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ISCR Case 10-04955.h1 — CASE

ISCR Case 10-04955.h1denied

Case Headnote

ISCR Case No. 10-04955.h1

deniedJan 24, 2011· Hon. Darlene Lokey Anderson· hearing

Summary

A 34-year-old Operations Analyst Specialist, employed by a defense contractor, was denied a security clearance under Guideline H (Drug Involvement). The Statement of Reasons detailed that the applicant used marijuana approximately two to three times a month from August 1998 to at least April 2010, purchasing 2-3 grams or less monthly from various dealers and friends for personal use.

Crucially, the applicant admitted to regular marijuana use and explicitly stated an intent to continue using it in the future. This admission and expressed intent were central to the denial.

The decision concluded that the applicant's drug involvement demonstrated poor judgment and unreliability. The applicant did not present persuasive evidence in rebuttal or mitigation, leading to the denial of the security clearance.

Why the Applicant Was Denied

The applicant admitted to using marijuana regularly and expressed intent to continue its use.
The applicant's drug use was deemed to demonstrate poor judgment and unreliability.
The applicant failed to provide persuasive evidence in rebuttal or mitigation against the government's case.

Conditions Referenced

Disqualifying

25(a)raisedAny Drug Abuse
25(c)raisedIllegal Drug Possession, Including Cultivation, Processing, Manufacture, Purchase, Sale or Distribution
25(h)raisedExpressed Intent to Continue Illegal Drug Use, or Failure to Clearly and Convincingly Commit to Discontinue Drug Use

Key Rule Quoted

“The Government is therefore appropriately concerned when available information indicates that an Applicant for clearance may be involved in illegal drug abuse that demonstrates poor judgment or unreliability.”

Procedural Posture

SOR issuedOct 23, 2009
Answer filedAug 10, 2010Applicant elected to have the case determined on a written record.
Hearing held—No hearing; case determined on written record.
Decision dateJan 24, 2011

Cite For

Denial of Security Clearance Due to Illegal Drug Use Under Guideline H
Impact of Expressed Intent to Continue Illegal Drug Use on Security Clearance Eligibility
Government's Burden of Proof in Establishing Disqualifying Conditions Related to 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 engaged in illegal drug use, specifically marijuana, at a frequency of two to three times a month over a twelve-year period. The applicant expressed an intent to continue using marijuana, which contributed to the denial of his security clearance due to concerns about reliability and trustworthiness.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The Applicant used marijuana, with varying frequency, approximately two to three times a month from August 1998 to at least April 2010.	Against Applicant	Marijuana	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (d) diagnosis of a substance use disorder	—	—
1.b	The Applicant purchased marijuana, on the order of 2-3 grams or less a month from various dealers and friends for his own use.	Against Applicant	Drug Distribution or Dealing	Not Applicable	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.c	The Applicant stated that he intends to continue to use marijuana in the future.	Against Applicant	Stated Intent to Use Again	Not Applicable	Admitted	(a) any substance misuse (d) diagnosis of a substance use disorder	—	—

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. 10-04955 ---------------------------- ) ) Applicant for Security Clearance )

For Government: Caroline H. Jeffreys, Department Counsel For Applicant: Pro se

January 24, 2011

______________

STATEMENT OF CASE

______________

LOKEY ANDERSON, Darlene D., Administrative Judge:

Applicant submitted his Electronic Questionnaire for Investigations Processing (e-QIP) on March 12, 2010. (Government Exhibit 5.) On October 23, 2009, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns under Guideline H for 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 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.

The Applicant responded to the SOR in writing on August 10, 2010, in which he elected to have the case determined on a written record in lieu of a hearing. Department Counsel submitted the Government’s File of Relevant Material (FORM) to the Applicant on November 4, 2010. The Applicant was instructed to submit information in rebuttal, extenuation or mitigation within 30 days of receipt. Applicant received the FORM on November 4, 2010, and he failed to submit a response to DOHA. The case was assigned to the Administrative Judge for resolution on January 6, 2011. 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 34 years old. He is employed by a defense contractor as an Operations Analyst Specialist and is applying for a security clearance in connection with his employment.

Paragraph 1 (Guideline H - Drug Involvement). The Government alleges that the Applicant is ineligible for clearance because he abuses illegal drugs.

The Applicant admitted each of the allegations set forth under this guideline. (Applicant’s Answer to the SOR.) He used marijuana, with varying frequency, approximately two to three times a month from August 1998 to at least April 2010. He also purchased marijuana, on the order of 2-3 grams or less a month from various dealers and friends for his own use. The Applicant indicates that he last used marijuana in April 2010.

During an interview with a DoD investigator on April 9, 2010, the Applicant stated that he intends to continue to use marijuana in the future. (Government Exhibit 6.) The Applicant indicates that his marijuana use in the past has never interfered with his job responsibilities, nor has he ever been under the influence during work hours. He restricts his use of marijuana to a medicinal remedy for ocular migraine headaches, when he attends a concert, or occasionally when working on an artistic or musical project. (See Applicant’s Answer to SOR.) He smokes marijuana with his band members and one of them has a license to sell medical marijuana. (Government Exhibit 6.)

The Government argues that the Bond Amendment, set forth under 50 U.S.C. Section 435(c) disqualifies the Applicant from having a security clearance granted or renewed by the Department of Defense. The Bond Amendment provides, in relevant part, that “After January 1, 2008, 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 (As defined in section 802(1) of Title 21.)” The Bond Amendment applies to the Applicant because he is an employee of a federal contractor. Although there is no evidence to prove that the Applicant is an addict, there is ample evidence to prove that the Applicant was and still is a consistent unlawful user of a controlled substance, as the record evidence establishes that Applicant smoked marijuana on a frequent basis over a twelve year period and intends to continue to use it.

POLICIES

Enclosure 2 and Section E.2.2. of the Directive sets forth adjudication policies divided into "Disqualifying Factors" and "Mitigating Factors." The following Disqualifying Factors and Mitigating Factors are found to be applicable in this case:

Guideline H (Drug Involvement)

The Concern. 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.

Conditions that could raise a security concern:

25.(a) any drug abuse;

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

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

Conditions that could mitigate security concerns:

None.

In addition, as set forth in Enclosure 2 of the Directive at pages 18-19, in evaluating the relevance of an individual’s conduct, the Administrative Judge should consider the following general factors:

a. The nature, extent, and seriousness of the conduct;

b. The circumstances surrounding the conduct, to include knowledgeable participation;

c. The frequency and recency of the conduct;

d. The individual’s age and maturity at the time of the conduct;

e. The extent to which participation is voluntary;

f. The presence or absence of rehabilitation and other permanent behavioral changes;

g. The motivation for the conduct; h. The potential for pressure, coercion, exploitation or duress; and

i. The likelihood of continuation or recurrence.

The eligibility criteria established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question, posed in Section 2 of Executive Order 10865, of whether it is “clearly consistent with the national interest” to grant an Applicant’s request for access to classified information.

The DoD Directive states, “The adjudicative process is an examination of a sufficient period of a person’s life to make an affirmative determination that the person is an acceptable security risk. Eligibility for access to classified information is predicated upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole-person concept. Available, reliable information about the person, past and present, favorable and unfavorable should be considered in reaching a determination.” The Administrative Judge can draw only those inferences or conclusions that have reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. Finally, as emphasized by President Eisenhower in 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.

CONCLUSION

In the defense industry, the security of classified industrial secrets is entrusted to civilian workers who must be counted upon to safeguard such sensitive information twenty-four hours per day, seven days per week. The Government is therefore appropriately concerned when available information indicates that an Applicant for clearance may be involved in illegal drug abuse that demonstrates poor judgment or unreliability.

It is the Government’s responsibility to present substantial evidence to support the finding of a nexus, or rational connection, between the Applicant’s conduct and the continued holding of a security clearance. If such a case has been established, the burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation or mitigation, which is sufficient to overcome or outweigh the Government’s case. The Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent with the national interest to grant him a security clearance.

In this case the Government has met its initial burden of proving that the Applicant has engaged in drug involvement (Guideline H). The totality of this evidence indicates poor judgment, unreliability and untrustworthiness on the part of the Applicant. Because of the scope and nature of the Applicant's conduct, I conclude there is a nexus or connection with his security clearance eligibility. Considering all of the evidence, the Applicant has not introduced persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome the Government's case under Guideline H of the SOR.

The evidence shows that the Applicant is an unlawful user of marijuana. He used marijuana at least two to three times a month from August 1998 to at least April 2010, spanning over a twelve years period. He also illegally purchased marijuana and intends to continue to use it in the future. Under Guideline H, Drug Involvement, Disqualifying Conditions 25.(a) any drug abuse, 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 apply. None of the mitigating conditions are applicable. Accordingly, I find against the Applicant under Guideline H, Drug Involvement. I also find that the Bond Amendment and the provisions set forth in 50 U.S.C. Section 435c(b), which states that the drug use in question is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct are applicable here. The Applicant is an unlawful user of marijuana, and is disqualified as a matter of law from security clearance eligibility pursuant to the Bond Amendment for his illegal use of marijuana.

I have also considered the “whole-person concept” in evaluating the Applicant’s eligibility for access to classified information. Under the particular facts of this case, the totality of the conduct set forth under all of the guidelines viewed as a whole, support a whole-person assessment of poor judgment, untrustworthiness, unreliability, a lack of candor, an unwillingness to comply with rules and regulations, and/or other characteristics indicating that the person may not properly safeguard classified information.

This Applicant has demonstrated that he is not trustworthy, and he clearly does not meet the eligibility requirements for access to classified information. Accordingly, I find against the Applicant under Guideline H (Drug Involvement.)

On balance, it is concluded that the Applicant has failed to overcome the Government's case opposing his request for a security clearance. Accordingly, the evidence supports a finding against the Applicant as to the factual and conclusionary allegations expressed in Paragraph 1 of the SOR.

FORMAL FINDINGS

Formal findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive are:

Paragraph 1: Against the Applicant. Subpara. 1.a.: Against the Applicant. Subpara. 1.b.: Against the Applicant. Subpara. 1.c.: Against the Applicant.

DECISION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for the Applicant.

Darlene Lokey Anderson Administrative Judge