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ISCR Case 16-01194.h1 — CASE

ISCR Case 16-01194.h1denied

Case Headnote

ISCR Case No. 16-01194.h1

deniedFeb 27, 2017· Hon. Erin C. Hogan· hearing

Summary

A 55-year-old consultant for a Department of Defense contractor was denied a security clearance under Guideline H (Drug Involvement) due to a history of marijuana use. The applicant admitted to using marijuana from January 1976 until the summer of 2016, with his last use occurring during a summer vacation in 2016. This last instance of use took place after he submitted his security clearance application and following his background investigation interview.

Although the applicant stated on his application that he did not intend to use marijuana in the future, the judge found his recent use and "relaxed attitude" toward its legality to be disqualifying. Specifically, the decision cited a lack of commitment to abstain from illegal drug use and an insufficient period of abstinence.

While mitigating conditions were considered, the judge ultimately concluded that the applicant's reliability and trustworthiness were compromised, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant's last use of marijuana occurred after submitting his security clearance application and after his background investigation interview.
The applicant's relaxed attitude towards marijuana use indicated a lack of commitment to abstain from illegal drug use.
The applicant did not demonstrate an appropriate period of abstinence from drug use.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedDrug Abuse
AG ¶ 25(c)raisedIllegal Drug Possession

Mitigating

AG ¶ 26(a)rejectedBehavior Occurred Long AgoThe applicant's long history of marijuana use and recent use disqualified this condition.
AG ¶ 26(b)rejectedDemonstrated Intent Not to Abuse DrugsThe applicant's recent marijuana use and relaxed attitude towards its legality undermined his intent to refrain from drug use.

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 12, 2016
Answer filedAug 18, 2016
Hearing heldDec 6, 2016
Decision dateFeb 27, 2017

Cite For

Evaluation of Drug Involvement Under Guideline H
Consideration of Recent Drug Use in Security Clearance Decisions
Impact of Applicant's Attitude Towards Drug Use on 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 against the applicant on all allegations related to drug involvement under Guideline H. The applicant admitted to a long history of marijuana use, which raised concerns about his reliability and trustworthiness. Despite some claims of reduced use and a signed statement of intent to refrain from illegal drug use, the judge determined that the applicant did not demonstrate an appropriate period of abstinence, leading to the denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant admits to using marijuana from January 1976 to the summer 2016.	Against Applicant	MarijuanaWHILE CLEARED	Regular	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	Applicant indicated on his security clearance application that he did not intend to use marijuana in the future.	Against Applicant	Stated Intent to Use AgainWHILE CLEARED	Not Applicable	Denied	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.c	Applicant's last use of marijuana occurred during his summer vacation in 2016.	Against Applicant	MarijuanaWHILE CLEARED	Regular	Denied	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—

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: ) ) [Name Redacted] ) ISCR Case No. 16-01194 ) ) Applicant for Security Clearance )

For Government: Rhett Petcher, Esquire, Department Counsel For Applicant: Pro se

02/27/2017 ______________

STATEMENT OF CASE

______________

HOGAN, Erin C., Administrative Judge:

Applicant submitted an application for a security clearance (e-QIP) on July 28, 2015. On July 12, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant detailing the security concerns under Guideline H, Drug Involvement. 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 (AG) implemented within the Department of Defense on September 1, 2006.

On August 18, 2016, Applicant answered the SOR and requested a hearing before an administrative judge. Department Counsel was ready to proceed on September 15, 2016. I was assigned the case on October 28, 2016. On November 9, 2016, a Notice of Hearing was issued, scheduling the hearing for December 6, 2016. The hearing was held as scheduled. During the hearing, the Government offered two exhibits which were admitted as Government (Gov) Exhibits 1 and 2. Government Exhibit 2 is the summary of Applicant’s background investigation interview summarized by the investigator who interviewed him. Applicant did not object to Government Exhibit 2 subject to some clarifications to the summary of the interview. Applicant offered four exhibits which were admitted as Applicant Exhibits (AE) A – D, without objection. The transcript was received on December 14, 2016. Based upon a review of the case file, pleadings, and exhibits, eligibility for access to classified information is denied.

FINDINGS OF FACT

In his answer to the SOR, Applicant admits to the allegations in SOR ¶¶ 1.a and 1.b, but denies the allegation in SOR ¶ 1.c.

Applicant is a 55-year-old consultant for a DOD contractor who seeks a security clearance. He is a project management expert. He has been employed as a consultant with the DOD contractor since May 2014. This is his first time applying for a security clearance. He attended college, but did not receive a degree. He is single, but in a committed relationship. He has a 20-year-old daughter from a previous marriage. (Tr. 17, 22, 26-28, 12-13, 24; Gov 1) (Note: The facts in this decision do not specifically describe employment, names of witnesses, or locations in order to protect Applicant and his family’s privacy. The cited sources contain more specific information.)

Guideline H – Drug Involvement

Applicant admits to using marijuana from January 1976 to the summer 2016. In response to Section 23 of his security clearance application, dated July 28, 2015, Illegal Use of Drugs or Controlled Substances, Applicant listed that he used marijuana from approximately January 1976 to March 2015. He indicated it was “Occasional social use. Have abstained for approximately the last five months.” He listed the frequency of the use as “Infrequent use. Occasional weekends. 2-3 times per month prior to March/April 2015.” (Tr. 38; Gov 1, section 23, at 30)

Applicant indicated on his security clearance application that he did not intend to use marijuana in the future. He explained further in the comments section:

Given the de-criminalization of Marijuana in my state and the current wave of legalization in other states I do not consider this use to be of significance and equate it to the use of alcohol. However, I would commit to abstain from use if this use should in any way put my security clearance in jeopardy.

During the hearing, Applicant testified that he has been open and honest during the security clearance process. He considers his drug use to be occasional and infrequent. His significant other has maintained a clean and sober lifestyle for the past seven years. Applicant claims that there were periods in his life where he used marijuana on average of one to three times per month, and periods where he abstained from marijuana use for over six months to a year. (Tr. 24-26)

Applicant’s regular use of marijuana occurred primarily in high school or college from 1977 to 1983. When he left college, he used marijuana on the weekends between two to three times a month. Applicant was in a band. He used marijuana at home or with his band. He usually received marijuana from one of his bandmates. He occasionally paid for it. In 1990, Applicant started working full-time and his use decreased to once a month. In 1995, his use was reduced to every other month. He used marijuana for personal relaxation. Since 2006, Applicant used marijuana once every other month, but often less than that. Applicant credits his reduction in use to maturity, work, and family responsibilities. (Tr. 29-38)

Applicant’s last use of marijuana occurred during his summer vacation in 2016. He was at home by himself. He took a couple of hits off a marijuana joint. This occurred after he submitted his security clearance application in July 2015, and after he was interviewed for his background investigation in February 2016. When asked whether he was aware that his summer 2016 marijuana use could have an impact on his security clearance, Applicant mentioned that he was not certain that the security clearance investigation would ever conclude based on the length of time it was taking to complete. He was also not aware that his marijuana use could have an adverse impact on his security clearance. He is aware that the use of marijuana is illegal under federal law. Marijuana use is legal in the state where he resides. (Tr. 38-43)

During the hearing, Applicant signed a statement of intent to refrain from illegal drug use. The statement acknowledged that Applicant’s security clearance would be revoked if he used illegal drugs. (AE D)

Applicant provided a copy of his resume and details of the duties of his position. He has had a long successful career and is an expert in his career field. (AE A – AE C)

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, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s over arching 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, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The applicant has the ultimate burden of persuasion as to obtaining 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 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 EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

Guideline H, Drug Involvement

The security concern relating to the guideline for Drug Involvement is set out in AG ¶ 24:

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.

Drugs are defined as mood and behavior altering substances, and include: (1) Drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended, (E.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens), and (2) inhalants and other similar substances;

Drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.

The guideline notes several disqualifying conditions that could raise security concerns. I find the following drug involvement disqualifying conditions apply to Applicant’s case.

AG ¶ 25(a) any drug abuse; and

AG ¶ 25(c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia. Applicant used marijuana with varying frequency from 1976 to the summer of 2016. He occasionally purchased marijuana for his personal use. AG ¶ 25(a) and AG ¶ 25(c) apply.

The Government’s substantial evidence and Applicant’s own admissions raise security concerns under Guideline H, Drug Involvement. The burden shifted to Applicant to produce evidence to rebut, explain, extenuate, or mitigate the security concerns. (Directive ¶ E3.1.15) An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. (See ISCR Case No. 02- 31154 at 5 (App. Bd. September 22, 2005))

Guideline H also includes examples of conditions that could mitigate security concerns arising from drug involvement. The following mitigating conditions potentially apply to the Applicant’s case:

AG ¶ 26(a) the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual's current reliability, trustworthiness, or good judgment; and

AG ¶ 26(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; and (4) a signed statement of intent with automatic revocation of clearance for any violation.

AG ¶ 26(a) does not apply because of Applicant’s long history of marijuana use. His most recent use occurred after he submitted his security clearance application and after he was interviewed for his background investigation interview. Applicant has a relaxed attitude towards marijuana use and appears to be only willing to stop using marijuana as a condition of being granted a security clearance. While he does not use marijuana on a regular basis, his recent use is sufficient to raise concerns about his reliability, trustworthiness, and good judgment.

Although Applicant provided a signed statement of intent to refrain from marijuana use, I give this document little weight considering Applicant’s expressed attitude towards marijuana as well as his recent use. While Applicant has reduced the frequency of his marijuana usage as he matured, he has not demonstrated an appropriate period of abstinence. AG ¶ 26(b) does not apply.

Applicant did not meet his burden to mitigate the security concerns raised under Guideline H, Drug Involvement.

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 relevant 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 Applicant’s professional qualifications. I considered his honesty in regard to his illegal marijuana use. However, Applicant continues to use illegal drugs as a mature adult. I considered that his last use of marijuana occurred in the summer of 2016, after he submitted his security clearance application, and after he was interviewed about his illegal drug use during his background investigation interview. His recent intention to refrain from illegal drug use is given less weight based on the recent illegal marijuana use. Concerns raised by Applicant’s illegal marijuana use are not mitigated.

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

_________________ ERIN C. HOGAN Administrative Judge