1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 11-01526 ) Applicant for Security Clearance ) Appearances For Government: Tovah Minster, Esquire, Department Counsel For Applicant: Pro se __________ Decision __________ RIVERA, Juan J., Administrative Judge: Applicant has a history of Percocet abuse and was diagnosed with opiate dependence. She did not present reliable evidence to show that she has overcome her opiate dependence, or that she is under medical treatment and her drug problem is under control. Moreover, she made numerous deliberate false statements through the security clearance process. Clearance is denied. Statement of the Case Applicant submitted a security clearance application (SCA) on July 29, 2008. After reviewing the results of the ensuing background investigation, adjudicators for the Defense Office of Hearings and Appeals (DOHA) were unable to make a preliminary affirmative finding1 that it is clearly consistent with the national interest to grant Applicant’s request for a security clearance. 1 Required by Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended; and Department of Defense (DoD) Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as revised. 2 On May 11, 2011, DOHA issued Applicant a statement of reasons (SOR) indicating security concerns raised under Guidelines H (Drug Involvement) and E (Personal Conduct) of the adjudicative guidelines (AG).2 On June 3, 2011, Applicant responded to the SOR allegations and requested a hearing before an administrative judge. The case was assigned to me on July 5, 2011, to determine whether a clearance should be granted or denied. DOHA issued a notice of hearing on July 8, 2011, and the hearing was convened as scheduled on August 11, 2011. The Government offered exhibits (GE) 1 through 7, which were admitted without objection. Applicant testified, and she presented one exhibit (AE) 1, post-hearing, which was admitted without objection. DOHA received the transcript of the hearing (Tr.) on August 19, 2011. Findings of Fact Applicant denied all the SOR allegations. After a thorough review of the evidence of record, and having observed Applicant’s demeanor and considered her testimony, I make the following findings of fact. Applicant is a 45-year-old employee of a Government contractor. She graduated from high school in 1983, and completed some courses at a community college, but did not receive a degree. She has been married three times. She married her current husband in 2002. She has three sons, born from her two prior marriages, ages 25, 21, and 16. Applicant is a configuration management specialist. She has been working in the same contract, but for different Government contractors, during the last 14 years. She has held a security clearance at the secret level during that same period. There is no evidence to show that she has ever compromised or caused others to compromise classified information. Applicant is considered to be a dependable and highly capable employee. Her integrity and honesty have never been called into question. Her eight- year supervisor trusts her implicitly. In January 2010, she was presented a letter of appreciation in recognition of her outstanding performance. She is dedicated to her job and to the Navy organization her company supports. Applicant started using Percocet, an opiate, in 1997. She was legally prescribed Percocet in 1997 and 2001, after visits to hospital emergency rooms because she was suffering from pain resulting from ruptured ovarian cysts. Around 2003-2004, Applicant started to take Percocet, either prescribed to her mother-in-law, or prescribed to Applicant by her family doctor (Dr. H) to control the pain she was suffering as a result of numerous medical problems (endometriosis, menorrhagia, fibroids, ovarian cysts, degenerative bone disease, sciatic nerve problems, and Morton’s neuroma). Dr. H placed Applicant in a pain management plan and, through the years, continued to prescribe increasing doses of Percocet. 2 Adjudication of this case is controlled by the AG, implemented by the DoD on September 1, 2006. 3 In October 2007, Applicant realized she was addicted to the Percocet. She was taking more medication than that prescribed, and would run out of Percocet. She would then borrow Percocet from her mother-in-law or friends. She was also experiencing withdrawal symptoms. Her aunt, an oncology nurse, recommended to Applicant that she seek treatment for her addiction. (GE 2) In October 2007, Applicant sought medical treatment with Dr. S, a physician certified by the American Board of Addiction Medicine. During her initial visit with Dr. S, Applicant stated she was taking 10 Percocet pills a day, instead of the two pills a day prescribed by her physician. She had taken Percocet the same day she visited Dr. S. (GE 6) Applicant was under Dr. S’s medical care from October 2007 until September 2010. During this period, she was prescribed Suboxone (a narcotic medication used to treat opiate addition) and placed on a detoxification program. According to her medical records, Applicant relapsed and returned to using pain medication (opiates) in November 2007 and January 2008. She also used more Suboxone than prescribed, and ran out of her medication in January 2008, March 2008, and April 2009. Applicant “borrowed” medications from friends when she ran out of her medication. At the suggestion of a coworker, in April 2009, Applicant disclosed to her employer’s facility security officer (FSO) her Percocet dependency and abuse problem. She told her FSO that in January 2009, she enrolled in a withdrawal and dependency recovery program with Dr. S. This is contrary to Applicant’s medical records, which indicate she started her treatment with Dr. S in October 2007. Notwithstanding, on April 23, 2009, Dr. S sent a letter to Applicant affirming that for the past three months she had been under his medical care for opiate dependence treatment, and that she was responding well to the treatment. (GE 4) Applicant submitted her SCA in July 2008. Section 24 of the SCA asked Applicant to disclose whether in the last seven years she had illegally used any controlled substance or prescription drugs. Applicant failed to disclose that she had been using her mother-in-law’s Percocet and borrowing Percocet from friends, and that she was taking more Percocet than was prescribed to her. She believed she was taking Percocet legally because she had a prescription for it. At her hearing, Applicant disputed Dr. S’s medical records. She claimed Dr. S was confusing her with another patient, and that she never told him she had relapsed, that she was abusing her prescription, or that she was borrowing Percocet from other people. Around June 2009, Applicant asked Dr. S to place her on a detoxification program, and requested him to provide her with a letter to that effect. In July 2010, DOHA issued Applicant a set of interrogatories asking questions about her drug dependence. (GE 3) In her August 2010 answers, Applicant admitted that she was participating on a drug rehabilitation program. However, she stated that she started her counseling with Dr. S in 2009-2010. This is contrary to her medical records which indicate Applicant started her opiate dependency and abuse treatment in October 2007. Moreover, in the July 2009 interrogatories, Applicant was asked to explain why she failed to disclose her prescription dependence and abuse on her July 4 2008 SCA. Applicant stated: it “occurred after signing paperwork.” (GE 3) According to her medical records, Applicant’s opiate abuse started before October 2007. In September 2010, DOHA issued Applicant another set of drug-related interrogatories. Question 1 asked Applicant whether she had ever used any narcotics, opiates (to include Percocet or Oxycontin) . . . except prescribed to you by a licensed physician? Applicant answered “No,” and she failed to disclose that she had obtained Percocet from persons other than her physician. In response to other questions, she admitted her opiate (Percocet) dependence diagnosis, and stated her prognosis was a “success.” (GE 2) According to Dr. S’s October 8, 2010 letter to DOHA, Applicant’s detoxification efforts failed. In his opinion, Applicant has a chronic pain condition that probably will not be resolved, and she will need pain medication indefinitely, including opiates. (GE 7) In her answers to the interrogatories, Applicant also claimed that she became Percocet dependent because of the unscrupulous and unethical treatment she received from her family doctor (Dr. H). She presented documentary evidence showing that Dr. H was reprimanded and suspended from his practice for overprescribing narcotics to his patients. However, she presented no documentary evidence to show that she was Dr. H’s patient. Because of the interrogatories, Applicant became concerned about the possible adverse effect her Percocet abuse and her current treatment with Suboxone would have on her ability to hold a security clearance.3 In her September 23, 2010 response to interrogatories, Applicant stated that although the Suboxone helped her condition, “a few times over the last few years” she had stopped taking Soboxone on her own accord. She stopped visiting Dr. S for treatment and stopped taking Suboxone on September 17, 2010. In January 2008, Dr. S recommended to Applicant that she participate in psychological counseling because of her physiologic dependence and her psychological tendency to use opiates. As of her hearing date, Applicant had not participated in psychological counseling. Moreover, Applicant did not present documentary evidence to show that she successfully completed a drug rehabilitation treatment program after she was diagnosed with Percocet dependence. In August 22, 2011, Applicant was evaluated by a physician. He stated: [“Applicant] was evaluated today. There is no evidence of any psychiatric or substance use disorder. She is not at acute risk of harm to self or others. No treatment is indicated at this time.”4 (AE 1) 3 In her response to the September 2010 interrogatories, Applicant asked whether she needed to stop her Suboxone treatment to be eligible for a continued security clearance. She then indicated she stopped her Suboxone treatment on her own. 4 Because of the scant information provided about the physician’s qualifications, the tests he performed, and the factual information he considered to render his opinion, I consider his opinion of 5 Policies The President of the United States 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.” Department of the Navy v. Egan, 484 U.S. 518, 527 (1988). The President has authorized the Secretary of Defense to grant 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, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended. The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These AG are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable to reach his decision. 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 “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. See also Executive Order 12968 (Aug. 2, 1995), Section 3. Thus, nothing in this Decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism. It is merely an indication that 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 limited probative value. Under the circumstances, his statement cannot be considered as a “diagnosis and favorable prognosis by a qualified medical professional” as required by the AG. 6 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. 95-0611 at 2 (App. Bd. May 2, 1996). 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 ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue [his or her] security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b). Analysis Guideline H, Drug Involvement AG ¶ 24 articulates the security concern about 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. Applicant started taking Percocet legally in 1997. In 2003-2004, Applicant developed dependence to Percocet and commenced abusing her medication by taking more than her prescribed dose. She also took Percocet prescribed to other persons. From October 2007 until September 2010, she participated in a drug withdrawal and dependency recovery program provided by a physician certified by the American Board of Addiction Medicine. Her detoxification efforts failed. Applicant suffers from a chronic pain condition that may require her to continue with pain medication, including opiates, indefinitely. The physician recommended that Applicant continue treatment with a pain medication specialist. He also recommended that she receive psychological counseling. In September 2010, Applicant discontinued her opiate dependency treatment. At her hearing, she did not present documentary evidence to show that she successfully completed a drug rehabilitation treatment program after she was diagnosed with Percocet dependence. She is not under treatment by a pain medication specialist. Furthermore, she did not present a reliable diagnosis and a favorable prognosis prepared by a qualified medical professional establishing that she has overcome her opiate dependence, or that she is currently undergoing treatment. 7 AG ¶ 25 describes eight conditions related to drug involvement that could raise a security concern and may be disqualifying. Five drug involvement disqualifying conditions raise a security concern and are disqualifying in this particular case: (a) any drug abuse;5 (c) illegal drug possession; (d) diagnosis by a duly qualified medical professional (e.g., physician, clinical psychologist, or psychiatrist) of drug abuse or drug dependence; (e) failure to successfully complete a drug treatment program prescribed by a duly qualified medical professional; and (g) any illegal drug use after being granted a security clearance. AG ¶ 26 provides four potentially applicable drug involvement mitigating conditions: (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; (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. (c) abuse of prescription drugs was after a severe or prolonged illness during which these drugs were prescribed, and abuse has since ended; and 5 AG ¶ 24(b) defines “drug abuse” as “the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.” AG ¶ 24(a) defines “drugs” as substances that alter mood and behavior, including: (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 hallucinogens), and (2) inhalants and other similar substances. 8 (d) satisfactory completion of a prescribed drug treatment program, including but not limited to rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional. None of the Guideline H mitigating conditions fully apply. I consider Applicant’s prolonged abuse of Percocet recent and frequent. She was prescribed Percocet because of her chronic pain problems. She sought medical assistance and her detoxification efforts failed. She suffers from a chronic pain condition that may require her to continue with pain medication, including opiates, indefinitely. Notwithstanding, she is not currently under a pain medication specialist care, she terminated her drug rehabilitation treatment in September 2010, and she has not participated in psychological counseling. She did not present documentary evidence to show that she has successfully completed a drug rehabilitation treatment program. Furthermore, she did not present a reliable, favorable prognosis by a qualified medical professional indicating she has overcome her opiate dependence problem, or that she is under medical treatment and her drug problem is under control. I specifically considered AG ¶ 26(c), but I am not convinced that her opiate dependence and abuse has ended. Applicant’s favorable evidence is not sufficient to mitigate the Guideline H security concerns. Guideline E, Personal Conduct AG ¶ 15 explains why personal conduct is a security concern stating: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process. Applicant deliberately falsified her 2008 SCA when she failed to disclose that she was illegally using her prescribed medication (Percocet) by taking more than the prescribed dose, and by obtaining Percocet from persons other than her physician. Applicant claimed that her failure to disclose her abuse of Percocet was an honest mistake because she had a legal prescription for Percocet and believed her use of Percocet was legal. She also disputed her physician’s records. Applicant claimed she never told her physician that she relapsed while in detoxification treatment, that she used Percocet from her mother-in-law, and that she borrowed Percocet from friends when she ran out of her medication. Considering the evidence as a whole, including her demeanor and testimony, Applicant’s claim of innocent mistake is not credible. Furthermore, Dr. S’s medical records, although sparse, are corroborated by the record evidence and Applicant’s testimony. SOR ¶ 2.a is decided against Applicant. 9 In April 2009, Applicant self-disclosed to her FSO that she had a Percocet dependence problem. She specifically stated that since January 2009, she had been in a drug withdrawal and dependency recovery program. Her statement was partially false. Applicant’s physician’s records indicate she had been participating in the drug dependency rehabilitation program since October 2007. Applicant deliberately provided false information to her FSO. SOR ¶ 2.b is decided against Applicant. SOR ¶ 2.c is decided for Applicant. Question 1 of the June 26, 2010 “Interrogatories Concerning Drugs” (GE 3), literally asked: “Have you ever used any narcotic, depressant, stimulant, hallucinogen . . . , except prescribed by a licensed physician?” Apparently, the Percocet Applicant borrowed from her mother-in-law and her friends was prescribed to them by a licensed physician. Thus, Applicant did not make a false statement when she answered “No.” SOR ¶ 2.d is decided against Applicant. Question 1 of the “Lifestyle Changes” section of the June 26, 2010 “Interrogatories Concerning Drugs” (GE 3), asked Applicant whether she had completed or was currently participating in a recognized alcohol and drug rehabilitation program. Applicant answered yes, and disclosed her treating physician. However, she deliberately provided false information when she stated the dates of her counseling were “2009-2010.” The evidence shows that she started her drug rehabilitation program in October 2007. At her hearing, Applicant claimed she provided the wrong dates to her FSO (as alleged in SOR ¶ 2.b) and in her answer to the June 2010 interrogatories, because she did not know until sometime in 2009 that Dr. S was a physician certified by the American Board of Addiction Medicine. She claimed she believed Dr. S was a pain medication specialist. Applicant’s claims contradict her own prior statements in which she said that in October 2007, she realized she was Percocet dependent, and she visited Dr. S for drug rehabilitation treatment following her aunt’s recommendation. SOR ¶ 2.e is decided against Applicant. Question 1 of the September 2010 “Interrogatory” (GE 2), asked: “Have you ever used any narcotic, opiate (to include Percocet or Oxycontin), depressant, stimulant, hallucinogen . . . , except prescribed to you by a licensed physician?” Contrary to the question in the June 2010 interrogatory (the SOR ¶ 2.c allegation), this question asked whether Applicant consumed drugs prescribed to another person. Applicant used Percocet prescribed to her mother-in-law and her friends when she ran out of her own medication. She deliberately failed to disclosed that information in her answer. Applicant’s SCA falsification and her false statements trigger the applicability of the following disqualifying conditions under AG ¶ 16: (a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment 10 qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities; (b) deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative; and (e) personal conduct, or concealment of information about one's conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person's personal, professional, or community standing, or (2) while in another country, engaging in any activity that is illegal in that country or that is legal in that country but illegal in the United States and may serve as a basis for exploitation or pressure by the foreign security or intelligence service or other group. AG ¶ 17 lists seven conditions that could potentially mitigate the personal conduct security concerns: (a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; (b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security clearance process. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully; (c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; (d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; (f) the information was unsubstantiated or from a source of questionable reliability; and 11 (g) association with persons involved in criminal activity has ceased or occurs under circumstances that do not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations. After considering the above mitigating conditions, I find none apply. Applicant falsified her 2008 SCA, made a false statement to her FSO, and provided false statements in her answers to two DOHA interrogatories. At hearing, she repeatedly minimized her questionable behavior, and contradicted her prior statements. Her falsifications are serious, recent offenses (felony level).6 Her behavior shows questionable judgment, untrustworthiness, unreliability, and lack of candor. Whole-Person Concept Under the whole-person concept, the 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. 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) 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. 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. AG ¶ 2(c). I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant is 45 years old. She has held a security clearance while employed with Government contractors for 14 years. There is no evidence that she has ever compromised or caused others to compromise classified information. She is considered to be a dependable and highly capable employee. Her integrity and honesty have never been called into question. She is trusted implicitly by her supervisor. Applicant became Percocet dependent as a result of her chronic pain condition. Notwithstanding, she currently is not under medical treatment for her chronic pain condition or her drug dependency, and she has not participated in psychological counseling. She did not present documentary evidence to show that she successfully 6 See 18 U.S.C. 1001. 12 completed a drug rehabilitation treatment program after she was diagnosed with Percocet dependence. Furthermore, she did not present a reliable, favorable prognosis by a qualified medical professional indicating she has overcome her opiate dependence problem, or that she is under medical treatment and her drug problem is under control. Moreover, Applicant made numerous deliberate false statements through the security clearance process. At hearing, she repeatedly minimized her questionable behavior, and contradicted her own prior statements. Her behavior shows questionable judgment, untrustworthiness, unreliability, and lack of candor. On balance, I conclude that Applicant’s favorable evidence is insufficient to mitigate the security concerns arising from her drug involvement and personal conduct. Overall, the record evidence fails to convince me of Applicant’s eligibility and suitability for a security clearance. 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 Subparagraphs 1.a and 1.b: Against Applicant Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraphs 2.a, 2.b, 2.d and 2.e: Against Applicant Subparagraph 2.c: For Applicant Conclusion In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue eligibility for a security clearance for Applicant. Eligibility for a security clearance is denied. ____________________________ JUAN J. RIVERA Administrative Judge