DATE: June 18, 2003

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

JOHN G. METZ, JR.

APPEARANCES

FOR GOVERNMENT

Erin C. Hogan, Esquire, Deputy Chief Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant's abuse of marijuana between 1982 and 2000 was mitigated where Applicant had stopped using marijuana in 2000 and demonstrated a clear intent to refrain from future drug abuse by his abstinence for three years and commitment to a drug-free lifestyle because of family concerns. Clearance granted.

STATEMENT OF THE CASE

On 3 March 2003, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant, stating that DOHA could not make the preliminary affirmative finding ⁽¹⁾ that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. On 1 April 2003, Applicant answered the SOR and requested a hearing. The case was assigned to me on 17 April 2003, when I was out of the office; I received the case on 22 April 2003, upon my return. I set the case on 25 April 2003, and on 1 May 2003, issued a notice of hearing for 21 May 2003.

At the hearing, the Government presented two exhibits--admitted without objection--and no witnesses; Applicant presented three exhibits--admitted without objection--and the testimony of one witness, himself. DOHA received the transcript on 2 June 2003.

Applicant denied the allegations of the SOR, with an explanation: he admits using marijuana between 1982 and 2000; he denies the allegations to the extent they imply continuous use during the period alleged.

Applicant--a 38-year old employee of a defense contractor--seeks access to classified information. He has not previously had a security clearance. He has been a robotics engineer since 1985, a key player in the development of robotics systems for many government agencies. He has been with same company--albeit with two later mergers with larger companies--since 1985. He testified at the hearing, and I find his testimony credible and true.

On 18 October 2000, Applicant executed a Security Clearance Application (SCA)(SF 86) (G.E. 1) on which he answered "yes" to a question requiring Applicant to disclose any illegal drug use in the last seven years (question 27). Applicant indicated that from 1 January 1982 to 23 March 2000, he used marijuana "4/week to 4/year". This answer was truthful, if imprecise.

The Defense Security Service (DSS) did not interview Applicant as part of his background investigation, despite the reported drug abuse. On 26 September 2002, Applicant responded to DOHA drug interrogatories. ⁽²⁾ Applicant reported he had used no illegal drugs, to include marijuana. ⁽³⁾ He stated he had stopped using illegal substances approximately two years before because it was illegal, he did not want to jeopardize his job or family, and he was getting older ⁽⁴⁾ and needed to take better care of his health. He had stopped associating with friends who used marijuana, and begun to avoid situations where he might encounter marijuana. He moved to another city for his son to go to a better school. He also realized his son--who had just turned six--was getting older and needed a good role model--or at least a better one.

At the hearing, Applicant detailed his marijuana use for the first time: From 1982 to 1985--his high school and college years--he engaged in his most frequent use, four times per week From 1985 to 1990, while he was employed as a robotics engineer (but not by a company with a drug policy), he used marijuana 3-4 times per year, limited to special occasions. From 1990 to 1998, he used marijuana a total of 2-3 times. The company he worked for had been bought by a larger company in 1993. That company had a drug policy, as does the still larger company that bought the second company. From 1999 to 2000, Applicant experienced a company move and stress on his marriage. His use increased, 2-4 times in that year plus. He stopped in March 2000 for the reasons stated earlier, but also because he knew his company was getting reading to put him for a security clearance. He now adds to his reasons to refrain from marijuana use the fact that the clearance process has been a real eye-opener for him, an unpleasant experience he would like not to repeat. He also bought user amounts of marijuana several times, but none recently.

He has not been treated or received counseling for substance abuse, nor has he needed any. He is not tempted to use marijuana. He knows marijuana use is illegal.

Applicant's spouse since March 1990, knows of only one instance--many years ago--where Applicant used marijuana. She recalls the smell of marijuana at some parties they attended, also many years ago (A.E. C). However, Applicant acknowledges that his occasional marijuana use in recent years occurred in situations where she was not present. Applicant's co-workers, one of whom has known him since 1985, consider him an excellent employee who has high integrity and honesty. Neither appears aware of his marijuana use (A.E. A, B).

Enclosure 2 of the Directive sets forth adjudicative guidelines to be considered in evaluating an individual's security eligibility. The Administrative Judge must take into account the conditions raising or mitigating security concerns in each area applicable to the facts and circumstances presented. Each adjudicative decision must also assess the factors listed in Section 6.3. and in Enclosure (2) of the Directive. Although the presence or absence of a particular condition for or against clearance is not determinative, the specific adjudicative guidelines should be followed whenever a case can be measured against this policy guidance, as the guidelines reflect consideration of those factors of seriousness, recency, motivation, etc.

Considering the evidence as a whole, the following adjudication policy factors are most pertinent to this case:

E2.A8.1.1. The Concern:

E2.A8.1.1.1. 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.

E2.A8.1.1.2. Drugs are defined as mood and behavior-altering substances.

E2.A8.1.1.2.1. 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

E2.A8.1.1.2.2. Inhalants and other similar substances,

E2.A8.1.1.3. Drug abuse is the illegal use of a drug or use of a legal drug in a manner

that deviates from approved medical direction.

E2.A8.1.2. Conditions that could raise a security concern and may be disqualifying include:

E2.A8.1.2.1. Any drug abuse (see above definition);

E2.A8.1.2.2. Illegal drug possession, including . . . purchase,

E2.A8.1.3. Conditions that could mitigate security concerns include:

E2.A8.1.3.1. The drug involvement was not recent;

E2.A8.1.3.3. A demonstrated intent not to abuse any drugs in the future.

Burden of Proof

Initially, the government must prove controverted facts alleged in the SOR. If the government meets that burden, the burden of persuasion then shifts to the applicant to establish his security suitability through evidence of refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of disqualifying conduct, it is nevertheless clearly consistent with the national interest to grant or continue the security clearance.

A person who seeks access to classified information enters into a fiduciary relationship with the government predicated upon trust and confidence. Where facts proven by the government raise doubts about an applicant's judgment, reliability or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he or she is nonetheless security worthy. As noted by the United States Supreme Court in Department of the Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials."

CONCLUSIONS

The government has established its case under Guideline H, but I consider the conduct mitigated. Applicant abused marijuana for more than 18 years, from 1982 to 2000. Clearly, the illegality of the conduct did not affect Applicant's decision to use marijuana, nor did company policy proscriptions between 1993 and 2000. However, Applicant has been drug free since 2000, over three years, as he matured and realized that drug use was not part of the life he wanted to live. I recognize that Applicant was nearly 35 when he came to this realization, so his continued drug abuse until then cannot be excused as youthful mistakes. Yet, maturity and judgment come, if at all, when they will; what is most important in security determinations is that they come. Applicant now realizes that he has something at stake, both concretely (his job and career) and intangibly (his son's respect).

Applicant's drug abuse was not recent and he has demonstrated an intent to refrain from drug abuse in the future by the most important means: by not using drugs for an extended period of time. His use had declined significantly over the years anyhow, with the brief increase in response to job and marital stress. Nevertheless, I conclude it unlikely that Applicant will return to marijuana use in the future. Accordingly, I find Guideline H. for Applicant.

Paragraph 1. Guideline H: FOR THE APPLICANT

Subparagraph a: For the Applicant

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant.

1. Required by Executive Order 10865, as amended, and Department of Defense Directive 5220.6, dated January 2, 1992--and amended by Change 3 dated 16 February 1996 (Directive).

2. The boiler-plate of which purports to cite Applicant drug representations during a subject interview.

3. Although the interrogatories ask for any drug use, the question is ambiguous in the context of the claimed DSS interview. Applicant used marijuana, but not since before his clearance application.

4. A factor which I give less weight because Applicant was 35 years old in 2000