1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) [Redacted] ) ISCR Case No. 17-01267 ) Applicant for Security Clearance ) Appearances For Government: Erin P. Thompson, Esq., Department Counsel For Applicant: Pro se ______________ Decision ______________ FOREMAN, LeRoy F., Administrative Judge: This case involves security concerns raised under Guidelines H (Drug Involvement), E (Personal Conduct), and G (Alcohol Consumption). Eligibility for access to classified information is granted. Statement of the Case Applicant submitted a security clearance application (SCA) on October 13, 2015. On May 22, 2017, the Department of Defense (DOD) sent him a Statement of Reasons (SOR) alleging security concerns under Guidelines H, E, and G. The DOD acted under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by DOD on September 1, 2006.1 1 Security Executive Agent Directive 4 (SEAD 4) was issued on December 10, 2016, revising the 2006 adjudicative guidelines for all adjudicative decisions issued on or after June 8, 2017. The changes resulting from issuance of SEAD 4 did not affect my decision in this case. 2 Applicant answered the SOR on May 30, 2017, and requested a hearing before an administrative judge. Department Counsel was ready to proceed on September 20, 2017, and the case was assigned to me on October 23, 2017. On November 13, 2017, the Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was scheduled for December 8, 2017. I convened the hearing as scheduled. Government Exhibits (GX) 1 through 12 were admitted in evidence without objection. Applicant testified and submitted Applicant’s Exhibits (AX) A and B, which were admitted without objection. DOHA received the transcript (Tr.) on December 18, 2017. Findings of Fact2 In Applicant’s answer to the SOR, he admitted the allegations in SOR ¶¶ 1.a, 1.b, 1.d, 2.c-2.e, 3.a-3.c, and 3.e. He denied the allegations in SOR ¶¶ 1.c, 2.b, 2.f, and 3.d. He did not admit or deny the allegation in SOR ¶ 2.a. It is unclear from his testimony at the hearing whether he intended to admit SOR ¶ 1.e, alleging marijuana use after being granted a security clearance or SOR ¶¶ 2.e and 2.f, alleging the intentional falsifications of an earlier SCA submitted in January 2011. I have treated his answer as a denial of the allegations in SOR ¶¶ 1.e, 2.e, and 2.f. His other admissions in his answer and at the hearing are incorporated in my findings of fact. Applicant was hired by a defense contractor in 2000. It is unclear when he received a security clearance. The SOR alleges that he received a clearance in May 2007. In his January 2011 SCA, he stated that he received a clearance in May 2006. (GX 2 at 27.) A Joint Personnel Adjudication System (JPAS) report reflects that he received a clearance in June 2011. (GX 12.) In his December 2015 SCA, he stated that he received a clearance in June 2011. (GX 1 at 35.) At the hearing, Applicant testified that he thought he received a security clearance around 2000 or 2001. (Tr. 38.) He was interviewed by a special agent from the Defense Security Service on October 29, 2001, but the record does not reflect whether he received a clearance after that interview. (GX 3.). Applicant married in April 2005, divorced in November 2010, and remarried in September 2011. His wife had a heart attack and unexpectedly passed away in December 2016, leaving him as the single parent of a 15-year-old stepchild and two children, ages five and six. (Tr. 23.) In November 1996, when Applicant 17 years old, he was charged with underage possession of alcohol, after a police officer observed him holding an open bottle of beer while sitting in a friend’s vehicle. The charge was dismissed after he performed 80 hours of community service. (GX 3 at 4.) In September 1997, Applicant was charged with possession of marijuana, driving under the influence (DUI), and littering. He was stopped after he flicked a cigarette out of the window of his vehicle, and the cigarette hit the windshield of a state trooper’s vehicle. At his court hearing in February 1998, the DUI was dismissed, but he was fined for 2Applicant’s personal information is extracted from his security clearance application (GX 1) unless otherwise indicated by a parenthetical citation to the record. 3 littering. He was treated as a first offender for the marijuana charge, and he was required to submit monthly urine samples for six months and attend Narcotics Anonymous meetings. He was monitored until August 1998. (GX 3 at 4-5.) The record contains no evidence of the final disposition of the marijuana charge. In June 1998, Applicant was charged with possession of marijuana. He pleaded guilty, and adjudication was deferred. His driver’s license was restricted for six months, and he was required to undergo periodic drug testing. In January 1999, the charge was dismissed. (GX 5 at 2.) In September 1998, Applicant was charged with contributing to the delinquency of a minor, after he drove a 16-year-old boy to a grocery store, and the boy purchased marijuana from someone in the store. (Tr. 42-44.) The prosecutor entered a nolle prosequi. (GX 8.) In February 2000, Applicant was charged with driving with a suspended driver’s license. He was convicted in absentia and fined $50. (GX 10.) He testified that his driver’s license was suspended for unpaid taxes, and that he did not know it was suspended until he was stopped by the police. He paid the taxes and his license was reinstated. (Tr. 22.) When Applicant was interviewed by a security investigator in October 2001, he submitted an affidavit admitting that he used marijuana at a party in the summer of 2000. (GX 3.) He stated, “This is the last time I used illegal drugs and I intend to make it the last time.” He was not arrested or charged for this incident. At the hearing, Applicant testified that he could not remember any specific instances in which he used marijuana between 2000 and 2015. (Tr. 31.) He admitted that he might have used marijuana once or twice between 2000 and 2015, but he could not remember anything specific. (Tr. 36.) In August 2000, Applicant was charged with assault and battery. He testified that he was arrested after a brawl in the front yard of his home between three of his cousins and some neighbors. He testified that he did not participate in the brawl but was present when it happened. The record does not reflect a conviction, but it reflects that he was ordered to pay restitution to one of the injured participants. (GX 9; Tr. 22-23.) In April 2009, Applicant was charged with DUI and reckless driving. At his trial for these offenses in January 2010, he was convicted of DUI. He was fined and required to pay court costs, and his driver’s license was restricted for one year. He was required to enroll in an alcohol safety action program (ASAP). (GX 4 at 1.) In September 2010, Applicant was charged with operating a vehicle without an ignition interlock system.3 (GX 11.) He denied that he was required to have an interlock 3 It is unclear from the record when the interlock requirement was imposed. The record does not reflect that an interlock requirement was imposed when Applicant was sentenced in January 2010 for the April 2009 DUI. 4 during this time period, but he admitted that he had a restricted driver’s license and should not have been driving. He spent a weekend in jail and paid a fine. (Tr. 47, 50-51.) In May 2015, Applicant was charged with DUI (2nd offense), possession of marijuana, and reckless driving. He was convicted of DUI (1st offense) and sentenced to six months in jail, with five and a half months suspended, fined $250, and placed on unsupervised probation for two years. He was required to complete an ASAP and install an interlock device on his vehicle. His driver’s license was restricted for six months. (GX 4 at 2; GX 6.) He testified that friends had given him the marijuana at a boxing match and pressured him to use it, but instead he put it in his pocket, intending to throw it away. The police found it in his jacket pocket when they stopped him for DUI. (Tr. 31-32.) The prosecutor entered a nolle prosequi for the possession of marijuana. (GX 7.) Applicant has completed his period of probation and the ASAP. He is no longer required to have an interlock device, and his driving privileges have been restored. He completed a 12-week substance-abuse program in January 2016. (AX A; AX B; Tr. 17- 18.) He testified that he no longer associates with the persons who gave him the marijuana in May 2015. Now that he is a single parent, his free time is taken up caring for the children, and he does not have time for socializing. (Tr. 33-34.) He testified that when he used marijuana during his younger days, it was always on social occasions and never alone, and he always used it in connection with alcohol consumption. (Tr. 54.) When Applicant submitted his SCA in January 2011, he did not disclose any marijuana use. He answered “No” to a question whether, in the last seven years, he had illegally used any controlled substance; and he answered “No” to a question whether he had ever illegally used a controlled substance while possessing a security clearance. He answered “Yes” to a question whether he had ever been charged with any offenses related to alcohol or drugs. (GX 2 at 26.) He disclosed his alcohol-related arrests and convictions and several delinquent debts, but he did not disclose his arrests for marijuana possession in 1997 and 1998 and his marijuana use in 2000, which were outside the seven-year window and before he had a security clearance. He admitted at the hearing that he broke his promise not to use marijuana again after executing his sworn statement in October 2001. He admitted that he considers himself “addicted” to marijuana, because “the temptation is always there.” (Tr. 35.) He conceded at the hearing that he probably should have disclosed any marijuana use after 2001, but he testified that when he was completing the SCA he could not remember any specific dates when he used it after 2001. He denied intending to mislead the government about his marijuana use. (Tr. 47-48.) In his October 2015 SCA, he disclosed his arrest for possession of marijuana in May 2015. (GX 1 at 27.) Policies “[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 5 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, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended. Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the AG. 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 all available and reliable information about the person, past and present, favorable and unfavorable. 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.” See 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 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- 6 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 ¶ 2(b). Analysis Guideline H, Drug Involvement The SOR alleges that Applicant used marijuana with varying frequency from about March 1996 to at least May 2015 (SOR ¶ 1.a); was arrested around September 1997 and charged with possession of marijuana and DUI (SOR ¶ 1.b); was arrested around June 1998 and charged with possession of marijuana (SOR ¶ 1.c); and was arrested around May 2015 and charged with DUI, possession of marijuana, and reckless driving (SOR ¶ 1.d). It also alleges that he continued to use marijuana after being granted a security clearance in May 2007 (SOR ¶ 1.e). The concern under this guideline 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. Applicant’s admissions and the documentary evidence submitted at the hearing establish two disqualifying conditions under this guideline: AG ¶ 25(a) (“any substance misuse (see above definition)”) and AG ¶ 25(c) (“illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia”). AG ¶ 25(f) (“any illegal drug use while granted access to classified information or holding a sensitive position”) is not established. It is not clear whether Applicant held a security clearance before May 2006. He possessed marijuana in May 2015, while holding a security clearance, but there is no substantial evidence that he used it in May 2015 or any time after 2001, when he believed he received a clearance, or after May 2006, the date reflected in the JPAS report, or after May 2007, the date alleged in the SOR. Applicant’s memory of the specific dates on which he used marijuana was impaired by the passage of time and the fact that his marijuana use always occurred while he was also consuming alcohol. His vague and speculative testimony that he might have used it once or twice after 2001 and the conflicting evidence about the date on which he received a security clearance fall short of “substantial evidence” that he used it while holding a security clearance. 7 The following mitigating conditions are potentially applicable: AG ¶ 26(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; AG ¶ 26(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; and AG ¶ 26(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. AG ¶ 26(a) is established. Applicant’s last drug involvement was almost three years ago. He was given marijuana by an associate but resisted pressure to use it. He no longer associates with drug users. He voluntarily completed a substance abuse program in 2016. AG ¶ 26(b) is established. Applicant acknowledged his marijuana involvement, completed a substance-abuse program, and no longer associates with drug users. AG ¶ 26(d) is partially established. Applicant completed a substance-abuse program, but there apparently were no aftercare requirements, and there is no evidence of a favorable prognosis from a medical professional. Guideline E, Personal Conduct The SOR cross-alleges the conduct alleged in SOR ¶ 1 under this guideline (SOR ¶ 2.a). It also alleges that Applicant was arrested in about September 1998 and charged with “encouraging acts rendering children”4 (SOR ¶ 2.b); arrested in August 2000 and charged with assault and battery (SOR ¶ 2.c); and cited in about February 2000 for driving 4 The actual offense in this unartfully worded allegation was contributing to the delinquency of a minor. 8 on a suspended license (SOR ¶ 2.d). It also alleges that Applicant falsified his January 2011 SCA by failing to disclose use of marijuana in the last seven years (SOR ¶ 2.e) and failing to disclose his use of marijuana while holding a security clearance (SOR ¶ 2.f). The security concern under this guideline is set out in AG ¶ 15: 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. . . . Applicant’s admissions and the documentary evidence submitted at the hearing establish the allegations in SOR ¶¶ 2.a-2.d. The allegations of falsifying his SCAs in SOR ¶¶ 2.e and 2.f are not established. Applicant’s marijuana use in 1997, 1998, and 2000 preceded his 2011 SCA by more than seven years and occurred before he received a security clearance. He credibly testified that he could not remember any specific dates after 2000 when he used marijuana. His vague and speculative testimony that he might have used marijuana once or twice after 2000 falls short of substantial evidence of falsification. He disclosed his May 2015 arrest for marijuana possession when he submitted in SCA in October 2015, but there is no evidence that he used it in May 2015. The conduct alleged in SOR ¶¶ 2.a-2.d is established by the evidence, and it is sufficient to raise the following disqualifying conditions under this guideline: AG ¶ 16(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; AG ¶ 16(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: . . (2) any disruptive, violent, or other inappropriate behavior; [and] (3) a pattern of dishonesty or rule violations . . . ; and 9 AG ¶ 16(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 . . . . The following mitigating conditions are potentially applicable: AG ¶ 17(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; AG ¶ 17(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; AG ¶ 17(e): the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; and AG ¶ 17(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. AG ¶¶ 17(c), 17(d), 17(e), and 17(g) are established. Applicant’s marijuana possession in May 2015 was not “minor,” but his most recent drug involvement was almost three years ago. Applicant no longer associates with drug users, and he has made full disclosure of his drug involvement, thereby reducing his vulnerability to exploitation, manipulation, or duress. He had a variety of arrests and convictions between 1996 and 2009, but only one arrest since 2009, in May 2015. His wife’s unexpected death in 2016 understandably appears to have made a significant impact on him, and he is acutely aware of the need to put his previous irresponsible conduct behind him and care for the three children for whom he is now responsible as a sole parent. Guideline G, Alcohol Consumption The SOR alleges that Applicant was cited in around November 1996 for underage alcohol possession (SOR ¶ 3.a), arrested in April 2009 for DUI and reckless driving (SOR ¶ 3.c), and arrested in September 2010 for operating his vehicle without an ignition interlock system (SOR ¶ 3.d). It also cross-alleges the conduct in SOR ¶¶ 1.b and 1.d under this guideline (SOR ¶¶ 3.b and 3.e). 10 The concern under this guideline is set out in AG ¶ 21: “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.” Applicant’s admissions and the documentary evidence submitted at the hearing are sufficient to establish the allegations in SOR ¶¶ 3.a-3.e5 and raise the following disqualifying conditions under this guideline: AG ¶ 22(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 the frequency of the individual's alcohol use or whether the individual has been diagnosed with alcohol use disorder; and AG ¶ 22(c): habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder. The following mitigating conditions are potentially applicable: AG ¶ 23(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; AG ¶ 23(b): the individual acknowledges his or her pattern of maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations; and AG ¶ 23(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. All three mitigating conditions are established. Applicant had several alcohol- related arrests, but his last DUI was almost three years ago. He completed the ASAP and a 12-week substance-abuse program. He has changed his lifestyle and now devotes his free time to his job and his responsibilities as a single parent. Whole-Person Analysis 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. In applying the whole- 5 It is questionable whether the interlock violation alleged in SOR ¶ 3.d falls under the concern in Guideline G instead of Guidelines E (Personal Conduct) or J (Criminal Conduct), but the characterization of the offense as raising a Guideline G concern does not affect the outcome of this case. 11 person concept, an 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 and applying the adjudicative factors in AG ¶ 2(d).6 I have incorporated my comments under Guidelines H, E, and G in my whole- person analysis and applied the adjudicative factors in AG ¶ 2(d). Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but some warrant additional comment. Applicant was candid, sincere, and credible at the hearing. Given the time that has passed and the circumstances in which they occurred, he understandably had difficulty recalling the specific dates of various events in his checkered past. His wife’s unexpected death in December 2016, after the events alleged in the SOR, had a profound effect on him. He was visibly shaken when he testified about her death at the hearing. He is determined to put his past irresponsible conduct behind him and take care of his children. After weighing the disqualifying and mitigating conditions under Guidelines H, E, and G, and evaluating all the evidence in the context of the whole person, I conclude Applicant has refuted the allegations that he intentionally falsified his SCAs, and he has mitigated the security concerns raised by his drug involvement, alcohol consumption, and personal conduct. Formal Findings I make the following formal findings on the allegations in the SOR: Paragraph 1, Guideline H (Drug Involvement): FOR APPLICANT Subparagraphs 1.a-1.e: For Applicant Paragraph 2, Guideline E (Personal Conduct): FOR APPLICANT Subparagraphs 2.a- 2.f: For Applicant Paragraph 3, Guideline G (Alcohol Consumption): FOR APPLICANT Subparagraphs 3.a-3.e: For Applicant 6 The factors are: (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. 12 Conclusion I conclude that it is clearly consistent with the national security interests of the United States to continue Applicant’s eligibility for access to classified information. Clearance is granted. LeRoy F. Foreman Administrative Judge