1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-00276 ) ) Applicant for Security Clearance ) Appearances For Government: Benjamin Dorsey, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ CREAN, THOMAS M., Administrative Judge: Based on a review of the pleadings, exhibits, and testimony, I find that Applicant failed to mitigate drug involvement and personal conduct security concerns. Eligibility for access to classified information is denied. Statement of the Case Applicant submitted an Electronic Questionnaire for Investigations Processing (e- QIP) on December 20, 2013, to retain a security clearance required for his duties with a defense contractor. A security investigator from the Office of Personnel Management (OPM) interviewed Applicant on February 21, 2014. (PSI) On June 8, 2016, the Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) detailing security concerns for drug involvement (Guideline H) and personal conduct (Guideline E) for the same drug related involvement. The actions were taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective in the Department of Defense on September 1, 2006. 2 Applicant provided a detailed answer to the SOR on June 23, 2016. He admitted the allegations of marijuana and ecstasy use, but denied that under the circumstances his conduct showed dishonesty, unreliability, untrustworthiness, unwillingness to follow rules or regulations, lack of good judgment, or lack of candor. Department Counsel was prepared to proceed on August 24, 2016, and the case was assigned to me on December 2, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a Notice of Hearing on April 5, 2017, scheduling a hearing for April 24, 2017. I convened the hearing as scheduled. The Government offered four exhibits, which I marked and admitted into the record without objection as Government Exhibits (GX) 1 through 4. Applicant testified, and offered a series of military and civilian performance appraisals and awards which I marked and admitted into the record without objection as Applicant Exhibits (AX) A and B. DOHA received the transcript of the hearing (Tr.) on May 2, 2017. While this case was pending a decision, the Director of National Intelligence issued Security Executive Agent Directive 4, establishing 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 September 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 Fact Applicant’s admissions are included in my findings of fact. After a thorough review of the pleadings, transcript, and exhibits, I make the following additional findings of fact. Applicant is 53 years old. He received two bachelor degrees in 1984, and a juris doctor degree in 1991. He is married but has no children. Applicant served for over 23 years in the United States Marine Corps; five years as a judge advocate on active duty from January 1989 until August 1994, and as a judge advocate in the Marine Corps Selected Reserve from August 1994 until August 2012, when he retired as a lieutenant colonel (O-5) and received an honorable discharge. Applicant received numerous awards and decorations during his active and reserve service. He received an Army Commendation Medal and a Humanitarian Service Medal for service during Hurricanes Katrina and Rita, He received a Navy Marine Corps Commendation Medal, Meritorious Unit Commendation Medal, Global War on Terrorism Medal, a National Defense Service Medal twice, and a Selected Marine Corps Reserve Medal. He also provided five letters of appreciation he received for his service as a Marine. His fitness reports show that Applicant was a supremely talented professional Marine who was sought by commanders for service in their units. 1 I considered Applicant’s case under both the September 1, 2006 AGs, and the June 8, 2017 AGs. My decision would be the same under both AGs. 3 The reports also show that he is a person who follows rules and regulations. He has not been the subject of any military disciplinary action or investigations. His conduct shows that he is a person that follows rules and directives. (Tr. 19-24; GX 1, e-QIP, dated December 20, 2013; AX A, Fitness Reports and awards and decorations) Applicant, since he left active duty in 1994, has been employed as a civilian high- level executive for various government contractors in communications and cyber security. He is presently, and has been since May 2007, a director in the federal practice section of a large consulting firm and government contractor. His civilian performance awards from his various employers are similar to his military performance assessment. The reports show that he is considered a subject matter expert on data protection. He has consulted on cyber risk and how to secure mass data sets. His performance evaluations are considered superior. (Tr. 24-30; AX B, Civilian performance evaluations) Applicant was granted eligibility for access to classified information when he was commissioned in the Marine Corps in 1989. Applicant admits that all officers in the Marine Corps Selected Reserve are granted eligibility for access to classified information while they are in the Selected Reserve. The clearance follows the officer the entire period they are in the Marine Corps Selected Reserve. It should also be noted that his clearance was periodically updated, and his eligibility was continued while he was in the Marine Corps Selected Reserve status. His clearance as a civilian at the consulting firm flows from the clearance granted to him when he entered active duty and while serving in the Marine Corps Selective Reserve. In 2008, he was administered a polygraph examination by a government agency so he could receive a higher-level security clearance for the work he was doing for his civilian employer. At first, he was not granted a clearance to have access to high-level information. After appealing, he was granted eligibility for the clearance he and his firm sought for him. He still has that high-level clearance with the civilian employer.2 (Tr. 32-37; Gov. Ex. 1, e-QIP, dated December 20, 2013; GX 2, PSI, dated February 21, 2014) The SOR alleges the use of controlled substances on three different occasions that violate both drug involvement and personal conduct security concerns. The first allegation concerns the use of marijuana in September 2013. The second allegation concerns the use of ecstasy in June 2006. The third allegations concerns the use of marijuana on a few occasions up until 2001. The three allegations also included a statement that Applicant had been granted access to classified information at the time he allegedly used a controlled substance. Applicant acknowledged that he was granted eligibility for access to classified information in 1989, his eligibility was renewed in 2003, and he received a higher-level clearance as well as an SCI clearance in 2009. Applicant reported on his e-QIP that he used ecstasy two times over two days in 2008, and 2 The Defense Security Service website in response to frequently asked questions notes that a personnel security clearance remains in effect as long as the individual remains continuously employed by the cleared contractor and can reasonably be exppected to require access to classified information. (See Department of Defense (DOD) Defense Security Service, Frequently asked Questions about the Industrial Personnel Security Clearance Process, http://www.dss.mil/psmo-i/ps_ faqs.html#8.) 4 marijuana twice for his birthday in September 2013. In his detailed response to the SOR, Applicant admitted his marijuana use in September 2013, his ecstasy use in June 2006, but denied the marijuana use up until 2001. SOR allegation 1.a and 2.a concern the use of marijuana twice for his birthday in September 2013. Applicant admitted he and his partner were on vacation in Amsterdam. His partner purchased some marijuana for them, gave it to Applicant to use in celebration of his fiftieth birthday. Marijuana purchase and use is legal in Amsterdam. Applicant took a few puffs of a marijuana cigarette on two occasions for his birthday. Applicant has not used marijuana or any other controlled substance since the use in September 2013. He is still with his partner who has not used marijuana since December 2016. Applicant stated his intent not to use any controlled substance in the future. (Tr. 55-58) Applicant did not believe that he had an active clearance at the time. He had not worked in a classified environment or been employed on a classified contract or project in some time. He was not “read in” on any classified work or engagements. He was not thinking of classified work at the time he used marijuana in September 2013. He has a reputation within his company of being the person that follows all of the rules. At the time he used marijuana, he was not thinking about the rules pertaining to security clearances. (Tr. 19-22) SOR allegations 1.b and 2.b concern the use of ecstasy. Applicant admits that he used ecstasy in June 2006, over ten years ago. At the time, he was experiencing a significant personal emotional event from the break-up of an over five-year relationship. He thought the relationship would last a lifetime. A friend gave him the ecstasy which he consumed at that time. He admits that his actions were wrong and he regrets using the controlled substance. He was not thinking about the status of his access to classified information at the time. (Tr.19-22) SOR allegations 1.c and 2.c concern the use of marijuana on a few occasions until 2001 despite being granted a security clearance. Since the allegation is in the nature of Applicant having a security clearance, it can only concern the use of marijuana after 1989 when Applicant was granted eligibility for access to classified information. Applicant denies this allegation. The government’s evidence of the allegation is in an adjudication report that reads in part: “Between December 1979 and June 2001, SUBJECT used marijuana about five times and in June 2006, he used ecstasy about two times.” Applicant stated that before entering active duty in the Marine Corps while a high school and college student, he experimented a few times with marijuana. Applicant was either on active duty or in the Marine Corps Selected Reserve from 1989 until 2012. He never used marijuana while a Marine. He used ecstasy in June 2006 while in the Marine Corps Selected Reserve. The government’s information can only refer to Applicant’s potential experimental use of marijuana before entering the Marine Corps. I find, based on the available evidence, that the Government has not met its burden to establish that Applicant used marijuana from 1979 to 2001 creating a security concern because he had been granted a security clearance. 5 In his answer to the SOR and in his testimony at the hearing, Applicant stated that when he used marijuana in 2013 and ecstasy in 2006 he was under a misunderstanding as to the status of his security clearance. He did not know that his security clearance was still active since he had not read or seen classified information in some time. He also pointed out that under the whole-person concept he has a history of reliability, trustworthiness, and willingness to follow rules and regulations. These characteristics are reflected in his service of over 23 years as a Marine Corps lieutenant colonel judge advocate, as a high-level civilian contractor and executive, the lack of any disciplinary or criminal action against him, the lack of any counseling for work attendance or performance, and the letters of appreciation and accolades he received for his military and civilian work. There are no indications of any mental health or financial issues raised. Policies When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the Administrative Guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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 over-arching adjudicative goal is a fair, impartial and common sense 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 national security eligibility will be resolved in favor of the 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture. 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 applicant or proven by department counsel. . .” The applicant has the burden of persuasion to obtaining 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 6 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 protect or 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. Analysis 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 behavior listed above. Marijuana or cannabis and ecstasy are controlled substances. (AG ¶ 24) Applicant admitted using marijuana twice in September 2013 and ecstasy twice in June 2006. He was granted eligibility for access to classified information in 1989. Applicant was never tested for drug use, or been seen by a physician, counselor, or medical professional concerning drug use, and he never entered a drug treatment programs. Under normal drug use circumstances, an Applicant has to possess a drug to use it. Since Applicant was given the controlled substances by friends and immediately consumed the controlled substances, he never possessed the controlled substances. The facts raise the following Drug Involvement Disqualifying Conditions under AG ¶ 25: (a) any substance misuse (see above definition); and (f) any illegal drug use while granted access to classified information or holding a sensitive position. I considered the following Drug Involvement Mitigating Conditions under AG ¶ 26: (a) the behavior happened so long ago, was so infrequent, or 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; and (b) the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome this 7 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. While there is no "bright line" rule for determining when conduct is recent or sufficient time has passed since the incidents, a determination whether past conduct affects an individual's present reliability and trustworthiness must be based on a careful evaluation of the totality of the evidence. If the evidence shows a significant period of time has passed without evidence of drug involvement, there must be an evaluation whether that period of time demonstrates changed circumstances or conduct sufficient to indicate a finding of reform or rehabilitation. The mitigating condition must be considered as they apply to Applicant and under the circumstances of this case. It is incomprehensible to believe that Applicant did not know that he was eligible for access to classified information when he used ecstasy in 2006 and marijuana in 2013. Applicant is a highly sophisticated person and not your average Applicant for a security clearance. He is a lawyer, a Marine judge advocate lieutenant colonel, and a high-level civilian executive for a government contractor working in cyber security and data base protection. The mitigating conditions must be considered under the circumstances of his case to determine reliability, trustworthiness, and the ability or willingness to comply with laws, rules and regulations. I find that Applicant knew his security clearance was active when he used the controlled substances in 2006 and 2013. Applicant’s use of marijuana was recent, only about four years ago. Applicant’s use was voluntary and not under unusual circumstances. The marijuana use was to celebrate his birthday and in a place where marijuana use was legal. These circumstances are not unusual and can easily happen again. While Applicant did not provide a written statement of his intent not to use drugs again, he was sincere in his verbal statement of intent not to use drugs again. His use of ecstasy was over two days more than ten years ago. His use was voluntary and again not under unusual circumstances even though it took place after a significant emotional event. Under these circumstances, there has not been an appropriate period of abstinence. Applicant has not established sufficient evidence that could indicate a change in lifestyle and circumstance. 8 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 and sensitive information. (AG ¶ 15). Personal conduct is always a security concern because it asks whether the person’s past conduct justifies confidence the person can be trusted to properly safeguard classified or sensitive information. Applicant’s use of marijuana in September 2013 and ecstasy in June 2006 was also raised as a personal conduct security concern. Personal conduct security concerns were also raised concerning the use of marijuana until 2001 while being granted a security clearance. I found that the government failed to present sufficient evidence to establish this use so no further discussion as personal conduct is required. The disqualifying condition at AG ¶ 16(c) applies to the use of marijuana in September 2013 and ecstasy in June 2006: (credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single, 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 individual may not properly safeguard classified or sensitive information). I consider the following mitigating conditions at AG ¶ 17: (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 contribute 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; and (g) association with persons involved in criminal activity was unwitting, has ceased, or occurs under circumstances that do not cast doubt upon the individual’s reliability, trustworthiness, judgment, or willingness to comply with rules and regulations. These mitigating conditions do not apply for the same reasons articulated under drug involvement. Applicant knew he had an active security clearance and he knowingly used controlled substances. His actions violated both his responsibilities as a security clearance holder, and his obligations as a Marine officer in the Selected Reserve. 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 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), 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 considered the Applicant’s service on active duty and in the Selected Reserve as a judge advocate for the Marine Corps, his awards and decorations, his fitness reports and the letters of appreciation and recommendation. I considered that for over 15 years Applicant has served as a high- level civilian contactor at a prestigious consulting firm and is an expert in data base protection. His civilian evaluations are also excellent. I considered Applicant’s regret for using controlled substances under the circumstances and his intent not to use drugs in the future. I have found that Applicant had to know that he was eligible for access to classified information and recall to active duty when he used controlled substances. He may not have thought about his clearance status at the time he used illegal drugs, but that does not negate the fact that he was eligible for access at the time. Applicant is a sophisticated, highly educated, well regarded Marine lawyer and officer, high-level executive, and contractor. However, he freely and knowingly used controlled substances while being eligible for access to classified information. Applicant’s good reputation and record does not override that he used controlled substances twice while having access to classified information. Applicant does receive consideration for having revealed his use of controlled substances. He was honest and forthright about his use. There is no way for the Government to learn of Applicant’s use under the circumstances if Applicant had not been honest and forthright on his security clearance application. The allegations under Guidelines E and H, as established by the government’s evidence, reflect a lack of judgment by Applicant. The evidence shows a recent use of marijuana, and use of ecstasy while being eligible for access to classified information. 10 Applicant’s explanation for using marijuana and ecstasy while holding a security clearance is that he just did not think about having a security clearance under the circumstances. Applicant showed a lack of judgment when he used marijuana in Amsterdam without thinking about the fact he had eligibility for access to classified information. He knew that while marijuana use was legal in Amsterdam, it was not legal under federal law, the Uniform Code of Military Justice, or while holding a security clearance. He again showed a lack of judgment when he knowingly used ecstasy without thinking about the facts of his security clearance. Applicant’s statement of intent not to use controlled substances in the future has little impact because of his previous voluntary use of marijuana and ecstasy. Applicant admitted using marijuana and ecstasy while holding a security clearance. These facts leave me with questions and doubts about Applicant’s judgment and his suitability for access to classified information. For all these reasons, I conclude that Applicant has not mitigated drug involvement and personal conduct security concerns. Eligibility for access to classified information is denied. 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: AGAINST APPLICANT Subparagraph 1.a and 1.b: Against Applicant Subparagraph 1.c: For Applicant Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraphs 2.a - b: Against Applicant Subparagraph 2.c: For Applicant 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 a security clearance. Eligibility for access to classified information is denied. _________________ THOMAS M. CREAN Administrative Judge