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ISCR Case 13-01142.h1 — CASE

ISCR Case 13-01142.h1granted

Case Headnote

ISCR Case No. 13-01142.h1

grantedMay 20, 2014· Hon. Richard A. Cefola· hearing

Summary

A 28-year-old defense contractor was granted a security clearance despite concerns under Guideline H (Drug Involvement). The issue stemmed from a single instance of marijuana use in August 2013 while at a party in Las Vegas. The applicant, along with his fiancée, accepted an invitation to a party where marijuana was present and he took a couple of puffs when it was passed around. This was the only time he had ever used an illegal substance.

Two weeks after the incident, the applicant verbally self-reported it to his security officer, later submitting a written report. He also informed family members and provided a signed statement of intent, agreeing to automatic revocation of his clearance if he were to use illegal drugs again. His fiancée corroborated his account and admitted to her own participation.

The judge found that the applicant's drug use was a one-time event that occurred under unusual circumstances. His prompt self-reporting and credible evidence of intent to abstain from future illegal drug use were key mitigating factors. Ultimately, the judge concluded that the applicant's actions were unlikely to recur, and his security clearance was granted.

Why the Applicant Prevailed

The applicant self-reported his drug use shortly after the incident.
He provided credible evidence of his intent to abstain from illegal drug use in the future.
The applicant's drug use occurred under unusual circumstances and was a one-time event.

Conditions Referenced

Disqualifying

H.25.araisedAny Drug Abuse
H.25.graisedAny Illegal Drug Use After Being Granted a Security Clearance

Mitigating

H.26.aappliedThe Behavior Happened Under Unusual Circumstances That Are Unlikely to Recur
H.26.bappliedDemonstrated Intent Not to Abuse Drugs in the Future

Key Rule Quoted

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

Procedural Posture

SOR issuedDec 11, 2013
Answer filedJan 30, 2014
Hearing heldApr 22, 2014
Decision dateMay 20, 2014

Cite For

Self-reporting of Drug Use as a Mitigating Factor
One-time Drug Use Under Unusual Circumstances
Demonstrated Intent to Abstain From Illegal Drug Use

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 judge found that the applicant's single instance of marijuana use occurred under unusual circumstances and was unlikely to recur. The applicant demonstrated a sincere intent not to misuse drugs in the future, which mitigated the security concerns. Therefore, the applicant was granted eligibility for a security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	In August of 2013, Applicant and his fiancee were at a casino in Las Vegas, Nevada. He describes what happened in the following terms: We met a couple at the Blackjack Table, and they invited us up [to their room] to a party later that evening. And later that evening, we went up there and just to check it out and to see - - just to mingle and to have fun in Vegas. Then I guess during the party, someone had marijuana. I don’t know exactly who had it or brought it or when it was initially taken out and shown to the party. Then after that, it was passed around, and I regretfully took a couple of puffs. Not too long after that, we hung out a little bit longer and just talked to a couple of people and then we went back to our hotel room and went to sleep that night. That was pretty much it. This is the only time Applicant has ever used an illegal substance. His fiancee’s testimony corroborated that of Applicant, and she also admitted to smoking the marijuana. Two weeks after this incident, Applicant verbally self-reported it to his security officer. Applicant later submitted the self-report in writing. He also told his “brothers and sisters” of his transgression. Furthermore, Applicant has submitted a signed statement of intent with automatic revocation should he “use illegal drugs again.”	For Applicant	MarijuanaWHILE CLEARED	Experimental	Admitted	(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (g) expressed intent to continue, or failure to commit to discontinue	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	Documented Rehabilitation Evidence 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. 13-01142 ) ) Applicant for Security Clearance )

For Government: Jeff A. Nagel, Esquire, Department Counsel For Applicant: Catie E. Young, Esquire

May 20, 2014

______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Applicant submitted his Electronic Questionnaires for Investigations Processing (e-QIP) on December 6, 2010. On December 11, 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 on January 6, 2014. He answered the SOR in writing through counsel on January 30, 2014, and requested a hearing before an Administrative Judge. The Defense Office of Hearings and Appeals (DOHA) received the request soon thereafter, and I received the case assignment on March 19, 2014. I granted Applicant’s request for a delay until the week of “21st-24th” of April 2014, in order for his counsel to be available. DOHA issued a notice of hearing on March 31, 2014, and I convened the hearing as scheduled on April 22, 2014. The Government offered Exhibits (GXs) 1 and 2, which were received without objection. Applicant testified on his own behalf, as did his fiancee, and submitted Exhibits (AppXs) A through Q which were received without objection. DOHA received the transcript of the hearing (TR) on May 2, 2014. I granted Applicant’s request to keep the record open until May 7, 2014, to submit additional matters. On April 30, 2014, he submitted signed copies of AppXs E, G and H, and a supplement to AppX P, which were received without objection. The record closed on May 7, 2014. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is granted.

FINDINGS OF FACT

In his Answer to the SOR, Applicant admitted the factual allegations in Subparagraph 1.a. of the SOR, with explanations. He also provided additional information to support his request for eligibility for a security clearance.

Guideline H - Drug Involvement

Applicant is a 28 year-old employee of a defense contractor. (TR at page 21 line 13 to page 22 line 8, and GX 1 at page 6.) He received a security clearance sometime in 2011. (TR at page 21 line 13 to page 22 line 8.)

1.a. In August of 2013, Applicant and his fiancee were at a casino in Las Vegas, Nevada. He describes what happened in the following terms:

We met a couple at the Blackjack Table, and they invited us up [to their room] to a party later that evening. And later that evening, we went up there and just to check it out and to see - - just to mingle and to have fun in Vegas. Then I guess during the party, someone had marijuana. I don’t know exactly who had it or brought it or when it was initially taken out and shown to the party. Then after that, it was passed around, and I regretfully took a couple of puffs. Not too long after that, we hung out a little bit longer and just talked to a couple of people and then we went back to our hotel room and went to sleep that night. That was pretty much it. (TR at page 24 line 12 to page 25 line 2.)

This is the only time Applicant has ever used an illegal substance. (TR at page 26 line 9 to page 27 line 17.) His fiancee’s testimony corroborated that of Applicant, and she also admitted to smoking the marijuana. (TR at page 50 line 8 to page 57 line 23.)

Two weeks after this incident, Applicant verbally self-reported it to his security officer. (TR at page 29 line 6 to page 30 line 17, and page 40 line 5 to page 42 line 21.) This is corroborated by his security officer. (AppX P as supplemented.) Applicant later submitted the self-report in writing. (AppX H.) He also told his “brothers and sisters” of his transgression. (TR at page 32 line 1 to page 33 line 2.) Furthermore, Applicant has submitted a signed statement of intent with automatic revocation should he “use illegal drugs again.” (AppX P at pages 1–2.)

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 the adjudicative process. The administrative judge’s over-arching adjudicative goal is a fair, impartial and commonsense decision. According to AG Paragraph 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. Paragraph 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 Paragraph E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive Paragraph 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 as to 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 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 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, the “illegal . . . purchase . . .” under Subparagraph 25(c), and “any illegal drug use after being granted a security clearance” under Subparagraph 25(g) may be disqualifying. Here, Applicant used marijuana once, in August of 2013, after having been granted a security clearance.

These are countered, however, by the mitigating conditions found in Subparagraphs 26(a) and 26(b). Applicant’s “behavior . . . happened under such unusual circumstances that it is unlikely to recur . . .” Furthermore, he 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.” Applicant used marijuana at a party in Las Vegas. The only time he has ever used any illegal substance. He self-reported his transgression soon thereafter, and has signed a letter of intent not to abuse any drugs in the future. I find his statement of intent to be credible and sincere.

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. Applicant has the unqualified support of those who know him in the workplace. (AppXs A~G.) The record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For this reason, I conclude Applicant has mitigated the security concerns arising from his 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 eligibility for a security clearance. Eligibility for access to classified information is granted.

Richard A. Cefola Administrative Judge