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ISCR Case 14-00836.h1 — CASE

ISCR Case 14-00836.h1granted

Case Headnote

ISCR Case No. 14-00836.h1

grantedJan 30, 2015· Hon. Jennifer I. Goldstein· hearing

Summary

This case concerns a 27-year-old government contractor who was granted a security clearance under Guideline H (Drug Involvement), despite allegations of past drug use. The Statement of Reasons (SOR) detailed marijuana use between November 2004 and August 2013, MDMA use in August 2013, and a single instance of cocaine use in October 2012. These allegations raised Disqualifying Conditions AG ¶ 25(a) and AG ¶ 25(c).

However, the applicant demonstrated significant mitigating factors. He was candid about his past drug involvement and showed a strong commitment to future abstinence, having ceased all drug use for over 1.5 years. He also actively disassociated from drug-using peers and altered his environment to avoid drug exposure.

The decision to grant the clearance was based on the applicant's demonstrated maturity, his understanding of the gravity of his past actions, and the successful application of Mitigating Condition AG ¶ 26(b).

Why the Applicant Prevailed

The applicant was candid about his past drug use and demonstrated a commitment to abstain from illegal drugs in the future.
He disassociated from drug-using associates and changed his environment to avoid drug use.
The applicant's maturity and understanding of the seriousness of his past actions contributed to the decision.

Conditions Referenced

Disqualifying

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

Mitigating

AG ¶ 26(b)appliedDemonstrated Intent Not to Abuse Drugs

Key Rule Quoted

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

Procedural Posture

SOR issuedJul 16, 2014
Answer filedOct 9, 2014
Hearing heldJan 9, 2015
Decision dateJan 30, 2015

Cite For

Demonstrated Intent Not to Abuse Drugs Under Guideline H
Importance of Candidness in Mitigating Drug Involvement Concerns
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 judge found that the applicant mitigated the drug involvement concerns stemming from his infrequent recreational drug use. The applicant demonstrated a commitment to abstinence from illegal drugs and was granted eligibility for a security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The SOR alleged that between November 2004 and August 2013, Applicant used marijuana.	For Applicant	Marijuana	Occasional	Admitted	—	(b) acknowledges involvement; evidence of action; established abstinence	—
1.b	The SOR alleged that Applicant also used MDMA in August 2013.	For Applicant	MDMA	Experimental	Admitted	—	(b) acknowledges involvement; evidence of action; established abstinence	—
1.c	The SOR alleged that Applicant used cocaine once, in October 2012.	For Applicant	Cocaine	Experimental	Admitted	—	(b) acknowledges involvement; evidence of action; established abstinence	—

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. 14-00836 ) ) ) Applicant for Security Clearance

For Government: Jeff Nagel, Esq., Department Counsel For Applicant: Pro se

January 30, 2015

______________

STATEMENT OF CASE

______________

GOLDSTEIN, Jennifer I., Administrative Judge:

Applicant mitigated the Drug Involvement security concerns that arose out of his infrequent recreational drug use from 2004 to August 2013. Applicant has been candid with the Department of Defense about his illegal drug involvement, and does not intend to use any illegal drugs, including marijuana, in the future. Eligibility for access to classified information is granted.

Statement of the Case

On September 2, 2013, Applicant submitted an Electronic Questionnaires for Investigative Processing (e-QIP). On July 16, 2014, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline H, Drug Involvement. The action was taken under Executive Order (EO) 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 after September 1, 2006. Applicant responded to the SOR (Answer) on October 9, 2014 and requested a hearing before an administrative judge. The case was assigned to me on November 24, 2014. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on December 11, 2014, and the hearing was convened as scheduled on January 9, 2015. The Government offered Hearing Exhibit (HE) I and Exhibits (GE) 1 and 2, which were admitted without objection. Applicant testified on his own behalf. The record was left open for the receipt of additional documentation. On January 14, 2015, Applicant presented four pages of documentation, marked Applicant Exhibit (AE) A through AE D. Department Counsel had no objections to AE A though D and they were admitted. The record then closed. DOHA received the hearing transcript (Tr.) on January 20, 2015.

FINDINGS OF FACT

Applicant is a 27-year-old employee of a government contractor. He is engaged to be married, and has no children. He graduated from an undergraduate school in 2011. He was placed on the payroll by his current employer in 2011, but was still attending a graduate level program sponsored by his employer. He did not start working on contracts for his employer until September 2013. He seeks his first DoD security clearance in connection with his first work assignment. (GE 1; Tr. 17-18.)

The SOR alleged that between November 2004 and August 2013, Applicant used marijuana. He also used MDMA in August 2013 and cocaine once, in October 2012. Applicant was candid about his drug use on his e-QIP, in his Answer, and during his testimony. (GE 1; Answer.)

Applicant’s marijuana use was recreational in nature and occurred approximately six-to-twelve times per year, between November 2004 and August 2013. He started using marijuana in high school and continued to use it through college. He never purchased marijuana. He used the marijuana with friends, to relax in social settings. Applicant stopped using marijuana when he learned that he would be applying for a security clearance. He recognized that marijuana use was illegal and that he could not engage in illegal activities while holding a security clearance. He testified that he left the room any time people around him started smoking marijuana. In his post-hearing statement, he further indicated he has disassociated himself from all persons who are engaged in illegal drug use “to remove the periodic influence of unlawful behavior from [his] life.” (GE 2; AE A; Tr. 16-25, 27-34.)

Applicant also used cocaine once, and MDMA (Molly) twice, at bachelor parties between 2012 and August 2013. Applicant did not purchase these drugs. He did not like cocaine and testified he would never use either drug again. He attributes his use of cocaine and MDMA to peer pressure because “everyone was using it” at the bachelor parties. He has attended other bachelor parties since then, and not used illegal substances. In his personal subject interview, he indicated he does not intend to use either MDMA or cocaine in the future. (GE 2; Tr. 31-32.)

Applicant recognized the poor judgment of his past illegal drug use. He signed a statement of intent demonstrating he would not abuse any drugs in the future. (AE D.) Applicant is well respected by those who know him, as verified by the letters he entered into evidence. He is considered to be “extremely talented” at his job. He is “highly respected as both a person and a professional, by management, colleagues, resellers, and customers alike.” He conducts himself “with integrity, honesty, and sincerity.” (AE B; AE C.)

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 to be 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, administrative judges apply the guidelines in conjunction with the factors listed in AG ¶ 2 describing 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.

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 to obtain 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 EO 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

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.

I have considered all of the disqualifying conditions under Drug Involvement AG ¶ 25, and the following are potentially applicable:

(a) any drug abuse; and

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

The Government presented sufficient information to support all of the factual allegations under Guideline H. Applicant used marijuana, infrequently from November 2004 and August 2013. He also experimented with cocaine once in October 2012 and MDMA twice, as recently as August 2013. The facts established through the Government’s evidence and through Applicant’s admissions raise security concerns under both of the above disqualifying conditions.

I have considered the mitigating conditions under Drug Involvement AG ¶ 26, and the following are potentially applicable:

(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.

While Applicant’s illegal drug use spanned over a nine-year period, Applicant has made a number of significant changes in his life during the past 1.5 years that demonstrate his serious commitment to abstinence from illegal substances. He recognized that he was wrong to use marijuana, cocaine and MDMA. He ceased using all drugs prior to applying for a security clearance. He testified he immediately departs any situation where drug use is present. He disassociated himself from drug-using friends and associates. Applicant’s drug use occurred largely while he was attending educational institutions. He is now in the work-force and no longer attends school. Thus, he has changed his environment. While the Directive does not define what constitutes “an appropriate period of abstinence” under AG ¶ 26(b)(3), his candor about his illegal drug abuse leads me to accept as credible his assertions of no future intent to use marijuana, cocaine, or MDMA under any circumstances. Applicant has demonstrated sufficient intent not to use any illegal drugs in the future. He signed a statement of intent with automatic revocation of clearance for any violation. He has matured and understands that any illegal drug involvement is incompatible with his defense contractor employment. Applicant has presented sufficient evidence to mitigate the Government’s concerns under AG ¶ 26(b).

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 pertinent facts and circumstances surrounding this case. Applicant’s infrequent but illegal drug use occurred over a long span. He was irresponsible at the time and did not recognize the seriousness of his actions. He has now matured. He has not used illegal substances for more than 1.5 years after coming to the revelation that there was no room for illegal substances in his future professional life. His changes are permanent and the likelihood of recurrence is extremely low. Applicant is respected by those who know him. He has a reputation for honestly and trustworthiness. Applicant’s current reputation for honesty, coupled with his candor concerning his past drug use, adds weight to his commitment to abstain from illegal drug use. The record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant should be granted a security clearance.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline H: FOR APPLICANT

Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant Subparagraph 1.c: 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.

________________________ Jennifer I. Goldstein Administrative Judge