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ISCR Case 16-00631.h1 — CASE

ISCR Case 16-00631.h1denied

Case Headnote

ISCR Case No. 16-00631.h1

deniedJul 1, 2016· Hon. Braden M. Murphy· hearing

Summary

A 58-year-old defense contractor was denied a security clearance under Guideline H (Drug Involvement) due to his ongoing use of medical marijuana. The applicant began using marijuana for medical purposes in July 2011, obtaining a medical marijuana card in March 2011, and continued this use through 2016. A key factor in the denial was his expressed intent to continue using marijuana in the future.

The Statement of Reasons cited the applicant's medical marijuana use between 2011 and 2016, his acquisition of a medical marijuana card, and his stated intention for future use. Disqualifying conditions under Guideline H included AG ¶ 25(a), AG ¶ 25(c), and AG ¶ 25(g).

The judge determined that the applicant failed to mitigate security concerns. Although the applicant claimed his use was legal under state law and physician-prescribed, he did not provide sufficient documentation to support these claims or demonstrate actions taken to mitigate his drug involvement. The recent and frequent nature of his marijuana use, coupled with his intent to continue, raised concerns about his reliability and trustworthiness, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant used marijuana for medical purposes from 2011 to 2016 and expressed an intention to continue using it in the future.
The applicant did not provide documentation to support his claims of legal use under state law or evidence of actions taken to mitigate his drug involvement.
The applicant's marijuana use was recent and frequent, raising concerns about his reliability and trustworthiness.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedSubstance Misuse
AG ¶ 25(c)raisedIllegal Possession of a Controlled Substance
AG ¶ 25(g)raisedExpressed Intent to Continue Drug Involvement

Key Rule Quoted

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

Procedural Posture

SOR issuedJul 18, 2016
Answer filedAug 19, 2016Requested decision based on written record.
Hearing held—No hearing; decision based on written record.
Decision dateJul 1, 2017

Cite For

Denial of Security Clearance Due to Ongoing Drug Involvement Under Guideline H
Importance of Providing Documentation to Support Claims of Legal Drug Use
Consideration of Expressed Intent to Continue Drug Use 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 against the applicant on two allegations of drug involvement related to marijuana use, determining that the applicant's use raised security concerns. However, the judge ruled in favor of the applicant on one allegation regarding the possession of a medical marijuana card, concluding it was not disqualifying by itself. Ultimately, the applicant's security clearance was denied due to unresolved concerns about his marijuana use.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana for medical purposes between July 2011 and 2016.	Against Applicant	Marijuana	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (g) expressed intent to continue, or failure to commit to discontinue	—	—
1.b	Applicant expressed an intention to continue using marijuana in the future.	Against Applicant	Stated Intent to Use Again	Not Applicable	Denied with Explanation	(g) expressed intent to continue, or failure to commit to discontinue	—	—
1.c	Applicant obtained a medical marijuana card in March 2011.	For Applicant	Unspecified Drug Involvement	Unspecified	Admitted	—	—	—

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. 16-00631 ) Applicant for Security Clearance )

For Government: Douglas Velvel, Esq., Department Counsel For Applicant: Pro Se

07/10/2017 ______________

STATEMENT OF CASE

______________

MURPHY, Braden M., Administrative Judge:

Applicant used marijuana for medical purposes between July 2011 and 2016, and he expressed an intention to continue doing so in the future. He did not mitigate the resulting security concerns under Guideline H, drug involvement. Applicant’s eligibility for access to classified information is denied.

Statement of the Case

On July 18, 2016, the Department of Defense Consolidated Adjudications Facility (DoD CAF) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline H, drug involvement. The action was taken under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DoD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines effective within the DOD on September 1, 2006.

On December 10, 2016, the Director of National Intelligence (DNI) issued Security Executive Agent Directive (SEAD) 4, National Security Adjudicative Guidelines (AG). SEAD 4 became effective on June 8, 2017, for all adjudicative decisions on or after that date, including this one.1 Any changes resulting from the implementation of the new AGs did not affect my decision in this case.

Applicant answered the SOR on August 19, 2016. He requested a decision based on the written record in lieu of a hearing. On September 7, 2016, Department Counsel submitted the Government’s File of Relevant Material (FORM), including documents identified as Items 1-3. Applicant received the FORM on September 13, 2016. He was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. Applicant did not respond to the FORM or note any objections to the Government’s evidence. The SOR and Applicant’s answer (combined as Item 1) are the pleadings in the case. Items 2 and 3 are admitted into evidence. The case was assigned to me on July 1, 2017.

FINDINGS OF FACT

Applicant admitted SOR ¶¶ 1.a and 1.c, and he both admitted and denied SOR ¶ 1.b, with explanations. His admissions are incorporated into the findings of fact. After a thorough and careful review of the pleadings and exhibits submitted, I make the following additional findings of fact.

Applicant is 58 years old. He and his wife have been married since 1979. They have two grown children. He has been employed with a defense contractor since July 2015. In connection with his employment, he submitted a security clearance application (SCA) in September 2015.2

When he submitted his SCA, Applicant disclosed that he began using marijuana in July 2011, and that he used marijuana as recently as September 2015. He used marijuana about two times a week. He disclosed that he had a medical marijuana card.3 In his December 2015 background interview, Applicant indicated that he used marijuana to ease the liver pain from his hepatitis. He obtained the marijuana through a prescription, and it costs about $42. His medical marijuana card was issued in March 2011. He said he uses marijuana at home. He does not socialize with others who use the drug. He indicated that he was likely to continue using it.4

Under Guideline H, the government alleged: that Applicant used marijuana from July 2011 “to present;” that he intends to continue using marijuana in the future; and that he obtained a medical marijuana card in March 2011. In his answer, Applicant stated:

I have been prescribed marijuana legally by my physician. In [Applicant’s home state], medical marijuana is legal. I use medical marijuana as prescribed by my physician for my disability. My reliability, trustworthiness, loyalty, and integrity should not be in question because I am not using an illegal drug, or misusing a prescribed drug. I am and will continue to comply with laws, rules and regulations.5

Concerning his intent to use marijuana in the future, Applicant said, “I admit and deny. Explanation: I will use medical marijuana as legally prescribed by my physician. However, I cannot predict the future.”6 He acknowledged obtaining a medical marijuana card on the recommendation and approval of his physician, due to his medical condition. Applicant also indicate that supervisors and co-workers could attest to his judgment, reliability, trustworthiness, loyalty, integrity and attendance record. He provided no documentation supporting his assertions that his marijuana use was for medicinal purposes, or was legal under state law.7 He provided no documentation from any references.8

POLICIES

It is well established that no one has a right to a security clearance.9 As noted by the Supreme Court in Department of the Navy v. Egan, “the clearly consistent standard indicates that security determinations should err, if they must, on the side of denials.”10

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. Likewise, I have not drawn 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, 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 the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information.

ANALYSIS

Guideline H, Drug Involvement

AG ¶ 24 expresses the security concern for drug involvement:

The illegal use of controlled substances, to include the misuse of prescription drugs, and the use of other substances that can cause physical or mental impairment or are used in a manner inconsistent with their intended use 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. I have considered the disqualifying conditions for drug involvement under AG ¶ 25 and the following are potentially applicable:

(a) any substance misuse (see above definition);

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

(g) expressed intent to continue drug involvement and substance misuse, or failure to clearly and convincingly commit to discontinue such misuse.

On October 25, 2014, the Director of National Intelligence (DNI) issued guidance regarding adherence to federal laws prohibiting marijuana use. The memo cited guidance from the U.S. Department of Justice making it clear that no state can authorize violations of federal law, including violations of the Controlled Substances Act, 21 U.S.C 801, which identifies marijuana as a Schedule 1 controlled substance. Under federal law, use of marijuana remains unlawful. The DNI reaffirmed that the disregard of federal law concerning the use, sale, or manufacture of marijuana is relevant in national security determinations, regardless of changes in state laws concerning marijuana use.11

As the DOHA Appeal Board has held in a case involving an applicant’s use of medical marijuana:

State laws allowing for the legal use of marijuana in some limited circumstances do not pre-empt provisions of the Industrial Security Program and the Department of Defense is not bound by the status of an applicant’s conduct under state law when adjudicating that individual’s eligibility for access to classified information.12

Applicant began using marijuana in July 2011, after he obtained a medical marijuana card. He has continued using marijuana until at least August 2016, when he answered the SOR. He intends to continue using marijuana as prescribed by his physician. Notwithstanding the indications that his marijuana use is for medicinal purposes and may be allowed under state law, the above disqualifying conditions apply to SOR ¶¶ 1.a and 1.b.13

Applicant obtained a medical marijuana card in March 2011. This fact may be indicative of his intention to use marijuana for medicinal purposes. However, an applicant’s mere possession of such a card, whether issued by a licensed physician pursuant to applicable state law or otherwise, is not, by itself, disqualifying under Guideline H. SOR ¶ 1.cis found for Applicant.14

I have considered the mitigating conditions under AG ¶ 26. 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) 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 is grounds for revocation of national security eligibility;

No mitigating conditions apply. Applicant used marijuana between July 2011 and August 2016 about twice a month to relieve his pain due to a medical condition. He indicated (but did not document) that his marijuana use is prescribed by his physician and allowed under state law where he lives. These circumstances do not mitigate his marijuana use. He indicated that he intends to continue using marijuana as prescribed. His marijuana use is recent and frequent. He has not established that it occurred under such circumstances that it is unlikely to recur. Indeed, to the contrary. AG ¶ 26(a) does not apply. Similarly, while Applicant acknowledged his marijuana use, he has not acknowledged that his use was illegal. He has not provided any evidence of any actions taken to overcome his marijuana use. He has not established a pattern of abstinence. AG ¶ 26(b) does 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 relevant 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 guidelines 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 have incorporated my comments under Guideline H in my whole-person analysis. I conclude Applicant did not mitigate the drug involvement security concerns over his use of marijuana. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance.

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 Subparagraph 1.b: Against Applicant Subparagraph 1.c: For Applicant

CONCLUSION

In light of all of the circumstances, it is not clearly consistent with the national interest to grant Applicant a security clearance. Eligibility for access to classified information is denied.

_____________________________ Braden M. Murphy Administrative Judge

FOOTNOTES

1 The new Adjudicative Guidelines are available at http://ogc.osd.mil/doha/5220-6 R20170608.pdf.

2 Item 3.

3 Item 2 at 33-34.

4 Item 3 at 4. 5 Item 1.

6 Item 1.

7 Applicant’s home state does have a medical marijuana program (see http://www.health.ri.gov/healthcare/medicalmarijuana/for/patients/), though Applicant did not submit any documentation to verify his statements that his marijuana use accords with it. 8 Item 1 9 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“it should be obvious that no one has a ‘right’ to a security clearance”). 10 484 U.S. at 531. 11 See Memorandum from Director of National Intelligence, “Adherence to Federal Laws Prohibiting Marijuana Use,” dated October 25, 2014, located at https://www.chcoc.gov/sites/default/files/ODNI-policy- guidance-adherence-to-federal-laws-prohibiting-marijuana-use.pdf. The memo refers to the Adjudicative Guidelines for Determining Access to Classified Information which were then in effect. As addressed above, those AGs have been superseded by the new AGs, effective June 8, 2017. Nonetheless, the DNI’s policy guidance is applicable. 12 ISCR Case No. 14-03734 at 3 (App. Bd. Feb. 18, 2016) (relying on the DNI Memo). 13 Both Guideline H and Appendix B of the June 8, 2017 Adjudicative Guidelines reference Public Law 110-118 (the Bond Amendment), and note that it is applicable to Guideline H. See SEAD-4 at Guideline H, Fn. 1. Under Appendix B (Bond Amendment Guidance), “heads of agencies are prohibited from granting or renewing national security eligibility for any covered individual who is a controlled user of a controlled substance . . .” See SEAD-4, App. B, ¶ 1 (PROHIBITION). The Bond Amendment was made effective on January 1, 2008. See SEAD-4, App. B. I therefore considered potential application of the Bond Amendment to this case. However, I note that the Government did not allege the Bond Amendment in the SOR. I therefore decline to apply it to the Applicant so as to statutorily prohibit him from access to classified information. 14 This is not to condone or endorse Applicant’s possession of a medical marijuana card, but merely to conclude that his possession of such a card, as alleged in SOR ¶ 1.c, is not, by itself, specifically disqualifying under the listed AGs in ¶ 25 of Guideline H.