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ISCR 14-01101.h1: Guideline H security clearance hearing, granted (2014) · CASE

ISCR Case 14-01101.h1granted

Case headnote

ISCR Case No. 14-01101.h1

grantedAug 22, 2014· Hon. Edward W. Loughran· hearing

Summary

This case concerns a 23-year-old defense contractor employee whose eligibility for a security clearance was reviewed under Guideline H (Drug Involvement). The Statement of Reasons alleged that the applicant possessed and used a controlled substance without a valid prescription, specifically ADHD medication. This raised disqualifying conditions under Adjudicative Guideline Paragraphs 25(a) and 25(c).

However, the applicant fully disclosed his past drug use on his SF 86 and during his background interview. He demonstrated a clear commitment to abstinence, having not used illegal drugs since graduating college. His case was further strengthened by positive character references and evidence of a stable personal life.

The judge applied mitigating conditions under Adjudicative Guideline Paragraphs 26(a) and 26(b), finding that the applicant had successfully mitigated the drug involvement concerns. Consequently, the applicant was granted eligibility for a security clearance.

Why the applicant prevailed

The applicant fully disclosed his past drug use on his SF 86 and during his background interview.
He demonstrated a commitment to remaining drug-free and has not used illegal drugs since graduating college.
Positive character references and a stable personal life supported his case.

Conditions referenced

Disqualifying

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

Mitigating

AG ¶ 26(a)appliedBehavior Unlikely to Recur
AG ¶ 26(b)appliedDemonstrated Intent Not to Abuse Drugs in the Future

Key rule quoted

“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.”

Procedural posture

SOR issuedMay 5, 2014
Answer filedJun 13, 2014
Hearing heldAug 13, 2014
Decision dateAug 22, 2014

Cite for

Mitigation of Drug Involvement Under Guideline H
Importance of Full Disclosure in Security Clearance Applications
Consideration of the Whole-person Concept in Adjudication Decisions

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 23: “Applicant is a 23-year-old employee of a defense contractor.”
Tenure: ~1 year: “He has worked for his current employer since August 2013.”
Held a clearance before: No: “He is applying for a security clearance for the first time.”

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 security concerns related to his past use of ADHD medication without a prescription. The applicant demonstrated an appropriate period of abstinence and a credible commitment to remaining drug-free, leading to a decision to grant eligibility for access to classified information.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation

Descriptive standardized rendering of a decided public case. 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. 14-01101 ) Applicant for Security Clearance )

For Government: Caroline E. Heintzelman, Esq., Department Counsel For Applicant: Pro se

08/22/2014 ______________

STATEMENT OF CASE

______________

LOUGHRAN, Edward W., Administrative Judge:

Applicant mitigated the drug involvement security concerns. Eligibility for access to classified information is granted.

Statement of the Case

On May 5, 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; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the DOD on September 1, 2006.

Applicant responded to the SOR on June 13, 2014, and requested a hearing before an administrative judge. The case was assigned to me on July 21, 2014. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on July 24, 2014, scheduling the hearing for August 13, 2014. The hearing was convened as scheduled. Government Exhibits (GE) 1 and 2 were admitted in evidence without objection. Applicant testified, called a witness, and submitted Applicant’s Exhibits (AE) A through D, which were admitted without objection. DOHA received the hearing transcript (Tr.) on August 22, 2014.

FINDINGS OF FACT

Applicant is a 23-year-old employee of a defense contractor. He has worked for his current employer since August 2013. He is applying for a security clearance for the first time. He has a bachelor’s degree. He is married and he does not have children.1

Applicant attended college from 2010 until he graduated with an engineering degree in three years in May 2013. On about five occasions, from May 2012 to April 2013, he used attention deficit/hyperactivity disorder (ADHD) medication without a prescription to help him study for tests.2

Applicant listed his use of ADHD medication on his Questionnaire for National Security Positions (SF 86), which he submitted in October 2013, and he fully discussed it during his background interview in December 2013. He has not used ADHD medication without a prescription or any illegal drugs since he graduated college. He has a good job with a bright future. He married in December 2013, and his wife does not use illegal drugs. He credibly stated that he will never take a prescription drug without a prescription in the future.3

Applicant volunteers in his church and in his community. A witness testified and Applicant submitted several letters praising his job performance, moral character, trustworthiness, honesty, loyalty, dependability, work ethic, responsibility, and integrity.4

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. 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 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.”

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 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 safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of 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

The security concern for drug involvement is set out in AG ¶ 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 notes conditions that could raise security concerns under AG ¶ 25. The disqualifying conditions potentially applicable in this case include:

(a) any drug abuse;5 and (c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia.

Applicant possessed and used a controlled substance without a valid prescription. AG ¶¶ 25(a) and 25(c) are applicable.

AG ¶ 26 provides conditions that could mitigate security concerns. The following are potentially applicable:

(a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; and

(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.

Applicant’s drug use occurred while he was in college studying for examinations. He fully disclosed his drug use in his SF 86 and during his background interview. he realizes that such behavior is wrong and inconsistent with holding a security clearance. His wife does not use illegal drugs, and he has a career with a bright future. He clearly, unequivocally, and credibly committed to remaining drug-free. I find that he demonstrated an appropriate period of abstinence and that illegal drug use is unlikely to recur. AG ¶¶ 26(a) and 26(b) are applicable.

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 the facts and circumstances surrounding this case. I have incorporated my comments under Guideline H in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment.

Applicant exhibited immature behavior and a disregard for the law when he used a controlled substance without a prescription. I am convinced that he has put his inappropriate and illegal behavior behind him and it will not recur.

Overall, the record evidence leaves me without questions or doubts as to Applicant’s eligibility and suitability for a security clearance. I conclude Applicant mitigated the drug involvement 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

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.

________________________ Edward W. Loughran Administrative Judge

FOOTNOTES

1 Tr. at 14, 18-20; GE 1. 2 Tr. at 14-15, 18, 20; Applicant’s response to SOR; GE 1, 2; AE A. 3 Tr. at 15-20, 24; Applicant’s response to SOR; GE 1, 2; AE A. 4 Tr. at 14-15, 21-23; AE A-D. 5 Drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.