1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-00833 ) Applicant for Security Clearance ) Appearances For Government: Tovah Minster, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ GARCIA, Candace Le’i, Administrative Judge: Applicant mitigated the security concerns stemming from an arrest in January 2015 for public intoxication and marijuana possession, a conviction in March 2015 for DUI, and a one-time use of marijuana in January 2015 after he had been granted a DOD security clearance. Eligibility for access to classified information is granted. Statement of the Case On July 11, 2016, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines J (criminal conduct), H (drug involvement), and E (personal conduct). The action was taken under Executive Order (EO) 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 (AG) implemented by the DOD on September 1, 2006.1 1 I decided this case using the AG implemented by DOD on June 8, 2017. However, I also considered this case under the previous AG implemented on September 1, 2006, and my conclusions are the same using either set of AG. 2 Applicant responded to the SOR on September 9, 2016, and elected to have the case decided on the written record in lieu of a hearing. The Government’s written case was submitted on October 4, 2016. A complete copy of the file of relevant material (FORM) was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on October 19, 2016. Applicant’s November 2016 response is marked as Applicant’s Exhibit (AE) A. The case was assigned to me on July 1, 2017. The Government documents identified as Items 1 through 5 and AE A are admitted in evidence without objection. Findings of Fact Applicant admitted all of the SOR allegations. He is a 33-year-old employee of a defense contractor. He has worked for his current employer since March 2014. He attended high-school from 1998 to 2001 but did not obtain a diploma. He was granted a DOD security clearance in December 2014. He is married and has four minor children.2 Applicant was arrested in January 2015 and charged with public intoxication and marijuana possession. Applicant drank five beers and smoked marijuana out of a pipe at a neighborhood party. The pipe belonged to the individual who threw the party and Applicant was unsure who supplied the marijuana. He held a DOD security clearance. He stated that he used marijuana because he had too much to drink. During his walk home from the party, an officer stopped and found the marijuana pipe on him. Applicant attended courses on marijuana education. The charges were subsequently dismissed.3 In March 2015, Applicant was arrested and charged with DUI, speeding, and failure to wear a seatbelt. Applicant was stopped by an officer on his way home from a restaurant, where he had eaten pizza and drank three pints of beer. He did not feel intoxicated, but his blood alcohol content (BAC) was .15%. He pled guilty to DUI, he was fined $700, his driver’s license was suspended for 30 days, and he was ordered to complete an alcohol education program for first time offenders. He stated that he fully complied with the court’s sentence. The remaining charges were dismissed.4 Applicant immediately reported the above incidents to his security office and supervisor. His wife is also aware of them. He takes full responsibility for his actions and is remorseful. He regrets that he made poor choices in 2015 that jeopardized his ability to provide for his family, given that his wife does not work outside the home. He has not been arrested since March 2015, and he no longer drives after consuming alcohol. He has not used illegal drugs since January 2015. He understands that illegal drug use is 2 Items 1-5; AE A. 3 Items 1-5; AE A. 4 Items 1-5; AE A. 3 prohibited while holding a DOD security clearance. He has no intention of using illegal drugs in the future.5 Policies 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 disqualifying conditions and mitigating conditions, which are to be 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, administrative judges apply the guidelines 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(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.” 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 the applicant or proven by Department Counsel.” The applicant 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. Section 7 of EO 10865 provides that adverse decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). 5 Items 1-5; AE A. 4 Analysis Guideline J, Criminal Conduct The security concern for criminal conduct is set out in AG ¶ 30: Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness. By its very nature, it calls into question a person’s ability or willingness to comply with laws, rules, and regulations. The guideline notes conditions that could raise security concerns under AG ¶ 31. The disqualifying conditions potentially applicable in this case include: (a) a pattern of minor offenses, any one of which on its own would be unlikely to affect a national security eligibility decision, but which in combination cast doubt on the individual's judgment, reliability, or trustworthiness; and (b) evidence (including, but not limited to, a credible allegation, an admission, and matters of official record) of criminal conduct, regardless of whether the individual was formally charged, prosecuted, or convicted. Applicant was arrested and charged in January 2015 with public intoxication and marijuana possession. While the charges were dismissed, he admitted that he smoked marijuana and the arresting officer found on him the pipe from which he smoked the marijuana. Applicant was also arrested and convicted of DUI in March 2015. His BAC was .15%. AG ¶¶ 31(a) and 31(b) are applicable. AG ¶ 32 provides conditions that could mitigate security concerns. The following are potentially applicable: (a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; and (d) there is evidence of successful rehabilitation; including, but not limited to, the passage of time without recurrence of criminal activity, restitution, compliance with the terms of parole or probation, job training or higher education, good employment record, or constructive community involvement. Applicant has not been arrested since March 2015. He no longer drives after consuming alcohol and intends to keep it that way. He has not used marijuana since January 2015 and has no future intentions of doing so. He successfully completed drug and alcohol education courses. He fully complied with the court’s sentence from his DUI conviction. AG ¶¶ 32(a) and 32(d) are applicable. 5 Guideline H, Drug Involvement The security concern for drug involvement is set out in AG ¶ 24: 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. The guideline notes conditions that could raise security concerns under AG ¶ 25. The disqualifying conditions potentially applicable in this case include: (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 used marijuana in January 2015. He did so after he had been granted a DOD security clearance in December 2014. When he was arrested, the officer found on him the pipe from which he had smoked the marijuana. AG ¶¶ 25(a), 25(c), and 25(f) are applicable. AG ¶ 26 provides conditions that could mitigate security concerns. 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; and (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; 6 (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. Applicant has not been arrested for any drug-related charges since January 2015. He has not used illegal drugs since January 2015. He immediately reported his illegal drug use to his security office and supervisor. He successfully completed drug education courses. He takes full responsibility for his actions and is remorseful. He understands that illegal drug use is prohibited while holding a DOD security clearance. He has no intention of using illegal drugs in the future. Applicant has demonstrated an appropriate period of abstinence from illegal drug use, and that the use of illegal drugs is unlikely to recur. AG ¶¶ 26(a) and 26(b) are applicable. Guideline E, Personal Conduct The security concern for personal conduct is set out in AG ¶ 15, as follows: 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 conditions that could raise a security concern and may be disqualifying. The following disqualifying conditions are potentially applicable: (c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, 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; (d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information, 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. This includes, but is not limited to, consideration of: 7 (1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or government protected information; (2) any disruptive, violent, or other inappropriate behavior; (3) a pattern of dishonesty or rule violations; and (4) evidence of significant misuse of Government or other employer’s time or resources; (e) personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress by a foreign intelligence entity or other individual or group. Such conduct includes: (1) engaging in activities which, if known, could affect the person’s personal, professional, or community standing; (2) while in another country, engaging in any activity that is illegal in that country; (3) while in another country, engaging in any activity that, while legal there, is illegal in the United States; and (g) association with persons involved in criminal activity. In 2015, Applicant used marijuana. He used marijuana after he had been granted a DOD security clearance in December 2014. The arresting officer found the pipe from which he smoked the marijuana on him. He was also convicted of DUI. AG ¶¶ 16(c), 16(d), and 16(e) are applicable. AG ¶ 17 provides conditions that could mitigate security concerns. The following are potentially applicable: (a) 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; 8 (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 activities 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. Applicant immediately reported the above incidents to his security office and supervisor. His wife is also aware of them. He takes full responsibility for his actions and is remorseful. He regrets that he made poor choices in 2015 that jeopardized his ability to provide for his family. He has not been arrested since March 2015, and he no longer drives after consuming alcohol. He has not used illegal drugs since January 2015. He understands that illegal drug use is prohibited while holding a DOD security clearance. He has no intention of using illegal drugs in the future. I determine that the conduct is unlikely to recur. It does not continue to cast doubt on Applicant’s current reliability, trustworthiness, and good judgment. AG ¶¶ 17(a), 17(d), 17(e), and 17(g) are applicable. I find that Applicant has mitigated the personal conduct security concerns. 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 J, H, and E in this whole-person analysis. Overall, the record evidence leaves me without questions and doubts as to Applicant’s eligibility and suitability for a security clearance. I conclude Applicant mitigated the criminal conduct, drug involvement, and personal conduct security concerns. 9 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 J: For Applicant Subparagraphs 1.a-1.b: For Applicant Paragraph 2, Guideline H: For Applicant Subparagraphs 2.a-2.b: For Applicant Paragraph 3, Guideline E: For Applicant Subparagraph 3.a: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted. ________________________ Candace Le’i Garcia Administrative Judge