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ISCR Case 16-00056.h1 — CASE

ISCR Case 16-00056.h1granted

Case Headnote

ISCR Case No. 16-00056.h1

grantedAug 2, 2017· Hon. John Grattan Metz, Jr.· hearing

Summary

A 41-year-old software developer, employed by a defense contractor, was granted a security clearance despite concerns under Guideline H (Drug Involvement). The applicant admitted to using marijuana approximately three or four times per year from July 2007 to April 2014. This past use raised disqualifying conditions related to illegal drug involvement.

However, the applicant demonstrated a clear pattern of abstinence from illegal drug use since April 2014. He acknowledged that drug use is inconsistent with holding a security clearance and actively disassociated from drug-using contacts and environments.

The judge found that the applicant's recognition of the issue and his sustained abstinence mitigated the security concerns. Consequently, the security clearance was granted.

Why the Applicant Prevailed

The applicant demonstrated a pattern of abstinence from illegal drug use since April 2014.
He acknowledged the inconsistency of drug use with holding a security clearance.
The applicant disassociated from drug-using contacts and environments.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedAny Substance Misuse
AG ¶ 25(c)raisedIllegal Possession of a Controlled Substance
AG ¶ 25(g)raisedFailure to Clearly and Convincingly Commit to Discontinue Such Misuse

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

“The issue is not so much the seven years that he used marijuana recreationally, but his recognition that drug use is inconsistent with holding a clearance.”

Procedural Posture

SOR issuedJun 10, 2016
Answer filedJul 7, 2016Timely response to SOR.
Hearing held—Decision made without a hearing.
Decision dateAug 2, 2017

Cite For

Mitigation of Drug Involvement Under Guideline H
Pattern of Abstinence as a Mitigating Factor
Recognition of Drug Use Inconsistency with 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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's past marijuana use, which occurred approximately three to four times per year from July 2007 to April 2014, was infrequent and occurred in social settings. The applicant has not used marijuana since April 2014 and has taken steps to disassociate from drug-using contacts. The judge concluded that the applicant is unlikely to misuse drugs in the future, resulting in a decision to grant the security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana approximately three or four times per year from July 2007 to April 2014.	For Applicant	Marijuana	Occasional	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	Documented Abstinence Period Documented Documented Severed Ties to Using Friends Documented 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: ) ) XXXXXXXXXXXXXXXX ) ISCR Case No. 16-00056 ) Applicant for Security Clearance )

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

08/02/2017 ______________

STATEMENT OF CASE

______________

METZ, John Grattan, Jr., Administrative Judge:

Based on the record in this case. Applicant’s clearance is granted.

On 10 June 2016, the Department of Defense (DoD) sent Applicant a Statement of Reasons (SOR) raising security concerns under Guidelines H, Drug Involvement.2 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 07 September 2016, when Department Counsel stated no objection to Applicant’s response to the FORM. DOHA assigned the case to me 22 May 2017.

FINDINGS OF FACT

Applicant admitted the SOR allegation. He is a 41-year-old software developer employed by a defense contractor since October 2010. He was unemployed from July 2014 to October 2014, after being laid off from a company he had worked for since April 2000. He has not previously held a clearance, but now requires one for his employment.

Applicant used marijuana approximately three or four times per year from July 2007 to April 2014. He used in social settings and at concerts, and the marijuana was provided by a friend or fellow concert-goers. He reported his marijuana use on his December 2014 clearance application (Item 2), on which he was equivocal about his future intent, and confirmed it during an October 2015 subject interview with a Government investigator (Item 3), where he stated that he had no intent to use in the future but could not guarantee it because he lived in a state where marijuana use is legal. However, that was not true during most of the time he was using marijuana.

His Response to the FORM states that he will not use marijuana in the future. He also stated that he has not had any contact with his former marijuana associates since he started his new job.

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.3

ANALYSIS

The Government established a case for disqualification under Guideline H, by demonstrating Applicant’s illegal drug abuse between July 2007 and April 2014.4 However, Applicant mitigated the security concerns. Despite the length of Applicant’s illegal drug involvement, that drug history encompasses infrequent use in social settings surrounding his contacts at a previous employer. He stopped his marijuana use when he lost that job in April 2014. He has used no illegal drugs since April 2014.

Drug involvement mitigating conditions give substantial support to Applicant. His illegal drug abuse was infrequent, although lengthy. However, his last illegal drug use was April 2014, over two years ago. The issue is not so much the seven years that he used marijuana recreationally, but his recognition that drug use is inconsistent with holding a clearance. Further, he established a pattern of abstinence including disassociating himself from drug-using contacts and avoiding the environments where he used drugs in the past. Moreover, although he did not couch his Response in the exact language of the old guidelines, he clearly intended for his Response to constitute a statement of intent within that guideline. I consider that statement of intent, which is actually more restrictive than the current guidelines, sufficient indication that Applicant understands the potential consequences of any future drug use. I conclude Applicant is unlikely to abuse illegal drugs in the future. Accordingly, I resolve Guideline H for Applicant.

FORMAL FINDINGS

Paragraph 1. Guideline H: FOR APPLICANT

Subparagraph a: For Applicant

CONCLUSION

Under the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance granted.

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. See, Department of the Navy v. Egan, 484 U.S. 518 (1988).

¶25(a) any substance misuse; (c) illegal possession of a controlled substance . . .; (g) . . . failure to clearly and convincingly commit to discontinue such misuse.

¶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;