1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ------------------------------------- ) ISCR Case No. 16-00697 ) Applicant for Security Clearance ) Appearances For Government: Mary Margaret Foreman, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ LEONARD, Michael H., Administrative Judge: Applicant contests the Defense Department’s intent to deny him eligibility for access to classified information. He did not present sufficient evidence to explain, extenuate, or mitigate the security concern stemming from his illegal drug involvement, which included periodic use of marijuana during 2003-2013 and three drug-related incidents of criminal conduct. In addition, he failed to file on a timely basis state income tax returns for tax years 2010, 2011, and 2014. Accordingly, this case is decided against Applicant. Statement of the Case Applicant completed and submitted a Questionnaire for National Security Positions (SF 86 format) on June 3, 2015. This document is commonly known as a security clearance application. Thereafter, on June 22, 2016, after reviewing the application and the information gathered during a background investigation, the Department of Defense Consolidated Adjudications Facility, Fort Meade, Maryland, sent Applicant a statement of reasons (SOR), explaining it was unable to find that it was clearly consistent with the national interest to grant him eligibility for access to classified 2 information.1 The SOR is similar to a complaint. It detailed the factual reasons for the action under the security guidelines known as Guideline H for drug involvement, Guideline E for personal conduct, and Guideline F for financial considerations. He answered the SOR with a four-page memorandum on July 11, 2016, and he requested a hearing. The case was assigned to me October 11, 2016. The hearing was held as scheduled on November 9, 2016. Department Counsel offered Exhibits 1-3, and they were admitted. Applicant testified on his own behalf and offered Exhibits A and B, which were admitted. The transcript of hearing (Tr.) was received November 16, 2016. Findings of Fact Applicant is a 34-year-old employee who requires a security clearance for his job as a system tester with a company doing business in the defense industry. He has worked for this company since May 2015. In addition to his full-time job, he is pursuing, with assistance from his employer, degrees in electrical engineering and computer engineering.2 His employment history includes active duty in the U.S. Navy during 2000- 2003, which ended in a discharge under other than honorable conditions (UOTH) due to misconduct.3 He married in 2001 or 2002 and divorced in approximately 2003.4 He is currently living with his girlfriend who was present at the hearing. They have lived together since about August 2013. He lives in a state that has approved the medical use of marijuana and no longer criminalizes personal use of marijuana. As alleged in the SOR, this case concerns Applicant’s illegal drug involvement, which consists primarily of his periodic marijuana use. It also concerns a workplace dispute that led to his termination from employment in 2013. He also failed to file state individual income tax returns on a timely basis for tax years 2010, 2011, and 2014. In his answer to the SOR, he admits the drug-involvement allegations; he admits a termination from employment in 2013, but explained he was fired for refusal to submit to drug testing; and he admits the failure to file the state income tax returns because he believed filing was unnecessary since he was owed a refund, and he is willing to file if he can obtain the necessary documentation. 1 This action was taken under Executive Order (E.O.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended, as well as Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive). In addition, the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), effective within the Defense Department on September 1, 2006, apply here. The AG were published in the Federal Register and codified in 32 C.F.R. § 154, Appendix H (2006). 2 Tr. 33-34. 3 Exhibit 1. An UOTH is a form of administrative discharge. This type of discharge is adverse, and it represents a clear departure from the conduct and performance expected of members of the U.S. armed forces. 4 Exhibit 1; Tr. 35-36. 3 Applicant admits using marijuana on a periodic basis during 2003-2013, with his last usage taking place near the end of 2013.5 He disclosed using marijuana in his 2015 security clearance application and during his 2015 background investigation.6 He also disclosed three drug-related incidents, the first of which took place while he was on active duty in the Navy. Applicant learned that his wife had left him and intended to divorce him in late 2002. He visited friends during the Christmas holidays and attended a party. He was intoxicated, someone handed him a joint, and he smoked it. He self-reported his marijuana use upon return to his ship. As a result, in March 2003, he received non- judicial punishment under Article 15, UCMJ, for wrongful use of a controlled substance. The following month, the Navy discharged him due to misconduct and his service was characterized as UOTH.7 He understands he received the UOTH discharge because the Navy was following a zero-tolerance policy for drug abuse, but his explanation of the circumstances was somewhat convoluted.8 In September 2005, the police stopped Applicant for speeding while he was making a cross-country move to his state of current residence.9 He gave the police permission to search his car and they found two packs of rolling papers. He was arrested for misdemeanor possession of drug paraphernalia, and his car was impounded. After sitting in jail for a few days, he agreed to plead guilty and pay a $1,000 fine in order to reduce his expenses and get on with his move. To date, the fine remains unpaid.10 In March 2006, Applicant and a small group of friends traveled by car to a next- door state for a camping trip.11 The driver of the car was stopped for speeding and gave the police permission to search the car. The police found a small amount of marijuana and a pipe used to smoke marijuana. The police charged everyone in the car with misdemeanor possession of marijuana and misdemeanor possession of drug paraphernalia. He spent a few hours in jail until he bailed himself out. He returned to the next-door state the following month, pleaded guilty to possession of marijuana, and was 5 Tr. 62-63. 6 Exhibits 1 and 2. 7 His UOTH discharge is alleged as a separate matter under Guideline E; however, it does not raise an independent security concern because the allegation merely recites the result or consequence of his drug misconduct, which is alleged and addressed under Guideline H. On that basis, the allegation in SOR ¶ 2.b is decided for Applicant. 8 Tr. 70-77. 9 Tr. 40-42. 10 Exhibit 10; Tr. 83-85. 11 Tr. 44-47. 4 sentenced to pay a fine of $587, which he stated that he paid via installment payments of $50.12 Applicant continued using marijuana on a periodic basis, usually using it with friends. He also continued to struggle, as shown by unstable employment with low- paying jobs, multiple residences, and a brief period of homelessness.13 It was during this period that he failed to file state income tax returns, because he assumed that he did not have to file a return if he was owed a refund. He has since filed the returns for 2010 and 2014, but he has been unable to obtain the necessary information to file for 2011.14 He filed the 2010 return sometime after June 22, 2016, and he filed the 2014 return on October 9, 2016.15 He received refunds of $329 and $178, respectively. He is current with filing his federal income tax returns and does not owe back taxes to the IRS or the state. One of Applicant’s many jobs was working as a graphic designer for a trophy and engraving business during 2012-2013, which ended in termination in August 2013. He disclosed in his security clearance application and background investigation that he was fired after refusal to take a drug test, which he viewed as illegal, and subsequently the state unemployment agency determined that his refusal was an illegal basis for termination.16 At the hearing, he explained the circumstances leading up to the termination and that the state granted him unemployment compensation due to an unreasonable termination.17 There is no evidence to contradict or rebut Applicant’s description of events on this employment matter.18 After the termination in 2013, and with the support of his girlfriend, Applicant decided it was time to return to school. He spent the fall months making the necessary preparations, and he began classes in January 2014. He last used marijuana sometime near of end of 2013, and he has not used marijuana or other illegal drugs in 2014, 2015, or 2016.19 He passed a pre-employment drug test when he began working for his current employer in 2015.20 He no longer associates with friends with whom he had 12 Exhibit 3; Tr. 46-47. 13 Tr. 47-51. 14 Exhibits A and B; Tr. 49-53. 15 Tr. 29-31. 16 Exhibits 1 and 2. 17 Tr. 54-58. 18 Because Applicant’s termination was found to be based on an unreasonable or illegal basis, this matter does not raise a security concern for personal conduct under Guideline E. Accordingly, the allegation in SOR ¶ 2.c is decided for Applicant. 19 Tr. 62-65. 20 Tr. 65. 5 used marijuana with the exception of one person who holds a medical-marijuana red card, and she does not use the drug in Applicant’s presence.21 Applicant stated that he does not intend to use marijuana regardless of state law permitting personal use.22 He further explained his intention as follows: Not while my job depends on it. That’s for sure. However, I cannot speak for what will happen in the future when I’m not under those same types of obligations. I was fully educated on the employee handbook, many, many polices of this company, all of the standard stuff that you would expect to see from any company, including things related to things, security clearances and stuff like that. I knew what I was getting myself into. I freely volunteered to do this, and I’m okay with that. And it’s not, it, my life has never been run by marijuana. It’s just like, you know, going out to have a drink. I’ve never in my life been in trouble for drinking at work. Why? Because that’s always not been okay. I’m going to follow the rules to the best of my ability, and I’m going to continue to remove anybody who’s a negative influence in my life. It did take me a couple of years to figure out who those negative influences were in some instances, but I’m more concerned with my future than my present. And because of that, I’m trying to find, I’m trying to get to the point where I can have a future.23 Law and Policies It is well-established law that no one has a right to a security clearance.24 As noted by the Supreme Court in Department of the Navy v. Egan, “the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.”25 Under Egan, Executive Order 10865, and the Directive, any doubt about whether an applicant should be allowed access to classified information will be resolved in favor of protecting national security. A favorable clearance decision establishes eligibility of an applicant to be granted a security clearance for access to confidential, secret, or top-secret information.26 An 21 Tr. 77-78. 22 Tr. 87-90. 23 Tr. 90-91. 24 Department of Navy v. Egan, 484 U.S. 518, 528 (1988) (“it should be obvious that no one has a ‘right’ to a security clearance”); Duane v. Department of Defense, 275 F.3d 988, 994 (no right to a security clearance). 25 484 U.S. at 531. 26 Directive, ¶ 3.2. 6 unfavorable clearance decision (1) denies any application, (2) revokes any existing security clearance, and (3) prevents access to classified information at any level.27 There is no presumption in favor of granting, renewing, or continuing eligibility for access to classified information.28 The Government has the burden of presenting evidence to establish facts alleged in the SOR that have been controverted.29 An applicant is responsible for presenting evidence to refute, explain, extenuate, or mitigate facts that have been admitted or proven.30 In addition, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision.31 In Egan, the Supreme Court stated that the burden of proof is less than a preponderance of evidence.32 The Appeal Board has followed the Court’s reasoning, and a judge’s findings of fact are reviewed under the substantial-evidence standard.33 Discussion Under Guideline H for drug involvement, the concern is that “use of an illegal drug or misuse of a prescription drug can raise questions about a [person’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.”34 In applying Guideline H to the facts of this case, I note that in an October 24, 2014 memorandum, the Director of National Intelligence reaffirmed that the disregard of federal law concerning use, sale, or manufacture of marijuana is relevant in national security determinations regardless of changes in state laws concerning marijuana use. Marijuana remains a Schedule I controlled substance under federal law, which means it is a drug that has no currently accepted medical use and has a high potential for abuse.35 In analyzing the facts of this case, I considered the following disqualifying and mitigating conditions: 27 Directive, ¶ 3.2. 28 ISCR Case No. 02-18663 (App. Bd. Mar. 23, 2004). 29 Directive, Enclosure 3, ¶ E3.1.14. 30 Directive, Enclosure 3, ¶ E3.1.15. 31 Directive, Enclosure 3, ¶ E3.1.15. 32 Egan, 484 U.S. at 531. 33 ISCR Case No. 01-20700 (App. Bd. Dec. 19, 2002) (citations omitted). 34 AG ¶ 24. 35 For information on federal drug schedules, go to http://www.dea.gov/druginfo/ds.shtml. 7 AG ¶ 25(a) any drug abuse; AG ¶ 25(c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and AG ¶ 26(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 were drugs were used; (3) an appropriate period of abstinence; and (4) a signed statement of intent with automatic revocation of clearance for any violation. I have considered the totality of Applicant’s periodic use of marijuana over a ten- year-period, which ended in late 2013. I also considered the three drug-related incidents that led to misdemeanor convictions in state court as well as non-judicial punishment and an UOTH discharge from the Navy. And I considered that Applicant has not paid the fine imposed on him from the 2005 misdemeanor conviction. Taken together, Applicant’s history of illegal drug involvement is not minor or trivial misconduct, and it needs to be weighed accordingly. Applicant presented a good case in reform and rehabilitation. It appears that he has turned a corner in his life, given up marijuana for the time being, enrolled in college to pursue engineering degrees, and obtained a good job with a defense contractor. It also appears that his girlfriend is a positive influence on him. He is credited with approximately three years of abstinence from marijuana use. Further, he stated that he has no intention of using marijuana in the future, although he qualified it or equivocated by noting that might change his mind depending on the circumstances. In addition, Applicant receives credit in mitigation because he voluntarily reported the information about his illegal drug involvement in his security clearance application, and he has been truthful and complete in responding to questions.36 His willingness to self-report is an important aspect of this case. Doing so speaks highly for his integrity, his willingness to comply with laws, rules, and regulations, and his overall suitability for access to classified information. Nevertheless, I remain concerned due to Applicant’s equivocation concerning future use of marijuana, the unpaid fine from the 2005 misdemeanor conviction, and the nature, extent, and seriousness of his illegal drug involvement. Accordingly, the matters under Guideline H are decided against Applicant.37 36 See generally AG ¶ 2(e)(1) – (2). 37 The drug matters under Guideline H are cross-alleged under Guideline E in SOR ¶ 2.a. The drug matters are appropriately addressed under Guideline H as the judgment and reliability concerns are similar if not the same. Accordingly, the allegation in SOR ¶ 2.a is decided for Applicant. 8 Under Guideline F for financial considerations,38 the suitability of an applicant may be questioned or put into doubt when that applicant has a history of excessive indebtedness or financial problems or difficulties. The overall concern is: Failure or inability to live within one’s means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about a [person’s] reliability, trustworthiness, and ability to protect classified information.39 The concern is broader than the possibility that a person might knowingly compromise classified information to obtain money or something else of value. It encompasses concerns about a person’s self-control, judgment, and other important qualities. A person who is financially irresponsible may also be irresponsible, unconcerned, or negligent in handling and safeguarding classified information. In analyzing the facts of this case, I considered the following disqualifying and mitigating conditions: AG ¶ 19(c) a history of not meeting financial obligations; AG ¶ 19(g) failure to file annual federal, state, or local income tax returns as required or the fraudulent filing of the same; and AG ¶ 20(c) the person has received or is receiving counseling for the problem and/or there are clear indications that the problem is being resolved or is under control. The evidence here supports a conclusion that Applicant has a problematic financial history sufficient to raise a security concern under Guideline F. His repeated failure to file state income tax returns bears close examination and is a matter of serious concern.40 The evidence shows he failed to file state returns on a timely basis for tax years 2010, 2011, and 2014. Moreover, he has only recently filed returns for 2010 and 2014, while the 2011 return is still past due. Applicant’s pattern of conduct is indicative of poor judgment and unreliability. His pattern of conduct also suggests that he has a problem with complying with well- established governmental rules and systems. Voluntary compliance with such rules and systems is essential for protecting classified information. An applicant who has a history 38 AG ¶¶ 18, 19, and 20 (setting forth the concern and the disqualifying and mitigating conditions). 39 AG ¶ 18. 40 The General Accountability Office (GAO) expressed serious concern over the relationship between tax delinquents and clearance holders in its July 28, 2014 report, Security Clearances: Tax Debts Owed by DOD Employees and Contractors, http://www.gao.gov/assets/670/665052.pdf. 9 of not fulfilling their tax obligations may be said not to have demonstrated the high degree of judgment and reliability required for access to classified information. Based on the record before me, I am unable to credit Applicant in explanation, extenuation, or mitigation of his past-due state returns. He has had ample time and opportunity since submitting his security clearance application in June 2015 to put his tax problems behind him. To his credit, he was able to finally file returns for two of the three years in question, but the third remains outstanding because he does not have the necessary paperwork. Applicant’s tax problems went on too long and are too recent to justify a favorable clearance decision. Accordingly, the matters under Guideline F are decided against Applicant.41 Taken together, Applicant’s history of illegal drug involvement and ongoing tax problems create doubt about his reliability, trustworthiness, good judgment, and ability to protect classified information. In reaching this conclusion, I weighed the evidence as a whole and considered if the favorable evidence outweighed the unfavorable evidence or vice versa. Accordingly, I conclude that he did not meet his ultimate burden of persuasion to show that it is clearly consistent with the national interest to grant him eligibility for access to classified information. Formal Findings The formal findings on the SOR allegations are: Paragraph 1, Guideline H: Against Applicant Subparagraphs 1.a – 1.d: Against Applicant Paragraph 2, Guideline E: For Applicant Subparagraphs 2.a – 2.d: For Applicant Paragraph 3, Guideline F: Against Applicant Subparagraph 3.a: Against Applicant Conclusion In light of the record as a whole, it is not clearly consistent with the national interest to grant Applicant access to classified information. Michael H. Leonard Administrative Judge 41 The matters under Guideline F are cross-alleged under Guideline E in SOR ¶ 2d. The tax problems are appropriately addressed under Guideline F as the judgment and reliability concerns are similar if not the same. Accordingly, the allegation in SOR ¶ 2.d is decided for Applicant.