DATE: June 11, 2001

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SSN: ------------

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

ROBERT ROBINSON GALES

APPEARANCES

FOR GOVERNMENT

William S. Fields, Esquire, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant's occasional use of marijuana during the period from the Summer of 1993, after he had graduated from college, to July 1999, two months after completing his SF 86, is of concern, especially in light of his desire to have access to the nation's secrets. In the absence of a "demonstrated intent" not to abuse any drugs in the future, grave questions and doubts are raised as to his security eligibility and suitability. Clearance is denied.

STATEMENT OF THE CASE

On January 2, 2001, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865, "Safeguarding Classified Information Within Industry, dated February 20,1960, as amended and modified, and Department of Defense Directive 5220.6, "Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified, issued a Statement of Reasons (SOR) to Applicant which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant, and recommended referral to an Administrative Judge to determine whether a clearance should be granted, continued, denied, or revoked.

In a sworn written statement, dated January 9, 2001, Applicant responded to the allegations set forth in the SOR, and elected to have his case decided on the written record, in lieu of a hearing. Department Counsel submitted the Government's written case on April 10, 2001. A complete copy of the file of relevant material (FORM) ⁽¹⁾ was provided to Applicant, and he was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. He submitted a character reference from the president of his employer on May 14, 2001. Department Counsel interposed no objection to the submission. The case was initially assigned to Administrative Judge Claude R. Heiny II on June 7, 2001, but, due to caseload considerations, was subsequently reassigned to, and received by, this Administrative Judge on June 8, 2001.

Applicant has admitted the factual allegation pertaining to drug involvement under Guideline H (subparagraph 1.a.). That admission is incorporated herein as a finding of fact.

After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact:

Applicant is a 30 year old male, employed by a defense contractor, seeking to obtain a security clearance, the level of which has not been disclosed.

Applicant was an illegal substance abuser whose substance of choice was marijuana. He commenced using marijuana in the summer of 1993, after his graduation from college, ⁽²⁾ and continued using it every three or four months until July 1999. ⁽³⁾ There is no evidence to rebut his contention that he has abstained since his bachelor party in July 1999. ⁽⁴⁾

Applicant's motivation for using or not using marijuana is interesting. He had been afraid to try the substance while still in high school because he was aware it was illegal. He had still not used marijuana while in college because college had been too stressful and he was too busy. ⁽⁵⁾ After graduating with a B.S. degree in June 1993, ⁽⁶⁾ he felt he had more freedom and time, and became more open to trying marijuana. ⁽⁷⁾ So when a person he had known in high school approached him, Applicant tried it out of "curiosity." ⁽⁸⁾

Applicant continued using marijuana occasionally while with friends on social occasions and holidays whenever they offered it to him. ⁽⁹⁾ On those occasions he generally shared a marijuana cigarette or pipe that was being passed around. ⁽¹⁰⁾ Initially he felt no effects from the marijuana, but Applicant's subsequent marijuana use was occasioned by feelings of being drunk with a loss of awareness and a loss of control. ⁽¹¹⁾

As noted above, in May 1999, Applicant completed a Questionnaire For National Security Positions (SF 86), and in response to an inquiry pertaining to substance abuse, admitted having used marijuana on approximately 10 occasions between the Summer of 1993 and October 1998. ⁽¹²⁾ At the time, he was still using marijuana and, despite having been alerted to the significance of substance abuse, Applicant continued to use marijuana for another two months, or until July 1999.

In December 1999, during an interview with a special agent of the Defense Security Service (DSS), with regard to future intent, Applicant stated: ⁽¹³⁾

I do not intend to smoke marijuana in the future. I am now married and my wife does not smoke marijuana. Also, smoking marijuana seems an immature thing to do and I want to get on with my life. Also, it is illegal. It was never a big part of my life so I don't think it will be difficult to say no if my friends offer it to me in the future.

Applicant has never undergone any treatment or rehabilitation related to his marijuana abuse. ⁽¹⁴⁾

During the period of his marijuana abuse, Applicant never purchased marijuana and he never sold marijuana. ⁽¹⁵⁾

Applicant has been employed as a project engineer by the same company since August 1993. The president of his employer characterized him in glowing terms, using such words as "honest," "serious," and "reliability." ⁽¹⁶⁾

Enclosure 2 of the Directive sets forth adjudicative guidelines which must be considered in the evaluation of security suitability. In addition to brief introductory explanations for each guideline, the adjudicative guidelines are divided into those that may be considered in deciding whether to deny or revoke an individual's eligibility for access to classified information (Disqualifying Conditions) and those that may be considered in deciding whether to grant an individual's eligibility for access to classified information (Mitigating Conditions).

An Administrative Judge need not view the adjudicative guidelines as inflexible ironclad rules of law. Instead, acknowledging the complexities of human behavior, these guidelines, when applied in conjunction with the factors set forth in the Adjudicative Process provision set forth in Section E2.2., Enclosure 2, of the Directive, are intended to assist the Administrative Judge in reaching fair and impartial common sense decisions.

Because the entire process is a conscientious scrutiny of a number of variables known as the "whole person concept," all available, reliable information about the person, past and present, favorable and unfavorable, should be considered in making a meaningful decision. The Adjudicative Process factors which an Administrative Judge should consider 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 voluntariness of participation; (6) the presence or absence of rehabilitation and other pertinent 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.

Based upon a consideration of the evidence as a whole, I find the following adjudicative guidelines most pertinent to an evaluation of the facts of this case:

[Guideline H - Drug Involvement]: Improper or illegal involvement with drugs, raises questions regarding an individual's willingness or ability to protect classified information. Drug abuse or dependence may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information.

Drugs are defined as mood and behavior altering substances, and include:

(i) drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens); and

(ii) inhalants and other similar substances.

Drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.

Conditions that could raise a security concern and may be disqualifying include:

(1) any drug abuse (see above definition);

Conditions that could mitigate security concerns include:

(1) the drug involvement was not recent;

(3) a demonstrated intent not to abuse any drugs in the future.

Since the protection of the national security is the paramount consideration, the final decision in each case must be arrived at by applying the standard that the issuance of the clearance is "clearly consistent with the interests of national security," ⁽¹⁷⁾ or "clearly consistent with the national interest." For the purposes herein, despite the different language in each, I have concluded that standards are one and the same. In reaching this Decision, I have endeavored to draw only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have attempted to avoid drawing inferences grounded on mere speculation or conjecture.

In the decision-making process, the burden of producing evidence initially falls on the Government to establish a case which demonstrates, in accordance with the Directive, that it is not clearly consistent with the national interest to grant or continue an applicant's access to classified information. If the Government meets its burden, the heavy burden of persuasion then falls upon the applicant to present evidence in refutation, explanation, extenuation or mitigation sufficient to overcome the doubts raised by the Government's case, and to ultimately demonstrate it is clearly consistent with the national interest to grant or continue the applicant's clearance.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. It is a relationship that transcends normal duty hours and endures throughout off-duty hours as well. It is because of this special relationship that the Government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. Decisions under this Directive include, by necessity, consideration of the possible risk an applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

One additional comment is worthy of note. Applicant's allegiance, loyalty, and patriotism are not at issue in these proceedings. Section 7 of Executive Order 10865 specifically provides that industrial security clearance 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." Security clearance decisions cover many characteristics of an applicant other than allegiance, loyalty, and patriotism. Nothing in this Decision should be construed to suggest I have based this decision, in whole or in part, on any express or implied decision as to Applicant's allegiance, loyalty, or patriotism.

Upon consideration of all the facts in evidence, an assessment of credibility, and after application of all appropriate legal precepts, factors, and conditions, including those described briefly above, I conclude the following with respect to each allegation set forth in the SOR:

With respect to Criterion H, the Government has established its case. Applicant's improper and illegal occasional use of marijuana over a period of six years, ending in July 1999, is of concern, especially in light of his desire to have access to the nation's secrets. Applicant was not a teenager who simply experimented one time out of curiosity and stopped. Instead, as a seemingly more mature college graduate motivated by social pleasures not further explained, and notwithstanding his awareness of the illegal status of his endeavor, Applicant threw caution to the wind and exhibited a pattern of questionable judgment, irresponsibility, and immature behavior, and continued his marijuana use on numerous occasions during that six year period. Applicant's overall conduct pertaining to his marijuana use clearly falls within Drug Involvement Disqualifying Condition (DC) E2.A8.1.2.1.

It might reasonably be argued the drug involvement, ending in about July 1999, was not recent, a condition recognized under Drug Involvement Mitigating Condition (MC) E2. A8.1.3.1. However, while the presence or absence of rehabilitation and other pertinent behavioral changes are significant factors in the overall adjudicative process, the presence or absence of one particular condition is not controlling.

Despite nearly a two year period of abstinence--about one-third of the time he used marijuana--Applicant has seemingly not undergone any drug awareness, education, or treatment program, in order to achieve a better self-understanding of the behavioral and psychological effects of his actions and the motivation therefore. Likewise, simply superficially claiming that the absence of stress and continued pleasures on social occasions and holidays were motivators, does not signify true insight into the actual motivation for following the course of conduct which he had chosen. Applicant knew marijuana use was illegal, but, nevertheless commenced using it and continued to use it to enhance his pleasure. Without the development of meaningful countermeasures to the resumption of substance abuse--relapse prevention, the likelihood of recurrence becomes greater.

In this instance, while crediting Applicant with the wisdom of finally ceasing his marijuana use and remaining abstinent since about July 1999, I believe both the successful completion of a drug treatment and rehabilitation program, as well as confirmed abstinence for a reasonable period should be required to demonstrate the truly successful transformation from substance abuser to an abstinent, drug-free person, and to provide the basis for a conclusion such conduct will not continue or recur at some party in the future. I am aware there may be no such mandate, but under the evidence presented, I possess little confidence Applicant's substance abuse is a thing of the past that will not recur.

In this regard, I am particularly concerned about Applicant's continued use of marijuana for two months after he completed his SF 86. While he already knew marijuana use was illegal, he was also placed on notice that substance abuse was of substantial interest to the Government, but ignored the signal and continued using marijuana. It was not until December 1999 that he began to understand the significance of the situation regarding substance abuse.

It is to be acknowledged that as of December 1999, Applicant finally rejected future illegal substance abuse by vowing to forego marijuana in the future. That simple pledge, at that time, accompanied only by five months of abstinence, and his long-standing awareness that it was illegal, and a newly discovered superficial understanding that the use of marijuana is immature as well, does not, in my estimation, sufficiently constitute a "demonstrated intent not to abuse any drugs in the future," as set forth in C E2.A8.1.3.3. Moreover, I remain unconvinced of Applicant's credibility in this regard. Furthermore, I am troubled by Applicant's failure to appreciate the illegality of his endeavor over such a long period of time.

I do not take this position lightly, but based on the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), my evaluation of the evidence, and my application of the pertinent factors under the Adjudicative Process, I believe Applicant has failed to mitigate or overcome the Government's case. The evidence leaves me with questions and doubts as to Applicant's continued security eligibility and suitability. Accordingly, allegation 1.a. of the SOR is concluded against Applicant.

For the reasons stated, I conclude Applicant is not eligible for access to classified information.

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 THE APPLICANT

Subparagraph 1.a.: Against the Applicant

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant.

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1. The Government submitted five items in support of its contentions.

2. See Item 5 (Statement of Subject, dated December 20, 1999), at 1.

3. Ibid. In May 1999, Applicant estimated he had used marijuana on about 10 different occasions during the period August 1993 to October 1998. See Item 4 (Questionnaire For National Security Positions (SF 86), dated May 19, 1999), at 8.

4. Id., Item 5.

5. Ibid.

6. See Item 4, supra note 3, at 2.

7. See Item 5, supra note 2, at 1.

8. Ibid.

9. Ibid.

10. Ibid.

11. Ibid.

12. See Item 4, supra note 3, at 8.

13. See Item 5, supra note 2, at 1.

14. Ibid.

15. Ibid.

16. See Response to FORM (Letter from President to DOHA, dated May 14, 2001), at 1.

17. See Executive Order 12968, "Access to Classified Information;" as implemented by Department of Defense Regulation 5200.2-R, "Personnel Security Program," dated January 1987, as amended by Change 3, dated November 8, 1995, and further modified by memorandum, dated November 10, 1998. However, the Directive, as amended by Change 4, dated April 20, 1999, uses both "clearly consistent with the national interest" (see Sec. 2.3.; Sec.2.5.3.; Sec. 3.2.; and Sec. 4.2.; Enclosure 3, Sec. E3.1.1.; Sec. E3.1.2.; Sec. E3.1.25.; Sec. E3.1.26.; and Sec. E3.1.27.), and "clearly consistent with the interests of national security" (see Enclosure 2, Sec. E2.2.3.); and "clearly consistent with national security" (see Enclosure 2, Sec. E2.2.2.)