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ISCR Case 16-00130.h1 — CASE

ISCR Case 16-00130.h1granted

Case Headnote

ISCR Case No. 16-00130.h1

grantedMar 22, 2017· Hon. Carol G. Ricciardello· hearing

Summary

A 27-year-old male applicant with a bachelor's degree was granted a security clearance despite concerns raised under Guideline H (Drug Involvement), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct). The Statement of Reasons alleged that the applicant illegally used marijuana five times between September 2009 and October 2014, including after he had already been granted a security clearance.

Disqualifying conditions H.25(g), E.16(e), and J.31(c) were initially raised. However, the applicant successfully mitigated these concerns. He voluntarily disclosed his marijuana use on his security clearance application and demonstrated a significant period of abstinence, having not used marijuana since October 2014.

The applicant also expressed remorse for his past actions and showed an understanding of their significance. Mitigating conditions H.26(a), H.26(b), E.17(c), E.17(d), J.32(a), and J.32(d) were applied, leading the judge to grant eligibility for a security clearance.

Why the Applicant Prevailed

Applicant voluntarily disclosed his marijuana use on his security clearance application.
He has not used marijuana since October 2014, demonstrating a sufficient period of abstinence.
Applicant expressed remorse and understands the significance of his past actions.

Conditions Referenced

Disqualifying

H.25(g)raisedIllegal Drug Use After Being Granted a Security Clearance
E.16(e)raisedPersonal Conduct That Creates a Vulnerability to Exploitation
J.31(c)raisedAdmission of Criminal Conduct

Mitigating

H.26(a)appliedBehavior Happened so Long Ago or Was Infrequent
H.26(b)appliedDemonstrated Intent Not to Abuse Drugs in the Future
E.17(c)appliedOffense Is Minor or Unlikely to Recur
E.17(d)appliedAcknowledged Behavior and Taken Positive Steps
J.32(a)appliedTime Elapsed Since Criminal Behavior
J.32(d)appliedEvidence of Successful Rehabilitation

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural Posture

SOR issuedJun 10, 2016
Answer filedJul 11, 2016
Hearing heldMar 2, 2017
Decision dateMar 22, 2017

Cite For

Mitigation of Drug Involvement Under Guideline H
Successful Rehabilitation in Personal Conduct Cases
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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated the personal conduct concerns under Guideline E. The applicant's conduct was deemed to not raise questions about his reliability, trustworthiness, or good judgment, leading to a favorable decision for the applicant.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant used marijuana after he was granted a security clearance.	For Applicant	Questionable Judgment General	—	Denied	—	(c) offense is minor, long ago, infrequent, or unique circumstances (d) acknowledged the behavior; counseling/positive steps taken	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The applicant was found to have used marijuana five times from September 2009 to October 2014, including after being granted a security clearance. However, the judge determined that the applicant had mitigated the security concerns related to drug involvement due to the infrequency of use, the time elapsed since the last use, and the applicant's demonstrated intent not to use drugs in the future. The decision was granted, allowing the applicant to retain their security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Used marijuana five times from September 2009 to October 2014, including after being granted a security clearance.	For Applicant	MarijuanaWHILE CLEARED	Occasional	Admitted	(g) expressed intent to continue, or failure to commit to discontinue	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	Documented Abstinence Period Documented Documented Acknowledgment and Remorse
1.b	specific text not stated in this decision	For Applicant	Unspecified Drug InvolvementWHILE CLEARED	Unspecified	Unknown	—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant mitigated the security concerns related to criminal conduct. The applicant's illegal drug use was acknowledged, but the judge determined that sufficient time had elapsed since the last use, and the applicant demonstrated successful rehabilitation, leading to a favorable decision.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	Applicant illegally used marijuana five times from about September 2009 to October 2014.	For Applicant	Drug Related Criminal Charge	Conduct No Charge	Admitted	(c) currently on parole or probation	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (d) evidence of successful rehabilitation (time, restitution, employment, etc.)	Credited Passage of Time Credited Rehabilitation Evidence

Descriptive standardized rendering of a decided public case (Guideline J). 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. 16-00130 ) ) Applicant for Security Clearance

For Government: David Hayes, Esq., Department Counsel For Applicant: Pro se

03/22/2017 ______________

STATEMENT OF CASE

______________

RICCIARDELLO, Carol G., Administrative Judge:

Applicant mitigated the security concerns under Guideline H, drug involvement, Guideline E, personal conduct, and Guideline J, criminal conduct. Eligibility for a security clearance is granted.

Statement of the Case

On June 10, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued to Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline H, drug involvement, Guideline E, personal conduct, and Guideline J, criminal conduct. 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) effective within the DOD on September 1, 2006.

Applicant answered the SOR on July 11, 2016, and requested a hearing before an administrative judge. The case was assigned to me on January 5, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on February 13, 2017. I convened the hearing as scheduled on March 2, 2017. The Government offered exhibits (GE) 1 through 3. Applicant testified and offered Applicant Exhibits (AE) A through C. All exhibits were admitted into evidence without objection. DOHA received the hearing transcript (Tr.) on March 10, 2017.

FINDINGS OF FACT

Applicant admitted the allegations in the SOR ¶¶ 1.a, 1.b, and 3.a. He denied SOR ¶ 2.a. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is 27 years old. He is not married and has no children. He received a bachelor’s degree in 2012. He worked as an intern for a federal contractor while in college from 2008, during summer breaks and over holiday periods, until 2012. He completed a security clearance application (SCA) and was granted a security clearance in 2008, a requirement for his internship. After graduating from college, he worked for a different federal contractor. He was also self-employed , until May 2015, when he began working for his current employer, a federal contractor.1

As part of his present employment requirement, Applicant completed a security clearance application (SCA) in May 2015. In it, he disclosed that he had used marijuana about five times from September 2009 to October 2014. His use was recreational at social gatherings with friends. He further disclosed that he did not intend to use marijuana in the future and understood it was an illegal controlled substance.2 Applicant used marijuana after being granted a security clearance.

Applicant testified that he used marijuana four times during college and once two years later with a small gathering of friends. He was aware he held a security clearance when he used marijuana during his internship. He testified that he did not appreciate the significance of his actions at the time. He was aware of his employer’s anti-drug policy. He testified that he no longer associates with most people from college with whom he used marijuana. His girlfriend used it one time with him at the same social gathering, but he believed that was her only use. She does not use illegal drugs. Since October 2014 when Applicant last used marijuana, he has had infrequent contact with one other person with whom he used marijuana. That contact has been mostly through electronic media.3

Applicant was required to take a drug test for his current job and acknowledged his employer’s anti-drug policy. He also receives annual drug training. He testified that after graduating from college, he had a better appreciation for the significance of illegal drug use. He testified he does not intend to use illegal drugs in the future. He intends to respect the law. Applicant disclosed his prior drug use to his security manager and some of the security staff. He testified that he takes full responsibility for his actions. He disclosed his illegal drug use on his SCA because he believed it was important to be honest about it, as a matter of integrity.4

Applicant provided a character letter from his mother. She describes her son as a person who has overcome limitations of opportunities to advance his goals in life. He follows rules and was a good student. He is smart, dependable, thoughtful, honest, reliable and ethical. He willingly helps others, and he has a good work ethic.5

Applicant provided performance evaluations where he is described as an exceptional team member who willingly takes on extra work and is able to work on tasks at any level of complexity. His supervisor noted that he is fully accountable for every choice he makes and never seeks to avoid or shift responsibility to someone else. He can be trusted to act decisively, follow through on his commitments, and quickly correct any problems.6

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. Instead, 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. 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. AG ¶ 2(b) requires that “[a]ny 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. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, 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 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 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

AG ¶ 24 expresses the security concern for drug involvement:

Use 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.

I have considered the disqualifying conditions for drug involvement under AG ¶ 25 and the following are potentially applicable:

(a) any drug abuse;

(c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and

(g) any illegal drug use after being granted a security clearance.

Applicant illegally used marijuana five times from about September 2009 to October 2014 after being granted a security clearance. The above disqualifying conditions apply. I have considered the mitigating conditions under AG ¶ 26. The following are potentially applicable:

(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

(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; (4) a signed statement of intent with automatic revocation of clearance for any violation.

Applicant voluntarily disclosed his marijuana use on his 2015 SCA. He admitted he used it five times from September 2009 to October 2014. He was granted a security clearance as a college student while working for a federal contractor during the summer and on holiday breaks. He credibly testified that as a young college student, he did not fully appreciate the significance of his actions. He does not intend to use illegal drugs in the future. He understands the seriousness of his conduct while holding a security clearance and that use of illegal drugs is a violation of his employer’s drug policy. He no longer associates with most of those with whom he previously used marijuana. He used it with his girlfriend, but he believed she only used marijuana once. He has infrequent contact with one other person with whom he used marijuana. Applicant is remorseful for his conduct and understands its significance. It has been almost two and half years since his last use of marijuana. I find a sufficient period of time has elapsed, the conduct was infrequent, and it is unlikely to recur. Applicant has demonstrated his intention not to abuse any drugs in the future. I find AG ¶¶ 26(a) and 26(b) apply.

Guideline E, Personal Conduct

AG ¶ 15 expresses the security concern for personal conduct;

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying. I find the following potentially applicable:

(e) personal conduct, concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as engaging in activities which, if known, may affect the person’s personal, professional, or community standing.

Applicant used marijuana after he was granted a security clearance. AG ¶ 16(e) applies to Applicant’s conduct.

The guideline also includes conditions that could mitigate security concerns arising from personal conduct. I have considered the following mitigating conditions under AG ¶ 17:

(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; and

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur.

The same analyses under the drug involvement mitigating conditions apply under the personal conduct mitigating conditions. A sufficient period has elapsed since his last marijuana use. Applicant reported his actions, has matured, and understands the significance of his conduct. He is committed to not using illegal drugs in the future. Applicant provided sufficient evidence of successful rehabilitation, and future criminal conduct is unlikely to recur. AG ¶¶ 17(c) and 17(d) apply.

Guideline J, Criminal Conduct

AG ¶ 30 sets out the security concern relating to criminal conduct:

Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules and regulations.

I have considered the disqualifying conditions under criminal conduct AG ¶ 31 and the following is potentially applicable:

(c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted.

Applicant’s drug involvement was cross-alleged under the criminal conduct guideline. Applicant illegally used marijuana five times from about September 2009 to October 2014. The above disqualifying condition applies. I have also considered all of the mitigating conditions for criminal conduct under AG ¶ 32, and the following are potentially applicable:

(a) so much time has elapsed since the criminal behavior happened, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; and

(d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement.

The same analyses of facts under the drug involvement mitigating conditions apply under the criminal conduct mitigating conditions. In particular, a sufficient period has elapsed since Applicant’s last marijuana use, and he provided sufficient evidence of successful rehabilitation, such that future criminal conduct is unlikely to recur. AG ¶¶ 32(a) and 32(b) apply.

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.

I considered the potentially disqualifying and mitigating conditions in light of all facts and circumstances surrounding this case. I have incorporated my comments under Guidelines H, E, and J in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment.

Applicant is 27 years old. He voluntarily reported his marijuana use on his 2015 SCA. I found his testimony credible and forthright. He was granted a security clearance while he was a college student. He readily admitted he did not appreciate the significance of illegal drug use when he was in college and after being granted a clearance. Since then he has matured, takes full responsibility for his conduct, and understands his obligations for holding a security clearance. He does not intend to use illegal drugs in the future. It has been almost two and a half years since his last use. He is remorseful and regrets his conduct. I have given considerable weight to Applicant’s age at the time of the use and the fact he self-reported his conduct. I am confident that he will not abuse illegal drugs in the future. I find Applicant has met his burden of persuasion. I do not have questions about his reliability, trustworthiness, and good judgment. Overall, the record evidence leaves me with no questions or doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the drug involvement, personal conduct, and criminal conduct 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: FOR APPLICANT

Subparagraphs 1.a-1.b: For Applicant

Paragraph 2, Guideline E: FOR APPLICANT

Subparagraph 2.a: For Applicant

Paragraph 3, Guideline J: FOR APPLICANT

Subparagraph 3.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.

_____________________________ Carol G. Ricciardello Administrative Judge