DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ---------------------------------- ) ISCR Case No. 16-02402 ) ) Applicant for Security Clearance ) Appearances For Government: Andrew Henderson, Esquire, Department Counsel For Applicant: Pro se ______________ Decision ______________ WESLEY, Roger C., Administrative Judge: Based upon a review of the pleadings, exhibits, and testimony, I conclude that Applicant did not mitigate the security concerns regarding his use of drugs. Eligibility for access to classified information is denied. History of Case On September 14, 2016, the Department of Defense (DoD) Consolidated Adjudications Facility (CAF) issued a Statement of Reasons (SOR) detailing reasons why DoD adjudicators could not make the affirmative determination of eligibility for a security clearance, and recommended referral to an administrative judge to determine whether a security clearance should be granted, continued, denied, or revoked. The action was taken under Executive Order 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 (AGs) implemented by DoD on September 1, 2006. Applicant responded to the SOR on October 4, 2016, and requested a hearing. The case was assigned to me on December 16, 2016, and was scheduled for hearing on March 7, 2016. At hearing, the Government's case consisted of three exhibits (GEs 1-3). Applicant relied on one witness (himself) and one exhibit (AE A). The transcript (Tr.) was received on March 15, 2017. Procedural Issues Before the close of the hearing, the Government moved to amend SOR allegation ¶ 1.c to substitute the words issued a citation for arrest for marijuana possession in January 1999. (Tr. 45-46) There being no objections, and for good cause shown, the Government’s motion was granted. Prior to the close of the hearing, Applicant requested the record be kept open to permit him the opportunity to supplement the record with performance evaluations. There being no objections, and for good cause shown, Applicant was granted seven days to supplement the record. Department Counsel was afforded two days to respond. Applicant did not supplement the record. Summary of Pleadings Under Guideline H, Applicant allegedly (a) used marijuana between 1977 and July 2014; (b) used marijuana after being a granted a security clearance in 1993 and 2006; and (c) was arrested and charged with possession of marijuana in January 1999 (later amended to substitute the words issued a citation for arrest). No further details are provided. In his response to the SOR, Applicant admitted most of the allegations with explanations. He denied only his being arrested for marijuana possession in January 1999. He expressed contrition and claimed he takes national defense very seriously and would never do anything to jeopardize national security or any secret information entrusted to him. He claimed he has been employed by his employer for approximately 32 years, has held a security clearance for many of those years, and is a high- performing employee who has been entrusted with managerial duties. Findings of Fact Applicant is a 55-year-old field systems engineering senior manager for a defense contractor who seeks a security clearance. (GE 1 and AE A; Tr. 29, 41) The allegations covered in the SOR and admitted by Applicant are adopted as relevant and material findings. Additional findings follow. Background Applicant married in May 1991 and has one adult child (age 22) from this marriage, in addition to one adult stepchild (age 29) and two adult adopted children (ages 24 and 22). (GEs 1-3) He earned an Associate’s degree in July 1984 and reported no military service. Applicant has been employed by his current employer since 2 July 1984 (over 32 years) and currently serves as a systems engineering senior manager for his employer. (GEs 1-3; Tr. 20) Drug history Applicant presents with considerable drug use history. He was introduced to marijuana in high school in January 1977. (GEs 1-3) Between January 1977 and July 1984, he used marijuana weekly some times, monthly on other occasions, and mostly on weekends. (GE 3; Tr. 19, 30-31, 36-37) Before 2014, he used marijuana mostly at home. This marijuana he obtained from his neighbor. (Tr. 37-38). Crediting his maturation process and continued pressure from his brother-in-law, he ceased using marijuana at home in 2012 and shifted over to obtaining and using it on a spotty basis with his brother-in-law, mostly on weekends. (Tr.19-20, 32-35, 39) He attributed pressure from his brother-in-law as a major factor in his continued use of marijuana into the 2014 calendar year. (Tr. 35-36) In January 1999, Applicant was cited for marijuana possession. In his court appearance on the citation, the court fined him and ordered him to attend a substance abuse awareness program. (Tr. 33) He informed no one at work of the citation. (Tr. 34) When asked by the agent from the Office of Personnel Management (OPM) why he did not decline marijuana offers from his brother-in-law in social situations, Applicant could not offer any explanations. (GE 3; Tr. 36) Applicant assured he has not used marijuana or any illegal drugs since July 2014, and will abstain from any future use should marijuana ever be offered to him. (GE 3; Tr. 36-37) Applicant received his first security clearance in 1993 and has held security clearances for most of his professional career with his current employer. (GEs 1-3; Tr. 20, 31-32) He acknowledged that his employer has a zero tolerance drug policy that subjects employees who violate the employer’s drug policy to disciplinary action or termination. (Tr. 40) He expressed contrition for using marijuana while holding a security clearance and assured he takes national defense very seriously. He assured he is a high-performing employee with excellent performance ratings over the past 20 years and would do nothing to jeopardize national security information entrusted to him. (Tr. 19-21) Endorsements Applicant is well-regarded by his managers and colleagues. (AE A) Applicant’s senior program manager, who has known and worked with him for over 20 years considers him to be a very dependable and trustworthy manager who cares deeply about the defense programs he is assigned to. (AE A) He credited Applicant with tireless dedication to the company’s software programs and expressed pride in promoting him to the senior manager level. (AE A) Other program managers who have worked with Applicant extolled his relentless pursuit of excellence in results without sacrificing any of his team building and relationship-building skills. They vouched for his integrity, honesty, and ability to execute his responsibilities faithfully. (AE A) 3 Of note, none of Applicant’s character references expressed any knowledge of his past drug use while holding a security clearance. Without more information from Applicant’s references, performance evaluations, or other sources as to how much, if any, Applicant’s character references knew about Applicant’s past marijuana use, their positive impressions of Applicant’s character must be tempered somewhat. Policies The AGs list guidelines to be used by administrative judges in the decision- making process covering security clearance cases. These guidelines take into account factors that could create a potential conflict of interest for the individual applicant, as well as considerations that could affect the individual’s reliability, trustworthiness, and ability to protect classified information. The AGs include "[c]onditions that could raise a security concern and may be disqualifying” (disqualifying conditions), if any, and many of the "[c]onditions that could mitigate security concerns.” They must be considered before deciding whether or not a security clearance should be granted, continued, or denied. The guidelines do not require administrative judges to place exclusive reliance on the enumerated disqualifying and mitigating conditions in the guidelines in arriving at a decision. Each of the guidelines is to be evaluated in the context of the whole person in accordance with AG ¶ 2(c) In addition to the relevant AGs, administrative judges must take into account the pertinent considerations for assessing extenuation and mitigation set forth in AG ¶ 2(a) of the revised AGs, which are intended to assist the judges in reaching a fair and impartial commonsense decision based upon a careful consideration of the pertinent guidelines within the context of the whole person. The adjudicative process is designed to examine a sufficient period of an applicant’s life to enable predictive judgments to be made about whether the applicant is an acceptable security risk. The following AG ¶ 2(a) factors are pertinent: (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 chances; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Viewing the issues raised and evidence as a whole, the following adjudication policy factors are pertinent herein: Drug Involvement The Concern: 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 4 raises questions about a person’s ability or willingness to comply with laws, rules, and regulations AG ¶ 24. Burden of Proof By virtue of the principles and policies framed by the AGs, a decision to grant or continue an applicant's security clearance may be made only upon a threshold finding that to do so is clearly consistent with the national interest. Because the Directive requires administrative judges to make a commonsense appraisal of the evidence accumulated in the record, the ultimate determination of an applicant's eligibility for a security clearance depends, in large part, on the relevance and materiality of that evidence. See United States, v. Gaudin, 515 U.S. 506, 509-511 (1995). As with all adversarial proceedings, the judge may draw only those inferences which have a reasonable and logical basis from the evidence of record. Conversely, the judge cannot draw factual inferences that are grounded on speculation or conjecture. The Government's initial burden is twofold: (1) it must prove by substantial evidence any controverted facts alleged in the SOR, and (2) it must demonstrate that the facts proven have a material bearing to the applicant's eligibility to obtain or maintain a security clearance. The required materiality showing, however, does not require the Government to affirmatively demonstrate that the applicant has actually mishandled or abused classified information before it can deny or revoke a security clearance. Rather, the judge must consider and weigh the cognizable risks that an applicant may deliberately or inadvertently fail to safeguard classified information. Once the Government meets its initial burden of proof of establishing admitted or controverted facts, the evidentiary burden shifts to the applicant for the purpose of establishing his or her security worthiness through evidence of refutation, extenuation, or mitigation. Based on the requirement of Exec. Or. 10865 that all security clearances be clearly consistent with the national interest, the applicant has the ultimate burden of demonstrating his or her clearance eligibility. “[S]ecurity-clearance determinations should err, if they must, on the side of denials.” See Department of the Navy v. Egan, 484 U.S. 518, 531 (1988). Analysis Between January 1977 and July 2014, Applicant used marijuana at varying frequencies. Most of his drug use occurred between 1984 and July 2014 while he held a security clearance. Applicant was at all times aware of his employer’s zero tolerance drug policy as well as the DOD’s anti-drug use federal policy. On the strength of the evidence presented, several disqualifying conditions of the Adjudicative Guidelines for drug abuse are applicable: DC ¶ 25(a), “any drug abuse,” DC ¶ 25(c), “illegal possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia,” and DC ¶ 25(g), “any illegal drug use after being granted a security clearance.” Judgment concerns exist over Applicant’s past drug use while holding a security clearance with acknowledged 5 awareness and aware of the anti-drug use policies placed in force by his employer and inferred awareness of the DOD’s anti-drug policiy. In assessing security concerns associated with drug use and drug offenses, the Appeal Board has established no bright lines for determining whether the drug use and related conduct is sufficiently dated to mitigate. Each 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) See ISCR Case No. 14-05095 at 3n. 1 (App. Bd. Feb. 18, 2016) (affirming lack of bright-line test for recency of illegal drug use)(citing ISCR Case No. 14-01847 at 3 (App. Bd. Apr. 9, 2015) Applicant’s use of marijuana is longstanding. Historically, he has used the substance at varying frequencies over a period of almost 40 years. For most of the years he used marijuana (ie., between 1984 and July 2014) he held a security clearance while employed by his current employer. And Applicant fully acknowledged his awareness of the anti-drug policies of his employer and DOD. Considering all of the circumstances surrounding Applicant’s marijuana use over a course of many years, potentially pertinent mitigating conditions covered by AG ¶ 24 have only limited application at this time. Neither MC ¶ 24(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,” nor MC ¶ 24(b), “a demonstrated intent not to use any drugs in the future, such as (1) disassociation from drug-using associates and contacts, and (3) an appropriate period of abstinence,” have more than minimal application to Applicant’s situation. Appeal Board decisions finding insufficient passage of time for applicants with long histories of illegal drug use and relatively brief periods of time elapse since cessation of drug use while holding security clearances include the following: ISCR Case No. 005-11392 at 1-3 (App. Bd. Dec. 11, 2006); ISCR Case No. 15-03403 at 2-3 (App. Bd. Dec. 20, 2016). Applicant is credited with good judgment and reliability by his senior managers who have worked closely with Applicant for a number of yea. While Applicant’s credited contributions to his employer are impressive from a whole-person perspective, they are not enough to surmount security concerns over his recurrent use of marijuana over a 37- year period. Safe predictable judgments cannot be made at this time about his ability to avoid recurrent drug involvement. Taking into account all of the facts and circumstances surrounding Applicant’s recurrent drug use over the course of 37 years, and still brief period of sustained cessation of illegal drug use. Unfavorable conclusions warrant with respect to the allegations covered by subparagraphs 1.a-1.c of Guideline H. Formal Findings In reviewing the allegations of the SOR and ensuing conclusions reached in the context of the findings of fact, conclusions, conditions, and the factors listed above, I make the following formal findings: 6 GUIDELINE H: (DRUG INVOLVEMENT): AGAINST APPLICANT Subparagraphs 1.a-1.c: AGAINST APPLICANT Conclusions In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue Applicant’s security clearance. Clearance is denied. Roger C. Wesley Administrative Judge 7 8