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ISCR 16-00621.h1: Guideline E security clearance hearing, denied (2017) · CASE

ISCR Case 16-00621.h1denied

Case headnote

ISCR Case No. 16-00621.h1

deniedFeb 15, 2017· Hon. Elizabeth M. Matchinski· hearing

Summary

A 26-year-old contracts specialist was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The denial stemmed from an extensive history of illegal drug use, including marijuana, MDMA, cocaine, and psilocybin, spanning from 2009 to 2015. This included regular marijuana purchases and weekly sales from 2009 to 2015, and a criminal citation for marijuana possession in May 2014.

Further concerns were raised by the applicant's ongoing associations with friends who use illegal drugs. While the applicant claimed no future intent to use drugs and provided a negative drug screen, these assertions were not found to sufficiently mitigate the security risks.

The adjudicator determined that the applicant's past behavior, including drug sales to recoup costs and continued associations with drug users, undermined his claims of future abstinence and raised doubts about his reliability and trustworthiness. Consequently, the security clearance was denied.

Why the applicant was denied

The applicant's history of illegal drug use was extensive and included selling marijuana to recoup costs.
The applicant continued to associate with known drug users, raising concerns about his reliability and trustworthiness.
The applicant's claims of no future drug use were not deemed credible given his past behavior and associations.

Conditions referenced

Disqualifying

H.1raisedDrug Involvement
J.1raisedCriminal Conduct
E.2raisedPersonal Conduct

Mitigating

H.2rejectedDrug InvolvementThe applicant's assertions of no future drug use were not sufficient to mitigate the concerns.
J.2rejectedCriminal ConductThe expungement of the criminal charge did not eliminate the underlying conduct's security implications.
E.2rejectedPersonal ConductThe applicant's ongoing associations with drug users were not mitigated by his claims of personal growth.

Key rule quoted

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

Procedural posture

SOR issuedJun 24, 2016
Answer filedJul 26, 2016
Hearing heldOct 19, 2016
Decision dateFeb 15, 2017

Cite for

Denial of Security Clearance Due to Extensive Illegal Drug Use Under Guideline H
Impact of Ongoing Associations with Drug Users on Security Clearance Eligibility
Insufficient Mitigation of Security Concerns Despite Claims of Personal Growth and Negative Drug Tests

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: 26: “Applicant is a 26-year-old contracts specialist with a bachelor’s degree awarded in May 2013.”
Held a clearance before: No: “He does not currently hold, nor has he previously held a security clearance with his employer.”

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 allegation under Guideline E, determining that the applicant's ongoing association with known drug users raised security concerns. The applicant admitted to past drug use but did not fully mitigate the concerns related to his personal conduct, leading to a denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation

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 had used marijuana, MDMA, cocaine, and psilocybin over several years, with marijuana use being frequent and ongoing association with drug users. The applicant's drug involvement raised significant security concerns that were not fully mitigated, leading to a denial of the security clearance.

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

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge ruled against the applicant on the criminal conduct allegations under Guideline J, specifically regarding a marijuana possession charge. The applicant admitted to the underlying conduct but contended that the charge was dismissed and expunged. However, the judge found that the expungement did not negate the security concerns raised by the applicant's past drug involvement.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	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: ) ) Redacted ) ISCR Case No. 16-00621 ) ) Applicant for Security Clearance

For Government: Robert J. Kilmartin, Esq., Department Counsel For Applicant: Pro se

02/15/2017 ______________

STATEMENT OF CASE

______________

MATCHINSKI, Elizabeth M., Administrative Judge:

Applicant smoked marijuana with varying frequency from 2009 to March 2015. He purchased marijuana and sold it on occasion to recoup his personal costs for the drug. He used the stimulants MDMA and cocaine seven times each and the hallucinogen psilocybin twice. He does not intend any future illegal drug involvement, but he has not fully mitigated the security concerns raised by his marijuana involvement and his ongoing association with known drug users. Clearance is denied.

Statement of the Case

On June 24, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing the security concerns under Guideline H, Drug Involvement, Guideline J, Criminal Conduct, and Guideline E, Personal Conduct, and explaining why it was unable to find that it is clearly consistent with the national interest to grant him security clearance eligibility. The DOD CAF took the action under Executive Order 10865 (EO), Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6 (Directive), Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG) effective within the DOD on September 1, 2006.

Applicant responded to the SOR allegations on July 26, 2016, and he requested a hearing before a Defense Office of Hearings and Appeals (DOHA) administrative judge. On September 20, 2016, the case was assigned to me to conduct a hearing to determine whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. On September 27, 2016, I scheduled a hearing for October 19, 2016.

I convened the hearing as scheduled. Two Government exhibits (GEs 1-2) and one Applicant exhibit (AE A) were admitted into evidence without objection. Applicant testified, as reflected in a transcript (Tr.) received on October 27, 2016.

I held the record open for three weeks after the hearing for Applicant to submit additional documents. On November 9, 2016, Applicant forwarded a letter of recommendation (AE B) and a report of a drug screen (AE C). The Government had no objection to their admissibility, and AEs B and C were accepted into the record.

Summary of Pleadings

The SOR alleges under Guideline H that Applicant used marijuana with varying frequency, at times daily, from approximately 2009 to 2015 (SOR ¶ 1.a), MDMA (Ecstasy) from approximately February 2012 to March 2015 (SOR ¶ 1.d), cocaine from approximately October 2012 to July 2014 (SOR ¶ 1.e), and psilocybin (hallucinogenic mushrooms) from approximately May 2011 to April 2013 (SOR ¶ 1.f). Also under Guideline H, Applicant is alleged to have purchased marijuana regularly and sold it weekly from approximately 2009 to 2015 (SOR ¶ 1.b). A marijuana possession charge in May 2014 is alleged under Guideline H (SOR ¶ 1.c) and cross-alleged under Guideline J (SOR ¶ 2.a). Additionally, Applicant is alleged under Guideline E to continue to associate with friends who use illegal drugs (SOR ¶ 3.a).

When he responded to the SOR, Applicant admitted that he had used marijuana as alleged. He denied the purchase and sale of marijuana as alleged, and explained that he sold marijuana only for six months, which occurred between September 2011 and August 2012. While he acknowledged purchasing marijuana from 2009 to 2015, at times regularly, he indicated that he bought the drug only one time after May 2014. Applicant admitted that he had been charged with marijuana possession as alleged in May 2014, but the charge had been dropped and expunged from his record. Applicant admitted that he had used MDMA and cocaine each seven times, primarily between February 2012 and March 2013 for MDMA and between October 2012 and May 2013 for cocaine. Applicant denied the alleged psilocybin use in that he had used the drug only twice; in May 2011 and November 2012. Applicant denied the criminal conduct allegation, contending that he does not have a criminal record. He admitted the Guideline E allegation but questioned its nexus to the personal conduct security concern. Ruling on Procedure

Based on a county circuit court order of November 20, 2015, expunging the police and court records relating to the drug charge (SOR ¶ 2.a), Applicant moved for dismissal of the Guideline J allegation over the Government’s objection. While the DOHA administrative judge may rule on questions of procedure under Directive ¶ E3.10 and may amend the SOR at the hearing to conform to the evidence under Directive ¶ E3.1.17, authority to withdraw SOR allegations rests with Department Counsel under ¶ E3.1.6. Furthermore, a local court’s expungement order does not bar the federal government from considering the security implications of the underlying conduct that led to the criminal charge subject to the expungement order. See, e.g., ISCR Case No. 04-12678 at 3-4 (App. Bd. May 7, 2007). Accordingly, I denied the motion.

FINDINGS OF FACT

After considering the pleadings, exhibits, and transcript, I make the following findings of fact.

Applicant is a 26-year-old contracts specialist with a bachelor’s degree awarded in May 2013. He began working for his employer, a defense contractor, in June 2013. He has been in his present position since June 2015. (GEs 1, 2; AE A.) He does not currently hold, nor has he previously held a security clearance with his employer. (GE 1.)

In October 2009, approximately one month into his freshman year of college, Applicant accepted an offer of marijuana because he was curious. He enjoyed the drug’s relaxing effect on him, and he continued to use the drug at least twice a week and sometimes daily throughout college. Applicant purchased marijuana with varying frequency, at times regularly, for his personal consumption starting in December 2009. Most of his purchases were in small quantity, but he also bought an ounce or more on occasion. (Tr. 24.) During the first semester of his junior year of college (September 2011 to December 2011) and the summer following his junior year (June 2012 to August 2012), Applicant sold marijuana to friends on a weekly basis to defray his costs for the drug. (GEs 1, 2; Tr. 35-36.) Applicant was living off campus with several others. He explained that it made sense to them to purchase in larger quantities together and sell “a little bit” of their extra on weekends to other friends who offered approximately $20 for the drug. Applicant indicated that he sold marijuana to recover his costs and not for profit. (Tr. 36-37.)

Applicant purchased and used psilocybin (hallucinogenic mushrooms) on two occasions. He tried the drug out of curiosity in May 2011 and used it a second time, in November 2012, because he had a good experience the first time. Applicant purchased and used MDMA five times at concerts between February 2012 and March 2013. He used cocaine six times in college between October 2012 and May 2013. He bought cocaine for his personal consumption on two occasions between October 2012 and January 2013. (GEs 1, 2; Tr. 32-34.) He purchased a gram of cocaine for $80-$100. (Tr. 33.) Applicant knew that the use of illegal drugs was prohibited on his college campus (Tr. 27), and that he could have been expelled for selling drugs. (Tr. 37.) Applicant graduated from college in May 2013, and in June 2013, he moved to another region of the country to work for his current employer. He used marijuana 15 to 20 times and purchased marijuana occasionally after he started his defense contractor employment, in disregard of his employer’s drug policy. Applicant used marijuana in various circumstances, i.e., while visiting friends from college, at concerts, at parties, with new friends. (Tr. 44.) Applicant understood that his employer could drug test him at any time if his job performance was suffering; that he could be disciplined if found to be under the influence of drugs or alcohol; and that there were programs “if they deemed [drug use] not to be as serious.” (Tr. 41-42.) Applicant explained that he did not think that he would hold his job long enough to require a clearance or that he would be placed in a position requiring a security clearance. (Tr. 43.)

In May 2014, Applicant was issued a criminal citation for possession of marijuana.1 (GE 1; AE A.) Four or five police officers approached him as he was leaving a park around the corner from his apartment. They had observed him smoking marijuana, and they discovered a marijuana cigarette in the parking lot near his vehicle. Applicant admitted to the officers that it was his marijuana. (Tr. 30-31.) He had smoked marijuana before he was approached by the police. (Tr. 46.) Applicant pleaded not guilty, and the charge was nolle prosequi in October 2014.2 On Applicant’s motion, the police and court records relating to the criminal charge were expunged in November 2015.3 (AE A.) In June 2014, Applicant was transferred by his employer to a work location not far from his college. He used cocaine one more time, in July 2014. He purchased and used MDMA twice after college, the last time in March 2015. After Applicant resolved to stop using marijuana as a result of his court appearance in October 2014, he used marijuana at least once in March 2015 at a reunion of his college singing group. At his hearing, he explained that he was celebrating at a party after a show, that there was excessive alcohol involved, and that he accepted an offer of marijuana. (GEs 1, 2; Tr. 43-44.)

In June 2015, Applicant began his current position at work (AE A), which was apparently a promotion for him. (Tr. 60.) On August 31, 2015, Applicant completed and certified to the accuracy of a Questionnaire for National Security Positions (SF 86) in application for a DOD security clearance. He responded affirmatively to police record inquiries and indicated that he had been arrested for alleged use of marijuana in May 2014, but the case against him was dismissed and that charge was in the process of being expunged. In response to inquiries concerning any illegal use of drugs or controlled substances in the last seven years, Applicant disclosed that he smoked marijuana between October 2009 and March 2015. He stated, “Smoked recreationally multiple times a week during college, only occasionally after college.” He also disclosed that he used hallucinogenic mushrooms twice in college; that he used MDMA at concerts seven times total between February 2012 and March 2015; and that he used cocaine seven times between October 2012 and July 2014. Applicant indicated with respect to each drug that he did not intend any future use because he understood it could jeopardize his security clearance eligibility. Applicant also responded “Yes” to an inquiry into any illegal purchase or sale in the last seven years. He reported that he “bought marijuana to smoke” between December 2009 and March 2015 “regularly during college and infrequently following graduation.” Applicant disclosed that during the first semester of his junior year of college and the summer following his junior year, he sold excess marijuana to recoup his costs. He added that twice during his sophomore year, he gave money to a friend so that he could buy marijuana to sell. Applicant also listed his purchases of MDMA, cocaine, and hallucinogenic mushrooms for his personal consumption. (GE 1.)

On December 1, 2015, Applicant was interviewed by an authorized investigator for the Office of Personnel Management (OPM). Applicant provided some detail about his illegal drug use, purchase, and sales. Applicant is reported to have told the investigator that he purchased marijuana in amounts of an ounce or more. Regarding the May 2014 drug offense, Applicant reportedly refused to disclose to the investigator what he was doing in the park. Applicant told the investigator that two officers claimed to have observed him smoking marijuana based on the remains of a marijuana cigarette on the ground about 10- 15 feet away from him. Applicant denied he was arrested, but acknowledged that he was issued a criminal citation for illegal possession of marijuana. He refused to state whether he had used marijuana on that occasion. He explained that the charge was dismissed by the court with no finding of guilt. Applicant denied any likelihood of recurrence of any criminal drug involvement and indicated that he had no intent to use or purchase marijuana, psilocybin, MDMA, or cocaine in the future. He expressed disinterest in using psilocybin, MDMA, and cocaine. While he no longer associated with persons who use psilocybin, Applicant acknowledged that he associates with persons who use marijuana, MDMA, and cocaine, although he reportedly declined to provide information about his associates who use illegal drugs, including the names, times, or locations where he associates with known drug users. (GE 2.)

At his hearing, Applicant clarified that while he had told the OPM investigator that he had purchased marijuana in quantity of an ounce or more, it was in response to inquiry concerning the largest amount ever purchased. Most of his purchases were “in extremely small quantities, much, much well and below an ounce or more.” (Tr. 24.) About his use of drugs after college, Applicant indicated that it took some time “to break out of that college mind-set;” that he found himself in situations, at parties or otherwise, where he would use drugs. He asserted that he has avoided situations conducive to drug use after he realized that such situations were hindering his personal and professional growth. (Tr. 40.) Concerning his reported ongoing association with people who use illegal drugs, Applicant testified:

I would like to point out the large majority of those people are not in my day- to-day life, these are, again, friends from college, the large majority of whom live in [city name omitted]. The friends that I do associate with on a regular basis do not use drugs. . . .

Applicant denies any intent to use illegal drugs in the future. His asserts that his “youthful curiosity” that led him to try MDMA, cocaine, and psilocybin has been “satisfied.” (Tr. 32.) Applicant explained that he had not considered the possible future impacts of such drug use when he was in college, but his position has given him a “greater appreciation and respect for the severity and responsibility that comes with a security clearance.” (Tr. 25.) He acknowledged that he continues to associate with individuals “that do occasionally use drugs,” but he denied using illegal drugs with them. He admitted that he has “sometimes” been in the presence of persons smoking marijuana since March 2015 (Tr. 28), although he claims he cannot recall the last time. He does not believe he was around anyone smoking marijuana in 2016. (Tr. 45-46.) Applicant has told his friends that he cannot use illegal drugs because he has applied for a DOD security clearance. (Tr. 50.)

As of October 2016, Applicant had recently become engaged. He lives with his fiancée. They used marijuana together on occasion in the past, most recently in 2014. (Tr. 45.) Applicant attests that drug use was “a rare occurrence” for his fiancée, who does not use drugs. (Tr. 45.) Most of his current socialization involves other couples or going out to dinner. He no longer finds himself in situations conducive to drug use, nor does he have any desire to continue using illegal drugs. (Tr. 38.) He understands that he would stand to lose security clearance eligibility for any drug use and that the rules in that regard are “non- negotiable.” He described himself as “a foolish college kid that has since grown up quite substantially.” (Tr. 39.)

On October 28, 2016, Applicant took a random drug screen, which was negative for all substances tested, including amphetamines, cocaine, marijuana, opiates, and phencyclidine. (AE C.) Applicant has never been diagnosed as drug dependent. (Tr. 39.)

Applicant’s supervisor since June 2015 provided a character reference for him. She described Applicant as a pleasure to manage. He has demonstrated excellent judgment and professional behavior at work with no incidents. She believes he can be trusted with a security clearance. (AE B.)

POLICIES

The U.S. Supreme Court has recognized the substantial discretion the Executive Branch has in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 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 required to be considered 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 overall adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), 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 access to classified information will be resolved in favor of 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, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The applicant 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 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. 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

The security concern for drug involvement is set out in AG ¶ 24:

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.

Under AG ¶ 24(a), drugs are defined as “mood and behavior altering substances,” and include:

(1) Drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens),4 and

(2) inhalants and other similar substances.

Under AG ¶ 24(b), drug abuse is defined as “the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.” Disqualifying condition AG ¶ 25(a), “any drug abuse,” applies because Applicant used marijuana mostly twice a week but also daily at times while in college between October 2009 and May 2013, and 15 to 20 times after college. His last use occurred in March 2015 during a reunion of his college singing group. Applicant also used the hallucinogen psilocybin twice, in May 2011 and again in November 2012; cocaine six times in college between October 2012 and May 2013 and once after college in July 2014; and the stimulant MDMA five times at concerts between February 2012 and March 2015, including twice after college. AG ¶ 25(c), “illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia,” is established because Applicant purchased marijuana on a regular basis in college and occasionally after college to as recently as March 2015.5 He bought psilocybin and cocaine two times and MDMA approximately seven times between February 2012 and March 2015. Additionally, Applicant purchased a larger quantity of marijuana (an ounce or more) in college with the intent of selling to friends to recoup his costs. Applicant sold marijuana to friends during the fall of his junior year (September 2011 to December 2011) and the next summer (June 2012 to August 2012). Applicant did not seek to profit from the drug, but his sales to friends implicate application of the disqualifying condition in AG ¶ 25(c).

Mitigating condition 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,” applies in part. His use of psilocybin was limited to twice in college. His involvement with cocaine and MDMA was likewise infrequent, although he used cocaine a year into his defense contractor employment and MDMA only five months before he applied for a DOD security clearance. It is even more difficult to apply AG ¶ 26(a) to his marijuana involvement, given his regular abuse of the drug in college and 15-20 times after he began his defense contractor employment, including after he was criminally cited for illegal possession.

Mitigating condition AG ¶ 26(b), “a demonstrated intent not to abuse any drugs in the future” may be shown by the following:

(1) disassociation from drug-using associates and contacts;

(2) changing or avoiding the environment where drugs were used;

(3) an appropriate period of abstinence; or

(4) a signed statement of intent with automatic revocation of clearance for any violation.

There is no evidence that Applicant has used any illegal drug since his last use of marijuana and MDMA in March 2015. He reports a lack of interest in ever using cocaine, psilocybin, or MDMA again. Applying for a DOD security clearance appears to have been a primary motivator in him resolving to forego any future marijuana use. Yet, Applicant admits that he continues to associate with individuals who occasionally use illegal drugs such as marijuana, cocaine, and MDMA. Applicant’s unrebutted but also uncorroborated testimony is that he has advised his friends that he cannot use illegal drugs again because he is applying for a security clearance, but AG ¶ 26(b)(1) does not apply as long as he continues to associate with known drug users. As for AG ¶ 26(b)(2), Applicant is no longer in the college environment, where his drug use was at its heaviest. However, Applicant did not stop his drug use after he graduated. He used marijuana in a variety of circumstances, including with new friends, after he moved to a new area and began working for a defense contractor. His recent engagement and cohabitation with his fiancée minimize the risk of future drug involvement somewhat. He smoked marijuana with his fiancée in the past, but it was also atypical behavior for his fiancée. Most of Applicant’s current socialization is with other couples and does not involve illegal drugs. Yet, he has sometimes been in the presence of persons using marijuana since March 2015, so the change in environment does not guarantee against future drug abuse.

AG ¶ 26(b)(3), “an appropriate period of abstinence,” is not yet established with respect to his marijuana involvement, even though he no longer knowingly places himself in situations where marijuana is present.6 He obviously enjoyed the drug, using it on the weekends and at times daily in college. Apparently he and his cohabitants in college made large purchases of marijuana in the fall of 2011 and the summer of 2012, and then sold some of that marijuana to other friends to recoup their costs. Applicant sold marijuana knowing that he could have been disciplined and perhaps even expelled from his college for selling marijuana. He continued to smoke marijuana while working for his current employer, including at least one time after he had appeared in court on a marijuana possession charge. His abstinence of approximately 18 months as of his hearing in October 2016 is relatively short in relation to his extensive history with the drug. AG ¶ 26(b)(3) is satisfied with respect to his involvement with MDMA, psilocybin, and cocaine. Applicant disclosed that he used MDMA as recently as March 2015, and the circumstances of that abuse are not clear. Nonetheless, his use of that drug was situational, primarily or exclusively at concerts, and is not likely to reoccur. Similarly, he did not elaborate about his use of cocaine in July 2014, but I am persuaded that he has no interest in using cocaine again. His use of psilocybin did not continue after college.

Applicant indicated on his SF 86 that he does not intend to use any illegal drug in the future because he understands that any drug abuse could jeopardize him holding a security clearance. While he has not executed a separate statement of intent expressly acknowledging automatic revocation of security clearance eligibility for any illegal drug involvement, he clearly understands that the rules prohibiting drug use by persons holding a security clearance are “non-negotiable,” and he intends to abide by those rules. AG ¶ 26(b)(4) applies. It is troubling that, whether due to excessive alcohol consumption, peer pressure, or a combination of circumstances, Applicant used and purchased marijuana and MDMA after he had resolved in 2014 to stop using drugs, and he had been given a second chance by a prosecutor who agreed not to prosecute the May 2014 marijuana charge. Applicant provided little detail about the frequency and circumstances of him being in the presence of others using illegal drugs since March 2015. His change to a drug-free lifestyle is relatively recent. While he does not associate with drug users regularly, he has not made a clean break with his drug-abusing past by continuing to maintain friendships with known drug users. A lengthier period of abstention is required before I can confidently conclude that he is not likely to use or purchase marijuana again. The drug involvement security concerns are not fully mitigated.

Guideline J, Criminal Conduct

The security concern about criminal conduct is articulated in AG ¶ 30: Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness. By its very nature, it calls into question a person’s ability or willingness to comply with laws, rules and regulations.

The criminal conduct concerns are established by Applicant’s May 2014 marijuana possession charge. Disqualifying condition AG ¶ 31(c), “allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted, or convicted,” applies, notwithstanding that the state agreed to a nolle prosequi of the charge in October 2014 and his records were expunged in November 2015.

Mitigating condition AG ¶ 32(a), “so much time has elapsed since the criminal behavior happened; or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment,” does not apply despite the isolated nature of the criminal charge. Applicant had possession of marijuana on a regular basis in college, bought it repeatedly, and even sold the drug to friends.7

Expungement of the police and court records resulting from the May 2014 criminal citation does not necessarily establish AG ¶ 32(c), “evidence that the person did not commit the offense.” Applicant would not tell the OPM investigator what he had been doing in the park before the police approached him in May 2014. He reported that the police claimed to have seen him smoke a marijuana cigarette that was on the ground 10-15 feet away, and he refused to state whether or not he had used marijuana on that occasion. Applicant now acknowledges that he had smoked marijuana on that occasion and that he had admitted to the police that the marijuana cigarette belonged to him.

A good employment record is evidence of reform that can be considered under AG ¶ 32(d), “there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement.” Applicant was promoted at work, and he has demonstrated professionalism and dedication on the job. He has given his current supervisor no reason to doubt his ability to handle classified material appropriately. Applicant’s contributions to his defense contractor employer implicate AG ¶ 32(d). Yet, the risk of any future criminal conduct depends largely on whether he continues to abstain from illegal drug involvement.

Guideline E, Personal Conduct

The concerns about personal conduct are articulated 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.

Applicant candidly disclosed during his OPM interview in December 2015 that he continued to associate with friends who use marijuana and cocaine on occasion. As of his hearing in October 2016, he had not terminated his relationships with these persons, although he indicated that he has told them that he cannot use any illegal drugs because he is seeking security clearance eligibility. AG ¶ 16(d), ¶ 16(e), and ¶ 16(g) are implicated to a greater or less extent. They provide:

(d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information;

(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 standings; and

(g) association with persons involved in criminal activity.

As a threshold matter, the DOD is not in the business of dictating a person’s friendships or associations. Applicant has no control over his college friends’ decisions to use illegal drugs. However, Applicant shows poor judgment and risks relapse into drug abuse when he continues those associations. More than two years into his defense contractor employment, he was in the presence of known drug users while they were actively using. Applicant has shown some willingness to change this aspect of his social life by informing these friends that he cannot use any illegal drugs. He testified that most of his drug-using friends live in another state and that his day-to-day social interaction is couples- based with his cohabitant fiancée, who was a rare user of marijuana in the past and does not currently use illegal drugs. Two mitigating conditions have partial applicability under AG ¶ 17, as follows:

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken 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 has reduced his vulnerability somewhat, but not enough is known about the frequency and circumstances of his contacts with his drug-abusing friends. The personal conduct security concerns raised by his association with known users of illegal drugs are not yet fully mitigated.

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 his conduct and all relevant circumstances in light of the nine adjudicative process factors listed at AG ¶ 2(a).8 In making the overall commonsense determination required under AG ¶ 2(c), I have to consider Applicant’s very poor judgment in abusing illegal drugs. Some of his disregard for the laws concerning the use of controlled substances can be explained by youth and the college environment. However, Applicant’s involvement with MDMA, cocaine, and marijuana after he started his defense contractor employment is inconsistent with the sound judgment that must be demanded of him should he be entrusted with classified information. He used cocaine more than a year into his defense contractor employment and MDMA and marijuana some 21 months into his job.

Applicant’s disclosures about his drug involvement weigh in his favor under the whole-person evaluation. Yet, he also exhibited some reluctance to admit to the use of marijuana that led to the criminal charge against him in May 2014, to provide details about his association with drug users, and to explain the extent and circumstances under which he found himself in the presence of others using illegal drugs since March 2015. About his last use of marijuana in March 2015, he testified that he partook of the drug while partying at a reunion of his college singing group. He indicated that excessive alcohol was involved, but he had reported on his SF 86 that he purchased marijuana in March 2015, which suggests some premeditation.

Applicant has earned the trust of his supervisor, who commented about his professionalism and dedication at work. While Applicant exhibited some remorse at his hearing for his past drug abuse, he also wants to continue his friendships with drug users while asserting that his lifestyle is no longer conducive to drug involvement. It is well settled that once a security concern arises, there is a strong presumption against the grant or continuation of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). At some future date, Applicant may well be able to demonstrate the judgment, reliability, and trustworthiness necessary to overcome the security concerns raised by his years of illegal drug involvement. For the reasons already discussed, I am not yet able to find that it is clearly consistent with the national interest to grant Applicant eligibility.

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-1.c: Against Applicant Subparagraphs 1.d-1.f: For Applicant

Paragraph 2, Guideline J: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

Paragraph 3, Guideline E: AGAINST APPLICANT

Subparagraph 3.a: Against Applicant

CONCLUSION

In light of all of the circumstances, 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.

_______________________ Elizabeth M. Matchinski Administrative Judge

FOOTNOTES

1 Applicant submits that he was issued a criminal citation rather than arrested. (Tr. 31.) AE A, the order expunging the charge, repeatedly references his arrest for possession of marijuana. The police records, which could clarify the issue, are not before me for review. Criminal conduct security concerns are established if the underlying conduct proves illegal drug possession, irrespective of whether an applicant is handcuffed and taken to the police station for booking, issued a criminal citation ordering him to appear in court, or the charge is dismissed or expunged. See AG ¶ 31(c), “allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted, or convicted.”

2 Applicant testified that he was found not guilty in court. (Tr. 31.) The expungement order indicates that the case was resolved by nolle prosequi on October 18, 2014. (AE A.)

3 Authority for the expungement is set forth in § 19.2-392.2 of the pertinent state statutes, which provides in relevant part:

A. If a person is charged with the commission of a crime or any offense defined in Title 18.2, and 1. Is acquitted, or 2. A nolle prosequi is taken or the charge is otherwise dismissed, including dismissal by accord and satisfaction pursuant to § 19.2-151, he may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge. . .

F. After receiving the criminal history record information from the CCRE, the court shall conduct a hearing on the petition. If the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, it shall ender an order requiring the expungement of the police and court records, including electronic records, relating to the charge. Otherwise, it shall deny the petition. However, if the petitioner has no prior criminal record and the arrest was for a misdemeanor violation, the petitioner shall be entitled, in the absence of good cause shown to the contrary by the Commonwealth, to expungement of the police and court records relating to the charge, and the court shall enter an order of expungement.

The circuit court judgment issued an expungement order in Applicant’s case on a finding that the continued existence and possible dissemination of information relating to his arrest causes or may cause circumstances that constitute a manifest injustice to him. (AE A.) 4Schedules I, II, III, IV, and V, as referred to in the Controlled Substances Act, are contained in 21 U.S.C. § 812(c). Marijuana is a Schedule I drug.

5 Applicant indicated in response to the SOR that he purchased marijuana only one time between May 2014 and March 2015. He listed on his SF 86 that he bought marijuana between December 2009 and March 2015. Applicant did not elaborate about his last purchase in March 2015, although his account of his use in March 2015 that he partook of marijuana offered to him does not suggest the premeditation associated with purchase. 6 The Appeal Board has not established a “bright line” rule for determining whether drug use is recent. As stated by the Appeal Board in ISCR Case No. 14-01847 at 3 (App. Bd. Apr. 9, 2015), “The extent to which security concerns may have been attenuated through the passage of time is a question that must be resolved based on the evidence as a whole.” 7 The Appeal Board has long held that the administrative judge may consider non-alleged conduct to assess an applicant’s credibility; to evaluate an applicant’s evidence of extenuation, mitigation, or changed circumstances; to consider whether an applicant has demonstrated successful rehabilitation; to decide whether a particular provision of the Adjudicative Guidelines is applicable; or to provide evidence for a whole- person analysis under Section 6.3 of the Directive. See, e.g., ISCR Case No. 03-20327 (App. Bd. Oct. 26, 2006); ISCR Case No. 09-07219 (App. Bd. Sep. 27, 2012). 8The factors under AG ¶ 2(a) are as follows:

(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.