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ISCR Case 16-00882.h1 — CASE

ISCR Case 16-00882.h1granted

Case Headnote

ISCR Case No. 16-00882.h1

grantedJul 27, 2017· Hon. Nichole L. Noel· hearing

Summary

A 56-year-old federal contractor was granted a security clearance despite concerns under Guideline H (Drug Involvement). The Statement of Reasons alleged the applicant used marijuana from 1976 to 2015 and purchased it on three occasions within that same period. These allegations raised disqualifying conditions under Adjudicative Guidelines paragraphs 24, 25(a), and 25(c).

However, the judge applied mitigating conditions under paragraphs 26(a) and 26(b). The decision highlighted that sufficient time had passed since the applicant's last marijuana use in August 2015. Furthermore, the applicant provided a signed statement committing to abstain from future use, with the understanding that any violation would result in automatic clearance revocation.

The judge also noted that the applicant's infrequent use over 38 years did not indicate a pattern of abuse or addiction. Ultimately, the applicant demonstrated a commitment to abstain from future use, leading to the granting of his security clearance.

Why the Applicant Prevailed

The applicant demonstrated sufficient passage of time since his last marijuana use in August 2015.
He provided a signed statement of intent to refrain from future marijuana use, with automatic revocation of his clearance for any violations.
The applicant's infrequent use over 38 years did not indicate a pattern of abuse or addiction.

Conditions Referenced

Disqualifying

AG ¶ 24raisedIllegal Use of Controlled Substances
AG ¶ 25(a)raisedRecent Use of Illegal Drugs
AG ¶ 25(c)raisedBuying Illegal Drugs

Mitigating

AG ¶ 26(a)appliedAbstinence From Drug Use
AG ¶ 26(b)appliedIntent Not to Use Drugs in the Future

Key Rule Quoted

“The illegal use of controlled substances…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.”

Procedural Posture

SOR issuedAug 22, 2016
Answer filed—Timely response to SOR.
Hearing heldApr 26, 2017Hearing conducted with admitted exhibits.
Decision dateJul 27, 2017

Cite For

Mitigation of Drug Involvement Under Guideline H Due to Time Elapsed Since Last Use
Importance of a Signed Statement of Intent for Future Compliance
Consideration of Infrequent Drug Use Over an Extended Period as a Mitigating Factor

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: granted

The judge found that the applicant mitigated concerns related to his marijuana use and purchases between 1976 and 2015. The applicant's history of marijuana use was deemed unlikely to recur due to sufficient passage of time and a signed statement of intent to refrain from future use. The decision granted the applicant eligibility for access to classified information.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The applicant used marijuana from 1976 to 2015.	For Applicant	Marijuana	Occasional	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (c) prescription abuse followed a prolonged illness and has since ended	Credited Acknowledgment and Remorse Credited Signed Intent with Revocation Clause
1.b	The applicant purchased marijuana on three occasions between 1977 and 2015.	For Applicant	Marijuana	Not Applicable	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (c) prescription abuse followed a prolonged illness and has since ended	Credited Acknowledgment and Remorse Credited Signed Intent with Revocation Clause

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. 16-00882 ) Applicant for Security Clearance )

For Government: Julie R. Mendez, Esq. For Applicant: Eric A. Eisen, Esq. 07/27/2017 ______________

STATEMENT OF CASE

______________

NOEL, Nichole L., Administrative Judge:

Applicant contests the Department of Defense’s (DOD) intent to deny his eligibility for a security clearance to work in the defense industry. Applicant mitigated concerns related to his marijuana use and purchases between 1976 and 2015. Sufficient passage of time and change in Applicant’s circumstances make future use unlikely to recur. He also submitted a signed statement of intent with automatic revocation for any future use of marijuana. Clearance is granted.

Statement of the Case

On August 22, 2016, the DOD issued a Statement of Reasons (SOR) detailing security concerns under the drug involvement guideline.1 DOD adjudicators were unable to find that it is clearly consistent with the national interest to continue Applicant’s security clearance and recommended that the case be submitted to an administrative judge for a determination whether to deny his security clearance. Applicant timely answered the SOR and requested a hearing. On March 13, 2017, I issued a prehearing order to the parties regarding the exchange and submission of discovery, the filing of motions, and the disclosure of any witnesses and the parties complied.2 At the hearing, convened on April 26, 2017, I admitted Government’s Exhibit (GE) 1 and Applicant’s Exhibits (AE) A and B, without objection. Applicant offered a third exhibit, which I excluded for the reasons discussed below. DOHA received the transcript (Tr.) on April 26, 2017.

PROCEDURAL MATTERS

Ruling on Motion in Limine

Department Counsel filed a motion in limine to exclude an exhibit Applicant offered for judicial notice identified as a “marijuana package,” containing a Department of Justice (DOJ) memorandum, a Gallup poll, and two newspaper articles regarding attitudes about marijuana use. In response, Department Counsel offered a series of guidance memoranda from Director of National Intelligence (DNI), DOD, and DOJ regarding the respective agencies positions on the applicability and enforcement of federal drug laws regarding marijuana. Sustaining, in part, Department Counsel’s objection, I excluded the Gallup poll and newspaper articles, and admitted the DNI, DOD, and DOJ guidance memoranda.3

Application of the Revised Adjudicative Guidelines

While the case was pending decision, DNI issued Security Executive Agent Directive 4, establishing the National Security Adjudicative Guidelines (AG) applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position. The 2017 AG superseded the AG implemented in September 2006, and they are effective for any adjudication made on or after June 8, 2017. Accordingly, I have applied them in this case.

FINDINGS OF FACT

Applicant, 56, has worked for his current employer, a federal contractor, since September 2015. He previously worked for a federal contractor from October 2014 to June 2015, but did not require access to classified information. He completed a security clearance application, his first, in October 2015, disclosing marijuana use between 1977 and August 2015. He also admitted purchasing the drug on three occasions between 1977 and 2015. These disclosures are the basis of the SOR allegations.4

Applicant first used marijuana in high school. He used the drug in social settings approximately once per week. He continued using the drug during college, sometimes with friends more than once per week. Applicant left college after two years and began working in the hotel industry. Although he continued to use marijuana after college, his use tapered off to approximately once per year. By the time Applicant met his wife in 1986, he was not using the drug at all. Between 1986 and 2015, Applicant used marijuana infrequently, what he describes as a “handful of times.” His most recent use occurred in August 2015, when he purchased one marijuana joint from a friend, which he used over the course of one week. He smoked at home when his family was not in the house. At the time, Applicant was unemployed. He did not use the drug during his prior eight-month employment with a federal contracting company.5

Applicant regrets his recent drug use and admits that he did not exercise good judgment. He revealed his recent marijuana use to his wife, who is not a marijuana user, when he completed his security clearance application. Applicant remains in contact with the friend with whom he used and purchased marijuana. Applicant has told his friend about the adverse impact of marijuana use on his national security eligibility and informed his friend that he will not use marijuana in the future. To that end, Applicant has also signed a statement of intent with automatic revocation for future violations.6

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 to be 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, administrative judges apply the guidelines 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 national security eligibility 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 the 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 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.

Section 7 of EO 10865 provides that adverse 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

“The illegal use of controlled substances…can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical or psychological impartment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations.”7 Applicant admits using marijuana, with varying frequency between 1976 and his last use of the drug in August 2015.8 He also admits buying the drug on three occasions in the 38 years between 1977 and 2015.9

However, the record contains enough evidence to mitigate the concerns raised by Applicant’s history of marijuana use. Applicant’s use is mitigated by the passage of time and no longer reflects on his current security worthiness. While there is no bright- line rule dictating the period of abstinence required for a finding that the conduct is not recent, Applicant last marijuana use occurred two years ago. Relying on other factors in addition to the simple passage of time,10 the record supports a finding that Applicant’s drug use is unlikely to recur.11 Applicant was unemployed. His use was limited to social settings or alone in his home. Over the course of 38 years, the infrequent nature of his use does not indicate a pattern of abuse or addiction. He has demonstrated the intent not to use drugs in the future, signing a statement of intent with automatic revocation of his security clearance for any future violation.12

Based on the record, I have no doubts about Applicant’s current security worthiness. Applicant acknowledges his poor judgment in deciding to use illegal drugs. It is not the purpose of a security clearance case to punish or sanction a person for their past actions. Rather, it is a predictive risk assessment based on the past conduct. He is aware of the prohibition against such use as a clearance holder. By voluntarily disclosing his past and recent marijuana use, Applicant has shown that he is likely to continue to self-report adverse information once granted access to classified information. Furthermore, his disclosures to his wife and to the Government eliminates the conduct as a potential source of vulnerability or exploitation.

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, Drug Involvement and Substance Misuse: FOR APPLICANT

Subparagraphs 1.a – 1.b: For Applicant

CONCLUSION

In light of all of the circumstances presented, it is clearly consistent with the national interest to grant Applicant a security clearance. Eligibility for access to classified information is granted.

________________________ Nichole L. Noel Administrative Judge

FOOTNOTES

1 The DOD CAF acted under Executive Order (EO) 10865, Safeguarding Classified Information within Industry, signed by President Eisenhower on February 20, 1960, as amended; as well as DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program, dated January 2, 1992, as amended (Directive), and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, implemented on September 1, 2006. 2 The prehearing scheduling order and the discovery letter are appended to the record as Hearing Exhibit (HE) I and II, respectively. 3 The Motion in Limine is appended to the record as HE III, and the guidance memoranda are appended as HE IV – VIII. The excluded documents are included in the record as an appellate exhibit. 4 GE 1. 5 Tr. 23-37; GE 1. 6 Tr. 39-42, 45-48; AE A. 7 AG ¶ 24. 8 AG ¶ 25(a). 9 AG ¶ 25(c). 10 See Id. 11 AG ¶ 26(a). 12 AG ¶ 26(b).