1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 16-03278 ) Applicant for Security Clearance ) Appearances For Government: Jeff A. Nagel, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ CERVI, Gregg A., Administrative Judge This case involves security concerns raised under Guideline H (Drug Involvement and Substance Abuse). Eligibility for access to classified information is denied. Statement of the Case Applicant submitted a security clearance application (SCA) on November 2, 2015. On December 5, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under Guideline H.1 Applicant answered the SOR on December 12, 2016, and elected to have the case decided on the written record in lieu of a hearing. The Government’s written brief with 1 The DOD CAF acted 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 (AG) implemented by the DOD on September 1, 2006. 2 supporting documents, known as the File of Relevant Material (FORM) dated January 17, 2017, was submitted by Department Counsel. A complete copy of the 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 January 25, 2017. He submitted a response to the FORM, marked as Applicant Exhibit (AE) A. The Government’s exhibits included in the FORM (Items 1 to 3) and AE A are admitted into evidence. The case was assigned to me on October 1, 2017. Findings of Fact Applicant is a 49-year-old owner and vice president of a company since 2002, and since October 2015, he has been a consultant for a defense contractor. He was awarded a bachelor’s degree in 1992 in mechanical engineering technology. He was married in 1999 and has one child. He has not previously held a DOD security clearance. The SOR alleges Applicant used marijuana in 1992 and again from March 2015 to May 2016. In addition, it alleges he used marijuana after being granted an interim security clearance in November 6, 2015 and December 2, 2015.2 Finally, the SOR alleges he continues to associate with a friend who uses marijuana. Applicant admitted the SOR allegations with explanations, and reported his use of marijuana in his SCA. Applicant claimed he was abstinent for 23 years before using marijuana again in 2015 with a friend. He maintains contact with this friend who continues to use marijuana, and other drug users. Although Applicant used marijuana after applying for a DOD security clearance, he denied knowing that he was granted an interim security clearance, and stated that his marijuana use was not in “purposeful defiance of the trust of the government or others.” (Ans.) There is no documentation in the file of Applicant’s interim security clearance, and he claimed in his answer to the SOR to having no knowledge of an interim clearance. Applicant reported in his November 2015 SCA, that he used marijuana twice in 2015. In his July and August 2016 personal subject interviews (PSI) by Office of Personnel Management investigators, Applicant admitted additional use of marijuana to May 2016. Although he continued to use marijuana until May 2016 after reporting two uses in his November 2015 SCA, he maintained in his December 2016 answer to the SOR, that he only used marijuana on “a couple of occasions within a years’ time.” He also asserted that his marijuana use does not impact his reliability or trustworthiness, but was only a “minor impact on good judgement” as there was “no felonious conduct” and it was used in a “setting not associated with his work.” (Ans.) He stated that he stopped using marijuana since the end of May 2016, and has no intention of using it in the future. He expressed a willingness to participate in random drug screenings while holding a security 2 It is unclear why the SOR alleges in separate allegations that interim security clearances were issued on two different dates. No evidence of the existence of any interim security clearance was offered. 3 clearance, and he offered to sign a statement of intent not to use drugs in the future; however, he did not offer a signed statement into the record. Since Applicant elected to have this case decided on the written record in lieu of a hearing, I was unable to further inquire into these allegations, or evaluate his demeanor or credibility in response to questions. He did not submit letters of recommendation, work evaluations, or evidence of drug counseling or a change in lifestyle. Law and Policies The Director of National Intelligence (DNI) issued revised adjudicative guidelines (AG) in a Security Executive Agent Directive, effective on June 8, 2017. My ultimate decision would be the same under either set of adjudicative guidelines. “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865 § 2. National security eligibility is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, an administrative judge applies these guidelines in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider a person’s stability, trustworthiness, reliability, discretion, character, honesty, and judgment. AG ¶ 1(b). The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be made “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” Exec. Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from 4 being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993). Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. See ISCR Case No. 02- 31154 at 5 (App. Bd. Sep. 22, 2005). An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01- 20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 1(d). Analysis Guideline H, Drug Involvement and Substance Misuse The security concern 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. 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); and (f) any illegal drug use while granted access to classified information or holding a sensitive position. 5 Applicant used marijuana most recently from March 2015 to May 2016. Disqualifying condition under AG ¶ 25 (a) is applicable. There is no evidence in the record that Applicant was granted an interim security clearance during the time that he used marijuana. Therefore, disqualifying condition AG ¶ 25 (f) is not applicable. Additionally, Applicant’s association with a friend that uses marijuana is not a disqualifying condition, but may be considered in applying potential mitigation and in the whole-person analysis. 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; (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; (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 is an educated, mature adult. He is an owner and vice president of his company. He claimed that he has not used marijuana since late May 2016, but admitted using it after applying for a DOD security clearance. Although he reported two uses in his 2015 SCA, he admitted additional use in his PSI, but maintained in his answer to the SOR that he used only twice. Applicant’s assertions are inconsistent and call into question his truthfulness with regard to the extent of his marijuana use. In addition, he continued to use marijuana after applying for a security clearance with the knowledge that illegal drug use raises disqualifying conditions and is not permitted by Federal law or policy. His continued marijuana use after applying for a security clearance makes his promises to refrain from future use dubious. Finally, he continues to maintain contact with a friend with whom he used marijuana and with other known drug users, with no intent to disassociate from them. 6 There is insufficient evidence to mitigate Applicant’s illegal drug use. His conduct is recent and the period of abstinence since May 2016 is not a sufficient period to show a change in lifestyle. There is insufficient evidence to show that future illegal drug use is unlikely to recur. He continues to associate with illegal drug users, and has not participated in drug treatment or avoidance counseling. He did not present a signed statement of intent to avoid future use, but he did state such intent in his answer and response to the FORM. The evidence is insufficient to show a demonstrated intent not to use illegal drugs in the future. His marijuana use, especially after applying for a security clearance, continues to cast doubt on his reliability, trustworthiness, and good judgment. AG ¶ 26(a), 26(b), and 26(d) are not fully applicable. Whole-Person Concept Under AG ¶¶ 2(a), 2(c), and 2(d), the ultimate determination of whether to grant national security eligibility must be an overall commonsense judgment based upon careful consideration of the guidelines and the 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). Although adverse information concerning a single criterion may not be sufficient for an unfavorable eligibility determination, the individual may be found ineligible if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility, or unstable behavior. AG ¶ 2(e). I considered all of the potentially disqualifying and mitigating conditions in light of the facts and circumstances surrounding this case. I have incorporated my findings of fact and comments under Guideline H in my whole-person analysis. Applicant’s illegal drug use after applying for a security clearance leaves me with serious questions about his future intent and his willingness to follow rules and regulations. I am not convinced that he fully appreciates the seriousness of his conduct. Although he may have stopped using marijuana after May 2016, he has not shown evidence of a changed lifestyle or sincerity of purpose. Accordingly, I conclude he has not carried his burden of showing that it is clearly consistent with the national security interests of the United States to grant him eligibility for access to classified information. 7 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: Against Applicant Subparagraphs 1.b - 1.d: For Applicant Conclusion I conclude that it is not clearly consistent with the national security interests of the United States to grant Applicant eligibility for access to classified information. Clearance is denied. _______________________ Gregg A. Cervi Administrative Judge