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ISCR 10-07990.h1: Guideline E security clearance hearing, granted (2011) · CASE

ISCR Case 10-07990.h1granted

Case headnote

ISCR Case No. 10-07990.h1

grantedOct 31, 2011· Hon. Mary E. Henry· hearing

Summary

A 45-year-old truck driver for a Department of Defense contractor was granted a security clearance despite concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The Statement of Reasons alleged a single instance of methamphetamine use after receiving an interim clearance, requiring possession of the illegal drug. Additionally, the applicant had a 1993 arrest for amphetamine possession, found in a car he was driving.

The applicant admitted to using methamphetamine once after finding it among his deceased brother-in-law's belongings. He demonstrated genuine remorse, took responsibility for his actions, and successfully completed substance abuse treatment. The judge noted that the drug use was a one-time incident, and the applicant has maintained a clean record since.

The judge found that the circumstances surrounding the drug use were unlikely to recur and that the applicant had taken appropriate steps to mitigate the concerns. Consequently, the security clearance was GRANTED.

Why the applicant prevailed

The applicant demonstrated genuine remorse and took responsibility for his actions.
He sought treatment for substance abuse and completed it successfully, with a favorable prognosis.
The applicant's drug use was a one-time incident, and he has maintained a clean record since.

Conditions referenced

Disqualifying

H.25.araisedAny Drug Abuse
H.25.braisedTesting Positive for Illegal Drug Use
H.25.craisedIllegal Drug Possession
H.25.graisedAny Illegal Drug Use After Being Granted a Security Clearance

Mitigating

H.26.aappliedThe Behavior Happened so Long Ago, Was so Infrequent, or Happened Under Such Circumstances That It Is Unlikely to Recur
H.26.bappliedA Demonstrated Intent Not to Abuse Any Drugs in the Future
H.26.dappliedSatisfactory Completion of a Prescribed Drug Treatment Program
E.15.arejectedRefusal, or Failure Without Reasonable Cause, to Undergo or Cooperate with Security ProcessingThe applicant cooperated fully with the security clearance process.

Key rule quoted

“The protection of the national security is the paramount consideration.”

Procedural posture

SOR issuedMar 24, 2011
Answer filedMar 31, 2011
Hearing heldJul 26, 2011
Decision dateOct 31, 2011

Cite for

Mitigating Conditions for Drug Involvement Under Guideline H
Demonstrated Intent Not to Use Drugs in the Future
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: 45: “Applicant, who is 45 years old, works as a truck driver for a Department of Defense contractor.”
Held a clearance before: Yes: “Applicant acknowledged that he had an interim security clearance when he used the speed.”

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found in favor of the applicant regarding the personal conduct concerns under Guideline E. The applicant's actions were evaluated, and it was determined that he had taken steps to mitigate any concerns regarding his past drug use.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation

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 had a past incident of drug involvement but ruled favorably on all allegations under Guideline H. The applicant demonstrated remorse and took steps to avoid future drug use, leading to a decision to grant security clearance.

¶	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. 10-07990 ) Applicant for Security Clearance )

For Government: Fahryn E. Hoffman, Esquire, Department Counsel For Applicant: John N. Griffith, Esquire October 31, 2011 ______________

STATEMENT OF CASE

______________

HENRY, Mary E., Administrative Judge:

Based upon a review of the pleadings, exhibits, and testimony, I grant Applicant’s eligibility for access to classified information.

Statement of the Case

Applicant signed an Electronic Questionnaire for Investigations Processing (e- QIP) on February 10, 2009. The Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) on March 24, 2011, detailing security concerns under Guideline H, drug involvement, and Guideline E, personal conduct, that provided the basis for its preliminary decision to deny him a security clearance. 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 For Determining Eligibility for Access to Classified Information (AG) implemented on September 1, 2006.

Applicant received the SOR on March 30, 2011, and he answered it on March 31, 2011. Applicant requested a hearing before an administrative judge and retained counsel. DOHA received the request, and Department Counsel was prepared to proceed on June 2, 2011. I received the case assignment on June 20, 2011. DOHA issued a Notice of Hearing on July 6, 2011, and I convened the hearing as scheduled on July 26, 2011. The Government offered exhibits marked as GE 1 through GE 5, which were received and admitted into evidence without objection. Applicant and three witnesses testified. He submitted exhibits marked as AE A through AE N, which were received and admitted into evidence without objection. The record closed on July 26, 2011. DOHA received the hearing transcript (Tr.) on August 3, 2011.

PROCEDURAL RULINGS

Notice

Applicant may have received the hearing notice less than 15 days before the hearing. (Tr. 10) I advised Applicant of his right under ¶ E3.1.8 of the Directive to receive the notice 15 days before the hearing. After consulting with counsel, Applicant affirmatively waived his right to the 15-day notice. (Id.)

FINDINGS OF FACT

In his Answer to the SOR, Applicant admitted, with explanation, the factual allegations in the SOR. His admissions are incorporated herein as findings of fact. He also provided additional information to support his request for eligibility for a security clearance. After a complete and thorough review of the evidence of record, I make the following additional findings of fact.

Applicant, who is 45 years old, works as a truck driver for a Department of Defense contractor. He began his current employment in February 2009. He previously owned and operated his own trucking business for five years. From 1995 until 2003, he was a stay-at-home father. He served in the United States Marine Corps on active duty from October 1983 until October 1987, when he was honorably discharged. He served in the Marine Corps inactive reserves for an additional two years, receiving an honorable discharge in August 1989.1

Applicant married his first wife in 1985. They separated in 2002 and divorced in January 2008. He has a daughter, age 25, and a son, age 22, from his first marriage. He married his second wife in October 2008. They have a daughter, age 5. He has two step-daughters, ages 18 and 11. Applicant is a high school graduate.2

In December 1993, while married to his first wife, Applicant borrowed his neighbor’s car to drive his wife to work. He returned the car an hour later. When he stepped from the car, the police surrounded him as he approached his neighbor’s house. The police then arrested him, searched his neighbor’s car, and found amphetamines in the car. Because he was driving the car and drugs were in the car, the police assumed the drugs belonged to him. During his court proceedings a year later, the prosecutor determined that the drugs did not belong to Applicant and that he was not involved in his neighbor’s drug activities. The court dismissed all the charges against Applicant. Applicant had known this neighbor casually for a short time, did not socialize with the neighbor, and did not have a relationship with the neighbor. After this incident, Applicant moved.3

On March 10, 2010, Applicant’s wife asked him to clean out and dispose of her deceased brother’s belongings still at their house. He placed the belongings on the roadside, but his wife retrieved one box and asked him to go through the box more carefully, then destroy the items. He decided he would burn appropriate items in his fire pit. While sorting through his deceased brother-in-law’s belongings, he discovered a camera case. He opened the camera case and found a bag with a brown powder substance. Because he knew his deceased brother-in-law had been involved with drugs, particularly methamphetamines (speed), he believed this substance was speed.4 Immediately, he thought about losing five pounds for his upcoming Jiu Jitsu tournament. On impulse and without thinking about the consequences, he placed a small amount of the speed on his finger and into his mouth. Almost immediately, he realized he had made a “big mistake” with his action. He threw the speed into the fire pit with the other items he was destroying. He walked into his house, took a shower, and laid in bed, as was his normal activity at the end of a day.5

Applicant did not tell his wife immediately about his actions. He laid in bed trying to decide the best approach to telling his wife about his use of speed, as he knew she would be angry. He worried about what he did, about letting his wife down, about letting the quality assurance safety consultant down, about testing positive at work, and about the other people he disappointed. He stated this was not an enjoyable time for him and that he wanted to go back in time.6

On March 11, 2010, Applicant reported to work and signed in for the work day at 6:00 a.m. He received notice at that time that he had been selected for a random drug test. Before he gave his urine sample for the drug test, he told the quality assurance safety consultant, a friend, that he might test positive for speed. Applicant then told the quality assurance safety consultant about the circumstances surrounding his use of speed the previous evening. Concerned about a conflict, the quality assurance safety consultant referred Applicant to a Mr. B., another individual at the company. Applicant told Mr. B about his drug use the previous evening, then gave his urine sample. On his way to his work shop, Applicant encountered his supervisor and told his supervisor that he might fail the drug test, explaining his conduct the prior evening. His supervisor advised him that he would not be dismissed from work.7

That evening, Applicant told his wife about his use of speed as soon as he walked in the door from work. He explained to her that he found speed in her brother’s belongings in the back yard and that he used a small amount of the speed because he wanted to lose weight for his upcoming tournament. His wife was extremely angry with him.8

Approximately one week later, Applicant received word that he was being suspended from work for testing positive for substance abuse. His employer gave him the choice of seeking treatment from a substance abuse professional (SAP) at his own expense or resigning his position. Applicant chose treatment and signed a SAP consent form on March 18, 2010. Applicant visited a medical doctor about a week later. The medical doctor performed a drug test, which was negative. The medical doctor also referred Applicant to a licensed professional counselor. Applicant met with the professional counselor on March 30, 2010 and April 6, 2010. At the conclusion of the second session, the professional counselor concluded that Applicant did not meet the criteria for a substance dependence problem and discharged him from care. His medical doctor then provided him with a return to work document. Applicant took the SAP report and medical documentation to his Human Resources officer and security office. He return to work two weeks after he was suspended. Applicant’s employer now requires him to take all random drug tests. Since May 2010, he has been tested four times, and the test results have been negative.

Applicant’s wife testified to the facts surrounding his use of speed as told to her. She verified that she asked him to destroy certain belongings of her deceased brother and that her deceased brother used speed. She indicated that she was extremely angry with Applicant for his conduct and that it took her some time to calm down before she talked with him about his conduct. She also stated that Applicant was upset when he told her, felt bad about what he had done, and knew he had made a mistake. Applicant told her he would never use drugs again, and she believed him. Except for this incident, she has not known Applicant to use drugs or to be involved with individuals who use drugs. If he should use drugs in the future, she will divorce him, as drugs are not acceptable. She and Applicant met in 2002 and began living together in 2002. She describes him as a good person who stepped up to help raise her two daughters. Applicant is a responsible person and involved father.10

Applicant’s neighbor testified. She and her husband have known Applicant for three years. She and Applicant’s wife are best friends, and their children are best friends. The families spend a lot of time at each other’s homes and together. She knows that Applicant tested positive in a drug test for speed, and she has been told the circumstances under which he used the drugs. Her understanding of these circumstances comports with the facts previously discussed. She was “surprised” by the test results as she has never known him to use drugs. He has never used drugs in her presence, and she has no independent knowledge, either personally or from hearsay, that Applicant uses or used drugs. Applicant never discussed using drugs. She discussed the drug incident with Applicant, his wife, and her husband a few days after March 10, 2010. Applicant demonstrated remorse about his conduct, and she does not believe he will use any drugs again as drugs are not something he does and not in his character. She trusts Applicant around her children and allows him to drive her children.11

Applicant’s friend, who is the quality assurance safety consultant at Applicant’s place of employment and a retired service member of the Navy, testified on Applicant’s behalf. He has known Applicant for four to five years. He socializes with Applicant on average once a week, occasionally twice a week. He is not Applicant’s direct supervisor, but they work for the same employer. On March 10, 2010, Applicant advised him that he may test positive for drug use. Applicant explained the circumstances of his drug use to him before he provided his urine sample. The witness confirmed the facts surrounding Applicant’s drug use. Because of their friendship, the witness referred Applicant to Mr. B before his drug test. The witness was surprised when Applicant indicated that he may test positive for drug use, as the witness had not seen any signs of drug use by Applicant nor a desire to use drugs. The witness verified that their employer had a drug- free work place policy, which covered drug use on-and-off the job. He also verified that the employer could have terminated Applicant based on the test results, but chose not to do so because Applicant is a hard-working employee. He confirmed that under company policy, if an employee tests positive for drug use, then the employee must be tested every time the company performs a random drug test. He considers Applicant trustworthy. He would trust Applicant with his life. He believes Applicant learned a lesson from this incident.12

Applicant provided nine letters of recommendation, which included letters from his three witness. All individuals describes Applicant as hardworking and trustworthy. None of the letter writers indicate any knowledge of Applicant’s use of speed in March 2010. Applicant indicated at the hearing that he told each person about the March 2010 incident. Applicant signed a statement of intent not to use illegal drugs in the future and agreed to the revocation of his clearance should he do so.13

Applicant acknowledged that he had an interim security clearance when he used the speed. He denies associating with individuals who use drugs now or in the past. He also admitted that he exercised bad judgment when he decided to use the speed to lose weight. Except for the March 2010 incident, he has never used, purchased, or sold illegal drugs. He has never been convicted on any charges related to drugs. Applicant signed a statement of intent not to use drugs or associate with individuals who use drugs. He understands that if he uses drugs in the future he will lose his job, and he will impact his family.14

Applicant credibly testified at the hearing about his drug use. He provided straight forward and honest answers to the questions presented. He accepted full responsibility for his conduct and accepted the consequences imposed by his employer in March 2010 for failing the drug test. His witnesses testified credibly about his drug use, and their testimony corroborated Applicant’s testimony on many facts in this case.15

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are used 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 overarching 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. 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.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” An applicant has the ultimate burden of persuasion for 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. Decisions include, by necessity, consideration of the possible risk an 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.

Section 7 of Executive Order 10865 provides that decisions shall be “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

AG ¶ 24 expresses the security concern pertaining to 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.

(a) 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;

(b) drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.

AG ¶ 25 describes the disqualifying conditions that could raise security concerns. I have considered all the conditions, and the following are potentially applicable:

(a) any drug abuse (see above definition);

(b) testing positive for illegal drug use;

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

(g) any illegal drug use after being granted a security clearance.

Applicant used methamphetamine, an illegal drug, one time after being granted an interim security clearance. To use this illegal drug, he had to possess it. In addition, the police arrested him 1993 for possession of amphetamines, which the police found in a car he was driving. The Government has established its prima facie case under AG ¶¶ 25(a)-25(c) and 25(g).

AG ¶ 26 provides conditions that could mitigate security concerns. I have considered all the conditions, and the following are potentially applicable: : (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 current reliability, trustworthiness, or good judgment;

(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 were used;

(3) an appropriate period of abstinence; and,

(4) a signed statement of intent with automatic revocation of clearance for any violation; and,

(d) satisfactory completion of a prescribed drug treatment program, including but not limited to rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional. Applicant’s arrest in 1993 for drug possession not only occurred 16 years before March 2010, but was the result of incorrect assumptions by the police. As the prosecutor developed the case for trial, the prosecutor realized that the car, in which the police found drugs, did not belong to Applicant, that Applicant had used the car only for an hour one day, and that Applicant was not involved in his neighbor’s drug activities. Once the prosecutor understood these facts, the prosecutor dismissed the case against Applicant. Following his arrest, Applicant moved to a different neighborhood to avoid any further contact with this neighbor. Based on the evidence of record, Applicant was not involved with drugs in 1993. This drug arrest occurred a long time ago and under unusual circumstances. AG ¶ 26(a) applies to the 1993 arrest.

Applicant signed a statement of intent not to use drugs in the future and not associate with individuals who use drugs or be involved in any way with individuals who use drugs. I find his statement genuine because his witnesses clearly and credibly testified to his remorse immediately following his conduct and to their belief that his use of speed was a one-time event that will not occur in the future. Although his brother-in- law used speed at times before he died seven years ago, Applicant did not have a close relationship with his brother-in-law. Applicant does not and has not associated with individuals who use, sell, or purchase drugs. Drugs are not part of his life-style. He spends a significant amount of time with his neighbors and his friend, all of whom have never seen him use drugs or known him to show any interest in using drugs. His wife will not tolerate drugs in their household and will divorce him if he used any illegal drugs again. His one and only use of methamphetamine occurred nearly 17 months before the hearing. AG 26(b) applies in this case.

Applicant sought treatment for substance abuse as required by his employer. After two meetings with a licensed professional counselor, the counselor decided that Applicant did not have a substance abuse problem and terminated his treatment. He presented this information to his employer along with medical records from his primary care doctor. His employer found the documentation satisfactory to show that Applicant had completed a treatment program and returned him to work. Applicant has not used any illegal drugs in the last 17 months and has a favorable prognosis for drug abstinence. AG ¶ 26(c) applies.

Guideline E, Personal Conduct

AG ¶ 15 expresses the security concern pertaining to personal conduct:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can 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.

The following will normally result in an unfavorable clearance action or administrative termination of further processing for clearance eligibility: (a) refusal, or failure without reasonable cause, to undergo or cooperate with security processing, including but not limited to meeting with a security investigator for subject interview, completing security forms or releases, and cooperation with medical or psychological evaluation; and,

(b) refusal to provide full, frank and truthful answers to lawful questions of investigators, security officials, or other official representatives in connection with a personnel security or trustworthiness determination.

AG ¶ 16 describes conditions that could raise a security concern. I have considered all the conditions, and the following are potentially applicable:

(e) personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person's personal, professional, or community standing, or (2) while in another country, engaging in any activity that is illegal in that country or that is legal in that country but illegal in the United States and may serve as a basis for exploitation or pressure by the foreign security or intelligence service or other group; and

(f) violation of a written or recorded commitment made by the individual to the employer as a condition of employment.

Applicant used speed, an illegal drug, in March 2010 while he held an interim security clearance and in violation of his employer’s policy against illegal drug use. The use of an illegal drug while holding a security clearance is a serious breach of the trust given to Applicant by the Government. His disregard of company policy raises questions about his judgment. The Government established its case under AG ¶¶ 16(e) and 16(f).

AG ¶ 17 provides conditions that could mitigate security concerns. I have considered all the conditions, and the following are potentially applicable:

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; and

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.

Applicant knew immediately after he took the speed that he had made a “big” mistake. He regretted his action and spent the remainder of the evening worrying about telling his wife, letting down his friends, and keeping his job. He spent 24 hours deciding how to tell his wife, because he knew she would be extremely angry with him. Within days, he discussed his conduct with his neighbors and good friends. He made no attempt to hide his actions from his wife or them.

Applicant received notice of a random drug test as soon as he arrived at work. He immediately told the quality assurance safety consultant, his friend, that he may fail his drug test and explained the reasons. Applicant told a second person at work about his actions before he took the drug test, and he told his supervisor after the drug test. He has always taken responsibility for his actions. When his employer provided him with the option of treatment or resignation, he decided he would enter into a treatment program at his expense. His treatment lasted two sessions because the professional counselor determined that he did not have a drug problem and released him to return to work. His employer accepted the counselor’s conclusion and allowed Applicant to return to his job within a month of his positive test. Applicant does not associate with drug users. The speed he used belong to his brother-in-law, who had been dead nearly six years. Applicant use of speed occur because of a unique opportunity, not because he associated with known drug users or sought out the drug for his own personal use. His decision to ingest the speed was impulse, not need. He thought only of losing weight, not the impact on his family, friends, or his job. Given his remorse for his actions, and the actions he took in March 2010 and his abstinence, there is little likelihood that he will ever consider any illegal drug use in the future. He knows the severe impact such a decision will have on his life and has learned a valuable lesson. He has mitigated the Government’s security concerns under Guideline E.

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 an applicant’s conduct and all relevant 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.

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 decision to grant or deny a security clearance requires a careful weighing of all relevant factors, both favorable and unfavorable. In so doing, an administrative judge must review all the evidence of record, not a single item in isolation, to determine if a security concern is established and then whether it is mitigated. A determination of an applicant’s eligibility for a security clearance should not be made as punishment for specific past conduct, but on a reasonable and careful evaluation of all the evidence of record to decide if a nexus exists between established facts and a legitimate security concern.

The evidence in support of granting a security clearance to Applicant under the whole-person concept is more substantial than the evidence in support of denial. In reaching a conclusion, I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant made a serious mistake when he decided to take a small quantity of speed to lose weight for a tournament. His did so while holding an interim security clearance. He, thus, breached the trust the Government had placed in him to handle classified information. Applicant knows he made a “big” mistake, and he has taken full responsibility for his actions. He did not hide his conduct from his wife, friends, or employer. He accepted his work suspension and complied with the terms of his suspension. He faced his wife’s anger and knows any future drug use will end his marriage.

Applicant was a credible witness. His witnesses also presented credible testimony about his none use of drugs and his one-time use of an illegal drug. I am confident from Applicant’s sincere statement of remorse and his testimony that his use of methamphetamine was a one-time occurrence. The negative consequences for any future drug use are severe for him. He knows he will lose his family and his job should he decide on any illegal drug use again. These consequences ensure that he will never use drugs in the future. From the beginning, he acknowledged his action and told his employer, wife and friends. Thus, his one time use of methamphetamine cannot be a source of improper pressure or duress. After a complete review of all the evidence of record, especially the witness testimony, Applicant has mitigated the Government’s security concerns. (See AG ¶ 2(a)(1).)

Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising from his drug involvement under Guideline H.

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: FOR APPLICANT

Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: For Applicant Subparagraph 1.d: For Applicant Paragraph 2, Guideline E: FOR APPLICANT

Subparagraph 2.a: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted.

MARY E. HENRY Administrative Judge

FOOTNOTES

GE 1; Tr. 75. GE 1; Tr. 76-77, 98, 100, 120. GE 2; GE 4; Tr. 78, 104-106. Applicant’s brother-in-law died in a motorcycle accident in 2004. His brother-in-law had been involved with drugs, particularly methamphetamine. He never saw his brother-in-law use this drug, and he was not close with his brother-in-law. Tr. 65-66, 81, 97. Tr. 66-71, 80-85, 101-103. Id. 85-86, 102. Id. 35-38, 51, 53, 86-87. Id. 63, 65-67, 102. GE 3; AE D; Tr. 41-42, 88-91, 93. Tr. 62-72. Id. 22-30. Id. 32-59. AE C; AE F-AE N; Tr. 119. Response to SOR; AE C; Tr. 77-79, 95-96. An Administrative Judge’s credibility determinations are entitled to receive deference on appeal. Directive, Additional Procedural Guidance, Item E3.1.32.1. Although an Administrative Judge’s credibility determinations are not immune from review, the party challenging such credibility determinations has a heavy burden of persuasion on appeal. ISCR Case No. 01-14740 (App. Bd. Jan. 15, 2003). See also Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985); Bose Corp. V. Consumers Union of United States, Inc., 466 U.S. th 485; Lincoln Elec. Co. V. St. Paul Fire & Marine Ins. Co., 210 F.3d 672 (6 Cir. 2000).