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ISCR Case 10-10056.h1 — CASE

ISCR Case 10-10056.h1granted

Case Headnote

ISCR Case No. 10-10056.h1

grantedSep 9, 2011· Hon. Carol G. Ricciardello· hearing

Summary

This case concerns a 23-year-old recent college graduate who was granted a security clearance despite past marijuana use, addressed under Guideline H (Drug Involvement). The Statement of Reasons alleged that the applicant used marijuana while in college, raising disqualifying conditions AG ¶ 25(a) and AG ¶ 25(c).

The applicant admitted to infrequent marijuana use during his college years, with his last use in May 2010. The judge applied mitigating conditions AG ¶ 26(a) and AG ¶ 26(b), noting that the applicant's last drug use was over a year before the hearing.

The decision to grant the clearance was based on several factors: the applicant provided a signed statement of intent to abstain from illegal drugs, agreeing to automatic revocation for any violations. He also demonstrated significant lifestyle changes, including distancing himself from drug-using associates and now associating with non-drug users. The judge concluded that the applicant showed a commitment to future abstinence from illegal drugs.

Why the Applicant Prevailed

The applicant's last drug use was over a year prior to the hearing.
He provided a signed statement of intent to abstain from illegal drugs, agreeing to automatic revocation of his clearance for any violations.
The applicant has distanced himself from drug-using associates and now associates with non-drug users.

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

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

Procedural Posture

SOR issuedMay 24, 2011
Answer filedJun 15, 2011Requested decision on written record.
Hearing heldAug 17, 2011Applicant waived right to 15 days notice.
Decision dateSep 9, 2011

Cite For

Mitigation of Drug Involvement Under Guideline H
Demonstrated Intent to Abstain From Illegal Drug Use
Whole-person Concept in Security Clearance Evaluations

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: granted

The applicant admitted to past marijuana use during college but has since ceased all illegal drug use. The judge found that the applicant mitigated the security concerns under Guideline H, concluding that he is credible in his commitment to abstain from drugs in the future. The decision granted the applicant eligibility for a security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The applicant used marijuana while in college.	For Applicant	Marijuana	Occasional	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	Documented Signed Intent with Revocation Clause

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. 10-10056 ) Applicant for Security Clearance )

For Government: Julie R. Mendez, Esq., Department Counsel For Applicant: Pro se

September 9, 2011 ______________

STATEMENT OF CASE

______________

RICCIARDELLO, Carol G., Administrative Judge:

Applicant mitigated the Government’s security concerns under Guideline H, Drug Involvement. Applicant’s eligibility for a security clearance is granted.

Statement of the Case

On May 24, 2011, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline H. 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) effective within the Department of Defense on September 1, 2006.

Applicant answered the SOR on June 15, 2011, and requested his case be decided on the written record. On July 12, 2011, Department Counsel requested a hearing before an administrative judge. The case was assigned to me on July 25, 2011. DOHA issued a Notice of Hearing on July 27, 2011. Applicant received the Notice of Hearing on August 4, 2011. He waived his right to 15 days from the date of the notice to the hearing. I convened the hearing as scheduled on August 17, 2011. The Government offered Exhibits (GE) 1 and 2, and they were admitted into evidence without objections. Applicant testified on his own behalf. He offered Exhibits (AE) A and B, which were admitted into evidence without objections. DOHA received the hearing transcript (Tr.) on August 25, 2011.

FINDINGS OF FACT

Applicant admitted the allegation in SOR. I incorporated his admission into the findings of fact. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is a 23 years old. He is not married. Applicant attended college from August 2006 to May 2010 and earned a bachelor’s degree. He worked as a summer intern for his current employer in 2009 and was hired upon completion of his college degree. He began full-time employment in July 2010. He will begin a master’s program in the fall of 2011.1

Applicant admitted that in June 2006 he used marijuana with some high school friends before going to college. While attending college he used marijuana approximately three times a year during the next four years. He used it in his dorm room or apartment with high school friends who visited him, and on one occasion he used it with his roommate. They watched movies while using it.2

Applicant completed a security clearance application on March 12, 2010. He admitted he used marijuana one time in May 2010, which was the last time he used marijuana. Applicant stated he was still in college when he used it in May 2010, and he did not think about the fact he had applied for a security clearance. Applicant acknowledged that he exercised poor judgment when he used marijuana and especially after applying for a security clearance.3

Applicant credibly stated that he does not intend to use illegal drugs in the future. He is now focused on his long-term future. He provided a written statement of intent to never use any illegal drugs in the future and agreed to an automatic revocation of a security clearance if he does. He explained he is no longer in a college environment where he was less concerned about the impact of his decisions. Applicant explained when he started working he decided illegal drugs were in his past and he was more conscientious about the ramifications and consequences of his decisions. He believes he has matured and intends on making good decisions in the future.4

Applicant has some minimal contact with the high school friends, with whom he used marijuana, but it is indirect contact and usually through other friends. His current friends do not use illegal drugs. His current roommate works for a government agency and holds a security clearance. He does not use illegal drugs. Applicant only associates with non-drug users now.5

Applicant’s family and friends are aware of his past drug use. He has no history of criminal conduct. He credibly testified that he has made changes in his life and is committed to abiding by the law.

Character references describe Applicant as responsible and trustworthy. He is considered to be of high moral character and reliable. They describe Applicant as a role model, who is honest and exercises good judgment. Applicant’s supervisor considers him a hard worker and valuable contributor to the team. He views him as a man of integrity and is trusted by those who work with him. He is committed, loyal, and devoted to the success of the team.6

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. 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, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel and has the ultimate burden of persuasion to obtain 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 the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of 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. 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 drug involvement AG ¶ 25 and conclude the following have been raised:

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

Applicant admitted he used marijuana when he was in college. I find the above disqualifying condition applies.

I have considered all of the mitigating conditions under drug involvement AG ¶ 26. The following are potentially applicable:

(a) the behavior happened so long ago, was so infrequent or happened under 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 were used; (3) an appropriate period of abstinence; (4) a signed statement of intent with automatic revocation of clearance for any violation.

Applicant used marijuana about three times a year during his four years of college. His last use was in May 2010, more than a year ago. After he left the college setting, he made a conscious decision to discontinue using marijuana or any illegal drugs in the future. He is focused on his career and long-term goals. He has matured and has a new appreciation for the consequences of using illegal drugs. He has indirect contact with his high school friends with whom he used drugs in the past. His current friends are non-drug users. He has signed a statement of intent with automatic revocation of clearance for any violation. I find both AG ¶¶ 26(a) and 26(b) 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 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.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. 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. Applicant graduated from college in May 2010. He occasionally used marijuana while in college. He stopped using it when he transitioned from being a college student to a career- oriented adult. He no longer associates with his high school friends, who used drugs. His current friends are non-drug users. Applicant is a poised, articulate, young man, who readily admitted he made some poor decisions while in college. He has moved beyond that period of his life and is focused on long-term goals. I find under the circumstances a sufficient amount of time has passed since his last drug use. I found Applicant’s testimony and commitment to not using illegal drugs in the future to be credible. Overall, the record evidence leaves me with no questions or doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising under the guideline Drug Involvement.

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

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 a security clearance. Eligibility for access to classified information is granted.

_____________________________ Carol G. Ricciardello Administrative Judge