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ISCR Case 16-00212.h1 — CASE

ISCR Case 16-00212.h1denied

Case Headnote

ISCR Case No. 16-00212.h1

deniedAug 15, 2017· Hon. Robert Robinson Gales· hearing

Summary

A 27-year-old GIS technician was denied a security clearance under Guideline H (Drug Involvement) due to his extensive history of marijuana use and cultivation. From August 2010 until at least October 2015, the applicant regularly cultivated, purchased, possessed, and used marijuana, typically on a weekly basis.

Further concerns arose from his e-QIP submission, where he explicitly stated his intention to continue using marijuana in the future. He also refused to disassociate from friends who used drugs, indicating a lack of commitment to abstain from drug involvement.

The denial was based on the applicant's long-term drug use, his expressed intent to continue, and the absence of any evidence demonstrating rehabilitation or a signed commitment to abstain from future drug use. These factors collectively led to the decision to deny his security clearance.

Why the Applicant Was Denied

The applicant cultivated, purchased, possessed, and used marijuana from August 2010 until at least October 2015.
He expressed intent to continue using marijuana and refused to disassociate from drug-using friends.
There was no evidence of rehabilitation or a signed statement of intent to abstain from drug use.

Conditions Referenced

Disqualifying

AG ¶ 25(a)appliedSubstance Misuse
AG ¶ 25(c)appliedIllegal Possession of a Controlled Substance
AG ¶ 25(g)appliedIntent to Continue Drug Involvement

Key Rule Quoted

“Eligibility for access to classified information is denied.”

Procedural Posture

SOR issuedMay 31, 2016
Answer filedJul 28, 2016Applicant elected to proceed without a hearing.
Hearing held—Written record only.
Decision dateAug 15, 2017

Cite For

Denial of Security Clearance Due to Ongoing Drug Involvement
Failure to Demonstrate Rehabilitation From Substance Abuse
Impact of Illegal Drug Use on 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: denied

The judge found that the applicant's drug involvement and substance abuse raised significant security concerns. The applicant cultivated, purchased, possessed, and used marijuana regularly from August 2010 until at least October 2015, and expressed an intent to continue using it. The judge concluded that the applicant failed to mitigate these concerns, resulting in a denial of eligibility for a security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant cultivated, purchased, possessed, and used marijuana from August 2010 “every week or so” until at least October 2015.	Against Applicant	Marijuana	Regular	Denied	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (g) expressed intent to continue, or failure to commit to discontinue	—	—
1.b	In his e-QIP, he stated that he intended to use marijuana in the future.	Against Applicant	Stated Intent to Use Again	Not Applicable	Denied	(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. 16-00212 ) Applicant for Security Clearance )

For Government: Bryan Olmos, Esquire, Department Counsel For Applicant: Pro se

08/15/2017 ______________

STATEMENT OF CASE

______________

GALES, Robert Robinson, Administrative Judge:

Applicant failed to mitigate the security concerns regarding drug involvement and substance abuse. Eligibility for a security clearance and access to classified information is denied.

Statement of the Case

On August 21, 2015, Applicant applied for a security clearance and submitted an Electronic Questionnaire for Investigations Processing (e-QIP) version of a Security Clearance Application.1 On May 31, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a Statement of Reasons (SOR) to him, under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended and modified; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended and modified (Directive); and the Adjudicative Guidelines for Determining Eligibility For Access to Classified Information (December 29, 2005) applicable to all adjudications and other determinations made under the Directive, effective September 1, 2006.2 The SOR alleged security concerns under Guideline H (Drug Involvement), and detailed reasons why the DOD adjudicators were unable to find that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. The SOR recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

It is unclear when Applicant received the SOR as there is no receipt in the case file. In a sworn statement, dated July 28, 2016, Applicant responded to the SOR and elected to have his case decided on the written record in lieu of a hearing.3 A complete copy of the Government’s file of relevant material (FORM) was mailed to Applicant by the Defense Office of Hearings and Appeals (DOHA) on August 15, 2016, and he was afforded an opportunity, within a period of 30 days after receipt of the FORM, to file objections and submit material in refutation, extenuation, or mitigation. In addition to the FORM, Applicant was furnished a copy of the Directive as well as the previous Adjudicative Guidelines applicable to his case. Applicant received the FORM on August 23, 2016. Applicant’s response was due on September 22, 2016. Applicant failed to submit any response. The case was assigned to me on August 10, 2017.

FINDINGS OF FACT

In his Answer to the SOR, Applicant denied, with a brief comment, both of the factual allegations pertaining to drug involvement (¶¶ 1.a. and 1.b.) of the SOR. Applicant’s comments are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact:

Applicant is a 27-year-old employee of a defense contractor. He has been a geographic information systems (GIS) technician with the company since May 2015. He previously held diverse positions with a variety of other employers. He was a marijuana sales associate (August 2014 until April 2015), a pizza delivery driver (February 2012 until July 2014), and a part-time music teacher (October 2011 until January 2012). He is a June 2008 high school graduate, and he earned a number of college credits, but no degree. Applicant has never served in the U.S. military. He has never held a security clearance. He has never been married. Drug Involvement and Substance Abuse4

Applicant is a substance abuser whose choice of substances has been marijuana. He commenced using marijuana, either by smoking it or in a vaporized form, in August 2010 – when he was 20 years old – and has continued using it “every week or so” until at least October 2015. His use was essentially for three reasons: (1) socially while with two identified friends; (2) because it makes him feel better when he is depressed or unhappy with where he is in life; and (3) to relieve physical pain from an earlier sports injury. Applicant stated that he intended to use marijuana in the future, because marijuana is much better for him than prescriptions or alcohol. Applicant acknowledged that he has never been clinically diagnosed with depression or any other medical condition that would justify the use marijuana for medical purposes, or the issuance of a state medical marijuana card. He never furnished details of the sports injury.

Although Applicant denied cultivating marijuana when he completed his e-QIP, during his interview with an investigator from the U.S. Office of Personnel Management (OPM), he admitted that he maintains three marijuana plants at his residence, and that he has done so since August 2010. Applicant obtains marijuana either from his own plants, from other unidentified individuals, or by purchasing it from a marijuana dispensary where he worked from August 2014 until April 2015. That marijuana dispensary grows and sells 50 different marijuana strains for its medical patients and retail customers. He generally pays $10 to $20 per gram of marijuana for each purchase. Applicant acknowledged that he was aware that growing marijuana plants at his home and using marijuana are illegal under federal law, and that he knowingly ignored the law.

Applicant indicated that he never failed a drug test associated with employment purposes, and that his current employer never administered a drug test to him. When the OPM investigator informed him that the use of marijuana while working for a government contractor constitutes a security violation, Applicant volunteered that he would immediately cease using it. However, while he agreed to stop using marijuana, he refused to stop seeing his two close marijuana-using friends.

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.”5 As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information. The President has authorized the Secretary of Defense or his designee to grant an applicant eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.”6

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the guidelines in SEAD 4. In addition to brief introductory explanations for each guideline, the guidelines list potentially disqualifying conditions and mitigating conditions, which are used in evaluating an applicant’s eligibility for access to classified information.

An administrative judge need not view the guidelines as inflexible, ironclad rules of law. Instead, acknowledging 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 meaningful decision.

In the decision-making process, facts must be established by “substantial evidence.”7 The Government initially has the burden of producing evidence to establish a potentially disqualifying condition under the Directive, and has the burden of establishing controverted facts alleged in the SOR. Once the Government has produced substantial evidence of a disqualifying condition, under Directive ¶ E3.1.15, the applicant has the burden of persuasion to present evidence in refutation, explanation, extenuation or mitigation, sufficient to overcome the doubts raised by the Government’s case. The burden of disproving a mitigating condition never shifts to the Government.8

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 as well. It is because of this special relationship that the Government must be able to repose a high degree of trust and confidence in those 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 as to potential, rather than actual, risk of compromise of classified information. Furthermore, “security clearance determinations should err, if they must, on the side of denials.”9 Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”10 Thus, nothing in this decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism. It is merely an indication the Applicant has or has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. 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.

ANALYSIS

Guideline H, Drug Involvement and Substance Abuse

The security concern relating to the guideline for Drug Involvement and Substance Abuse is set out in AG ¶ 24:

The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, and the use of other substances that 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, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person's ability or willingness to comply with laws, rules, and regulations. Controlled substance means any "controlled substance" as defined in 21 U.S.C. 802. Substance misuse is the generic term adopted in this guideline to describe any of the behaviors listed above.

The guideline notes several conditions under AG ¶ 25 that could raise security concerns in this case: “(a) any substance misuse (see above definition); (c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and (g) expressed intent to continue drug involvement and substance misuse, or failure to clearly and convincingly commit to discontinue such misuse.”

Applicant cultivated, purchased, possessed, and used marijuana from August 2010 “every week or so” until at least October 2015. In his e-QIP, he stated that he intended to use marijuana in the future. AG ¶¶ 25(a), (c), and (g) have been established.

The guideline also includes examples of conditions under AG ¶ 26 that could mitigate security concerns arising from Drug Involvement and Substance Misuse: “(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) 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) providing 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.

I have concluded that none of the AGs apply. Applicant’s substance abuse took place frequently - every week or so - over a five-year period, and the circumstances under which it occurred were not unusual. Applicant admitted that he cultivated, purchased, possessed, and used marijuana, at least until October 2015. In August 2015, he stated that he had no intention to cease his use of marijuana because he believed marijuana was much better for him than prescriptions or alcohol. Applicant subsequently purportedly changed his mind and said he would no longer use marijuana. However, other than his statement, there is no evidence of abstinence, and there is no signed statement of intent to abstain from all drug involvement and substance misuse. Applicant refused any disassociation from his drug-using friends, associates, and contacts. Applicant’s actions, under the circumstances, continue to cast doubt on his current reliability, trustworthiness, and good judgment.

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 the circumstances. The administrative judge should consider the nine adjudicative process factors listed at SEAD 4, App. A, ¶ 2(d):

(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 SEAD 4, App. A, ¶ 2(c), the ultimate determination of whether to grant a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. Moreover, I have evaluated the various aspects of this case in light of the totality of the record evidence and have not merely performed a piecemeal analysis.11 There is some evidence mitigating Applicant’s conduct. There is no evidence of misuse of information technology systems, or mishandling protected information. Applicant candidly acknowledged his lengthy and frequent association with marijuana. He said he would stop using it once he learned that substance abuse while employed by a government contractor constituted a security violation.

The disqualifying evidence under the whole-person concept is more substantial. Applicant cultivated, purchased, possessed, and used marijuana from August 2010 until at least October 2015. He was aware that growing marijuana plants at his home and using marijuana are illegal under federal law, and he knowingly ignored the law. For eight months, he worked at a marijuana dispensary that grows and sells 50 different marijuana strains. He used marijuana for a variety of reasons: socially while with friends; because it makes him feel better when he is depressed or unhappy; and to relieve physical pain from an earlier sports injury. Applicant initially stated that he intended to use marijuana in the future, because marijuana is much better for him than prescriptions or alcohol. He subsequently purportedly changed his mind and said he would no longer use marijuana. However, other than his statement, there is no evidence of abstinence, and there is no signed statement of intent to abstain from all drug involvement and substance misuse. Applicant refused to disassociate himself from his drug-using friends, associates, and contacts. He offered no character references to attest to his honesty, reliability, trustworthiness, and good judgment.

Overall, the evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all of these reasons, I conclude Applicant has failed to mitigate the security concerns arising from his drug involvement and substance misuse. See SEAD 4, App. A, ¶¶ 2(d)(1) through 2(d)(9).

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

Subparagraphs 1.a. and 1.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 interests of national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

________________________ ROBERT ROBINSON GALES Administrative Judge

FOOTNOTES

1 Item 3 (e-QIP, dated August 21, 2015). 2 Effective June 8, 2017, by Directive 4 of the Security Executive Agent (SEAD 4), dated December 10, 2016, National Security Adjudicative Guidelines (AG) for all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position, were established to supersede all previously issued national security adjudicative criteria or guidelines. Accordingly, those guidelines previously implemented on September 1, 2006, under which this security clearance review case was initiated, no longer apply. In comparing the two versions, there is no substantial difference that might have a negative effect on Applicant in this case.

3 Item 2 (Answer to the SOR, dated July 28, 2016). 4 The sources of the information regarding Applicant’s association with drugs are found in Item 1, supra note 1, at 32; and Item 4 (Personal Subject Interview, dated October 15, 2015, at 3-4).

5 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 6 Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended and modified.

7 “Substantial evidence [is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of all contrary evidence in the record.” ISCR Case No. 04-11463 at 2 (App. Bd. Aug. 4, 2006) (citing Directive ¶ E3.1.32.1). “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994).

8 See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).

9 Egan, 484 U.S. at 531. 10 See Exec. Or. 10865 § 7. 11 See U.S. v. Bottone, 365 F.2d 389, 392 (2d Cir. 1966); See also ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006).