1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-00558 ) Applicant for Security Clearance ) Appearances For Government: Aubrey M. De Angelis, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ KILMARTIN, Robert J., Administrative Judge: Applicant mitigated the drug involvement considerations but did not mitigate the criminal conduct considerations and alcohol consumption security concerns. Eligibility for access to classified information is denied. Statement of the Case On June 10, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines J (criminal conduct), 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) implemented by the DOD on September 1, 2006. Applicant responded to the SOR on July 6, 2016, and elected to have the case decided on the written record in lieu of a hearing. The Government’s written case was submitted on September 9, 2016, and received by Applicant on September 12, 2016. The Government exhibits identified as Items 1 through 6 included in the FORM are 2 admitted into evidence, absent objection. A complete copy of the file of relevant material (FORM) was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. On October 11, 2016, Applicant responded with a ten-page facsimile transmission, including a cover sheet, a one-page letter from Applicant, and 9 pages of documentation. These are collectively marked as Applicant’s Exhibit A (AE A) and admitted into evidence.1 Findings of Fact Applicant is a 28-year-old employee of a defense contractor. He has worked for his current employer since May 2013. He obtained a GED in 2009 and has several additional technical certifications. He reports no military service and he has never been married or had a security clearance.2 Applicant disclosed several convictions and traffic offenses in section 22 (Police Record) in his Security Clearance Application (SCA) that he signed in April 2015. Applicant was arrested in December 2007 for grand theft when he was with a friend who stole a purse and other contents, from an automobile parked at a mall. In January 2008, he pled no contest to the charge and was sentenced to time served, which was three weeks in confinement. Applicant was also convicted of driving under the influence in August 2012, and again in January 2014. He is on probation until February 24, 2019 for the latter offense. He was also ordered by the court to attend an 18-month-alcohol abuse prevention course, attend AA meetings, and install an ignition-interlock device. Next, he pled no contest to a charge of driving on a suspended license in December 2014, while he was still on probation for his second DUI, and after having completed drinking-driver-treatment courses.3 Applicant attended traffic school and paid fines for his moving offenses committed between May 2008 and December 2013. Applicant also disclosed in his April 2015 SCA that he used marijuana with varying frequency from August 2009 to March 2012 while he had a medical marijuana card. No evidence was submitted to corroborate that he had a medical marijuana card, or why it was prescribed. He did not have a security clearance at the time and he no longer associates with the same friends with whom he smoked marijuana.4 He does not frequent locations where illegal drugs are used, and he realized the adverse impact of marijuana use. He no longer desires to use marijuana and he intends to never use it again. Thus, the concern with his drug involvement, alleged at SOR ¶ 2.a, has been mitigated. 1 Nine pages of documents attached including: a one page certificate of completion of a drinking driver treatment program; two reference letters; and a five page performance evaluation. 2 Item 4. 3 Item 4, pp. 36-38. 4 Item 6, p. 7. 3 Applicant admitted all of these offenses and convictions in his answer to the SOR in July 2016, with explanations. They are also reflected in his FBI criminal history report.5 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 to be 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, administrative judges apply the guidelines 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.” Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel.” The applicant 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 adverse 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). 5 Item 5. 4 Analysis Guideline G, Alcohol Consumption The security concern for alcohol consumption is set out in AG ¶ 21: 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. The guideline notes several conditions that could raise security concerns under AG ¶ 22. The following is potentially applicable in this case: (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; and (g) failure to follow any court order regarding alcohol education, evaluation, treatment or abstinence. Applicant has two alcohol-related incidents, the DUI arrest in August 2012 and the DUI arrest in January 2014. Applicant disclosed these transgressions in his SCA and he has admitted them in his Answer to the SOR. AG ¶¶ 22(a) and 22(g) are applicable. AG ¶ 23 provides conditions that could mitigate security concerns. 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; (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); and, (d) the individual has successfully completed inpatient or outpatient counseling or rehabilitation along with any required aftercare, has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations, such as participation in meetings of Alcoholics Anonymous or a similar organization and has received a favorable prognosis by a duly qualified 5 medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program. Applicant’s last alcohol-related incident was in January 2014. He has completed treatment, attends AA meetings, and had his license restricted and an ignition-interlock device installed on his vehicle.6 He seemed to be on the road to recovery. However, late in 2014, Applicant was again arrested for driving on a suspended license, which was ordered suspended following his second DUI. He was still on probation at the time. Insufficient time has passed to conclude that Applicant is maintaining his sobriety, confronting his condition, and coping with his affliction. Applicant has not met his burden in establishing that sufficient time has elapsed since his last alcohol-related event, and he has taken responsible measures to insure that it never happens again. The above- mentioned mitigating conditions do not apply. Guideline J, Criminal Conduct The security concern for criminal conduct is set out in AG ¶ 30. Criminal activity creates doubt about an Applicant’s judgment, reliability, and trustworthiness. By its very nature, it calls into question a person’s ability or willingness to comply with laws, rules and regulations. The guideline notes conditions that could raise security concerns under AG ¶ 31. The disqualifying conditions potentially applicable in this case include: (a) a single serious crime or multiple lesser offenses; (c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted; (d) individual is currently on parole or probation; and (e) violation of parole or probation, or failure to complete a court-mandated rehabilitation program. Applicant has admitted to two arrests for DUI within the last five years, and the grand theft when he was 18 years old. Although Applicant has matured and has taken steps toward recovery, he re-offended as recently as December 2014 when he was arrested for driving on a suspended license while he was on probation. Such a flagrant violation of terms of probation shows an inability to comply with rules and regulations and follow the law. This flies in the face of the trustworthiness and reliability required to have access to classified information. The above disqualifying conditions are applicable. AG ¶ 32 provides conditions that could mitigate security concerns. The following are potentially applicable: 6 Items 4 and 6. 6 (a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; and, (d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement. Applicant has not been involved in any criminal activities since his 2014 arrest. Before that, his interaction with the criminal justice system spanned a decade. His employment with a defense contractor is a sign of rehabilitation. He is credited with divulging his actions on the SF 86 and during his background interview. However, insufficient evidence has been introduced to show adequate passage of time since his last offense to conclude that he is committed to following the law. At some point in the future, if Applicant sustains his demonstrated commitment to sobriety and lawfulness, he may successfully attenuate the taint of his criminal behavior. He has not met this burden yet. This leaves me with serious doubts that Applicant is ready to be entrusted with access to classified information. I find that Applicant’s criminal conduct security concerns have not been mitigated and that AG ¶¶ 32(a) and 32(d) do not apply. Guideline H, - 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. AG ¶ 25 describes two drug-involvement-disqualifying conditions that could raise a security concern and may be disqualifying in this particular case: “(a) any drug abuse;”7 and “(c) illegal drug possession.” AG ¶¶ 25(a) and 25(c) apply because Applicant used marijuana from August 2009 to March 2012, with varying frequency.8 7AG ¶ 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.” 8AG ¶ 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. 7 Although Applicant claimed to have a medical marijuana card, he provided no evidence of this or the medical condition that necessitated it. Consideration of mitigating conditions is required. 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 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, 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 substance. See Sch. I(c)(9). See also Gonzales v. Raish, 545 U.S. 1 (2005) (discussing placement of marijuana on Schedule I). 8 without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional. 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). See ISCR Case No. 14-05095 at 3 n. 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)). For example, the Appeal Board determined in ISCR Case No. 98-0608 (App. Bd. Aug. 28, 1997), that an applicant’s last use of marijuana occurring approximately 17 months before the hearing was not recent; however, the marijuana use in that case was not while holding a security clearance. 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.”9 Applicant disclosed his previous marijuana use in his SCA. He has not used it in over five years and he did not have a security clearance at the time when he used it. Applicant has disassociated from his friends with whom he previously smoked marijuana, and he does not frequent locations where illegal drugs are used. He has matured and his life circumstances have changed. He now appreciates the adverse impact that illegal drug use could have on his career. Applicant has expressed his intention not to use marijuana in the future. I am persuaded that he has mitigated any drug-involvement security concerns. AG ¶¶ 26(a) and (b) apply. 9 ISCR 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, considered 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. 9 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 Guidelines G, H and J in this whole-person analysis. Overall, the record evidence leaves me with serious questions or doubts as to Applicant’s eligibility and suitability for a security clearance. I conclude Applicant mitigated the drug involvement security concerns, but he did not mitigate the alcohol- consumption and criminal-conduct security concerns. 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: AGAINST Applicant Subparagraphs 1.a-1.b: Against Applicant Paragraph 2, Guideline H: FOR Applicant Subparagraph 2.a: For Applicant Paragraph 3, Guideline J: AGAINST Applicant Subparagraphs 3.a – 3.d: Against Applicant 10 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 eligibility for access to classified information. Eligibility for access to classified information is granted. _______________________ Robert J. Kilmartin Administrative Judge