1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01941 ) Applicant for Security Clearance ) Appearances For Government: Carroll J. Connelly, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ MURPHY, Braden M., Administrative Judge: Applicant has not provided sufficient evidence to mitigate the security concerns under Guideline H, drug involvement, due to his marijuana use while holding a security clearance. Applicant’s eligibility for access to classified information is denied. Statement of the Case On September 19, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline H, drug involvement. The action was taken under Executive Order (Exec. Or.) 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) effective within the DOD on September 1, 2006. Applicant answered the SOR on October 8, 2016, and elected to have his case decided on the written record, in lieu of a hearing. On November 7, 2016, Department Counsel submitted the Government’s File of Relevant Material (FORM), including 2 documents identified as Items 1-5. Applicant received the FORM on November 16, 2016. Applicant was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. Applicant responded to the FORM on December 1, 2016. His documents are marked as Applicant’s Exhibits (AE) A through H and admitted into evidence without objection.1 Applicant did not object to the Government’s evidence. The SOR and the answer (combined as Item 1) are the pleadings in the case. FORM Items 2 through 5 are admitted into evidence without objection. The case was assigned to me on May 12, 2017. Findings of Fact Applicant admitted all the SOR allegations. His admissions and other comments are incorporated into the findings of fact. After a thorough and careful review of the pleadings and exhibits submitted, I make the following additional findings of fact. Applicant is 59 years old. He has worked as an engineer in the defense industry for over 30 years. He has worked for his current employer since 2006. He is divorced and has two adult children. (Item 2.) Applicant began experiencing severe back pain after he was in a car accident. He has been under the care of his primary care physician for the condition since about June of 2012 or earlier. He was initially prescribed painkillers (hydrocodone and oxycodone) to manage his pain and help him sleep, but was found to be allergic to them. He has been told that surgery is not an option for him because any resulting scar tissue would press against his spinal cord and render him immobile. (AE B, AE C, Item 4.) Applicant began seeing a chiropractor in November 2013. At first, he had daily appointments. Over time, as the treatment took effect, his visits became steadily less frequent. His last prescription for painkillers was in November 2013. By late January 2014, he was able to stop taking prescription medication for his back pain. By August 2014, he was seeing the chiropractor once a week. (AE D. AE H.) Beginning in late December 2014 or January 2015, Applicant began working increased overtime. This conflicted with his appointments with his chiropractor, so he stopped going. As a result, his back pain returned and he again began having trouble sleeping. (AE D, AE H, Item 3 at 2.) Applicant resumed his appointments with his chiropractor in early March 2015. Applicant had seven appointments over a 17-week period between early March and late June 26, 2015. (AE D.) Applicant submitted a security clearance application (SCA) in November 2014. He was granted a secret clearance in March 2015. (Items 2, 5). In April 2015, shortly after his clearance was granted (SOR ¶ 1.c), Applicant began self-medicating with marijuana to relieve his back pain and help get to sleep. He used marijuana after work 1 AE A and AE B are the same documents Applicant submitted with his answer to the SOR. 3 and before bed on a daily basis for about two months, until mid-June 2015. (SOR ¶ 1.a) (AE B, AE H.) He said the fact that he began using marijuana use right after his clearance was granted was a “coincidence, but still no reason for doing something stupid.” (AE H.) There is no indication in his medical records that he discussed his marijuana use as a painkiller with his primary care physician, or that he received a medical prescription for his marijuana use. (AE C.) Applicant purchased the marijuana from a social contact with whom he shares an athletic hobby. (Item 3 at 2.) (SOR ¶ 1.b). Applicant has seen the person one time since then. In March 2016, the person came to Applicant’s house to participate in a charity event. They have had no other contact. (AE H.) In June 2015, Applicant injured his hand in a workplace accident, requiring surgery. He took a drug test afterwards, and tested positive for marijuana. He was suspended six weeks without pay. (AE F, AE H.) (SOR ¶ 1.d). Applicant did not disclose his marijuana use before he was drug-tested, or before the results became known to his employer. He said he did not readily admit his marijuana use after his surgery because he “wasn’t aware of what was happening and was in considerable distress.” (AE H.) Applicant signed a rehabilitation agreement with his employer in June 2015. (AE E, AE H.) SOR ¶ 1.e, which Applicant admitted, includes an allegation that he “attended substance abuse counseling under threat of being fired.” Applicant was referred to an employee assistance program (EAP) counselor. The counselor evaluated him and “determined he abused marijuana but was not in a pattern of a substance abuse disorder.” She referred him to a drug education program. (AE A.) (SOR ¶ 1.e). Applicant attended 10 days of outpatient counseling with a licensed specialist clinical social worker (LSCSW) in July 2015. He completed six substance abuse outpatient educational treatment sessions. He was found to be positive and productive in all sessions, and was successfully discharged. (AE C.) Applicant had a follow-up visit with the EAP counselor in July 2015. He was assessed as ready to return to work. He had monthly follow-up visits from August 2015 to January 2016. The EAP counselor released Applicant from the monitoring process early as he reported no further issues. In a subsequent letter, she indicated that she believes he has learned what he needs to refrain from future illicit substance abuse. (AE A). Under the rehabilitation agreement, Applicant is subject to random drug testing for two years, until June 2017. He has not tested positive since his initial post-accident drug test in June 2015. (AE F.) As of November 2016, he was in compliance with the agreement, and was seeing his chiropractor once a week. (AE E, AE D.) Applicant expressed remorse for his actions, and said he will not repeat them. He loves his job. (AE H.) 4 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 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, these guidelines are applied 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 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. Likewise, I have not drawn inferences grounded on mere speculation or conjecture. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel and 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 Exec. Or. 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 Exec. Or. 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). 5 Analysis Guideline H, Drug Involvement AG ¶ 24 expresses the security concern for drug involvement: 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. I have considered the disqualifying conditions for drug involvement under AG ¶ 25 and the following are potentially applicable: (a) any drug abuse; (b) testing positive for illegal drug use; (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 marijuana while holding a security clearance on at least a daily basis between April and June 2015 to alleviate his severe back pain. He purchased marijuana during this period. He tested positive for marijuana use. The above disqualifying conditions apply. SOR ¶ 1.e does not set forth disqualifying conduct. It is not disqualifying to seek drug counseling, whether as a condition of employment or otherwise. Indeed, participation in drug counseling is mitigating. Also, Applicant’s EAP counselor found that he had “abused marijuana” but did not find that he was “diagnosed with cannabis abuse,” as alleged. I have considered the mitigating conditions under AG ¶ 26. 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; (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; (4) a signed statement of intent with automatic revocation of clearance for any violation; and 6 (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. Applicant used marijuana on a daily basis between April and June 2015. The Directive does not define “recent” and the Appeal Board has declined to adopt a “bright- line” rule as to the recency of conduct raising security concerns. The extent to which security concerns are mitigated through the passage of time is a question that must be resolved based on the evidence as a whole.2 Applicant’s marijuana use is fairly recent, was not infrequent, and occurred while holding a security clearance. He used marijuana to manage his chronic back pain when he was not able to maintain his chiropractor appointments due to increased overtime. He resumed infrequent chiropractor appointments from early March to late June 2015. Despite this, and despite holding a clearance, he also started self-medicating with marijuana beginning in April 2015. His daily marijuana use continued until he had a positive drug test after a workplace accident. It is particularly troubling that he began using marijuana about one month after his clearance was granted. In doing so, he exercised poor judgment.3 As of November 2016, he was continuing weekly appointments with his chiropractor. Surgery is not an option, and he is allergic to the painkillers he was initially prescribed. I am therefore concerned about what might happen if Applicant does not, or is not able to, maintain appointments with his chiropractor, such as if his overtime increases again. He has a history of turning to marijuana as a way to manage his pain when he has no other options. There is no guarantee that Applicant will not find himself in similar circumstances again. Thus, there is insufficient evidence that his drug use occurred under circumstances that are unlikely to recur. His use of marijuana while holding a clearance casts doubt on his current reliability, trustworthiness and good judgment. Applicant has not set forth sufficient evidence that AG ¶ 26(a) applies. Applicant has not shown sufficient evidence that he has changed or avoided the environment where he used the marijuana. He used the marijuana at home, after work and before bed, to help him sleep. Even though his last marijuana use was about two years ago, there is some risk that this might recur. Applicant has not set forth sufficient evidence that AG ¶ 26(b) applies. Applicant completed a 10-day outpatient drug education/counseling program in July 2015. He had several subsequent sessions with his EAP counselor, who released 2 See ISCR 15-02479 at 3 (App. Bd. Jul 27, 2016) (citing ISCR Case No. 14-01847 at 3 (App. Bd. Apr. 9, 2015)). 3 ISCR Case No. 14-03734 at 4 (App. Bd. Feb. 18, 2016) (using marijuana with a security clearance is a serious error in judgment); ISCR Case No. 14-03450 at 3 (App. Bd. Sep. 11, 2015) (an applicant’s drug use after completing a security clearance application raises serious questions about his or her judgment, and reliability). 7 him from the monitoring program early, in January 2016, as he reported no further issues. There has been no recurrence of abuse, and the EAP counselor believes Applicant has learned what he needs to refrain from any illicit substance abuse. However, this is outweighed by the fact that Applicant used marijuana while he held a clearance and was working in a position where he was subject to drug testing when he did so. His clearance had only been granted the month before. There is some evidence of mitigation under AG ¶ 26(d), but it is insufficient and does not outweigh the choices Applicant made in willingly putting his own interests above the interests of national security in using marijuana while holding a security clearance. 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 Guideline H in my whole-person analysis. Because Applicant requested a determination on the record without a hearing, I had no opportunity to evaluate his credibility based on demeanor.4 Overall, the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising under the drug involvement guideline. 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: 4 ISCR Case No. 01-12350 at 3-4 (App. Bd. Jul. 23, 2003). 8 Paragraph 1, Guideline H: AGAINST APPLICANT Subparagraphs 1.a-1.d: Against Applicant Subparagraph 1.e: For 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 security clearance. Eligibility for access to classified information is denied. _____________________________ Braden M. Murphy Administrative Judge