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ISCR 14-06684.h1: Guideline E security clearance hearing, granted (2015) · CASE

ISCR Case 14-06684.h1granted

Case headnote

ISCR Case No. 14-06684.h1

grantedJul 29, 2015· Hon. Robert J. Tuidar· hearing

Summary

A 41-year-old systems software tester was granted a security clearance despite initial concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The Statement of Reasons detailed a history of illegal drug use, specifically the purchase and use of marijuana from June 1986 to July 2012, and synthetic marijuana (spice or incense) from February 2011 to July 2012. These allegations raised disqualifying conditions related to personal conduct and drug involvement.

However, the applicant successfully mitigated these concerns. The judge found a significant period of abstinence from all drug use since July 2012, demonstrating a commitment to remain drug-free. This was supported by credible evidence of rehabilitation, including a favorable drug and alcohol evaluation.

Furthermore, strong support from family, friends, and colleagues attested to the applicant's reliability and trustworthiness. Based on this demonstrated rehabilitation and current reliability, the security clearance was granted.

Why the applicant prevailed

The applicant demonstrated a significant period of abstinence from drug use since July 2012.
He provided credible evidence of rehabilitation, including a favorable drug and alcohol evaluation.
Strong support from family, friends, and colleagues indicated his reliability and trustworthiness.

Conditions referenced

Disqualifying

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

Mitigating

AG ¶ 26(a)appliedBehavior Happened Long Ago
AG ¶ 26(b)appliedDemonstrated Intent Not to Abuse Drugs

Key rule quoted

“Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines (AG).”

Procedural posture

SOR issuedJan 31, 2015
Answer filedFeb 19, 2015
Hearing heldMay 28, 2015
Decision dateJul 29, 2015

Cite for

Mitigation of Drug Involvement Under Guideline H
Application of Whole-person Concept in Security Clearance Decisions
Demonstrated Intent Not to Abuse Drugs as a Mitigating Factor

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: 41: “Applicant is a 41-year-old systems software tester employed by a defense contractor since November 2012.”
Tenure: ~3 years: “Applicant is a 41-year-old systems software tester employed by a defense contractor since November 2012.”

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The judge found for the applicant on the personal conduct concerns under Guideline E, concluding that the applicant had mitigated the security concerns. The applicant's past drug involvement was disclosed and addressed, leading to a favorable decision regarding his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation

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 had a history of drug involvement, including illegal use of marijuana and synthetic marijuana, but determined that the applicant had mitigated the security concerns. The applicant's last drug use was in July 2012, and he demonstrated a commitment to abstaining from drugs, supported by character references and a professional evaluation. Ultimately, the judge ruled in favor of the applicant under Guideline H, granting the security clearance.

¶	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: ) ) XXXXXXXXXX, XXXXX ) ISCR Case No. 14-06684 ) Applicant for Security Clearance )

For Government: Braden Murphy, Esq., Department Counsel For Applicant: Ronald C. Sykstus, Esq.

07/29/2015 ______________

STATEMENT OF CASE

______________

TUIDER, Robert J., Administrative Judge:

Applicant has mitigated security concerns pertaining to Guidelines H (drug involvement) and E (personal conduct). Clearance is granted.

Statement of the Case

On November 19, 2012, Applicant submitted a Questionnaire for National Security Positions (SF 86). On January 31, 2015, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a Statement of Reasons (SOR) to Applicant, pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended; and the adjudicative guidelines (AG), which became effective on September 1, 2006.

The SOR alleged security concerns under Guidelines H and E. The SOR detailed reasons why the DOD CAF was unable to find that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant, and it recommended that his case be submitted to an administrative judge for a determination whether his clearance should be continued or revoked.

On February 19, 2015, Applicant responded to the SOR. On April 2, 2015, Department Counsel was ready to proceed on Applicant’s case. On April 8, 2015, DOHA assigned Applicant’s case to me. On April 22, 2015, the Defense Office of Hearings and Appeals (DOHA) issued a hearing notice, setting the hearing for May 28, 2015. Applicant’s hearing was held as scheduled. At the hearing, Department Counsel offered Government Exhibits (GE) 1 and 2, which were received into evidence without objection. Applicant called seven witnesses, testified, and offered Applicant Exhibits (AE) A and G, which were received into evidence without objection.

I held the record open until June 26, 2015 to afford Applicant the opportunity to submit additional documents. Applicant timely submitted AE H through AE J, which were received into evidence without objection. On June 5, 2015, DOHA received the hearing transcript (Tr.).

FINDINGS OF FACT

In his SOR answer, Applicant admitted all of the allegations with explanations. Applicant’s answers and explanations are incorporated as findings of fact. After a thorough review of the evidence, I make the following additional findings of fact.

Background Information

Applicant is a 41-year-old systems software tester employed by a defense contractor since November 2012. He seeks a security clearance, which is a requirement of his continued employment. (GE 1; Tr. 14, 16-17, 22-23)

Applicant graduated from high school in May 1992. He was awarded an associate’s degree in computer information systems in July 2005, and a bachelor of science degree in computer science in December 2014. (GE1; AE C, AE E, AE F; Tr. 14-16, 19-20, 22) He married in June 1995 and has two sons, ages 16 and 13. Applicant’s wife is employed full-time as a registered nurse. Applicant has not served in the U.S. armed forces. (GE 1, Tr. 17, 23-24, 58)

Drug Involvement/Personal Conduct

The underlying basis of Applicant’s past drug involvement is derived from his self-disclosure and is not disputed. His past drug use consists of: (1) from approximately June 1986 to July 2012, Applicant illegally purchased and used marijuana, with varying frequency; and (2) from approximately February 2011 to July 2012, Applicant illegally purchased and used synthetic marijuana (spice or incense), with varying frequency. (SOR ¶¶ 1.a - 1.d) Applicant reported in detail the circumstances of his past drug use during his January 16, 2013 Office of Personnel Management Personal Subject Interview (OPM PSI) and during his testimony. (GE 2; Tr. 26-25, 33-37, 39-42, 49-52)

Applicant has never been arrested as a result of his past involvement with drugs. He was introduced to marijuana when he about 13 years old by his older cousin. Applicant’s drug use occurred, “most all the time at home and mostly by myself.” Applicant quit using drugs in July 2012 and cited three reasons for doing so – his wife’s strong disapproval, the adverse influence his behavior would have on his sons, and his faith as a Christian. (Tr. 25-30, 42-45, 48, 53-56) Applicant has severed contact with drug-using associates and contacts. (Tr. 33, 45-48)

Applicant submitted a signed statement of intent dated May 20, 2015, with automatic revocation of clearance for any drug violation. (AE G; Tr. 37-38, 48) He concluded his testimony by stating that he grew up late in life, “righted the ship,” has not had anything to do with drugs since 2012, and would never do anything to betray his country. (Tr. 38-39)

Post-hearing, Applicant submitted a drug and alcohol evaluation from a duly qualified licensed marriage and family therapist (LMFT), psychotherapist, with significant experience in substance abuse issues. The LMFT stated “[Applicant] is in full-sustained remission from substance use. [Applicant] has a strong support community and is motivated to continue to not use substances because he wants to model positive behavior for his children and be successful in his chosen career. There are no recommendations for treatment or other counseling.” (AE H – AE I)

Character Evidence

Seven witnesses testified on Applicant’s behalf -- his wife, two long-time family friends, his pastor, his supervisor, and two colleagues from work. It is clear that Applicant has an engaged and concerned support group. (Tr. 57-64, 86-101)

The company employees who testified on Applicant’s behalf all hold security clearances. Applicant recognizes his mistakes and has put his drug use behind him. Drug use is not tolerated in their company and any use would be grounds for termination. Applicant is a trusted, well-liked, and productive employee. (Tr. 64-85) Applicant’s 2013 and 2014 work performance evaluations document above average performance and an employee who is making a significant contribution to his company and the national defense. (AE A – AE B)

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant Applicant’s eligibility for access to classified information “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 and modified.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines (AG). These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s over-arching adjudicative goal is a fair, impartial and common sense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. 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. Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the [A]pplicant concerned.” See Exec. Or. 10865 § 7. See also Executive Order 12968 (Aug. 2, 1995), Section 3. Thus, nothing in this Decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism. It is merely an indication the Applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the Applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Drug Involvement

AG ¶ 24 articulates the security concern concerning 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.

The Government established its case under Guideline H through Applicant’s admissions and the evidence presented. He fully disclosed his drug abuse in his SOR response and at his hearing.

A review of the evidence supports application of two drug involvement disqualifying conditions. AG ¶ 25(a): “any drug abuse (see above definition);”1 and AG ¶ 25(c) “illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution, or possession of drug paraphernalia.”

Considering the totality of the circumstances in this case, I find application of drug involvement mitigating conditions AG ¶ 26(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 AG ¶ 26(b): “a demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation form drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence; and (4) a signed statement of intent with automatic revocation of clearance for any violation.”

Concerning AG ¶ 26(a), there are no “bright line” rules for determining when conduct is “recent.” The determination must be based “on a careful evaluation of the totality of the record within the parameters set by the Directive.” ISCR Case No. 02- 24452 at 6 (App. Bd. Aug. 4, 2004). For example, the Appeal Board determined in ISCR Case No. 98-0608 (App. Bd. Aug. 28, 1997), that an applicant's last use of marijuana occurring approximately 17 months before the hearing was not recent. If the evidence shows “a significant period of time has passed without any evidence of misconduct,” then an administrative judge must determine whether that period of time demonstrates “changed circumstances or conduct sufficient to warrant a finding of reform or rehabilitation.”2

AG ¶ 26(a) applies. Applicant’s last drug use was July 2012, about 22 months before his hearing. His illegal drug use ended when he realized that he needed to turn his life around. The absence of evidence of more recent or extensive drug use, and his promise not to use illegal drugs in the future as well as his recent favorable drug and alcohol assessment eliminates doubts about his current reliability, trustworthiness, or good judgment with respect to abstaining from illegal drug use.3

AG ¶ 26(b) lists four ways Applicant can demonstrate his intent not to abuse illegal drugs in the future. With maturity, and having sought professional help, he has broken or reduced the prevalence of his patterns of drug abuse, and he has changed his life with respect to illegal drug use. He has abstained from drug abuse for about 22 months and has had no problem in doing so. AG ¶ 26(b) applies.

The testimony from senior company representatives show Applicant’s work behavior has not been indicative of his having a drug problem. He is viewed as a valuable employee, who is reliable, dependable, and professional. His value to the defense industry is supported by senior company officials, who know him personally and professionally, and by his own credible testimony and evidence presented. At his hearing, Applicant acknowledged that drug abuse is incompatible with his future career and family plans. He expressed a steadfast commitment to continue lifestyle changes consistent with total abstinence of marijuana or any other drugs. I find for Applicant under this concern.

Personal Conduct

This concern was cross-alleged under drug involvement concerns. No new facts other than those discussed under drug involvement were brought to light during the hearing. Accordingly, the facts and analysis under drug involvement are incorporated under this section. Utilizing the rationale under the drug involvement section, I find for Applicant under this concern.

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. 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.

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. AG ¶ 2(c). The discussion in the Analysis section under Guideline H is incorporated in this whole-person section. However, additional comments are warranted.

Applicant has been and is willing to maintain conduct expected of one entrusted with a security clearance. His employer, family, and friends support him. His employment history to date is indicative of stability and a strong work ethic. This support and self-introspection should ensure his continued success. Applicant demonstrated the correct attitude and commitment to remaining drug free. Considering his demeanor and testimony, I believe Applicant has learned from his mistakes, and his questionable behavior is unlikely to recur. I find Applicant has presented sufficient evidence of rehabilitation. To conclude, Applicant presented sufficient evidence to explain, extenuate, or mitigate the security concerns raised. Applicant met his ultimate burden of persuasion to obtain a favorable clearance decision. I take this position based on the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), my “careful consideration of the whole-person factors”4 and supporting evidence, my application of the pertinent factors under the Adjudicative Process, and my interpretation of my responsibilities under the Guidelines. For the reasons stated, I conclude he is eligible for access to classified information.

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

Subparagraphs 1.a – 1.d: For Applicant

Paragraph 2, Guideline E: For Applicant

Subparagraph 2.a: For Applicant

DECISION

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue eligibility for a security clearance for Applicant. Clearance is granted.

________________ ROBERT J. TUIDER Administrative Judge

FOOTNOTES

1 AG ¶ 24(b) defines drug abuse as the illegal use of a drug or use of a legal drug in a manner that deviates from approved medication direction. 2 ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). In ISCR Case No. 04-09239 at 5 (App. Bd. Dec. 20, 2006), the Appeal Board reversed the judge’s decision denying a clearance, focusing on the absence of drug use for five years prior to the hearing. The Appeal Board determined that the judge excessively emphasized the drug use while holding a security clearance, and the 20 plus years of drug use, and gave too little weight to lifestyle change and therapy. For the recency analysis the Appeal Board stated:

Compare ISCR Case No. 98-0394 at 4 (App. Bd. June 10, 1999) (although the passage of three years since the applicant's last act of misconduct did not, standing alone, compel the administrative judge to apply Criminal Conduct Mitigating Condition 1 as a matter of law, the Judge erred by failing to give an explanation why the Judge decided not to apply that mitigating condition in light of the particular record evidence in the case) with ISCR Case No. 01-02860 at 3 (App. Bd. May 7, 2002) (“The administrative judge articulated a rational basis for why she had doubts about the sufficiency of Applicant's efforts at alcohol rehabilitation.”) (citation format corrections added).

In ISCR Case No. 05-11392 at 1-3 (App. Bd. Dec. 11, 2006) the Appeal Board, considered the recency analysis of an administrative judge stating:

The administrative judge made sustainable findings as to a lengthy and serious history of improper or illegal drug use by a 57-year-old Applicant who was familiar with the security clearance process. That history included illegal marijuana use two to three times a year from 1974 to 2002 [drug use ended four years before hearing]. It also included the illegal purchase of marijuana and the use of marijuana while holding a security clearance.

3 In ISCR Case No. 02-08032 at 8 (App. Bd. May 14, 2004), the Appeal Board reversed an unfavorable security clearance decision because the administrative judge failed to explain why drug use was not mitigated after the passage of more than six years from the previous drug abuse. 4See ISCR Case No. 04-06242 at 2 (App. Bd. June 28, 2006).