ISCR Case 17-03191

Case Headnote

ISCR Case No. 17-03191

deniedDec 17, 2018· Hon. Roger C. Wesley· hearing

Summary

A 59-year-old software engineer was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The denial stemmed from a significant history of drug involvement, including marijuana use from approximately 1974 until September 2016, with at least three instances occurring in 2016 while holding a security clearance. The applicant was diagnosed with marijuana use in February 2017 and received an unsatisfactory evaluation in 2016 for violating company policy regarding marijuana use, leading to placement on a performance action plan.

The applicant's criminal record included multiple arrests and charges. These included charges for possession of marijuana and drug paraphernalia in September 2016 and November 1997, and felony possession and distribution of marijuana in October 1985, for which he served nine months in jail. Other charges included engaging in construction without a license in July 1999 and February 1998 (the latter also involving felony forgery), violation of a protective order in March 1996, and various other offenses dating back to 1979, such as burglary, battery, and threatening a witness.

Despite some efforts toward rehabilitation, the judge found insufficient evidence of sustained rehabilitation and ongoing concerns regarding the applicant's reliability and trustworthiness. The lengthy history of drug involvement, recent use while cleared, and extensive criminal record contributed to the decision to deny the security clearance.

Why the Applicant Was Denied

The applicant had a lengthy history of drug involvement, including recent use while holding a security clearance.
Insufficient evidence of rehabilitation was presented, raising concerns about the applicant's reliability and trustworthiness.
The applicant's criminal history included multiple arrests and convictions, which contributed to doubts about his judgment.

Conditions Referenced

Disqualifying

DC ¶ 25(a)raisedAny Substance Misuse
DC ¶ 25(c)raisedIllegal Possession of a Controlled Substance
DC ¶ 25(f)raisedAny Illegal Drug Use While Granted Access to Classified Information
DC ¶ 31(a)raisedA Pattern of Minor Offenses
DC ¶ 31(b)raisedEvidence of Criminal Conduct

Mitigating

MC ¶ 26(d)appliedSatisfactory Completion of a Prescribed Drug Treatment ProgramThe applicant received a favorable prognosis from his substance abuse evaluator.
MC ¶ 32(a)rejectedSo Much Time Has Elapsed Since the Criminal Behavior HappenedThe applicant's recent drug use in 2016 prevents full application of this condition.
MC ¶ 31(d)rejectedEvidence of Successful RehabilitationInsufficient evidence of sustainable mitigation was presented.

Key Rule Quoted

“[S]ecurity-clearance determinations should err, if they must, on the side of denials.”
— Department of the Navy v. Egan, 484 U.S. 518, 531 (1988)

Procedural Posture

SOR issuedNov 6, 2017
Answer filedDec 27, 2017
Hearing heldJun 5, 2018
Decision dateDec 17, 2018

Cite For

Insufficient Evidence of Rehabilitation Under Guideline H
Pattern of Drug Involvement Impacting Security Clearance Eligibility
Consideration of Past Criminal Conduct in Security Clearance Decisions

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a	Each of the allegations covered in Guidelines H and J are incorporated.	For Applicant	Unspecified Personal Conduct	—	Unknown	—	—	—
3.b	Allegations covered by paragraphs 3.b-3.c covering allegations of receipt of unsatisfactory evaluation in 2016 for violating company policy for using marijuana and placement on his company’s performance action plan due to his arrest for marijuana possession.	For Applicant	Unspecified Personal Conduct	—	Unknown	—	—	—
3.c	specific text not stated in this decision	For Applicant	Unspecified Personal Conduct	—	Unknown	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

3.a

Each of the allegations covered in Guidelines H and J are incorporated.

For Applicant

Unspecified Personal Conduct

—

Unknown

—

3.b

Allegations covered by paragraphs 3.b-3.c covering allegations of receipt of unsatisfactory evaluation in 2016 for violating company policy for using marijuana and placement on his company’s performance action plan due to his arrest for marijuana possession.

For Applicant

Unspecified Personal Conduct

—

Unknown

—

3.c

specific text not stated in this decision

For Applicant

Unspecified Personal Conduct

—

Unknown

—

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant allegedly used marijuana with varying frequency from approximately 1974 until September 2016.	Against Applicant	MarijuanaWHILE CLEARED	Regular	Admitted	—	—	—
1.b	Applicant allegedly sold and purchased marijuana from approximately 1981 until 1985.	Against Applicant	Drug Distribution or Dealing	Not Applicable	Admitted	—	—	—
1.c	Applicant allegedly used marijuana at least three times in 2016 while holding a security clearance.	Against Applicant	MarijuanaWHILE CLEARED	Occasional	Admitted	—	—	—
1.d	Applicant was diagnosed with a condition described as marijuana use in February 2017 by a licensed clinical psychologist.	For Applicant	Drug Diagnosed Disorder	Not Applicable	Admitted	—	—	—

Allegation

Finding

Substance / event

Use level

Response

Disqualifying (¶25)

Mitigating applied (¶26)

Mitigation

1.a

Applicant allegedly used marijuana with varying frequency from approximately 1974 until September 2016.

Against Applicant

MarijuanaWHILE CLEARED

Regular

Admitted

—

1.b

Applicant allegedly sold and purchased marijuana from approximately 1981 until 1985.

Against Applicant

Drug Distribution or Dealing

Not Applicable

Admitted

—

1.c

Applicant allegedly used marijuana at least three times in 2016 while holding a security clearance.

Against Applicant

MarijuanaWHILE CLEARED

Occasional

Admitted

—

1.d

Applicant was diagnosed with a condition described as marijuana use in February 2017 by a licensed clinical psychologist.

For Applicant

Drug Diagnosed Disorder

Not Applicable

Admitted

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant allegedly was charged with possession of marijuana and possession of drug paraphernalia in September 2016.	Against Applicant	Drug Related Criminal Charge	Charged Not Convicted	Admitted	—	—	—
2.b	Applicant allegedly engaged in construction trade without a license and proof of insurance in July 1999.	For Applicant	Unspecified Criminal Conduct	Dismissed or Nolle Prossed	Denied	—	—	—
2.c	Applicant allegedly was charged with felony forgery and engaging in construction trade without a license in February 1998.	For Applicant	Fraud or Deception Criminal	Convicted	Denied	—	—	—
2.d	Applicant allegedly was charged with possession of marijuana and drug paraphernalia in November 1997.	Against Applicant	Drug Related Criminal Charge	Charged Not Convicted	Admitted	—	—	—
2.e	Applicant allegedly was charged with violation of a protective order in March 1996.	For Applicant	Domestic Violence	Charged Not Convicted	Denied	—	—	—
2.f	Applicant allegedly was charged with fighting in a public place in August 1987.	For Applicant	Unspecified Criminal Conduct	Charged Not Convicted	Denied	—	—	—
2.g	Applicant allegedly was charged with felony possession and distribution of marijuana in October 1985 for which he served nine months in jail.	Against Applicant	Drug Related Criminal Charge	Convicted	Admitted	—	—	—
2.h	Applicant allegedly was charged with burglary, possession of marijuana, and receiving stolen property in March 1980.	Against Applicant	Trespassing or Burglary	Charged Not Convicted	Denied	—	—	—
2.i	Applicant allegedly was charged with threatening a witness, battery on a person, and misdemeanor vandalism in May 1979.	For Applicant	Assault or Battery	Charged Not Convicted	Denied	—	—	—
2.j	Applicant allegedly was charged with burglary in March 1979.	For Applicant	Trespassing or Burglary	Charged Not Convicted	Denied	—	—	—
2.k	Information set forth in paragraph 1.a-1.c of Guideline H. (low confidence)	Unknown	Unspecified Criminal Conduct	—	Unknown	—	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

2.a

Applicant allegedly was charged with possession of marijuana and possession of drug paraphernalia in September 2016.

Against Applicant

Drug Related Criminal Charge

Charged Not Convicted

Admitted

—

2.b

Applicant allegedly engaged in construction trade without a license and proof of insurance in July 1999.

For Applicant

Unspecified Criminal Conduct

Dismissed or Nolle Prossed

Denied

—

2.c

Applicant allegedly was charged with felony forgery and engaging in construction trade without a license in February 1998.

For Applicant

Fraud or Deception Criminal

Convicted

Denied

—

2.d

Applicant allegedly was charged with possession of marijuana and drug paraphernalia in November 1997.

Against Applicant

Drug Related Criminal Charge

Charged Not Convicted

Admitted

—

2.e

Applicant allegedly was charged with violation of a protective order in March 1996.

For Applicant

Domestic Violence

Charged Not Convicted

Denied

—

2.f

Applicant allegedly was charged with fighting in a public place in August 1987.

For Applicant

Unspecified Criminal Conduct

Charged Not Convicted

Denied

—

2.g

Applicant allegedly was charged with felony possession and distribution of marijuana in October 1985 for which he served nine months in jail.

Against Applicant

Drug Related Criminal Charge

Convicted

Admitted

—

2.h

Applicant allegedly was charged with burglary, possession of marijuana, and receiving stolen property in March 1980.

Against Applicant

Trespassing or Burglary

Charged Not Convicted

Denied

—

2.i

Applicant allegedly was charged with threatening a witness, battery on a person, and misdemeanor vandalism in May 1979.

For Applicant

Assault or Battery

Charged Not Convicted

Denied

—

2.j

Applicant allegedly was charged with burglary in March 1979.

For Applicant

Trespassing or Burglary

Charged Not Convicted

Denied

—

2.k

Information set forth in paragraph 1.a-1.c of Guideline H. (low confidence)

Unknown

Unspecified Criminal Conduct

—

Unknown

—

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Case Profile

Summary

Why the Applicant Was Denied

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

ANALYSIS

FORMAL FINDINGS

CONCLUSION