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ISCR Case 15-01148.h1 — CASE

ISCR Case 15-01148.h1granted

Case Headnote

ISCR Case No. 15-01148.h1

grantedApr 29, 2016· Hon. Edward W. Loughran· hearing

Summary

This case involved a 24-year-old engineer for a defense contractor seeking a security clearance under Guideline H (Drug Involvement). The Statement of Reasons alleged that the applicant used marijuana, LSD, hallucinogenic mushrooms, and cocaine during high school and college. These allegations raised disqualifying conditions AG ¶ 25(a) and AG ¶ 25(c).

However, the applicant demonstrated significant mitigating factors. He had not used illegal drugs since October 2013 and provided a signed statement of intent to remain drug-free, which included automatic clearance revocation for any violation. Furthermore, the applicant no longer associated with friends who used drugs and had relocated to a different geographic area.

The judge found that these actions effectively mitigated the security concerns related to his past drug involvement, applying mitigating conditions AG ¶ 26(a) and AG ¶ 26(b). Consequently, the applicant was granted eligibility for access to classified information.

Why the Applicant Prevailed

The applicant has not used illegal drugs since October 2013.
He demonstrated a commitment to remaining drug-free by signing a statement of intent with automatic revocation of clearance for any violation.
The applicant no longer associates with friends who use drugs and has moved to a different geographic location.

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 in the Future

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural Posture

SOR issuedAug 18, 2015
Answer filedSep 3, 2015Applicant elected to have the case decided on the written record.
Hearing held—No hearing; decided on the written record.
Decision dateApr 29, 2016

Cite For

Mitigation of Drug Involvement Under Guideline H
Commitment to Abstain From Illegal Drug Use
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 security concerns related to his past use of illegal drugs, including marijuana, LSD, hallucinogenic mushrooms, and cocaine. The applicant demonstrated an appropriate period of abstinence and a commitment to remaining drug-free, leading to a decision to grant eligibility for a security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana, LSD, hallucinogenic mushrooms, and cocaine when he was in high school and college.	For Applicant	Marijuana	Occasional	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	—
1.b	Applicant used marijuana, LSD, hallucinogenic mushrooms, and cocaine when he was in high school and college.	For Applicant	LSD	Occasional	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	—
1.c	Applicant used marijuana, LSD, hallucinogenic mushrooms, and cocaine when he was in high school and college.	For Applicant	Psilocybin	Occasional	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	—
1.d	Applicant used marijuana, LSD, hallucinogenic mushrooms, and cocaine when he was in high school and college.	For Applicant	Cocaine	Occasional	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur (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. 15-01148 ) Applicant for Security Clearance )

For Government: Candace L. Garcia, Esq., Department Counsel For Applicant: Pro se

04/29/2016 ______________

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 August 18, 2015, 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 September 3, 2015, and elected to have the case decided on the written record in lieu of a hearing. The Government’s written case was submitted on October 27, 2015. A complete copy of the file of relevant material (FORM) was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on November 9, 2015. He responded with a letter that I have marked Applicant’s Exhibit (AE) A. The case was assigned to me on February 17, 2016. The Government exhibits included in the FORM and AE A are admitted without objection.

FINDINGS OF FACT

Applicant is a 24-year-old engineer for a defense contractor. He has worked for his current employer since July 2014. He is applying for security clearance for the first time. He has a bachelor’s degree that was awarded in 2014. He has never married and he has no children.1

Applicant used illegal drugs while he was in high school and college. He mostly smoked marijuana, but he also used LSD, hallucinogenic mushrooms, and cocaine on two occasions each. He occasionally purchased marijuana for his personal use. His drug use became less frequent as he progressed through college, and he has not used any illegal drugs since about October 2013.2

Applicant listed his illegal drug use on his Questionnaire for National Security Positions (SF 86), which he submitted in July 2014, and he fully discussed it during his background interview in September 2014. He moved to a different geographic location for his job. He has telephonic or electronic contact about once a month with a friend that he smoked marijuana with on one occasion. He has only seen the friend twice in a year, and they do not discuss drugs. Applicant no longer associates with his other friends who used drugs. Applicant committed to remaining drug free. He now has a greater appreciation of the requirements and responsibilities of holding a security clearance. He signed a statement of intent not to use illegal drugs in the future with automatic revocation of clearance for any violation.3

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

Applicant used marijuana, LSD, hallucinogenic mushrooms, and cocaine when he was in high school and college. 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;

(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

(4) a signed statement of intent with automatic revocation of clearance for any violation.

Applicant has not used any illegal drugs since October 2013. He moved to another geographic location for his job, and except for occasional contact with a friend that he smoked marijuana with on one occasion, he no longer associates with friends who use drugs. He now has a greater appreciation of the requirements and responsibilities of holding a security clearance, and he is committed to remaining drug free. He signed a statement of intent not to use illegal drugs in the future with automatic revocation of clearance for any violation. 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 this whole-person analysis.

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

Subparagraphs 1.a-1.d: 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 Item 3. 2 Items 2-4; AE A. 3 Items 2-4; AE A. 4 Drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.