

08/11/2017 ______________

STATEMENT OF CASE

______________

MARSHALL, Jr., Arthur E., Administrative Judge:

Statement of the Case

On June 10, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline H (Drug Involvement).1 In a response notarized on July 1, 2016, he admitted the sole allegation raised and requested a determination based on the written record. On July 26, 2016, the Government issued a File of Relevant Material (FORM) with three attachments (“Items”). The case was assigned to me on June 1, 2017. Based on my review of the case file and submissions, I find Applicant mitigated drug involvement security concerns.

FINDINGS OF FACT

Applicant is a 36-year-old naval laborer (tester). He is a 1999 high school graduate. He served in the United States military from 1999 through 2002, then earned an associate’s degree in 2005.

Applicant was unemployed from mid-2015 through at least August 2015, following non-governmental contract work between 2013 and 2015 as a freelance laborer. He had another period of unemployment in 2012, after a former place of employment closed the division in which he provided support. Earlier work experience included a position in a printing shop. He supported himself through periods of unemployment by living off savings and his former spouse’s income, and earned his college degree under the GI Bill. He has no outstanding financial obligations. Applicant is a divorced father of one young child. He now lives with his girlfriend, after a notable period of time living with family and family friends.

Early in his high school education, in about July 1996, Applicant began using marijuana.2 As required, he later quit using marijuana while serving in the United States military (1999-2002). After his return to civilian life, he again began using marijuana while unemployed. He ultimately quit using the drug in May 2014, around the time he became a father and started to look for steady employment. Now 36 years old and in a settled relationship, he no longer associates with those individuals with whom he formerly used marijuana. 3 He no longer uses, nor desires to use, marijuana.

Applicant does not hide his past drug abuse. In writing, he has expressed his intent not to use illegal drugs or abuse non-prescribed drugs in the future, and he has noted that he is committed to providing a “safe and prosperous environment for [himself] and [his] family.” (FORM Response) He noted: “in no way will my previous drug use have any impact on my integrity, nor will any attempts of coercion sway me to betray the trust given to me.” (FORM Response) He understands the restriction and requirements regarding drug use applicable in this and in a military context, and acknowledges abstinence is necessary to maintain his employability in his present “professional endeavor.” (FORM Response)

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 used in evaluating an applicant’s eligibility for access to classified information.

These guidelines are not inflexible rules of law. Recognizing 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 decision.

The protection of the national security is the paramount consideration. Under the AG, any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security. 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 not drawn inferences grounded on mere speculation or conjecture.

The Government must present evidence to establish controverted facts alleged in the SOR. Under the Directive, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel and 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. The Government reposes a high degree of trust and confidence in those granted access to classified information. Decisions include, by necessity, consideration of the possible risk the applicant may deliberately or inadvertently fail to safeguard such information. Decisions shall be in terms of the national interest and do not question the loyalty of an applicant.

ANALYSIS

Guideline H, Drug Involvement and Substance Misuse

The security concern for this guideline is set forth in AG ¶ 24, where it is noted that the illegal use of a controlled substance, and the use of other substances that can 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. Such use also raises questions about a person’s ability or willingness to comply with laws, rules, and regulations.

Here, Applicant disclosed that he used marijuana, an illegal substance, for many years. This is sufficient to raise AG ¶ 25(a): any substance misuse. The Government’s substantial evidence, as provided by Applicant’s own admission, thus raises security concerns under Guideline H. Therefore, the burden shifts to Applicant to produce evidence to rebut, explain, extenuate, or mitigate related security concerns. To that end, Guideline H includes examples of conditions that could mitigate security concerns arising from drug involvement and substance misuse. The following mitigating conditions under AG ¶ 26 potentially apply to Applicant’s case:

(a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment;

(b) the individual acknowledges his or her past drug involvement and substance abuse, provides evidence of actions 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 refrain from all drug involvement and substance misuse, acknowledging that any future involvement or misuse is grounds for revocation of national security eligibility.

AG ¶ 26(a) applies for multiple reasons. Despite early years when he was apparently adrift in the world without goals, Applicant became drug-free over three years ago. This was a mature step he apparently took around the time he first accepted responsibility as a father and he had become sufficiently settled to look for a secure employment situation. He has made the commitment to forego illegal drugs, and he stands by that commitment as a matter of personal integrity. Now a mature, responsible man in his 30s, all indicators indicate he will be able to maintain that commitment.

AG ¶ 26(b) also applies for multiple reasons. Applicant, himself, honestly disclosed his past marijuana abuse on his security clearance application. He continues to admit to his past drug use, and does so without equivocation or contrived excuse. His background reflects a man who arrived late to maturity and professionalism. Since settling on a profession, becoming a father, and starting a new relationship, however, he has focused on his future rather than the moment. He no longer associates with those who shared his abuse of drugs. Moreover, he has written a FORM Response that includes, in spirit, if not by verbatim, the pivotal points enumerated in AG ¶ 26(b)(3) – specifically, a signed statement of intent not to use drugs in the future that acknowledges that any future failure will have negative professional repercussions.

WHOLE PERSON CONCEPT

Under the whole-person concept, one must evaluate security clearance eligibility by considering the totality of the applicant’s conduct and all relevant circumstances. Consideration shall be given to the nine adjudicative process factors listed in the AG. The final determination must be an overall commonsense judgment based on 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, and conducted a whole-person analysis based on the record. In addition to Applicant’s past drug use, I considered his education, past employment, military service, and family life in terms of the periods of his personal and professional development, as well as his credible FORM response.

Applicant is a 36-year-old naval yard worker who graduated from high school in 1999. During his underclassman years, he began using marijuana. He ceased using marijuana for his military service. He subsequently went back to the drug as an occasional, recreational user.

Around the time he became a father and decided to look for more stable employment after periods of unemployment, Applicant quit using marijuana for good. That was in May 2014. The facts reflect that Applicant has evolved and matured over the past few years. Now drug-free, he is devoted to his child, his new girlfriend, and his work. He has written credibly of his intent to remain drug-free in the future. He does not associate with his old drug-abusing friends, and he stays away from that milieu. Given these unique facts, I find that drug involvement and substance misuse security concerns have been mitigated.

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

Subparagraph 1.a: For Applicant

CONCLUSION

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

_____________________________ Arthur E. Marshall, Jr. Administrative Judge

FOOTNOTES

1 The action was taken 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 or after September 1, 2006. Since that time, the AG has been again amended, with little change to the guideline at issue, now referenced as Guideline H: Drug Involvement and Substance Abuse, and is now in effect for any adjudication on or after June 8, 2017. 2 While not alleged, Applicant also tried Ecstasy on one isolated occasion in his early 20s.

3 Applicant estimates he used marijuana about 200 to 500 times, cumulatively, between his mid-teens and when he quit marijuana use in early 2014. He characterizes that drug use as “recreational” and “occasional.” He never felt dependent on, or addicted to, the drug. He disclosed his drug use on his 2015 security clearance application. (see FORM, Item 2 (at 35) and Item 3 (at 5-6), and FORM Response)