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ISCR Case 08-05791.h1 — CASE

ISCR Case 08-05791.h1denied

Case Headnote

ISCR Case No. 08-05791.h1

deniedJun 22, 2009· Hon. Michael H. Leonard· hearing

Summary

A 26-year-old federal contractor employee was denied a security clearance due to concerns under Guidelines E (Personal Conduct), G (Alcohol Consumption), H (Drug Involvement), and J (Criminal Conduct). The denial stemmed from a documented history of drug abuse, excessive alcohol consumption, criminal conduct, and related personal conduct issues. The judge determined that the evidence presented was insufficient to mitigate these security concerns, highlighting a long-term pattern of questionable judgment and unreliability.

The applicant's drug involvement included marijuana use from January 1998 to March 2007, estimated at approximately 100 times. Other reported drug use included ecstasy about three times during 2006–2007, mushrooms about two times during 2006–2007, cocaine about three times during 2004–2006, and methamphetamine once in 2001. The most recent illegal drug use occurred in 2007, with ecstasy in August, marijuana in March, and mushrooms in January.

Beyond drug use, the applicant admitted to a history of criminal conduct, primarily involving drug and alcohol-related offenses. This included a felony burglary arrest in 2001, which resulted in a plea bargain, a guilty plea, two years of probation, 80 hours of community service, one month of house arrest, and a required mental-health evaluation. The judge concluded that the evidence did not sufficiently mitigate the security concerns raised by these issues.

Why the Applicant Was Denied

Applicant has a history of illegal drug abuse from 1998 to 2007, including multiple substances.
Applicant has a history of excessive alcohol consumption, with a recent binge-drinking incident in July 2008.
Applicant has a criminal record that includes drug-related offenses and a felony burglary conviction.

Conditions Referenced

Disqualifying

HraisedDrug Involvement
GraisedAlcohol Consumption
JraisedCriminal Conduct
EraisedPersonal Conduct

Key Rule Quoted

“no one has a 'right' to a security clearance”
— Department of Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedNov 14, 2008
Answer filedDec 5, 2008Applicant elected a decision without a hearing.
Hearing held—Decision based on written record.
Decision dateJun 22, 2009

Cite For

Insufficient Evidence to Mitigate Drug Involvement Under Guideline H
Insufficient Evidence to Mitigate Alcohol Consumption Under Guideline G
Insufficient Evidence to Mitigate Criminal Conduct Under Guideline J

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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found multiple personal conduct concerns under Guideline E, including a pattern of questionable judgment and untrustworthiness. The applicant's conduct was deemed insufficiently mitigated, leading to a decision against the applicant on all allegations except one.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
4.a–4.j	10 sub-charges — specific text not stated in this decision (9 against, 1 for the applicant).	Mixed		—		—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline G (Alcohol Consumption) · descriptive summary of a decided case

Posture: Decision on RecordDecided: deniedAUD DIAGNOSED

The judge found that the applicant had a history of excessive alcohol consumption, including binge drinking, which raised concerns about his reliability and trustworthiness. While one allegation was decided in favor of the applicant, the overall findings under Guideline G were against him, leading to a denial of his security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
2.a–2.f	6 sub-charges — specific text not stated in this decision (5 against, 1 for the applicant).	Mixed			—	—	—

Descriptive standardized rendering of a decided public case (Guideline G). The verbatim source decision is shown in full below.

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 history of drug abuse, including marijuana, ecstasy, mushrooms, cocaine, and methamphetamine, with use spanning from 1998 to 2007. The judge concluded that the evidence was insufficient to mitigate the security concerns due to the length, frequency, and recency of the applicant's drug use.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The applicant used marijuana with varying frequency during the period January 1998 to March 2007.	Against Applicant	Marijuana	Regular	Admitted	—	—	—
1.b	The applicant estimates using marijuana approximately 100 times.	Against Applicant	Marijuana	Regular	Admitted	—	—	—
1.c	The applicant used ecstasy about three times during 2006–2007.	Against Applicant	MDMA	Occasional	Admitted	—	—	—
1.d	The applicant used mushrooms about two times during 2006–2007.	Against Applicant	Psilocybin	Occasional	Admitted	—	—	—
1.e	The applicant used cocaine about three times during 2004–2006.	Against Applicant	Cocaine	Occasional	Admitted	—	—	—
1.f	The applicant used methamphetamine once in 2001.	Against Applicant	Methamphetamine	Experimental	Admitted	—	—	—
1.g	The applicant's most recent illegal drug use was in 2007 when he used ecstasy in about August 2007, marijuana in about March 2007, and mushrooms in January 2007.	Against Applicant	Unspecified Drug Involvement	Not Applicable	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge ruled against the applicant on all allegations under Guideline J, indicating that the applicant's history of criminal conduct raised significant concerns about his judgment, reliability, and trustworthiness. The decision was based on the applicant's admissions of drug use, alcohol-related offenses, and a felony burglary conviction, which collectively demonstrated a pattern of questionable behavior.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	Applicant admitted a history of criminal conduct. It consists mainly of his drug-related conduct (use and possession of illegal drugs) and alcohol-related offenses mentioned above.	Against Applicant	Drug Related Criminal Charge	Conduct No Charge	Admitted	—	—	—
3.b	In addition to those matters, he was arrested for the felony offense of burglary in 2001. He accepted a plea bargain wherein he pleaded guilty and was sentenced to probation for two years, community service for 80 hours, house arrest for one month, and he was required to undergo a mental-health evaluation.	Against Applicant	Trespassing or Burglary	Convicted	Admitted	—	—	—
3.c	The various mitigating conditions under the four guidelines have been reviewed and considered in light of the record evidence as a whole, and the evidence is not sufficient to mitigate and overcome the security concerns.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Unknown	—	—	—

Descriptive standardized rendering of a decided public case (Guideline J). 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. 08-05791 SSN: -------------------------- ) ) Applicant for Security Clearance )

For Government: Alison O’Connell, Esquire, Department Counsel For Applicant: Pro Se

June 22, 2009 ______________

STATEMENT OF CASE

______________

LEONARD, Michael H., Administrative Judge:

Applicant contests the Defense Department’s intent to deny or revoke his eligibility for an industrial security clearance. Acting under the relevant Executive Order, DoD Directive, and Revised Guidelines, the Defense Office of Hearings and Appeals (DOHA) issued a statement of reasons (SOR) to Applicant on November 14, 2008. The SOR is equivalent to an administrative complaint and it details the factual basis for the

dated after the effective date. action. The issues in this case fall under Guideline H for drug involvement, Guideline G for alcohol consumption, Guideline J for criminal conduct, and Guideline E for personal conduct.

Applicant’s four-page response to the SOR is dated December 5, 2008, and he elected a decision without a hearing. Accordingly, the case will be decided based on the written record in lieu of a hearing.

On January 21, 2009, the government submitted its written case consisting of all relevant and material information that could be adduced at a hearing. This so-called file of relevant material (FORM) was mailed to Applicant and received by him on January 28, 2009. He did not submit a documentary response to the FORM within the allowed 30-day period. The case was assigned to me May 1, 2009. For the reasons discussed below, this case is decided against Applicant.

FINDINGS OF FACT

Based on the record evidence as a whole, the following facts are established by substantial evidence.

Applicant is a 26-year-old employee of a federal contractor. He graduated from high school in 2002 and thereafter entered college. He appears to have completed a joint-degree program as he was awarded both a BSBA and MBA in May 2007. He began his current employment as a cost-schedule analyst for a major defense contractor in June 2007. He has not married and has no children.

Applicant admitted a history of drug abuse. He used marijuana with varying frequency during the period January 1998 to March 2007. He estimates using marijuana approximately 100 times. He also purchased marijuana a number of times during the same period. In addition to marijuana use, he used the following illegal drugs: (1) ecstasy about three times during 2006–2007; (2) mushrooms about two times during 2006–2007; (3) cocaine about three times during 2004–2006; and (4) methamphetamine once in 2001. His most recent illegal drug use was in 2007 when he used ecstacy in about August 2007, marijuana in about March 2007, and mushrooms in January 2007 (Exhibit 6 at 4–5). In 2003, he was stopped by the police for speeding and was found to be in possession of marijuana. Arrested for driving under the influence of both alcohol and drugs, he later pleaded guilty to driving while ability impaired (DWAI).

Applicant admitted a history of excessive alcohol consumption since about 1998. His history includes two arrests and convictions for minor in possession of alcohol and the DWAI offense mentioned above. In addition, he received treatment from a behavioral healthcare facility during 2000–2002 for a condition diagnosed as alcohol abuse. The treatment was not continuous, as he was enrolled twice in two different programs for different durations. His history includes binge drinking as recently as July 2008 when he drank 12 beers and 2 mixed drinks during a 12-hour period at a daylong party (Exhibit 6 at 2).

Applicant admitted a history of criminal conduct. It consists mainly of his drug- related conduct (use and possession of illegal drugs) and alcohol-related offenses mentioned above. In addition to those matters, he was arrested for the felony offense of burglary in 2001. He accepted a plea bargain wherein he pleaded guilty and was sentenced to probation for two years, community service for 80 hours, house arrest for one month, and he was required to undergo a mental-health evaluation. This incident stemmed from Applicant’s decision to engage in self-help by entering a home and stealing property from a person who had stolen a stereo system from his auto.

Applicant admitted a history of rule violations. In total, he has had eight traffic violations (e.g., speeding) during the period 2001–2008. In addition, he was fired from his employment with Walmart when he violated a store policy by pushing too many carts at once (the maximum was six and he had ten).

POLICIES

This section sets forth the general principles of law and policies that apply to an industrial security clearance case. To start, no one has a right to a security clearance.3 As noted by the Supreme Court in 1988 in the case of Department of Navy v. Egan, “the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.” A favorable decision establishes eligibility of an applicant to be granted a security clearance for access to confidential, secret, or top- secret information. An unfavorable decision: (1) denies any application; (2) revokes any existing security clearance; and (3) prevents access to classified information at any level and retention of any existing security clearance. 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.

There is no presumption in favor of granting, renewing, or continuing eligibility for access to classified information. The government has the burden of presenting evidence to establish facts alleged in the SOR that have been controverted. An applicant is responsible for presenting evidence to refute, explain, extenuate, or mitigate facts that have been admitted or proven. In addition, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision. In Egan, the Supreme Court stated that the burden of proof is less than a preponderance of the evidence.11 The agency appellate authority has followed the Court’s reasoning, and a judge’s findings of fact are reviewed under the substantial-evidence standard.12

The Revised Guidelines set forth adjudicative guidelines to consider when evaluating a person’s security clearance eligibility, including disqualifying conditions (DC) and mitigating conditions (MC) for each guideline. In addition, each clearance decision must be a fair and impartial commonsense decision based upon consideration of all the relevant and material information, the pertinent criteria and adjudication factors, and the whole-person concept. A person granted access to classified information enters into a special relationship with the government. The government must be able to have a high degree of trust and confidence in those persons to whom it grants access to classified information. The decision to deny a person a security clearance is not a determination of an applicant’s loyalty. Instead, it is a determination that the applicant has not met the strict guidelines the President has established for granting eligibility for a security clearance.

ANALYSIS

The SOR here alleges four security guidelines, which are described below.

Under Guideline H for drug involvement, the security concern is that “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.” The definition of drug abuse is “the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.”15 Under Guideline G for alcohol consumption, the security concern is that “excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual’s reliability and trustworthiness.”

Under Guideline J for criminal conduct, the security concern is that “criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules and regulations.”

Under Guideline E for personal conduct, the security concern addresses “conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations [that may] raise questions about an individual’s reliability, trustworthiness, and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.”

Based on the record evidence as a whole, this case raises multiple security concerns. For example, the disqualifying information includes the following: (1) a history of illegal drug abuse starting in about 1998 and ending in about in 2007; (2) a history of excessive consumption of alcohol, to include alcohol-related incidents away from work and binge consumption; (3) a history of criminal conduct, to include a single serious crime and multiple lessor offenses; and (4) a history of questionable personal conduct as shown by the multiple traffic violations establishing a pattern of unwillingness to comply with rules or regulations. Aggravating the situation is that Applicant’s use of ecstacy in August 2007 occurred but a few months after he began working for his employer, a major defense contractor, which presumably has a drug-free workforce policy as all major defense contractors do.

The various mitigating conditions under the four guidelines have been reviewed and considered in light of the record evidence as a whole, and the evidence is not sufficient to mitigate and overcome the security concerns. For Guideline H, the evidence is insufficient due to the length of Applicant’s drug abuse (1998 to 2007), the frequency of his drug abuse (using marijuana about 100 times), and the recency of his drug abuse (as recently as August 2007). For Guideline G, the evidence is insufficient because Applicant continues to drink alcohol to excess as evidenced by his July 2008 binge- drinking episode when he drank 12 beers and 2 mixed drinks at a party. For Guideline J, the evidence is insufficient because, given that Applicant continues to drink alcohol to excess, additional alcohol-related criminal conduct cannot be ruled out. In reaching this conclusion on Guideline J, I took into account that some of his criminal conduct took place when he as a juvenile (under the age of 18). For Guideline E, the evidence is insufficient as well. The multiple traffic offenses, the most recent of which took place in 2008, standing alone are not too serious. But when combined with the other derogatory evidence in the case, the evidence as a whole paints a picture of a 26-year-old man who has demonstrated a long-term pattern of questionable judgment, untrustworthiness, and unreliability. These circumstances raise questions and doubts about his suitability for access to classified information.

Under the whole-person concept, an administrative judge must evaluate a person’s eligibility for a security clearance by considering the totality of the person’s conduct and all the circumstances. An administrative judge should consider the nine adjudicative process factors listed in the Revised Guidelines as follows: (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.

After weighing the record evidence as a whole and giving it due consideration under the whole-person concept, Applicant did not present sufficient evidence to explain, extenuate, or mitigate the security concerns. At this point in time, it is simply too soon to tell if Applicant’s history of misbehavior involving drug abuse, alcohol abuse, criminal conduct, and traffic offenses is a thing of the past or if his history is a harbinger of things to come. Applicant did not meet his ultimate burden of persuasion to obtain a favorable clearance decision. This case is decided against Applicant.

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.g: Against Applicant

Paragraph 2, Guideline G: Against Applicant Subparagraphs 2.a, c–f: Against Applicant For Applicant20 Subparagraph 2.b: Paragraph 3, Guideline J: Against Applicant Subparagraphs 3a.–3c: Against Applicant

Paragraph 4, Guideline E: Against Applicant Subparagraphs 4.a–4.g: Against Applicant For Applicant21 Subparagraph 4.h: Subparagraphs i–j: Against Applicant

CONCLUSION

In light of all the circumstances, it is not clearly consistent with the interests of national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

Michael H. Leonard Administrative Judge

FOOTNOTES

This case is adjudicated under Executive Order 10865, Safeguarding Classified Information within Industry, dated February 20, 1960, as amended, and DoD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program, dated January 2, 1992, as amended (Directive). In addition to the Executive Order and Directive, this case is also adjudicated under the revised Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (Revised Guidelines) approved by the President on December 29, 2005. The Revised Guidelines were then modified by the Defense Department, effective September 1, 2006. They supersede or replace the guidelines published in Enclosure 2 to the Directive. They apply to all adjudications and other determinations where an SOR has been issued on September 1, 2006, or thereafter. The Directive is pending revision or amendment. The Revised Guidelines apply here because the SOR is The government’s brief includes several attachments referred to as items. They are referred to as exhibits herein. Department of Navy v. Egan, 484 U.S. 518, 528 (1988) (“it should be obvious that no one has a ‘right’ to a th security clearance”); Duane v. Department of Defense, 275 F.3d 988, 994 (10 Cir. 2002) (“It is likewise plain that there is no ‘right’ to a security clearance, so that full-scale due process standards do not apply to cases such as Duane’s.”).

Egan, 484 U.S. at 531.

Directive, ¶ 3.2.

ISCR Case No. 02-18663 (App. Bd. Mar. 23, 2004). Directive, Enclosure 3, ¶ E3.1.14.

Directive, Enclosure 3, ¶ E3.1.15.

Egan, 484 U.S. at 531.

ISCR Case No. 01-20700 (App. Bd. Dec. 19, 2002) (citations omitted).

Executive Order 10865, § 7.

Revised Guidelines at 17–18 (setting forth the security concern as well as the disqualifying and mitigating conditions).

Revised Guidelines at 17. Revised Guidelines at 15–16 (setting forth the security concern and the disqualifying and mitigating conditions).

Revised Guidelines at 21–22 (setting forth the security concern as well as the disqualifying and mitigating conditions).

Revised Guidelines at 10–12 (setting forth the security concern as well as the disqualifying and mitigating conditions). Revised Guidelines at 1–2.

This allegation is decided for Applicant because taking several alcohol-related classes does not raise a DC under the guideline. This allegation is decided for Applicant because I cannot hold it against him that he pushed too many carts at W almart when he was 18 years old.