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ISCR Case 08-05013.h1 — CASE

ISCR Case 08-05013.h1denied

Case Headnote

ISCR Case No. 08-05013.h1

deniedMar 30, 2009· Hon. Wilford H. Ross· hearing

Summary

A 28-year-old single male with a college degree was denied a security clearance under Guideline H (Drug Involvement). The applicant admitted to extensive drug use, including marijuana over 200 times between December 1998 and January 2008. He also used LSD twice in 2000 and hydrocodone approximately five times in 2001, though he has not used either since. In May 2003, he was arrested for marijuana possession.

Disqualifying conditions under AG ¶ 25(a) and AG ¶ 25(c) were raised due to his admitted drug involvement. A key factor in the denial was his continued marijuana use, which occurred even after he submitted his e-QIP.

The judge found the applicant's stated intent to cease drug use lacked credibility given the recency of his marijuana use. Ultimately, the applicant failed to demonstrate permanent behavioral changes or adequately mitigate the security concerns associated with his drug involvement, resulting in the denial of his security clearance.

Why the Applicant Was Denied

The applicant admitted to using marijuana over 200 times, including recent use after submitting his e-QIP.
The applicant's statement of intent to cease drug use was deemed not credible due to the recency of his marijuana use.
The applicant did not demonstrate permanent behavioral changes or mitigate the security significance of his drug involvement.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedAny Drug Abuse
AG ¶ 25(c)raisedIllegal Drug Possession, Including Possession of Drug Paraphernalia

Key Rule Quoted

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

Procedural Posture

SOR issuedOct 29, 2008
Answer filedNot specified
Hearing heldNot applicable (decision without hearing)
Decision dateMar 30, 2009

Cite For

Denial of Security Clearance Due to Extensive Drug Use Under Guideline H
Credibility Issues Regarding Applicant's Intent to Cease Drug Use
Failure to Demonstrate Mitigating Circumstances for Drug Involvement

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 that the applicant's drug involvement raised significant security concerns, particularly due to his extensive marijuana use. While the applicant admitted to using marijuana over 200 times and had a history of drug-related legal issues, he claimed to have ceased use. However, the judge determined that the applicant did not sufficiently mitigate the concerns, leading to a denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The Applicant used marijuana at least 200 times from approximately December 1998 to January 2008.	Against Applicant	Marijuana	Regular	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	He also admitted to using LSD twice in 2000 and hydrocodone approximately five times in 2001.	For Applicant	LSD	Experimental	Admitted	—	—	—
1.c	He has not used either drug since that time.	For Applicant	Unspecified Drug Involvement	Not Applicable	Admitted	—	—	—
1.d	The Applicant was arrested for Possession of Marijuana in May 2003.	Against Applicant	Drug Distribution or Dealing	Not Applicable	Admitted	—	—	—

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. 08-05013 SSN: ------------------ ) ) Applicant for Security Clearance )

For Government: Alison O’Connell, Esquire, Department Counsel

For Applicant: Pro se

March 30, 2009

______________

STATEMENT OF CASE

______________

ROSS, Wilford H., Administrative Judge:

Applicant submitted his Electronic Questionnaires for Investigations Processing (e-QIP), on October 23, 2007 (Item 5). On October 29, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns under Guideline H concerning the Applicant. 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 revised adjudicative guidelines (AG) promulgated by President Bush on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006.

Applicant submitted an Answer to the SOR and requested a decision without a hearing. Department Counsel submitted a File of Relevant Material (FORM) to the Applicant on January 8, 2009. The Applicant received the FORM on January 16, 2009, and was given 30 days to submit any additional information. He elected not to submit anything further. The case was assigned to me on March 24, 2009. Based upon a review of the case file, pleadings, and exhibits, eligibility for access to classified information is denied.

FINDINGS OF FACT

The Applicant is 28, single, and has a college degree. He is employed by a defense contractor and seeks to obtain a security clearance in connection with his employment.

Guideline H - Drug Involvement

The Government alleges under Guideline H that the Applicant is ineligible for clearance because he has used illegal drugs. The Applicant admitted all of the allegations in the SOR. These admissions are hereby deemed findings of fact.

The Applicant used marijuana at least 200 times from approximately December 1998 to January 2008. (Item 5 at question 24, Item 6 at 2-3.) He stated that the majority of his use occurred before June 2005. During the period between June 2005 and January 2008, he used marijuana approximately five or six times. (Ibid.)

In his Answer to the SOR, the Applicant states that he will not use marijuana in the future. He further states, “This request for security clearance and keeping my current job were not the driver for this change of personality. If security clearance is not granted, my position on drug usage remains the same in that it is not of value.” However, he sees three associates every other week who continue to use marijuana.

The Applicant was arrested for Possession of Marijuana in May 2003. He plead guilty to Possession of Drug Paraphernalia and paid a fine. The Applicant maintains that he did not possess marijuana on this occasion, but he admits to having a marijuana pipe in his possession. (Item 6 at 4.)

He also admitted to using LSD twice in 2000 and hydrocodone approximately five times in 2001. He has not used either drug since that time. (Ibid.)

POLICIES

Security clearance decisions are not made in a vacuum. When evaluating an Applicant’s suitability for a security clearance, the Administrative Judge must consider the revised 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 common sense 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. In addition, the Administrative Judge may also rely on his own common sense, as well as his knowledge of the law, human nature, and the ways of the world, in making a reasoned 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

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. Security clearance 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.

Finally, as emphasized by President Eisenhower in Section 7 of Executive Order 10865, “Any determination under this order . . . shall be a determination 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

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.

I have considered the disqualifying conditions under Drug Involvement AG ¶ 25 and especially considered the following:

(a) any drug abuse; and

(c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia.

The Applicant used marijuana on more than 200 occasions over a period of approximately ten years. His last use of marijuana was within a year of the record closing in this case and was three months after he filled out his e-QIP (Item 5). He states that he has stopped any use of marijuana, but based on the recency of his use, I find this statement not to be credible. I find that both of the above disqualifying conditions apply.

I have considered all of the mitigating conditions under Drug Involvement AG ¶ 26 and find that none of them apply to the facts in this case concerning his marijuana use. I have especially considered whether to apply the following:

(a) the behavior happened so long ago, was so infrequent or happened under circumstances that it is unlikely to recur or does not cast doubt on the individual’s reliability, trustworthiness, or good judgment, and

(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 are used; (3) an appropriate period of abstinence; (4) a signed statement of intent with automatic revocation of clearance for any violation. The Applicant’s use of LSD and hydrocodone in 2000 and 2001 was minor in nature and has not been repeated. This usage has no current security significance. Accordingly, subparagraphs 1.b. and 1.c. are found for the Applicant.

However, the evidence is clear that the Applicant used marijuana on a number of occasions over a period of years. He used it after he was arrested in connection with its use, and after he filled out his Government questionnaire, which put him on notice of the Government’s concerns. Not enough time has passed for me to say with any degree of certainty that he will not use marijuana again. He has not mitigated the security significance of this use.

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(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) 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. The Applicant is a young man who used marijuana, an illegal substance, a considerable number of times over many years. In viewing all the facts of this case, I cannot find that the Applicant has mitigated the security significance of his prior conduct. As set forth above, I cannot find that there have been permanent behavioral changes under AG ¶ 2(a)(6). In addition, I cannot find that there is little to no potential for pressure, coercion, exploitation, or duress (AG ¶2(a)(8)), and that the likelihood of recurrence is close to nil (AG ¶2(a)(9)).

Overall, the record evidence leaves me with questions and/or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude the Applicant has not mitigated the security concerns arising from his drug involvement.

On balance, it is concluded that the Applicant has not successfully overcome the Government's case opposing his request for a DoD security clearance. Accordingly, the evidence supports a finding against the Applicant as to the factual and conclusionary allegations expressed in Paragraph 1 of the Government's Statement of Reasons.

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 THE APPLICANT

Subparagraph 1.a.: Against the Applicant Subparagraph 1.b.: For the Applicant Subparagraph 1.c.: For the Applicant Subparagraph 1.d.: Against the 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.

WILFORD H. ROSS Administrative Judge