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ISCR 16-01449.h1: Guideline H security clearance hearing, denied (2017) · CASE

ISCR Case 16-01449.h1denied

Case headnote

ISCR Case No. 16-01449.h1

deniedOct 4, 2017· Hon. Robert E. Coacher· hearing

Summary

A 34-year-old defense contractor was denied a security clearance under Guideline H (Drug Involvement) due to his admitted long-term marijuana use and stated intent to continue using the substance. The applicant acknowledged using and purchasing marijuana from August 2004 until at least January 2016. While he claimed the use was for chronic pain management, he explicitly stated his intention to continue using marijuana in the future.

The Statement of Reasons specifically cited the applicant's past use and future intent as disqualifying conditions H.25(a) and H.25(g). Although mitigating condition H.26(a) was considered, it was not sufficient to overcome the concerns.

The judge ultimately denied the security clearance, emphasizing doubts about the applicant's reliability and trustworthiness. The decision highlighted the applicant's consistent marijuana use over more than a decade and his expressed intent to continue, noting the absence of any good character evidence to mitigate these concerns.

Why the applicant was denied

Applicant admitted to regular marijuana use from 2004 to at least January 2016.
Applicant expressed intent to continue using marijuana in the future, raising concerns about reliability and trustworthiness.
No good character evidence was presented to mitigate the concerns.

Conditions referenced

Disqualifying

H.25(a)raisedAny Substance Misuse
H.25(g)raisedExpressed Intent to Continue Drug Involvement and Substance Misuse

Mitigating

H.26(a)rejectedBehavior Happened so Long Ago, Was so Infrequent, or Happened Under Such Circumstances That It Is Unlikely to RecurApplicant's marijuana use is frequent and ongoing, casting doubt on current reliability.

Key rule quoted

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

Procedural posture

SOR issuedSep 30, 2016
Answer filedOct 30, 2016Applicant elected to proceed without a hearing.
Decision dateOct 4, 2017

Cite for

Denial of Security Clearance Due to Ongoing Drug Involvement Under Guideline H
Importance of Good Character Evidence in Mitigating Security Concerns
Impact of Expressed Intent to Continue Substance Misuse on Security Clearance Eligibility

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 34: “Applicant is 34 years old.”
Tenure: ~3 years: “He has worked for his current employer, a defense contractor, since December 2014.”

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's frequent use of marijuana raised significant security concerns under Guideline H. The applicant admitted to using marijuana regularly since 2004 and expressed an intent to continue this use, which the judge determined undermined his reliability and trustworthiness. Consequently, the application for a security clearance was denied.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation

Descriptive standardized rendering of a decided public case. 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. 16-01449 ) Applicant for Security Clearance )

For Government: Julie R. Mendez, Esq., Department Counsel For Applicant: Pro se

10/04/2017 ______________

STATEMENT OF CASE

______________

COACHER, Robert E., Administrative Judge:

Applicant failed to mitigate the Government’s security concerns under Guideline H, drug involvement and substance misuse. Applicant’s eligibility for a security clearance is denied.

Statement of the Case

On September 30, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued Applicant a Statement of Reasons (SOR) detailing 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 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG).1 Applicant answered the SOR on October 30, 2016, and elected to have his case decided on the written record in lieu of a hearing. Department Counsel submitted the Government’s File of Relevant Material (FORM) on November 29, 2016. The evidence included in the FORM is identified as Item 3 (Items 1 and 2 included pleadings and transmittal information). The FORM was mailed to Applicant, who received it on December 6, 2016. Applicant was given an opportunity to file objections and submit material in refutation, extenuation, or mitigation. He did not file any objections nor submit any additional evidence. Item 3 is admitted into evidence without objection. The case was assigned to me on October 1, 2017.

FINDINGS OF FACT

In Applicant’s answer, he admitted the allegation in the SOR. I adopt this admission as a finding of fact. After a thorough and careful review of the pleadings and exhibits submitted, I make the following additional findings of fact.

Applicant is 34 years old. He is single and has one child, age 10. He has worked for his current employer, a defense contractor, since December 2014. He has a bachelor’s degree.2

The SOR alleges Applicant used and purchased marijuana from August 2004 until at least January 2016, and that he intends to continue using marijuana in the future. Applicant admitted using and purchasing marijuana on a regular basis since 2004. He claims such use is necessitated because of chronic pain that he experiences. He intends to keep using marijuana in the future because other potential medication to help him has harmful side effects.3

Applicant did not produce any good character evidence. Since he submitted this case for an administrative determination, I was unable to judge his credibility.

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are used 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 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.

Under Directive ¶ E3.1.14, the Government must 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 applicant or proven by Department Counsel, and has the ultimate burden of persuasion to obtain 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 an 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.

Section 7 of EO 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).

ANALYSIS

Guideline H, Drug Involvement and Substance Misuse

AG ¶ 24 expresses the security concern pertaining to drug involvement and substance abuse:

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 conditions that could raise a security concern and may be disqualifying. Those that are potentially applicable in this case include:

(a) any substance misuse; and

(g) expressed intent to continue drug involvement and substance misuse, or failure to clearly and convincingly commit to discontinue such misuse.

Applicant used marijuana on multiple occasions from 2004 to at least January 2016. He intends to continue using marijuana in the future. I find that both the above disqualifying conditions apply.

AG ¶ 26 provides conditions that could mitigate security concerns. One potentially applies 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’s use of marijuana is frequent and continues into the present. He intends to continue his marijuana use in the future. These actions cast doubt upon his current reliability, trustworthiness, and good judgment. AG ¶ 26(a) does not apply.

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 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.

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 guideline 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 that he used marijuana on a daily basis and intends to continue such use.

Overall, the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising under Guideline H, drug involvement and substance misuse.

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.b: 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’s eligibility for a security clearance. Eligibility for access to classified information is denied.

_____________________________ Robert E. Coacher Administrative Judge

FOOTNOTES

1 I decided this case using the AGs implemented by DOD on June 8, 2017. However, I also considered this case under the old AGs implemented on September 1, 2006, and my conclusions are the same using either set of AGs. 2 Item 2.

3 Items 2-3.