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ISCR Case 16-00674.h1 — CASE

ISCR Case 16-00674.h1denied

Case Headnote

ISCR Case No. 16-00674.h1

deniedOct 10, 2017· Hon. Richard A. Cefola· hearing

Summary

A 27-year-old defense contractor, with a high school education and some college, was denied a security clearance under Guideline H (Drug Involvement). The denial stemmed from his admitted history of drug use, which included marijuana, cocaine, hallucinogenic mushrooms, and ecstasy.

Specifically, the applicant admitted to purchasing and using marijuana from approximately July 2008 to January 2015, using cocaine once in May 2014, purchasing and using mushrooms from approximately March 2008 to December 2014, and using ecstasy from approximately June 2009 to August 2009. These admissions raised disqualifying conditions H.25(a) and H.25(c).

While mitigating conditions H.26(a) and H.26(b) were considered, and the applicant had a negative drug test, the judge found insufficient evidence of rehabilitation. The cessation of drug use appeared motivated by job security rather than a genuine commitment to abstain. Furthermore, the applicant provided no evidence of disassociating from drug-using associates or avoiding drug-using environments, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant admitted to purchasing and using marijuana, cocaine, hallucinogenic mushrooms, and ecstasy, raising significant security concerns.
The applicant's cessation of drug use appeared motivated by job security rather than genuine rehabilitation.
The applicant provided no evidence of disassociating from drug-using associates or avoiding environments where drugs are used.

Conditions Referenced

Disqualifying

H.25(a)appliedSubstance Misuse
H.25(c)appliedIllegal Possession of a Controlled Substance

Mitigating

H.26(a)rejectedBehavior Happened Long Ago or InfrequentlyThe applicant's drug use was recent and ongoing until January 2015.
H.26(b)rejectedAcknowledgment and Evidence of Actions Taken to Overcome Drug InvolvementThe applicant did not provide sufficient evidence of rehabilitation or a commitment to abstain from drug use.

Key Rule Quoted

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

Procedural Posture

SOR issuedJun 8, 2016
Answer filedJun 23, 2016Applicant requested a decision on the record without a hearing.
Hearing held—No hearing; decision made on the record.
Decision dateOct 10, 2017

Cite For

Denial of Security Clearance Due to Drug Involvement Under Guideline H
Insufficient Evidence of Rehabilitation and Commitment 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.

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 all allegations related to drug involvement and substance misuse. The applicant admitted to using marijuana, cocaine, hallucinogenic mushrooms, and ecstasy over several years, raising significant concerns about his reliability and trustworthiness. The judge concluded that the applicant did not sufficiently mitigate these concerns, resulting in a denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant admits to purchasing and using marijuana, with varying frequency, from approximately July of 2008 to January of 2015.	Against Applicant	Marijuana	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	Applicant admits to using cocaine on one occasion in May of 2014.	Against Applicant	Cocaine	Experimental	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.c	Applicant admits to purchasing and using mushrooms, with varying frequency, from approximately March of 2008 to December of 2014.	Against Applicant	Psilocybin	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.d	Applicant admits to using ecstasy, with varying frequency, from approximately June of 2009 to August of 2009.	Against Applicant	MDMA	Experimental	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. 16-00674 ) ) Applicant for Security Clearance )

For Government: Andrea M. Corrales, Esquire, Department Counsel For Applicant: Pro se

October 10, 2017

______________

STATEMENT OF CASE

______________

Richard A. Cefola, Administrative Judge:

On October 5, 2015, Applicant submitted his Electronic Questionnaire for Investigations Processing (e-QIP). On June 8, 2016, the Department of Defense Consolidated Adjudications Facility (DODCAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline H. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the Adjudicative Guidelines effective September 1, 2006.

Applicant acknowledged receipt of the SOR on June 22, 2016. Applicant answered the SOR on June 23, 2016 (Item 2), and requested a decision on the record without a hearing. Department Counsel submitted the Government’s written case on July 28, 2016. A complete copy of the file of relevant material (FORM) was sent to Applicant, including documents identified as Items 1 through 3. He was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. He responded to the FORM (Response) on August 23, 2016. Items 1 through 3 and Applicant’s Response are admitted into evidence. The case was assigned to me on May 10, 2017.

On June 8, 2017, the DOD implemented new AG.1 Accordingly, I have applied the June 2017 AG.2 However, because the September 2006 AG were in effect on the date the FORM was completed, I have also considered the September 2006 AG. Having considered both versions of the AG, I conclude that my decision would have been the same had I applied the September 2006 AG.

FINDINGS OF FACT

In his Answer to the SOR Applicant admitted all the factual allegations in Paragraph 1 of the SOR, without explanation. In his Response, Applicant provided an August 18, 2016 drug test, using hair samples, the results of which were “Negative.”

Applicant is 27 years old. (Item 3 at page 5.) He has a high school education, with some college attendance. (Item 3 at pages 8–9.) He works for a defense contractor. (Item 3 at page 9.)

Guideline H – Drug Involvement and Substance Misuse

1.a. Applicant admits to purchasing and using marijuana, with varying frequency, from approximately July of 2008 to January of 2015. (Item 2 at page 1.) In his e-QIP, Applicant describes his involvement with marijuana in the following terms: “I used to really like marijuana and did not see any danger in the drug. I’ve done it legally in Colorado but also illegally . . . “ (Item 3 at page 27.) He further avers, “The first times [sic] I did marijuana it was me and a couple of friends smoking now and than [sic] at parties. So it was quite frequent for a matter of years. And than [sic] there was a large break from it for the years I was in the oil fields.” (Item 3 at pages 27–28.) As to his future intentions, he avers, “If it ever became regulated and legal like tobacco or alcohol I would consider smoking again. . . But as long as I am working for an employer that does not allow it I do not plan on doing so.” (Item 3 at page 28.)

1.b. Applicant admits to using cocaine on one occasion in May of 2014. (Item 2 at page 1.) In his e-QIP, Applicant describes his involvement with cocaine in the following terms: “It was at a party and I was drunk enough to try it.” (Id.) As to his future intentions, he avers, “I’ve stopped doing the childish thing of going with the flow and hold a stricter guideline for myself.” (Item 3 at page 29.)

1.c. Applicant admits to purchasing and using mushrooms, with varying frequency, from approximately March of 2008 to December of 2014. (Item 2 at page 1.) In his e-QIP, Applicant describes his involvement with hallucinogenic mushrooms in the following terms: “I did mushrooms wanting to experiment with artistic nature a few times when I found myself in a stand still of artistic nature. I have only done them three times in total.” (Item 3 at page 27.) As to his future intentions, he avers, “I know that the nature of the job I am currently in and the position within this company are far more important than having fun and doing things of [an] illegal nature.” (Id.)

1.d. Applicant admits to using ecstasy, with varying frequency, from approximately June of 2009 to August of 2009. (Item 2 at page 1.) In his e-QIP, Applicant describes his involvement with the stimulant ecstasy in the following terms: “Myself and a few friends experimented with ecstasy shortly after getting out of high school the summer before going to college.” (Item 3 at page 28.) He further avers, “I did it 3 times that summer and have not done it again.” (Id.) As to his future intentions, he avers, “It was a phase of wanting to experiment with new mind altering affects that a lot of adolescents go through.” (Item 3 at page 28.)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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, administrative judges apply the guidelines in conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), 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 avoided drawing inferences grounded on mere speculation or conjecture. Directive ¶ E3.1.14 requires the Government to present evidence that establishes 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 the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance 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 protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order 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 Misuse

The security concern relating to the guideline for Drug Involvement and Substance Misuse is set forth at AG ¶ 24:

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.

The guideline at AG ¶ 25 contains seven conditions that could raise a security concern and may be disqualifying. Two conditions are established:

(a) any substance misuse (see above definition); and (c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia.

Appellant purchased and smoked marijuana with varying frequency for about seven years, ending in January of 2015. He also experimented with cocaine, hallucinogenic mushrooms, and ecstasy. Therefore, AG ¶ 25 (a), and (c) are established.

The guideline at AG ¶ 26 contains four conditions that could mitigate security concerns. Two conditions may be 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; and

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

Although Applicants admitted drug involvement was two years ago, it would appear that he only stopped that usage to hopefully keep his job. I have serious concerns that he might return to smoking marijuana, despite its purchase and usage being illegal under federal law, should the opportunity present itself. Furthermore, he offers no evidence that he has disassociated himself from those who use recreational drugs, or avoids the environment where drugs such as marijuana are used. In his Response, Applicant only offers an unsigned cover letter, with an attached drug test, showing he was drug free in August of 2016. There is no showing that this was a random test; and as such, it could have been easily orchestrated.

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 an 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.

AG ¶ 2(b) requires each case must be judged on its own merits. 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. Applicant has offered nothing from those who know him in his community or in the workplace. My comments regarding Guideline H are also incorporated here.

Overall, the record evidence leaves me with questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant has not mitigated the security concerns arising from his drug involvement and substance misuse.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline H: AGAINST APPLICANT

Subparagraph 1.a.~1.d.: 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 national security eligibility for a security clearance. Eligibility for access to classified information is denied.

_________________ Richard A. Cefola Administrative Judge

FOOTNOTES

1 On December 10, 2016, the Security Executive Agent issued Directive 4 (SEAD-4), establishing a “single, common adjudicative criteria for all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position.” (SEAD-4 ¶ B, Purpose). The SEAD-4 became effective on June 8, 2017 (SEAD-4 ¶ F, Effective Date). The National Security Adjudicative Guidelines (AG), which are found at Appendix A to SEAD-4, apply to determine eligibility for initial or continued access to classified national security information. (SEAD-4 ¶ C, Applicability).

2 ISCR Case No. 02-00305 at 3 (App. Bd. Feb. 12, 2003) (security clearance decisions must be based on current DoD policy and standards).