1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ------------------------------------------- ) ISCR Case No. 16-00578 ) Applicant for Security Clearance ) Appearances For Government: Tovah Minster, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ LEONARD, Michael H., Administrative Judge: Applicant contests the Defense Department’s intent to deny her eligibility for access to classified information. She did not present sufficient evidence to explain, extenuate, or mitigate the security concern stemming from her use of marijuana during 2014-2015, after being granted a security clearance in 2003. Accordingly, this case is decided against Applicant. Statement of the Case Applicant completed and submitted a Questionnaire for National Security Positions (SF 86 format) on October 30, 2015. This document is commonly known as a security clearance application. Thereafter, on July 30, 2016, after reviewing the application and the information gathered during a background investigation, the Department of Defense Consolidated Adjudications Facility, Fort Meade, Maryland, sent Applicant a statement of reasons (SOR), explaining it was unable to find that it was clearly consistent with the national interest to grant her eligibility for access to classified 2 information.1 The SOR is similar to a complaint. It detailed the factual reasons for the action under the security guidelines known as Guideline H for drug involvement and substance misuse and Guideline E for personal conduct (consisting of a cross- allegation to the Guideline H matters). Applicant answered the SOR on August 22, 2016. Her response consisted of a one-page memorandum; she admitted the SOR allegations except for the allegation in SOR ¶ 1.b; and she requested a decision based on the written record in lieu of a hearing. Her response did not include supporting documentation. On September 15, 2016, Department Counsel submitted all relevant and material information that could be adduced at a hearing. The file of relevant material (FORM) consists of Department Counsel’s written brief and supporting documentation, some of which are identified as evidentiary exhibits in this decision. The FORM was mailed to Applicant, who received it September 30, 2016. She did not reply within 30 days from receipt of the information as required under the Directive. The case was assigned to me on July 3, 2017. Procedural Matters While this case was pending decision, Security Executive Agent Directive 4 was issued establishing the National Security Adjudicative Guidelines (AG) applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position. The 2017 AG supersede the AG implemented in September 2006. The 2017 AG are applicable to any adjudication made on or after June 8, 2017. Accordingly, I have decided Applicant’s case under the 2017 AG. I also considered this case under the 2006 AG, and my decision is the same using either set of AG. Department Counsel’s FORM includes Exhibit 4, which is a report of investigation (ROI) summarizing Applicant’s interview that took place during the December 2015 background investigation. The ROI is not authenticated by a witness, which is required under ¶ E3.1.20 of the Directive.2 The Directive provides no exception to the authentication requirement. Indeed, the authentication requirement is the exception to the general rule that prohibits consideration of an ROI. Department Counsel’s written brief includes a footnote advising Applicant that the summary was not authenticated and that failure to object may constitute a waiver of the 1 This action was taken under Executive Order (E.O.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended, as well as Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive). 2 See generally ISCR Case No. 12-10933 (App. Bd. Jun. 29, 2016) (In a concurring opinion, Judge Ra’anan notes the historical concern about reports of investigation in that they were considered by some to present a heightened problem in providing due process in security clearance cases. Judge Ra’anan raises a number of pertinent questions about using an unauthenticated ROI in a non-hearing case with a pro se applicant.). 3 authentication requirement. Nevertheless, the record does not demonstrate that Applicant, who has not replied to the FORM, understood the concepts of authentication, waiver, and admissibility. It also does not demonstrate that she understood the implications of waiving an objection to the admissibility of the ROI. Accordingly, given the lack of an authenticating witness, I have not considered the ROI in reaching my decision. Findings of Fact Applicant is a 36-year-old employee who requires a security clearance for her employment with a federal contractor. She has worked for the same aerospace company since 2003. Her educational background includes a bachelor’s degree in mechanical engineering awarded in 2002 and a master’s degree awarded in 2007. She has never married; she has no children; and she has lived with a cohabitant since 2013. The DOD granted Applicant a secret-level security clearance and access to classified information in 2003, shortly after she began her current employment.3 In conjunction with that action, Applicant disclosed in her February 2003 security clearance application that she used marijuana three times in 1999, apparently when she was a college student.4 Applicant completed her most recent security clearance application in October 2015.5 In doing so, she explained that her previous security clearance lapsed or was not renewed after ten years, because her job did not require her to maintain a security clearance. She also disclosed that she used marijuana three times during 2014-2015. She explained that she smoked the marijuana in a social setting with close friends on three separate occasions; it did not affect her in any particular way; and she last used marijuana in May 2015, about five months before she completed the security clearance application. In her answer to the SOR, Applicant admitted using marijuana three times during 2014-2015. She stated that she has no desire to use marijuana now or in the future. She further stated that she had not used marijuana since May 2015 and she had avoided environments where marijuana was present. She denied a continued association with people who use illegal drugs. She explained that the person she smoked marijuana with is no longer using marijuana, and that she had no knowledge of family, friends, or associates who currently use marijuana. She acknowledged that her use of marijuana demonstrated questionable judgment, but pointed out that she had been truthful and candid about her marijuana use during the security-clearance process. 3 Exhibit 5. 4 Exhibit 3. 5 Exhibit 2. 4 Law and Policies It is well-established law that no one has a right to a security clearance.6 As noted by the Supreme Court in Department of the Navy v. Egan, “the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.”7 Under Egan, Executive Order 10865, and the Directive, any doubt about whether an applicant should be allowed access to classified information will be resolved in favor of protecting national security. A favorable clearance decision establishes eligibility of an applicant to be granted a security clearance for access to confidential, secret, or top-secret information.8 An unfavorable clearance decision (1) denies any application, (2) revokes any existing security clearance, and (3) prevents access to classified information at any level.9 There is no presumption in favor of granting, renewing, or continuing eligibility for access to classified information.10 The Government has the burden of presenting evidence to establish facts alleged in the SOR that have been controverted.11 An applicant is responsible for presenting evidence to refute, explain, extenuate, or mitigate facts that have been admitted or proven.12 In addition, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision.13 In Egan, the Supreme Court stated that the burden of proof is less than a preponderance of evidence.14 The Appeal Board has followed the Court’s reasoning, and a judge’s findings of fact are reviewed under the substantial-evidence standard.15 6 Department of Navy v. Egan, 484 U.S. 518, 528 (1988) (“it should be obvious that no one has a ‘right’ to a security clearance”); Duane v. Department of Defense, 275 F.3d 988, 994 (10th Cir. 2002) (no right to a security clearance). 7 484 U.S. at 531. 8 Directive, ¶ 3.2. 9 Directive, ¶ 3.2. 10 ISCR Case No. 02-18663 (App. Bd. Mar. 23, 2004). 11 Directive, Enclosure 3, ¶ E3.1.14. 12 Directive, Enclosure 3, ¶ E3.1.15. 13 Directive, Enclosure 3, ¶ E3.1.15. 14 Egan, 484 U.S. at 531. 15 ISCR Case No. 01-20700 (App. Bd. Dec. 19, 2002) (citations omitted). 5 Discussion Under Guideline H for drug involvement and substance misuse, the concern is that the “illegal use of controlled substances, and the use of other substances that cause physical or mental impairment or are used in a manner inconsistent with their intended purpose, can raise questions about [a person’s] reliability and trustworthiness, both because such behavior may lead to physical or psychological impairment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations.”16 In apply Guideline H to the facts of this case, I note that in an October 24, 2014 memorandum, the Director of National Intelligence reaffirmed that the disregard of federal law concerning use, sale, or manufacture of marijuana is relevant in national security determinations regardless of changes in state laws concerning marijuana use. Marijuana remains a Schedule I controlled substance under federal law, which means as a matter of law it is a drug that has no currently accepted medical use and has a high potential for abuse.17 In analyzing the facts of this case, I considered the following disqualifying and mitigating conditions: AG ¶ 25(a) any substance misuse; and AG ¶ 26(b) the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence, including but not limited to: (1) disassociation from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; and (3) providing a signed statement of intent to abstain from all drug involvement and substance misuse, acknowledging that any future involvement or misuse is grounds for revocation of national security eligibility. I have considered the totality of Applicant’s illegal use of marijuana in reaching a decision in this case. She used marijuana three times in 1999 while she was a college student. That substance misuse is fairly characterized as youthful experimentation and is not a concern here. But her more recent substance misuse requires greater scrutiny. She used marijuana three times during 2014-2015, when she was a seasoned, mature adult working in a responsible position. Having previously been granted a security clearance in 2003, she knew or should have known marijuana was off limits. Although she did not have access to classified information during 2014-2015, she was still employed by an aerospace company doing business in the defense industry, which presumably had a drug-free workplace policy that prohibited illegal drug use. Given her age and maturity at the time and her knowledgeable participation, her unlawful use of marijuana during 2014-2015 raises serious doubts about her reliability, trustworthiness, and good judgment. 16 AG ¶ 24. 17 For information on federal drug schedules, go to http://www.dea.gov/druginfo/ds.shtml. 6 Applicant presented little in the way of mitigation. She did not provide sufficient evidence to establish that future marijuana use in some other situational event or set of circumstances is unquestionably ruled out. Nevertheless, she receives credit in mitigation because she voluntarily reported the information about her marijuana use. Her willingness to self-report is certainly an important aspect of this case. But I remain concerned due to Applicant’s most recent episode of marijuana use during 2014-2015. Accordingly, the concern under Guideline H is not mitigated. Applicant’s unlawful use of marijuana creates doubt about her reliability, trustworthiness, good judgment, and ability to protect classified information. In reaching this conclusion, I weighed the evidence as a whole and considered if the favorable evidence outweighed the unfavorable evidence or vice versa. I also considered the whole-person concept. Accordingly, I conclude that she did not meet her ultimate burden of persuasion to show that it is clearly consistent with the national interest to grant her eligibility for access to classified information. Formal Findings The formal findings on the SOR allegations are: Paragraph 1, Guideline H: Against Applicant Subparagraph 1.a: Against Applicant Subparagraph 1.b: For Applicant18 Paragraph 2, Guideline E For Applicant Subparagraph 2.a: For Applicant19 Conclusion In light of the record as a whole, it is not clearly consistent with the national interest to grant Applicant access to classified information. Michael H. Leonard Administrative Judge 18 Disassociation from drug-using associates and contacts is a relevant fact in this case. It is also a mitigating condition under the guideline. Continued association is not, however, a disqualifying condition under the guideline. On this basis, SOR ¶ 1.b is decided for Applicant. 19 The allegation under Guideline E, which is simply a cross-allegation to the Guideline H matters, is decided for Applicant, because the reliability, trustworthiness, and good judgment concerns are essentially one and the same under both guidelines