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ISCR Case 16-01070.h1 — CASE

ISCR Case 16-01070.h1granted

Case Headnote

ISCR Case No. 16-01070.h1

grantedOct 6, 2017· Hon. Jennifer I. Goldstein· hearing

Summary

A 24-year-old dual citizen of the United States and Russia was granted a security clearance after addressing concerns under Guideline C (Foreign Preference) and Guideline H (Drug Involvement).

The applicant admitted to using marijuana approximately ten times between October 2009 and February 2015, during high school and college. She also acknowledged possessing a Russian identification card and using a Russian passport for travel to Russia after becoming a U.S. citizen, including failing to use her U.S. passport when entering or exiting the U.S. during a 2016 trip. However, she had not committed acts of expatriation, participated in foreign activities conflicting with U.S. national security, or declared intent to renounce U.S. citizenship.

The judge found that the applicant mitigated the security concerns. She provided evidence of her intent to abstain from drug use, clarified her foreign citizenship status, and no longer possesses valid Russian identification. The applicant demonstrated maturity and a commitment to being a model citizen, leading to the granting of her security clearance.

Why the Applicant Prevailed

The applicant provided evidence of her intent to abstain from drug use in the future.
She clarified her foreign citizenship status and no longer possesses valid Russian identification.
The applicant demonstrated maturity and a commitment to being a model citizen.

Conditions Referenced

Disqualifying

C10(b)rejectedFailure to Report Possession of a Foreign Passport or Identity Card
H25(a)raisedAny Substance Misuse

Mitigating

C10(a)appliedNo Application for or Acquisition of Foreign Citizenship
H26(a)appliedBehavior Happened Long Ago and Unlikely to Recur
H26(b)appliedAcknowledgment of Drug Involvement and Established Pattern of Abstinence

Key Rule Quoted

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

Procedural Posture

SOR issuedAug 4, 2016
Answer filedAug 29, 2016
Hearing held—Decision made on the record without a hearing.
Decision dateOct 6, 2017

Cite For

Mitigation of Foreign Preference Concerns Under Guideline C
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 C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge addressed concerns under Guideline C regarding the applicant's foreign preference, specifically her dual citizenship with Russia and possession of a Russian passport. The judge found that the applicant did not apply for or acquire citizenship in another country, and her use of a Russian passport was not deemed disqualifying. Ultimately, the judge concluded that the applicant mitigated the security concerns related to foreign preference.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation
1.a	Applicant is a dual citizen of the United States and Russia and possesses a Russian identification card.	For Applicant	Foreign Citizenship Acquisition or Application	Denied	—	—	—
1.b	Applicant used a Russian passport for travel to Russia after becoming a U.S. citizen.	For Applicant	Foreign Passport Possession or Use	Denied	—	—	—
1.c	Applicant failed to use her U.S. passport when entering or exiting the U.S. during her trip to Russia in 2016.	For Applicant	Unspecified Foreign Preference	Denied	—	—	—
1.d	Applicant has not committed any acts of expatriation.	For Applicant	Failure to Renounce or Surrender Foreign Status	Denied	—	—	—
1.e	Applicant has not participated in foreign activities that conflict with U.S. national security interests.	For Applicant	Unspecified Foreign Preference	Denied	—	—	—
1.f	Applicant has not declared intent to renounce U.S. citizenship.	For Applicant	Failure to Renounce or Surrender Foreign Status	Denied	—	—	—

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

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's past marijuana use from October 2009 through February 2015, approximately ten times, raised security concerns under Guideline H. However, the applicant demonstrated significant mitigation by acknowledging her past use, providing a signed statement of intent to abstain from future drug involvement, and showing a commitment to being a model citizen. The judge concluded that the applicant mitigated the concerns and granted her eligibility for a security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a	The applicant used marijuana during high school and college, between October 2009 and February 2015, approximately ten times.	For Applicant	Marijuana	Occasional	Admitted	(a) any substance misuse	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	Claimed Acknowledgment and Remorse Documented Signed Intent with Revocation Clause Documented Severed Ties to Using Friends

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. 16-01070 ) ) Applicant for Security Clearance )

For Government: Candace L. Garcia, Esquire, Department Counsel For Applicant: Pro se

October 6, 2017 ______________

STATEMENT OF CASE

______________

Jennifer I. Goldstein, Administrative Judge:

On August 17, 2015, Applicant submitted her Electronic Questionnaire for Investigations Processing (e-QIP). On August 4, 2016, the Department of Defense Consolidated Adjudications Facility (DODCAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guidelines C, Foreign Preference; and H, Drug Involvement and Substance Misuse (Item 1).1 The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the Adjudicative Guidelines.

Applicant answered the SOR on August 29, 2016 (Item 2), and requested a decision on the record without a hearing. Department Counsel submitted the Government’s written case on November 23, 2016. A complete copy of the file of relevant material (FORM) was sent to Applicant, including documents identified as Items 1 through 4. She was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. She received the FORM on December 8, 2016, and submitted a response, dated January 3, 2017 (Reply). Neither party had objections to Items 1 through 4 or Applicant’s Reply. They are admitted into evidence. The case was assigned to me on October 1, 2017.

FINDINGS OF FACT

In her Answer to the SOR, Applicant denied the factual allegation in ¶ 1.a of the SOR pertaining to her possession of a Russian identification card, with explanations. She admitted the factual allegations pertaining to her marijuana use from October 2009 through February 2015 in SOR ¶ 2.a. (Items 1 and 2.)

Applicant is 24 years old, unmarried, and listed no children. She has a bachelor’s degree awarded in 2015. She has worked for a defense contractor since July 2015. She has never held a security clearance. (Item 3.)

Applicant was born in Russia and is a dual citizen of the United States and Russia. She attended high school in the United States from September 2008 through May 2011. She became a naturalized U.S. citizen in 2014.2 She has a U.S. passport, issued in June 2015, which will expire in June 2025. (Items 3 and 4.)

Applicant listed on her e-QIP that she had “an internal passport [Russian identification card] serving the purpose of ID on the territory of Russian Federation.” (Item 3) She further explained that the Russia identification card only would expire if she renounced her Russian citizenship, but otherwise would remain valid throughout her life. In her Reply, she explained that her e-QIP statement was unintentionally inaccurate because she did not understand Russian law relating to the identification card. It was only “valid from the time when a citizen is 14 years old until he/she turns 20 years old,” and then it would need to be renewed. (Reply.) Applicant’s Russia identification card was issued to her when she was 14 and became invalid on November 2013, when she turned 20 years old. She has no valid Russian identification cards in her possession. She does not intend to renew her Russian Identification card. Applicant never used this identification card “to travel, to vote, or to exercise any rights of Russian citizenship,” when it was valid. (Reply; Item 3.)

Applicant’s Reply disclosed she used a Russian passport after becoming a U.S. citizen, for travel to Russia from January 30, 2016, to February 9, 2016. That passport expired on May 30, 2016, and is no longer valid. She does not intend to renew her Russian passport. (Reply.)

Applicant disclosed on her e-QIP that she used marijuana during high school and college about ten times between 2009 and 2015. She indicated she did not intend to use marijuana in the future because she did not “want to jeopardize [her] relationship with law enforcement and wish[es] to exhibit [herself] as a model citizen . . .” (Item 3.) She never purchased or distributed marijuana. She no longer associates with marijuana users. She signed a statement of intent, indicating she will not use marijuana in the future and acknowledged that any future involvement or misuse is grounds for revocation of national security eligibility. (Reply.)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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 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), 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

Directive ¶ E3.1.14 requires the Government to 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 the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance 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 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. Section 7 of Executive Order 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 Executive Order 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline C, Foreign Preference

The security concern relating to the guideline for Foreign Preference is set out in AG ¶ 9:

When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may provide information or make decisions that are harmful to the interests of the United States. Foreign involvement raises concerns about an individual's judgment, reliability, and trustworthiness when it is in conflict with U.S. national interests or when the individual acts to conceal it. By itself; the fact that a U.S. citizen is also a citizen of another country is not disqualifying without an objective showing of such conflict or attempt at concealment. The same is true for a U.S. citizen's exercise of any right or privilege of foreign citizenship and any action to acquire or obtain recognition of a foreign citizenship.

The guideline notes several conditions that could raise security concerns under AG ¶ 10. The following were considered:

(a) applying for and/or acquiring citizenship in any other country;

(b) failure to report, or fully disclose when required, to an appropriate security official, the possession of a passport or identity card issued by any country other than the United States;

(d) participation in foreign activities, including but not limited to:

(1) assuming or attempting to assume any type of employment, position, or political office in a foreign government or military organization; and

(2) otherwise acting to serve the interests of a foreign person, group, organization, or government in any way that conflicts with U.S. national security interests; (e) using foreign citizenship to protect financial or business interests in another country in violation of U.S. law; and

(f) an act of expatriation from the United States such as declaration of intent to renounce U.S. citizenship, whether through words or actions.

As Applicant did not apply for or acquire citizenship in any other country, AG ¶ 10(a) is inapplicable. Applicant disclosed the possession of her Russia passport and identity card in her e-QIP, during her security clearance interview, and in her Reply. AG ¶ 10(b) does not apply. Applicant failed to use her U.S. passport for entering or exiting the U.S. during her trip to Russia in 2016, however that conduct was not alleged as disqualifying in the SOR.3 There is no evidence that she participated in foreign activities that conflict with U.S. national security interests or support the Russian government. The record did not disclose any financial interests or business interests in Russia. She has not committed any acts of expatriation. None of the disqualifying conditions are applicable to SOR ¶ 1.a, as alleged.

Guideline H: Drug Involvement and Substance Misuse

The security concern relating to the guideline Drug Involvement and Substance Misuse is set forth at 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 at AG ¶ 25 contains seven conditions that could raise a security concern and may be disqualifying. One condition is established:

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

Applicant used marijuana during high school and college, between October 2009 and February 2015, approximately ten times. Therefore, AG ¶ 25 (a) is established. The guideline at AG ¶ 26 contains four conditions that could mitigate security concerns. Two conditions may be 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; 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 used marijuana in a social setting while in high school and college approximately ten times. She has now matured. She successfully graduated from college and has obtained employment with a defense contractor. She seeks to be a model citizen and not engage in immature, unlawful conduct. She no longer associates with marijuana users and provided a signed statement of intent to abstain from all drug involvement. The above conditions provide mitigation under these facts.

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 an 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. AG ¶ 2(b) requires each case must be judged on its own merits. 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 evidence presented. Applicant exercised poor judgment in using her Russian passport to travel in 2016, and smoking marijuana during high school and college. However, she now understands the importance of following the law and using only her U.S. passport to travel. She no longer has a valid Russian passport or identification card. She no longer illegally uses marijuana. Under the facts and circumstances surrounding this case, there is nothing to diminish Applicant’s current reliability, trustworthiness, or good judgment by either of the alleged security concerns. My comments regarding each guideline are incorporated here also.

Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising from her foreign preference, drug involvement and substance abuse.

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 B: FOR APPLICANT

Subparagraph 1.a: For 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 clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

_________________ Jennifer I. Goldstein 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. 2 The e-QIP and Report of Investigation (ROI) list discrepant dates for Naturalization. (Items 3 and 4.) 3 Had this conduct been alleged, it would be mitigated by AG ¶¶ 11(b) and 11(e). Her dual citizenship is based on her birth in Russia, and there is no evidence of a foreign preference. She no longer has a valid Russian passport or identity card, and does not seek to obtain them. Further, her past use of the now invalid Russian passport was routine, and does not present a national security concern.