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ISCR Case 12-03774.h1 — CASE

ISCR Case 12-03774.h1denied

Case Headnote

ISCR Case No. 12-03774.h1

deniedJul 1, 2012· Hon. Marc E. Curry· hearing

Summary

A 37-year-old married engineer was denied a security clearance under Guideline H (Drug Involvement) due to a history of illegal drug use between 2000 and 2010. The applicant began using marijuana in 2000, approximately once a year for five years. His drug use expanded to include hallucinogens, amphetamines, ketamine, and methamphetamines.

The applicant most frequently used MDMA (Ecstasy) between 2000 and 2005, approximately once every three to four weeks at nightclubs. During this period, he also occasionally used LSD or hallucinogenic mushrooms, sometimes combining hallucinogens with methamphetamines. His illegal drug use was sometimes limited to one weekend per year, involving LSD, MDMA, and occasionally inhaled methamphetamines. The applicant stated he does not intend to abuse illegal drugs in the future.

Despite ceasing drug use in 2010 and disassociating from drug-using friends, the judge found the nature and seriousness of his past drug abuse were not sufficiently mitigated. The denial was based on the frequent and reckless nature of his drug use, the minimal probative value of his gradual decrease in use after 2005 given the types of drugs involved, and concerns about his reliability and trustworthiness due to a nonchalant attitude towards his past drug use.

Why the Applicant Was Denied

The applicant's history of illegal drug use was frequent and demonstrated a reckless disregard for safety.
The applicant's gradual decrease in drug use after 2005 had minimal probative value due to the nature of the drugs used.
The applicant's nonchalant attitude towards his past drug use raised concerns about his reliability and trustworthiness.

Conditions Referenced

Disqualifying

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

Mitigating

AG ¶ 26(b)(1)appliedDemonstrated Intent Not to Abuse Drugs in the FutureThe applicant no longer associates with drug-abusing friends and has not used illegal drugs in two years.

Key Rule Quoted

“"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."”
— AG ¶ 24

Procedural Posture

SOR issuedAug 28, 2012
Answer filedSep 12, 2012
Hearing heldJan 7, 2013
Decision dateNov 21, 2012

Cite For

Evaluation of Drug Involvement Under Guideline H
Consideration of the Whole-person Concept in Security Clearance Decisions
Impact of Past Drug Use on Reliability and Trustworthiness Assessments

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 applicant's history of illegal drug use raised significant security concerns under Guideline H. Despite a decrease in usage and a claim of no longer associating with drug-using friends, the judge found that the applicant failed to mitigate these concerns, resulting in a denial of the security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Between 2000 and 2010, Applicant abused multiple illegal drugs.	Against Applicant	Unspecified Drug Involvement	Unspecified	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	The first illegal drug Applicant used was marijuana. He tried it at a night club in 2000 and used it approximately once per year for the next five years.	Against Applicant	Marijuana	Occasional	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.c	Applicant’s illegal drug use expanded to include hallucinogens, amphetamines, and ketamine, an animal tranquilizer.	Against Applicant	Unspecified Drug Involvement	Unspecified	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.d	The drug Applicant used most frequently was the hallucinogen MDMA, also known as Ecstasy. Between 2000 and 2005, he used it at night clubs approximately once every three to four weeks.	Against Applicant	MDMA	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.e	Sometimes during this period, he used LSD or hallucinogenic mushrooms. Also on some occasions, he would combine his use of hallucinogens with methamphetamines.	Against Applicant	LSD	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.f	Applicant’s use of illegal drugs was limited to one weekend per year. Typically, Applicant and his friends would get together on Saturday morning, use LSD, then take the subway downtown to tour museums. Then, they would return to one of the friend’s apartments, change clothes, go to a club, take MDMA, then party all night. During some of these episodes, Applicant would inhale methamphetamines.	Against Applicant	Methamphetamine	Occasional	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.g	Applicant does not intend to abuse illegal drugs in the future.	Against Applicant	Stated Intent to Use Again	Not Applicable	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—

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. 12-03774 ) ) Applicant for Security Clearance )

For Government: Allison O’Connell, Esq., Department Counsel For Applicant: Pro se

01/07/2013 ______________

STATEMENT OF CASE

______________

CURRY, Marc E., Administrative Judge:

Applicant failed to mitigate the drug involvement security concern generated by his illegal drug use. Clearance is denied.

Statement of the Case

On August 28, 2012, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant detailing 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) effective as of September 1, 2006.

Applicant answered the SOR on September 12, 2012, admitting all of the allegations and requesting a hearing. On October 22, 2012, the case was assigned to me. On October 26, 2012, a notice of hearing was issued scheduling the case for November 13, 2012. At the hearing, I received into evidence one Government exhibit (GE 1) and 17 Applicant exhibits (AE A-Q) Also, I considered Applicant’s testimony. The transcript was received on November 21, 2012.

FINDINGS OF FACT

Applicant is a 37-year-old married man with two children ages three and five. He earned a bachelor’s degree in electrical engineering in 1996, graduating magna cum laude from a prestigious university, and finishing within three years. (AE A; Tr. 20) While in college, Applicant was the captain of the school’s swim team. He remains active with his alma mater. In 2007, Applicant’s college honored him as the engineering mentor of the year. (AE O)

Shortly after graduating, Applicant took a job with a start-up company that focused on product development. Among other things, he supported various aspects of algorithm development and magnetometor calibration. (AE I) Applicant’s stint at the start-up company was extraordinarily successful. He was the leading inventor, on the company’s behalf, of ten patented products. (AE B, AE R; Tr. 21) When Applicant left the company in 2011 to start his own company, he cashed in stock options worth approximately $200,000. (AE D)

Applicant has operated his company for approximately one-and-a-half years. He “provide[s] computer engineering consulting services spanning from hardware design to embedded software development with emphasis on digital processing.” (AE P) Applicant seeks a security clearance to provide services for one of his federal government clients.

Between 2000 and 2010, Applicant abused multiple illegal drugs. The first illegal drug Applicant used was marijuana. He tried it at a night club in 2000 and used it approximately once per year for the next five years. (Tr. 39) Applicant’s illegal drug use expanded to include hallucinogens, amphetamines, and ketamine, an animal tranquillizer. (Tr. 56-68)

The drug Applicant used most frequently was the hallucinogen MDMA, also known as Ecstasy. Between 2000 and 2005, he used it at night clubs approximately once every three to four weeks. (Tr. 41) Sometimes during this period, he used LSD or hallucinogenic mushrooms. Also on some occasions, he would combine his use of hallucinogens with methamphetamines.

In 2006, Applicant’s illegal drug use gradually began decreasing. He quit using marijuana and ketamine, and he only used hallucinogenics two to three times that year. (Tr. 43) Between 2007 and 2010, Applicant’s use of illegal drugs was limited to one weekend per year. Typically, Applicant and his friends would get together on Saturday morning, use LSD, then take the subway downtown to tour museums. Then, they would return to one of the friend’s apartments, change clothes, go to a club, take MDMA, then party all night. During some of these episodes, Applicant would inhale methamphetamines. (Tr. 57) Applicant would then spend all day on Sunday recovering from the drug binge. (Tr. 52, 66) According to Applicant, the hallucinogens enabled him, while touring the museums, to engage in “introspection,” and to “think about the bigger picture of life and what [he] could do to better both [him]self and the world around [him].” (Tr. 64)

Applicant stopped this annual ritual after 2010. (Tr. 49) He decided shortly after his first child was born that he wanted to spend more time at home, and that he did not want his child to be exposed to such behavior. (Tr. 50, 56) Also, he no longer associates with the friends with whom he participated in the annual ritual.

Applicant does not intend to abuse illegal drugs in the future. He testified, as follows:

Now, there’s a time and place for that and that time and place for me has passed. But at the time, I think it has made me better able to relate to people. . . . I think that use of drugs has helped me become more of a human and helped me better able to manage and relate to people. (Tr. 61)

POLICIES

The adjudicative guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, they are applied together with the factors listed in the adjudicative process. 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.”

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 to obtain a security clearance.

ANALYSIS

Guideline H: Drug Involvement

Under this guideline, “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” (AG ¶ 24). Applicant’s history of illegal drug use triggers the application of AG ¶¶ 25(a), “any drug abuse,” and 25(c), “illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia.”

Applicant’s drug abuse was frequent. Also, the circumstances surrounding much of his use demonstrated a reckless disregard for his safety. He cannot attribute his illegal drug use to immaturity because he started using drugs four years after he finished college.

Applicant gradually began to decrease his drug usage after 2005. However, this fact has minimal probative value given the type of drugs that he continued to use and the circumstances surrounding his continued usage.

Applicant no longer associates with his drug-abusing friends, and has not used illegal drugs in two years. AG ¶ 26(b)(1), “a demonstrated intent not to abuse any drugs in the future, such as . . . disassociation from drug-using associates and contacts,” applies. Any positive inference from the fact that Applicant no longer associates with his drug-abusing friends is greatly outweighed by the nature and circumstances of the illegal drug use. Applicant has not mitigated the drug involvement security concern.

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 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.

Applicant is an extraordinarily intelligent, highly successful man. He is well- respected in his profession, and mentors young engineering majors at his alma mater. Given the nature, extent, and seriousness of his drug abuse and its recency, I cannot conclude that he has mitigated the conduct. In reaching this conclusion, I was particularly troubled by his nonchalant, nearly nostalgic explanation for choosing to abuse hallucinogens. Upon considering this case in the context of the whole-person concept, I conclude Applicant has failed to mitigate the security concern.

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 APPLICANT

Subparagraphs 1.a-1.g: Against 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.

MARC E. CURRY Administrative Judge