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ISCR Case 09-00253.h1 — CASE

ISCR Case 09-00253.h1denied

Case Headnote

ISCR Case No. 09-00253.h1

deniedMay 20, 2010· Hon. Wilford H. Ross· hearing

Summary

A 52-year-old defense contractor, holding a Bachelor of Science degree, was denied a security clearance under Guideline H (Drug Involvement) due to his history of marijuana use. The Statement of Reasons specifically alleged that the applicant used marijuana approximately 20 times between 1977 and September 2008. This history raised disqualifying conditions related to reliability and trustworthiness.

While mitigating conditions were considered, the judge ultimately found them insufficient. The denial was based on several factors: the applicant's documented marijuana use over a significant period, the lack of clear and convincing evidence regarding his intent to cease drug use, and the absence of a signed statement committing to abstinence with an automatic revocation clause for any future violation.

Consequently, the judge determined that the applicant had not adequately demonstrated a commitment to discontinue drug involvement, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant used marijuana approximately 20 times from 1977 until September 2008, raising concerns about reliability and trustworthiness.
The applicant's statement of intent to stop using marijuana was not clear and convincing, indicating a potential for future use.
The applicant did not provide a signed statement committing to abstain from drug use with automatic revocation of clearance for any violation.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedAny Drug Abuse
AG ¶ 25(h)raisedExpressed Intent to Continue Illegal Drug Use, or Failure to Clearly and Convincingly Commit to Discontinue Drug Use

Mitigating

AG ¶ 26(a)rejectedThe 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 Reliability, Trustworthiness, or Good JudgmentThe applicant's infrequent use did not mitigate the security concerns due to the long duration of use.
AG ¶ 26(b)rejectedA Demonstrated Intent Not to Abuse Any Drugs in the FutureThe applicant's intent to stop using drugs was not convincingly demonstrated.

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural Posture

SOR issuedJul 9, 2009
Answer filedJul 15, 2009
Hearing heldOct 13, 2009
Decision dateMay 20, 2010

Cite For

Evaluation of Drug Involvement Under Guideline H
Insufficient Commitment to Abstain From Drug Use as a Basis for Denial
Importance of Clear and Convincing Evidence in Mitigating Security Concerns

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 against the applicant regarding drug involvement due to his past marijuana use. Although the applicant claimed infrequent use and expressed a desire to discontinue, the judge determined that his intent was not clear and convincing, 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 20 times during the period 1977 and approximately September 2008.	Against Applicant	Marijuana	Occasional	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. 09-00253 SSN: ---------------- ) ) Applicant for Security Clearance )

For Government: Jennifer I. Goldstein, Esquire, Department Counsel

For Applicant: Pro se

May 20, 2010

______________

STATEMENT OF CASE

______________

ROSS, Wilford H., Administrative Judge:

Applicant submitted his Electronic Questionnaire for Investigations Processing (e-QIP) on October 7, 2008. (Government Exhibit 1.) On July 9, 2009, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing the 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; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) promulgated by the President 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 on July 15, 2009, and requested a hearing before an administrative judge. Department Counsel was prepared to proceed on August 24, 2009. I received the case assignment on August 25, 2009. DOHA issued a notice of hearing on September 1, 2009, and I convened the hearing as scheduled on October 13, 2009. The Government offered Government Exhibits 1 through 3, which were received without objection. Applicant testified on his own behalf and submitted Applicant Exhibit A, without objection. DOHA received the transcript of the hearing on October 21, 2009. The record closed on October 21, 2009. Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility for access to classified information is denied.

FINDINGS OF FACT

The Applicant is 52, and has a Bachelor of Science 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 used marijuana 20 times during the period 1977 and approximately September 2008. According to the Applicant, his use of marijuana was very infrequent. The last time the Applicant used drugs was September 2008, with some work friends at his house. (Transcript at 21-25.) Applicant freely informed the Defense Department of his drug use in Government Exhibit 1 at Section 24. He did this though his friends recommended that he lie. (Transcript at 27-30, 43.) (See Government Exhibits 2 and 3.)

Applicant stated that he would not use marijuana in the future because he needs a security clearance for his job. He was asked whether, if he did not need a clearance, he would continue to use marijuana in the future. He replied, “If I didn’t need a Security Clearance, I might consider it.” (Transcript at 33.)

Mitigation

The Applicant submitted documentary evidence showing that he is a highly respected employee. He has been working in the defense industry, though in positions not needing a security clearance, since 1984. He has been promoted steadily during that time. His “Integrated Performance Assessment” ratings from his employer for the years 2006, 2007, and 2008, are “effective” or “highly effective.” (Applicant Exhibit A.)

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 to be used as appropriate 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 commonsense 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 the President 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 AG ¶ 25 and especially considered the following:

(a) any drug abuse; and

(h) expressed intent to continue illegal drug use, or failure to clearly and convincingly commit to discontinue drug use.

The Applicant used marijuana on an infrequent basis, from 1977 until approximately September 2008. While he stated an intent not to use drugs in the future because he needed a security clearance, his statement was not clear and convincing.

I have considered all of the mitigating conditions under AG ¶ 26 and especially considered the following:

(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 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 evidence is clear that the Applicant’s use of marijuana were the actions of a mature person. As of the date of the hearing, the Applicant was 52 and had been using marijuana, albeit infrequently, for 30 years. If his job did not require him to have a security clearance, it is likely that he would continue such use into the future. He is commended for being honest with the Defense Department about his drug use, when others recommended he lie. However, insufficient time has passed to show that he truly intends to stop marijuana use. The Applicant did not provide a signed statement that he would not use marijuana in the future with automatic revocation of clearance for any violation.

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 relevant circumstances. 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. 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.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. The Applicant is a hard-working, respected, professional who has engaged in occasional marijuana use for many years. In viewing all the facts of this case, I find that the Applicant has not mitigated the security significance of his prior conduct. As set forth above, I find that there have not been permanent behavioral changes under AG ¶ 2(a)(6). In addition, I find that there is still potential for pressure, coercion, exploitation, or duress (AG ¶2(a)(8)), and that there is likelihood of recurrence (AG ¶2(a)(9)).

Overall, the record evidence leaves me with questions and 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 as 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

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