ISCR Case No. 16-01385.h1

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) [REDACTED] ) ISCR Case No. 16-01385 ) Applicant for Security Clearance )

For Government: Chris Morin, Esq., Department Counsel For Applicant: Pro se 05/31/2017 ______________

______________

MARINE, Gina L., Administrative Judge:

This case involves security concerns raised under Guideline H (Drug Involvement). Eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application (SCA) on June 24, 2015. On July 10, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline H. The DOD CAF acted under Executive Order (EO) 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 (AG) implemented by the DOD on September 1, 2006.

Applicant answered the SOR on August 1, 2016, and requested a decision on the record without a hearing. Department Counsel submitted the Government’s written case on August 24, 2016, and sent a complete copy of the file of relevant material (FORM) to Applicant (including documents identified as Items 1 through 3), who was given an opportunity to file objections and submit material to refute, extenuate, or mitigate the Government’s evidence. He received the FORM on September 6, 2016, and did not respond. Items 1 and 2 are the pleadings in the case. Item 3 is admitted into evidence. The case was assigned to me on May 19, 2017.

Findings of Fact1

Applicant is 49 years old and has been married for 25 years. He has two children, ages 18 and 24. He served honorably in the U.S. Navy from 1987 through 1996. He has since remained employed by federal contractors. He has maintained a top-secret security clearance for over 25 years.

When Applicant submitted his 2015 SCA, he disclosed that he smoked marijuana between approximately August 2010 and March 2013 at parties to be social. As to frequency, he used it “at most once every other year.” He claimed that he “never intended to use it at all [it] just happened” and that because he was “pushing 50,” it was “just not a thing [he thought] about doing.”

When Applicant answered the SOR, he stated that he smoked marijuana between 2011 and 2013 “a couple of times” and “never” since 2013. He also claimed that he “never had a positive urinalysis.” He acknowledged that marijuana use “is frowned upon,” which is why he does not intend any future marijuana use.

Without providing any supporting documentation, he claimed in his SOR answer, that he has received many “Atta boy” letters from government agencies and that he believed his supervisors would attest to that. He also asserted that he would never divulge secure information and that he values truthfulness and hard work. He also stated that his “work ethic and love and respect for this country should speak for itself.”

In the FORM, Department Counsel advised Applicant of his opportunity to submit a documentary response to the FORM setting forth objections, rebuttal, extenuation, mitigation, or explanation, as appropriate. Applicant did not respond to the FORM.

“[N]o one has a ‘right’ to a security clearance.”2 As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.”3 The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.”4 Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available and reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the 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.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.”5 Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR.6 “Substantial evidence” is “more than a scintilla but less than a preponderance.”7 The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability.8 Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts.9 An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government.10 An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.”11 “[S]ecurity clearance determinations should err, if they must, on the side of denials.”12

Guideline H, Drug Involvement

The concern under this guideline 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 in AG ¶ 24(a)(1) as “[d]rugs, 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).”

Applicant’s admissions establish the following disqualifying conditions under this guideline:

AG ¶ 25(a): any drug abuse, defined in AG ¶ 24(b) as “the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction”;

AG ¶ 25(c): illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and

AG ¶ 25(g): any illegal drug use after being granted a security clearance.

The following mitigating conditions are potentially relevant:

AG ¶ 26(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

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) and 26(b) are not established. Applicant used marijuana on more than one occasion, over the course of several years, while in possession of a security clearance that he had maintained for over 20 years. He used it while in his 40s, employed with a federal contractor, and married with children. He did not intend to use marijuana; rather, it “just happened.” Applicant did not provide a signed statement of intent. He self-reported his marijuana use on his SCA and has not used it since 2013, which merits favorable consideration. However, the circumstances of his marijuana use cast doubt on his current reliability, trustworthiness, and good judgment. Furthermore, I cannot conclude that his marijuana use is not likely to recur.

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. In applying the whole- person concept, an 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. An 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.

I have incorporated my comments under Guideline H in my whole-person analysis, and I have considered the factors AG ¶ 2(a). Because Applicant requested a determination on the record without a hearing, I had no opportunity to evaluate his credibility and sincerity based on demeanor.13 After weighing the disqualifying and mitigating conditions under Guideline H, and evaluating all the evidence in the context of the whole person, I conclude Applicant has not mitigated the security concerns raised by his marijuana use. Accordingly, I conclude that he has not carried his burden of showing that it is clearly consistent with the national interest to grant him eligibility for access to classified information.

I make the following formal findings on the allegations in the SOR:

Paragraph 1, Guideline H (Drug Involvement): AGAINST APPLICANT

Subparagraphs 1.a – 1.b: Against Applicant

I conclude that it is not clearly consistent with the national interest to grant Applicant eligibility for access to classified information. Clearance is denied.

Gina L. Marine Administrative Judge

1 These facts are extracted from Applicant’s SOR answer (Item 2) and his SCA (Item 3). 2 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 3 Egan at 527. 4 EO 10865 § 2. 5 EO 10865 § 7. 6 See Egan, 484 U.S. at 531. 7 See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). 8 See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993). 9 Directive ¶ E3.1.15. 10 See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). 11 ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). 12 Egan, 484 U.S. at 531; See also AG ¶ 2(b). 13 See ISCR Case No. 01-12350 at 3-4 (App. Bd. Jul. 23, 2003).