1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-00145 ) Applicant for Security Clearance ) Appearances For Government: Alison O’Connell, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ GARCIA, Candace Le’i, Administrative Judge: Applicant did not mitigate the drug involvement and personal conduct security concerns. Eligibility for access to classified information is denied. Statement of the Case On February 8, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines H (drug involvement) and E (personal conduct). The action was taken under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the DOD on September 1, 2006. Applicant responded to the SOR on March 10, 2016, and elected to have the case decided on the written record in lieu of a hearing. The Government’s written case was submitted on May 2, 2016. A complete copy of the file of relevant material (FORM) was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant 2 received the FORM on May 6, 2016. Applicant’s June 2016 response is marked as Applicant’s Exhibit (AE) 1. The case was assigned to me on March 10, 2017. The Government documents identified as Items 1 through 8 and AE 1 are admitted in evidence without objection. Findings of Fact Applicant is a 27-year-old employee of a defense contractor. He has worked for his current employer since January 2015. He obtained a high-school diploma in 2008, and a bachelor’s degree in 2012. He attended classes towards a master’s degree from August to December 2014. He worked on a U.S. military base from November 2010 through August 2012, and for a prior defense contractor from January 2013 to January 2015. He was granted a DOD security clearance in August 2014. As of February 2015, he had never married and had no children.1 Applicant used illegal drugs from 2007 to early 2015. He used marijuana from approximately 2007 to 2012, LSD in approximately 2012 and 2014, and hallucinogenic mushrooms in approximately 2012, 2014, and 2015. He used illegal drugs after he was granted a DOD security clearance in August 2014. He also purchased illegal drugs. He purchased marijuana between 2008 and 2010, and hallucinogenic mushrooms in 2012. As of his February 2016 response to interrogatories, Applicant’s roommate used marijuana.2 Applicant intentionally failed to report his use and purchase of illegal drugs on two Questionnaires for National Security Positions (SF 86), which he submitted in March 2014 and February 2015.3 Above his signature, he certified: My statements on this form, and on any attachments to it, are true, complete, and correct to the best of my knowledge and belief and are made in good faith. . . . I understand that a knowing and willful false statement on this form can be punished by fine or imprisonment or both (18 U.S.C 1001). I understand that intentionally withholding, misrepresenting, or falsifying information may have a negative effect on my security clearance, employment prospects, or job status, up to and including denial or revocation of my security clearance, or my removal and debarment from Federal service.4 1 Items 5-8; AE 1. 2 Items 1, 4-8; AE 1. 3 Items 1, 4-8; AE 1. While not alleged in the SOR, Applicant also intentionally failed to report his illegal marijuana use in response to section 14 of the SF 86 that he submitted in January 2011. Applicant stated that he believed that he would not be able to get a job if he admitted to smoking marijuana. Items 5-8; AE 1. 4 Items 1, 4-7; AE 1. 3 Applicant was interviewed for his background investigation on May 8, 2015. During that interview, Applicant indicated that he had not illegally used or purchased any drug or controlled substance. He subsequently telephoned the background investigator on May 11, 2015, and indicated that he was not entirely truthful on his prior SF 86s and during his prior interview, and wanted to “clear the air” in person. When he was interviewed on May 13, 2015, he voluntarily disclosed his use and purchase of illegal drugs. He stated that he last used illegal drugs in September 2014. In his February 2016 response to interrogatories, Applicant stated that he last used illegal drugs in early 2015 and thought he had reported such during his May 13, 2015 interview.5 Applicant indicated in his May 13, 2015 interview, and June 2016 response to the FORM, that he did not report his use and purchase of illegal drugs on his prior SF 86s because he was terrified of not getting his security clearance and losing his job.6 Applicant stated in his June 2016 response to the FORM that after his May 8, 2015 interview: The next morning, around 2:00 A.M. on Saturday, I called my father telling him what I did and how I have lied. I was terrified of the consequences but I did not want the skeleton in my closet anymore. I told him I wanted to confess but was scared. During that talk, I realized that the only way for me to move forward and to not be afraid of my past, was to confess to everything. After he received the SOR, Applicant stated that he informed his FSO and manager and confessed to them about his past.7 Policies 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 to be used 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, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching 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 5 Items 4-8; AE 1. 6 Items 4-8; AE 1. 7 AE 1. 4 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.” Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the 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 the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that adverse decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). Analysis Guideline H, Drug Involvement 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. The guideline notes conditions that could raise security concerns under AG ¶ 25. The disqualifying conditions potentially applicable in this case include: (a) any drug abuse;8 8 Drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction. 5 (c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and (g) any illegal drug use after being granted a security clearance. Applicant used illegal drugs from 2007 to early 2015. He used illegal drugs after he was granted a DOD security clearance in August 2014. Applicant also purchased illegal drugs between 2008 and 2012. AG ¶¶ 25(a), 25(c), and 25(g) are applicable. AG ¶ 26 provides conditions that could mitigate security concerns. The following are potentially applicable: (a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; and (b) a demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence; and (4) a signed statement of intent with automatic revocation of clearance for any violation. Applicant has not used marijuana or purchased illegal drugs since 2012. However, his drug involvement continued when he used LSD in 2012 and late 2014, and hallucinogenic mushrooms in 2012, 2014, and early 2015. He held a DOD security clearance when he used LSD in 2014, and hallucinogenic mushrooms in 2014 and 2015. As of February 2016, Applicant’s roommate used marijuana. Applicant has not demonstrated an appropriate period of abstinence from illegal drug use, or that the use and purchase of illegal drugs are unlikely to recur. AG ¶¶ 26(a) and 26(b) are not applicable. Guideline E, Personal Conduct The security concern for personal conduct is set out in AG ¶ 15, as follows: 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. 6 AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying. The following disqualifying conditions are potentially applicable: (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; 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 any may serve as a basis for exploitation or pressure by the foreign security or intelligence service or other group. Applicant used illegal drugs from 2007 to early 2015. He used illegal drugs after he was granted a DOD security clearance in August 2014. Applicant also purchased illegal drugs between 2008 and 2012. Applicant intentionally provided false information about his use and purchase of illegal drugs on his SF 86s from March 2014 and February 2015. AG ¶¶ 16(a) and 16(e) are applicable. AG ¶ 17 provides conditions that could mitigate security concerns. The following are potentially applicable: (a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; (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; and (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; (g) association with persons involved in criminal activity has ceased or occurs under such circumstances that do not cast doubt upon the individual’s reliability, trustworthiness, judgment, or willingness to comply with rules and regulations. 7 Applicant corrected his false SF 86s from March 2014 and February 2015 during his background interview on March 13, 2015, and in his February 2016 response to interrogatories. He stated that he did not report his use and purchase of illegal drugs on his SF 86s because he was terrified of not getting his security clearance and losing his job. The corrections were not prompt, but Applicant is credited with disclosing the information to the investigator and in his response to interrogatories. AG ¶ 17(a) is partially applicable. After he received the SOR, Applicant stated that he informed his FSO and manager and confessed to them about his past. AG ¶ 17(e) is applicable. Notwithstanding, I have continuing concerns. Applicant’s overall use of illegal drugs spans an eight-year period. His last use of illegal drugs occurred in early 2015. He used illegal drugs while holding a DOD security clearance. As of February 2016, his roommate used marijuana. Further, Applicant certified that he was aware that he was committing a criminal offense punishable by fine, imprisonment, or both, and that falsifying information could cause him to be denied a security clearance and lose his job. Despite those certifications, he decided to falsify his SF 86s. I am unable to determine that the conduct is unlikely to recur. It continues to cast doubt on Applicant’s current reliability, trustworthiness, and good judgment. AG ¶¶ 17(c), 17(d), and 17(g) are not applicable. I find that personal conduct security concerns remain despite the presence of some mitigation. 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. Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must be an overall commonsense judgment based upon careful consideration of the guidelines and the whole-person concept. I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. I have incorporated my comments under Guidelines H and E in this whole-person analysis. 8 Applicant used illegal drugs between 2007 and 2015, purchased illegal drugs between 2008 and 2012, and then lied about it on his SF 86s because he was afraid it could affect his job. Self-reporting is a fundamental requirement for clearance holders. I am concerned that he may again choose to lie to protect his job. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. I conclude Applicant did not mitigate the drug involvement and personal conduct security concerns. 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-1.f: Against Applicant Paragraph 2, Guideline E: Against Applicant Subparagraphs 2.a-2.c: Against Applicant 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 continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied. ________________________ Candace Le’i Garcia Administrative Judge