1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-02720 ) Applicant for Security Clearance ) Appearances For Government: Andrea Corrales, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ RICCIARDELLO, Carol G., Administrative Judge: Applicant mitigated the security concerns under Guideline H, drug involvement. Eligibility for access to classified information is granted. Statement of the Case On October 22, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued to Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline H, drug involvement. 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) effective within the DOD on September 1, 2006. On June 8, 2017, new AG were implemented and are effective for decisions issued after that date.1 1 I considered the previous AG, effective September 1, 2006, as well as the new AG, effective June 8, 2017. My decision would be the same if the case was considered under the previous AG. 2 Applicant answered the SOR on November 3, 2016, and elected to have his case decided on the written record in lieu of a hearing. Department Counsel submitted the Government’s file of relevant material (FORM). Applicant received it on December 12, 2016. He was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation within 30 days of receipt of the FORM. The Government’s evidence is identified as Items 1 through 5. Applicant did not object to the Government’s evidence and the documents are admitted. Applicant provided documents that are marked as Applicant Exhibits (AE) A through C.2 The Government did not object, and they are admitted into evidence. The case was assigned to me on October 1, 2017. Findings of Fact Applicant admitted all of the SOR allegations. After a thorough and careful review of the pleadings and exhibits submitted, I make the following findings of fact. Applicant is 66 years old. He has worked for federal contractors since 2003, and his present employer, also a federal contractor, since December 2012. Applicant served in the military from 1971 to 1991, when he retired. He married in 1972. He and his wife have grown children, ages 44 and 42.3 In April 2015, Applicant tested positive for marijuana on a random drug screening test by his employer. He held a security clearance at that time. During an interview by a government investigator on May 30, 2016, he explained the circumstances of his use.4 Applicant told the investigator that he was feeling especially sad during this time as he was reflecting on the loss of his mother, which happened years before, and his current health issues. At that time, he was plagued with the possibility that he had cancer. The test results were negative, but he continued to be concerned about his health. He did not confide in anyone or seek counseling because he did not want to appear weak due to his difficulty in dealing with stress. He did not tell his spouse because he did not want to cause her unnecessary stress.5 Applicant addressed his stress by playing music with a band. He went to a venue where musicians played in an impromptu style. He had been to the venue previously, but was not a regular attendee. He was unaware if drugs were present at the venue. He could not recall specifically, but estimated he began going to the venue in early 2015. After his cancer biopsy, he met a man at the venue, who was about his age and seemed to be caring, trustworthy, and understanding. Although the man was not a friend, Applicant was relaxed and relieved that he could unburden himself by confiding to the man about his 2 AE A is a complete copy of the FORM that was returned by Applicant. 3 Item 3. 4 Items 1, 2, 4. 5 Item 5. 3 health problems. The man asked if Applicant had ever used marijuana. Applicant told him he had never tried the drug. The man explained he could get some for Applicant, and it would help him “take the edge off.” Applicant agreed to try it because he did not want to be sad anymore.6 The next day the man provided Applicant with a marijuana cigarette. Applicant brought the cigarette home and smoked about three quarters of it in his bathroom. He felt a sense of paranoia and stopped smoking it. He did not feel any effects. He told the investigator that all he felt was guilt and paranoia at the time. He knew what he did was wrong and had in the past been against all illegal drug use. Applicant’s spouse was not present at the time. When she returned home, Applicant confessed to her that he had used marijuana. His wife was upset and disappointed with him. They agreed that in the future, he would confide in her about his issues. Although she was disappointed with him, she supported him to ensure he never made the same mistake again.7 Applicant was selected for a random drug screen when he returned to work and tested positive. Applicant contacted his supervisor and told him about his marijuana use. He was suspended without pay for 30 days. He was required to complete and pay for a drug evaluation and drug screenings. He received counseling from a substance abuse professional (SAP). She recommended he complete eight hours of substance abuse education, which he did. He was then referred back to the SAP for a final evaluation. He was cleared to return to duty and required to complete six additional random drug screenings in the next twelve months, in addition to being included in the regular random drug screening program. Applicant successfully completed the drug screening in May 2016.8 Applicant had over 20 years of positive work performance with federal contractors. His supervisors held him in high regard. Applicant told the investigator that he learned his lesson to never use illegal drugs again. His actions had serious negative implications on his work and marriage. He deeply regretted his decision almost immediately after using the marijuana because it was illegal. He had never used marijuana prior to this incident. After he used it on that occasion, he disassociated himself from the man who gave it to him and has never communicated with him again. Applicant has not returned to the music venue. He has stayed away from the entire music scene so he can move forward in his life. Applicant has never knowingly associated with anyone who used illegal drugs, with the exception of this one incident. Applicant told the investigator that he will never engage in the illegal use of a drug again.9 6 Item 5. 7 Item 5. 8 Item 5. 9 Item 5. 4 In Applicant’s answer to the SOR, he admitted his error in judgment. He indicated he was ashamed of his conduct. He is proud of his military service, and his work as a government contractor. He again stated that he will never use illegal drugs in the future. He provided a copy of a negative drug screening from May 2015. He also provided a letter from the SAP confirming Applicant completed the SAP follow-up evaluation and the education classes. She commented that Applicant was invested in his treatment and completed everything required of him.10 Policies When evaluating an applicant’s national security eligibility, the administrative judge must consider the AG. In addition to brief introductory explanations for each guideline, the AG list potentially 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(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. Directive ¶ E3.1.15 states 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 as 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 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 that an applicant may deliberately or inadvertently fail to safeguard classified information. 10 Item 2; AE B, C. 5 Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that 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). Analysis Guideline H: Drug Involvement and Substance Misuse The security concern relating to the guideline for drug involvement and substance misuse 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. AG ¶ 25 provides conditions that could raise security concerns. The following are potentially applicable: (a) any substance misuse; (b) testing positive for an illegal drug; and (f) any illegal drug use while granted access to classified information or holding a sensitive position. Applicant tested positive for marijuana during a random drug screen in April 2015. He held a security clearance at that time. The above disqualifying conditions apply. The guideline also includes conditions that could mitigate security concerns arising from financial difficulties. The following mitigating conditions under AG ¶ 26 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 6 (b) the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions to overcome the 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 being used . . . ; 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. Applicant used marijuana on one occasion in April 2015. He admitted he was struggling with being depressed and having concerns about his health. He admitted he made a serious mistake when he smoked marijuana. He felt guilty and paranoid about his action. His wife was disappointed with him, but he agreed to confide in her if he has future concerns. He has never used any other illegal drugs in the past and persuasively indicated he will never use illegal drugs in the future. I find his one-time use of marijuana happened under unique circumstances and are unlikely to recur. AG ¶ 26(a) applies. Applicant disassociated himself with the man who provided him the marijuana. He has also never returned to the venue where he met the man. He does not intend to return there in the future. Applicant completed the drug evaluation by the SAP. He completed the required education courses and the additional random drug screenings conducted by his employer during the subsequent 12-month period, all with negative results. His SAP confirmed he successfully completed all requirements of the program. I find AG ¶¶ 26(b) applies. Although the specific language of AG ¶ 26(d) may not apply, I find that its general intent is applicable, in that Applicant completed the requirements imposed on him by the SAP and his employer. 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. 7 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 Guideline H in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under that guideline, but some warrant additional comment. Applicant is 66 years old and had 20 years of honorable service in the military. He has worked for federal contractors since 2003. Applicant admitted he made a grave mistake when he used marijuana on one occasion while holding a security clearance. He acknowledged and accepted responsibility for his conduct. He successfully completed all of his employer’s requirements, including random drug screenings for 12 months. He disassociated himself from the man who gave him the marijuana, and he no longer goes to the venue where he met him. Applicant is remorseful and understands the seriousness of his conduct. I believe this was a one-time incident that will never happen again. Applicant is deserving of a second chance. I do not have questions or doubts as to Applicant’s eligibility and suitability for a security clearance. I conclude Applicant mitigated the security concerns arising under Guideline H, drug involvement. 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: FOR APPLICANT Subparagraphs 1.a-1.c: For Applicant Conclusion In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national security to grant Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted. _____________________________ Carol G. Ricciardello Administrative Judge