1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 11-03142 ) ) Applicant for Security Clearance ) Appearances For Government: Julie R. Mendez, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ MATCHINSKI, Elizabeth M., Administrative Judge: Applicant abused marijuana socially at parties once or twice a month between November 2004 and March 2007. She abstained while pregnant and following the birth of her daughter until January 2008. From January 2008 until June 2010, she used marijuana at least 10 to 15 times. Applicant does not intend to use any marijuana or other illegal drug in the future. However, personal conduct concerns persist because she was not candid about her marijuana abuse on two security clearance applications. Clearance denied. Statement of the Case On July 18, 2012, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant, detailing the security concerns under Guideline H, Drug Involvement, and Guideline E, Personal Conduct, and explaining why it was unable to find it clearly consistent with the national interest to grant her security clearance eligibility. DOHA took action 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 2 (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the Department of Defense on September 1, 2006. Applicant answered the SOR allegations on August 8, 2012, and she requested a hearing if a final decision (presumably in her favor) could not be made based on the written record. On September 26, 2012, Applicant declined a hearing. On October 5, 2012, the Government submitted a File of Relevant Material (FORM) consisting of six exhibits (Items 1-6). DOHA forwarded a copy of the FORM to Applicant and instructed her to respond within 30 days of receipt. Applicant received the FORM on October 11, 2012. Applicant submitted a rebuttal on October 24, 2012, and on November 14, 2012, the case was assigned to me to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for her. Applicant’s written statement in rebuttal to the FORM (AE A) and the two character reference letters (AEs B, C) were received into the record without objection. Findings of Fact The SOR alleged under Guideline H (SOR 1.a) and cross-alleged under Guideline E (SOR 2.a) that Applicant used marijuana from about November 2004 to at least June 2010. Also, under Guideline E Applicant allegedly falsified her September 27, 2010 Electronic Questionnaire for Investigations Processing (e-QIP) (SOR 2.b) and her November 4, 2010 e-QIP (SOR 2.c). After considering the Government’s FORM, which includes Applicant’s Answer to the SOR allegations (Item 2), and Applicant’s rebuttal to the FORM (AEs A-C), I make the following additional findings of fact. Applicant is a 24-year-old assistant office administrator, who has been tasked by her employer with the duties of assistant facility security officer (AFSO). She began working for her defense contractor employer in September 2010 and seeks a top secret clearance for her duties. 1 (Item 4; AEs A, B.) Applicant first smoked marijuana in November 2004 at a party. She continued to use marijuana socially at parties, once or twice a month, in high school, after she graduated in June 2006, and after she moved some 2,000 miles away from home for college in August 2006. She lived in a college dormitory during the school year. (Items 4-5.) In March 2007, she discovered she was pregnant with her daughter. She stopped her marijuana use during her pregnancy. (Item 2.) That summer, she returned home to reside with her parents, and she worked 30 hours per week as a waitress. (Items 4-6.) Applicant and her daughter’s father got engaged, and they began cohabiting in an off-campus apartment in August 2007. (Items 2, 4.), Motivated to earn her bachelor’s 1 Applicant pointed out some factual inconsistencies and errors in the FORM concerning her age and the date she started her defense contractor employment. For example, in the procedural history Department Counsel correctly noted Applicant’s age to be 24. Yet, in the statement of facts, Applicant was described as being 22 years old. Also, Applicant was reported to have worked for a government contractor since January 2010 and to have used marijuana thereafter. Applicant’s e-QIPs (Items 4 and 5) show her date of birth as February 1988 and employment start-date in September 2010. The Government’s FORM essentially summarizes its position about Applicant’s security suitability and the administrative judge is not bound by any representations therein. 3 degree in four years and to then attend law school, Applicant stayed in college during her pregnancy and after her daughter’s birth in November 2007. She worked part time as an attendant at a parking garage from September 2007 to November 2007 as well. (Items 4- 6.) Applicant became overly stressed because of instability in her and her then fiancé’s relationship and the demands of her full academic workload while caring for a newborn. In January 2008, she resumed socializing with her friends. She and her fiancé also began spending more time together out of the home. Over the next 2.5 years, Applicant smoked marijuana at least 10 to 15 times (Item 2.), if not up to twice a month. (Item 6.) The drug was given to her by friends or by her then fiancé. Applicant had no connection with her fiancé’s drug supplier. In July 2009, Applicant and her fiancé ended their relationship. Applicant moved in with a family in the area, and no illegal drugs were allowed in the home. (Items 2, 6.) Applicant worked part time from September 2008 until May 2010, as an office assistant at a legal clinic near the university. In April 2010, Applicant’s ex-fiancé filed for custody of their daughter. Joint custody was awarded, although Applicant was awarded physical custody. (Item 6.) In May 2010, Applicant was awarded her bachelor’s degree with a cumulative 3.5 GPA. (Items 2, 4-6.) In early June 2010, Applicant smoked marijuana during a short visit with a high school friend in another state nearby. (Item 2.) Later that month, Applicant moved back East into her parents’ house with her daughter. (Items 2, 4- 6.) Applicant spent the summer of 2010 looking for work, enjoying time with her daughter, and relaxing at the beach. (Item 6.) In September 2010, Applicant began working for her current employer as an administrative assistant and receptionist. (Items 4-6; AEs B, C.) As a cleared facility, the company received a substantial amount of classified material. Because Applicant would be receiving classified shipments, she completed and certified an Electronic Questionnaire for Investigations Processing (e-QIP) on September 27, 2010, for a secret security clearance. (Item 5; AE B.) When asked whether she had used any illegal drug, including marijuana, in the last seven years, Applicant responded “No.” (Item 5.) Applicant did not disclose her marijuana use because she feared it may have a negative impact on her employment and future. (Item 6.) Applicant displayed maturity, initiative, and intelligence on the job. (AE B.) She completed various online security courses offered by the Defense Security Service, including the courses required of a facility security officer (FSO). By November 2010, the security workload had increased to necessitate Applicant’s appointment as AFSO. (AE B.) On November 4, 2010, Applicant completed and certified an e-QIP for a top secret security clearance. In response to question 23.a, concerning any illegal use of a controlled substance in the last seven years, Applicant answered “Yes,” but she disclosed only a single use of marijuana in November 2004 (“Tried it once with friends my junior year of high school, and I had an adverse reaction that made me nauseas [sic], disoriented, and very uncomfortable.”). (Item 4.) On December 3, 2010, Applicant was interviewed by an authorized investigator for the Office of Personnel Management (OPM) about the information on her November 2010 4 e-QIP. Applicant indicated that her ex-boyfriend was paying child support at $220 per month for their daughter. She reported having contact with him twice a week when she dropped off her daughter. Concerning her listed drug use in November 2004, Applicant told the investigator that she tried marijuana out of curiosity at a party. She reported feelings of nausea and maintained it was an isolated incident not part of a pattern. She denied any intent to use an illegal controlled substance in the future. Applicant later volunteered that she had used marijuana 10 to 15 times in college between January 2008 and June 2010 to relax. She claimed she tried to list this drug use on her e-QIP, but she had “technical difficulties.” Applicant subsequently admitted that she had not listed her marijuana use on her e-QIP because she feared the potential negative impact on her employment and future, although she denied the intent to conceal or falsify anything. She told the investigator that she had discussed the discrepancy with her FSO, who told her to explain the situation during her interview. (Item 6.) In response to DOHA drug interrogatories, Applicant indicated on April 12, 2012, that she had used marijuana “approximately every 2 weeks” with a first use in November 2004 and a last use in June 2010 for “stress/anxiety management.” She reported that she decided to stop using illegal drugs before she began looking for a full-time job. Her stress has been significantly reduced since she completed college and moved home, and she was not interested in continuing to use marijuana. Applicant denied any current possession of drugs or paraphernalia as well as any association with persons or places of known drug involvement. Also, Applicant denied any purchase of marijuana. A friend provided her the drug before his death on October 20, 2008. “After that, [her] ex-boyfriend would provide when [she] asked.” (Item 6.) On July 18, 2012, DOHA issued an SOR to Applicant because of her marijuana use from November 2004 to June 2010 and her lack of candor about that drug involvement on two e-QIPs. (Item 1.) In her August 8, 2012 answer to the SOR, Applicant indicated for the first time that she used no marijuana between March 2007 and January 2008. She denied any association with her former drug-using friends since she moved home, and asserted that her boyfriend of one year and “virtually [their] entire group of friends” have been involved in the Alcoholics Anonymous (AA) program for years. Applicant denied any intent to risk her professional accomplishments by using marijuana in the future. Applicant acknowledged she had made “a terrible choice” in falsifying her responses to question 23.a on her September 2010 and November 2010 e-QIP forms. She feared that the DSS and her co-workers would doubt her ability to perform her job, and also that her parenting ability would be questioned and custody litigation reopened by the court, if it became known that she had used marijuana after giving birth to her daughter. In mitigation, Applicant indicated that she had been honest during her interview about her drug involvement. She expressed regret at her decision to falsify her e-QIP. (Item 2.) In its October 5, 2012 FORM, the Government questioned Applicant’s claim of full disclosure during her December 2010 interview in that she had not reported her marijuana use between November 2004 and March 2007. In her October 24, 2012 rebuttal, Applicant denied that she had intentionally omitted the information. She asserted that her interview 5 primarily concerned her use in college, and she claimed to not realize this “mistake” until it was pointed out in the FORM. (AE A.) Applicant understands that any future use of marijuana would jeopardize a career in industrial security. She desires to continue to progress in the field and needs a security clearance to do so. (AE A.) Applicant has shown her employer that she is fully capable of performing the additional responsibilities of AFSO. She is involved in all aspects of the company security program, including classified document receipt, dissemination, and control; review of personnel applications for security clearance; and submission of classified visit requests. Applicant’s FSO, who has more than 40 years of experience in security and counterintelligence, trusts her “implicitly” to perform her duties “within the parameters of government regulations, and with the utmost discretion.” The FSO has known since shortly after Applicant’s interview with the OPM investigator that she had omitted information about her marijuana use from her e-QIP. In his opinion, Applicant addressed the issue to the best of her ability by voluntarily informing the investigator about her marijuana use. (AE B.) As of October 2012, Applicant had also assumed the duties of travel coordinator. The company’s manager of administration and travel has no concern about Applicant’s trustworthiness, integrity, and loyalty to the company. (AE C.) Policies The U.S. Supreme Court has recognized the substantial discretion the Executive Branch has 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). When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are required to be considered 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 overall adjudicative goal is a fair, impartial, and commonsense 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, 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. 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 6 mitigate facts admitted by applicant or proven by Department Counsel. . . .” The applicant has the ultimate 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 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 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. 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 Drug Involvement The security concern for drug involvement is set out in AG ¶ 24: 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. Under AG ¶ 24(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 hallucinogens), 2 and (2) inhalants and other similar substances. Under AG ¶ 24(b), drug abuse is defined as “the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.” Potentially disqualifying condition AG ¶ 25(a), “any drug abuse,” applies. Applicant smoked marijuana once to twice a month at parties between the fall of her junior year of high school in November 2004 and the second semester of her first year in college in March 2007, when she discovered she was pregnant with her daughter. She then apparently abstained from 2 Schedules I, II, III, IV, and V, as referred to in the Controlled Substances Act, are contained in 21 U.S.C. § 812(c). 7 marijuana until January 2008, 3 when she resumed smoking with her friends and her then fiancé. She told the OPM investigator in December 2010 (Item 6.), and reiterated in her response to the SOR (Item 2.), that she smoked marijuana 10 to 15 times from January 2008 until June 2010. She discrepantly told DOHA in April 2012 that she used marijuana about once every two weeks. Whether she used it 10 to 15 times over the 2.5 years or as many as 60 times, her marijuana use cannot fairly be described as “an isolated incident and not part of a pattern.” AG ¶ 25(c), “illegal drug possession, including cultivation, processing, manufacture, purchase, sale or distribution; or possession of drug paraphernalia,” is established only in that she had physical control of marijuana when she used it. Applicant obtained the drug from friends or from her former fiancé. Although marijuana was provided to her free of charge, there were occasions where she sought out the drug. Mitigating condition 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,” cannot reasonably apply. She used it once or twice a month for over two years before her pregnancy and with a similar frequency after her daughter was born. Her involvement with marijuana continued until early June 2010, just a few months before she applied for her secret clearance. Concerning AG ¶ 26(b), “a demonstrated intent not to abuse any drugs in the future,” can be shown by “(1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence; or (4) a signed statement of intent with automatic revocation of clearance for any violation.” Applicant denies socializing with those friends involved in her marijuana use since she moved back home in June 2010, and there is no evidence to the contrary. Applicant’s ex-fiancé, with whom she smoked marijuana in the past, was living near her as of December 2010. Applicant had ongoing contact with him twice weekly, but only when dropping off their daughter. The record does not show that Applicant attends parties or other social events where illegal drugs are present. AG ¶¶ 26(b)(1), 26(b)(2), and 26(b)(3) apply in light of her sustained commitment to a drug-free lifestyle over the past two years. Applicant has consistently denied in writing any intent of future illegal drug use, so she has the intent required for mitigation under AG ¶ 26(b)(4), even in the absence of an expressed acknowledgement in writing that her clearance will be revoked for any violation. Applicant understands that any use of marijuana is inconsistent with a career in the field of industrial security. Her desire to progress in the field is a significant deterrent to any future illegal drug involvement. Personal Conduct The security concern for personal conduct is set out in AG ¶ 15: 3 While one could infer from Applicant’s response to DOHA drug interrogatories (Item 6) that she smoked marijuana about twice a month from November 2004 to June 2010, her more recent claim of abstention between March 2007 and January 2008 is credible in light of her pregnancy. 8 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 exercised poor judgment implicating AG ¶ 15 by using marijuana, but the conduct is more appropriately covered under Guideline H. While the drug involvement concerns are mitigated for the reasons discussed above, Applicant raised serious concerns for her personal conduct by misrepresenting her illegal drug involvement on two separate security clearance applications. On her September 2010 e-QIP, she falsely denied that she had illegally used any controlled dangerous substance, including marijuana, in the preceding seven years. On her November 2010 e-QIP, she disclosed that she used marijuana only once in November 2004 and that she had an adverse reaction to the drug. The obvious inference is that she did not use it again because of the nausea, disorientation, and uncomfortable effect the drug had on her. Applicant’s deliberate misrepresentations establish 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 qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities. Applicant’s case for mitigation under AG ¶ 17(a), “the individual made prompt, good- faith efforts to correct the omission, concealment, or falsification before being confronted with the facts,” is not persuasive for several reasons. She had an opportunity to correct her September 2010 falsification when she completed her e-QIP for her top secret clearance in November 2010. Instead, she compounded the doubts about her trustworthiness by reporting on her November 2010 e-QIP only a single instance of marijuana use. During her December 2010 interview, Applicant volunteered to the investigator that she smoked marijuana 10-15 times to relax from January 2008 to June 2010. In her April 2012 response to drug interrogatories, Applicant indicated that she used marijuana between November 2004 and June 2010, “approximately every 2 weeks.” Applicant may have not intended the twice monthly frequency to apply to the entire period. She indicated more recently, in response to the SOR, that she first used marijuana in November 2004; smoked it socially at parties before March 2007; abstained from March 2007 until January 2008; and smoked it 10-15 times from January 2008 until June 2010, but as she acknowledged in April 2012 and again in August 2012, she used marijuana from November 2004 to March 2007. She did not tell the OPM investigator about that use. Applicant claims the omission (“mistake”) was inadvertent, in that the interview was focused on her drug use in college. Yet, some of her undisclosed marijuana use occurred during her first year of college (i.e., her use from August 2006 to March 2007). Furthermore, when discussing her November 2004 marijuana use during the interview, Applicant reported that it was an isolated instance 9 not part of a pattern. She also falsely claimed that she tried to disclose her marijuana use from January 2008 to June 2010 on her e-QIP but had technical difficulties. “Deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative,” is conduct of the type contemplated in AG ¶ 16(b) of Guideline E, although it was not alleged in the SOR so cannot be a separate basis for disqualification. 4 AG ¶ 17(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,” is not pertinent to falsification of two security clearance applications signed under an advisement that a knowing and willful false statement can be punished by fine or imprisonment or both under 18 U.S.C. § 1001. Deliberate false statements made on a security clearance application are serious, and when repeated, it is very difficult to apply AG ¶ 17(c). With due consideration to Applicant being the sole source of information about her illegal drug use, and her apologies for her deliberate misrepresentations, her repeated falsifications are only partially mitigated under AG ¶ 17(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.” Applicant has demonstrated an unacceptable tendency to minimize or justify her misconduct. She claims to not have realized, until it was pointed out in the FORM, that she did not tell the investigator about her marijuana abuse between November 2004 and March 2007. Also, she has yet to explain why, if she was being completely honest during her interview, she told the investigator that she had tried to report her drug use on her e-QIP when she knew she had intentionally omitted her drug use because of its potential impact on her employment. 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 her conduct and all relevant circumstances in light of the nine adjudicative process factors listed at AG ¶ 4 In ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006) the Appeal Board listed five circumstances in which conduct not alleged in an SOR may be considered stating: (a) to assess an applicant’s credibility; (b) to evaluate an applicant’s evidence of extenuation, mitigation, or changed circumstances; (c) to consider whether an applicant has demonstrated successful rehabilitation; (d) to decide whether a particular provision of the Adjudicative Guidelines is applicable; or (e) to provide evidence for whole person analysis under Directive Section 6.3. Id. (citing ISCR Case No. 02-07218 at 3 (App. Bd. Mar. 15, 2004); ISCR Case No. 00-0633 at 3 (App. Bd. Oct. 24, 2003)). Applicant’s representations during her interview were considered solely for these purposes. 10 2(a). 5 In making the overall commonsense determination required under AG ¶ 2(c), I have to consider Applicant’s poor judgment in abusing controlled substances. Applicant’s youth and academic pressures cannot fully extenuate her more than five years of relatively frequent marijuana use. She resumed smoking marijuana after giving birth to her daughter and continued smoking while involved in a custody battle for her daughter in court. Applicant has mitigated the serious drug involvement concerns by committing herself to a drug-free lifestyle since she moved back home in June 2010. Early on in her defense contractor employment, she falsified two security clearance applications and was less than fully candid in her interview with an OPM investigator. Sometime in 2011, Applicant assumed AFSO duties, which have heightened her knowledge about the security process, including the need for full candor in investigations and adjudications. While she has performed her security duties capably, it was not until April 2012 that she fully apprised the Government of her illegal drug involvement. The evidentiary record establishes the piecemeal nature of her disclosure, which is inconsistent with the judgment that must be demanded of those persons granted access to classified information. It is well settled that once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9 th Cir. 1990). Based on the facts before me and the adjudicative guidelines that I am bound to consider, for the aforesaid reasons, I am unable to conclude that it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance at this time. 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: FOR APPLICANT Subparagraph 1.a: For Applicant Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraph 2.a: For Applicant Subparagraph 2.b: Against Applicant Subparagraph 2.c: Against Applicant 5 The factors under AG ¶ 2(a) are as follows: (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. 11 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 eligibility for a security clearance. Eligibility for access to classified information is denied. ________________________ Elizabeth M. Matchinski Administrative Judge