1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-03179 ) Applicant for Security Clearance ) Appearances For Government: Nicole A. Smith, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ MURPHY, Braden M., Administrative Judge: Applicant did not mitigate the security concerns under Guideline H, drug involvement, which included frequent marijuana use while holding a security clearance, and he did not mitigate the security concerns under Guideline E, personal conduct, concerning his deliberate failure to disclose the full extent of his marijuana use on his security clearance application and in his background interview. Applicant’s eligibility for continued access to classified information is denied. Statement of the Case On January 31, 2017, the Department of Defense Consolidated Adjudications Facility (DoD CAF) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guideline H, drug involvement, and Guideline E, personal conduct. The action was taken under Executive Order (Exec. Or.) 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 effective within the DoD on September 1, 2006. 2 Applicant answered the SOR on February 21, 2017 and requested a hearing. The case was assigned to me on May 12, 2017. The hearing convened on August 2, 2017, as scheduled. At the hearing, Department Counsel offered documents marked as Government Exhibits (GE) 1 through 3. Applicant testified and offered six exhibits, which were marked as Applicant’s Exhibits (AE) A through AE F. All exhibits were admitted without objection. DOHA received the transcript (Tr.) on August 11, 2017. On December 10, 2016, the Director of National Intelligence (DNI) issued Security Executive Agent Directive (SEAD) 4, National Security Adjudicative Guidelines (AG). The Directive became effective on June 8, 2017 for all adjudicative decisions on or after that date, including this one.1 Any changes resulting from the implementation of the new AGs did not affect my decision in this case. Amendment to the Statement of Reasons At the conclusion of the hearing, based on Applicant’s testimony, Department Counsel sought to amend the SOR by adding falsification allegations under Guideline E. That motion was granted. (Tr. 75, 77) The record was held open until August 11, 2017, for Department Counsel to submit the language of the new allegations in writing. On August 10, 2017, Department Counsel filed an amendment to the SOR, alleging that Applicant deliberately failed to disclose the full extent of his drug use in both his security clearance application and his background interview.2 (SOR ¶¶ 2.b and 2.c) In an e-mail order the same day, I directed Applicant to respond to the amendment by August 25, 2017, and to: 1) answer the new allegations; and, if he wished, 2) to object to the motion, setting forth a basis for doing so; 3) to submit additional documentation; and 4) to request that the hearing be reopened, setting forth a basis for doing so. Applicant subsequently sought additional time to respond. Applicant filed his answer to the new allegations by e-mail on September 3, 2017. He admitted the two allegations, and provided a narrative explanation. He did not seek to re-open the hearing. The record closed on September 5, 2017.3 Findings of Fact In his answer to the SOR, Applicant admitted SOR ¶¶ 1.a through 1.e, with explanations. He did not answer SOR ¶ 2.a, but it is a cross-allegation, so I consider that he admitted it. In his answer to the amendment, Applicant admitted SOR ¶¶ 2.b and 2.c, with an explanation. His admissions and other comments are incorporated into the findings of fact. After a thorough and careful review of the pleadings and exhibits submitted, I make the following additional findings of fact. 1 Applicant confirmed at hearing that he had received the new AGs. (Tr. 7-8) 2 Hearing Exhibit (HE) II. The Government’s discovery letter is HE I. 3 HE III – HE V. 3 Applicant is 35 years old. He was married from 2005 to 2010. He shares joint custody of his 10-year-old daughter with his former wife. He has lived with his girlfriend for the last two years. Applicant graduated from high school in 2000, and attended college for a period of time after that. (Tr. 35) Applicant spent six-and-a-half-years in the United States Navy, from August 2005 to February 2012. He was discharged honorably with the rank of second class petty officer (E-5). (Tr. 28, 35-38, 57-58; GE 1, GE 2) During his naval service, he earned two Navy & Marine Corps Achievement Medals, two Good Conduct Medals, the National Defense Service Medal, the Global War on Terrorism Expeditionary Medal, the Global War on Terrorism Service Medal, and a Sea Service Deployment Ribbon. (AE E) Since September 2012, Applicant has worked as a defense contractor at a naval shipyard. He has held a security clearance since April 2009, when he was in the Navy. He submitted a security clearance application (SCA) in May 2015, in connection with his employment. (Tr. 29-30; GE 1, 3) Guideline H Applicant experimented with illegal drugs in high school. He used marijuana once or twice when he was 16 years old, and also tried mushrooms, LSD, ecstasy, and cocaine, once each. (Tr. 35-38, 51, 52) Applicant began using marijuana more frequently after high school. Between 2001 and 2004, he used marijuana about once a week. He was in college, living away from home. He acknowledged that he felt “pretty lost” during this period. (Tr. 36) In 2002, when he was 18, Applicant was arrested and charged with possession of marijuana after he was pulled over by the police. He later served a period of probation. (Answer; Tr. 52-53) (SOR ¶ 1.e) Applicant did not use any illegal drugs when he was in the Navy. He was subject to random drug testing and was aware of the U.S. Government’s “zero tolerance” drug policy. Applicant testified that he was aware that his shipyard employer has a similar policy. He testified that he took a “hair sample” drug test when he applied for the job. He tested negative and was hired shortly thereafter. (Tr. 38, 50, 58-59) After leaving the Navy, Applicant dated a woman who smoked marijuana. (Answer, Tr. 39) At some point, he resumed using marijuana himself. In August 2013, Applicant failed a urinalysis at work when he tested positive for marijuana. He held a security clearance at the time. (Tr. 29-30) (SOR ¶¶ 1.b, 1.c) Applicant was told he would be fired unless he attended drug treatment. Applicant attended drug treatment and counseling for most of September and October 2013. He was required to complete a drug treatment program before he could return to work. (Tr. 32-33; GE 3 at 18, 24) The treatment records reflect that Applicant began smoking marijuana at age 16, and that between ages 20 and 23, he smoked “all the time.” He did not smoke marijuana during the six years he was in the Navy (ages 23- 4 29). After leaving the Navy in February 2012, he resumed smoking marijuana to cope with anxiety, depression, loneliness, and stress. His marijuana use gradually increased from [monthly use] to [as much as daily use] over the past month. He reported that he last used marijuana on August 23, 2013, about one bowl per night.” (GE 3 at 18) (SOR ¶¶ 1.a) This information is based on self-reporting by Applicant during his treatment. (Id.) He was diagnosed as suffering from cannabis dependence-continuous.4 (GE 3 at 28) (SOR ¶ 1.d) During the program, Applicant attended group sessions, three times a week, for half a day. He also saw a counselor one-on-one, and he attended Alcoholics/Narcotics Anonymous or a similar program twice a week. (Tr. 44-45; GE 2 at 30) Applicant completed the program and returned to the shipyard in December 2013. He testified that he has been drug-free ever since. He has not participated in any drug counseling or support group since completing the program. (Tr. 47; GE 2; AE F) Applicant has not used marijuana since he tested positive in August 2013. He has had several drug tests since then, all negative. He no longer associates with the individuals with whom he used illegal drugs. He stated in his answer that he will not use marijuana again and understands that “any violation will result in an automatic revocation of his clearance. (Answer; Tr. 67-68) Guideline E The section on illegal drug use on Applicant’s May 2015 SCA contains the following question: In the last seven (7) years, have you illegally used any drugs or controlled substances? Use of a drug or controlled substance includes injecting, snorting, inhaling, swallowing, experimenting with, or otherwise consuming, any drug or controlled substance.5 Applicant answered “Yes” and disclosed that he used THC (marijuana) one time, in August 2013. He also wrote, “Even this silly lapse of judgment had serious effects on me professionally. It’s not worth it.” Applicant also disclosed that he tested positive for THC and was referred to counseling by his employer. (GE 1 at 28, 29) According to the summary of Applicant’s July 2016 background interview, he disclosed to the interviewing agent that: 4 Applicant was diagnosed with cannabis dependence, continuous (diagnostics code 304.31) under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V), published in May 2013. 5 GE 1 at 28. (emphasis in original) 5 . . .from the time he got out of the Navy in 02/2012 until he started at [the shipyard job] in 9/12, he smoke[d] occasionally but not more than five or six times. He did not use again until the one time in 8/13 when he was with [the woman he was dating] and she offered it to him. Subject stated he put one-time use on his questionnaire because he thought it meant since he was at the shipyard.6 In his December 2016 interrogatory response, Applicant authenticated his interview summary without making any changes to it. (GE 2 at 2-3) In an interrogatory response about his drug use, he reported using and purchasing cannabis between July 2000 and 2005. Asked, “When did you decide to stop using illegal drugs?,” Applicant wrote, “In 2004/05.” He did not list any drug use after 2005. (GE 2 at 5-6) Applicant also provided a copy of his drug treatment records (excerpted above), which detail his drug use both before and after he was in the Navy. (GE 2 at 16-31) At his hearing, when questioned about the timeframe of his renewed (post-Navy) drug use, Applicant first testified that he resumed using marijuana “around the time of the urinalysis,” (in August 2013) (Tr. 40) He also said “I might have smoked marijuana a couple of times before I got the job” (in September 2012). (Tr. 40) When asked to explain why his treatment records indicated that he used marijuana monthly up to daily in 2012 and 2013, Applicant testified, “I don’t, I don’t know. I mean, I guess I said that.” (Tr. 43) At hearing, Applicant denied using marijuana daily. He claimed that the level of marijuana found in his urinalysis test was insufficient to show daily use of the drug. (Answer; Tr. 43) He acknowledged that he smoked marijuana, “occasionally, I’m not sure.” (Tr. 44) When asked to explain why he reported on his SCA that he used marijuana one time in August 2013, Applicant testified that, “I honestly thought that those were considered the same because it was referring to me, probably on the [urinalysis] test, and me going to treatment, and all of that, as one instance. I didn’t think of it as referring to all of it.” (Tr. 64, emphasis added) When asked to explain why he told the interviewing agent that he used marijuana five or six times, Applicant testified that the interview occurred first thing in the morning after he worked an all-night, 12-hour shift, and he could not recall how much sleep he got before the interview. He also said, “I remember being frustrated, and wanting to leave as soon as possible. But, honestly, I couldn’t tell you why I said what I did or what I actually said to her.” (Tr. 66) Applicant authenticated his interview summary in his interrogatory response, and acknowledged having time to consider his answers. (Tr. 66; GE 2 at 3) When asked to explain why he did not report his post-Navy drug use on his interrogatory response, Applicant stated that he thought his later marijuana use was 6 GE 2 at 12. 6 “covered,” because “everything was known. I didn’t think I had to cover it again.” (Tr. 45) He later testified, “. . . I considered that whole, that one instance of me smoking weed as that whole time. I mean, I just -- I didn’t think about it like that, I guess.” (Tr. 67) (Emphasis added) In answering the falsification allegations in the SOR amendment, Applicant stated: To be honest, I vaguely remember these three separate occurrences and I apologize if I mislead anyone. Now that I have had some time to really think about it, I realize it was foolish of me to even try to give an exact answer. It is impossible for me to give an accurate ‘number of times used’ or more than just an estimate of the time period in which I smoked. Do you count each hit? Or each time you repacked the bowl? Or each time you actually purchased the marijuana? And the thing is, I don’t remember, not with any clarity. I used to smoke marijuana, just like an alcoholic used to drink. I no longer smoke marijuana.7 Applicant submitted several letters of recommendation. His supervisor for the last four years regards Applicant as one of the hardest-working and most dedicated people he has met in his professional career. Applicant’s supervisor is aware of his drug issues, drug treatment, and the fact that he has undergone subsequent drug tests, both yearly and random. (AE B) Two other co-workers and friends attest to Applicant’s excellent leadership skills, work ethic, intellect and respect for the military and the importance of the work that he performs. (AE A, AE D) Applicant’s girlfriend, who has known him for 10 years, also attests to his high moral character, and the importance of his family and daughter. She also believes he has reformed, and that his issues with illegal drugs are in the past. (AE C)8 Policies It is well established that no one has a right to a security clearance.9 As the Supreme Court noted in Department of the Navy v. Egan, “the clearly consistent standard indicates that security determinations should err, if they must, on the side of denials.”10 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 7 Answer to SOR Amendment. 8 Applicant’s girlfriend did not testify, but was present during the hearing. 9 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”). 10 484 U.S. at 531. 7 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(a), 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 not drawn 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, 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.” 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 the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Analysis Guideline H, Drug Involvement AG ¶ 24 expresses the security concern for drug involvement: The illegal use of controlled substances, to include the misuse of prescription drugs, and the use of other substances that can cause physical or mental impairment or are used in a manner inconsistent with their intended use 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 8 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. I have considered the disqualifying conditions for drug involvement under AG ¶ 25 and the following are potentially applicable: (a) any substance misuse (see above definition); (b) testing positive for an illegal drug; (c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; (d) diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of substance abuse disorder; and (f) any illegal drug use while granted access to classified information or holding a sensitive position. Marijuana is a Schedule 1 drug under the Controlled Substances Act. Its use and possession are illegal under federal law. Applicant used marijuana between about 2001 and 2005. He then abstained from any illegal drug use while serving in the Navy (2005- 2012) but he resumed using marijuana soon thereafter. In August 2013, while working in the defense industry and holding a security clearance, Applicant failed a urinalysis at work when he tested positive for marijuana use. He was suspended from work until he completed a drug treatment program. Applicant acknowledged using marijuana “occasionally” around the time of the drug test. His drug treatment records establish that Applicant used marijuana on a monthly basis beginning in 2012, and by August 2013, he was using daily. I accept this evidence, which Applicant self-reported during his drug treatment, as accurate.11 He was diagnosed as suffering from cannabis dependence, continuous. AG ¶¶ 25(a), 25 (b) 25(c), 25(d) and 25(f) apply.12 11 Medical records have an indicia of reliability such that they fall within exceptions to the hearsay rule, on the view that “people are motivated to tell the truth to a physician who is going to diagnose or treat them.” (ISCR Case No. 02-25196 at 4 (App. Bd. Jul. 10, 2007) (internal citation omitted) 12 Both Guideline H and Appendix B of the AGs reference Public Law 110-118 (the Bond Amendment), and note that it is applicable to Guideline H. See SEAD-4 at Guideline H, Fn. 1. Under Appendix B (Bond Amendment Guidance), “heads of agencies are prohibited from granting or renewing national security eligibility for any covered individual who is a controlled user of a controlled substance . . .” See SEAD-4, App. B, ¶ 1 (PROHIBITION). The Bond Amendment was made effective on January 1, 2008. See SEAD- 4, App. B. I therefore considered potential application of the Bond Amendment to this case. However, the 9 I have considered the mitigating conditions under AG ¶ 26. The following are potentially applicable: (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: (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 is grounds for revocation of national security eligibility; 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. There is no evidence that Applicant has used marijuana since he tested positive in August 2013, four years ago. In his answer, Applicant’s provided a signed statement of intent to abstain from future drug use, with automatic revocation of any future clearance. He has disassociated from drug-using associates and contacts. However, these factors are significantly outweighed by other evidence, and no mitigating conditions apply. Applicant used marijuana frequently, even daily, in 2012 and 2013, with a security clearance, until he failed a drug test. He acknowledged using marijuana, but only acknowledged “occasional” use, and not the full extent reflected in his drug treatment records. He took issue with the frequency of his drug use, the levels of the drug test, and the drug treatment center’s diagnosis of the extent of his drug problem. He completed the program successfully and returned to work but has not continued any subsequent or ongoing aftercare participation in drug treatment, counseling, or a support group. He offered no evidence of a favorable prognosis following his diagnosis. Finally, Applicant’s deliberate and repeated lack of candor in failing to disclose or acknowledge the full extent of his drug use on his SCA, in his background interview (both discussed below in Guideline E), and even at hearing, significantly undercuts any mitigating evidence. AG ¶¶ 26 (a), 26 (b) and 26 (d) do not apply. Government did not allege the Bond Amendment in the SOR. I therefore decline to apply it to Applicant so as to statutorily prohibit him from access to classified information. 10 Guideline E, Personal Conduct AG ¶ 15 expresses the security concern for 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 or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes. . . SOR ¶ 2.a cross-alleges the drug involvement allegations in SOR ¶ 1. The judgment concerns associated with that conduct are sufficiently addressed under Guideline H and are not addressed separately, though they also satisfy the “catch-all” disqualifying conditions under Guideline E AG ¶¶ 16 (c) and 16(d). With regard to SOR ¶¶ 2(b) and 2(c), I have considered the disqualifying conditions under AG ¶ 16 and the following are potentially applicable: (a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine national security eligibility or trustworthiness, or award fiduciary responsibilities; and (b) deliberately providing false or misleading information; or concealing or omitting information, concerning relevant facts to an employer, investigator, security official, competent medical or mental health professional involved in making a recommendation relevant to a national security eligibility determination, or other official government representative. Applicant admitted deliberately falsifying his SCA (SOR ¶ 2.b) when he reported using marijuana “one time” in August 2013. He also admitted SOR ¶ 2.c, concerning falsification during his background interview. He told the interviewing agent that he used marijuana five or six times after leaving the Navy in 2012, as well as in August 2013, when he tested positive, when in fact the frequency of his marijuana use increased from monthly to daily during this period. AG ¶¶ 16(a) and 16(c) apply. AG ¶ 17 sets forth the Guideline E mitigating conditions, of which the following are potentially applicable: (a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; and 11 (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 explanations about why he deliberately under-reported his drug use are not credible. Applicant clearly used marijuana as a coping device after he left the Navy. His marijuana use increased from monthly to as often as daily by the time he tested positive. His disclosures to his treatment provider supported the diagnosis of cannabis dependence, continuous. I credit this information more than Applicant’s subsequent testimony, which was far less candid. Applicant only disclosed the true extent of his marijuana use to his treatment providers. Having done so, he then repeatedly minimized his drug use on subsequent occasions. He falsified his SCA, his PSI and his drug interrogatory. At hearing, and even in answering the falsification allegations in the amended SOR, he refused to acknowledge the full extent of his illegal drug use. AG ¶¶ 17(a) and 17(c) do not apply. 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 relevant 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 have incorporated my comments under Guidelines H and E in my whole-person analysis. Overall, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. 12 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 Subparagraphs 1.a-1.e: Against Applicant Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraphs 2.a-2.c: Against Applicant Conclusion In light of all of the circumstances, it is not clearly consistent with interests of national security to continue Applicant’s security clearance. Eligibility for continued access to classified information is denied. _____________________________ Braden M. Murphy Administrative Judge