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ISCR Case 09-00117.h1 — CASE

ISCR Case 09-00117.h1denied

Case Headnote

ISCR Case No. 09-00117.h1

deniedAug 13, 2010· Hon. Marc E. Curry· hearing

Summary

A 34-year-old electrician was denied a security clearance under Guideline H (Drug Involvement) due to his extensive history of marijuana use and stated intent to continue. The applicant's daily use began in 1996 and persisted, with only a one-year break prompted by drug testing requirements.

The Statement of Reasons cited the applicant's history of illegal drug involvement, specifically marijuana, his failure of drug tests, and his expressed intention to use marijuana in the future. Disqualifying conditions under AG ¶ 25(a), (b), (c), and (h) were raised.

The denial was based on the applicant's long-term daily marijuana use, his admission of using marijuana the night before his hearing, and his stated intent to continue future use. These factors raised concerns about his reliability and trustworthiness, which were deemed inconsistent with national security interests.

Why the Applicant Was Denied

Applicant has a long history of daily marijuana use since 1996, with only a one-year period of abstinence triggered by drug testing requirements.
Applicant admitted to using marijuana the night before the hearing and expressed intent to continue using it in the future.
The applicant's drug use raises questions about his reliability and trustworthiness, which are inconsistent with national security interests.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedAny Drug Abuse
AG ¶ 25(b)raisedTesting Positive for Illegal Drugs
AG ¶ 25(c)raisedIllegal Drug Possession
AG ¶ 25(h)raisedExpressed Intent to Continue Illegal Drug Use

Key Rule Quoted

“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.”

Procedural Posture

SOR issuedJan 8, 2010
Answer filedFeb 8, 2010
Hearing heldJun 8, 2010
Decision dateAug 13, 2010

Cite For

Denial of Security Clearance Due to Ongoing Illegal Drug Use
Impact of Expressed Intent to Continue Drug Use on Security Clearance Eligibility
Consideration of the Whole-person Concept in Security Clearance Decisions

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 history of illegal drug involvement, specifically marijuana use, and his intention to continue using marijuana, disqualified him from obtaining a security clearance. The decision was based on the applicant's daily use of marijuana for over 14 years, failed drug tests, and lack of rehabilitation efforts.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant has a history of illegal drug involvement, specifically marijuana use.	Against Applicant	MarijuanaWHILE CLEARED	Regular	Admitted	(a) any substance misuse (b) testing positive for an illegal drug (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (d) diagnosis of a substance use disorder	—	—
1.b	Applicant has failed drug tests.	Against Applicant	Drug Test FailureWHILE CLEARED	Not Applicable	Admitted	(b) testing positive for an illegal drug	—	—
1.c	Applicant intends to use marijuana in the future.	Against Applicant	Stated Intent to Use AgainWHILE CLEARED	Not Applicable	Admitted	(d) diagnosis of a substance use disorder	—	—
1.d–1.j	7 sub-charges — specific text not stated in this decision (against the applicant). (low confidence)	Against Applicant	Unspecified Drug Involvement	Unspecified		—	—	—

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. 09-00117 SSN: ----------- ) ) Applicant for Security Clearance )

For Government: Eric Borgstrom, Esquire, Department Counsel For Applicant: Pro se

August 13, 2010 ______________

STATEMENT OF CASE

______________

CURRY, Marc E., Administrative Judge:

Applicant’s history of illegal drug involvement, his current use, and his intention to use in the future bars him by law from being granted a security clearance. Clearance is denied.

Statement of the Case

On January 8, 2010, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline H, Drug Involvement. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines.

DOHA received Applicant’s answer to the SOR on February 8, 2010. He admitted all of the allegations and requested a hearing. The case was assigned to me on April 5, 2010. On May 17, 2010, a notice of hearing was issued scheduling the case for June 8, 2010. The hearing was held as scheduled. At the hearing, I received three government exhibits and Applicant’s testimony. DOHA received the transcript on June 16, 2010.

FINDINGS OF FACT

Applicant is a 34-year-old married man with two children ages two and four. He has a high school education. Since 2000, he has worked as an electrician. (Tr. 14) Currently, he works for a DoD subcontractor maintaining critical electrical systems and temperature control. (Tr. 16) Also, he works as an instructor at a local electrician’s union where he teaches alternative energy, photovoltaics, and fuel cells. (Tr. 15)

Applicant entered the United States Navy in 1993. After testing positive for marijuana, he was administratively separated “by reason of Misconduct Due to Commission of a Serious Offense” in 1996. His discharge status was general under honorable conditions. (GE 3 at 3)

With the exception of a one-year period of abstinence in 2004, Applicant has smoked marijuana every day since 1996. He typically smokes marijuana after work. Once, while the security clearance application process was pending, he smoked it while carpooling to work in a company vehicle. (Tr. 25, 26) His most recent use was the night before the hearing. (Tr. 19-20, 26)

Applicant spends approximately $200 per month on marijuana. During the week before the hearing, he purchased it on seven occasions. (Tr. 26)

Applicant’s one year abstinence period in 2004, as noted above, was triggered by his failure of a drug test administered by the electrician’s union. (Tr. 23) At the time, he was completing his apprenticeship. The union required him to attend drug counseling as a condition of continued membership. (Tr. 23)

Applicant remained drug-free through the remainder of his apprenticeship. (Tr. 23) After completing his apprenticeship and attaining journeyman status, Applicant resumed using marijuana. He did so because the union does not test licensed electricians and can no longer “influence . . . whether or not [he] use[s].” (Tr. 23)

When asked on cross-examination whether he intends to continue using marijuana, Applicant responded as follows:

At this point, I do intend to continue using marijuana. However, if it becomes an issue with employment, I would obviously stop. (Tr. 21)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the revised adjudicative guidelines (AG). 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.

According to AG ¶ two(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.

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.”

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.

ANALYSIS

Drug Involvement

Under 50 U.S.C. § 435c, “the head of a Federal agency may not grant or renew a security clearance for a covered person who is an unlawful user of a controlled substance or an addict.” This statute is applicable only if the person is currently an unlawful user or addict. (See ISCR Case No. 03-25009 (App. Bd. June. 28, 2005))

Absent a clinical diagnosis, I do not conclude Applicant is addicted to marijuana. Conversely, there is ample evidence that Applicant is a current user of marijuana. Specifically, he smoked marijuana daily for at least 14 years, and maintained this frequency unabated through the night before the hearing. Moreover, his only period of abstinence in the past 15 years occurred when he was required to undergo periodic drug testing as a condition of membership in a trade union. As soon as this requirement ceased, he resumed smoking marijuana. Most importantly, Applicant admitted that he will continue to use marijuana.

Even if 50 U.S.C. § 435cdid not bar Applicant from possessing a security clearance, I would still conclude that granting him a clearance is not clearly consistent with the national interest. Under the adjudicative guideline governing drug involvement, “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” (AG ¶ 24). Applicant’s history of marijuana use, his failed drug tests, and his intention to use marijuana in the future trigger the application of the disqualifying conditions set forth in of AG ¶¶ 25(a), “any drug abuse,” 25(b), “testing positive for illegal drugs,” 25(c), “illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia,” and 25(h), “expressed intent to continue illegal drug use, or failure to clearly and convincingly commit to discontinue drug use.” None of the mitigating conditions 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(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.

Given the significant length and frequency of Applicant’s marijuana use and the lack of any rehabilitation, I conclude that Applicant has failed to mitigate the security concern.

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

Subparagraph 1.a - 1.j: 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 eligibility for a security clearance. Eligibility for access to classified information is denied.

MARC E. CURRY Administrative Judge