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ISCR Case 14-01722.h1 — CASE

ISCR Case 14-01722.h1denied

Case Headnote

ISCR Case No. 14-01722.h1

deniedMay 20, 2015· Hon. Juan J. Rivera· hearing

Summary

A 26-year-old graduate student was denied a security clearance under Guideline H (Drug Involvement) due to a history of illegal drug use spanning from 2007 to 2013. The Statement of Reasons detailed the applicant's illegal purchase and use of marijuana, hallucinogenic mushrooms, ecstasy, LSD, and cocaine with varying frequency during this period.

Disqualifying conditions H.25(a) and H.25(c) were raised, while mitigating conditions H.26(a), H.26(b), and H.26(d) were considered. However, the judge found the applicant's claims of rehabilitation insufficient.

The denial was based on the applicant's extensive history of illegal drug use involving multiple substances over several years. Furthermore, the applicant's assertions of rehabilitation lacked supporting documentary evidence of successful treatment completion or sustained abstinence. The judge also noted that the applicant continued to reside with a girlfriend who used marijuana, which undermined claims of disassociation from drug-using associates.

Why the Applicant Was Denied

The applicant had a long history of illegal drug use, including multiple substances over several years.
The applicant's claims of rehabilitation were not supported by documentary evidence of successful completion of treatment or ongoing abstinence.
The applicant continued to live with a girlfriend who used marijuana, undermining claims of disassociation from drug-using associates.

Conditions Referenced

Disqualifying

H.25(a)raisedDrug Abuse
H.25(c)raisedIllegal Drug Possession

Mitigating

H.26(a)rejectedBehavior Occurred Long AgoThe applicant's drug-related behavior was not recent enough to mitigate concerns.
H.26(b)rejectedDemonstrated Intent Not to Abuse DrugsThe applicant's living situation with a drug user undermined claims of intent to avoid drug use.
H.26(d)rejectedCompletion of Drug Treatment ProgramThe applicant provided no evidence of successful completion of treatment or a favorable prognosis.

Key Rule Quoted

“The Government has a compelling interest in ensuring each applicant possesses the requisite judgment, reliability, and trustworthiness of those who must protect national interest as their own.”
— Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural Posture

SOR issuedJun 10, 2014
Answer filed—Applicant elected to proceed without a hearing.
Hearing held—No hearing was conducted.
Decision dateMay 20, 2015

Cite For

Insufficient Evidence of Rehabilitation Under Guideline H
Impact of Living with Drug-using Associates on Mitigating Conditions
Long-term Drug Use as a Disqualifying Factor for Security Clearance

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 that the applicant illegally purchased and used various drugs, including marijuana, hallucinogenic mushrooms, ecstasy, LSD, and cocaine, from 2007 to 2013. Despite the applicant's claims of rehabilitation and cessation of drug use, the judge determined that the evidence presented was insufficient to mitigate the security concerns related to drug involvement, resulting in a denial of the security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant illegally purchased and used marijuana with varying frequency from 2007 to 2013.	Against Applicant	Marijuana	Occasional	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	Applicant illegally purchased and used hallucinogenic mushrooms with varying frequency from 2007 to 2013.	Against Applicant	Psilocybin	Experimental	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.c	Applicant illegally purchased and used ecstasy with varying frequency from 2007 to 2013.	Against Applicant	MDMA	Experimental	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.d	Applicant illegally purchased and used LSD with varying frequency from 2007 to 2013.	Against Applicant	LSD	Experimental	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.e	Applicant illegally purchased and used cocaine with varying frequency from 2007 to 2013.	Against Applicant	Cocaine	Experimental	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—

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. 14-01722 ) ) Applicant for Security Clearance

For Government: Richard Stevens, Esq., Department Counsel For Applicant: Pro se

05/20/2015 __________

STATEMENT OF CASE

__________

RIVERA, Juan J., Administrative Judge:

Applicant illegally purchased and used drugs with varying frequency from 2007 to 2013. Considering the period, frequency, his recent use, and the type of drugs he experimented with, Applicant’s evidence is insufficient to mitigate the drug involvement security concerns. Clearance is denied.

Statement of the Case

Applicant submitted a security clearance application (SCA) on July 8, 2013. On June 10, 2014, the Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) alleging security concerns under Guideline H (drug involvement).1 Applicant answered the SOR and elected to have his case decided without a hearing. A copy of the Government’s file of relevant material (FORM), dated October 30, 2014, was mailed to him on October 31, 2014. Applicant acknowledged receipt of the FORM on December 4, 2014. He was allowed 30 days to submit any objections to the FORM and to provide material in extenuation and mitigation. Applicant did not submit any information within the period of 30 days after his receipt of the FORM.

FINDINGS OF FACT

Applicant admitted all of the factual allegations in the SOR, with comments in extenuation and mitigation. His admissions are incorporated as findings of fact. After a thorough review of the record evidence, including his July 2013 SCA, his answers to the SOR, and the summary of his July 2013 interview, I make the following findings of fact:

Applicant is 26 years old. He received his bachelor’s degree in May 2011, and was pursuing a post-graduate degree. He was hired by a government contractor in May 2013, under a college-work internship program. This is his first security clearance application. He has never been married, and he has no children. He has been living with his girlfriend since August 2011.

Applicant disclosed in his July 2013 SCA, and admitted in a July 2013 interview and in his answer to the SOR, that he has a recent history of illegal drug purchases and use, which include: marijuana (approximately once monthly from June 2007 to February 2013; hallucinogenic mushrooms (five times from March 2007 to June 2010); ecstasy (once in November 2009); LSD (two times in October 2010 and August 2012); and cocaine (once in 2009).

Applicant explained in his July 2013 SCA that his illegal marijuana use was

occasional over the last year, but then quit recently with the expectation of fulfilling a better lifestyle. My life and lifestyle no longer supports indulging in a controlled substance. I have been working on a cleaner more sober and legal future without the use of drugs or being involved in group scenarios that might present drugs. I have reinforced this by discontinuing associations with those that pose a risk or concern to obtaining or being in the proximity of this illicit drug.

Applicant used marijuana with his live-in girlfriend. (FORM, Item 7) He claimed his use of the other illegal drugs (mushrooms, ecstasy, LSD, and cocaine) was experimental, and that he did not intend to use them again. He purchased the illegal drugs for his personal use, and not for profit. Applicant stated that he voluntarily sought help in January 2013, to quit his involvement with drugs and to eradicate his urge to use or experiment any further. As of his July 2013 interview, Applicant was still undergoing drug and alcohol substance abuse counseling every other week through a college substance abuse program. He claimed he had not received a diagnosis. In his July 2014 response to the SOR, Applicant noted that he voluntarily sought help to stop his illegal use of drugs, participated in substance abuse treatment for a period of not less than a year, ceased contact with all parties known to continually use drugs, and has been clean for 16 months.

POLICIES

Eligibility for access to classified information may be granted “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended. The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

The AG list disqualifying and mitigating conditions for evaluating a person’s suitability for access to classified information. Any one disqualifying or mitigating condition is not, by itself, conclusive. However, the AG should be followed where a case can be measured against them, as they represent policy guidance governing access to classified information. Each decision must reflect a fair, impartial, and commonsense consideration of the whole person and the factors listed in AG ¶ 2(a). All available, reliable information about the person, past and present, favorable and unfavorable, must be considered.

Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an applicant’s security clearance. The Government must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. The applicant bears the heavy burden of demonstrating that it is clearly consistent with the national interest to grant or continue his or her security clearance.

Persons with access to classified information enter into a fiduciary relationship with the Government based on trust and confidence. Thus, the Government has a compelling interest in ensuring each applicant possesses the requisite judgment, reliability, and trustworthiness of those who must protect national interest as their own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an applicant’s suitability for access in favor of the Government. “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; AG ¶ 2(b). Clearance decisions are not a determination of the loyalty of the applicant concerned. They are merely an indication that the applicant has or has not met the strict guidelines the Government has established for issuing a clearance.

ANALYSIS

Guideline H, Drug Involvement

AG ¶ 24 articulates the security concern for 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.

Applicant illegally purchased and used drugs (marijuana, mushrooms, ecstasy, LSD, and cocaine) with varying frequency, from around June 2007 to February 2013.

AG ¶ 25 describes two conditions related to drug involvement that could raise a security concern and are disqualifying in this case:

(a) any drug abuse; and

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

AG ¶ 26 provides three potentially applicable drug involvement mitigating conditions:

(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;

(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 . . . ; and

(d) satisfactory completion of a prescribed drug treatment program, including but not limited to rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional.

None of the Guideline H mitigating conditions fully apply. Applicant’s most recent illegal drug-related behavior occurred in February 2013, shortly before submitting his 2013 SCA. Thus, his drug-related behavior is not recent. Applicant claimed that his marijuana use was occasional, and that he only experimented with the other illegal drugs once or twice. Nevertheless, he illegally used drugs recurrently from 2007 to February 2013.

Applicant presented no documentary evidence to show that he successfully completed his substance abuse counseling, or that he has continued his rehabilitation by participating in aftercare treatment. There is no record of any diagnosis or prognosis resulting from his substance abuse counseling. Applicant claimed that he disassociated from his drug-using friends. However, he is living with his girlfriend and they used marijuana together.

Applicant illegally used drugs over a long period. Considering the frequency of his use, the type of drugs he experimented with, and his recent use, Applicant’s favorable evidence is insufficient to mitigate the drug involvement security concerns.

WHOLE PERSON CONCEPT

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case, and under the whole-person concept. (AG ¶ 2(c)) I have incorporated my comments under Guideline H in my whole- person analysis.

Applicant is a 26-year-old graduate student working on an intern program with a defense contractor. He receives credit for disclosing his past illegal drug use in his 2013 SCA. He appears to have taken the first steps to overcome his past illegal drug use.

Notwithstanding, his favorable evidence is insufficient to show that he has been successfully rehabilitated and that his illegal drug abuse is unlikely to recur. His past illegal drug abuse continues to raise questions about his reliability, trustworthiness, judgment, ability to comply with the law, and his ability to protect classified information. He failed to mitigate the Guideline H 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: AGAINST APPLICANT

Subparagraphs 1.a - 1.e: Against Applicant

CONCLUSION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant eligibility for a security clearance to Applicant. Clearance is denied.

____________________________ JUAN J. RIVERA Administrative Judge

FOOTNOTES

1 The action was taken under Executive Order 10865, Safeguarding Classified Information Within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive) (January 2, 1992), as amended; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), implemented by the DOD on September 1, 2006.