1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-01138 ) Applicant for Security Clearance ) Appearances For Government: Andrea Corrales, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ COACHER, Robert E., Administrative Judge: Applicant mitigated the Government’s security concerns under Guideline H, Drug Involvement, and Guideline E, personal conduct. Applicant’s eligibility for a security clearance is granted. Statement of the Case On June 29, 2016, the Defense of Defense (DOD) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline H, drug involvement, and Guideline E, personal conduct. DOD acted 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 Department of Defense on September 1, 2006. Applicant answered the SOR on July 22, 2016, and requested a hearing before an administrative judge. The case was assigned to me on November 2, 2016. The 2 Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on January 17, 2017, and the hearing was convened as scheduled on February 22, 2017. The Government offered exhibit (GE) 1, which was admitted into evidence without objection. Applicant testified and offered exhibits (AE) A through D, which were admitted into evidence without objection. DOHA received the hearing transcript (Tr.) on February 28, 2017. Findings of Fact In Applicant’s answer to the SOR, he admitted all the Guideline H allegations, with explanations, but denied the Guideline E cross allegation. I have incorporated those admissions into my findings of fact. After a thorough and careful review of the pleadings, testimony, and exhibits submitted, I make the following additional findings of fact. Applicant is 27 years old. He is single with no children. He has a bachelor’s degree and is beginning graduate school. He is an engineer. He has worked for one defense contractor since 2012 after graduating from college. He is a part-time swim coach. In 2015, he transferred to a position requiring a security clearance. He completed his security clearance application (SCA) in May 2015.1 The SOR alleged Applicant: used and purchased marijuana, with varying frequency from June 2007 to April 2015; used LSD on two occasions from June 2007 to January 2014; used cocaine one time in April 2013; and he used hallucinogenic mushrooms three times from July 2007 to April 2010. (See SOR ¶¶ 1.a - 1.d.) Applicant disclosed the full scope of his illicit drug use when he completed his May 2015 SCA. The Government presented no other source of incriminating information. Applicant resides in a state where marijuana use is legal under state law. He acknowledged that he was aware that purchasing and using marijuana violated federal law. His marijuana use started while in college and continued after he graduated. He used marijuana recreationally. He purchased it only for his own use. When he began working in 2012, he only used marijuana on weekends. The company he worked for had a drug-free workplace policy of which he was aware. He stopped using marijuana entirely in April 2015 when he was informed that he would need to seek a security clearance. He credibly testified that he has not used marijuana, or any other illicit drugs, since that time. He no longer associates with the friends he used marijuana with, except for one friend who he sees about once a month and a roommate who occasionally uses marijuana. The friend respects Applicant’s decision not to use marijuana and does not pressure him about it. His roommate uses marijuana in his room and not around Applicant. He is moving out of the residence in June 2017. He is not a close friend of Applicant.2 1 Tr. at 5, 18-20, 31; GE 1. 2 Tr. at 23, 33-35, 44, 46; GE 1. 3 Applicant’s use of LSD, cocaine, and mushrooms were infrequent occurrences that he chalks up to youthful experimentation. He acknowledged that he used poor judgment in those instances. He credibly testified that he never intends to use those substances again.3 Applicant has a partner who is supportive of Applicant’s drug abstinence. His partner does not use drugs. Applicant’s work performance appraisals show that he is well respected and has earned the trust of his supervisors. For three appraisal periods, he was rated “above expectations.” He has a reputation for trustworthiness and for doing the right thing. In his answer, Applicant committed in writing to remaining abstinent from future illicit drug use and acknowledging any future use would be cause for immediate revocation of his clearance.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. 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.” 3 Tr. at 24-26; Answer. 4 Tr. at 28; AE B-D. 4 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 that an applicant may deliberately or inadvertently fail to 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. 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 pertaining to 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 all of the evidence in this case and the disqualifying conditions under drug involvement AG ¶ 25 and found the following relevant: (a) any drug abuse; and (c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia. Appellant used and purchased marijuana, used LSD, used cocaine, and used hallucinogenic mushrooms during various time between 2007 and 2015. I find the above disqualifying conditions apply. I have considered all of the evidence in this case and the mitigating conditions under drug involvement AG ¶ 26 and found the following relevant: (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 5 (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’s marijuana use of LSD, cocaine, and mushrooms was infrequent. His marijuana use was more frequent, but it ceased (as did all of his illicit drug use) in April 2015, more than two years ago. He has expressed his intent not to use it in the future and submitted that intent in writing. He no longer associates with the friends he was using drugs with, except for one. That friend respects Applicant’s decision and does not pressure him. His use of illegal drugs happened while engaged in youthful experimentation, which is unlikely to recur. He has established an excellent reputation at work where he is valued and trusted. AG ¶ 26(a) applies. His two years of abstinence and his written commitment to abstinence is sufficient to demonstrate Applicant’s intent not to use in the future. AG ¶ 26(b) applies. Guideline E, Personal Conduct AG ¶ 15 expresses the security concern pertaining to personal conduct: Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process. AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying: (c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole- person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information; The same rationale that applied to the Guideline H concerns, also applies here. AG ¶ 16(c) applies. The guideline also includes conditions that could mitigate security concerns arising from personal conduct. I have considered all of the mitigating conditions under AG ¶ 17 and found the following relevant: 6 (c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment. Applicant’s two years of abstinence from using marijuana and his written declaration of intent not to use any illicit drugs in the future make recurrence unlikely. His full and complete disclosure of his past drug use on his SCA demonstrates his reliability and trustworthiness. He also disassociated with friends who were using drugs and he is supported by a partner who is drug-free. His abstinence, changed lifestyle, and commitment to a drug-free future support his current reliability, trustworthiness, and good judgment. AG ¶ 17(c) applies. 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): (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 facts and circumstances surrounding this case. I considered Applicant’s work appraisals and his two years of drug abstinence. I also considered Applicant’s statement of intent not to use drugs in the future. Applicant provided sufficient evidence to mitigate the security concerns. Overall, the record evidence leaves me without questions or doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant mitigated the security concerns arising under Guideline H, drug involvement and Guideline E, personal conduct. 7 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: FOR APPLICANT Subparagraphs 1.a-1.d: For Applicant Paragraph 2, Guideline E: FOR APPLICANT Subparagraph 2.a: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is granted. _____________________________ Robert E. Coacher Administrative Judge