1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-02098 ) Applicant for Security Clearance ) Appearances For Government: Caroline E. Heintzelman, Esq., Department Counsel For Applicant: Pro se __________ Decision __________ Harvey, Mark, Administrative Judge: Applicant possessed and used marijuana on about 10 to 12 occasions from August 2014 to July 2015 and twice in December 2015. His most recent marijuana use was after completion of his security clearance application (SCA). More time without illegal drug use is necessary to fully mitigate drug involvement security concerns. Personal conduct security concerns are mitigated. Eligibility for access to classified information is denied. Statement of the Case On October 22, 2015, Applicant submitted his Electronic Questionnaire for National Security Positions (e-QIP) or SCA (SF 86). (GE 1) On September 1, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a statement of reasons (SOR) to Applicant, pursuant to Executive Order (Exec. Or.) 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), the President promulgated on December 29, 2005. 2 The SOR alleged security concerns under Guidelines H (drug involvement) and E (personal conduct). (Hearing Exhibit (HE) 2) The SOR detailed reasons why DOD was unable to find that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant, and it recommended that his case be submitted to an administrative judge for a determination whether his clearance should be granted or revoked. On October 5, 2016, Applicant responded to the SOR and waived his right to a hearing. (HE 3) On October 19, 2016, Department Counsel requested a hearing. (HE 4) On October 25, 2016, Department Counsel indicated she was ready to proceed on Applicant’s case. On November 10, 2016, Applicant’s case was assigned to me. On November 17, 2016, DOD issued a hearing notice, setting the hearing for December 7, 2016. (HE 1) Applicant’s hearing was held as scheduled. Department Counsel offered two exhibits; Applicant offered two exhibits; there were no objections; and all documents were admitted into evidence. (Tr. 14-16; Government Exhibits (GE) 1-2; Applicant Exhibits (AE) A-B) Additionally, I admitted the hearing notice, SOR, Applicant’s response to the SOR, and Department Counsel’s request for a hearing. (HE 1-4) On December 15, 2016, I received the transcript. Findings of Fact1 Applicant admitted the conduct alleged in SOR ¶¶ 1.a, 1.b, and 2.a. (HE 3) His admissions are accepted as findings of fact. He also provided some mitigating information. After a complete and thorough review of the evidence of record, I make the following additional findings of fact. Applicant is a 23-year-old employee of a defense contractor, who has been employed by the defense contractor since October 2015. (Tr. 5-6; GE 1) In 2011, he graduated from high school, and in 2015, he received a bachelor of science degree in aerospace engineering. (Tr. 6) He has no prior military service. (Tr. 5) He has never married. There is no evidence of security violations. Drug Involvement and Personal Conduct In Section 23, of Applicant’s October 22, 2015 SCA, he disclosed that he used marijuana occasionally on weekends from February 2014 to July 2015. (SOR response ¶ 1.a; GE 1) He estimated that he used marijuana 10 to 12 times from August 2014 to July 2015. (Tr. 18) He purchased small amounts of marijuana for personal recreational use from August 2014 to July 2015 “to get high.” (SOR response ¶ 1.b; Section 23, GE 1) In September 2015, his employer urinalysis tested Applicant for illegal drug use as part of the hiring process, and he tested negative for illegal drugs. (Tr. 20) In October 2015, he began working for his employer, and he was aware that his employer prohibited marijuana use. (Tr. 20-21) 1The facts in this decision do not specifically describe employment, names of witnesses or locations in order to protect Applicant and his family’s privacy. The cited sources contain more specific information. 3 In December 2015, Applicant purchased enough marijuana for two joints, and he smoked marijuana twice with a close friend on the same weekend.2 (Tr. 16, 24; April 25, 2016 Office of Personnel Management (OPM) personal subject interview (PSI); GE 2) Applicant and his friend ended their marijuana use in December 2015. (Tr. 25) Applicant continues to associate with the friend with whom he used marijuana repeatedly over the last four years. (Tr. 25, 29) Applicant did not disclose his marijuana use to his supervisor because he was fearful of losing his employment. (Tr. 27) In December 2015, he was not aware that his marijuana use was a crime because his purchase, possession, and use of marijuana was lawful under state law. (Tr. 27) He understands his marijuana use was illegal under federal law, and he promised not to use it in the future. (Tr. 27) SOR ¶ 2.a alleges Applicant provided false information in his October 22, 2015 SCA when he said he did not intend to use marijuana in the future. (GE 1) Applicant said he was being truthful about his intention to refrain from future illegal drug use at the time he completed his SCA. (Tr. 19-20; SOR response) Applicant was never granted a security clearance. (Tr. 28) Applicant promised to “avoid any use, possession, production or distribution of illegal drugs while possessing a security clearance.” (AE B) He understands that any violation will result in automatic revocation of his security clearance. (AE B) Character Evidence Applicant’s manager said Applicant has “a high degree of integrity, honesty, and aptitude.” (AE A) He “has been a tremendous addition to the team and has performed his duties admirably. [He] is able to work on challenging tasks with limited supervision and understands the importance of his day-to-day activities in supporting the war fighter. . . .” (AE A) He is a diligent worker, who is dedicated to his team and his company. (AE A) His manager’s statement supports approval of Applicant’s security clearance. (AE A) 2Applicant’s SOR does not allege that he used marijuana from February 2014 to July 2014, and in December 2015. 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)). See also ISCR Case No. 12-09719 at 3 (App. Bd. April 6, 2016) (citing ISCR Case No. 14-00151 at 3, n. 1 (App. Bd. Sept. 12, 2014); ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006)). Applicant’s marijuana use from February 2014 to July 2014, and in December 2015, will not be considered except for the five purposes listed above. 4 Policies 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). As Commander in Chief, the President 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.” Id. at 527. The President has authorized the Secretary of Defense or his designee 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 and modified. Eligibility for a security clearance is predicated upon meeting the criteria contained in the adjudicative guidelines (AG). These guidelines 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 overarching 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. 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 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. Adverse clearance decisions are made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the [a]pplicant concerned.” See Exec. Or. 10865 § 7. See also Executive Order 12968 (Aug. 2, 1995), Section 3. Nothing in this decision should be construed to suggest that I 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 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 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 5 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 Drug Involvement AG ¶ 24 articulates the security concern concerning drug involvement: [u]se 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. The disqualifying conditions in AG ¶¶ 25(a) and 25(c) could raise a security concern and may be disqualifying in this case: “any drug abuse”;3 and “illegal drug possession.” Applicant used and possessed marijuana on about 10 to 12 occasions from August 2014 to July 2015.4 AG ¶¶ 25(a) and 25(c) apply. AG ¶ 26 provides for 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; 3AG ¶ 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.” 4AG ¶ 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. Schedules I, II, III, IV, and V, as referred to in the Controlled Substances Act are contained in 21 U.S.C. § 812(c). Marijuana is a Schedule (Sch.) I controlled substances. See Drug Enforcement Administration listing at http://www.deadiversion.usdoj.gov/21cfr/cfr/1308/1308 11.htm. See also Gonzales v. Raish, 545 U.S. 1 (2005) (discussing placement of marijuana on Schedule I). 6 (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 (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. The Appeal Board concisely explained Applicant’s responsibility for proving the applicability of mitigating conditions as follows: Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b). ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013). AG ¶ 26(a) can mitigate security concerns when drug offenses are not recent. There are no “bright line” rules for determining when such conduct is “recent.” The determination must be based “on a careful evaluation of the totality of the record within the parameters set by the directive.” ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). If the evidence shows “a significant period of time has passed without any evidence of misconduct,” then an administrative judge must determine whether that period of time demonstrates “changed circumstances or conduct sufficient to warrant a finding of reform or rehabilitation.”5 5ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). In ISCR Case No. 04-09239 at 5 (App. Bd. Dec. 20, 2006), the Appeal Board reversed the judge’s decision denying a clearance, focusing on the absence of drug use for five years prior to the hearing. The Appeal Board determined that the judge excessively emphasized the drug use while holding a security clearance, and the 20 plus years of drug use, and gave too little weight to lifestyle changes and therapy. For the recency analysis the Appeal Board stated: 7 Applicant stopped using marijuana in December 2015, and he resolved not to use marijuana in the future. He recognized the adverse impact of drug abuse in connection with access to classified information, and he expressed remorse about using marijuana while employed by a defense contractor. He also understands that possession of marijuana violates federal law. I accept Applicant’s statement that he intends to continue to abstain from illegal drug possession and use as truthful. AG ¶ 26(a) partially applies to his possession and use of illegal drugs;6 however, more time without illegal drug use is necessary to fully apply AG ¶ 26(a). AG ¶ 26(b) provided some mitigating evidence. He stated his intention not to abuse any illegal drugs in the future, and the person that used marijuana with him has ceased his marijuana use. His period of abstinence is December 2015 to December 2016, which in this instance is insufficient. He provided a signed statement of intent with automatic revocation of clearance for any violation. AG ¶¶ 26(c) and 26(d) are not applicable. Applicant did not abuse drugs after being issued a prescription that is lawful under federal law. He did not complete a drug counseling or treatment program. In sum, Applicant used and possessed marijuana on about 10 to 12 occasions from February 2014 to July 2015 and twice in December 2015. Each time he possessed marijuana he violated federal criminal law. He violated security rules and his employer’s policy against illegal drug use. He understands the adverse consequences from marijuana use;7 however, he has not shown or demonstrated a sufficient track record of Compare ISCR Case No. 98-0394 at 4 (App. Bd. June 10, 1999) (although the passage of three years since the applicant's last act of misconduct did not, standing alone, compel the administrative judge to apply Criminal Conduct Mitigating Condition 1 as a matter of law, the Judge erred by failing to give an explanation why the Judge decided not to apply that mitigating condition in light of the particular record evidence in the case) with ISCR Case No. 01-02860 at 3 (App. Bd. May 7, 2002) (“The administrative judge articulated a rational basis for why she had doubts about the sufficiency of Applicant's efforts at alcohol rehabilitation.”) (citation format corrections added). In ISCR Case No. 05-11392 at 1-3 (App. Bd. Dec. 11, 2006) the Appeal Board, affirmed the administrative judge’s decision to revoke an applicant’s security clearance after considering the recency analysis of an administrative judge stating: The administrative judge made sustainable findings as to a lengthy and serious history of improper or illegal drug use by a 57-year-old Applicant who was familiar with the security clearance process. That history included illegal marijuana use two to three times a year from 1974 to 2002 [drug use ended four years before hearing]. It also included the illegal purchase of marijuana and the use of marijuana while holding a security clearance. 6In ISCR Case No. 02-08032 at 8 (App. Bd. May 14, 2004), the Appeal Board reversed an unfavorable security clearance decision because the administrative judge failed to explain why drug use was not mitigated after the passage of more than six years from the previous drug abuse. 7Approval of a security clearance, potential criminal liability for possession of drugs and adverse health, employment, and personal effects resulting from drug use are among the strong motivations for remaining drug free. 8 abstention from illegal drug use to eliminate drug involvement as a bar to his access to classified information. His marijuana use after completing an SCA and stating he did not intend to use marijuana in the future weighs against approval of access to classified information because they show a lack of reform and rehabilitation. Drug involvement security concerns are not mitigated at this time. Personal Conduct AG ¶ 15 expresses the security concern pertaining to personal conduct: 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. AG ¶ 16 describes one condition that could raise a security concern and may be disqualifying in this case: (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. SOR ¶ 2.a alleges Applicant provided false information in his October 22, 2015 SCA when he said he did not intend to use marijuana in the future. Applicant said he was being truthful about his intention to refrain from future illegal drug use at the time he completed his SCA. Applicant used marijuana twice in December 2015. Applicant has refuted the allegation that he falsified his October 22, 2015 SCA. He voluntarily disclosed his history of marijuana use on his SCA, and he honestly stated his intention when completing his SCA, and that was, not to use marijuana while employed by a DOD contractor. Personal conduct security concerns are mitigated. 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 the 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 9 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. My comments under Guidelines H and E are incorporated into my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under Guidelines H and E, but some warrant additional comment. Applicant is a 23-year-old employee of a defense contractor, who has been employed as by the defense contractor since October 2015. In 2011, he graduated from high school, and in 2015, he received a bachelor of science degree in aerospace engineering. Applicant’s manager said Applicant has integrity, honesty, aptitude, and diligence. He has contributed to accomplishment of his employer’s mission. His manager’s statement supports approval of Applicant’s security clearance. The evidence against continuation of Applicant’s clearance is more substantial. Applicant possessed and used marijuana on about 10 to 12 occasions from February 2014 to July 2015 and twice in December 2015. He violated federal criminal law; he violated security rules; and he violated his employer’s policy against illegal drug use. His marijuana use after completing an SCA and stating he did not intend to use marijuana in the future weights against approval of access to classified information. His illegal drug possession and use raises issues about Applicant’s “reliability and trustworthiness, both because it may impair judgment and because it raises questions about [his] ability or willingness to comply with laws, rules, and regulations.” AG ¶ 24. He has not demonstrated a sufficient track record of abstention from illegal drug use to eliminate drug involvement as a bar to his 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 or renewal of a security clearance. See Dorfmont, 913 F. 2d at 1401. Unmitigated drug involvement concerns lead me to conclude that continuation of a security clearance to Applicant is not warranted at this time. This decision should not be construed as a determination that Applicant cannot or will not attain the state of reform necessary for award of a security clearance in the future. With more time without abuse of illegal drugs, he may well be able to demonstrate persuasive evidence of his security clearance worthiness. I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. I conclude Applicant mitigated personal conduct security concerns; however, he did not fully mitigate the security concerns pertaining to drug involvement. 10 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 Subparagraph 1.c: For Applicant Paragraph 2, Guideline E: FOR APPLICANT Subparagraph 2.a: For Applicant 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. _________________________ Mark Harvey Administrative Judge