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ISCR Case 16-00330.h1 — CASE

ISCR Case 16-00330.h1denied

Case Headnote

ISCR Case No. 16-00330.h1

deniedDec 15, 2016· Hon. Jennifer I. Goldstein· hearing

Summary

A 45-year-old government contractor was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The Statement of Reasons alleged that in August 2015, the applicant purchased and used marijuana twice, and also provided it to two friends. This conduct raised disqualifying conditions under both guidelines, specifically H.25(a) and E.16(e).

Although the applicant honestly disclosed his drug use and claimed abstinence since August 2015, the judge found this insufficient to mitigate the security concerns. While mitigating conditions H.26(a), H.26(b), and E.17(c) were considered, they were not applied.

The denial was based on the applicant's knowing violation of federal law and his employer's drug policies. The judge determined that insufficient time had passed since the drug use to demonstrate that future use was unlikely, and the applicant's assurances of future compliance were not deemed credible without a longer period of abstinence.

Why the Applicant Was Denied

Applicant knowingly violated Federal law and his employer's drug policies by using marijuana.
Insufficient time has passed since the applicant's drug use to demonstrate that future use is unlikely.
The applicant's assurances of future compliance were not deemed credible without a longer period of abstinence.

Conditions Referenced

Disqualifying

H.25(a)raisedDrug Involvement
E.16(e)raisedPersonal Conduct

Mitigating

H.26(a)rejectedDrug InvolvementOnly one year has passed since the applicant's drug use, and he knowingly violated laws and policies.
H.26(b)rejectedDrug InvolvementThe applicant's intent not to use drugs in the future was not supported by sufficient evidence.
E.17(c)rejectedPersonal ConductThe applicant's conduct was recent and counter to Federal law and employer policies.

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 issuedJun 8, 2016
Answer filedJun 20, 2016
Hearing heldSep 19, 2016
Decision dateDec 15, 2016

Cite For

Insufficient Time to Demonstrate Future Compliance with Drug Laws
Credibility of Applicant's Assurances Regarding Drug Use
Impact of Personal Conduct 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 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, specifically regarding the applicant's marijuana use, which raised security concerns. The applicant failed to mitigate these concerns, leading to a denial of eligibility for a security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	SOR ¶ 2.a alleged that the same conduct raised security concerns under the guideline for Personal Conduct.	Against Applicant	Questionable Judgment General	—	Denied	(e) personal conduct or concealment creating vulnerability to exploitation	—	—

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 that the applicant's use of marijuana twice in August 2015 raised significant security concerns under Guideline H. The applicant's failure to demonstrate an appropriate period of abstinence and the potential for future drug use led to a denial of eligibility for a security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	security concerns related to Applicant’s purchase and use of marijuana twice in August 2015, as well as his decision to provide marijuana to two friends.	Against Applicant	Marijuana	Occasional	Admitted	(a) any substance misuse	—	—

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. 16-00330 ) ) Applicant for Security Clearance )

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

December 15, 2016 ______________

STATEMENT OF CASE

______________

GOLDSTEIN, Jennifer I., Administrative Judge:

Applicant failed to mitigate the Drug Involvement and Personal Conduct security concerns. Applicant used marijuana twice in August 2015. Eligibility for access to classified information is denied.

Statement of the Case

On October 5, 2015, Applicant submitted an electronic Questionnaires for Investigations Processing (e-QIP). On June 8, 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 June 20, 2016, and requested a hearing before an administrative judge. The case was assigned to me on August 17, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on August 23, 2016, and the hearing was convened as scheduled on September 19, 2016. The Government offered Exhibits (GE) 1 and 2, which were admitted without objection. Applicant offered two exhibits (AE), marked A and B. Department Counsel had no objections to AE A and AE B, and they were admitted. Applicant testified on his own behalf. DOHA received the hearing transcript (Tr.) on September 28, 2016.

FINDINGS OF FACT

Under the guideline for Drug Involvement, SOR ¶ 1.a alleged security concerns related to Applicant’s purchase and use of marijuana twice in August 2015, as well as his decision to provide marijuana to two friends. SOR ¶ 2.a alleged that the same conduct raised security concerns under the guideline for Personal Conduct. In his Answer and during his testimony, Applicant admitted to “trying marijuana” but denied that he provided it to two friends. (Tr. 8-9.)

Applicant is a 45-year-old employee of a government contractor. He has worked for his present employer for more than nine years. He is not married and has no children. (Tr. 22-24, 33.)

Applicant reported on his October 5, 2015 e-QIP that he used marijuana recreationally twice, in August 2015. (GE 1.) Applicant testified he first used marijuana when he was “a young kid growing up.” (Tr. 24.) He did not like it then. He most recently tried marijuana twice over a two-day period while he was backpacking in August 2015 to help with muscle soreness. He testified he usually brings wine with him to help him relax while out backpacking, but decided to try a “vape pen” on that trip instead, because it was lighter than carrying wine. He purchased the marijuana at a medical dispensary after obtaining a “prescription.” He testified that he was aware marijuana use was prohibited by his employer’s workplace policies and illegal under Federal law, despite state laws permitting its use for medical treatment. He did not know at that time that he was about to apply for a security clearance. (Tr. 20-29, 33.)

Two other individuals, friends from his neighborhood, were backpacking with Applicant. He explained that they used marijuana together, but that they had their own marijuana. He did not supply them with the marijuana. The investigator who interviewed Applicant misunderstood that fact during the interview. (Tr. 30-31.) They no longer live in Applicant’s neighborhood and he no longer associates with them. (Tr. 31.)

Applicant’s “prescription” for medical marijuana is expired. (Tr. 33.) He no longer associates with any marijuana users. (Tr. 31.) He has not participated in any type of drug treatment or counseling. He testified that he will not use drugs again because they are illegal and are bad for his body. He does not like marijuana and prefers to drink wine. (Tr. 32.) Applicant presented two performance reviews that cover the time period from April 2014 to April 2016. They reflect Applicant “highly meets” all of his objectives and is a valued employee. (AE A; AE B.)

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 is potentially applicable:

(a) any drug abuse.

The Government presented sufficient information to support the factual allegations under SOR ¶ 1.a. regarding Applicant’s marijuana use in August 2015. As he did not supply marijuana to anyone else, no other disqualifying conditions apply.

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.

Only one year has passed since Applicant’s use of an illegal substance. He was a mature adult and knowingly violated his company’s drug policies and Federal law. I cannot find that future use is unlikely to occur. In this instance, an appropriate period of abstinence has not been demonstrated. The evidence does not support the application of AG ¶ 26(a).

AG ¶ 26(b) provides little mitigation. Applicant stated that he does not intend to use marijuana in the future. His answer contains a signed statement of intent not to use illegal substances again. However, despite his assurances to not use drugs in the future, based on his past conduct and his age when he made those decisions, I am not confident he will comply without the passage of more time demonstrating abstinence. Applicant has not provided sufficient evidence to meet his burden of proof to overcome the concerns raised by his poor judgment in using marijuana. 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:

(e) personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person’s personal, professional, or community standing, or (2) while in another country, engaging in any activity that is illegal in that country or that is legal in that country but illegal in the United States and may serve as a basis for exploitation or pressure by the foreign security or intelligence service or other group.

Applicant’s decision to knowingly violate his company’s drug use policy and Federal law by using marijuana creates a vulnerability to exploitation, manipulation, or duress. His drug use, if known, could affect his professional standing. The Government established sufficient evidence to raise security concerns under DC 16(e), 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:

(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.

While Applicant deserves credit for abstaining from marijuana since August 2015 and for his honest disclosure of his August 2015 marijuana use on his e-QIP, that incident was recent and counter to both Federal law and his employer’s policies. He has presented insufficient evidence to persuasively demonstrate that future drug use is unlikely. None of the mitigating conditions set forth in AG ¶ 17 are fully supported by the record.

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 stated that he has not used marijuana since August 2015. He divulged information about his drug use on his e-QIP. He testified that he will not use illegal substances in the future. However, Applicant was a mature adult when he knowingly violated Federal laws and his employer’s policies regarding marijuana use. Not enough time has passed since Applicant’s drug use in 2015 to support a finding that drug abuse is unlikely to recur. Although Applicant’s honest disclosure of his drug abuse makes this is a close case, the adjudicative guidelines require that any doubt concerning personnel being considered for access to classified information must be resolved in favor of the national security.

Overall, the record evidence leaves me with 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

Paragraph 2, Guideline E: AGAINST APPLICANT

Subparagraph 2.a: 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