1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-02764 ) Applicant for Security Clearance ) Appearances For Government: Chris Morin, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ RICCIARDELLO, Carol G., Administrative Judge: Applicant mitigated the security concerns under Guideline G, alcohol consumption, but failed to mitigate the drug involvement security concerns under Guideline H. Applicant’s eligibility for access to classified information is denied. Statement of the Case On October 13, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued to Applicant a Statement of Reasons (SOR) detailing security concerns under Guidelines G, alcohol consumption, and H, drug involvement. 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) effective within the DOD on September 1, 2006. Applicant answered the SOR on November 8, 2016, and requested a hearing before an administrative judge. The case was assigned to me on February 9, 2017. The 2 Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on February 23, 2017. I convened the hearing as scheduled on April 21, 2017. The Government offered exhibits (GE) 1 and 2, which were admitted into evidence without objection. Applicant testified and did not offer any exhibits. DOHA received the hearing transcript (Tr.) on May 1, 2017. Findings of Fact Applicant admitted all allegations in the SOR. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact. Applicant is 32 years old. He graduated from college in 2007. He married in 2013, but later separated from his wife. He has no children. He has been employed with the family business, which has contracts with the government, since 2013.1 Applicant was arrested for driving under the influence of alcohol in 2015. He was at a wedding reception, and when he left, he believed he was capable of driving. He looked for a commercial driving service to provide a ride, but none was unavailable. He admitted his breathalyzer reading was slightly over the legal limit. He pled guilty and was convicted of the reduced charge of reckless driving. He was ordered to complete a three-day alcohol class and was fined. He completed the class in February 2016. He took responsibility for his conduct. He continues to consume alcohol, but uses a commercial driving service when he needs transportation. He has not had additional alcohol-related issues.2 Applicant completed a security clearance application (SCA) in May 2015. In response to questions about his prior drug use, he disclosed he used marijuana in high school “with some frequency;” in college “periodically;” and “very infrequently since graduation.” He indicated on his SCA in response to a question regarding whether he intended to use it in the future: “Likely not especially if it is [a] condition to my clearance.” Applicant testified that marijuana was the only illegal drug he used in high school. He used marijuana and other illegal drugs while in college until he graduated in 2007. He did not use drugs for several years. He moved to a big city in 2011 and was exposed to illegal drugs that he used sporadically. He testified, “I think, you know, with, I like to think that with the proper motivation, the proper guidance, I would say motivation, you know, I can completely flip it one way or the other.”3 Applicant disclosed on his SCA that he used cocaine. His first use was approximately October 2008 and his last use was approximately April 2015. He stated in the SCA, “I have used cocaine in the past but on a very infrequent basis. My current usage is once every 6-9 months.” Regarding his intent for future use, he stated, “I have 1 Tr. 15-18. 2 Tr. 19-24. Applicant’s alcohol-related charge occurred after he completed his May 2015 SCA. 3 Tr. 25-28, 40-42; GE 1. 3 not used cocaine on a frequent basis and recently it has been on a less frequent basis. I do not believe I am likely to use it going forward especially if it is a condition for a security clearance.” His last use was at a bachelor party. He indicated he did not think about it when he accepted the cocaine from a friend.4 Applicant disclosed on his SCA that he used hallucinogenic mushrooms three times from October 2008 to July 2011. He indicated that he had no interest in using mushrooms in the future. Applicant testified he has not used mushrooms since February 2011, and it would be easy for him to give up its use.5 Applicant disclosed on his SCA that he used MDMA (ecstasy) five to ten times from April 2011 to July 2014. He stated, “I have not been recently interested in using MDMA recently (sic) because I began feeling off the next day.”6 He purchased MDMA one time in 2013. He testified that he was going to a concert and got a phone number from a friend for a person to call to purchase MDMA. He made the call and arranged to meet the seller in a public place and made the purchase.7 After completing his SCA in May 2015, Applicant used marijuana in October 2015, and MDMA in February 2016. He testified that his October 2015 marijuana use was while at a friend’s house when it was offered to him after dinner. The marijuana was given to him by a friend he knows fairly well. He used MDMA in February 2016 while at a bachelor’s party where he was offered it and used it. When asked why he used MDMA, he indicated it gives his body a positive response so he accepted it. He continues to see the friend who gave him the MDMA at other parties. He was using alcohol at the time, but was not intoxicated.8 Applicant was asked by Department Counsel during his hearing, having completed his SCA in May 2015 and answering questions about his past use of illegal drugs, did he not consider himself to be on notice that this was a concern of the Governments. Applicant’s response was, “To be quite honest, I wasn’t sure.” He further stated he was not sure if using illegal drugs was a concern of the Government’s because “some people in this day and age, it is a common use, you know.”9 He explained his rationale was that his use of drugs never impacted his life criminally, and never interfered with his work or his education.10 4 Tr. 25-28, 42. 5 Tr. 35. 6 GE 1. 7 Tr. 25-28, 45. 8 Tr. 28, 31-35. 9 Tr. 29. 10 Tr. 30-31. 4 In Applicant’s answer to the SOR, with regard to future use of marijuana, MDMA, cocaine, and mushrooms, he responded regarding each drug that it was “not a critical necessity and has been used on a very infrequent basis and is something I would happily give up.” Applicant testified that he has never been a habitual drug user, and his use has always been sporadic. He has abstained in the past for five to six years. If it is a condition for obtaining a security clearance, he will give up using drugs. He further stated, “I think it would be something that would be beneficial for my work and I also, in a strange way, I think it is a proper motivation for me to get my stuff together.”11 He indicated he will refrain from drug use because it is illegal, and he is dating someone now who has a five-year-old child. He is willing to participate in random drug testing. He testified that his drug use is in the past, and he does not intend to use them in the future. He has never been to drug counseling or treatment. He has never let his drug use effect his life. He understands he was breaking the law when he used illegal drugs.12 Applicant’s family company where he is employed has a drug policy. Applicant admitted to violating the drug policy. He indicated that employees who violate the company’s drug policy would likely be counseled, terminated, or have other restrictions placed on their employment.13 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 11 Tr. 43. 12 Tr. 19-20, 25-28, 36-40, 46. 13 Tr. 38. 5 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 EO 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 EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). 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; and (c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia. 6 Applicant used marijuana, cocaine, mushrooms, and MDMA with varying frequencies from approximately 2001 to February 2016. He purchased MDMA in 2013. The above disqualifying conditions apply. 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; 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; (4) a signed statement of intent with automatic revocation of clearance for any violation. Applicant has a long history of using illegal drugs from 2001 to 2016. His last use of marijuana and MDMA occurred in October 2015 and February 2016, respectively, and was after he completed his SCA. He indicated in his SCA, regarding future marijuana use, that “likely no especially if it is a condition to my clearance.” With regard to future use of MDMA, he stated that he was not interested in using it in the future because it made him feel “off the next day.” Despite these statements and having completed a SCA that required that he disclose his past drug use, Applicant continued to use them. Applicant has willingly used illegal drugs when offered by friends in social situations. Applicant’s past drug use was not infrequent and did not occur under circumstances that are unlikely to recur. His illegal drugs use after completion of his SCA particularly casts doubt on his current reliability, trustworthiness, and good judgment. AG ¶ 26(a) does not apply. Applicant presented insufficient evidence to conclude that he is committed to not using illegal drugs in the future. He indicated he would “happily give up” illegal drugs and would give them up if necessary to obtain a security clearance. Although he stated that he is now committed to not using illegal drugs due to a relationship he is in and because they are illegal, I am not convinced that Applicant has disassociated himself with friends who use drugs, or changed his environment. He has not demonstrated a significant period of abstinence. Applicant had an opportunity to show his commitment to refraining from future drug use after he completed his SCA, and failed to do so. He has offered minimal evidence to conclude that his new commitment can be relied upon. I find AG ¶ 26(b) does not apply. 7 Guideline G, Alcohol Consumption AG ¶ 21 expresses the security concern pertaining to alcohol consumption: Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual's reliability and trustworthiness. I have considered all of the disqualifying conditions under AG ¶ 22. The following is potentially applicable: (a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent. Applicant was arrested in May 2015 for DUI and convicted of a reduced charge of reckless driving. AG ¶¶ 22(a) applies. I have considered all of the mitigating conditions under AG ¶ 23 and the following are potentially applicable: (a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; and (b) the individual acknowledges his or her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol abuser”). Applicant took responsibility for his conduct which resulted in an alcohol-related charge and conviction. He completed the terms of his sentence and there is no indication that he has an alcohol problem. He uses other means of transportation if he has been drinking. I find that future alcohol-related misconduct is unlikely to recur. AG ¶¶ 23(a) and 23(b) apply. 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): 8 (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 G and H in my whole-person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment. Applicant is 32 years old, college educated, and has been employed with his family’s company since 2013. He was aware of his company’s drug policy, but he repeatedly violated it. He has a long history of using illegal drugs. Despite past statements that he likely would not use illegal drugs in the future, he failed to comply. Although he has new motivations for not using drugs in the future, I find his commitment wavering and is conditioned upon obtaining a security clearance and because he is currently dating a woman with a child. More importantly, Applicant had an opportunity to prove his commitment, but used drugs after he completed his SCA. Despite his age, Applicant has not matured to the extent of understanding the consequences of illegal and irresponsible conduct. Although the evidence supports that Applicant mitigated the security concerns raised under the alcohol consumption guideline, his recent alcohol- related conduct nonetheless demonstrates his willingness to participate in risky behavior. Applicant’s conduct raises serious questions about his judgment, reliability, and trustworthiness. 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 mitigated the alcohol consumption security concern, but failed to mitigate the drug involvement security concern. 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 G: FOR APPLICANT Subparagraphs 1.a: For Applicant 9 Paragraph 2, Guideline H: AGAINST APPLICANT Subparagraphs 2.a-2.e: 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 grant Applicant a security clearance. Eligibility for access to classified information is denied. _____________________________ Carol G. Ricciardello Administrative Judge