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ISCR Case 16-01033.h1 — CASE

ISCR Case 16-01033.h1denied

Case Headnote

ISCR Case No. 16-01033.h1

deniedJun 15, 2017· Hon. Shari Dam· hearing

Summary

A 27-year-old physical fitness trainer was denied a security clearance due to concerns under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct), stemming from a history of arrests and substance-related offenses.

The applicant's record included a 2009 arrest for theft, which was dismissed after court requirements were met. In December 2009, he was arrested for felony possession of Adderall, later convicted of unlawful possession of a dangerous drug, a misdemeanor, and placed on one year of probation. While on probation, he was arrested in July 2011 for assault causing bodily injury, to which he pleaded guilty. In August 2012, he was arrested for criminal trespassing, pleaded no contest, and the charge was later dismissed.

Further incidents included a March 2013 arrest where he was not charged, and an April 2013 arrest for felony possession of marijuana, resulting in a two-year deferred prosecution and a requirement to attend Alcoholics Anonymous. In March 2016, he was arrested and charged with driving while intoxicated, pleaded guilty, and was placed on one year of probation, which was ongoing at the time of the decision. While drug involvement concerns were mitigated, the judge found insufficient evidence to mitigate the criminal conduct issues, leading to the denial.

Why the Applicant Was Denied

The applicant has a history of multiple arrests, including felony charges, and is currently on probation for a DWI.
Insufficient time has passed without recurrence of criminal activity, and the applicant did not provide evidence of successful rehabilitation.

Conditions Referenced

Disqualifying

J30raisedCriminal Conduct
J31raisedPattern of Criminal Offenses
J32raisedCurrently on Parole or Probation
H25raisedSubstance Misuse
H26raisedIllegal Possession of a Controlled Substance

Mitigating

H26(a)appliedBehavior Happened so Long Ago
J32(d)rejectedEvidence of Successful RehabilitationThe applicant did not provide sufficient evidence of successful rehabilitation.

Key Rule Quoted

“Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

Procedural Posture

SOR issuedJul 18, 2016
Answer filedAug 4, 2016
Hearing heldJan 17, 2017
Decision dateJun 15, 2017

Cite For

Evaluation of Criminal Conduct Under Guideline J
Mitigation of Drug Involvement Under Guideline H
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 that the applicant mitigated the security concerns related to drug involvement and substance misuse. Specifically, the applicant's past drug-related conduct was deemed unlikely to recur, leading to a favorable ruling on the relevant allegation. However, the overall eligibility for a security clearance was denied due to unresolved criminal conduct issues.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a	Applicant was arrested and charged with the illegal possession of marijuana in 2013. In 2009, he was arrested and charged with illegally possessing a controlled substance, Adderall.	For Applicant	Prescription Stimulant Misuse	Occasional	Denied	—	(a) behavior happened long ago / infrequent / unlikely to recur	Documented Abstinence Period Documented

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

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge ruled against the applicant on all allegations under Guideline J, Criminal Conduct, citing a pattern of criminal behavior and ongoing probation as disqualifying factors. The applicant's history of arrests and lack of sufficient evidence for rehabilitation led to the denial of security clearance eligibility.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	On December 3, 2009, Applicant was arrested and charged with theft of property greater than or equal to $500 and less than $1,500, a misdemeanor. He spent one night in jail and paid $200 for bail. The charge was dismissed on August 20, 2010, after he completed court requirements. Applicant was 20 years old.	Against Applicant	Theft or Larceny	Dismissed or Nolle Prossed	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	—	—
1.b	On December 25, 2009, Applicant was arrested and charged with felony possession of a controlled substance, penalty group 2, less than one gram, a felony. The police found an Adderall pill in his possession, for which Applicant stated he had a prescription. He was convicted of unlawful possession of a dangerous drug, a misdemeanor, on August 26, 2011, following a deferred disposition from August 2010, and placed on probation for one year.	Against Applicant	Drug Related Criminal Charge	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	—	—
1.c	Prior to completing probation for the above charge, Applicant was arrested on July 22, 2011, and charged with assault causing bodily injury, a misdemeanor. This case involved an altercation between Applicant and a female friend, while at a party. She attempted to stab him and he said he grabbed her arms in order to restrain her. He then left the party. He subsequently was arrested on an outstanding warrant for assault when he appeared at his probation officer’s office. He was placed in jail for two days and released on bond. He subsequently pleaded guilty to the assault charge and was given credit for time served (30 days) on an arrest warrant that had previously issued for failing to appear in court on the controlled substance charge.	Against Applicant	Assault or Battery	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	—	—
1.d	On August 17, 2012, Applicant was charged and arrested for criminal trespassing, a misdemeanor, after he became embroiled in an altercation with a bartender. He served one night in jail and was released on bond. He pleaded no contest to the charge, and was placed on a deferred prosecution on September 21, 2012. The charge was subsequently dismissed.	Against Applicant	Trespassing or Burglary	Dismissed or Nolle Prossed	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	—	—
1.e	On April 20, 2013, Applicant was arrested and charged with possession of marijuana, less than five pounds, greater than four ounces, a felony. He pleaded guilty on April 14, 2014, and received a deferred prosecution for two years and was required to attend Alcoholics Anonymous (AA). He was 24 years old.	Against Applicant	Drug Related Criminal Charge	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	—	—
1.f	Prior to the above arrest, on March 30, 2013, Applicant was arrested when the police found him asleep in his car. He spent the night in jail. He was not charged with a crime or other violation.	Against Applicant	Unspecified Criminal Conduct	Arrested Not Charged	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	—	—
1.g	On March 20, 2016, Applicant was arrested and charged with driving while intoxicated (DWI), a misdemeanor. He said the police found him sleeping in his car with an open beer bottle. He pleaded guilty and was placed on probation for one year, until July 2017. He was ordered to abstain from alcohol, perform community service, and install a breathalyzer in his car. He remains on probation.	Against Applicant	DUI or DWI Criminal	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	—	—

Descriptive standardized rendering of a decided public case (Guideline J). 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. 16-01033 ) ) Applicant for Security Clearance

For Government: Andre Gregorian, Department Counsel For Applicant: Pro se

06/15/2017 __________

STATEMENT OF CASE

__________

DAM, Shari, Administrative Judge:

Applicant mitigated the security concerns raised under the guideline for drug involvement and substance misuse, but not those raised under the guideline for criminal conduct. Eligibility for access to classified information is denied.

History of the Case

On August 22, 2015, Applicant submitted a security clearance application (SCA). On July 18, 2016, the Department of Defense Consolidated Adjudications Facility (DoD CAF) issued Applicant a Statement of Reasons (SOR), alleging security concerns under Guideline J, Criminal Conduct, and Guideline H, Drug Involvement. The action was taken under Executive Order 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 effective on September 1, 2006. This decision applies the new Adjudicative Guidelines (AG) that came into effect on June 8, 2017.1 Applicant answered the SOR in writing on August 4, 2016 (Answer), and requested a hearing before an administrative judge. On September 28, 2016, the Department filed an Amendment to the Statement of Reasons, adding SOR ¶ 1.gunder Guideline J. Applicant answered that Amendment on October 14, 2016. The Defense Office of Hearings and Appeals (DOHA) assigned the case to me on October 7, 2016. It issued a Notice of Hearing on December 21, 2016, scheduling the hearing for January 17, 2017. The hearing convened as scheduled. Department Counsel offered Government Exhibits (GE) 1 through 5 into evidence, which were admitted without objection. Applicant testified. DOHA received the transcript of the hearing (Tr.) on January 25, 2017. The record remained open until February 3, 2017, to give Applicant an opportunity to provide exhibits. No documents were submitted.

Motion to Amend the SOR

At the commencement of the hearing, Department Counsel moved to strike the words “manufacture of dangerous drug” from SOR ¶ 1.c. Applicant had no objection and those words were stricken. (Tr. 8.) Department Counsel then moved to strike reference to SOR ¶ 1.cfrom SOR ¶ 2.a. Applicant had no objection and the reference was stricken. (Tr. 9.)

FINDINGS OF FACT

Applicant admitted the allegations in SOR ¶¶1.band 1.d. He denied the allegations in SOR ¶¶ 1.a, 1.c, 1.d, 1.f, and 1.g, and provided explanations. He denied the allegation in SOR ¶ 2.a. His admissions are incorporated into these findings.

Applicant is 27 years old and unmarried. He completed a bachelor’s degree in 2012. He subsequently played semi-professional basketball and was on a music tour until the end of 2014. He works as a physical fitness trainer at local gym. He is not yet employed by the defense contractor that sponsored him for a clearance. (Tr. 17-19.) When he completed his September 2015 security clearance application (SCA), Applicant disclosed his criminal arrests and charges under the section inquiring about his police record. (GE 1.)

(SOR ¶ 1.a) On December 3, 2009, Applicant was arrested and charged with theft of property greater than or equal to $500 and less than $1,500, a misdemeanor. He spent one night in jail and paid $200 for bail. The charge was dismissed on August 20, 2010, after he completed court requirements. Applicant was 20 years old. (Tr. 22; GE 2.)

(SOR ¶ 1.b) On December 25, 2009, Applicant was arrested and charged with felony possession of a controlled substance, penalty group 2, less than one gram, a felony. The police found an Adderall pill in his possession, for which Applicant stated he had a prescription. He was convicted of unlawful possession of a dangerous drug, a misdemeanor, on August 26, 2011, following a deferred disposition from August 2010, and placed on probation for one year. (Tr. 23-24.) He said the prescription he presented for the drug was out of date. (Tr. 49-50; GE 2.) He denied that he ever misused any illegal drugs or prescription medications. (Tr. 41.)

(SOR ¶ 1.c) Prior to completing probation for the above charge, Applicant was arrested on July 22, 2011, and charged with assault causing bodily injury, a misdemeanor. This case involved an altercation between Applicant and a female friend, while at a party. She attempted to stab him and he said he grabbed her arms in order to restrain her. He then left the party. He subsequently was arrested on an outstanding warrant for assault when he appeared at his probation officer’s office. He was placed in jail for two days and released on bond. He subsequently pleaded guilty to the assault charge and was given credit for time served (30 days) on an arrest warrant that had previously issued for failing to appear in court on the controlled substance charge. (Tr. 24-28; GE 3.)

(SOR ¶ 1.d) On August 17, 2012, Applicant was charged and arrested for criminal trespassing, a misdemeanor, after he became embroiled in an altercation with a bartender. He served one night in jail and was released on bond. He pleaded no contest to the charge, and was placed on a deferred prosecution on September 21, 2012. The charge was subsequently dismissed. (Tr. 30-32; GE 2.)

(SOR ¶ 1.e) On April 20, 2013, Applicant was arrested and charged with possession of marijuana, less than five pounds, greater that four ounces, a felony. He pleaded guilty on April 14, 2014, and received a deferred prosecution for two years and was required to attend Alcoholics Anonymous (AA). He was 24 years old. (Tr. 32-33; GE 2, GE 5.)

(SOR ¶ 1.f) Prior to the above arrest, on March 30, 2013, Applicant was arrested when the police found him asleep in his car. He spent the night in jail. He was not charged with a crime or other violation. (Tr. 34; GE 2, GE 5.)

(SOR ¶ 1.g) On March 20, 2016, Applicant was arrested and charged with driving while intoxicated (DWI), a misdemeanor. He said the police found him sleeping in his car with an open beer bottle. He pleaded guilty and was placed on probation for one year, until July 2017. He was ordered to abstain from alcohol, perform community service, and install a breathalyzer in his car. (Tr. 43-45.) He remains on probation.

Applicant has never been evaluated for drug or alcohol dependence. He has never received any counseling for drug or alcohol abuse. He said he does not have an alcohol problem, and only drinks occasionally. He stopped using marijuana after graduating from college. He would not use it now because of his physical training schedule. He regrets his past criminal behaviors. (Tr. 45-48.) He acknowledged that he was on criminal probation from July 2010 to July 2011 and from April 2013 to April 2014. He was again placed on probation in July 2016, and anticipates completing it in July 2017. (Tr. 52-57.) He admitted that these criminal incidents are the result of being young and immature. (Tr. 58.) He said his employer is aware of this hearing and the underlying criminal conduct. (Tr. 59.) Applicant’s father testified. He retired from the Air Force after serving 20 years. He works for the company that is sponsoring his son for a security clearance. He understands the serious allegations against Applicant. He did not make excuses for his son’s behaviors, and acknowledged that Applicant was responsible for his conduct. He also recognizes his son’s talents and intelligence. (Tr. 65-70.)

POLICIES

When evaluating an applicant’s suitability for national security eligibility, the administrative judge must consider the AGs. In addition to brief introductory explanations for each guideline, the AGs list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s national security eligibility.

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 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) and 2(c), the entire process is a conscientious scrutiny of applicable guidelines in the context 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.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.15 states that, “[t]he 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 applying for national security eligibility seeks to enter 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. Finally, as emphasized in Section 7 of Executive Order 10865, “[a]ny determination under this order adverse to an applicant shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also Executive Order 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information.)

ANALYSIS

Guideline J: Criminal Conduct

AG ¶ 30 sets forth the security concerns pertaining to criminal conduct:

Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules and regulations.

AG ¶ 31 describes three conditions that could raise a security concern and may be disqualifying in this case:

(a) a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual’s judgment, reliability, or trustworthiness;

(b) evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted; and

The evidence established the above disqualifying conditions. Since 2009, Applicant has been arrested seven times: twice in 2009, once in 2011; once in 2012; twice in 2013; and once in 2016. Two of those arrests involved felony charges. He is currently on probation for the 2016 DWI.

AG ¶ 32 provides two conditions that could mitigate the above security concerns:

(a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; and

(d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement. From 2009 to 2016, Applicant was involved in criminal conduct seven times, the most recent having occurred in March 2016. Insufficient time has passed without recurrence of criminal activity. The evidence does not establish mitigation under AG ¶ 32(a). Applicant did not provide sufficient evidence of successful rehabilitation. He did not submit documentation of compliance with his current probation or a successful employment record. He did exhibit some remorse over the totality of his criminal offenses. The evidence establishes minimal mitigation under AG ¶ 32(d).

Guideline H: Drug Involvement and Substance Misuse

The security concerns under the guideline for drug involvement and substance misuse are 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.

AG ¶ 25 describes two conditions that could raise a security concern and may be disqualifying in this case:

(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.

Applicant was arrested and charged with the illegal possession of marijuana in 2013. In 2009, he was arrested and charged with illegally possessing a controlled substance, Adderall. The evidence raises the above two disqualifying conditions.

AG ¶ 26 provides a condition that could mitigate the security concerns raised 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.

Applicant disclosed to the Government in his 2015 SCA, his unlawful possession of a prescription drug charge in 2009, and possession of marijuana charge in 2013. Three years have passed since he was arrested and charged with possessing marijuana. He testified that he has stopped using marijuana. There is no evidence to contradict that assertion, and based on his truthful disclosures, his testimony is credible. AG ¶ 26(a) applies.

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 relevant circumstances. 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. 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.

I considered the potentially disqualifying and mitigating conditions in light of all pertinent facts and circumstances surrounding this case. Applicant is a 27-year-old man, who has been involved in the criminal justice system from 2009 into 2016. Three of the crimes involved the illegal possession or use of substances. While he appears to be maturing and recognizing the effect of his past criminal record on his future, he has not demonstrated that he successfully completed probation for the 2016 DWI charge. Nor has he established a sufficient record of non-involvement in criminal conduct. The evidence does not support his eligibility for a security clearance at this time.

After weighing the disqualifying and mitigating conditions, and all facts and circumstances in the context of the whole-person, Applicant mitigated the security concerns pertaining to drug involvement and substance misuse, but not criminal conduct. Overall, the record evidence leaves doubt as to Applicant’s eligibility and suitability for a security clearance.

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 J: AGAINST APPLICANT

Subparagraphs 1.a through 1.g: Against Applicant Paragraph 2, Guideline H: FOR APPLICANT

Subparagraph 2.a: For 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. National security eligibility is denied.

__________________ Shari Dam Administrative Judge

FOOTNOTES

1 I considered the previous Adjudicative Guidelines, effective September 1, 2006, as well as the new Adjudicative Guidelines, effective June 8, 2017. My decision would be the same if the case was considered under the previous Adjudicative Guidelines.