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ISCR Case 16-01361.h1 — CASE

ISCR Case 16-01361.h1granted

Case Headnote

ISCR Case No. 16-01361.h1

grantedApr 6, 2017· Hon. Michael H. Leonard· hearing

Summary

This case concerns a 40-year-old finance manager who was granted a security clearance despite past marijuana use, which was evaluated under Guideline H (Drug Involvement). The Statement of Reasons specifically alleged marijuana use from approximately August 1992 to August 2015.

Disqualifying conditions under Guideline H were initially raised, but the judge ultimately applied mitigating conditions. The applicant ceased marijuana use in August 2015, recognizing its potential impact on her security clearance eligibility.

Key factors in the favorable decision included the applicant's signed statement of intent to abstain from future drug use, which stipulated automatic clearance revocation for any violation. Furthermore, her self-reporting of past marijuana use demonstrated integrity and a commitment to compliance, leading to the security clearance being GRANTED.

Why the Applicant Prevailed

The applicant stopped using marijuana in August 2015 after realizing its impact on her security clearance.
She presented a signed statement of intent to abstain from drug use in the future, with automatic revocation of clearance for any violation.
The applicant's self-reporting of her marijuana use demonstrated integrity and compliance with laws.

Conditions Referenced

Disqualifying

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

Mitigating

AG ¶ 26(b)appliedDemonstrated Intent Not to Abuse Drugs in the Future

Key Rule Quoted

“The clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.”
— Department of the Navy v. Egan, 484 U.S. 518, 531 (1988)

Procedural Posture

SOR issuedJun 17, 2016
Answer filedJul 15, 2016
Hearing heldNov 8, 2016
Decision dateApr 6, 2017

Cite For

Demonstrated Intent Not to Abuse Drugs Under Guideline H
Importance of Self-reporting in Security Clearance Cases
Sufficient Period of Abstinence as a Mitigating Factor

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: granted

The judge found that the applicant's use of marijuana raised security concerns, but she presented sufficient evidence to mitigate these concerns. The applicant stopped using marijuana in August 2015 and demonstrated a commitment to abstain from drug use in the future. The decision was granted in favor of the applicant.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Use of marijuana from about August 1992 to August 2015.	For Applicant	MarijuanaWHILE CLEARED	Occasional	Admitted	—	(b) acknowledges involvement; evidence of action; established abstinence	Documented Substance Treatment Completed Documented Abstinence Period Documented Documented Voluntary Disclosure Before Confrontation

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: ) ) --------------------------------------- ) a/k/a -------------------------------- ) ISCR Case No. 16-01361 ) Applicant for Security Clearance )

For Government: Mary Margaret Foreman, Esq., Department Counsel For Applicant: James S. Bailey, Esq.

04/06/2017 ______________

STATEMENT OF CASE

______________

LEONARD, Michael H., Administrative Judge:

Applicant contests the Defense Department’s intent to deny her eligibility for access to classified information. She presented sufficient evidence to explain and mitigate the security concern stemming from her use of marijuana. Accordingly, this case is decided for Applicant.

Statement of the Case

Applicant completed and submitted a Questionnaire for National Security Positions (SF 86 format) on September 16, 2015. This document is commonly known as a security clearance application. Thereafter, on June 17, 2016, after reviewing the application and the information gathered during a background investigation, the Department of Defense Consolidated Adjudications Facility, Fort Meade, Maryland, sent Applicant a statement of reasons (SOR), explaining it was unable to find that it was clearly consistent with the national interest to grant her eligibility for access to classified information.1 The SOR is similar to a complaint. It detailed the factual reasons for the action under the security guideline known as Guideline H for drug involvement. She answered the SOR with a one-page memorandum on July 15, 2016, and she requested a hearing.

The case was assigned to me August 23, 2016. The hearing was held as scheduled on November 8, 2016. Department Counsel offered Exhibits 1-3; Exhibits 1 and 3 were admitted; and Exhibit 2 was not admitted due to lack of authentication. Applicant testified on her own behalf and offered Exhibit A, which was admitted. The transcript of hearing (Tr.) was received November 15, 2016.

FINDINGS OF FACT

Applicant is a 40-year-old employee who requires a security clearance for her job as a finance manager with a company doing business in the defense industry. She has worked for this company since December 2007. She passed a pre-employment drug test when she began working for the company.2 This is the first time she has applied for a security clearance because her previous work-related duties did not require it. She has a good record of employment.3 Her educational background includes a bachelor’s degree with an emphasis in accounting.4

Applicant has married and divorced three times. The first time, she married young at age 19, and the divorce occurred about a year later. She married for the second time in 2002, had a child in 2003, separated in 2006, and divorced in 2007. Because they had a child together, she agreed to remarry her second husband, but the marriage ended in divorce in 2016. The minor child, now a teenager, continues to live with her.

As alleged in the SOR, this case concerns Applicant’s illegal drug involvement consisting of use of marijuana. She disclosed using marijuana from about August 1992 to August 2015 in her security clearance application.5 She stated that she used marijuana about once a month for migraine headaches and for upset stomach and during certain social events. She also stated that she believed that occasional use of marijuana was no worse than occasional consumption of alcohol and is safer than using tobacco products. At the hearing, Applicant admitted using marijuana on a periodic basis from about the age of 16 (1993) to about August 2015. She explained that her use of marijuana fell roughly into the following periods: (1) during 1993-1996 when she used every couple of months with her teenage friends; (2) during 1998-2006 when she was dating and then married and living with her second husband, using it on average about once a month to treat her migraine headaches; and (3) from 2012 to 2015 when she reunited with her second husband, using it on average about once a month to treat her headaches.6

Applicant stopped using marijuana immediately in about August 2015 when her company’s security officer reviewed her application and informed her it was a major issue.7 Her decision to stop using marijuana was prompted or motivated by the realization of the severe or serious impact it had on her ability to obtain a security clearance, her ability to progress in her career, and the fact that it called into question her integrity, honesty, and loyalty to her country.8 She also explained that she later informed her then husband that she was no longer comfortable with his lifestyle and told him to refrain from using marijuana at home.9 His habitual use of marijuana was one of the considerations or factors in the most recent divorce.10

Applicant does not intend to use marijuana in the future. Although she still suffers from migraine headaches, she found other ways to obtain relief.11 She estimated the probability of her reuniting with her marijuana-using ex-husband as “less than zero.”12 Likewise, she estimated the probability of her marrying or living with another man who uses marijuana as “less than zero.”13 Regarding her previous statement on her security clearance application, she explained the following:

At the time when the question [on the security clearance application] was being asked, I didn’t understand that it was going to negatively impact the clearance, that it would have the weight, the significance. I was trying to just be as honest as I possibly could in the form and did not have the appreciation for the significance of the statement or the impact of the action.14 Applicant submitted Exhibit A, in which she agreed that she will not engage in any drug abuse or other illegal drug involvement, regardless of any state codes or laws permitting this behavior. She further agreed that any failure to comply as agreed will result in the automatic revocation of any security clearance held by her.

Applicant made a favorable impression on me during the hearing. She was sincere, respectful, and polite. Overall, I found her credible and worthy of belief.

Law and Policies

It is well-established law that no one has a right to a security clearance.15 As noted by the Supreme Court in Department of the Navy v. Egan, “the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.”16 Under Egan, Executive Order 10865, and the Directive, any doubt about whether an applicant should be allowed access to classified information will be resolved in favor of protecting national security.

A favorable clearance decision establishes eligibility of an applicant to be granted a security clearance for access to confidential, secret, or top-secret information.17 An unfavorable clearance decision (1) denies any application, (2) revokes any existing security clearance, and (3) prevents access to classified information at any level.18

There is no presumption in favor of granting, renewing, or continuing eligibility for access to classified information.19 The Government has the burden of presenting evidence to establish facts alleged in the SOR that have been controverted.20 An applicant is responsible for presenting evidence to refute, explain, extenuate, or mitigate facts that have been admitted or proven.21 In addition, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision.22 In Egan, the Supreme Court stated that the burden of proof is less than a preponderance of evidence.23 The Appeal Board has followed the Court’s reasoning, and a judge’s findings of fact are reviewed under the substantial-evidence standard.24

DISCUSSION

Under Guideline H for drug involvement, the concern is that “use of an illegal drug or misuse of a prescription drug can raise questions about a [person’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.”25 In applying Guideline H to the facts of this case, I note that in an October 24, 2014 memorandum, the Director of National Intelligence reaffirmed that the disregard of federal law concerning use, sale, or manufacture of marijuana is relevant in national security determinations regardless of changes in state laws concerning marijuana use. Marijuana remains a Schedule I controlled substance under federal law, which means it is a drug that has no currently accepted medical use and has a high potential for abuse.26

In analyzing the facts of this case, I considered the following disqualifying and mitigating conditions or factors:

AG ¶ 25(a) any drug abuse;

AG ¶ 25(c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; 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 were drugs were used; (3) an appropriate period of abstinence; and (4) a signed statement of intent with automatic revocation of clearance for any violation.

I have considered the totality of Applicant’s periodic use of marijuana over more than a 20-year period. In my view, the most troubling aspect of this case is Applicant’s use of marijuana during 2012-2015 while employed by a defense contractor, which typically has a drug-free workplace policy. Plainly, that is not minor or trivial misconduct, and it needs to be weighed accordingly. Applicant presented a substantial case in reform and rehabilitation. Her initial period of marijuana use during 1993-1996 occurred during her teenage years and is discounted accordingly. Her subsequent periods of marijuana use during 1998-2006 and 2012-2015 occurred when she was in a relationship with her marijuana-using ex- husband. Marijuana was then readily available. She is no longer associating with her ex-husband, marijuana is no longer readily available in her home, and she has found other ways to treat her migraine headaches. She has not used marijuana since August 2015, about 15 months before the record closed, which is a sufficient period of abstinence. Further, she has no intention of using marijuana in the future, and she submitted a signed statement of intent on that point. Taken together, the totality of facts and circumstances establish that Applicant has had a change of heart concerning marijuana use, and she will not use it again.

In addition, Applicant receives credit in mitigation because she voluntarily reported the information about her use of marijuana in her 2015 security clearance application, and she has been truthful and complete in responding to questions about her marijuana use.27 Her willingness to self-report her marijuana use is an important aspect of this case. Her willingness to self-report adverse information speaks highly for her integrity, her willingness to comply with laws, rules, and regulations, and her overall suitability for access to classified information.

Applicant’s history of marijuana use no longer creates doubt about her reliability, trustworthiness, good judgment, and ability to protect classified information. In reaching this conclusion, I weighed the evidence as a whole and considered if the favorable evidence outweighed the unfavorable evidence or vice versa. Accordingly, I conclude that she met her ultimate burden of persuasion to show that it is clearly consistent with the national interest to grant her eligibility for access to classified information.

FORMAL FINDINGS

The formal findings on the SOR allegations are:

Paragraph 1, Guideline H: For Applicant

Subparagraph 1.a: For Applicant

CONCLUSION

In light of the record as a whole, it is clearly consistent with the national interest to grant Applicant access to classified information.

Michael H. Leonard Administrative Judge

FOOTNOTES

1 This action was taken under Executive Order (E.O.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended, as well as Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive). In addition, the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), effective within the Defense Department on September 1, 2006, apply here. The AG were published in the Federal Register and codified in 32 C.F.R. § 154, Appendix H (2006). 2 Tr. 64-65. 3 Tr. 30. 4 Tr. 71. 5 Exhibit 1. 6 Tr. 30-36. 7 Tr. 40-41. 8 Tr. 40-41, 70. 9 Tr. 42-43. 10 Tr. 43, 73. 11 Tr. 36-37. 12 Tr. 46. 13 Tr. 46-47. 14 Tr. 43. 15 Department of Navy v. Egan, 484 U.S. 518, 528 (1988) (“it should be obvious that no one has a ‘right’ to a security clearance”); Duane v. Department of Defense, 275 F.3d 988, 994 (no right to a security clearance). 16 484 U.S. at 531. 17 Directive, ¶ 3.2. 18 Directive, ¶ 3.2. 19 ISCR Case No. 02-18663 (App. Bd. Mar. 23, 2004). 20 Directive, Enclosure 3, ¶ E3.1.14. 21 Directive, Enclosure 3, ¶ E3.1.15. 22 Directive, Enclosure 3, ¶ E3.1.15. 23 Egan, 484 U.S. at 531. 24 ISCR Case No. 01-20700 (App. Bd. Dec. 19, 2002) (citations omitted). 25 AG ¶ 24. 26 For information on federal drug schedules, go to http://www.dea.gov/druginfo/ds.shtml. 27 See generally AG ¶ 2(e)(1) – (2).