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ISCR Case 12-06635.h1 — CASE

ISCR Case 12-06635.h1denied

Case Headnote

ISCR Case No. 12-06635.h1

deniedJan 21, 2014· Hon. Richard A. Cefola· hearing

Summary

This case concerns a 25-year-old applicant whose security clearance request was denied under Guideline H (Drug Involvement). The Statement of Reasons alleged that the applicant used marijuana three times while already holding a security clearance.

The applicant admitted to using marijuana 2-3 times after being granted a security clearance. This admission raised significant security concerns, specifically citing disqualifying conditions H.25(a) and H.25(g).

Despite consideration of potential mitigating conditions H.26(a) and H.26(b), the judge found that no mitigating conditions were applicable to counter the established disqualifying conditions. Consequently, the applicant's request for a security clearance was denied.

Why the Applicant Was Denied

Applicant admitted to using marijuana 2-3 times after being granted a security clearance.
No mitigating conditions were applicable to counter the disqualifying conditions.

Conditions Referenced

Disqualifying

H.25(a)raisedAny Drug Abuse
H.25(g)raisedAny Illegal Drug Use After Being Granted a Security Clearance

Mitigating

H.26(a)rejectedBehavior Happened so Long Ago or Under Unusual CircumstancesThe applicant's drug use was not unusual and occurred after being granted a clearance.
H.26(b)rejectedDemonstrated Intent Not to Abuse Drugs in the FutureNo signed statement of intent was provided by the applicant.

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural Posture

SOR issuedJul 24, 2013
Answer filedAug 19, 2013
Hearing held—
Decision dateJan 21, 2014

Cite For

Disqualifying Conditions Related to Drug Involvement Under Guideline H
Lack of Mitigating Conditions for Drug Use After Clearance
Importance 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.

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on allegations of drug involvement under Guideline H. The applicant admitted to using marijuana three times while holding a security clearance, which raised concerns about her reliability and trustworthiness. The judge concluded that the applicant did not mitigate the security concerns related to her drug use, resulting in a denial of her security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The applicant used marijuana three times while holding a security clearance.	Against Applicant	MarijuanaWHILE CLEARED	Occasional	Admitted	—	—	—
1.b	The applicant used marijuana three times while holding a security clearance.	Against Applicant	MarijuanaWHILE CLEARED	Occasional	Admitted	—	—	—

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. 12-06635 ) ) Applicant for Security Clearance )

For Government: Eric H. Borgstrom, Esquire, Department Counsel For Applicant: Pro se

January 21, 2014

______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Applicant submitted her Electronic Questionnaires for Investigations Processing (e-QIP) on February 1, 2012. On July 24, 2013, the Department of Defense (DOD) 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), effective within the Department of Defense after September 1, 2006.

Applicant acknowledged receipt of the SOR soon thereafter. She answered the SOR in writing on August 19, 2013, and requested an Administrative Determination by an administrative judge. Department Counsel issued a File of Relevant Material (FORM) on September 28, 2013. Applicant failed to respond to the FORM. Based upon a review of the pleadings and exhibits, eligibility for access to classified information is denied.

FINDINGS OF FACT

In her Answer to the SOR, dated August 19, 2013, Applicant admitted the factual allegations in Paragraphs of the SOR, with explanations.

1.a. and 1.b. The 25-year-old Applicant was granted a security clearance after the submission of her first e-QIP in June of 2011. (Item 4.) However, in her February 2012 e-Qip, Applicant admited to using marijuana three times while holding a security clearance. She averred the following: “On my 22 Birthday, before me and my friends went out to the club and (sic) I smoked some marijuana. I tried it a couple times after.” (Item 3 at page 31.) By her math, however, this usage was only “A couple of times.” (Id.) Applicant reiterates this “2(twice)” usage in her July 2013 Interrogatories. (Item 5 at page 2.)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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 AG ¶ 2(a) describing the adjudicative process. The administrative judge’s over-arching 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, the 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. . . .” The applicant has the ultimate burden of persuasion as to obtaining a favorable clearance 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 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 adverse 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

The security concern relating to the guideline for Drug Involvement is set out in Paragraph 24:

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.

The guideline also notes several conditions that could raise security concerns. Under Subparagraph 25(a), “any drug abuse” may be disqualifying. In addition, “any illegal drug use after being granted a security clearance” under Subparagraph 25(g) may be disqualifying. Here, Applicant used marijuana 2–3 times in 2011, after having been granted a security clearance.

I find no countervailing mitigating conditions that are applicable here. Under Subparagraph 26(a), it may be mitigating where Applicant’s “behavior happened so long ago . . . or happened under such unusual circumstances that it is unlikely to recur . . .” There was nothing unusual about Applicant’s 2011 usage, after having been granted a security clearance. Under Subparagraph 26(b), it may be mitigating where Applicant has shown “a demonstrated intent not to abuse any drugs in the future, such as: (4) a signed statement of intent with automatic revocation of clearance for any violation.” No such signed statement of intent has been offered by Applicant.

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. Under AG Subparagraph 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 Administrative Judge should also consider the nine adjudicative process factors listed at AG Subparagraph 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.

I considered all of the evidence, including the potentially disqualifying and mitigating conditions surrounding this case. The Applicant has submitted nothing further in support of her request for a security clearance. The record evidence thus leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For this reason, I conclude Applicant has not mitigated the security concerns arising from her 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: AGAINST APPLICANT

Subparagraph 1.a.: Against Applicant

Subparagraph 1.b.: 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.

Richard A. Cefola Administrative Judge