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ISCR Case 18-00978 · CASE

ISCR Case 18-00978denied

Case Headnote

ISCR Case No. 18-00978

deniedOct 3, 2018· Hon. Richard A. Cefola· hearing

Synopsis

The applicant, a 55-year-old defense contractor employee, faced security concerns under Guidelines H (Drug Involvement), J (Criminal Conduct), and F (Financial Considerations) due to a history of drug use, including marijuana and methamphetamine, and two Chapter 7 bankruptcies. Despite demonstrating some financial stability, the judge found the applicant's recent drug involvement and criminal history raised significant doubts about her reliability and trustworthiness, leading to a denial of her security clearance.

Why the Applicant Was Denied

Applicant admitted to using marijuana and methamphetamine while holding a security clearance.
The applicant's drug involvement and criminal conduct were recent and raised significant security concerns.
The applicant failed to establish sufficient mitigation for her drug involvement and criminal conduct.

Conditions Referenced

Disqualifying

H.25.aappliedSubstance Misuse
H.25.cappliedIllegal Possession of a Controlled Substance
H.25.fappliedIllegal Drug Use While Holding a Security Clearance
J.31.aappliedPattern of Minor Offenses
J.31.bappliedEvidence of Criminal Conduct
F.19.aappliedInability to Satisfy Debts
F.19.cappliedHistory of Not Meeting Financial Obligations

Mitigating

F.20.arejectedBehavior Unlikely to Recur
F.20.brejectedConditions Beyond Control
F.20.cappliedFinancial Counseling Received
H.26.arejectedBehavior Unlikely to Recur
H.26.brejectedAcknowledgment and Actions Taken
J.32.arejectedTime Elapsed Since Criminal Behavior
J.32.brejectedCoercion Into Committing the Act
J.32.drejectedEvidence of Successful Rehabilitation

Key Rule Quoted

“Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

Procedural Posture

SOR issuedApr 20, 2018Amended on June 5, 2018
Answer filedMay 11, 2018Amended on June 25, 2018
Hearing heldAug 22, 2018
Decision dateOct 3, 2018

Cite For

Recent Drug Involvement While Holding a Security Clearance Under Guideline H
Criminal Conduct Raising Security Concerns Under Guideline J
Financial Difficulties Leading to Bankruptcy Under Guideline F

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 F · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant had filed for Chapter 7 bankruptcy twice due to financial difficulties stemming from job loss. However, the applicant has since received financial counseling and currently has no past-due debts, leading to a ruling in favor of the applicant regarding financial considerations under Guideline F.

3.a As the result of her 1996 arrest, Applicant lost her security clearance and job. This loss of income caused her to file for the protection of a chapter 7 Bankruptcy in 1996.
Finding: For Applicant
Type: Bankruptcy Filing
Response: Admitted
Disqualifying (¶19):
(a) inability to satisfy debts
(c) a history of not meeting financial obligations
Mitigating applied (¶20):
(a) behavior happened long ago / infrequent / unlikely to recur
(b) conditions largely beyond the person’s control; acted responsibly
(c) received/receiving counseling; problem being resolved
Mitigation:
Documented
Financial Counseling
Claimed
Other
3.b In 2017, Applicant lost her non-defense contractor job, and the resulting loss of income again forced her to file for the protection of a chapter 7 Bankruptcy.
Finding: For Applicant
Type: Bankruptcy Filing
Response: Admitted
Disqualifying (¶19):
(a) inability to satisfy debts
(c) a history of not meeting financial obligations
Mitigating applied (¶20):
(a) behavior happened long ago / infrequent / unlikely to recur
(b) conditions largely beyond the person’s control; acted responsibly
(c) received/receiving counseling; problem being resolved
Mitigation:
Documented
Financial Counseling
Claimed
Other

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
3.a	As the result of her 1996 arrest, Applicant lost her security clearance and job. This loss of income caused her to file for the protection of a chapter 7 Bankruptcy in 1996.	For Applicant	Bankruptcy Filing	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(a) behavior happened long ago / infrequent / unlikely to recur (b) conditions largely beyond the person’s control; acted responsibly (c) received/receiving counseling; problem being resolved	Documented Financial Counseling Claimed Other
3.b	In 2017, Applicant lost her non-defense contractor job, and the resulting loss of income again forced her to file for the protection of a chapter 7 Bankruptcy.	For Applicant	Bankruptcy Filing	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(a) behavior happened long ago / infrequent / unlikely to recur (b) conditions largely beyond the person’s control; acted responsibly (c) received/receiving counseling; problem being resolved	Documented Financial Counseling Claimed Other

Descriptive standardized rendering of a decided public case (Guideline F). The verbatim source decision is shown in full below.

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations related to drug involvement and substance misuse under Guideline H. The applicant admitted to using marijuana and methamphetamine while holding a security clearance, which raised significant security concerns. The judge concluded that the applicant's recent drug involvement did not meet the criteria for mitigation, leading to a denial of the security clearance.

1.a Applicant used marijuana, with varying frequency from about October of 1995 until October of 1996, while holding a security clearance.
Finding: Against Applicant
Substance / event: MarijuanaWHILE CLEARED
Use level: Frequent
Response: Admitted
Disqualifying (¶25):
(a) any substance misuse
(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia
(f) any illegal drug use while holding a clearance or sensitive position
Mitigating applied (¶26): —
Mitigation: —
1.b Applicant used methamphetamine while holding a security clearance.
Finding: Against Applicant
Substance / event: MethamphetamineWHILE CLEARED
Use level: Not Applicable
Response: Admitted
Disqualifying (¶25):
(a) any substance misuse
(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia
(f) any illegal drug use while holding a clearance or sensitive position
Mitigating applied (¶26): —
Mitigation: —
1.c Applicant again returned to the use of marijuana as a 'natural route,' in dealing with family and physical difficulties from about January of 2014 until at least June of 2017.
Finding: Against Applicant
Substance / event: MarijuanaWHILE CLEARED
Use level: Frequent
Response: Admitted
Disqualifying (¶25):
(a) any substance misuse
(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia
(f) any illegal drug use while holding a clearance or sensitive position
Mitigating applied (¶26): —
Mitigation: —
1.d specific text not stated in this decision
Finding: Against Applicant
Substance / event: Unspecified Drug Involvement
Use level: Unspecified
Response: Unknown
Disqualifying (¶25): —
Mitigating applied (¶26): —
Mitigation: —

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana, with varying frequency from about October of 1995 until October of 1996, while holding a security clearance.	Against Applicant	MarijuanaWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (f) any illegal drug use while holding a clearance or sensitive position	—	—
1.b	Applicant used methamphetamine while holding a security clearance.	Against Applicant	MethamphetamineWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (f) any illegal drug use while holding a clearance or sensitive position	—	—
1.c	Applicant again returned to the use of marijuana as a 'natural route,' in dealing with family and physical difficulties from about January of 2014 until at least June of 2017.	Against Applicant	MarijuanaWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (f) any illegal drug use while holding a clearance or sensitive position	—	—
1.d	specific text not stated in this decision	Against Applicant	Unspecified Drug Involvement	Unspecified	Unknown	—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge ruled against the applicant on the criminal conduct allegations, specifically finding that the applicant's past criminal behavior, including a felony charge for possession of a controlled substance, raised significant security concerns. The applicant's recent drug use further contributed to doubts about her judgment and reliability, leading to a denial of her security clearance.

2.a Applicant was charged with felony possession of a controlled substance in 1996. She continued to use marijuana, a controlled substance, for at least three and a half years until as recently as June of 2017. This evidence raises security concerns under these disqualifying conditions, thereby shifting the burden to Applicant to rebut, extenuate, or mitigate those concerns.
Finding: Against Applicant
Offense: Drug Related Criminal Charge
Criminal disposition: Charged Not Convicted
Response: Admitted
Disqualifying (¶31):
(a) pattern of minor offenses casting doubt on judgment/reliability
(b) evidence of criminal conduct, regardless of charge or conviction
Mitigating applied (¶32): —
Mitigation: —

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant was charged with felony possession of a controlled substance in 1996. She continued to use marijuana, a controlled substance, for at least three and a half years until as recently as June of 2017. This evidence raises security concerns under these disqualifying conditions, thereby shifting the burden to Applicant to rebut, extenuate, or mitigate those concerns.	Against Applicant	Drug Related Criminal Charge	Charged Not Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—

Descriptive standardized rendering of a decided public case (Guideline J). 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

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: )

)

ISCR Case No. 18-00978

)

) Applicant for Security Clearance )

Appearances

For Government: Aubrey De Angelis, Esq., Department Counsel For Applicant: Edward O. Lear, Esq.

October 3, 2018 ______________

Decision ______________

CEFOLA, Richard A., Administrative Judge:

Statement of the Case

On April 20, 2018, and as amended on June 5, 2018, in accordance with DoD Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guidelines H, J, and F. The SOR further informed Applicant that, based on information available to the government, DoD adjudicators could not make the preliminary affirmative finding it is clearly consistent with the national interest to grant or continue Applicant’s security clearance.

Applicant answered the SOR on May 11, 2018, and the amended SOR on June 25, 2018, and requested a hearing before an administrative judge. (Answers #1 and #2.) The case was assigned to me on July 26, 2018. The Defense Office of Hearings and Appeals (DOHA) issued an amended notice of hearing on July 26, 2018, scheduling the hearing for August 22, 2018. The hearing was convened as scheduled. The Government offered Exhibits (GX) 1 through 7. GX 1 through GX 7 were admitted without objection. Applicant testified on her own behalf. Applicant presented 15

documents, which I marked Applicant’s Exhibits (AppXs) A through O. AppX A through AppX O were admitted without objection. DOHA received the transcript of the hearing (TR) on September 4, 2018.

Findings of Fact

Applicant admitted all the allegations of SOR. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is a 55-year-old employee of a defense contractor. (GX 1 at pages 7 and 12.) She has been employed with the defense contractor for a year. She has held a security clearance, off and on, since 1989. (GX 1 at pages 12 and 37.)

Guideline H – Drug Involvement and Substance Misuse & Guideline J – Criminal Conduct

1.a., 1.c., and 2.a.. Applicant used marijuana, with varying frequency from about October of 1995 until October of 1996, while holding a security clearance. (TR at page 18 lines 1~14, at page 47 line 25 to page 48 line 11, at page 48 line 19 to page 49 line 14, and at page 50 line 19 to page 51 line 11.) Applicant again returned to the use of marijuana as a “natural route,” in dealing with family and physical difficulties from about January of 2014 until at least June of 2017. (TR at page 33 line 6 to page 34 line 14.)

1.b., 1.d., and 2.a. Applicant used methamphetamine while holding a security clearance. (TR at page 48 line 12 to page 49 line 14.) This usage led to her arrest and charge in October of 1996, in part, for felony possession of a controlled substance. (TR at page 17 lines 3~25, and at TR at page 48 line 19 to page 49 line 14.)

Guideline F – Financial Considerations

3.a. As the result of her 1996 arrest, Applicant lost her security clearance and job. (TR at page 28 line 12 to page 29 line 11.) This loss of income caused her to file for the protection of a chapter 7 Bankruptcy in 1996. (TR at page 28 line 12 to page 29 line 11, and GX 6.)

3.b. In 2017, Applicant lost her non-defense contractor job, and the resulting loss of income again forced her to file for the protection of a chapter 7 Bankruptcy. (TR at page 29 line 12 to page 32 line 18, and GX 7.)

Since her last bankruptcy filing, Applicant has received financial counseling, and has no past-due indebtedness. (TR at page 44 line 21 to page 45 line 20, and AppXs N and O.)

Policies

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), 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 national security eligibility will be resolved in favor of the national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

Directive ¶ E3.1.14 requires the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “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, and has the ultimate burden of persuasion as to obtaining a favorable clearance 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 protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

Section 7 of Executive Order (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 and Substance Misuse

The security concern relating to the guideline for Drug Involvement and Substance Misuse is set forth at 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.

The guideline at AG ¶ 25 contains seven conditions that could raise a security concern and may be disqualifying. Three conditions are established:

(a) any substance misuse (see above definition);

(c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and

(f) any illegal drug use while granted access to classified information or holding a sensitive position.

Appellant used marijuana and methamphetamine while holding a security clearance. She also used marijuana from about January of 2014 until at least June of 2017. Therefore, AG ¶ 25 (a), (c), and (f) are established.

The guideline at AG ¶ 26 contains four conditions that could mitigate security concerns. Two conditions may be 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; and

(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.

None of these apply. Applicant’s drug involvement and misuse is fairly recent.

Guideline J - Criminal Conduct

The security concern relating to the guideline for Criminal Conduct is set out in AG ¶ 30:

Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules, and regulations.

The guideline at AG ¶ 31 contains five disqualifying conditions that could raise a security concern and may be disqualifying. Two conditions apply, as discussed below:

(a) a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual's judgment, reliability, or trustworthiness; and

(b) evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted.

Applicant was charged with felony possession of a controlled substance in 1996. She continued to use marijuana, a controlled substance, for at least three and a half years until as recently as June of 2017. This evidence raises security concerns under these disqualifying conditions, thereby shifting the burden to Applicant to rebut, extenuate, or mitigate those concerns.

The guideline in AG ¶ 32 contains four conditions that could mitigate criminal conduct security concerns:

(a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment;

(b) the individual was pressured or coerced into committing the act and those pressures are no longer present in the person's life;

(d) there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement.

Despite Applicant’s felony arrest for drug abuse, she returned to the fairly recent use of a controlled substance. The evidence does not establish mitigation under any of the above conditions.

Guideline F - Financial Considerations

The security concern relating to the guideline for Financial Considerations is set out in AG ¶ 18:

Failure to live within one's means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual's reliability, trustworthiness, and ability to protect classified or sensitive information. Financial distress can also be caused or exacerbated by, and thus can be a possible indicator of, other issues of personnel security concern such as excessive gambling, mental health conditions, substance misuse, or alcohol abuse or dependence. An individual who is financially overextended is at greater risk of having to engage in illegal or otherwise questionable acts to generate funds. Affluence that cannot be explained by known sources of income is also a security concern insofar as it may result from criminal activity, including espionage.

The guideline notes several conditions that could raise security concerns under AG ¶ 19. Two are potentially applicable in this case:

(a) inability to satisfy debts; and

Applicant filed for the protection of chapter 7 bankruptcies in 1996 and again in 2017. The evidence is sufficient to raise these disqualifying conditions.

AG ¶ 20 provides seven conditions that could mitigate security concerns. Three may apply:

(a) the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual's current reliability, trustworthiness, or good judgment;

(b) the conditions that resulted in the financial problem were largely beyond the person's control (e.g., loss of employment, a business downturn, unexpected medical emergency, a death, divorce or separation, clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances; and

(c) the individual has received or is receiving financial counseling for the problem from a legitimate and credible source, such as a non-profit credit counseling service, and there are clear indications that the problem is being resolved or is under control.

Applicant’s past financial problems were the results of loss of employment. She currently has no past-due indebtedness. She has demonstrated that future financial problems are unlikely. Mitigation under AG ¶¶ 20(a), (b) and (c) have been established.

Whole-Person Concept

Under the whole-person concept, the administrative judge must evaluate an applicant’s national security 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(d):

(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 facts and circumstances surrounding this case. I have incorporated my comments under Guidelines H, J, and F in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but some warrant additional comment.

Applicant is a well-respected individual, as evidenced by 13 character references. However, her fairly recent drug involvement and related criminal conduct leave me with questions and doubts as to her eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the drug involvement, and criminal conduct security concerns.

Formal Findings

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of the Directive, are:

Paragraph 1, Guideline H:

AGAINST APPLICANT

Subparagraphs 1.a. through 1.d.: Against Applicant

Paragraph 2, Guideline J:

AGAINST APPLICANT

Subparagraph 2.a.:

Against Applicant

Paragraph 3, Guideline F:

FOR APPLICANT

Subparagraph 3.a. and 3.b.:

For Applicant

Conclusion

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant national security eligibility for a security clearance. Eligibility for access to classified information is denied.

________________________ Richard A. Cefola Administrative Judge