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ISCR 05-16318.h1: Guideline H security clearance hearing, granted, remanded on appeal (2006) · CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date10/31/2006
StatusgrantedRemanded on appeal
LevelHEARING
TypeSTANDARD ISCR
Remanded on appeal
The DOHA Appeal Board set this decision aside and sent the case back for further consideration, so the outcome shown here is not final. The Appeal Board decided on 6/21/2007.
Read the appeal decision →
Related decisionsSee the hearing decision (Case 05-16318.h1) →See the appeal decision (Case 05-16318.a1) →
From the decisionFacts this decision states. Hover a value to see the exact sentence.
Age at decision27
Participants
Judge: Christopher Graham
Applicant's Counsel: Andrew F. Reish
Guidelines Evaluated
- HDrug Involvement & Substance Misuse · For Applicant
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ISCR Case 05-16318.h1grantedRemanded on appeal

Case headnote

ISCR Case No. 05-16318.h1

grantedRemanded on appealOct 31, 2006· Hon. Christopher Graham· hearing

Summary

This case concerns a 27-year-old vice president of contracts for a federal contractor, whose security clearance was GRANTED despite a history of drug involvement under Guideline H. The Statement of Reasons detailed multiple instances of illegal drug use, primarily occurring during his high school and college years. These allegations included using marijuana with varying frequency between 1994 and August 2004, purchasing marijuana, and abusing unprescribed Ritalin from October 1995 to December 2001.

Further allegations noted his abuse of Percocet until 2000, two instances of cocaine use between 1999 and December 2001, and hashish use in 2000. He also used MDMA (Ecstasy) twice between March and May 1999, and psilocybin (mushrooms) and/or LSD at least five times between 1995 and 2000. Disqualifying conditions E2.A8.1.2.1 and E2.A8.1.2.2 were raised.

However, mitigating condition E2.A8.1.3.1 was applied. The judge found that the applicant had been drug-free for over two years, demonstrating a commitment to sobriety. His drug use was primarily confined to his youth and did not extend into his adult life. A significant promotion and increased responsibilities at work motivated his decision to cease drug use in August 2004. The judge concluded that the applicant demonstrated maturity and a stable lifestyle since quitting drugs, leading to the granting of his security clearance.

Why the applicant prevailed

The applicant has been drug-free for over two years, demonstrating a commitment to sobriety.
The applicant's drug use was primarily during his youth and did not continue into his adult life.
The applicant's promotion and increased responsibilities motivated his decision to quit using drugs.

Conditions referenced

Disqualifying

E2.A8.1.2.1raisedAny Drug Abuse
E2.A8.1.2.2raisedIllegal Drug Possession, Including Cultivation, Processing, Manufacture, Purchase, Sale, or Distribution

Mitigating

E2.A8.1.3.1appliedThe Drug Involvement Was Not Recent

Key rule quoted

“"Consider a person drug-free for at least two years, marijuana was used regularly, or any other drug was used occasionally, and there are no aggravating circumstances."”

Procedural posture

SOR issuedJan 24, 2006
Answer filedFeb 14, 2006
Hearing heldSep 19, 2006
Decision dateOct 31, 2006

Cite for

Evaluation of Drug Involvement Under Guideline H
Consideration of the Applicant's Maturity and Lifestyle Changes
Impact of a Significant Promotion on Drug Use Cessation

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: 27: “Applicant is a married, 27-year-old vice president of contracts for a federal contractor.”

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: granted

The applicant, who abused illegal drugs over a ten-year period, demonstrated significant personal growth and maturity, ceasing drug use in August 2004. The judge found that the applicant successfully mitigated the drug involvement security concerns, leading to the granting of 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

DATE: October 31, 2006 In re: ------------------------------- SSN: ----------- Applicant for Security Clearance

ISCR Case No. 05-16318 DECISION OF ADMINISTRATIVE JUDGE CHRISTOPHER GRAHAM

FOR GOVERNMENT Fahryn Hoffman, Esq., Department Counsel FOR APPLICANT Andrew F. Reish, Esq. SYNOPSIS Applicant is vice president of contracts for a federal contractor. He abused illegal drugs over a ten-year period, mostly in high school and college. He quit using illegal substances in August 2004, contemporaneous with receiving a substantial promotion from his employer with added responsibilities. He stated an intention to not use drugs in the future. He demonstrated more mature judgments as his responsibilities increased. Drug usage was not recent and he successfully mitigated the drug involvement security concerns. Clearance is granted.

STATEMENT OF CASE

The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. As required by Department of Defense Directive 5220.6 ¶ E3.1.2 (Jan. 2, 1960), as amended, DOHA issued a Statement of Reasons (SOR) on January 24, 2006 detailing the basis for its decision - security concerns raised under Guideline H (Drug Involvement) of the Directive. Applicant answered the SOR in writing on February 14, 2006, and elected to have a hearing before an administrative judge. The case was assigned to me on July 11, 2006. Notice of hearing was issued August 25, 2006. I convened a hearing on September 19, 2006, to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. The government offered one exhibit, Applicant offered six exhibits, and all exhibits were admitted without objection. DOHA received the hearing transcript (Tr.) on September 29, 2006.

FINDINGS OF FACT

Applicant admitted all allegations in the SOR. (1) He listed the incidents set forth in the SOR in his security clearance application. (2) He admitted this conduct during his testimony. (3) These admissions are incorporated herein. In addition, after thorough and careful review of the evidence, I make the following findings of fact. Applicant is a married, 27-year-old vice president of contracts for a federal contractor. He has a double major in business, and finance and international business. (4) Applicant used marijuana with varying frequency between 1994 and August 2004. (5) He purchased marijuana. (6) He abused the prescription drug Ritalin (7) that had not been prescribed for him from October 1995 to December 2001, and the prescription drug Percocet (8) until 2000. He twice tried cocaine between 1999 and December 2001, and used hashish in 2000. (9) Between March and May 1999, he twice used MDMA (Ecstasy). (10) Between 1995 and 2000, he used psilocybin (mushrooms) and/or LSD at least five times. (11) The majority of Applicant's drug use occurred between 1994 and December 2001, when he was in high school and college. He used drugs in social settings, with friends at parties, just "hanging out." (12) After graduation, he only used marijuana. He has taken no alcohol education classes or treatment programs. (13) He never went to school or work while under the influence of drugs. (14) Applicant used drugs because of "youth, curiosity, being social," and for experimental purposes. (15) He has not used any illegal substances since August 2004. (16) His promotion to his current position was the "driving force" behind his decision to quit abusing drugs. (17) "I was promoted. I now have people that report directly to me in my job. I've gotten a substantial salary increase. I bought a car. I bought a house. My wife is pregnant. These are the big changes in my life." (18) He stated his intent not to use illegal drugs in the future. (19) Two of Applicant's co-workers (one was his supervisor) testified that Applicant was "mature for his age and experience," (20) had "impressive knowledge level for his job," (21) had "tremendous work ethic," (22) and "is reliable, trustworthy, and will maintain classified information." (23)

POLICIES

"No one has a 'right' to a security clearance." (24) 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 occupy a position . . . that will give that person access to such information." (25) The President authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information "only upon a finding that it is clearly consistent with the national interest to do so." (26) Each security clearance decision "must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy." (27) An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." (28) Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive: nature and seriousness of the conduct and surrounding circumstances; frequency and recency of the conduct; age of the Applicant; motivation of the applicant, and the extent to which the conduct was negligent, wilful, voluntary, or undertaken with knowledge of the consequences involved; absence or presence of rehabilitation; and probability that the circumstances or conduct will continue or recur in the future. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. (29) 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.

CONCLUSION

Guideline H--Drug Involvement The government established its case under Guideline H. Drug Involvement Disqualifying Condition (DI DC) E2.A8.1.2.1. (Any drug abuse) (30) and DI DC E2.A8.1.2.2. (Illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution) are applicable, because Applicant admitted drug use, possession, and purchase. Drug Involvement Mitigating Condition (DI MC) E2.A8.1.3.1. (The drug involvement was not recent) applies. Applicant has been drug free for over two years. The Directive does not define "recent." In ISCR Case No. 04-12648 at 9 (App. Bd. Oct. 20, 2006), the Appeal Board declined to set any "bright-line" rule as to what constitutes "recent" under the Directive regarding illegal drug use. See, e.g., ISCR Case No. 02-10454 (November 23, 2004) at p. 4. The Board has indicated the matter requires an Administrative Judge to evaluate the record evidence as a whole and reach a reasonable conclusion as to the recency of an applicant's conduct. See, e.g., ISCR Case No. 02-22173 (May 26, 2004) at p. 4. The application of a mitigating condition like Guideline H Mitigating Condition 1 can depend upon a number of factors in addition to the simple passage of time. See, e.g., ISCR Case No. 98-0611 (November 1, 1999) at p. 2. The interval of time presented in this case, slightly less than two and a half years, must be evaluated in light of other factors in the case. (31) "Consider a person drug-free for at least two years, marijuana was used regularly, or any other drug was used occasionally, and there are no aggravating circumstances. There was no evidence of psychological or physical dependence at the time subject was using drugs, and subject has demonstrated a stable life style with satisfactory employment record since then." (32) Applicant fits this profile. Applicant's use of marijuana fell between occasional and frequent use. All other drugs were experimental use. I conclude guideline H for Applicant.

WHOLE PERSON ANALYSIS

The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance." (33) "Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination." (34) In evaluating Applicant's case, I have considered the adjudicative process factors listed in the directive. (35) In addition to the disqualifying and mitigating conditions, I considered the "whole person" concept in evaluating Applicant's risk and vulnerability in protecting our national interests. (36) I considered his age (26), his education which includes two majors, his employment, and what might motivate him to stop his drug abuse. Candor with the government about a person's negatives is the crux of a trustworthiness determination. If a person discloses the adverse information about himself, he may be trusted with confidential or classified information. Applicant was completely truthful about his drug use, disclosing it on his security clearance application, admitting his usage in his answer to the SOR, and in his testimony. Even though his drug use extended over a ten-year period, most of this time he was in high school or college. The illegal use of drugs raises questions regarding an individual's willingness or ability to protect classified information. Moreover, impaired ability while under the influence of illegal drugs increases the risk of an unauthorized disclosure of classified material. Here, Applicant's motivation to use drugs was peer pressure and a desire to be sociable. In the last three years, Applicant has made significant changes in his life. He married in 2003. He discontinued use of marijuana in 2004. He bought a car and a home. He received a major promotion from his employer, one that carries with it increased responsibility for himself and other employees, and compensation. Applicant is now 26 and is a more mature decision- maker. He stated an intent not to use drugs in the future. I found his testimony to be both believable and credible. I believe Applicant will remain drug free in the future. I, therefore, have no reasonable and persistent doubts about Applicant's willingness and ability to protect classified information and to exercise the requisite good judgment and discretion expected of one in whom the government entrusts its interests. I conclude it is clearly consistent with the national interest to grant or continue Applicant's security clearance.

FORMAL FINDINGS

The following are my conclusions as to each allegation in the SOR: Paragraph 1. Guideline H: FOR APPLICANT Subparagraph 1.a. For Applicant Subparagraph 1.b. For Applicant Subparagraph 1.c. For Applicant Subparagraph 1.d. For Applicant Subparagraph 1.e. For Applicant Subparagraph 1.f. For Applicant Subparagraph 1.g. For Applicant Subparagraph 1.h. For Applicant

DECISION

In light of all of the circumstances in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is granted. Christopher Graham Administrative Judge 1. Answer to SOR, dated February 14, 2006, at 1; Tr. at 49. 2. Government Exhibit 1 (Security Clearance Application (SF 86), dated January 7, 2005) at 8-9. 3. Tr. at 57. 4. Tr. at 11-17. 5. Id. 6. Id. at 68. 7. Id. at 69. 8. Id. at 75-76. 9. Id. at 70-71. 10. Id. at 76-77. 11. Id. at 73. 12. Id. at 58. 13. Id. at 57-81. 14. Id. at 63-65. 15. Id. at 81. 16. Id. at 79-80. 17. Id. at 83-84. 18. Id. at 91. 19. Id. at 93-94. 20. Id. at 16. 21. Id. at 17. 22. Id. at 17, 37. 23. Id. at 19, 37. 24. Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 25. Id. at 527. 26. Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960). 27. Directive ¶ 6.3. 28. ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). 29. See Exec. Or. 10865 § 7. 30. E2.A8.1.1.3. Drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction. 31. ISCR Case No. 03- 02374 at 4 (App. Bd. Jan. 26, 11 2006) (Judge did not err by concluding drug use not recent with passage of slightly less than two and a half years between last use and hearing) (citing ISCR Case No. 02-10454 at 4 (App. Bd. Nov. 23, 2004)). See ISCR Case No. 98-0611 at 2 (App. Bd. Nov. 1, 1999) (not error for Judge to find that last marijuana use nine months before close of record was not recent). 32. See Department of Defense Study: Bosshardt, M. J., & Crawford, K. S. (1992). Revision of adjudicative guidelines for alcohol abuse, drug abuse, and mental/emotional disorders. (PERS-TR-92-003) Monterey, CA: Defense Personnel Security Research and Education Center. 33. Directive ¶ E2.2.1. 34. Id. 35. Id. 36. Id.

FOOTNOTES

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