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ISCR Case 16-00980.h1 — CASE

ISCR Case 16-00980.h1denied

Case Headnote

ISCR Case No. 16-00980.h1

deniedOct 4, 2017· Hon. Robert E. Coacher· hearing

Summary

A 28-year-old defense contractor was denied a security clearance under Guideline H (Drug Involvement) due to a history of marijuana use. The Statement of Reasons cited multiple instances of marijuana use in 2008 and between 2015 and 2016, including a positive employer-mandated drug test in October 2015. These actions raised disqualifying conditions H.25(a) and H.25(b).

While mitigating conditions H.26(a) and H.26(b) were considered, the judge ultimately found them insufficient. The applicant claimed his use was for pain management and asserted future abstinence. However, the denial was based on the frequent and recent nature of his marijuana use, which raised concerns about his reliability and trustworthiness.

Crucially, the applicant failed to provide a signed statement of intent to abstain from future drug use or other evidence of rehabilitation. The judge concluded that the applicant's claimed abstinence was not enough to mitigate the security concerns, resulting in the denial of his security clearance.

Why the Applicant Was Denied

Applicant's marijuana use was frequent and recent, raising concerns about reliability and trustworthiness.
He did not provide a signed statement of intent to abstain from future drug use, nor evidence of rehabilitation.
The judge found that the applicant's claimed abstinence was insufficient to mitigate the security concerns.

Conditions Referenced

Disqualifying

H.25(a)raisedAny Substance Misuse
H.25(b)raisedTesting Positive for an Illegal Drug

Mitigating

H.26(a)rejectedBehavior Happened so Long Ago, Was so Infrequent, or Happened Under Such Circumstances That It Is Unlikely to RecurApplicant's marijuana use was frequent and recent.
H.26(b)rejectedAcknowledges Drug Involvement and Provides Evidence of Actions Taken to Overcome This ProblemApplicant did not provide evidence of rehabilitation or a commitment to abstain.

Key Rule Quoted

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

Procedural Posture

SOR issuedOct 4, 2016
Answer filedNov 7, 2016Applicant elected to proceed without a hearing.
Hearing held—Case decided on the written record.
Decision dateOct 4, 2017

Cite For

Denial of Security Clearance Due to Recent and Frequent Drug Use Under Guideline H
Insufficient Evidence of Rehabilitation or Commitment to Abstain From Drug Use
Importance of Providing a Signed Statement of Intent to Abstain From Future Drug Involvement

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 and substance misuse raised significant security concerns. The applicant's past use of marijuana was deemed frequent, and his claimed abstention was insufficient to mitigate these concerns. Consequently, the applicant's eligibility for a security clearance was denied.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana on multiple occasions in 2008, and between 2015 and 2016.	Against Applicant	Marijuana	Frequent	Admitted	—	—	—
1.b	He tested positive for marijuana on an employer-mandated urinalysis test in October 2015.	Against Applicant	Drug Test Failure	Not Applicable	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. 16-00980 ) Applicant for Security Clearance )

For Government: Tovah Minster, Esq., Department Counsel For Applicant: Pro se

10/04/2017 ______________

STATEMENT OF CASE

______________

COACHER, Robert E., Administrative Judge:

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

Statement of the Case

On October 4, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline H, drug involvement and substance misuse. The DOD CAF acted under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG).1 Applicant answered the SOR on November 7, 2016, and elected to have his case decided on the written record in lieu of a hearing. Department Counsel submitted the Government’s File of Relevant Material (FORM) on December 2, 2016. The evidence included in the FORM is identified as Items 2-4 (Item 1 included pleadings and transmittal information). The FORM was mailed to Applicant, who received it on December 17, 2016. Applicant was given an opportunity to file objections and submit material in refutation, extenuation, or mitigation. He did not file any objections nor submit any additional evidence. Items 2-4 are admitted into evidence without objection. The case was assigned to me on October 1, 2017.

FINDINGS OF FACT

In Applicant’s answer, he admitted the allegations in the SOR. I adopt these 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 28 years old. He is single and has one child, age 10. He has worked for his current employer, a defense contractor, since May 2010. He is a high school graduate.2

The SOR alleges Applicant used marijuana, with varying frequency, in July 2008, and from approximately October 2015 to approximately January 2016. Applicant told a defense investigator in August 2010 that he experimented with marijuana in July 2008 by using it on two or three occasions. He further stated to an investigator that in November 2009, he began experiencing pain in his stomach and back and was diagnosed with Berger’s Disease (a type of kidney disease). His doctors prescribed him opiate-based medicine. He did not want to take this medicine for fear of addiction, so he was advised to seek a medical marijuana card in the state where he resided. He claims he received a medical marijuana card and used marijuana from April to July 2010 to relieve his pain. He did not provide a copy of his marijuana card. He told the investigator he stopped using marijuana in July 2010 because he was not experiencing pain. He indicated he would use marijuana in the future if the pain returned.3

In October 2015, in preparation for an overseas deployment by his employer, Applicant was notified that he was required to submit to a urinalysis test. Upon this notification, Applicant submitted documentation to his security officer indicating that he was a registered marijuana user in his state of residence. Applicant submitted to the urinalysis test, which came back positive for marijuana metabolites.4 Applicant admits using marijuana multiple times from October 2015 until his last use in January 2016. He claims that he used it only for pain purposes. He also claims that he does not plan to use marijuana in the future.5

Applicant did not produce any good character evidence. Since he submitted this case for an administrative determination, I was not able to judge his credibility.

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(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.

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 about 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 and Substance Misuse

AG ¶ 24 expresses the security concern pertaining to drug involvement and substance misuse:

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.

AG ¶ 25 describes conditions that could raise a security concern and may be disqualifying. Those that are potentially applicable in this case include:

(a) any substance misuse; and

(b) testing positive for an illegal drug.

Applicant used marijuana on multiple occasions in 2008, and between 2015 and 2016. He tested positive for marijuana on an employer-mandated urinalysis test in October 2015. I find that both the above disqualifying conditions apply.

AG ¶ 26 provides conditions that could mitigate security concerns. Two potentially apply in this case:

(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 or misuse is grounds for revocation of national security eligibility.

Applicant’s use of marijuana was frequent and given his long-term pattern of use, his claimed abstinence beginning in 2016, is not sufficiently attenuated to be considered remote. He states he will not use in the future, but he does not address how he intends to treat the pain he experiences, for which he has always used marijuana to curb. He did not provide a signed statement of intent abstaining from all future illegal drug use, which acknowledged any future misuse would be grounds for revocation of his security clearance. Applicant’s claimed abstention is insufficient to convince me that recurrence is unlikely. His frequency of past use casts doubt upon his current reliability, trustworthiness, and good judgment. 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(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 guideline 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 that he used marijuana on numerous occasions and he tested positive for marijuana before an overseas deployment for his employer.

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 and substance misuse.

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.b: 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

FOOTNOTES

1 I decided this case using the AGs implemented by DOD on June 8, 2017. However, I also considered this case under the old AGs implemented on September 1, 2006, and my conclusions are the same using either set of AGs. 2 Item 2. 3 Item 3. 4 Item 4. 5 Item 3.