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ISCR 09-08164.h1: Guideline H security clearance hearing, granted (2010) · CASE

ISCR Case 09-08164.h1granted

Case headnote

ISCR Case No. 09-08164.h1

grantedDec 1, 2010· Hon. LeRoy F. Foreman· hearing

Summary

This case concerns a 29-year-old fire protection engineer whose security clearance was granted despite concerns under Guideline H (Drug Involvement). The Statement of Reasons alleged marijuana use, with varying frequency, from September 2001 to at least April 2009. This raised disqualifying conditions under Adjudicative Guidelines (AG) ¶ 25(a) and AG ¶ 25(c).

However, the judge applied mitigating conditions under AG ¶ 26(a) and AG ¶ 26(b). Key factors included the significant time elapsed since the applicant's last marijuana use in April 2009, which was over 17 months before the hearing. The applicant demonstrated a clear intent to abstain from future drug abuse, including disassociating from friends who used drugs and understanding his employer's drug-free policy.

Furthermore, the applicant was found to be candid and credible during the hearing, acknowledging his past behavior as immature. Based on these mitigating factors, the security clearance was granted.

Why the applicant prevailed

The applicant last used marijuana in April 2009, over 17 months before the hearing.
He demonstrated a clear intent not to abuse drugs in the future, including disassociating from drug-using friends and understanding his employer's drug-free policy.
The applicant was candid and credible during the hearing, acknowledging his past behavior as immature.

Conditions referenced

Disqualifying

AG ¶ 25(a)raisedAny Drug Abuse
AG ¶ 25(c)raisedIllegal Drug Possession

Mitigating

AG ¶ 26(a)appliedBehavior Happened so Long Ago
AG ¶ 26(b)appliedDemonstrated Intent Not to Abuse Drugs in the Future

Key rule quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG.”

Procedural posture

SOR issuedJul 26, 2010
Answer filedAug 11, 2010
Hearing heldSep 20, 2010
Decision dateOct 30, 2010

Cite for

Mitigation of Drug Involvement Under Guideline H
Demonstrated Intent Not to Abuse Drugs as a Mitigating Factor
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.

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: 29: “Applicant is a 29-year-old fire protection engineer employed by a defense contractor.”
Held a clearance before: No: “He has never held a security clearance.”

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's past marijuana use did not disqualify him from holding a security clearance. The applicant admitted to infrequent marijuana use from 2001 to 2009 but demonstrated a commitment to abstain from drug use in the future. The judge concluded that the applicant mitigated the security concerns related to drug involvement, resulting in a decision to grant eligibility for access to classified information.

¶	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. 09-08164 SSN: ----------- ) ) Applicant for Security Clearance )

For Government: David F. Hayes, Esq., Department Counsel For Applicant: P. Todd Sartwell, Esq.

December 1, 2010 ______________

STATEMENT OF CASE

______________

FOREMAN, LeRoy F., Administrative Judge:

This case involves security concerns raised under Guideline H (Drug Involvement). Eligibility for access to classified information is granted.

Statement of the Case

Applicant submitted a security clearance application on June 11, 2009. On July 26, 2010, the Defense Office of Hearings and Appeals (DOHA) sent him a Statement of Reasons (SOR) detailing the basis for its preliminary decision to deny his application, citing security concerns under Guideline H. DOHA acted 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) implemented by the Department of Defense on September 1, 2006.

Applicant received the SOR on July 29, 2010; answered it on August 11, 2010; and requested a hearing before an administrative judge. DOHA received the request on August 16, 2010. Department Counsel was ready to proceed on August 30, 2010, and the case was assigned to me on September 1, 2010. DOHA issued a notice of hearing on September 2, 2010, scheduling it for September 20, 2010. I convened the hearing as scheduled. Government Exhibits (GX) 1 and 2 were admitted in evidence without objection. Applicant testified, but presented no witnesses or documentary evidence other than his answer to the SOR. DOHA received the transcript (Tr.) on September 30, 2010.

FINDINGS OF FACT

In his answer to the SOR, Applicant admitted the single allegation in the SOR, alleging marijuana use, with varying frequency, from September 2001 to “at least” April 2009. His admissions in his answer and at the hearing are incorporated in my findings of fact.

Applicant is a 29-year-old fire protection engineer employed by a defense contractor. He graduated from college in May 2003, obtained a master’s degree in May 2004, and worked for a private engineering firm until he began his current employment in June 2009. He married in September 2007. He has never held a security clearance.

Applicant disclosed his marijuana use on his security clearance application. He stated that his marijuana use “was restricted to social smoking, on an infrequent basis,” about once every three to six months. (GX 1 at 43.) He was 20 years old when he first used marijuana (Tr. 26.) During college, he lived in a fraternity house where marijuana was used daily by the residents, but he used it only about once every two months at social events. He never purchased or sold marijuana. After completing his education, he used marijuana one or two times a year at parties with friends. After he was married in 2007, he did not use marijuana again until April 2009, while he was at a bachelor party with nine college friends in a foreign country where he believes marijuana use is legal. At the bachelor party, he noticed that one of the nine friends in the group abstained from using marijuana because he held a security clearance. (Answer to SOR at 1; Tr. 20.) He has not used it since April 2009. (Tr. 15-19.)

Applicant moved to a different part of the country to accept his current job, and he no longer associates with his marijuana-using friends. He was advised of his employer’s policy to maintain a drug-free workplace, and he understands that drug use will not be tolerated. (Tr. 37.) When he responded to the SOR, he declared his intention to not abuse any drugs in the future and agreed to automatic revocation of his clearance for any violation. (Answer to SOR at 2.) He has never been arrested for or charged with a drug-related offense, and he has never been treated for drug addiction or abuse.

POLICIES

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk the 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.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

- Guideline H, Drug Involvement

The concern under this guideline 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.@ This guideline encompasses Adrugs, 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).” AG ¶ 24(a)(1).

The evidence establishes two disqualifying conditions under this guideline: AG ¶ 25(a) (“ any drug abuse”, defined in AG ¶ 24(b) as “the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction”); and AG ¶ 25(c): (“illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia”). Thus, the burden shifted to Applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005).

Security concerns under this guideline may be mitigated if “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.” AG ¶ 26(a). The first prong of AG ¶ 26(a) (Ahappened so long ago@) focuses on whether the drug involvement was recent. There are no Abright line@ rules for determining when conduct is Arecent.@ The determination must be based on a careful evaluation of the totality of the evidence. If the evidence shows Aa significant period of time has passed without any evidence of misconduct,@ then an administrative judge must determine whether that period of time demonstrates Achanged circumstances or conduct sufficient to warrant a finding of reform or rehabilitation.@ ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004).

Applicant has used marijuana only once since he was married in September 2007, more than three years ago. He last used marijuana in April 2009, about 17 months before his hearing. He is not addicted to drugs and considers them part of his immature past. Since his last use of marijuana, he has moved to a new job at a new location, and he made new friends and associates. I conclude AG ¶ 26(a) is established.

Security concerns also may be mitigated by “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 were used; (3) an appropriate period of abstinence; and (4) a signed statement of intent with automatic revocation of clearance for any violation.” AG ¶ 26(b). Applicant has satisfied all four prongs of this mitigating condition.

WHOLE PERSON CONCEPT

Under the whole-person concept, an 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. An 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.

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 have incorporated my comments under Guideline H in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under that guideline, but some warrant additional comment.

Like many young adults, Applicant used marijuana in a college environment and now realizes that it is inconsistent with holding a position of trust. He was candid, sincere, and very credible at the hearing. He realizes that his statement of intent places him on probation, with no second chances. After weighing the disqualifying and mitigating conditions under Guideline H, evaluating all the evidence in the context of the whole person, and mindful of my obligation to decide close cases in favor of national security, I conclude Applicant has mitigated the security concerns based on his drug involvement. Accordingly, I conclude he has carried his burden of showing that it is clearly consistent with the national interest to grant him eligibility for access to classified information.

FORMAL FINDINGS

I make the following formal findings on the allegations in the SOR:

Paragraph 1, Guideline H (Drug Involvement): FOR APPLICANT

Subparagraph 1.a: For Applicant

CONCLUSION

I conclude that it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

LeRoy F. Foreman Administrative Judge