DATE: March 15, 2001

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

ROBERT ROBINSON GALES

APPEARANCES

FOR GOVERNMENT

Matthew E. Malone, Esquire, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Twenty-four year old Applicant's improper and illegal drug abuse, essentially consisting of the regular and sustained use, purchase, and possession, of marijuana over a four year period culminating in May 1999, motivated by social pleasures--purportedly a common and socially accepted activity among his peers, and because marijuana relaxed him; his regular abuse of alcohol, until May 1999, to the point of intoxication, and in some instances, blackouts; his continued heavy drinking of similar quantities of alcohol but doing so less frequently; as well as his perceived lack of candor regarding his substance abuse, raise grave questions and doubts as to his security eligibility and suitability. Clearance is denied.

STATEMENT OF THE CASE

On November 27, 2000, 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 December 12, 2000, Applicant responded to the allegations set forth in the SOR, and requested a hearing. The case was initially assigned to Administrative Judge Elizabeth Matchinski on January 3, 2001, but, due to caseload considerations, was subsequently reassigned to, and received by, this Administrative Judge on January 5, 2001. A notice of hearing was issued on January 8, 2001, and the hearing was held before me on February 14, 2001. During the course of the hearing, two Government exhibits and two Applicant exhibits, and the testimony of five Applicant witnesses (including Applicant), were received. The transcript (Tr.) was received on February 22, 2001.

Applicant has admitted all of the factual allegations pertaining to drugs under Guideline H (subparagraphs 1.a. through 1.c.), as well as those pertaining to alcohol under Guideline G (subparagraphs 2.a. through 2.c.). Those admissions are incorporated herein as findings 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 24 year old male employed by a defense contractor, and is seeking to obtain a security clearance, the level of which has not been described.

Applicant was a poly-substance abuser whose choice of illegal substances was marijuana and "mushrooms." He also abused alcohol. He initially experimented with marijuana on two occasions during his junior year in high school, but because he did not enjoy it, abstained from further abuse until after he had graduated from high school in 1995. ⁽¹⁾ Applicant's undergraduate college years brought a renewed interest in marijuana. He regularly abused marijuana over a four year period from 1995 until he graduated in May 1999. During that period, Applicant generally abused marijuana most weekends, but not every weekend, in social situations with friends. ⁽²⁾ He typically shared two or three marijuana cigarettes or shared a pipe "bong" containing marijuana. ⁽³⁾ There is no evidence to rebut Applicant's contention he last abused marijuana in May 1999 at his post-graduation party.

Applicant purchased marijuana from other students to support both his individual and "shared" needs. ⁽⁴⁾ On a monthly or bi-monthly basis, he purchased varying amounts of marijuana, in quantities of between an eighth of an ounce and one ounce, costing about $20.00 to $100.00. ⁽⁵⁾ There is no evidence to rebut Applicant's contention that he last purchased marijuana in May 1999, in anticipation of his graduation party. ⁽⁶⁾

Applicant's position regarding the use of marijuana was significant. He was aware that such use was against the law, as well as against school policy, ⁽⁷⁾ but rationalized that his use of marijuana "was consistent with [Applicant's] peers. . . ," ⁽⁸⁾ and was considered "socially acceptable." ⁽⁹⁾ Applicant's use of marijuana "relaxed" him. ⁽¹⁰⁾

The pre-graduation job interviewing process commenced for Applicant in about December 1998. He participated in a number of interviews during his senior year and, in January 1999, was offered a job which was to begin in July 1999, after his graduation. In April 1999, the employer whose offer he had accepted e-mailed a Security Clearance Application, Standard Form 86 (SF 86), to Applicant for completion. He eventually completed the SF 86 and submitted it on May 13, 1999, before graduation. ⁽¹¹⁾ The SF 86 contained some questions directed at illegal substance abuse, including the use and purchase of specified substances, and Applicant candidly responded to those questions. ⁽¹²⁾

In response to an inquiry during the hearing as to why he continued to abuse marijuana for several months after he had received the offer of employment, Applicant maintained the employer did not make its drug policy known to Applicant until February or March 1999, and the policy only referred to periods of employment. He posited since he was only a future employee, the policy did not apply to him until he actually came aboard. ⁽¹³⁾

On the day following his post-graduation party in May 1999, Applicant decided to abstain from further marijuana abuse for a variety of reasons: (1) he was no longer in a college party atmosphere; (2) he no longer lived with other substance abusers; and (3) he was about to enter the business world. ⁽¹⁴⁾ As a result of this belated realization, and in the absence of any drug treatment or rehabilitation, ⁽¹⁵⁾ he proclaimed he had no future intentions to use marijuana. ⁽¹⁶⁾

On about three occasions between December 1997 and June 1998, Applicant also experimented with what he identified as "mushrooms." ⁽¹⁷⁾ They caused him no physical or psychological affect. ⁽¹⁸⁾ Although the Government attempted to label the mushrooms as "psilocybin" mushrooms, it was unsuccessful because Applicant had never heard of that term and the Government offered no evidence to support its contention. There is no evidence to rebut Applicant's assertion that he last "used" mushrooms in June 1998. He has vowed to never use mushrooms in the future. ⁽¹⁹⁾

During his college undergraduate years, as well as thereafter, Applicant consumed alcohol, at times to excess, and to the point of intoxication and blackout. ⁽²⁰⁾ Although he had experimented with moderate levels of alcohol while in high school, after he entered college, Applicant began to consume alcohol three or four times per week, generally at house parties and bars, to the point of intoxication. ⁽²¹⁾ Applicant typically consumed beer, alone or in combination with "hard" liquor such as rum and tequila. ⁽²²⁾ At times, especially after he had consumed a combination of beer and "hard" liquor, he experienced blackouts. ⁽²³⁾ In Applicant's estimation, five or six beers would cause him impairment. ⁽²⁴⁾

In his Response to SOR, Applicant stated: ⁽²⁵⁾

. . . aside from an occasional controlled social drink, I absolutely no longer drink to intoxication nor do I drink with any frequency, nor will I in the future. Drinking with any frequency, especially to intoxication, was an immature act and again, fortunately something that was left behind with my graduation from College. Drinking always poses a danger to anyone who does so and is also inappropriate in my professional lifestyle and was therefore eliminated more than one and one-half . . . years ago.

Despite Applicant's assertions, he continues to consume alcohol, albeit at a purportedly reduced frequency and quantity. He considers himself a "social drinker" who consumes up to three beers, ⁽²⁶⁾ or even up to five beers, ⁽²⁷⁾ and/or an unspecified number of mixed drinks ⁽²⁸⁾ during the course of an evening. In light of Applicant's varied admissions, I find that while he may have reduced the frequency of his alcohol consumption, the quantity of alcohol consumed on each such occasion has only been slightly diminished.

Applicant claimed he last consumed alcohol to intoxication on graduation night in May 1999. ⁽²⁹⁾ He also acknowledged when he and his fiancé socialize at bars or friends' houses, he may consume up to five beers during the course of an evening. ⁽³⁰⁾ He may also consume up to five beers at special events, such as a Super Bowl party or World Series party, or other "big" social events, ⁽³¹⁾ and occasionally has a glass of wine with dinner. ⁽³²⁾ Notwithstanding all of the above, there is no direct evidence to rebut Applicant's contention that he has not been "intoxicated" since May 1999.

In January 1997, when he was about 20 years old, in a state with a minimum drinking age of 21 years of age, Applicant attempted to obtain alcohol from a liquor store and was approached by a police officer and charged with entering and remaining in a package store while underage. He entered a plea of no contest to the charge. ⁽³³⁾ After serving a year on probation, the charge was eventually nolle prosequi. ⁽³⁴⁾

At some unspecified time during his undergraduate years, when he was about 20 years of age, Applicant purchased a false identification card to enable him to purchase alcohol and enter fraternity parties while he was still under age. ⁽³⁵⁾ He used it on several occasions, despite the illegal nature of such activity. He now acknowledges that his actions were "extremely immature and thoughtless" and attributable only to "adolescence." ⁽³⁶⁾ Applicant's position regarding the under age use of alcohol is similar to that stated regarding illegal substance abuse: ⁽³⁷⁾

I also understand that use and purchase of alcohol as a minor was illegal but again, it was socially accepted in my peer group.

Applicant has never been diagnosed with any alcohol-related condition, and has never undergone any treatment or rehabilitation for alcohol abuse.

Applicant has been employed by the same company since July 1999. His character and the quality of his performance have been depicted by supervisors and co-workers in largely favorable terms, such as: exceptional employee; above average performance; extremely bright; very dependable; and very mature traits. Applicant's fiancé portrays him as "a role model" ⁽³⁸⁾ who has never abused alcohol or drugs during the four and one-half years they have known each other. ⁽³⁹⁾

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);

(2) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution;

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.

[Alcohol Consumption - Criterion G]: Excessive alcohol consumption often leads to the exercise of questionable judgment, unreliability, failure to control impulses, and increases the risk of unauthorized disclosure of classified information due to carelessness.

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

(1) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, or other criminal incidents related to alcohol use;

(5) habitual or binge consumption of alcohol to the point of impaired judgment.

Conditions that could mitigate security concerns include:

(2) the problem occurred a number of years ago and there is no indication of a recent problem;

(3) positive changes in behavior supportive of sobriety.

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," ⁽⁴⁰⁾ or "clearly consistent with the national interest." For the purposes herein, despite the different language in each, I have concluded both 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, 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 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 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 witness 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 Guideline H, the Government has established its case. Applicant's improper and illegal drug abuse, essentially consisting of the regular and sustained use, purchase, and possession, of marijuana over a four year period, is of concern, especially in light of his desire to have access to the nation's secrets. Applicant did not simply experiment out of curiosity and stop while in high school. Instead, motivated by social pleasures--purportedly a common and socially accepted activity among his peers, and because marijuana relaxed him--notwithstanding the illegal status of his endeavor, Applicant exhibited a pattern of questionable judgment, irresponsibility, and immature behavior, and abused marijuana most weekends while in college. Applicant's overall conduct pertaining to his marijuana abuse clearly falls within Drug Involvement Disqualifying Condition (DC) E2.A8.1.2.1. and DC E2.A8.1.2.2.

It is to Applicant's credit that, at the age of nearly 23 years, he finally chose to abstain following his post-graduation party in May 1999, because: (1) he was no longer in a college party atmosphere; (2) he no longer lived with other substance abusers; and (3) he was about to enter the business world. It is also to his credit he was candid on his SF 86 regarding his history of substance abuse. Of course, it is to be noted at the time Applicant completed his SF 86, substance abuse was not merely history, but also a continuing activity, at least for another month.

There is concern regarding Applicant's marijuana abuse motivation, in general, and the reasoning for his continued marijuana abuse after he had received his SF 86 in April 1999, in specific. He clearly had knowledge and awareness his substance abuse was both illegal and against school and corporate policy. Yet, despite possessing that information, he chose to challenge the system and continued to flaunt the rules. In fact, during the hearing, Applicant disputed the application of corporate policy as he was merely a future employee and he averred, perhaps correctly, the corporate rules did not yet apply to him. Nevertheless, while corporate policy might not have been applicable, school policy and the law clearly did apply to him.

Applicant has argued his marijuana abuse was not recent, and he has demonstrated an intent not to abuse any drugs in the future, thereby mitigating the allegations against him. Applicant has seemingly rejected future illegal substance abuse by vowing to forego marijuana in the future. That simple pledge, accompanied only by a relatively brief period of abstinence--less than two years since May 1999, especially after four years of regular marijuana abuse--does not, in my estimation, constitute a "demonstrated intent not to abuse any drugs in the future," as set forth in Drug Involvement Mitigating Condition (MC) E2.A8.1.3.3. Furthermore, I have concluded that the period of abstinence since May 1999 is too brief, in light of the length of the marijuana abuse, to support the argument such abuse was not recent, as set forth in MC E2.A8.1.3.1.

The presence or absence of rehabilitation and other pertinent behavioral changes are significant factors in the overall adjudicative process. Despite regular marijuana abuse covering four years, Applicant has 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 continued enjoyment and social pleasures--because marijuana relaxed him and it was socially acceptable among his peers--were motivators, does not signify true insight into the actual motivation for following the course of conduct which he had chosen. Applicant continued to abuse marijuana 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 substance abuse and remaining abstinent since May 1999, I believe both the successful completion of a drug treatment and rehabilitation or education 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 that such conduct will not continue or recur at some party in the future. While I am aware there may be no such mandate, I possess little confidence that Applicant's marijuana abuse is a thing of the past and that will not recur. Consequently, I conclude that 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, allegations 1.a. and 1.b. of the SOR are concluded against Applicant.

Applicant's experimentation with "mushrooms" on three occasions between December 1997 and June 1998 has not been repeated thereafter. As stated above, while the Government attempted to label the mushrooms as "psilocybin" mushrooms, it was unsuccessful because Applicant had never heard of that term and the Government offered no evidence to support its contention that these mushrooms might be of the hallucinogenic type. Accordingly, even if Applicant's "mushroom" activity had not, in my estimation, been stale, with little current security significance, the Government clearly failed to establish its case, and I will not speculate as to the nature of those mushrooms. Accordingly, allegation 1.c. of the SOR is concluded in favor of Applicant.

With respect to Guideline G, the Government has established its case. Applicant was a regular alcohol abuser who consumed alcohol three or four times per week, generally at house parties and bars, to the point of intoxication, and in some instances, blackouts. In Applicant's own estimation, five or six beers would cause him impairment, if not intoxication. Thus, Applicant's alcohol abuse during his undergraduate years clearly falls within Alcohol Consumption DC E2.A7.1.2.5. But Applicant graduated in May 1999, and he claims to now possess a new outlook pertaining to the use of alcohol.

Applicant attempted to minimize his current alcohol consumption and denied being an alcohol abuser. I have listened to his testimony and read his statements regarding alcohol, and find substantial inconsistencies in his varied admissions and refinements of earlier comments. As noted above, Applicant asserted that drinking was inappropriate to his new lifestyle and was eliminated more than one and one-half years earlier. Yet, he also claimed to be an occasional controlled social drinker who no longer drinks to intoxication or with any frequency. One cannot do both. You either abstain or you consume alcohol. Applicant stated he might consume three beers during an evening, but moments later acknowledged the quantity was up to five beers. He later admitted when he and his fiancé socialize at bars and at friends' houses, or during certain special events, he may consume up to five beers during the course of an evening.

Five or six beers caused him impairment or intoxication prior to May 1999, but Applicant could not explain why five beers would not currently do the same. Instead, he sought to offer lay testimony as to physiology and alcohol breakdown over the course of time. Nevertheless, in spite of all of the above, including Applicant's perceived lack of candor, as well as the clearly false statement of his fiancé, which he tried to explain away as semantics, there is no direct evidence to rebut his contention that he has not been intoxicated since May 1999. However, the Directive speaks in terms of "excessive alcohol consumption" rather than merely alcohol abuse or alcohol dependence, and Applicant's purportedly diminished alcohol consumption and altered drinking pattern cannot be considered positive changes in behavior supportive of sobriety, which might activate Alcohol Consumption MC E2.A7.1.3.3.

Alcohol has minimally adversely impacted Applicant's life. His desire for alcohol while he was not yet of legal age where he was attending college generated actions by him which clearly were of questionable judgment. His acquisition and use of false identification to enable him to purchase alcohol and enter fraternity parties, as well as his attempt to obtain alcohol from a liquor store, were, as Applicant described them, "extremely immature and thoughtless." But contrary to Applicant's contention, they can not be attributable to "adolescence," as Applicant was already 20 years of age at the time they occurred. However, a far more troubling aspect of this case is caused by the inconsistencies of Applicant's descriptions of his relationship with alcohol. As a result, in my view, Applicant's credibility has been dramatically diminished.

Under the evidence presented, I am uncertain if Applicant's undiagnosed alcohol abuse of the past will recur. There is some evidence of current sobriety and substantial evidence of heavy drinking during certain big social events. That continued heavy drinking, along with and the most recent incident of acknowledged, and proven, intoxication which occurred in May 1999--all indicate that the "problem" is still relatively recent, and perhaps even current--too recent, at least, to take advantage of MC E2.A7.1.3.2.

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 that Applicant has failed to mitigate or overcome the Government's case. The evidence leaves me with grave questions and doubts as to Applicant's continued security eligibility and suitability. Accordingly, allegations 2.a. through 2.c. of the SOR are 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

Subparagraph 1.b.: Against the Applicant

Subparagraph 1.c.: For the Applicant

Paragraph 2. Guideline G: AGAINST THE APPLICANT

Subparagraph 2.a.: Against the Applicant

Subparagraph 2.b.: Against the Applicant

Subparagraph 2.c.: 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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