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ISCR Case 18-00081 · CASE

ISCR Case 18-00081denied

Case Headnote

ISCR Case No. 18-00081

deniedAug 29, 2018· Hon. LeRoy F. Foreman· hearing

Synopsis

The applicant, a 30-year-old employee of a federal contractor, faced security concerns under Guideline H due to past drug involvement, including a positive drug test for marijuana in 2016. Despite acknowledging his drug use and completing a court-ordered program, the judge found insufficient evidence of lifestyle changes or a pattern of abstinence, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant's drug involvement was recent and frequent, with his last use occurring less than two years prior to the hearing.
He failed to demonstrate significant lifestyle changes or a commitment to abstain from drug use.
The applicant could not recall the names of friends with whom he used marijuana, indicating a lack of awareness of his environment.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedSubstance Misuse
AG ¶ 25(b)raisedTesting Positive for an Illegal Drug
AG ¶ 25(c)raisedIllegal Possession of a Controlled Substance

Mitigating

AG ¶ 26(a)rejectedBehavior Unlikely to RecurThe applicant's drug use was recent and frequent.
AG ¶ 26(b)rejectedAcknowledgment and Actions to Overcome Drug InvolvementThe applicant did not provide evidence of significant lifestyle changes or a signed statement of intent to abstain.

Key Rule Quoted

“"[N]o one has a ‘right’ to a security clearance."”
Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedMar 2, 2018
Answer filedMar 20, 2018
Hearing heldJun 11, 2018
Decision dateAug 29, 2018

Cite For

Denial of Security Clearance Due to Recent Drug Involvement Under Guideline H
Insufficient Evidence of Lifestyle Changes to Mitigate Drug Use Concerns
Importance of Demonstrating a Pattern of Abstinence and Commitment to Avoid Drug Use

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: denied

The judge found that the applicant's drug involvement raised significant security concerns under Guideline H. The applicant admitted to using marijuana frequently and tested positive for it while employed by a federal contractor. The judge concluded that the applicant did not mitigate these concerns, resulting in a denial of the security clearance.

1.a Applicant was charged with possession of marijuana in March 2011.
Finding: Against Applicant
Substance / event: Marijuana
Use level: Frequent
Response: Admitted
Disqualifying (¶25):
(a) any substance misuse
(b) testing positive for an illegal drug
(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia
Mitigating applied (¶26): —
Mitigation: —
1.b He used marijuana in late 2016 during a beach trip with friends, and then failed a urinalysis administered by his employer a day or two later.
Finding: Against Applicant
Substance / event: Drug Test FailureWHILE CLEARED
Use level: Not Applicable
Response: Admitted
Disqualifying (¶25):
(a) any substance misuse
(b) testing positive for an illegal drug
(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia
Mitigating applied (¶26): —
Mitigation: —
1.c He has acknowledged his marijuana involvement, but he has not changed his lifestyle or environment.
Finding: Against Applicant
Substance / event: Unspecified Drug Involvement
Use level: Unspecified
Response: Admitted
Disqualifying (¶25):
(a) any substance misuse
(b) testing positive for an illegal drug
(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia
Mitigating applied (¶26): —
Mitigation: —

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant was charged with possession of marijuana in March 2011.	Against Applicant	Marijuana	Frequent	Admitted	(a) any substance misuse (b) testing positive for an illegal drug (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	He used marijuana in late 2016 during a beach trip with friends, and then failed a urinalysis administered by his employer a day or two later.	Against Applicant	Drug Test FailureWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse (b) testing positive for an illegal drug (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.c	He has acknowledged his marijuana involvement, but he has not changed his lifestyle or environment.	Against Applicant	Unspecified Drug Involvement	Unspecified	Admitted	(a) any substance misuse (b) testing positive for an illegal drug (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—

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: )

)

[Redacted] )

ISCR Case No. 18-00081

) Applicant for Security Clearance )

For Government: Brittany Muetzel, Esq., Department Counsel For Applicant: Pro se

______________

Decision ______________

FOREMAN, LeRoy F., Administrative Judge:

This case involves security concerns raised under Guideline H (Drug Involvement and Substance Abuse). Eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted a security clearance application on September 13, 2016. On March 2, 2018, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline H. The DOD CAF acted under Executive Order (Exec. Or.) 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) promulgated in Security Executive Agent Directive 4, National Security Adjudicative Guidelines (December 10, 2016), for all adjudicative decisions on or after June 8, 2017.

08/29/2018

Applicant answered the SOR on March 20, 2018, and requested a hearing before an administrative judge. Department Counsel was ready to proceed on April 6, 2018, and the case was assigned to me on April 12, 2018. On May 18, 2018, the Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for June 11, 2108. I convened the hearing as scheduled. Government Exhibits (GX) 1 through 3 were admitted in evidence without objection. Applicant testified but did not present the testimony of any other witnesses or submit any documentary evidence. I kept the record open until June 25, 2018, to enable him to submit documentary evidence. He timely submitted Applicant’s Exhibit (AX) A, which was admitted without objection. DOHA received the transcript (Tr.) on June 19, 2018.

Findings of Fact1

In Applicant’s answer to the SOR, he admitted all the allegations. His admissions in his answer and at the hearing are incorporated in my findings of fact.

Applicant is a 30-year-old employee of a federal contractor. He has worked for his current employer since October 2017. (Tr. 21.) He worked for another federal contractor from July 2016 until he began his current job. He previously applied for a security clearance and his application was denied in May 2016.

Applicant has never married. He has lived with a cohabitant since February 2016. He has a three-year-old son. He attended a community college from August 2007 to May 2009 and a university from August 2008 to February 2011, but he has not received a degree. He testified that he dropped out of college because of low grades caused by his lack of interest. (Tr. 36.)

Applicant was charged with possession of marijuana in March 2011. He was given first-offender status and required to perform community service, attend Alcoholics Anonymous (AA) meetings, and participate in drug-education classes. He completed the first-offender program and the charges were dismissed. (GX 2 at 9; GX 3.) He has never received counseling or treatment, except for the court-ordered programs in the first-offender program. (GX 2 at 10.)

Applicant purchased and used marijuana once or twice a week from March 2008 to February 2011. He testified that he stopped using marijuana to improve his job opportunities. He used it in late 2016 during a beach trip with friends, and then failed a urinalysis administered by his employer a day or two later. (Tr. 23-26, 31; GX 2 at 9-10.)

Applicant could not remember the names of the friends with whom he smoked marijuana in 2016. He testified he “wasn’t really thinking” when he used it in 2016, and that he “just figured it was a harmless use.” (Tr. 28.) He also testified at the hearing that he has not used marijuana since 2016. (Tr. 31.) He was tested for drug use when he

1 Applicant’s personal information is extracted from his security clearance application (GX 1) unless otherwise indicated by a parenthetical citation to the record.

was hired by his current employer, and the test was negative. (Tr. 33-34; AX A.) When asked what lifestyle changes he had made since his last use of marijuana, he testified that “nothing of significance” had changed. (Tr. 35.)

Policies

“[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 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 have access to such information.” Id. at 527. The President has 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.” Exec. Or. 10865 § 2.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available and reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information.

Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance 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.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 15- 01253 at 3 (App. Bd. Apr.20, 2016).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005).

An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531.

Analysis

Guideline H, Drug Involvement and Substance Abuse

The concern under this guideline is set out in AG ¶ 24:

The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, and the use of other substances that cause physical or mental impairment or are used in a manner inconsistent with their intended purpose can raise questions about an individual's reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person's ability or willingness to comply with laws, rules, and regulations. Controlled substance means any "controlled substance" as defined in 21 U.S.C. 802. Substance misuse is the generic term adopted in this guideline to describe any of the behaviors listed above.

Applicant’s admissions in his answer to the SOR and at the hearing establish the following potentially disqualifying conditions:

AG ¶ 25(a): any substance misuse;

AG ¶ 25(b): testing positive for an illegal drug; and

AG ¶ 25(c): illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia.

The following mitigating conditions are potentially applicable:

AG ¶ 26(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; and

AG ¶ 26(b): the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence, including, but not limited to:

(1) disassociation from drug-using associates and contacts;

(2) changing or avoiding the environment where drugs were used; and

(3) providing a signed statement of intent to abstain from all drug involvement and substance misuse, acknowledging that any future involvement or misuse is grounds for revocation of national security eligibility.

Neither mitigating condition is established. Applicant’s marijuana involvement was recent, frequent, and did not occur under unusual circumstances making recurrence unlikely. His last use was less than two years ago and occurred while he was employed by a federal contractor and after the birth of his son. He accepted an invitation to use marijuana from “friends,” but he could not remember their names. He has acknowledged his marijuana involvement, but he has not changed his lifestyle or environment. To the contrary, he testified that “nothing of significance” has changed in his life. He has not provided the statement of intent provided for in AG ¶ 26(b)(3).

Whole-Person Concept

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. In applying the whole- person concept, an 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 and applying the adjudicative factors in AG ¶ 2(d).2

I have incorporated my comments under Guideline H in my whole-person analysis and applied the adjudicative factors in AG ¶ 2(d). Applicant was candid and sincere at the hearing, but he also seemed passive and unfocused. After weighing the disqualifying and mitigating conditions under Guideline H, and evaluating all the evidence in the context of the whole person, I conclude Applicant has not mitigated the security concerns raised by his drug involvement.

2 The factors are: (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.

Formal Findings

I make the following formal findings on the allegations in the SOR:

Paragraph 1, Guideline H:

AGAINST APPLICANT

Subparagraphs 1.a-1.c:

Against Applicant

Conclusion

I conclude that it is not clearly consistent with the national security interests of the United States to grant Applicant eligibility for access to classified information. Clearance is denied.

LeRoy F. Foreman Administrative Judge