DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) XXXXXXXXXXXXXXXX ) ISCR Case No. 16-00056 ) Applicant for Security Clearance ) Appearances For Government: Robert J. Kilmartin, Esquire, Department Counsel For Applicant: Pro se ______________ Decision ______________ METZ, John Grattan, Jr., Administrative Judge: Based on the record in this case. Applicant’s clearance is granted.1 On 10 June 2016, the Department of Defense (DoD) sent Applicant a Statement of Reasons (SOR) raising security concerns under Guidelines H, Drug Involvement.2 Applicant timely answered the SOR, requesting a decision without hearing by the Defense Office of Hearings and Appeals (DOHA). The record in this case closed 07 September 2016, when Department Counsel stated no objection to Applicant’s response to the FORM. DOHA assigned the case to me 22 May 2017. Consisting of the File of Relevant Material (FORM), Items 1-3.1 DoD acted under Executive Order 10865, Safeguarding Classified Information Within Industry (February 20,2 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 1 September 2006. 1 Findings of Fact Applicant admitted the SOR allegation. He is a 41-year-old software developer employed by a defense contractor since October 2010. He was unemployed from July 2014 to October 2014, after being laid off from a company he had worked for since April 2000. He has not previously held a clearance, but now requires one for his employment. Applicant used marijuana approximately three or four times per year from July 2007 to April 2014. He used in social settings and at concerts, and the marijuana was provided by a friend or fellow concert-goers. He reported his marijuana use on his December 2014 clearance application (Item 2), on which he was equivocal about his future intent, and confirmed it during an October 2015 subject interview with a Government investigator (Item 3), where he stated that he had no intent to use in the future but could not guarantee it because he lived in a state where marijuana use is legal. However, that was not true during most of the time he was using marijuana. His Response to the FORM states that he will not use marijuana in the future. He also stated that he has not had any contact with his former marijuana associates since he started his new job. Applicant submitted no work or character references, and provided no evidence of any community involvement. Policies The AG list factors to evaluate a person’s suitability for access to classified information. Administrative judges must assess disqualifying and mitigating conditions under each issue fairly raised by the facts and situation presented. Each decision must also show a fair, impartial, and commonsense consideration of the factors listed in AG ¶ 2(d). The applicability of a disqualifying or mitigating condition is not, by itself, conclusive. However, specific guidelines should be followed when a case can be measured against them, as they are policy guidance governing the grant or denial of a clearance. Considering the SOR allegations and the evidence as a whole, the relevant adjudicative guideline is Guideline H (Drug Involvement). Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an applicant’s security clearance. The Government must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, the burden shifts to applicant to refute, extenuate, or mitigate the Government’s case. Because no one has a right to a security clearance, the applicant bears a heavy burden of persuasion. Persons with access to classified information enter into a fiduciary relationship with the Government based on trust and confidence. Therefore, the Government has a compelling interest in ensuring each applicant possesses the required judgment, reliability, and trustworthiness of those who must protect national interests as their own. 2 The “clearly consistent with the national interest” standard compels deciding any reasonable doubt about an Applicant’s suitability for access in favor of the Government.3 Analysis The Government established a case for disqualification under Guideline H, by demonstrating Applicant’s illegal drug abuse between July 2007 and April 2014.4 However, Applicant mitigated the security concerns. Despite the length of Applicant’s illegal drug involvement, that drug history encompasses infrequent use in social settings surrounding his contacts at a previous employer. He stopped his marijuana use when he lost that job in April 2014. He has used no illegal drugs since April 2014. Drug involvement mitigating conditions give substantial support to Applicant. His illegal drug abuse was infrequent, although lengthy. However, his last illegal drug use was April 2014, over two years ago. The issue is not so much the seven years that he5 used marijuana recreationally, but his recognition that drug use is inconsistent with holding a clearance. Further, he established a pattern of abstinence including disassociating himself from drug-using contacts and avoiding the environments where he used drugs in the past. Moreover, although he did not couch his Response in the exact language of the old guidelines, he clearly intended for his Response to constitute a statement of intent within that guideline. I consider that statement of intent, which is6 actually more restrictive than the current guidelines, sufficient indication that Applicant understands the potential consequences of any future drug use. I conclude Applicant is unlikely to abuse illegal drugs in the future. Accordingly, I resolve Guideline H for Applicant. Formal Findings Paragraph 1. Guideline H: FOR APPLICANT Subparagraph a: For Applicant See, Department of the Navy v. Egan, 484 U.S. 518 (1988).3 ¶25(a) any substance misuse; (c) illegal possession of a controlled substance . . .; (g) . . . failure to clearly4 and convincingly commit to discontinue such misuse. ¶26(a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that5 it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment [Emphasis supplied]; ¶26(b) the individual acknowledges his or her drug involvement and substance misuse, provides evidence6 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) 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; 3 Conclusion Under the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance granted. JOHN GRATTAN METZ, JR Administrative Judge 4