1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ---------------------------- ) ISCR Case No. 16-02060 ) Applicant for Security Clearance ) Appearances For Government: Erin P. Thompson, Esq., Department Counsel For Applicant: Gregory F. Greiner, Esq. ______________ Decision ______________ KATAUSKAS, Philip J., Administrative Judge: Applicant contests the Defense Department’s intent to revoke his eligibility for access to classified information. He failed to mitigate the security concerns stemming from his drug involvement and substance abuse, alcohol consumption, and personal conduct. Accordingly, this case is decided against Applicant. Statement of the Case On September 14, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) sent Applicant a Statement of Reasons (SOR) alleging that his circumstances raised security concerns under Guideline H (drug involvement and substance abuse), Guideline G (alcohol consumption), and Guideline E (personal conduct).1 Applicant answered the SOR on November 3, 2016, and requested a hearing to establish his eligibility for continued access to classified information. 1 This action was taken under Executive Order (E.O.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended, as well as Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive). In addition, the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (AG), effective within the Defense Department on June 8, 2017, apply here. The AG were published in the Federal Register and codified in 32 C.F.R. § 154, Appendix H (2016). In this case, the SOR was issued under 2 On August 28, 2017, a date mutually agreed to by the parties, a hearing was held. Applicant and a character witness testified, and the exhibits offered by the parties were admitted into the record without objection. (Government Exhibits (GE) 1 – 4; Applicant’s Exhibits (AE) A – G.) The transcript of the hearing (Tr.) was received on September 6, 2017. Findings of Fact Applicant is 54 years old, a college graduate, married (1994), and divorced (2000), with no children.2 At the time of the hearing, Applicant was engaged and due to be married on September 3, 2017.3 Since December 1994, he has been employed as an engineer by a defense contractor and has held a secret clearance since taking that employment.4 Under Guideline H, the SOR alleged that from January 2012 through at least April 2012, Applicant purchased and used marijuana while holding a security clearance. Under Guideline G, the SOR alleged that Applicant was arrested for driving under the influence on March 20, 2015, and on May 31, 2004. Under Guideline E, the SOR cross-pleaded the allegations under Guidelines H and G.5 Applicant admitted the SOR allegations with explanations.6 GUIDELINE H Applicant’s reasons for using marijuana in the January to April 2012 time frame are four-fold. First, he was suffering from recurring lower back pain, one that in the past had caused him to be hospitalized. He still often experiences back pain. Second, his mother had recently passed away. At the time, he and his mother were estranged, and she died before they were able to be reconciled. Third, he had recently purchased a house. Fourth, he and a neighbor had a disagreement that triggered a court proceeding against Applicant (which was dismissed). He purchased and used marijuana to help relieve the stress caused by those factors.7 Adjudicative Guidelines effective within the Defense Department on September 1, 2006. My Decision and Formal Findings under the revised Guidelines H, G, and E would not be different under the 2006 Guidelines. 2 GE 1, pp. 5, 10-11, 16; Tr., p. 18. 3 Tr., p. 15. 4 GE 1, pp. 11, 35. 5 SOR ¶¶ 1.-3. 6 Answer, pp. 1-8. The Answer includes ten enclosures numbered from one to ten. References to those enclosures will be cited as “Answer, Encl. #.” 7 Answer, Encl. #2, p. 2. Tr., pp. 28-30, 60-63. AE C (chronology of Applicant’s back problems). 3 Applicant purchased the marijuana in 2012 from a family member of his then girlfriend. It was a one-time purchase, and he used it about twice a month for about four months at home in the evening but never at work. When using marijuana, he did consider that he could lose his clearance. Realizing that, he threw the marijuana away and has not used any since April 2012.8 Applicant’s Answer included a non-use affidavit.9 During his February 2016 background interview, he told the investigator that he had purchased the marijuana from an unknown person at a party.10 At the hearing, Applicant admitted that he had not been completely accurate on that point during the interview. He obtained the marijuana from his ex-girlfriend’s sister’s husband not at a party.11 GUIDELINE G On March 20, 2015, Applicant was arrested and charged with driving under the influence of alcohol (DUI). He was driving home from work and stopped at a restaurant about two to three miles from his home. He had three or four beers and a snack. He was convicted, his license was restricted for one year, and he was ordered to complete an alcohol safety program. Applicant paid his fines and completed the safety program.12 On May 31, 2004, Applicant was arrested and charged with DUI. He pled guilty to reckless driving, was fined, and received a 30-day suspended sentence. He had stopped at a local sports bar and had about four beers with friends. Because Applicant had not eaten anything, the beers had more of an effect on him.13 At the hearing, Applicant was asked the following on direct examination: Q: So we have two drinking offenses. Do you think that you have an alcohol use problem? Has that been something that people have told you? A: So it’s been something that I’ve dealt with throughout my life. Okay. You look at these things and you say, well, he’s obviously got a problem…. 8 Tr., pp. 28-29, 31-34, 64. 9 Answer, Encl. #10. 10 GE 4, p. 4. 11 Tr., pp. 31-32, 65-67. 12 Answer, Encl. #2, p. 3. Tr., pp. 36-37. 13 Answer, Encl. #2, p. 3. Tr., pp. 34-35. 4 Applicant testified that his decision to drive after consuming alcohol was “the wrong decision” 14 He characterized it as “lapsed judgment.”15 APPLICANT’S CHARACTER Applicant’s fiancee’ testified on his behalf. She has known him since late August 2015. She is an intelligence analyst for another government agency and holds a top secret clearance. She is aware of the Government’s security concerns stated in the SOR. In her opinion, Applicant is hardworking, reliable, and trustworthy. Although Applicant may have a beer once or twice a week, she has never seen him drunk, or abuse alcohol, or engage in illegal drug use.16 Applicant submitted character references. His employer characterized Applicant as dedicated, a high performer, and praised his excellent work. He has excellent performance evaluations, numerous awards, and service recognitions.17 Other references called him a top 10% student who exhibited perseverance, intelligence, commitment, and distinction.18 APPLICANT’S MENTAL HEALTH AND SUBSTANCE ABUSE EVALUATION On advice of counsel, Applicant contacted a clinical psychologist for a mental health and substance abuse evaluation on October 6, 2016, after the SOR was issued on September 14, 2016 and before Applicant’s counsel filed the Answer to the SOR on November 3, 2016.19 The psychologist has his undergraduate degree and his doctorate from highly reputable schools, has been a practicing clinical psychologist for 39 years, is currently the director of a counseling center, and a professor in the Department of Psychiatry at a prestigious academic institution.20 The psychologist interviewed Applicant twice in October 2016, and the following are pertinent observations, conclusions, and recommendations of the psychologist:21 14 Tr., pp. 35-37. 15 AE A (Substance abuse overview). 16 Tr., pp. 13-16. 17 AE F (May 3, 2017 letter). This letter was not prepared in anticipation of the hearing. Answer, Encl. ##6- 8. 18 AE F (September 7, 1989 and September 13, 1988 letters). AE G. 19 Tr., p. 56. AE A. 20 AE A. 21 AE A. 5 ˉ Applicant has on a few occasions in the past shown a vulnerability to alcohol and marijuana use particularly when under stress. ˉ In light of that vulnerability, Applicant is willing to make changes prescribed by the psychologist. ˉ Given Applicant’s past history of substance abuse issues, the psychologist recommended that Applicant completely abstain from the use of alcohol, and any other potential drug of abuse.22 ˉ The psychologist also recommended that Applicant consider engaging in counseling periodically, particularly at times of increased stress and/or as a preventative measure to fortify himself with respect to stressors that may arise from time to time. ˉ The psychologist is of the opinion that Applicant has good potential to continue making worthy contributions to his employer]…. ˉ The psychologist is also of the opinion that Applicant does not have a mental health condition which would present a threat to security. Applicant’s psychologist provided a follow-up evaluation report dated August 3, 2017 with the following pertinent observations:23 ˉ Applicant has engaged in a consistent course of counseling and regularly attends reliably attends sessions every other week since October 2016. ˉ No alcohol-related issues have emerged, and [Applicant] has been abstinent from all illegal drugs. ˉ The psychologist is impressed with Applicant’s progress. Law and Policies “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Individuals are eligible for access to classified information “only upon a finding that it is clearly consistent with the national interest” to authorize such access. E.O. 10865 § 2; SEAD-4, ¶ E.4. When evaluating an applicant’s eligibility for a security clearance, an administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations, the guidelines list potentially disqualifying and mitigating conditions. The guidelines are not inflexible rules of law. Instead, recognizing the complexities of human 22 The psychologist noted that in Applicant’s teenage years and at about age 20, he underwent inpatient treatment for illegal substance use. AE A (Substance abuse overview). Tr., pp. 45-48. 23 AE B. 6 behavior, an administrative judge applies the guidelines in a commonsense manner, considering all available and reliable information, in arriving at a fair and impartial decision. SEAD-4, Appendix A, ¶¶ 2(c), 2(d). Department Counsel must present evidence to establish controverted facts alleged in the SOR. Directive ¶ E3.1.14. Applicants are responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven . . . and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.” Directive ¶ E3.1.15. Administrative Judges are responsible for ensuring that an applicant receives fair notice of the issues raised, has a reasonable opportunity to litigate those issues, and is not subjected to unfair surprise. ISCR Case No. 12-01266 at 3 (App. Bd. Apr. 4, 2014). In resolving the ultimate question regarding an applicant’s eligibility, “[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” SEAD-4, Appendix A, ¶ 2(b). See also SEAD-4, ¶ E.4. Moreover, the Supreme Court has held that officials making “security clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531. 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. 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 an 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. Discussion Guideline H, Drug Involvement and Substance Abuse Under AG H for drug use,24 suitability of an applicant may be questioned or put into doubt because drug use can both impair judgment and raise questions about a person’s ability or willingness to with laws, rules and regulations: 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 24 AG ¶¶ 24, 25 and 26 (setting forth the concern and the disqualifying and mitigating conditions). 7 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 describes conditions that could raise a security concern and may be disqualifying. The following are potentially applicable in this case: (a) any substance misuse (see above definition); (c) illegal possession of a controlled substance, including…purchase…; and (f) any illegal drug use while granted access to classified information. I have also considered all of the mitigating conditions for alcohol consumption under AG ¶ 26 and found the following relevant: (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; (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 admitted his use of marijuana from January 2012 until April 2012, and that his use occurred while he held a security clearance. Facts admitted by an applicant in an answer to a Statement of Reasons require no further proof by the Government.25 Marijuana is a Schedule I controlled substance, and its possession is regulated by the federal government under the Controlled Substances Act.26 In an October 25, 2014, memorandum, the Director of National Intelligence reaffirmed that the use of marijuana is 25 ISCR Case No. 94-1159 at 4 (App. Bd. Dec. 4, 1995) (“any admissions [applicant] made to the SOR allegations . . . relieve Department Counsel of its burden of proof”); ISCR Case No. 94-0569 at 4 and n.1 (App. Bd. Mar. 30, 1995) (“[a]n applicant’s admissions, whether testimonial or written, can provide a legal basis for an Administrative Judge’s findings”). 26 21 U.S.C. § 811 et seq. - 8 relevant to national security determinations, regardless of changes to state laws concerning marijuana use.27 AG ¶¶ 25(a), (c), and (f) apply. I have considered the mitigating conditions cited above and find that they do not apply. First, the 2012 use of marijuana while holding a clearance is not so long ago as to negate security concerns. Second, Applicant’s use of marijuana must be viewed as a part of a larger picture, which includes a consideration of Applicant’s abuse of alcohol, discussed below, which requires a lengthier period of abstinence to mitigate security concerns-.28 The picture that emerges of Applicant is a hard-working, conscientious, and dedicated employee with an exemplary professional record. What the record also shows is an individual who in times of stress can be vulnerable to the use of drugs or alcohol to alleviate that stress. This is borne out by the 2004 DUI, the 2012 use of marijuana for about four months, and the 2015 DUI. Guideline G, Alcohol Consumption AG ¶ 21 expresses the security concern pertaining to alcohol consumption: Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual's reliability and trustworthiness. AG ¶ 22 describes conditions that could raise a security concern and may be disqualifying. The following are potentially applicable in this case: (a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of whether the individual is diagnosed with alcohol use disorder; (c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder; and (d) diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol use disorder. 27 James R. Clapper, Director of National Intelligence, Memorandum: Adherence to Federal Laws Prohibiting Marijuana Use (October 25, 2014). See also http://www.dea.gov/druginfo/ds.shtml. 28 The Appeal Board often reminds us that we should not evaluate the evidence in a piecemeal fashion. ISCR Case No. 11-01888 at 6 (App. Bd. Jun. 1, 2012). Rather, we must evaluate the record as a whole. ISCR Case No. 14-03526 at 4 (App. Bd. Dec. 31, 2015). 9 Applicant’s DUIs in 2004 and 2015 raise a security concern under AG ¶ 22(a).29 I have also considered all of the mitigating conditions for alcohol consumption under AG ¶ 23 and found the following relevant: (a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or judgment; (b) the individual acknowledges his or her pattern of maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has established a pattern of modified consumption or abstinence in accordance with treatment recommendations; and (d) the individual has successfully completed a treatment program along with any required aftercare, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations.30 Applicant’s latest alcohol-related incident was in 2015, just over two years ago. And although Applicant sought treatment, he did so only after the SOR was issued, and he has been in the treatment program for just about one year.31 At the hearing, Applicant explained that he has struggled with alcohol abuse problems all of his life. At this point, Applicant needs more of a track record of abstinence and sobriety to mitigate the concerns. Thus, I cannot conclude that so much time has passed to trigger AG ¶ 23(a) or that AG ¶ 23(b) or (c) apply. 32 29 Although there is no evidence of habitual or binge alcohol use, Applicant himself testified that driving under the circumstances in 2004 and 2015 was not wise, and he told his psychologist that it was an example of “lapsed judgment.” And although his psychologist made no diagnosis of an alcohol use disorder, he did recommend that Applicant completely abstain from the use of alcohol. The point is that AG ¶¶ 22(c) and (d) are partially triggered. 30 Although I have given Applicant’s substance abuse as a youth very little weight, it is sufficient to preclude the application of AG ¶ 23(c). 31 As noted in the Findings of Fact, Applicant’s psychologist expressed the following: “Applicant has good potential to continue making a worthy contribution to the work of [Applicant’s employer]….” During closing argument, I asked Applicant’s counsel if this was a medical opinion or if the psychologist had moved to the realm of opining about Applicant’s ability to make worthy contributions to a defense contract. Tr., p. 79. Counsel responded that he did not believe that statement was a medical opinion. Tr., pp. 79-80. I agree and, therefore, I have given that particular statement no weight. 32 Based on Applicant’s testimony and his psychologist’s evaluations, Applicant has embarked on a program that if successfully adhered to as recommended would make him a worthy candidate for re- application for a security clearance. 10 Guideline E, Personal Conduct As noted in the Findings of Fact, Applicant testified that he did not accurately answer the background interviewer’s question as to how he acquired the marijuana. He told the interviewer that he purchased it from an unknown person at a party. In fact, he testified, he got it from his ex-girlfriend’s sister’s husband and not at a party. During closing argument, Department Counsel argued that this was a blatant misstatement to the interviewer.33 I asked Department Counsel if this was a material misrepresentation. She replied that it was material, but since there already was a Guideline E count, I could consider it relevant to my analysis of that count and the whole-person concept, without the need to amend the SOR.34 This warrants some discussion. Although the distinction might be a fine one, there is a difference between “relevant” evidence and “material’ evidence. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of any consequence to the determination of an action more probable or less probable….”35 “Material evidence” is evidence “that has [a] significant relationship with the facts or issues of a case…and can affect its conclusion or outcome.”36 Thus, the test for relevant evidence is more sweeping than the test for material evidence, the latter of which must affect the outcome or be outcome determinative. Applicant’s misrepresentation is relevant to the whole-person concept, but it is not material, because it does not affect the outcome of my analysis under Guideline E. I rule against Applicant under Guideline E because of my rulings under Guidelines H and G.37 Conclusion The record raises doubts about Applicant’s current reliability, trustworthiness, good judgment, and ability to protect classified information. In reaching this conclusion, I weighed the evidence as a whole and considered if the favorable evidence outweighed the unfavorable evidence or vice versa. I also gave due consideration to the whole-person concept.38 Accordingly, I conclude that Applicant did not meet his ultimate burden of persuasion to show that it is clearly consistent with the national interest to grant him eligibility for access to classified information. 33 Tr., p. 71. 34 Tr., pp. 81-82. 35 Fed. R. Evid. 401. 36 www.businessdictionary.com/definition/material-evidence.html. 37 Since Department Counsel did not amend the SOR to allege Applicant’s mischaracterization, I can only use that non-alleged conduct for specific limited purposes, such as assessing mitigation and credibility. ISCR Case No. 16-02877 at 3 (App. Bd. Oct. 2, 2017). 38 AG ¶ 2(a)(1)-(9). 11 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 (Drug Involvement): Against Applicant Subparagraphs 1.a – 1.b: Against Applicant Paragraph 2, Guideline G (Alcohol Consumption) Against Applicant Subparagraphs 2.a – 2.b: Against Applicant Paragraph 3, (Personal Conduct) Against Applicant Subparagraph 3.a: Against Applicant ____________________ Philip J. Katauskas Administrative Judge