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ISCR Case 16-00886.h1 — CASE

ISCR Case 16-00886.h1denied

Case Headnote

ISCR Case No. 16-00886.h1

deniedMar 6, 2017· Hon. Robert E. Coacher· hearing

Summary

A 26-year-old defense contractor was denied a security clearance under Guideline H (Drug Involvement) due to his history of marijuana use and ongoing associations. The Statement of Reasons alleged that the applicant used marijuana with varying frequency from approximately June 2009 to October 2014, and purchased it from September 2009 to October 2014. Additionally, he continued to associate with individuals who use marijuana.

Disqualifying conditions were raised under Adjudicative Guidelines (AG) ¶ 25(a), AG ¶ 25(c), and AG ¶ 25(h). While mitigating conditions AG ¶ 26(a) and AG ¶ 26(b) were considered, they were not sufficient to overcome the security concerns.

The denial was based on the applicant's regular marijuana use and purchases between 2009 and 2014, and his continued association with marijuana users, including living with a frequent user. The judge determined that the applicant did not provide clear and convincing evidence of an intent to discontinue marijuana use in the future, leading to the denial of his security clearance.

Why the Applicant Was Denied

Applicant used marijuana regularly from 2009 to 2014 and purchased it during that time.
He continued to associate with individuals who use marijuana, including living with a frequent user.
The applicant failed to demonstrate a clear and convincing intent to discontinue marijuana use in the future.

Conditions Referenced

Disqualifying

AG ¶ 25(a)appliedAny Drug Abuse
AG ¶ 25(c)appliedIllegal Drug Possession, Including Cultivation, Processing, Manufacture, Purchase, Sale, or Distribution
AG ¶ 25(h)appliedExpressed Intent to Continue Illegal Drug Use, or Failure to Clearly and Convincingly Commit to Discontinue Drug Use

Mitigating

AG ¶ 26(a)rejectedThe 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
AG ¶ 26(b)rejectedA Demonstrated Intent Not to Abuse Any Drugs in the Future

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural Posture

SOR issuedJul 11, 2016
Answer filedJul 29, 2016
Hearing heldOct 26, 2016
Decision dateMar 6, 2017

Cite For

Denial of Security Clearance Due to Drug Involvement Under Guideline H
Insufficient Evidence to Mitigate Drug-related Security Concerns
Impact of Continued Association with Drug Users on Security Clearance Eligibility

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge found that the applicant's drug involvement raised significant security concerns, particularly regarding his use of marijuana. Despite the applicant's claims of abstinence since October 2014, the judge determined that his continued association with marijuana users and lack of formal rehabilitation undermined his credibility. Consequently, the applicant's request for a security clearance was denied.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	used marijuana, with varying frequency, from approximately June 2009 to approximately October 2014	Against Applicant	MarijuanaWHILE CLEARED	Frequent	Admitted	—	—	—
1.b	purchased marijuana from approximately September 2009 to approximately October 2014	Against Applicant	MarijuanaWHILE CLEARED	Frequent	Admitted	—	—	—
1.c	continues to associate with people who use marijuana	Against Applicant	Unspecified Drug InvolvementWHILE CLEARED	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. 16-00886 ) Applicant for Security Clearance )

For Government: Andre M. Gregorian, Esq., Department Counsel For Applicant: Pro se, Esq.

03/06/2017 ______________

STATEMENT OF CASE

______________

COACHER, Robert E., Administrative Judge:

Applicant failed to mitigate the Government’s security concerns under Guideline H, drug involvement. Applicant’s eligibility for a security clearance is denied.

Statement of the Case

On July 11, 2016, the Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline H, drug involvement. DOD acted under Executive Order (EO) 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.

Applicant answered the SOR on July 29, 2016, and requested a hearing. I was assigned the case on October 7, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing and I convened the hearing as scheduled on October 26, 2016. The Government offered exhibits (GE) 1 and 2, which I admitted into evidence without objection. The Government’s discovery letter and exhibit list were marked as hearing exhibits (HE) I and II. Applicant testified, but did not offer any exhibits. DOHA received the hearing transcript (Tr.) on November 2, 2016.

FINDINGS OF FACT

In Applicant’s answer, he admitted all the allegations in the SOR (with some explanations). I adopt those admissions as 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 26 years old. He is single, never been married, and has no children. He has worked for his current employer, a defense contractor, since June 2012. He is a high school graduate.1

The SOR alleges Applicant: (1) used marijuana, with varying frequency, from approximately June 2009 to approximately October 2014; (2) purchased marijuana from approximately September 2009 to approximately October 2014; and (3) continues to associate with people who use marijuana.

Applicant began using marijuana when he was 18 years old. He started using it socially with friends. He felt it was better than abusing alcohol. He used anywhere from about once a month to sometimes once every three months. He still associates with some of the friends with whom he used to smoke marijuana. In particular, he lives with his sister-in-law who smokes weekly. She uses marijuana when Applicant is present in the house. He also works with a friend with whom he used marijuana. He purchased marijuana sometimes once a month, sometimes less frequently. He bought one ounce each time. He bought marijuana from dealers until it became legal in his state in January 2014, and then he bought from dispensaries. He knew marijuana use was against federal law and, up until January 2014, against state law when he was using it. Applicant has strong feelings that marijuana use should be legal based upon its medicinal value and its significance to some cultures.2

As stated above, Applicant began working for his current employer in June 2012. He was using marijuana at the time he became employed. His employer has a drug policy and does pre-employment drug testing. He knew when he was going to be tested and stopped using marijuana long enough to produce a negative result. Upon his hiring, he resumed using marijuana until about October 2014. He stopped using at this time because he was now working in an area where he was eligible to support a DOD account, which required a security clearance. He reported his drug use on his security clearance application and during his background interview. He claims to not have used marijuana since then. He further claims he will not use marijuana in the future, despite his personal views, because he wants to protect his job and provide for his family. He conceded that he would probably still be using marijuana if it was allowed while holding a security clearance. He stated that he intends to leave his job in March 2017 to do volunteer work in a foreign country for about six months. Upon return, he hopes to get his job back. He has never received drug counseling or treatment.3

POLICIES

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(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, 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 that an 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

AG ¶ 24 expresses the drug involvement security concern:

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.

I have considered all of the evidence in this case and the disqualifying conditions under drug involvement AG ¶ 25 and found the following relevant:

(a) any drug abuse;

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

(h) expressed intent to continue illegal drug use, or failure to clearly and convincingly commit to discontinue drug use.

Applicant used and purchased marijuana on multiple occasions between 2009 and 2014. Applicant has strong personal feelings that marijuana use should be legalized. Based upon his testimony, his demeanor while testifying, his continued association (by living in the same house) with a regular marijuana user, and his written remarks in his answer, I find that he failed to clearly and convincingly establish that he intends to discontinue his marijuana use. I further find that all the above disqualifying conditions apply.

I have considered all of the evidence in this case and the drug involvement mitigating conditions under AG ¶ 26 and found the following relevant:

(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) a demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence; (4) a signed statement of intent with automatic revocation of clearance for any violation.

Applicant used marijuana on a regular basis between 2009 and October 2014. Some of these uses were after being hired by his current employer with a drug policy. He has strong personal feelings for the legal use of marijuana. He still lives with his sister-in-law, with whom he used to smoke marijuana, and she continues to use it on a weekly basis, at times while he is present. He claims he stopped using marijuana in October 2014. Given these circumstances, Applicant failed to establish that his use of marijuana is sufficiently remote, infrequent, or otherwise does not cast doubt on his current reliability, trustworthiness, and good judgment. Given his personal feelings about marijuana use and his lack of drug counseling, under these circumstances, his claimed abstinence since October 2014 is insufficient to establish his intent not to use in the future. Likewise, his continued association with frequent marijuana users also does not further his stated intent not to use marijuana in the future. He did not provide a signed letter of intent with automatic revocation of clearance for any violation. AG ¶¶ 26(a) and 26(b) do 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 the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a):

(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 considered how forthcoming Applicant was in his security clearance application and during his background interview about his marijuana use. However, I also considered that he used marijuana on multiple occasions after gaining employment with a company that has a drug policy, lives with a frequent marijuana user, and has strong personal feelings about the legalization of marijuana. Applicant provided insufficient evidence to mitigate the security concerns.

Overall, the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising under Guideline H, drug involvement.

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

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’s eligibility for a security clearance. Eligibility for access to classified information is denied.

_____________________________ Robert E. Coacher Administrative Judge