ISCR Case No. 97-0628.h1

DATE: January 29, 1998 In Re: SSN: Applicant for Security Clearance ISCR Case No. 97-0628 DECISION OF ADMINISTRATIVE JUDGE RICHARD A. CEFOLA

FOR GOVERNMENT Martin H. Mogul, Esquire, Department Counsel FOR APPLICANT Pro Se

On September 15, 1997, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the interests of national security to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked. The SOR is attached. Applicant filed an Answer to the SOR on October 3, 1997. Applicant elected to have this case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's File of Relevant Material (FORM) on November 7, 1997. Applicant was instructed to submit objections or information in rebuttal, extenuation or mitigation within 30 days of receipt of the FORM. Applicant received his copy on November 11, 1997, and Applicant's reply was received on or about December 17, 1997. The case was received by the undersigned for resolution on December 19, 1997. The issue raised here is whether the Applicant's admitted drug usage militates against the granting of a security clearance.

The following Findings of Fact are based on Applicant's Answer to the SOR, the File of Relevant Material and Applicant's Response. The Applicant is 34 years of age, has a Masters Degree in Chemistry, and is employed by a defense contractor who seeks a security clearance on behalf of the Applicant. Criterion H - Drug involvement 1.a.~1.e. The Applicant used marijuana, with varying frequency from about 1980, when he was in high school, until his last usage in the Summer of 1997 (Government Exhibit (GX) 5 at page 1). He "[s]moked marijuana regularly (weekly) until [the] late eighties" (GX 5 at page 1). His use of marijuana "curtailed after [the] late eighties" until at least the date he executed his August 11, 1997, sworn statement (GX 5 at pages 1 and 2). The Applicant avers in his response to the Governments FORM that he "would not use marijuana after October 1997 . . . [a] demonstrated intent not to abuse any drugs in the future" (Applicant's Response (Response), and GX 5 at page 1). The Applicant also used cocaine, with varying frequency, at times three times yearly, throughout the 1980's (GX 5 at page 1). He further used various forms of amphetamines, and some barbiturates in the early 1980's (GX 3, and GX 5 at page 1). Mitigation The Applicant avers that he will not use drugs in the future.

Enclosure 2 and Section F.3. of the 1992 Directive set forth both policy factors, and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. The conditions should be followed in every case according to the pertinent criterion, however, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on his own common sense. Because each security clearance case presents its own unique facts and circumstances, it should not be assumed that these conditions exhaust the realm of human experience, or apply equally in every case. Conditions most pertinent to evaluation of this case are: Drug Involvement Conditions that could raise a security concern: (1) any drug abuse (drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction); (2) illegal drug possession . . . . Condition that could mitigate security concerns: (3) a demonstrated intent not to abuse any drugs in the future; As set forth in the Directive,"[each 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 in enclosure 2, including as appropriate: a. Nature and seriousness of the conduct and surrounding circumstances. b. Frequency and recency of the conduct. c. Age of the applicant. d. Motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequence involved. e. Absence or presence of rehabilitation. f. Probability that circumstances or conduct will continue or recur in the future. The Administrative Judge, however, can only draw those inferences or conclusions that have a reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. The Government must make out a prima facie case under Criterion H (drug involvement) which establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between an applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required. Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the past adverse conduct, is unlikely to be repeated, and that the Applicant presently qualifies for a security clearance. The improper or illegal involvement with drugs, raises questions regarding an individual's willingness or ability to protect classified information. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations at all times and in all places. If an applicant has demonstrated a lack of respect for the law in his private affairs, then there exists the possibility that an applicant may demonstrate the same attitude towards security rules and regulations.

The Applicant used cocaine throughout the 1980's, and also used marijuana over a period of about 17 years. In light of the fact that his marijuana use ended only a little more than four months ago (the date of the Applicant's Response to the Government's FORM ends the time line used for adjudication purposes in this case), and that in his August 11, 1997, sworn statement he averred that might use the drug until October; I must conclude that the Applicant's fairly recent use of marijuana is of present security significance. Considering all the evidence, the Applicant has not rebutted the Government's prima facie case regarding his drug involvement. The Applicant has thus not met the mitigating conditions of Criterion H, and of Section F.3. of the Directive. Accordingly, he has not met his ultimate burden of persuasion under Criterion H.

Formal Findings required by paragraph 25 of Enclosure 3 of the Directive are: Paragraph 1: AGAINST THE APPLICANT a. Against the Applicant. b. For the Applicant. c. Against the Applicant. d. Against the Applicant. e. Against the Applicant. Factual support and reasons for the foregoing are set forth in FINDINGS OF FACT and CONCLUSIONS, supra.

In light of the circumstances presented by the record in this case, it is not clearly consistent with the interests of national security to grant or continue a security clearance for the Applicant. Richard A. Cefola Administrative Judge

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