1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-03070 ) Applicant for Security Clearance ) Appearances For Government: Pamela Benson, Esq., Department Counsel For Applicant: Pro se ___________ Decision ___________ HARVEY, Mark, Administrative Judge: Applicant used marijuana infrequently from 1991 to August 2012. He has held a security clearance since 1995. He failed to disclose his marijuana use on his December 14, 2015 Questionnaire for National Security Position (SF 86) or security clearance application (SCA). (Government Exhibit (GE) 1) Drug involvement security concerns are mitigated because his marijuana use is not recent; however, personal conduct security concerns are not mitigated. Eligibility for access to classified information is denied. Statement of the Case On July 28, 2005, and December 14, 2015, Applicant completed and signed SCAs. (GE 1, 2) On November 14, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued a statement of reasons (SOR) to Applicant under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry, February 20, 1960; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), January 2, 1992; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, effective on September 1, 2006 (Sept. 1, 2006 AGs). The SOR detailed reasons why the DOD CAF did not find under the Directive that it is clearly consistent with the interests of national security to grant a security clearance for Applicant and recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked. (Hearing Exhibit (HE) 2) 2 Specifically, the SOR set forth security concerns arising under Guidelines H (drug involvement) and E (personal conduct). (HE 2) On December 21, 2016, Applicant responded to the SOR and waived his right to a hearing. (HE 3) On January 31, 2017, Department Counsel requested a hearing. (Tr. 10) On March 31, 2017, Department Counsel was ready to proceed. On April 24, 2017, the case was assigned to me. On April 24, 2017, the Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing, setting the hearing for May 5, 2017. (HE 1) Applicant waived his right to 15 days of notice of the date, time, and place of his hearing. (Tr. 12-13) Applicant’s hearing was held as scheduled. During the hearing, Department Counsel offered three exhibits; Applicant did not offer any exhibits; there were no objections; and all proffered exhibits were admitted into evidence. (Transcript (Tr.) 11, 16-18; GE 1-3) On May 15, 2017, DOHA received the transcript of the hearing. While this case was pending a decision, the Director of National Intelligence (DNI) issued Security Executive Agent Directive 4, establishing in Appendix A the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AGs) which he made applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position. The new AGs supersede the Sept. 1, 2006 AGs and are effective “for all covered individuals” on or after June 8, 2017. Accordingly, I have evaluated Applicant’s security clearance eligibility under the new AGs.1 Findings of Fact2 Applicant’s SOR response admitted the allegations in SOR ¶¶ 1.a, 1.b, 1.c, 2.a, 2.b, 2.c, and 2.d. (HE 3) He denied the allegation in SOR ¶ 1.d. (HE 3) He also provided extenuating and mitigating information. (HE 3) Applicant’s admissions are accepted as findings of fact. Additional findings of fact follow. Applicant is 44 years old, and he has been employed as an avionics technician for the previous 22 years. (Tr. 6-7) In 1990, he graduated from high school. (Tr. 6) He has not attended college. (Tr. 6) In 1994, he received a certificate from a technical school. (Tr. 21) He has never served in the military. (Tr. 6) In 1990, he married, and in 1997, he divorced. (Tr. 7) His daughter is 26 years old. (Tr. 7) He has held a security clearance for 22 years, and there is no evidence of a security violation. (Tr. 8, 38) 1 Application of the AGs that were in effect as of the issuance of the SOR would not change my decision in this case. The new AGs are available at http://ogc.osd.mil/doha/5220-6 R20170608.pdf. 2 Some details were excluded to protect Applicant’s right to privacy. Specific information is available in the cited exhibits. 3 Drug Involvement Applicant infrequently used marijuana from 1991 to 2012. (Tr. 18, 22, 24) He used marijuana two or three times a year. (Tr. 22) In 2001, the police arrested Applicant for possession of marijuana when the police found a marijuana cigarette in his cigarette pack. (Tr. 29) From 2001 to 2010, he used marijuana once in 2010. (Tr. 24) When he had his April 22, 2016 Office of Personnel Management personal subject interview (OPM PSI), he said his most recent marijuana use was a year or two before the interview. (Tr. 25) His company does not have unannounced drug tests. (Tr. 21) He denied that he intends to use marijuana in the future. (Tr. 27, 31) Some of his friends that he sees occasionally use marijuana. (Tr. 28) His close friends do not use marijuana. (Tr. 28) He denied that he purchased or distributed marijuana. (Tr. 31, 38) He has not used any other illegal drugs. (Tr. 31) He has not received drug counseling. (Tr. 34) He insisted that his most recent marijuana use was on his 40th birthday in August 2012. (Tr. 23-26, 30) He emphasized his marijuana use was infrequent, not recent, and it did not adversely affect his job performance or security. (Tr. 36) Personal Conduct On his July 28, 2005 SCA, in response to the questions about whether he possessed or used marijuana in the last seven years and whether he ever used marijuana while holding a security clearance, Applicant disclosed his use of marijuana in September 2001, his arrest and conviction for marijuana possession or possession of drug paraphernalia, and he indicated he “occasionally” used marijuana. (Tr. 32; GE 2; GE 3) On his December 14, 2015 SCA, Applicant denied that he possessed or used marijuana in the last seven years, and he denied that he ever used marijuana while holding a security clearance. (Tr. 31; GE 1; GE 3) At the time he completed his SCAs, Applicant did not consider his marijuana use to be to the extent where disclosure was required. (Tr. 32) He did not believe he had “a drug habit,” and he did not consider himself to be a drug user. (Tr. 33) He did not want to answer additional or follow-up questions about his drug use that would result if he opened the door by disclosing marijuana use. (Tr. 33) It was “expediency” or out of convenience for him not to disclose the frequency of his marijuana use. (Tr. 34) He acknowledged that he should have disclosed his marijuana use. (Tr. 32-34) Policies The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicant’s eligibility for access to classified information “only upon a finding that it is clearly consistent with the 4 national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended. Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable. The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. 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 about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. Thus, nothing in this decision should be construed to suggest that it is based, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. It is merely an indication the applicant has not met the strict guidelines the President, Secretary of Defense, and DNI have established for issuing a clearance. Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996). Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b). 5 Analysis Drug Involvement AG ¶ 24 articulates the security concern for drug involvement: The illegal use of controlled substances, to include the misuse of prescription and non-prescription drugs, 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 an individual’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. Controlled substance means any “controlled substance” as defined in 21 U.S.C. 802. Substance misuse is the generic term adopted in this guideline to describe any of the behaviors listed above. AG ¶ 25 lists three conditions that could raise a security concern and may be disqualifying in this case: (a) any substance misuse (see above definition); (c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and (f) any illegal drug use while granted access to classified information or holding a sensitive position. Applicant’s SOR response, OPM PSI, and hearing record establish Applicant possessed and used marijuana3 while holding a security clearance. AG ¶¶ 25(a), 25(c), and 25(f) are established. AG ¶ 26 details conditions that could mitigate security concerns: (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) 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: 3 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 substances. See Drug Enforcement Administration listing at http://www.deadiversion.usdoj.gov/21cfr/cfr/1308/1308 11.htm. See also Gonzales v. Raish, 545 U.S. 1 (2005) (discussing placement of marijuana on Schedule I). 6 (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; (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, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional. The DOHA 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(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). 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.”4 4 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: 7 Applicant’s infrequently used marijuana from 1991 to August 2012. He held a security clearance from 1992 to present. He did not receive drug counseling, and he continues to infrequently associate with marijuana users. His marijuana possession and use are not recent, and he assures he will not use marijuana in the future. Drug involvement security concerns are mitigated. Personal Conduct AG ¶ 15 explains why personal conduct is a security concern stating: 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 or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes. AG ¶ 16 describes one condition that could raise a security concern and may be disqualifying in this case, “(a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire . . . used to conduct investigations, . . . determine security clearance eligibility or trustworthiness. . . .”5 Applicant provided 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). See also ISCR Case No. 02-08032 at 8 (App. Bd. May 14, 2004) (reversing an unfavorable security clearance decision because the administrative judge failed to explain why drug use was not mitigated after the passage of more than six years from the previous drug abuse). In ISCR Case No. 05-11392 at 1-3 (App. Bd. Dec. 11, 2006) the Appeal Board, affirmed the administrative judge’s decision to revoke an applicant’s security clearance after considering 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. 5 The Appeal Board has cogently explained the process for analyzing falsification cases, stating: (a) when a falsification allegation is controverted, Department Counsel has the burden of proving falsification; (b) proof of an omission, standing alone, does not establish or prove an applicant’s intent or state of mind when the omission occurred; and (c) a Judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning the applicant’s intent or state of mind at the time the 8 enough information on his July 28, 2005 SCA about his involvement with marijuana, including his conviction for possession of marijuana or possession of drug paraphernalia and his occasional marijuana use to put the government on notice of his marijuana involvement. The allegation in SOR ¶¶ 2.c and 2.d that he falsified his July 28, 2005 SCA is refuted because he did not intentionally mislead the Government. However, he did not provide accurate information about his history of marijuana possession and use on his December 14, 2015 SCA. AG ¶ 16(a) is established. AG ¶ 17 provides seven conditions that could mitigate security concerns in this case: (a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; (b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by advice of legal counsel or of a person with professional responsibilities for advising or instructing the individual specifically concerning security processes. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully; (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; (d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that contributed to untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; (f) the information was unsubstantiated or from a source of questionable reliability; and (g) association with persons involved in criminal activities was unwitting, has ceased, or occurs under circumstances that do not cast doubt upon the omission occurred. [Moreover], it was legally permissible for the Judge to conclude Department Counsel had established a prima facie case under Guideline E and the burden of persuasion had shifted to the applicant to present evidence to explain the omission. ISCR Case No. 03-10380 at 5 (App. Bd. Jan. 6, 2006) (citing ISCR Case No. 02-23133 (App. Bd. June 9, 2004)). 9 individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations. None of the mitigating conditions fully apply. He receives some credit under AG ¶ 17(a) because he disclosed his marijuana use during his April 22, 2016 OPM PSI; however, it was more than four months after his December 14, 2015 SCA was signed which is not a prompt correction of his false statements on his SCA. His false statements on his December 14, 2015 SCA were deliberate. These falsifications by intentionally failing to disclose his marijuana possession and use are serious, improper, and raise a significant security concern. His statement that he believed he did not need to disclose his marijuana possession and use because it was not frequent or not significant is not credible. Personal conduct security concerns are not mitigated. 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(d): (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), “[t]he ultimate determination” of whether to grant a security clearance “must be an overall commonsense judgment based upon careful consideration of the guidelines” and the whole-person concept. My comments under Guidelines H and E are incorporated in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines but some warrant additional comment. Applicant is 44 years old, and he has been employed as an avionics technician for the previous 22 years. In 1990, he graduated from high school. He has not attended college. In 1994, he received a certificate from a technical school. He has held a security clearance for 22 years, and there is no evidence of a security violation. His disclosure of his marijuana possession and use during his OPM PSI, his expression of regret, and the termination of his marijuana use are important factors of mitigation. Applicant used marijuana on multiple occasions from 1991 to August 2012. He has held a security clearance since 1995. He intentionally failed to disclose his marijuana possession and use on his December 14, 2015 SCA. 10 Applicant’s December 14, 2015 falsification of his SCA was in a security context. This conduct raises a serious security concern. The protection of national security relies on applicants to self-report conduct that jeopardizes security, even when that disclosure might damage the applicant’s career or cause embarrassment. Applicant cannot be trusted to disclose potentially derogatory information. He did not establish his reliability, trustworthiness, and ability to protect classified information. I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. Drug involvement security concerns are mitigated; however, personal conduct security concerns are not mitigated. It is not clearly consistent with the interests of national security to grant Applicant security clearance eligibility at this time. 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 through 1.d: For Applicant Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraphs 2.a and 2.b: Against Applicant Subparagraphs 2.c and 2.d: For Applicant Conclusion In light of all of the circumstances in this case, it is not clearly consistent with the interests of national security to grant Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied. _________________________ Mark Harvey Administrative Judge