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ISCR Case 12-03924.h1 — CASE

ISCR Case 12-03924.h1granted

Case Headnote

ISCR Case No. 12-03924.h1

grantedFeb 28, 2014· Hon. Marc E. Curry· hearing

Summary

A 56-year-old senior advisory mechanical engineer, with over 30 years of service and a long-held security clearance, faced a DOHA security clearance review. The review focused on concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). Specifically, the Statement of Reasons alleged that the applicant smoked marijuana at a concert in June 2011 while holding a security clearance, constituting illegal drug use and personal conduct that could create vulnerability.

Disqualifying conditions H.25.a, H.25.g, and E.16.e were raised. However, the judge applied mitigating conditions H.26.a, H.26.b, and E.17.c. It was determined that the marijuana use was an isolated incident, occurring over 30 years after his previous use, and he has not used it since, with no intention of future use.

The applicant's strong job performance and positive community reputation further supported his reliability and trustworthiness. Based on these factors, the judge found that the isolated conduct was sufficiently mitigated, and the security clearance was GRANTED.

Why the Applicant Prevailed

The applicant's marijuana use was an isolated incident occurring over 30 years after his last use.
He has not used marijuana since the concert and has no intention of using it again.
The applicant's strong job performance and community reputation support his reliability and trustworthiness.

Conditions Referenced

Disqualifying

H.25.araisedAny Drug Abuse
H.25.graisedAny Illegal Drug Use After Being Granted a Security Clearance
E.16.eraisedPersonal Conduct That Creates a Vulnerability to Exploitation, Manipulation, or Duress

Mitigating

H.26.aappliedThe Behavior Happened so Long Ago, Was so Infrequent, That It Is Unlikely to Recur
H.26.bappliedAn Appropriate Period of Abstinence
E.17.cappliedThe Offense Is so Minor, or so Much Time Has Passed, or the Behavior Is so Infrequent That It Is Unlikely to Recur

Key Rule Quoted

“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.”

Procedural Posture

SOR issuedOct 8, 2013
Answer filedNov 5, 2013
Hearing heldFeb 6, 2014
Decision dateFeb 14, 2014

Cite For

Mitigation of Drug Involvement Under Guideline H Due to Isolated Incident
Application of Whole-person Concept in Security Clearance Decisions
Consideration of Community Reputation in Assessing Reliability and Trustworthiness

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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found that the applicant's decision to smoke marijuana at a concert in 2011 raised personal conduct concerns. However, the applicant's isolated incident, along with his strong job performance and community reputation, mitigated these concerns, leading to a favorable decision.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant’s decision to smoke marijuana at a concert in 2011 triggers the application of AG ¶ 16(e), “personal conduct . . . that creates a vulnerability to exploitation, manipulation, or duress, such as . . . engaging in activities which, if known, may affect the person’s personal professional, or community standing . . .”	For Applicant	Questionable Judgment General	—	Admitted	—	(c) offense is minor, long ago, infrequent, or unique circumstances	Claimed Other

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

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 isolated incident of smoking marijuana at a concert in June 2011, while holding a security clearance, was mitigated by the applicant's long history of abstinence from drug use and his strong reputation in the community. The judge ruled in favor of the applicant on all allegations under Guideline H, concluding that the behavior was unlikely to recur and did not cast doubt on the applicant's reliability or trustworthiness.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant smoked marijuana at a concert in June 2011. At the time, he held a security clearance.	For Applicant	MarijuanaWHILE CLEARED	Not Applicable	Admitted	(g) expressed intent to continue, or failure to commit to discontinue	(a) behavior happened long ago / infrequent / unlikely to recur	Documented Abstinence Period Documented
1.b	any illegal drug use after being granted a security clearance.	For Applicant	Unspecified Drug InvolvementWHILE CLEARED	Unspecified	Admitted	(g) expressed intent to continue, or failure to commit to discontinue	(a) behavior happened long ago / infrequent / unlikely to recur	Documented Abstinence Period Documented

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. 12-03924 ) ) Applicant for Security Clearance )

For Government: Fahryn Hoffman, Esq., Department Counsel For Applicant: Pro se

02/28/2014 ______________

STATEMENT OF CASE

______________

CURRY, Marc E., Administrative Judge:

Applicant’s decision to smoke marijuana while at a concert constituted a serious exercise of bad judgment. Given its isolated nature, Applicant’s history of outstanding job performance, and his sterling reputation in the community, the possibility of recurrence is minimal. Applicant mitigated the drug involvement and personal conduct security concerns. Clearance is granted.

Statement of the Case

On October 8, 2013, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines H, drug involvement, and E, personal conduct. 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). The government received Applicant’s answer on November 5, 2013. Applicant admitted the allegations and requested a hearing. I was assigned the case on December 16, 2013. On January 14, 2014, a notice of hearing was issued scheduling the case for February 6, 2014. At the hearing, I received two Government exhibits marked as Government Exhibits (GE) 1 and 2, in addition to seven Applicant exhibits marked as Applicant Exhibits (AE) A through G. Also, I considered the testimony of Applicant and two character witnesses. The transcript was received on February 14, 2014.

FINDINGS OF FACT

Applicant is a 56-year-old married man with two adult children. In the late 1970s, he earned a bachelor of science degree in mechanical engineering. In 1980, he was hired by a defense contractor. He has remained with this employer since then, and is currently a senior advisory mechanical engineer. (AE D) He has held a security clearance for more than 30 years. (Tr. 14)

Applicant is highly respected on the job. According to a high-level supervisor, he has a “tremendously strong work ethic.” (AE C) A senior executive characterizes Applicant as “one of the most productive, consistent, and reliable members of the engineering team.” (AE D)

Applicant is very active in his community. According to a neighbor, he frequently volunteered for parents’ groups when his children were in secondary school. Also, he often contributes his engineering expertise to community projects, such as installing an irrigation system at the neighborhood sports park. (Tr. 45)

In June 2011, Applicant went to an outdoor concert with his adult son. People were smoking marijuana freely, sharing joints, and passing them around. As a joint circulated around Applicant’s vicinity, he took it and smoked a few puffs before passing it to another individual. (Answer at 1) Before this episode, Applicant had not smoked marijuana since he was a teenager. Applicant testified that being at the concert with people passing around marijuana cigarettes “took [him] back to the 1970s, [a]nd [he] kind of lost track of maybe who [he] was and [how] old [he] was . . .” (Tr. 33)

Applicant’s employer knows about Applicant’s June 2011 use of marijuana. (Tr. 34, 41) His opinion of Applicant’s character and trustworthiness remains unchanged. (Tr. 42) Applicant has not smoked marijuana since the episode at the concert, and he has no intention of using it again. (Tr. 34)

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 smoked marijuana at a concert in June 2011. At the time, he held a security clearance. AG ¶¶ 25(a), “any drug abuse,” and 25(g), “any illegal drug use after being granted a security clearance,” apply.

Before this episode, Applicant had not used marijuana in more than 30 years. He has not used it since then, and has no intention of using it again. He is highly respected on the job and in his community. I conclude that this behavior is mitigated by AG ¶¶ 26(a), “the behavior happened so long ago, was so infrequent . . . that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment,” and 26(b)(3), “an appropriate period of abstinence,” apply.

Guideline E, Personal Conduct

The security concern under this guideline is as follows:

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. (AG ¶ 15)

Applicant’s decision to smoke marijuana at a concert in 2011 triggers the application of AG ¶ 16(e), “personal conduct . . . that creates a vulnerability to exploitation, manipulation, or duress, such as . . . engaging in activities which, if known, may affect the person’s personal professional, or community standing . . .”

Applicant’s employer knows about his conduct, and still holds him in high regard. The offense was both minor and isolated. AG ¶ 17(c), “the offense is so minor, or so much time has passed, or the behavior is so infrequent . . . that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment,” applies.

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’s exercised bad judgment when he chose to smoke marijuana at a concert. The nature and seriousness of this behavior was compounded by the fact he held a security clearance at the time. Immaturity is not a relevant factor because Applicant was in his mid-fifties when the episode occurred. Conversely, this was an isolated episode, and Applicant has not used marijuana since then. There is no vulnerability to coercion, as his employer is aware of the episode. On balance, considering these facts, together with his impeccable reputation on the job and in his community, I conclude that Applicant’s decision to smoke marijuana, though foolish, was an anomaly, and is unlikely to recur. Applicant has mitigated the security concerns.

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

Subparagraphs 1.a-1.b: 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.

MARC E. CURRY Administrative Judge