1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 11-05766 ) ) Applicant for Security Clearance ) Appearances For Government: Tovah A. Minster, Esquire, Department Counsel For Applicant: Pro se ______________ Decision ______________ CREAN, Thomas M., Administrative Judge: Based on a review of the case file and plea ding, eligibility for access to classified information is denied. Statement of the Case On January 21, 2011, Applicant submi tted an Electronic Questionnaire for Investigations Processing (e-QIP) for his em ployment with a defense contractor. (Item 5) On February 28, 2012, the Defense Offi ce of Hearings and Appeals (DOHA) issued to Applicant a Statement of Reasons (SOR) detailing security concerns for an allegation of drug involvement for marijuana use from May 2004 until September 2010 (Item 1). 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 Adjudicative Guidelines (AG). The SOR was sent to Applicant on February 28, 2012 (Item 2). He responded on March 16, 2012 (item 3), admitting the alle gation, and requesting a decis ion on the record (Item 4). Department Counsel s ubmitted the Government’s written case on 2 March 26, 2012. Applicant received a complete file of relevant material (FORM) on March 29, 2012, and was provided the opportunity to file objections and submit material to refute, extenuate, or mitigate the se curity concerns. He provided additiona l information on April 26, 2012. The case was assigned to me on May 16, 2012. Findings of Fact Applicant admitted the allegation under Guideline H. I carefully reviewed the case file and the pleadings, and make the following findings of fact. Applicant is a single 25-year-old co llege graduate who has been an architecture draftsman for a defense contractor since De cember 2010 (Item 5). Applic ant noted in response to the question conc erning illegal drug use on the security clearance application that he used mari juana from May 2004 until S eptember 2010. He furthe r stated that his use was infrequent (a couple of times a year) except from May to August 2005, when it was weekly. He admits to us ing marijuana several dozen times over six years. He admits to using marijuana three times in June, July, and September 2010. He was only a user and never a purchaser of the marijuana. (Item 5 at 39) On February 11, 2011, a security investig ator asked Applicant to clarify his statements on the security clearance application concer ning drug use. Applic ant admitted using marijuana durin g senior week of high sch ool. He admitted using marijuana weekly in the summer of 2005 with high school friends. During his first two years of college (2004/2005), he used marij uana 10 or 15 times a year. He did no t purchase the marijuana. It was provided by hi s high school and college friends. During his last two years of college (2007/2009), he used marijuana about three times a year at parties. He did not purchase the marijuana He did not use marijuana in the summer of 2008, but did use it a few times after college in the summer of 2009. His last use of marijuana was in September 2010. He stated that he does not have a problem with drugs, and his drug use is only recreational. He further stated that he does not “foresee any increase in his use of mari juana from about two to four time s a year if at all. He is not certain what his future use will be.” (Item 6 at 10-11) In his response to the SOR, Applicant admitted his marijuana use with varying frequency from May 2004 until at least September 2010. He noted increased use from May 2004 until 2006, but decreas ed use until his last use in September 2010. He used marijuana in college because of the college environment of freedom. He did not become dependent on marijuana, did not require c ounseling, or need rehabilitation. He maintained a good ac ademic standard and graduated magna cum laude. He admitted using marijuana after college, but at a dramat ically decreased level of frequency. He became more mature and was in a professional environment. (Item 4) In response to the FORM, Applicant st ated that his use of marijuana was infrequent and happened under such circumstances that it is unlik ely to recur. The majority of his drug use was in college. While it continued after colle ge, he did it in a professional environment that was lax on drug use. He told the security investigator he was not certain of his future use of mari juana because he did not k now what his future 3 would bring. In his response to the FORM, he agai n did not c learly state that he would not use drugs in the future. He again noted t hat “I do not know what my future holds.” He noted that he has not disassociated from his drug-using friends because they are his closest friends that he has known since be fore he used marijuana. He c onsiders his loyalty to them more import ant than whether they decide to recreati onally use illeg al drugs. If he abandoned his friends simply bec ause of drug use, he would not show he was reliable or trustworthy. He stated he has avoided t he environment where drugs are used, and he signed a statement of intent with automatic revocation of clearance for use of illegal drugs. He ha s not completed a dr ug treatment program because h e does not have a problem with drugs, nor is he de pendent on marijuana. (Response to FORM, Letter, dated April 26, 2012) Policies When evaluating an applicant’s suitabi lity for a security clearance, the administrative judge must consi der the Administrative Gui delines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating condit ions, which are us eful in evaluating a n applicant’s eligibility for access to classified information. These guidelines ar e not inflexible ru les of law. Instead, recognizing the complexities of human behavior, these gui delines are applied in conjunction with the factors listed in the adjudicative proces s. The administrative judge’s over-arching adjudicative goal is a fair, impartial and commonsense decision. According to AG ¶ 2(c), the entire process is a consci entious scrutiny of a number of variables known as t he “whole-person concept.” The administrative j udge must consider all available, reliable information about the person, past and pres ent, favorable and unfavorable, in making a decision. The protection of the national sec urity is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning pe rsonnel being cons idered for access to classified information will be re solved in f avor of national secu rity.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical and based on the evidence contained in the record. Li kewise, I have avoided drawing inferences grounded on mere speculation or conjecture. Under Directive ¶ E3. 1.14, the Government must present evidence to es tablish controverted facts alleged in the SOR. Under Direc tive ¶ E3.1.15, the applicant i s responsible for presenting “wit nesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . .” The applicant has the burden of persuasion to obtain 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 thr oughout 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 4 the applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certai n degree of legally per missible extrapolation as to potential, rather than actual, risk of compromise of classified information. Analysis Guideline H, Drug Involvement The use of an illegal drug or misuse of a prescription drug can raise questions about an indiv idual’s reliability and trustworthiness, both because it may impair judgment and becau se it raises question s about a person’s a bility or willing ness to comply with laws, rules, and regulations . Drugs are mood and behav ior altering substances, and include those listed in t he Controlled Subst ances Act of 1970. Marijuana is listed in the act as an illegal drug. Drug abuse is the illegal use of a drug or the use of a legal drug in a manner that deviates from approved medical direction (AG ¶ 24). Applicant admitted using marijuana in high school, college, and after college from 2004 until September 2010. He receiv ed the marijuana from friends. Applicant’s marijuana use raises Drug Involvement Disqual ifying Conditions AG ¶ 25(a) (any drug use); and AG ¶ 25(c) (illega l drug po ssession, including cultivation, processing, manufacture, purchase, sale, or distribution). I considered Drug Involvement Mitigat ing Conditions AG ¶ 26(a) (the behavior happened so long ago, was so infr equent, or happened under such unus ual circumstances that it is unlik ely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment); and AG ¶ 26(b) (a demonstrated intent not to abuse any drugs in the future , such as; (1) dissociation from drug-using associates and contacts; (2) changing or avoiding the env ironment where drugs were used; (3) an appropr iate period of abstinence; (4) a signed statement of intent with automatic revocation of clearance for any violation). These mitigating conditions do not apply. Applicant admits using marijuana with varying frequen cy for about six y ears. There were no unus ual circumstances leading to the drug use. He was a young high school and college st udent who admits using marijuana because of the opportunity when it was provided by friends. While there is no "bright line" rule for determining when conduct is recent or sufficient time has passed since the incidents, a determination whether past conduct affects an individual's present reliability and trustworthiness must be based on a careful evaluation of the totali ty of the evidence. If the evidenc e shows a significant period of time has passed without evidenc e of drug involvement, there must be an evaluation whether that period of time demonstrate s changed c ircumstances or conduct sufficient to indicate a finding of reform or rehabilitation. Applicant has not used illegal drugs fo r almost 20 months, since September 2010. At that time, he was seeking employment in his field with a defense contractor where drug use was not tolerated. He start ed with his defense cont ractor employer in 5 December 2012. He is now in an env ironment where drug us e is prohibited. Prior to that, he claims to have been in an environm ent where drug use was tolerated. There is no evidence that he s topped associating with drug using friends. In fact, he admits he will continue to associate with these friends. T here is no clear indication of his intent not to use drugs in the future. He told the securi ty investigator that he may use drugs in the future. In response to the FORM, he explained his response to the security investigator, but he did not clearly state that he would not use illegal drugs in the future. His answers to the security investigator, his response to the SOR, and his response to the FORM are not sufficient information of a change of circumstance showing he has reformed and will no longer use illegal drugs. Applicant has f ailed to pr esented sufficient information to overcome the security concern for his us e of illegal drugs. Guideline H is decided against Applicant Whole-Person Analysis Under the whole-person concept, t he administrative judge evaluates the applicant’s conduct and all of the circumst ances. An administr ative judge s hould consider the nine adjudicative process factors listed at AG ¶ 2(a): (1) the nature, extent, and seriousnes s 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 behavio ral changes; (7) the motivation for the conduct; (8) the potential for pr essure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Under AG ¶ 2(c), the ultimate determination of whether to grant a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. Applicant has not established that he is trustworthy, reliable, and exercises good judgment. He used marijuana as a high school and college student, and after receiving his degree until he was seeking employment with a defens e contractor. His last use of marijuana was approximately 20 months ago. He still ass ociates with those that used marijuana with him, and he did not state his clear intent not to use drugs in the future. He did not establish changed circumstances to show he has reformed and has been rehabilitated. He did not pr ovide sufficient evidenc e to establish that he should be trusted with access to classified informati on. The record evidence leav es me with questions about Applicant’s elig ibility and suitability for a security clearance. For all these reasons, I find that Applicant has not mitigated drug involvement security concerns. 6 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 Subparagr aph 1.a: Against Applicant Conclusion In light of all of the circumstances present ed by the record in this case, it is not clearly consistent wit h the natio nal interest to grant Applicant eligibility for a securit y clearance. Eligibility for access to classified information is denied. _________________ THOMAS M. CREAN Administrative Judge