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ISCR 97-0800.h1: Guideline H security clearance hearing, granted (1998) · CASE

ISCR Case 97-0800.h1granted

Case headnote

ISCR Case No. 97-0800.h1

grantedApr 20, 1998· Hon. John Grattan Metz, Jr.· hearing

Summary

A 40-year-old defense contractor employee was granted a security clearance despite concerns raised under Guideline H (Drug Involvement). The Statement of Reasons alleged the applicant had purchased marijuana and used it approximately ten times over the last ten years. These allegations triggered Disqualifying Condition H.1.

However, the judge applied Mitigating Conditions H.1, H.2, and H.3. The applicant credibly asserted an intent to abstain from future drug use, and the judge found his past marijuana use to be infrequent and isolated. The last reported use occurred over a year before the clearance decision.

Crucially, there was no evidence indicating physical or psychological dependence on marijuana. Based on these factors, the judge concluded that the security concerns were sufficiently mitigated, and the security clearance was granted.

Why the applicant prevailed

The applicant demonstrated a credible intent not to use drugs in the future.
The applicant's drug use was infrequent and isolated, with the last use occurring over a year prior to the decision.
There was no evidence of physical or psychological dependence on marijuana.

Conditions referenced

Disqualifying

H.1raisedAny Drug Abuse

Mitigating

H.1appliedThe Drug Involvement Was Not Recent
H.2appliedThe Drug Involvement Was an Isolated or Infrequent Event
H.3appliedA Demonstrated Intent Not to Abuse Any Drugs 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 the Navy v. Egan, 484 U.S. 518, 531 (1988)

Procedural posture

SOR issuedDec 5, 1997
Answer filedDec 18, 1997Applicant requested an administrative decision on the record.
Hearing held—No hearing was held; decision made on the record.
Decision dateApr 20, 1998

Cite for

Mitigating Conditions for Infrequent Drug Use Under Guideline H
Credibility of Applicant's Intent to Abstain From Drug Use
Consideration of the Recency of Drug Involvement in Security Clearance Decisions

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: 40: “Applicant--a 40-year old employee of a defense contractor--seeks access to classified information.”

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's history of marijuana use was infrequent and isolated, with the last use occurring over a year ago. The applicant demonstrated a credible intent not to use drugs in the future, leading to a decision in favor of 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

DATE: April 20, 1998

In Re: ----------------------- SSN: ----------- Applicant for Security Clearance

ISCR Case No. 97-0800 DECISION OF ADMINISTRATIVE JUDGE JOHN G. METZ, JR.

FOR GOVERNMENT William S. Fields, Esquire, Department Counsel FOR APPLICANT Pro Se

STATEMENT OF CASE

On 5 December 1997, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant, stating that DOHA could not make the preliminary affirmative finding(1) that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. On 18 December 1997, Applicant answered the SOR and requested an administrative decision on the record. The Applicant did not respond to the Government's File of Relevant Material (FORM)--issued 27 January 1998; the record in this case closed 6 March 1998, the day the response was due at DOHA. The case was assigned to me on 9 April 1998. I received the case on the same day to determine whether clearance should be granted, continued, denied or revoked.

FINDINGS OF FACT

Applicant admitted using marijuana over the stated period, but denied ever purchasing marijuana; accordingly, I incorporate the admissions as findings of fact. Applicant--a 40-year old employee of a defense contractor--seeks access to classified information. In May 1997, Applicant went to work for his employer, knowing he would ultimately require a clearance to perform his duties. On 23 June 1997, Applicant executed a Questionnaire for National Security Positions (SF 86)(Item 4) to begin his background investigation. He truthfully disclosed that he had been fired from a job in the last seven years, and-- within the same seven years--had used marijuana approximately ten times. On 8 October 1997, Applicant described his marijuana abuse history (Item 5): I first used marijuana while in the Navy, approx[imately] 1977. I really can't estimate the amount of times used. In the last 10 years I have smoked marijuana once or twice a year, if it was offered to me socially at a celebration or holiday. On these occasions I would have 2-3 hits simply because it felt good, it makes me feel giddy, and in a good mood. I have never been dependent on marijuana and have not tried any illegal drugs. I have never had any mental or psychological treatment or arrests or incidents related to the use of illegal drugs. I never used marijuana before or during work hours. The very last time I smoked marijuana was March 1997 when my brother brought it from California. In the last 10 years I have not purchased,(2) produced, trafficked, or sold any illegal substances and I do not intend to use marijuana or any illegal substance in the future. The reason I will not use them again is because of the risks of loosing my job and I could not face my family and friends if I lost my job due to a couple of hits of marijuana. I am 40 years old, it's time to stop. Also for my health. I requested assistance for writing this statement from [Special Agent]. Applicant's answer expanded on his decision to stop using marijuana: Prior to starting work at [my company] in May 1997, I decided to permanently stop using marijuana. I have children at home that I don't want to be exposed. I also knew that I had to stop in order to obtain a security clearance (my brother- in-law told me--He holds a similar security clearance). I was proud to find out the my job required me to have a security clearance. It made me feel privileged.

POLICIES

Enclosure 2 of the Directive sets forth adjudicative guidelines to be considered in evaluating an individual's security eligibility. The Administrative Judge must take into account the conditions raising or mitigating security concerns in each area applicable to the facts and circumstances presented. Each adjudicative decision must also assess the factors listed in Section F.3. and in Enclosure (2) of the Directive. Although the presence or absence of a particular condition for or against clearance is not determinative, the specific adjudicative guidelines should be followed whenever a case can be measured against this policy guidance, as the guidelines reflect consideration of those factors of seriousness, recency, motivation, etc. Considering the evidence as a whole, the following adjudication policy factors are most pertinent to this case: DRUG INVOLVEMENT (CRITERION H) Improper or illegal involvement with drugs raises questions regarding an individual's willingness or ability to protect classified information. Drug abuse or dependence may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information. Conditions that could raise a security concern and may be disqualifying include: (1) any drug abuse; Conditions that could mitigate security concerns include: (1) the drug involvement was not recent; (2) the drug involvement was an isolated or infrequent event; (3) a demonstrated intent not to abuse any drugs in the future; Burden of Proof Initially, the Government must prove controverted facts alleged in the Statement of Reasons. If the Government meets that burden, the burden of persuasion then shifts to the applicant to establish his security suitability through evidence of refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of disqualifying conduct, it is nevertheless clearly consistent with the national interest to grant or continue the security clearance. A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. Where facts proven by the Government raise doubts about an applicant's judgment, reliability or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he or she is nonetheless security worthy. As noted by the United States Supreme Court in Department of the Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security-clearance determinations should err, if they must, on the side of denials."

CONCLUSION

The Government has established its case under criterion H. Applicant's approximately twenty year history of drug abuse--in apparent disregard of the illegality of that drug abuse--raises doubts about his continued fitness for access to classified information. However, I find the drug abuse mitigated. His abuse over the last ten years was both infrequent and isolated. He last used marijuana in March 1997, a year ago, and states an intent to use no drugs in the future. I find Applicant's stated intent credible in part because he disclosed this--and other--adverse information on his clearance application and in part because of the circumstances of his decision to stop using marijuana. Further, there is no evidence in the record to support a conclusion that Applicant has any physical or psychological dependence on marijuana. I accept his claim that he will not use drugs in the future. I find criterion H. for Applicant.

FORMAL FINDINGS

Paragraph 1. Criterion H: FOR THE APPLICANT Subparagraph a: For the Applicant Subparagraph b: For the 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 a security clearance for Applicant. John G. Metz, Jr. Administrative Judge 1. Required by Executive Order 10865, as amended and Department of Defense Directive 5220.6, dated January 2, 1992--and amended by Change 3 dated 16 February 1996 (Directive). 2. The sole basis for the Government's allegation that Applicant has purchased marijuana seems to be the inference from this statement that sometime more than ten years ago Applicant bought marijuana. In the face of Applicant's denial of the allegation, I find the inference unsufficient to establish the allegation. In any event, I would consider a purchase of marijuana more than ten years ago to have no security significance.

FOOTNOTES

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