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ISCR 16-00538.h1: Guideline H security clearance hearing, denied (2017) · CASE

ISCR Case 16-00538.h1denied

Case headnote

ISCR Case No. 16-00538.h1

deniedJul 19, 2017· Hon. Robert E. Coacher· hearing

Summary

A 37-year-old defense contractor was denied a security clearance under Guideline H (Drug Involvement) due to a prolonged history of marijuana use and purchase. The Statement of Reasons specifically alleged that the applicant engaged in these activities with varying frequency from approximately 1995 to July 2015.

Disqualifying conditions under Adjudicative Guideline (AG) ¶ 25(a) and AG ¶ 25(c) were raised. While mitigating conditions AG ¶ 26(a) and AG ¶ 26(b) were applied, they were ultimately deemed insufficient.

The denial was based on the applicant's extensive 20-year history of marijuana use and purchase. Despite claiming abstinence since July 2015, the judge found a lack of sufficient evidence demonstrating rehabilitation or a signed commitment to future abstinence. Consequently, the judge determined that the claimed abstinence did not adequately mitigate concerns regarding the applicant's reliability and trustworthiness.

Why the applicant was denied

Applicant had a long history of marijuana use and purchase from 1995 to 2015.
He did not provide evidence of rehabilitation or a signed statement of intent to abstain from future drug use.
The judge found that his claimed abstinence was insufficient to mitigate concerns about his reliability and trustworthiness.

Conditions referenced

Disqualifying

AG ¶ 25(a)raisedSubstance Misuse
AG ¶ 25(c)raisedIllegal Possession of a Controlled Substance

Mitigating

AG ¶ 26(a)rejectedBehavior Unlikely to RecurApplicant's long-term pattern of use and lack of evidence of rehabilitation do not support this condition.
AG ¶ 26(b)rejectedAcknowledgment and Actions to Overcome Drug InvolvementApplicant did not provide a signed statement of intent to abstain from future drug use.

Key rule quoted

“The protection of the national security is the paramount consideration.”

Procedural posture

SOR issuedJun 2, 2016
Answer filedJul 5, 2016Applicant elected to proceed without a hearing.
Hearing held—Case decided on the written record.
Decision dateJul 19, 2017

Cite for

Denial of Security Clearance Due to Long-term Drug Involvement Under Guideline H
Insufficient Evidence of Rehabilitation and Intent to Abstain From Drug Use
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.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 37: “Applicant is 37 years old.”
Tenure: ~15 years: “He has worked for his current employer, a defense contractor, since June 2002.”

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 raised significant security concerns, particularly due to a long history of marijuana use. Despite the applicant's claims of abstention, the judge concluded that the frequency and duration of past use undermined his current reliability and trustworthiness, leading to a denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation

Descriptive standardized rendering of a decided public case. 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. 16-00538 ) Applicant for Security Clearance )

For Government: Rhett Petcher, Esq., Department Counsel For Applicant: Pro se, Esq.

07/19/2017 ______________

STATEMENT OF CASE

______________

COACHER, Robert E., Administrative Judge:

Applicant failed to mitigate the Government’s security concerns under Guideline H, drug involvement. Applicant’s eligibility for a security clearance is denied.

Statement of the Case

On June 2, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline H, drug involvement. The DOD CAF acted under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG).1 Applicant answered the SOR on July 5, 2016, and elected to have his case decided on the written record in lieu of a hearing. Department Counsel submitted the Government’s File of Relevant Material (FORM) on July 27, 2016. The evidence included in the FORM is identified as Items 2-3 (Item 1 included pleadings and transmittal information). The FORM was mailed to Applicant, who received it on August 11, 2016. Applicant was given an opportunity to file objections and submit material in refutation, extenuation, or mitigation. He did not file any objections nor submit any additional evidence. Items 2-3 are admitted into evidence without objection. The case was assigned to me on July 3, 2017.

FINDINGS OF FACT

In Applicant’s answer, he admitted the allegation in the SOR. I adopt this admission as a finding of fact. After a thorough and careful review of the pleadings and exhibits submitted, I make the following additional findings of fact.

Applicant is 37 years old. He married in 2008 and has two children, ages five and three. He has worked for his current employer, a defense contractor, since June 2002. He has a master’s degree.2

The SOR alleges Applicant purchased and used marijuana, with varying frequency, from approximately 1995 to approximately July 2015.

Applicant began using marijuana when he was 16 years old. He began purchasing marijuana at the same time and bought about an eighth of an ounce about every two months. He purchased it for personal use only. He smoked marijuana four to five times per week for about three to four months and then he would scale down for three to four months with minimal use or no use at all. He would smoke marijuana in cigarette form or by using a water pipe (bong). His estimated times of use is over 100. He sometimes provided marijuana to others who were with him. He smoked marijuana at his home, in social gatherings with friends, and at parties. He used marijuana for recreational use only to relax from stress. He has not received any drug counseling or treatment, and he has not been diagnosed with any addictive behavior. He claims to have stopped purchasing marijuana in May 2015, and using it in July 2015. He claims the reason he stopped was because he embarked on a new position at work and because he has a new outlook on life due to his family. He remains in contact with at least two friends who continue to use marijuana. He stated his intent is not to purchase or use marijuana in the future.3

Applicant did not produce any good character evidence. Since he submitted this case for an administrative determination, I was not able to judge his credibility.

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(a), 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 national security eligibility 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.

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 that an applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about 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 and Substance Abuse

AG ¶ 24 expresses the security concern pertaining to drug involvement: “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.”

AG ¶ 25 describes conditions that could raise a security concern and may be disqualifying. Those that are potentially applicable in this case include:

(a) any substance misuse; and

(c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia.

Applicant used and purchased marijuana on multiple occasions between 1995 and 2015. I further find that both the above disqualifying conditions apply.

AG ¶ 26 provides conditions that could mitigate security concerns. Two potentially apply in this case:

(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.

Applicant’s use and purchase of marijuana was frequent and given his long-term pattern of use, his claimed abstinence beginning in 2015, is not sufficiently attenuated to be considered remote. He also claims that he stopped using in 2015 because of his family, yet he has been married since 2008 and his children were born before his claimed abstention from marijuana in 2015. He remains in contact with two friends who continue to use marijuana. He did not provide a signed statement of intent abstaining from all future illegal drug use, which acknowledged any future misuse would be grounds for revocation of his security clearance. Applicant’s claimed abstention is insufficient to convince me that recurrence is unlikely. His frequency of past use casts doubt upon his current reliability, trustworthiness, and good judgment. AG ¶¶ 26(a) and 26(b) do not 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 the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 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 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 guideline and the whole-person concept.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I considered that he purchased and used marijuana on numerous occasions over a twenty year period. I also considered that he used marijuana after becoming a husband and a father.

Overall, the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising under Guideline H, drug involvement.

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

Subparagraph 1.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’s eligibility for a security clearance. Eligibility for access to classified information is denied.

_____________________________ Robert E. Coacher Administrative Judge

FOOTNOTES

1 I decided this case using the AGs implemented by DOD on June 8, 2017. However, I also considered this case under the old AGs implemented on September 1, 2006, and my conclusions are the same using either set of AGs. 2 Item 2.

3 Item 3.