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ISCR Case 16-00504.h1 — CASE

ISCR Case 16-00504.h1denied

Case Headnote

ISCR Case No. 16-00504.h1

deniedJun 26, 2017· Hon. Philip J. Katauskas· hearing

Summary

A 35-year-old defense contractor was denied a security clearance under Guideline H (Drug Involvement) due to his admitted marijuana use from January 2008 to July 2015. The Statement of Reasons specifically cited his use and purchase of marijuana during this period.

While the applicant claimed abstinence since July 2015 and provided a letter of intent to refrain from drug use, the judge determined that this did not establish a sufficient pattern of abstinence. The judge applied mitigating conditions AG ¶ 26(a) and AG ¶ 26(b), but ultimately found that the applicant's extensive history of drug use raised significant concerns regarding his reliability and trustworthiness.

Consequently, the applicant failed to overcome the disqualifying conditions AG ¶ 25(a) and AG ¶ 25(c), leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant admitted to using marijuana regularly for over seven years until July 2015.
The applicant failed to demonstrate an established pattern of abstinence from drug use after his last use in July 2015.
The judge found that the applicant's past drug use raised significant 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 RecurThe applicant's marijuana use was not infrequent and ended only recently.
AG ¶ 26(b)rejectedAcknowledgment and Actions to Overcome Drug InvolvementThe applicant did not establish a pattern of abstinence despite some mitigating actions.

Key Rule Quoted

“"the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials."”
— Department of the Navy v. Egan, 484 U.S. 518, 531 (1988)

Procedural Posture

SOR issuedJun 17, 2016
Answer filedJul 8, 2016
Hearing held—Decision based on written record without a hearing.
Decision dateJun 26, 2017

Cite For

Denial of Security Clearance Due to Drug Involvement Under Guideline H
Insufficient Evidence of Established Pattern of Abstinence From Drug Use
Importance of Demonstrating Reliability and Trustworthiness in Security Clearance Determinations

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 use of marijuana from January 2008 until July 2015 raised significant security concerns. Despite the applicant's claims of abstinence and willingness to undergo drug testing, the judge concluded that the applicant did not demonstrate an established pattern of abstinence, leading to a denial of the security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana from January 2008 until July 2015.	Against Applicant	Marijuana	Regular	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	Applicant purchased marijuana from January 2008 until March 2015.	Against Applicant	Marijuana	Not Applicable	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—

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. 16-00504 ) Applicant for Security Clearance )

For Government: Charles Hale, Esq., Department Counsel For Applicant: Pro se 06/26/2017 ______________

STATEMENT OF CASE

______________

KATAUSKAS, Philip J., Administrative Judge:

Applicant contests the Defense Department’s intent to deny his eligibility for access to classified information. Applicant failed to mitigate the security concern raised by his use of marijuana.

Statement of the Case

Applicant completed and submitted a Questionnaire for National Security Positions (SF 86 format) on September 11, 2015. This document is commonly known as a security clearance application. On June 17, 2016, after reviewing the application and the information gathered during a background investigation, the Department of Defense Consolidated Adjudications Facility sent Applicant a statement of reasons (SOR), explaining it was unable to find that it was clearly consistent with the national interest to grant his eligibility for access to classified information.1 The SOR is similar to a complaint in a civil court case. It detailed the factual reasons for the action under the security guideline known as Guideline H for drug involvement and substance misuse. Applicant answered the SOR on July 8, 2016, and requested a decision based on the written record without a hearing.

On August 31, 2016, Department Counsel submitted a file of relevant material (FORM).2 The FORM was mailed to Applicant on the next day. He was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. Applicant received the FORM on September 12, 2016.3 Applicant responded to the FORM on September 19, 2016. Applicant’s response is marked as Exhibit A, and because the Government did not object, Exhibit A is admitted into evidence. The case was assigned to me on June 1, 2017.

PROCEDURAL MATTERS

Included in the FORM were four items of evidence, two of which are marked as Government Exhibits 1 and 2 and are admitted into evidence.4 Exhibit 2 is a report of investigation (ROI) summarizing Applicant’s interview that took place during the November 2015 background investigation. The ROI is not authenticated, as required under ¶ E3.1.20 of the Directive.5 Department Counsel’s written brief includes a footnote advising Applicant that the summary was not authenticated and that failure to object may constitute a waiver of the authentication requirement. The footnote is prominently prefaced with a bolded, upper-case notice to Applicant flagging the importance of the footnote, which then explains the concepts of authentication and waiver. In a case such as this, where Applicant has responded to the FORM, it is fair to conclude that Applicant read the footnote, understood it, and chose not to object to the ROI. The ROI is, therefore, admissible.

FINDINGS OF FACT

Applicant is a 35-year-old high school graduate who is married with one minor child. Since September 2015, he has worked for a defense contractor.

The SOR alleged that (1) Applicant used marijuana from January 2008 until July 2015, and (2) Applicant purchased marijuana from January 2008 until March 2015.6 Applicant admitted those allegations. He also stated in his Answer that (1) he has not used marijuana since July 2015, (2) he has no intention in doing so in the future, and (3) he is willing to sign a letter of intent to submit to random urinalysis, knowing that a positive result will cause the revocation of his clearance. He also stated that he has disassociated himself from his former (presumably drug-using) friends and has focused on his career.7 In his interview, Applicant was asked when he first used marijuana. He admitted that he used marijuana before the seven-year period covered by the SF 86 (i.e., before January 2008) but declined to discuss that prior use any further.8 He used marijuana three to five times a week to help him sleep.9 In his response to the FORM, Applicant submitted a signed and dated statement promising that he will refrain from illegal drug use knowing that any violation will result in the automatic revocation of his clearance.10 Attached to Applicant’s Answer was a letter from his manager stating she has known Applicant since November 2015, that he consistently displays sound judgment, reliability, and trustworthiness, is a model employee, and one who shows exceptional performance and dedication.11

Law and Policies

It is well-established law that no one has a right to a security clearance.12 As noted by the Supreme Court in Department of the Navy v. Egan, “the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.”13 Under Egan, E.O. 10865, and the Directive, any doubt about whether an applicant should be allowed access to classified information will be resolved in favor of protecting national security. A favorable clearance decision establishes eligibility of an applicant to be granted a security clearance for access to confidential, secret, or top-secret information.14 An unfavorable clearance decision (1) denies any application, (2) revokes any existing security clearance, and (3) prevents access to classified information at any level.15

There is no presumption in favor of granting, renewing, or continuing eligibility for access to classified information.16 The Government has the burden of presenting evidence to establish facts alleged in the SOR that have been controverted.17 An applicant is responsible for presenting evidence to refute, explain, extenuate, or mitigate facts that have been admitted or proven.18 In addition, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision.19

In Egan, the Supreme Court stated that the burden of proof is less than a preponderance of evidence.20 The Appeal Board has followed the Court’s reasoning, and a judge’s findings of fact are reviewed under the substantial-evidence standard.21

DISCUSSION

Guideline H – Drug Involvement and Substance Abuse

Under AG H for drug use,22 suitability of an applicant may be questioned or put into doubt because drug use can both impair judgment and raise questions about a person’s ability or willingness to comply with laws, rules, and regulations:

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.

In analyzing the facts of this case, I considered the following disqualifying and mitigating conditions or factors:

AG ¶ 25(a) any substance misuse (see above definition);

AG ¶ 25(c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia;

AG ¶ 26(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,

AG ¶ 26(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 admitted his use of marijuana from January 2008 until July 2015 and that he purchased marijuana from January 2008 until March 2015, as alleged in the SOR. In his interview, he also admitted that he used marijuana three to five times per week before January 2008. Facts admitted by an applicant in an answer to a SOR or in an interview require no further proof by the Government.23 Marijuana is a Schedule I controlled substance, and its possession is regulated by the federal government under the Controlled Substances Act.24 The knowing or intentional possession and use of any

basis for an Administrative Judge’s findings”). controlled substance is unlawful and punishable by imprisonment and or a fine.25 In an October 25, 2014 memorandum, the Director of National Intelligence reaffirmed that the use of marijuana is relevant to national security determinations, regardless of changes to state laws concerning marijuana use.26 AG ¶¶ 25(a) and (c) apply.

I have considered mitigating factor AG ¶ 26(a). Applicant used marijuana between three to five times per week from sometime before January 2008 until July 2015. His behavior was neither infrequent, nor did it occur long ago, with his last use being in July 2015. AG ¶ 26(a) does not apply.

I also considered mitigating factor AG ¶ 26(b). I credit Applicant’s answer to the SOR and his response to the FORM as showing that (1) he has disassociated himself from drug-using friends, and (2) he provided a signed statement of intent to abstain from all illegal drug usage and that any such use would be grounds for revocation of his security clearance. Applicant has established AG ¶¶ 26(b)(1) and (3). AG ¶ 26(b), however, requires that an applicant show an “established pattern of abstinence.” The record shows that sometime before January 2008 Applicant began using marijuana between three to five times per week until July 2015, when he stopped such use. The record was closed on September 26, 2016, upon admission of Applicant’s response to the FORM. Thus, at the close of the record, Applicant’s period of abstinence was just over one year.27 Given that Applicant used marijuana for more than seven and a half years before deciding to stop such use, I cannot find that he has shown an “established pattern of abstinence.” AG ¶ 26(b) does not apply. `

CONCLUSION

The record raises doubts about Applicant’s reliability, trustworthiness, judgment, and ability to protect classified information. In reaching this conclusion, I weighed the evidence as a whole and considered if the favorable evidence outweighed the unfavorable evidence or vice versa. I also gave due consideration to the whole-person concept.28 Accordingly, I conclude that Applicant did not meet his ultimate burden of persuasion to show that it is clearly consistent with the national interest to grant him eligibility for access to classified information.

26 James R. Clapper, Director of National Intelligence, Memorandum: Adherence to Federal Laws Prohibiting Marijuana Use (October 25, 2014). See also http://www.dea.gov/druginfo/ds.shtml.

FORMAL FINDINGS

As required by section E3.1.25 of Enclosure 3 of the Directive, I make the following formal findings on the SOR allegations:

Paragraph 1, Guideline H: Against Applicant

Subparagraph 1.a: Against Applicant

Subparagraph 1.b: Against Applicant

In light of the record as a whole, it is not clearly consistent with the national interest to grant Applicant access to classified information.

Philip J. Katauskas Administrative Judge

FOOTNOTES

1 This action was taken under Executive Order (E.O.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended, as well as Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive). In addition, Security Executive Agent Directive (SEAD) 4, National Security Adjudication Guidelines (AG), effective within the Defense Department on June 8, 2017, apply here. The AG were published in the Federal Register and codified in 32 C.F.R. § 154, Appendix H (2016). In this case, the SOR was issued under Adjudicative Guidelines effective within the Defense Department on September 1, 2006. My Decision and Formal Findings under the revised Guidelines H and E would not be different under the 2006 Guidelines. 2 The file of relevant material consists of Department Counsel’s written brief and supporting documentation, some of which are identified as evidentiary exhibits in this decision. 3 The Defense Office of Hearings and Appeals’ (DOHA) transmittal letter is dated September 1, 2016, and Applicant’s receipt is dated September 12, 2016. The DOHA transmittal letter informed Applicant that he had 30 days after receiving it to submit information. 4 The first item in the FORM is the SOR, and the second item is Applicant’s Answer. Because the SOR and the Answer are the pleadings in this case, they are not marked as Exhibits. Items 3 and 4 are marked as Exhibits 1 and 2. 5 See generally ISCR Case No. 12-10933 (App. Bd. Jun. 29, 2016) (In a concurring opinion, Judge Ra’anan notes the historical concern about reports of investigation in that they were considered by some to present a heightened problem in providing due process in security clearance cases. Judge Ra’anan raises a number of pertinent questions about using an unauthenticated ROI in a non-hearing case with a pro se applicant.). 6 SOR ¶ 1. 7 Answer, p. 1. 8 Exhibit 2, p. 6. 9 Exhibit 2, p. 5. 10 Exhibit A. 11 Answer, p. 2. 12 Department of Navy v. Egan, 484 U.S. 518, 528 (1988) (“it should be obvious that no one has a ‘right’ to a security clearance”); Duane v. Department of Defense, 275 F.3d 988, 994 (10th Cir. 2002) (no right to a security clearance). 13 484 U.S. at 531. 14 Directive, ¶ 3.2. 15 Directive, ¶ 3.2. 16 ISCR Case No. 02-18663 (App. Bd. Mar. 23, 2004). 17 Directive, Enclosure 3, ¶ E3.1.14. 18 Directive, Enclosure 3, ¶ E3.1.15. 19 Directive, Enclosure 3, ¶ E3.1.15. 20 Egan, 484 U.S. at 531. 21 ISCR Case No. 01-20700 (App. Bd. Dec. 19, 2002) (citations omitted). 22 AG ¶¶ 24, 25 and 26 (setting forth the concern and the disqualifying and mitigating conditions). 23 ISCR Case No. 94-1159 at 4 (App. Bd. Dec. 4, 1995) (“any admissions [applicant] made to the SOR allegations . . . relieve Department Counsel of its burden of proof”); ISCR Case No. 94-0569 at 4 and n.1 (App. Bd. Mar. 30, 1995) (“[a]napplicant’s admissions, whether testimonial or written, can provide a legal 24 21 U.S.C. § 811 et seq. 25 21 U.S.C. § 844.

27 I cannot credit Applicant with abstinence following the close of the record. ISCR Case No.14-04825 at 3 (App. Bd. Aug. 4, 2016) (“[T]here is nothing, and indeed can be nothing, concerning [Applicant’s] conduct following the close of the record.”). 28 AG ¶¶ 2(d)(1)-(9) and 2(f)(1)-(6). I took into positive account the complimentary character reference letter submitted by Applicant’s manager.