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ISCR Case 16-00167.h1 — CASE

ISCR Case 16-00167.h1denied

Case Headnote

ISCR Case No. 16-00167.h1

deniedMay 23, 2017· Hon. Jennifer I. Goldstein· hearing

Summary

A 30-year-old government contractor's security clearance application was denied due to concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The applicant used marijuana from June 2005 through at least May 2014, continuing this use even after being granted a security clearance in January 2011.

Further concerns arose because the applicant intentionally omitted his illegal drug use on both his November 2010 and April 2015 Electronic Questionnaires for Investigations Processing (e-QIPs). This omission was cited as a lack of candor, falling under Guideline E's disqualifying condition E.16(a), while the drug use itself raised Guideline H's disqualifying conditions H.25(a) and H.25(g).

The judge ultimately denied the application, concluding that the applicant failed to provide sufficient evidence of rehabilitation or other positive steps to mitigate the identified security concerns.

Why the Applicant Was Denied

Applicant used marijuana from June 2005 through at least May 2014, including after receiving a security clearance in January 2011.
Applicant intentionally omitted his drug use on his November 2010 and April 2015 e-QIPs, demonstrating a lack of candor.
The applicant failed to provide evidence of rehabilitation or positive steps to mitigate the security concerns.

Conditions Referenced

Disqualifying

H.25(a)raisedAny Drug Abuse
H.25(g)raisedAny Illegal Use After Being Granted a Security Clearance
E.16(a)raisedDeliberate Omission, Concealment, or Falsification of Relevant Facts

Key Rule Quoted

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

Procedural Posture

SOR issuedSep 20, 2016
Answer filedOct 6, 2016
Hearing heldFeb 8, 2017
Decision dateMay 23, 2017

Cite For

Failure to Mitigate Drug Involvement Under Guideline H
Failure to Provide Truthful Information Under Guideline E
Importance of Candor in Security Clearance Applications

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: denied

The judge found against the applicant on the personal conduct allegations, determining that he intentionally omitted relevant information regarding his illegal drug use on his security clearance applications. The applicant's conduct raised significant concerns about his reliability and trustworthiness, leading to the denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant intentionally omitted his illegal drug use on his November 2010 and April 2015 e-QIPs.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	Admitted	(a) deliberate omission, concealment, or falsification on a security form	—	—
2.b	Applicant intentionally omitted the full extent of his illegal drug use on his November 2010 and April 2015 Electronic Questionnaires for Investigations Processing (e-QIP).	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	Admitted	(a) deliberate omission, concealment, or falsification on a security form	—	—

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: denied

The judge found against the applicant on allegations of drug involvement, specifically regarding marijuana use. The applicant admitted to using marijuana with varying frequency from June 2005 through at least May 2014, including use after being granted a security clearance in January 2011. The judge concluded that the applicant failed to mitigate the security concerns associated with this drug use, leading to a denial of the security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Used marijuana with varying frequency from approximately June 2005 through at least May 2014.	Against Applicant	MarijuanaWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (g) expressed intent to continue, or failure to commit to discontinue	—	—
1.b	Continued to use marijuana after being granted a security clearance in January 2011.	Against Applicant	MarijuanaWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (g) expressed intent to continue, or failure to commit to discontinue	—	—

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. 16-00167 ) ) Applicant for Security Clearance )

For Government: Adrienne Driskill, Esq., Department Counsel For Applicant: Pro se

May 23, 2017 ______________

STATEMENT OF CASE

______________

GOLDSTEIN, Jennifer I., Administrative Judge:

Applicant failed to mitigate the Drug Involvement and Personal Conduct security concerns. Applicant used marijuana, with varying frequency, from June 2005 through at least May 2014, including use after receiving a security clearance in January 2011. He intentionally omitted the full extent of his illegal drug use on his November 2010 and April 2015 Electronic Questionnaires for Investigations Processing (e-QIP). Eligibility for access to classified information is denied.

Statement of the Case

On April 9, 2015, Applicant submitted an Electronic Questionnaires for Investigations Processing (e-QIP). On September 20, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline H, Drug Involvement, and Guideline E, Personal Conduct. The action was taken under Executive Order (EO) 10865, Safeguarding Classified Information Within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective after September 1, 2006.

Applicant responded to the SOR (Answer) on October 6, 2016, and requested a hearing before an administrative judge. The case was assigned to me on December 5, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on December 14, 2016, and the hearing was convened as scheduled on February 8, 2017. The Government offered Exhibits (GE) 1 through 3, which were admitted without objection. Applicant offered one exhibit, marked Applicant Exhibit (AE) A. Department Counsel had no objections to AE A, and it was admitted. Applicant testified on his own behalf. DOHA received the hearing transcript (Tr.) on February 16, 2017.

FINDINGS OF FACT

Under the guideline for Drug Involvement, SOR ¶¶ 1.a and 1.balleged that Applicant used marijuana with varying frequency from approximately June 2005 through at least May 2014; and that he continued to use marijuana after being granted a security clearance in January 2011. In his Answer and during his testimony, Applicant admitted both of these allegations. Under the guideline for Personal Conduct, the SOR alleged that Applicant falsified material facts relating to his marijuana use on his November 2010 and April 2015 e-QIPs. Applicant admitted both allegations. (Answer) The relevant facts are as follows:

Applicant is a 30-year-old employee of a government contractor. He has worked for his present employer for seven years. He holds a security clearance. He is single and has no children. (GE 1; GE 2; Tr. 15-18.)

Applicant used marijuana from approximately June 2005 through at least May 2014. He first used marijuana in June 2005, at the age of 19 while he was in college. His used it approximately twice per year over his four years of college. He did not purchase marijuana. After college, he used marijuana once, at a bachelor party in 2014. He was aware that drug use was illegal and that it violated his employer’s workplace drug policy. He testified that he has no intention to use marijuana in the future. (GE 3; Tr. 18-24, 27.)

Applicant admitted he intentionally omitted his drug use on his November 2010 and April 2015 e-QIPs, when he was asked to disclose his illegal use of controlled substances in the previous seven years. He testified that he was scared to list it on the 2015 e-QIP. (Answer; GE 1; GE 2; GE 3; Tr. 24-29.)

Applicant presented a 2016 performance review. It reflects he is a valued employee with “strong leadership characteristics.” (AE A.)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions (DCs) and mitigating conditions (MCs), 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, these guidelines are applied in conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶¶ 2(a) and 2(c), the entire process is a conscientious scrutiny of applicable guidelines in the context 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 the 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 avoided drawing 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, “[t]he 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, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7 of Executive Order 10865 provides: “[a]ny determination under this order adverse to an applicant shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”

A person applying for access to classified information seeks to enter 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 protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

ANALYSIS

Guideline H, Drug Involvement

AG ¶ 24 expresses the security concern pertaining to 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 all of the evidence in this case and the disqualifying conditions under Drug Involvement AG ¶ 25, and the following are potentially applicable:

(a) any drug abuse; and

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

The Government presented sufficient information to support the factual allegations under SOR ¶¶ 1.a and 1.b. Applicant used marijuana, with varying frequency, from June 2005 through at least May 2014, including use after receiving a security clearance in January 2011. His drug abuse and drug use after being granted a security clearance raise security concerns under the above disqualifying conditions, and shift the burden to Applicant to rebut, extenuate, or mitigate those concerns.

I have considered all of the evidence in this case and the mitigating conditions under Drug Involvement AG ¶ 26, and 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’s use of marijuana through at least 2014 is recent. His marijuana use did not occur under unusual circumstances. Moreover, Applicant held a security clearance in 2014 when he chose to use marijuana and it did not prevent him from engaging in this questionable conduct. Mitigation under AG ¶ 26(a) is not established.

As to AG ¶ 26(b)(4), Applicant testified that he will not use marijuana in the future. However, he did not provide a signed statement indicating his intent to discontinue drug use. Further, Applicant has a history of falsifying documents provided to the Government and cannot be taken at his word. He failed to show that he has disassociated himself from drug-using contacts, that he has changed his environment in a meaningful way, or has an appropriate period of abstinence. No mitigation is available under AG ¶ 26(b). Guideline E, Personal Conduct

The security concern for the Personal Conduct guideline is set out in AG ¶ 15:

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. The following disqualifying condition is potentially applicable:

(a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities.

Applicant intentionally omitted his illegal drug use on his November 2010 and April 2015 e-QIPs. This conduct raises raise security concerns under the above disqualifying condition, and shift the burden to Applicant to rebut, extenuate, or mitigate those concerns.

AG ¶ 17 provides conditions that could mitigate security concerns. The following are potentially applicable:

(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts;

(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;

(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; and

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.

Applicant's falsification is unmitigated. Falsification of information provided to the Government cannot be considered minor. Applicant intentionally concealed his marijuana use, and use of marijuana while possessing a clearance from the Government, throughout the time he held a clearance because he was afraid he would be denied a security clearance if he was honest. Because of Applicant’s history of lying, I cannot find that such behavior is unlikely to recur. Applicant failed to produce evidence of rehabilitation or of positive steps that would eliminate vulnerability to exploitation, manipulation, or duress. Mitigation has not been established.

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 pertinent facts and circumstances surrounding this case. Applicant is a valued employee, as reflected on his performance appraisal. However, he used marijuana, with varying frequency, from June 2005 through at least May 2014, including use after receiving a security clearance in January 2011. He intentionally omitted the full extent of his illegal drug use on his November 2010 and April 2015 e-QIPs. Overall, the record evidence leaves me with serious questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the Drug Involvement and Personal Conduct security concerns.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline H: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant Subparagraph 1.b: Against Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant Subparagraph 2.b: 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.

________________________ Jennifer I. Goldstein Administrative Judge