1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 07-06605 ) ) Applicant for Security Clearance ) Appearances For Government: Daniel F. Crowley, Esquire, Department Counsel For Applicant: Pro Se ______________ Decision ______________ DAM, Shari, Administrative Judge: Applicant failed to rebut or mitigate the Government’s security concerns raised under Guideline H, Drug Involvement. His eligibility for a security clearance is denied. On October 20, 2006, Applicant submitted his Security Clearance Application (SF 86). On August 15, 2007, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns under Guideline H for Applicant. The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive), and the revised adjudicative guidelines (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006. On September 20, 2007, Applicant answered the SOR in writing and elected to have the case decided on the written record in lieu of a hearing. On October 23, 2007, Department Counsel prepared a File of Relevant Material (FORM), containing five 2 Items, and mailed Applicant a complete copy on October 30, 2007. Applicant received the FORM on November 1, 2007, and had 30 days from its receipt to file objections and submit additional information. On November 13, 2007, Applicant submitted a letter that I marked Applicant Exhibit (AE 1) and admitted into the record without objection from Department Counsel. On December 21, 2007, the case was assigned to another administrative judge and reassigned to me on January 4, 2008. Findings of Fact In his Answer to the SOR, Applicant admitted the factual allegations contained in ¶ 1.a He also provided additional information to support his request for eligibility for a security clearance. Applicant is 31 years old and single. In October 2002, he graduated from college with a Bachelor of Science in Telecommunications Management. After leaving school, he worked for several employers and was unemployed for a period of time. In October 2006, he began working as a systems engineer for his current employer, a federal contractor. In October 2006, he submitted an SF 86. (Item 4). In June 2007, Applicant completed Interrogatories regarding disclosures he made in his SF 86 about drug use. Applicant admitted that he used marijuana at least fifteen times from October 1996 to September 2006. (Item 4 at 40; Item 5 at 2). He does not intend to use it in the future, claiming he used it while he was in college and at a different stage of his life. He no longer associates with those friends who use illegal drugs. (Item 5 at 2-3). In his November 13, 2007 letter, he reiterated his commitment to discontinue using marijuana, acknowledging its illegality. He acknowledged his mistakes and does not excuse his behavior. He has made lifestyle changes, including a commitment to his present employer. (AE 1). He offered to execute a document providing for an automatic revocation of his security clearance, should he be found to have taken drugs in the future. (Id.). Policies When evaluating an Applicant’s suitability for a security clearance, the Administrative Judge must consider the revised 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, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The Administrative Judge’s over-arching adjudicative goal is a fair, impartial and common sense decision. According to AG ¶ 2(c), 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, 3 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 access to classified information will be resolved in favor of 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. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The Applicant has the ultimate burden of persuasion as to obtaining a favorable security 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 10865 provides that 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 AG ¶ 24 expresses the security concern pertaining to drug involvement: Use of an illegal drug or misuse of a prescription drug can raise questions about an individual's reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person's ability or willingness to comply with laws, rules, and regulations. (a) Drugs are defined as mood and behavior altering substances, and include: (1) Drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and 4 hallucinogens), and; (2) inhalants and other similar substances; (b) drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction. Based on Applicant’s admissions that he used marijuana from approximately September 1996 until September 2006, the Government raised a potentially disqualifying condition under AG ¶ 25(a) “any drug abuse (see above definition).” After the Government produced substantial evidence of that disqualifying condition, the burden shifted to Applicant to produce evidence and prove mitigation. I considered two mitigating conditions under AG ¶ 26 that may be potentially applicable to the disqualifying condition: (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) a demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence; and, (4) a signed statement of intent with automatic revocation of clearance for any violation; Based on my evaluation of the record evidence as a whole, I conclude that AG ¶ 25(a) does not apply. Applicant used illegal drugs at least 15 times from September 1996 until September 2006, the last incident being about a year ago. Given his ten-year history of marijuana use, an asserted year of abstinence is insufficient to trigger application of this condition. His past behaviors do cast doubt on his trustworthiness and good judgment. Applicant stated he does not intend to use the illegal substance again because of the changes he has made in his life, including no longer associating with people who use illegal drugs. He offered to sign a statement that he would agree to an automatic revocation of his clearance should it be determined that he used drugs in the future. Those facts warrant the limited application of AG ¶ 26 (b) “a demonstrated intent not to abuse any drugs in the future,” as noted by his (1) dissociation from drug-using associates and contacts,” and his willingness to execute (4) “a signed statement of intent with automatic revocation of clearance for any violation.” However, without independent evidence to corroborate his discontinuation of drug abuse or to monitor his 5 decision not to use drugs, if given a clearance, full application of this condition is not warranted. Whole Person Concept In addition to evaluating the disqualifying and mitigating conditions under each guideline, the adjudicative process requires thorough consideration and review of all available, reliable information about the applicant, past and present, favorable and unfavorable, to arrive at a balanced decision. The essence of scrutinizing all appropriate variables in a case is referred to as the “whole person” analysis. In evaluating the conduct of the applicant, the Administrative Judge should consider the nine adjudicative process factors listed at AG ¶ 2(a): “(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) 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 the facts and circumstances surrounding this case. Applicant is a 31-year-old man, who began using drugs in college and continued using them past graduation, up to a month before beginning his current employment with a federal contractor. While I find his commitment to change, along with his honesty and statements that he does not intend to use drugs in the future helpful, I am not convinced that he mitigated his ten-year history of marijuana abuse. Absent independent corroboration, such as an evaluation from an appropriately credentialed health care provider and/or other sources, documenting Applicant’s assertions that he is drug free, I am concerned there is a strong likelihood that he will use drugs in the future. Overall, the record evidence leaves me with questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant did not mitigate the security concerns arising from his drug involvement. Formal Findings Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline H: AGAINST APPLICANT Subparagraph 1.a: Against Applicant 6 Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with national security to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied. _________________ SHARI DAM Administrative Judge