Loading case…

ISCR 16-00693.h1: Guideline H security clearance hearing, denied (2017) · CASE

ISCR Case 16-00693.h1denied

Case headnote

ISCR Case No. 16-00693.h1

deniedOct 18, 2017· Hon. Gregg A. Cervi· hearing

Summary

A 31-year-old senior software engineer was denied a security clearance under Guideline H (Drug Involvement) due to his admitted marijuana use. The applicant used marijuana from approximately August 2006 to at least October 2015, and critically, continued use after submitting his security clearance application. This pattern of use raised concerns under Disqualifying Conditions AG ¶ 25(a) and AG ¶ 25(g).

The denial was based on several factors. The applicant admitted to using marijuana until at least October 2015, including after the submission of his application. Furthermore, he did not provide evidence of drug counseling or a signed statement of intent to abstain from drug use.

The judge found the applicant's promises to refrain from future illegal drug use lacked credibility. This was primarily due to his continued association with a regular marijuana user, which undermined his expressed intent to abstain. Consequently, the judge determined there was insufficient evidence of a commitment to change, leading to the denial of his security clearance application.

Why the applicant was denied

The applicant admitted to using marijuana until at least October 2015, including after submitting his security clearance application.
He failed to provide evidence of drug counseling or a signed statement of intent to abstain from drug use.
The applicant's promises to refrain from future illegal drug use were deemed not credible due to his continued association with a regular marijuana user.

Conditions referenced

Disqualifying

AG ¶ 25(a)appliedSubstance Misuse
AG ¶ 25(g)appliedRecent Drug Involvement

Key rule quoted

“[N]o one has a ‘right’ to a security clearance.”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural posture

SOR issuedJun 22, 2016
Answer filedJun 30, 2016Applicant elected for a decision on the written record.
Hearing held—No hearing; decided on written record.
Decision dateOct 18, 2017

Cite for

Insufficient Evidence of Commitment to Abstain From Drug Use
Recent Drug Involvement Raises Security Concerns
Credibility of Applicant's Intent to Stop Drug Use Questioned

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: 31: “Applicant is a 31-year-old senior software engineer for a defense contractor, employed since 2008.”
Tenure: ~9 years: “Applicant is a 31-year-old senior software engineer for a defense contractor, employed since 2008.”
Held a clearance before: No: “He has not previously held a DOD security clearance.”

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant was found to have used marijuana from 2006 to at least October 2015, including after submitting a security clearance application. The judge ruled against the applicant on the allegations under Guideline H, concluding that the applicant's drug use raised significant concerns about his reliability and trustworthiness, leading to a denial of his security clearance.

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

Descriptive standardized rendering of a decided public case. The verbatim source decision is shown in full below.

Full decision

The complete, official text, footnotes and signatures included, is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-00693 ) Applicant for Security Clearance )

For Government: Carroll J. Connelley, Esq., Department Counsel For Applicant: Pro se

10/18/2017

STATEMENT OF CASE

CERVI, Gregg A., Administrative Judge

This case involves security concerns raised under Guideline H (Drug Involvement and Substance Abuse). Eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application (SCA) on October 6, 2015. On June 22, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline H.1

Applicant answered the SOR on June 30, 2016, and elected to have the case decided on the written record in lieu of a hearing. The Government’s written brief with supporting documents, known as the File of Relevant Material (FORM), dated September 19, 2016, was submitted by Department Counsel.

A complete copy of the FORM was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on September 26, 2016. He did not submit a response to the FORM. The Government’s exhibits included in the FORM (Items 1 to 3) are admitted into evidence. The case was assigned to me on August 8, 2017.

FINDINGS OF FACT

Applicant is a 31-year-old senior software engineer for a defense contractor, employed since 2008. He was awarded a bachelor’s degree in 2008 and a master’s degree in 2010. He married in 2011 and has no children. He has not previously held a DOD security clearance.

The SOR alleges Applicant used marijuana from approximately August 2006 to at least October 2015. Applicant admitted the SOR allegation. In his SCA, he disclosed that he began using marijuana while in college with varying frequency, but stopped after he graduated and was seeking employment. After obtaining his current position in 2008, he again started using marijuana about once per month, and then more frequently since 2009. He stated his last use was in September 2015. He used marijuana primarily with his spouse at his home about once or more per week. His spouse continues to use marijuana and purchases it from a dealer unknown to Applicant. In his SCA, Applicant stated that he did not intend to use marijuana if he is granted a security clearance and acknowledged that its use is prohibited. He asked his spouse to refrain from asking him to use it, and to not use it in his presence.

In December 2015, Applicant was interviewed by a government investigator. During that interview, he admitted that he used marijuana, one time, after he completed his SCA. He noted his future intent is to abstain from marijuana use because he would like to obtain a security clearance. Applicant noted in his answer to the SOR, that obtaining a security clearance will assist with work on certain contracts, so he decided to stop using marijuana to increase his chances of obtaining a security clearance.

Applicant did not submit evidence of drug counseling or a signed statement of intent to abstain from drug involvement.

Law and Policies

The Director of National Intelligence (DNI) issued revised adjudicative guidelines (AG) in a Security Executive Agent Directive, effective on June 8, 2017. My ultimate decision would be the same under either set of adjudicative guidelines.

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865 § 2.

National security eligibility is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider a person’s stability, trustworthiness, reliability, discretion, character, honesty, and judgment. AG ¶ 1(b).

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. 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 about potential, rather than actual, risk of compromise of classified information.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005).

An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01- 20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 1(d).

ANALYSIS

Guideline H, Drug Involvement and Substance Misuse

The security concern for drug involvement and substance misuse is set out in 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 notes conditions that could raise security concerns under AG ¶ 25. The disqualifying condition potentially applicable in this case includes:

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

Applicant used marijuana from 2006 to at least October 2015. Additionally, he used marijuana after completing a security clearance application. Disqualifying conditions under AG ¶¶ 25 (a) and (g) are applicable.

AG ¶ 26 provides conditions that could mitigate security concerns. 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;

(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; and (d) satisfactory completion of a prescribed drug treatment program, including, but not limited to, rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional.

Applicant is an educated, mature adult. He began using marijuana in college, stopped while seeking employment, then began again in 2008, after finding his current job. He continued to use it with his spouse until he applied for a security clearance. However, after noting his intent to stop using marijuana, he admitted to an additional use after completing his SCA. He continued to use marijuana after applying for a security clearance with the knowledge that illegal drug use is not permitted by Federal law or presumably his company’s policy as a DOD security clearance sponsor. His promises to refrain from future illegal drug use are not credible. He used marijuana in his home with his spouse, who continues to use it. He has not shown a clear and convincing commitment to discontinue further illegal drug use or to change his environment where illegal drugs are being used.

There is insufficient evidence to mitigate Applicant’s illegal drug use. His conduct is recent and his claimed period of abstinence is not a sufficient period to show a change in attitude and lifestyle. There is insufficient evidence to show that future illegal drug use is unlikely to recur. He continues to associate with a regular user of marijuana in his home, and he has not participated in drug treatment or avoidance counseling. He did not present a signed statement of intent to avoid future use, but he did state such intent in his answer and interview. However, the evidence is insufficient to show a demonstrated intent not to use illegal drugs in the future. His history of marijuana use, especially after applying for a security clearance, continues to cast doubt on his reliability, trustworthiness, and good judgment. No mitigation is applicable.

WHOLE PERSON CONCEPT

Under AG ¶¶ 2(a), 2(c), and 2(d), the ultimate determination of whether to grant national security eligibility must be an overall commonsense judgment based upon careful consideration of the guidelines and the 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). Although adverse information concerning a single criterion may not be sufficient for an unfavorable eligibility determination, the individual may be found ineligible if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility, or unstable behavior. AG ¶ 2(e).

I considered all of the potentially disqualifying and mitigating conditions in light of the facts and circumstances surrounding this case. I have incorporated my findings of fact and comments under Guideline H in my whole-person analysis. Applicant is a mature, well- educated adult. His history of regular illegal drug use, and continued use after applying for a security clearance, leave me with serious questions about his future intent and his willingness to follow rules and regulations. I am not convinced that he fully appreciates the legal and policy implications of his actions, and he has not clearly and convincingly established a commitment to discontinue further illegal drug use.

Accordingly, I conclude Applicant has not carried his burden of showing that it is clearly consistent with the national security interests of the United States to grant him eligibility for access to classified information.

FORMAL FINDINGS

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

Paragraph 1, Guideline H: Against Applicant

Subparagraph 1.a: Against Applicant

CONCLUSION

I conclude that it is not clearly consistent with the national security interests of the United States to grant Applicant eligibility for access to classified information. Clearance is denied.

Gregg A. Cervi Administrative Judge

FOOTNOTES

1 The DOD CAF acted 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 (AG) implemented by the DOD on September 1, 2006.