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ISCR Case 14-07013.h1 — CASE

ISCR Case 14-07013.h1denied

Case Headnote

ISCR Case No. 14-07013.h1

deniedFeb 22, 2016· Hon. Michael H. Leonard· hearing

Summary

A 25-year-old software engineer was denied a security clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement) due to past marijuana use and related conduct. The Statement of Reasons alleged that the applicant used marijuana periodically in 2011-2012, associated with drug users, and falsified his intentions regarding future marijuana use, having expressed an intent to continue during his background investigation.

While the applicant acknowledged his past drug involvement and stated an intention to abstain, the judge found these actions insufficient to mitigate security concerns. Disqualifying conditions were raised under both Guideline H and Guideline E, though mitigating conditions were considered under Guideline H.

The denial was based on the recent and not infrequent nature of the applicant's marijuana involvement, a lack of sufficient evidence demonstrating a clear intention to abstain from future use, and past behavior indicating poor judgment and reliability concerning drug use.

Why the Applicant Was Denied

The applicant's marijuana involvement was recent and not infrequent, raising security concerns.
The applicant did not present sufficient evidence to demonstrate a clear intention not to use marijuana in the future.
The applicant's past behavior indicated a lack of judgment and reliability regarding drug use.

Conditions Referenced

Disqualifying

HraisedDrug Involvement
EraisedPersonal Conduct

Mitigating

HrejectedDrug InvolvementThe applicant's marijuana involvement was not infrequent enough to mitigate concerns.
HrejectedDrug InvolvementThe applicant did not provide sufficient evidence of an intention not to use marijuana in the future.

Key Rule Quoted

“"the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials."”
— Department of Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedFeb 22, 2016
Answer filedJun 26, 2015
Hearing heldNov 10, 2015Applicant appeared pro se.
Decision date—

Cite For

Disqualifying Conditions Under Guideline H for Drug Involvement
Rejection of Mitigating Conditions Related to Drug Use
Consideration of Personal Conduct Under Guideline E

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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant did not deliberately falsify his security clearance application regarding his future intentions concerning marijuana use. The allegations under Guideline E were resolved in favor of the applicant, indicating that the judge did not find sufficient evidence of personal conduct issues that would disqualify him from obtaining a security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant falsified his answer to a question concerning his future intentions concerning marijuana use.	For Applicant	Falsification Security FormNOT DELIBERATE	Other	Denied	—	—	—
2.b	Applicant associated with drug users.	For Applicant	Association with Persons in Criminal Activity	—	Denied	—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

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's involvement with marijuana was disqualifying under Guideline H. Despite the applicant's claims of having ceased marijuana use after a police incident in September 2012, the judge concluded that the applicant did not present sufficient evidence to mitigate the security concerns related to his past drug use. The decision was ultimately against the applicant.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The applicant has used marijuana on a periodic or occasional basis during the years of 2011–2012.	Against Applicant	Marijuana	Frequent	Admitted	—	—	—
1.b	The applicant expressed an intention to continue using marijuana during his background investigation.	Against Applicant	Stated Intent to Use Again	Not Applicable	Admitted	—	—	—

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. 14-07013 ) Applicant for Security Clearance )

For Government: Ross Hyams, Esq., Department Counsel For Applicant: Pro se

02/22/2016 ______________

STATEMENT OF CASE

______________

LEONARD, Michael H., Administrative Judge:

Applicant contests the Defense Department’s intent to deny him eligibility for access to classified information. He did not deliberately falsify relevant facts about his future intentions concerning marijuana use in a June 2012 security clearance application. But the security concern stemming from his marijuana involvement, which includes a September 2012 police incident, is not mitigated. Accordingly, this case is decided against Applicant.

Statement of the Case

Applicant completed and submitted a Questionnaire for National Security Positions (SF 86 Format) on June 27, 2012. About three years later on June 6, 2015, after reviewing the application and information gathered during a background investigation, the Department of Defense (DOD) sent Applicant a statement of reasons (SOR), explaining it was unable to find that it was clearly consistent with the national interest to grant him eligibility for access to classified information. The SOR is similar to a complaint. It detailed the reasons for the action under the security guidelines known as Guideline H for drug involvement and Guideline E for personal conduct. Applicant answered the SOR on June 26, 2015.

The case was assigned to me on September 18, 2015. The hearing was held as scheduled on November 10, 2015. Department Counsel offered Exhibits 1–3, and they were admitted. Applicant offered Exhibits A and B, and they were admitted. No witnesses other than Applicant were called. The hearing transcript (Tr.) was received on November 18, 2015.

FINDINGS OF FACT

Applicant is a 25-year-old employee who is seeking to obtain a security clearance for the first time. He is employed as a software engineer for a technology company working in the defense and aerospace industries. His educational background includes a bachelor’s degree in computer science awarded in May 2013. He has never married and has no children, although he is engaged to be married this year.

Applicant completed a security clearance application in June 2012. He was then a college student working for the predecessor-in-interest to his present employer. In completing the application, he disclosed a history of marijuana use. He stated that he used marijuana from July 2011 to June 2012 on an infrequent, every now and then basis. He also stated that his participation in collegiate athletics subjected him to drug testing, which he had passed. In response to a particular question, he stated that he did not intend to use marijuana in the future due to the requirements of holding a security clearance. Applicant was interviewed in an August 2012 background investigation. He provided the following details about his marijuana involvement: (1) he used marijuana two times per month from July 2011 to July 2012; (2) he did not use marijuana from August 2011 to May 2012 due to his participation in collegiate athletics; (3) he obtained marijuana from friends, and he had also bought it several times, each time buying a single marijuana cigarette for $10; and (4) he stated that he would continue to use marijuana if he knew he could do so while holding his job and a security clearance.

About a month later in September 2012, Applicant was charged with possession of marijuana and possession of drug paraphernalia, both misdemeanor offenses under state law. In 2013, the criminal case was resolved by Applicant’s completion of a diversion program (24 hours of community service), and the charges were nolle prossed. Applicant then applied for and received an order for expungement, which was completed in January 2014.

Applicant provided additional information about his marijuana involvement in response to interrogatories in November 2014. He stated that he had used marijuana, beginning in July 2011 and ending in September 2012, approximately two to three times weekly. He further stated that he did not intend to use marijuana again. He explained that he decided to stop using marijuana when he realized the negative effect it was having on him. He stated that the September 2012 police incident was a wake-up call, and that he needed to clean up his life. He denied current possession of any illegal drugs or paraphernalia, and he denied associating with drug users as well as frequenting places where illegal drugs are used. He also stated that his lifestyle had moved away from his past marijuana involvement, as he had developed a closer relationship with this girlfriend.

At the hearing, Applicant accepted responsibility for his marijuana involvement when he stated, “I know I messed up. I’m not saying I didn’t. But, you know, I left that in the past, and I’m just trying to do better, and just move on with my life in the best way I can do so.” He explained that he stopped using marijuana after the September 2012 police incident because he was shook by the incident, “it became real at that point,” and he grew up and left it behind. He stated that has no intention of using marijuana again and he takes the matter seriously.11 Applicant also stated that he was being truthful when he completed the security clearance application in June 2012, and his intention then was not to continue using marijuana. Concerning his two drug-using associates, he described them as his “greatest friends,” although one moved to another state and stopped using marijuana while the other lives nearby. He recalls passing a drug test in 2013, when he accepted a full-time offer from his current employer. He now spends most of his time working or with his fiancee. He described his fiancee as “super opposed” to marijuana use. He said that he had a difficult conversation with her after the September 2012 police incident, she was very disappointed in him, and he understands their relationship requires that he abstain from marijuana involvement.17

Law and Policies

It is well-established law that no one has a right to a security clearance. As noted by the Supreme Court in Department of Navy v. Egan, “the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.” Under Egan, Executive Order 10865, and the Directive, any doubt about whether an applicant should be allowed access to classified information will be resolved in favor of protecting national security.

A favorable clearance decision establishes eligibility of an applicant to be granted a security clearance for access to confidential, secret, or top-secret information. An unfavorable decision (1) denies any application, (2) revokes any existing security clearance, and (3) prevents access to classified information at any level. There is no presumption in favor of granting, renewing, or continuing eligibility for access to classified information. The Government has the burden of presenting evidence to establish facts alleged in the SOR that have been controverted. An applicant is responsible for presenting evidence to refute, explain, extenuate, or mitigate facts that have been admitted or proven. In addition, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision. In Egan, the Supreme Court stated that the burden of proof is less than a preponderance of the evidence.26 The DOHA Appeal Board has followed the Court’s reasoning, and a judge’s findings of fact are reviewed under the substantial-evidence standard.27

The AG set forth the relevant standards to consider when evaluating a person’s security clearance eligibility, including disqualifying conditions and mitigating conditions for each guideline. In addition, each clearance decision must be a commonsense decision based upon consideration of the relevant and material information, the pertinent criteria and adjudication factors, and the whole-person concept.

The Government must be able to have a high degree of trust and confidence in those persons to whom it grants access to classified information. The decision to deny a person a security clearance is not a determination of an applicant’s loyalty. Instead, it is a determination that an applicant has not met the strict guidelines the President has established for granting eligibility for access.

DISCUSSION

1. Personal Conduct

Under Guideline E for personal conduct, the suitability of an applicant may be questioned or put into doubt when an applicant engages in conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with the rules and regulations. And “of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.”30

Addressing the falsification allegation in SOR ¶ 2.a, Applicant denies falsifying his answer to a question concerning his future intentions concerning marijuana use. The evidence in support of the allegation is the September 2012 police incident, which followed the June 2012 security clearance application. But one does not necessarily beget the other. Instead, I am persuaded this is a case of a then 22-year-old man who was truthful and honest when he completed the security clearance application, but then fell back into his past practice or habit of using marijuana. Accordingly, this allegation is decided for Applicant.

Addressing the “associating with drug-users” allegation in SOR ¶ 2.b, the evidence here is in conflict. Applicant usually used marijuana with two others whom he has described as good friends. But the evidence is thin concerning the current frequency of association and whether the two others continue to use marijuana. Although Applicant’s association with his two friends has not ceased, it is not occurring under circumstances that are unacceptable. Accordingly, this allegation is decided for Applicant.

2. Drug Involvement

Applicant’s involvement with marijuana is disqualifying under Guideline H. In applying Guideline H to the facts of this case, I note that in an October 24, 2014 memorandum, the Director of National Intelligence reaffirmed that the disregard of federal law concerning use, sale, or manufacture of marijuana is relevant in national security determinations regardless of changes to state laws concerning marijuana use.

Here, the record shows Applicant engaged in drug abuse by using marijuana on a periodic or occasional basis during the years of 2011–2012. He also purchased marijuana during the same period. Moreover, he expressed an intention to continue using marijuana during his background investigation, although his intention was conditional or equivocal, and he has since clarified that he has no intention to continue using marijuana.

The time line here is also troubling. Applicant completed a security clearance application in June 2012, and he participated in a background investigation in August 2012. During those events, he disclosed his marijuana involvement. He certainly knew or should have known at that point in time that his marijuana involvement was an issue of concern in the security clearance process. Nevertheless, he resumed smoking marijuana a short time later in September 2012, which resulted in criminal charges. The sequence of events suggests he viewed or treated the security clearance process with glibness or impunity or both.

There are four mitigating conditions to consider under Guideline H, although only AG ¶¶ 26(a) and (b) are relevant to the facts of Applicant’s case. I considered both, and they are not sufficient to mitigate the security concern. The mitigating condition in AG ¶ 26(a) does not apply because his marijuana involvement was not so long ago and was not so infrequent that it is no longer a concern. The mitigating condition in AG ¶ 26(b) does not apply because he did not present sufficient evidence to demonstrate an intention not to use marijuana in the future. Common sense tells us that behavior is the best predictor of behavior. That’s as true here as it is anywhere else. Applicant’s behavior during 2011–2012 militates against a favorable clearance decision. Given the seriousness of his behavior, it is not mitigated by the passage of time.

Applicant’s involvement with marijuana justifies current doubt about his judgment, reliability, trustworthiness, and ability to protect classified information. In reaching this conclusion, I considered the whole-person concept. I also weighed the evidence as a whole and considered if the favorable evidence outweighed the unfavorable evidence or vice versa. Accordingly, I conclude he did not meet his ultimate burden of persuasion to show that it is clearly consistent with the national interest to grant him eligibility for access to classified information.

FORMAL FINDINGS

The formal findings on the SOR allegations are:

Paragraph 1, Guideline H: Against Applicant Subparagraphs 1.a & 1.b: Against Applicant

Paragraph 2, Guideline E: For Applicant Subparagraphs 2.a & 2.b: For Applicant

CONCLUSION

In light of the record as a whole, it is not clearly consistent with the national interest to grant Applicant eligibility for access to classified information.

Michael H. Leonard Administrative Judge

FOOTNOTES

Exhibit 1 (this document is commonly known as a security clearance application). The SOR was issued by the DOD Consolidated Adjudications Facility, Fort Meade, Maryland. It is a separate and distinct organization from the Defense Office of Hearings and Appeals, which is part of the Defense Legal Services Agency, with headquarters in Arlington, Virginia. This case is adjudicated under Executive Order 10865, Safeguarding Classified Information within Industry, signed by President Eisenhower on February 20, 1960, as amended, as well as Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program, dated January 2, 1992, as amended (Directive). In addition, the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), effective within the Defense Department on September 1, 2006, apply here. The AG were published in the Federal Register and codified in 32 C.F.R. § 154, Appendix H (2006). The AG replace the guidelines in Enclosure 2 to the Directive. Exhibit 1. Exhibit 1 at 23–24. Exhibit 3. Exhibit 2 (see court records), and Exhibits A and B. Exhibit 2. Tr. 27. Tr. 32–33. Tr. 57. Tr. 42. Tr. 38–39. Tr. 55. Tr. 49–50. Tr. 57–58. Tr. 57–59. Department of Navy v. Egan, 484 U.S. 518, 528 (1988) (“it should be obvious that no one has a ‘right’ to th a security clearance”); Duane v. Department of Defense, 275 F.3d 988, 994 (10 Cir. 2002) (no right to a security clearance). 484 U.S. at 531. Directive, ¶ 3.2. Directive, ¶ 3.2. ISCR Case No. 02-18663 (App. Bd. Mar. 23, 2004). Directive, Enclosure 3, ¶ E3.1.14. Directive, Enclosure 3, ¶ E3.1.15. Directive, Enclosure 3, ¶ E3.1.15. Egan, 484 U.S. at 531. ISCR Case No. 01-20700 (App. Bd. Dec. 19, 2002) (citations omitted). Executive Order 10865, § 7. AG ¶¶ 15, 16, and 17 (setting forth the concern and the disqualifying and mitigating conditions). AG ¶ 15. AG ¶ 16(g). AG ¶¶ 25(a), (c), and (h). AG ¶ 26(a)–(d). AG ¶ 2(a)(1)–(9).