1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01117 ) Applicant for Security Clearance ) Appearances For Government: Ray T. Blank, Jr., Esq., Department Counsel For Applicant: D. Grayson Yeargin, Esq. and Chad O. Dorr, Esq. __________ Decision __________ HARVEY, Mark, Administrative Judge: Applicant occasionally possessed and used marijuana from 1999 to August 2016 after being granted a security clearance in 2006. More time without illegal drug use is necessary to fully mitigate drug involvement security concerns. Eligibility for access to classified information is denied. Statement of the Case On September 24, 2015, Applicant signed his Electronic Questionnaire for National Security Positions (e-QIP) or SCA (SF 86). (Government Exhibit (GE) 1) On July 19, 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. The SOR alleged security concerns under Guideline H (drug involvement). (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 2 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 August 16, 2016, Applicant responded to the SOR and requested a hearing. (HE 3) On September 21, 2016, Department Counsel indicated he was ready to proceed on Applicant’s case. On October 8, 2016, Applicant’s case was assigned to me. On December 29, 2016, DOD issued a hearing notice, setting the hearing for January 26, 2017. (HE 1) Applicant’s hearing was held as scheduled. Department Counsel offered three exhibits; Applicant offered three exhibits; there were no objections; and all documents were admitted into evidence. (Tr. 16-18; GE 1-3; Applicant Exhibits (AE) A-C) Additionally, I admitted the hearing notice, SOR, and Applicant’s response to the SOR. (HE 1-3) On February 3, 2017, I received the transcript. Findings of Fact1 Applicant admitted most of the conduct alleged in SOR ¶¶ 1.a through 1.c. (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 43-year-old employee of a defense contractor, who has been employed by the defense contractor as a senior software engineer for more than 10 years. (Tr. 5-7; GE 1) In 1992, he graduated from high school, and in 1996, he received a bachelor of science degree in computer science. (Tr. 6) He has no prior service in the U.S. Armed Forces. (Tr. 6) In 2006, he married. (Tr. 6) His children are ages five and nine. (Tr. 7) There is no evidence of security violations. Drug Involvement In 2006, Applicant received a security clearance. (Tr. 7-8, 25) Applicant received a security clearance to work on a project, which ended in 2008. (Tr. 8) Applicant believed his security clearance was “suspended” or lapsed after the project ended. (Tr. 8, 23) He did not provide the name of anyone who told him his security clearance was suspended or lapsed. (Tr. 25) The Defense Security Service website indicates: HOW LONG DOES A PERSONNEL SECURITY CLEARANCE REMAIN IN EFFECT? Generally speaking, a personnel security clearance remains in effect as long as the individual remains continuously employed by the cleared contractor and can reasonably be expected to require access to classified information. To preclude excessive clearances, the Facility 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 Security Officer should continually review the number of employees with the personnel security clearances and reduce the number of clearances whenever possible. WHO DECIDES WHAT LEVEL OF CLEARANCE A PERSON RECEIVES? The company determines the positions that require a security clearance, as well as the level required, based upon the duties and responsibilities of each position. This determination is based on contractual needs and requirements.2 Applicant’s first-born child cried frequently and loudly, which Applicant found stressful. (Tr. 21) Applicant received anti-anxiety medication from his physician. (Tr. 21, 27) Applicant suffered from unacceptable side effects from the medication. (Tr. 21) He consumed a beer or two in the evenings to try to alleviate stress. (Tr. 21, 27) In 2005, he completed an SCA and disclosed his four marijuana uses from 1999 to 2003. (Tr. 23, 28; GE 2) In 2005, he was aware that marijuana use was illegal and a security concern. (Tr. 29) In 2010, Applicant obtained a medical-marijuana card. (Tr. 27) Beginning in 2010, Applicant took a very small amount or tincture of marijuana in an alcohol solution to help him sleep. (Tr. 22) He frequently used marijuana sometimes five to seven times a week to reduce stress. (GE 1) He obtained marijuana from friends and neighbors, and from state-authorized dispensaries when authorized under state law. (Tr. 29-30) He occasionally purchased marijuana. (GE 1) He most recently obtained marijuana from friends or neighbors in late 2015 or early 2016. (Tr. 31) The day before Applicant’s November 25, 2015 Office of Personnel Management (OPM) interview, he used marijuana. (Tr. 31) Applicant’s most recent marijuana use was around July 31, 2016. (Tr. 32, 40)3 2See Department of Defense (DOD) Defense Security Service, Frequently Asked Questions about the Industrial Personnel Security Clearance Process, http://www.dss.mil/psmo-i/ps faqs.html#8. 3Applicant’s SOR does not allege that he used marijuana after November 2015. The SOR does not allege three issues that surfaced during his hearing on in his SOR response: (1) he used marijuana until July 31, 2016; (2) he possessed marijuana until August 2016; and (3) he distributed or transferred marijuana to his neighbor in August 2016. 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)). These non-SOR allegations will not be considered except for the five purposes listed above. 4 In July 2016, Applicant received a letter indicating his security clearance was not granted, and he stopped his use of the tinctures of marijuana. (Tr. 23) He is now living a more healthy lifestyle, including getting more exercise and losing weight. (Tr. 23) He has “closer relationships within [his] community with peers” and he uses his peers as “a support network.” (Tr. 23) He lives “a more mindful and deliberative life.” (Tr. 23) He is “far better equipped to deal with the stresses” of his life. (Tr. 23) Applicant has not received any counseling for drug abuse. (Tr. 24) In 2015, Applicant’s employer advised him that he needed a security clearance for a project. (Tr. 26) He was told to complete his SCA. (Tr. 26; GE 1) In August 2016, he gave his marijuana supply to a friend, who was also a marijuana user. (Tr. 33-34, 41) His neighbor where he currently lives distributed marijuana to Applicant. (Tr. 42) In October 2016, and January 2017, Applicant provided urine samples, which tested negative for the presence of evidence of illegal drug use. (Tr. 34; AE A; AE B) His employer does not have a program established to randomly test employees for illegal drug use. (Tr. 35) Applicant provided a statement indicating he understands that any violation will result in automatic revocation of his security clearance. (AE C) 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 5 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 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. (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), and (2) inhalants and other similar substances; 6 (b) drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction. The disqualifying conditions in AG ¶¶ 25(a), 25(c), and 25(g) could raise a security concern and may be disqualifying in this case: “any drug abuse”;4 “illegal drug possession”; and “any illegal drug use after being granted a security clearance.” The evidence of record establishes AG ¶¶ 25(a), 25(c), and 25(g).5 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; (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. 4AG ¶ 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.” 5AG ¶ 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). 7 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.”6 6ISCR 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: 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. 8 Applicant stopped using marijuana around July 31, 2016. 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;7 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. His neighbor is a marijuana user. Applicant distributed his remaining marijuana to his neighbor in August 2016. His proximity to and relationship with a known marijuana user weighs against mitigation of security concerns. His period of abstinence is August 2016 to January 2017 (the date of his hearing), 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 four occasions from 1999 to 2003, and then he resumed marijuana use around 2009 or 2010 and continued to use marijuana tinctures until July 31, 2016. Each time he possessed marijuana he violated federal criminal law. He understands the adverse consequences from marijuana use;8 however, he has not shown or demonstrated a sufficient track record of 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 after his OPM interview 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. 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): 7In 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. 8Approval 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. 9 (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. My comments under Guideline H are incorporated into my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under Guideline H, but some warrant additional comment. Applicant is a 43-year-old employee of a defense contractor, who has been employed by the defense contractor as a senior software engineer for more than 10 years. In 1996, he received a bachelor of science degree in computer science. There is no evidence of security violations. The evidence against continuation of Applicant’s clearance is more substantial. Applicant possessed and used marijuana from 1999 to 2003 and from 2008 or 2009 to July 31, 2016. He violated federal criminal law. His security clearance was approved in 2006 and was probably suspended around 2008 because it was not required for his projects. In August 2016, he distributed his remaining marijuana supply to his neighbor. 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 possession and 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 did not 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 through 1.c: Against 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