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ISCR Case 16-02047.h1 — CASE

ISCR Case 16-02047.h1denied

Case Headnote

ISCR Case No. 16-02047.h1

deniedJul 17, 2017· Hon. Thomas M. Crean· hearing

Summary

The applicant, a 52-year-old welder, faced security concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement) due to a history of cocaine use from 1993 to 2012 and a false statement on her security clearance application. The judge found that the applicant failed to mitigate these concerns, leading to a denial of her security clearance.

Under Guideline E (Personal Conduct) and Guideline H (Drug Involvement), the Statement of Reasons alleged the following: Applicant intentionally omitted reference to her substance misuse on her 2003 SCA (2.a). Applicant used cocaine from April 1993 until June 2012 (1.a). Applicant used cocaine while holding a security clearance granted in September 2005 (1.b).

The judge denied the clearance. The government raised disqualifying conditions H.25(a), H.25(c), H.25(f), H.25(g), E.16(a). The decision turned on the following: The applicant admitted to using cocaine weekly from April 1993 until June 2012, including while holding a security clearance; She provided false information on her security clearance application regarding her drug use; The applicant did not present evidence of rehabilitation or a commitment to abstain from drug use.

Why the Applicant Was Denied

The applicant admitted to using cocaine weekly from April 1993 until June 2012, including while holding a security clearance.
She provided false information on her security clearance application regarding her drug use.
The applicant did not present evidence of rehabilitation or a commitment to abstain from drug use.

Conditions Referenced

Disqualifying

H.25(a)raisedAny Substance Misuse
H.25(c)raisedIllegal Possession of a Controlled Substance
H.25(f)raisedIllegal Drug Use While Granted Access to Classified Information
H.25(g)raisedExpressed Intent to Continue Drug Involvement
E.16(a)raisedDeliberate Omission, Concealment, or Falsification of Relevant Facts

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedAug 15, 2016
Answer filedSep 8, 2016
Hearing held—Applicant elected to have the matter decided on the written record.
Decision dateJul 17, 2017

Cite For

Denial of Security Clearance Due to Drug Involvement and Personal Conduct Issues
Importance of Truthful Disclosure in Security Clearance Applications
Failure to Demonstrate Rehabilitation or Commitment to Abstain From Drug Use as a Basis for Denial

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

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on the personal conduct allegations, specifically regarding a deliberate omission of substance misuse on a security clearance application. The applicant admitted to the omission but failed to provide sufficient evidence to mitigate the concerns raised by this conduct, leading to a denial of eligibility for access to classified information.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant intentionally omitted reference to her substance misuse on her 2003 SCA.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	Admitted	(a) deliberate omission, concealment, or falsification on a security form	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on allegations of drug involvement, specifically for using cocaine weekly from April 1993 until June 2012 and for using cocaine while holding a security clearance. The applicant admitted to the allegations but failed to provide sufficient evidence of rehabilitation or intent to abstain from drug use. Consequently, the applicant's eligibility for access to classified information was denied.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used cocaine from April 1993 until June 2012.	Against Applicant	Cocaine	Regular	Admitted	—	—	—
1.b	Applicant used cocaine while holding a security clearance granted in September 2005.	Against Applicant	CocaineWHILE CLEARED	Regular	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 16-02047 ) ) ) Applicant for Security Clearance

For Government :Rhett Petcher, Esq., Department Counsel For Applicant: Pro se

07/17/2017 ______________

STATEMENT OF CASE

______________

CREAN, THOMAS M., Administrative Judge:

Based on a review of the pleadings, Applicant failed to mitigate drug involvement and personal conduct security concerns. Eligibility for access to classified information is denied.

Statement of the Case

Applicant submitted an Electronic Questionnaire for Investigations Processing (e- QIP) on May 7, 2015, to retain a security clearance required for a position with a defense contractor. (Item 2) After an interview conducted by a security investigator from the Office of Personnel Management (OPM) on September 14, 2015 (PSI), the Department of Defense (DOD) could not make the affirmative findings required to issue a security clearance. (Item 4) On August 15, 2016, DOD issued Applicant a Statement of Reasons (SOR) detailing security concerns for drug involvement (Guideline H) and personal conduct (Guideline E). (Item 1) The action was taken under Executive Order (EO) 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) effective in the Department of Defense on September 1, 2006. On June 8, 2017, new AGs were implemented and are effective for decisions issued after that date.1

Applicant answered the SOR on September 8, 2016. She admitted all of the allegations under both guidelines. Applicant elected to have the matter decided on the written record. (Item 2) Department Counsel submitted the Government’s written case on April 1, 2016. Applicant received a complete file of relevant material (FORM) on October 11, 2016, and she was provided the opportunity to file objections and to submit material to refute, extenuate, or mitigate the disqualifying conditions. Applicant did not provide additional information in response to the FORM. The case was assigned to me on June 1, 2017.

Procedural Issues

Applicant was advised in the FORM that the summary of the PSI (Item 4) was not authenticated and could not be considered over his objection. She was further advised that she could make any corrections, additions, or deletions to the summary to make it clear and accurate, and she could object to the admission of the summary as not authenticated by a Government witness. She was additionally advised that if no objection was raised to the summary, the Administrative Judge could determine that she waived any objection to the admissibility of the summary. Applicant did not respond to the FORM. Since Applicant did not respond to the FORM, she did not raise any objection to consideration of the PSI. I will consider information in the PSI in my decision.

FINDINGS OF FACT

After a thorough review of the case file, I make the following findings of fact. Applicant is a 52-year-old 1983 high school graduate who has been employed as a welder for a DOD contractor since May 2002. She married in April 1987 and divorced in April 1988. She married again in November 1991 and divorced in July 1997. She has no children. She has not served in the military. (Item 2, e-QIP, dated May 7, 2015; Item 4, PSI, dated September 14, 2015)

The SOR alleges, and Applicant admits, drug involvement security concerns for using cocaine from April 1993 until June 2012 (SOR 1.a), and while possessing a security clearance granted in September 2005 (SOR 1.b) Applicant completed and certified as correct a security clearance application (SCA) on October 16, 2003. Applicant responded ”no” to question 2 on the SCA asking if since the age of 16 or in the last seven years had she used a controlled substance. Applicant admits in response to the SOR that she purchased and used cocaine weekly from April 1993 until June 2012, and that her response to question 27 was false. (SOR 2.a) Applicant reported on her May 7, 2015 e-QIP in response to question 23 concerning illegal drug use that she used cocaine once a month from April 1993 until May or June 2012. (Item 2) She admitted in the September 14, 2015 PSI that she purchased and used $20 of cocaine every week from April 1993 until May 2012. She admits she is still friends and in contact with one of the people that used cocaine with her. (Item 4, PSI, at 5) On the May 7, 2015 e-QIP, Applicant noted in response to question 25 on the e-QIP concerning investigations and clearances that she was granted eligibility for access to classified information in September 2005.

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the Administrative Guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful in evaluating an applicant’s eligibility for access to classified information.

These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s over-arching adjudicative goal is a fair, impartial and common sense decision. According to AG ¶ 2(a), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision.

The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture.

Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by department counsel. . .” The applicant has the burden of persuasion to obtaining a favorable security decision.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the 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.

Section 7 of EO 10865 provides that decision shall be “in terms of eh national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1 (b) (listing multiple prerequisites for access to classified and sensitive information).

ANALYSIS

Drug Involvement

The illegal use of a controlled substance 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. (AG ¶ 24)

Applicant admits that she purchased and used cocaine weekly from April 1993 until June 2012 while being eligible for access to classified information. Cocaine is a controlled substance. These facts raises the following Drug Involvement Disqualifying Conditions under AG ¶ 25:

(a) any substance misuse; (c) illegal possession of a controlled substance, including cultivation, processing manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; (f) any illegal drug use while granted access to classified information or holding a sensitive position; and (g) expressed intent to continue drug involvement and substance misuse, or failure to clearly and convincingly commit to discontinue such misuse.

I considered the following Drug Involvement Mitigating Conditions under AG ¶ 26:

(a) the behavior happened so long ago, was so infrequent, or happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; (b) the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome this problems, 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;

(3) providing a signed statement of intent to abstain from all drug involvement and substance misuse, acknowledging that any further involvement or misuse is grounds for revocation of national security eligibility:

(c) abuse of prescription drugs was after a severe or prolonged illness during which the drugs were prescribed, and abuse has since ended; and

(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.

While there is no "bright line" rule for determining when conduct is recent or sufficient time has passed since the incidents, a determination whether past conduct affects an individual's present reliability and trustworthiness must be based on a careful evaluation of the totality of the evidence. If the evidence shows a significant period of time has passed without evidence of drug involvement, there must be an evaluation whether that period of time demonstrates changed circumstances or conduct sufficient to indicate a finding of reform or rehabilitation.

None of the mitigating conditions apply. Applicant admits to purchasing and using cocaine weekly from April 1983 until June 2012. Her misuse was frequent, recent, and deliberate. Based on the available evidence, I am not convinced she has stopped misusing cocaine. Even if she has stopped, she could easily use cocaine again since she misused the illegal substance for almost 20 years and only reported stopping recently. Her misuse could happen again.

Applicant was granted eligibility for access to classified information in September 2005, so she misused a control substance after being granted access to classified information. She stated an intent not to misuse controlled substances again, but she did not execute an agreement to that effect. The only evidence of her intent is her statement not to use or abuse illegal drugs in the future. Applicant did not present any information or evidence of substance abuse counseling or treatment.

Applicant admits to still having contact with at least one person that used illegal drugs with her. There is no evidence of successful completion of a drug rehabilitation program to include aftercare. Since Applicant provided no documentation to verify she no longer uses illegal drugs, successfully completed a drug abuse treatment program, or her intent not to use illegal drugs in the future, she has failed to mitigate drug involvement security concerns.

Personal Conduct

Personal conduct is a security concern because 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 and sensitive information. Of special interest is any failure to provide truthful and candid answers during national security investigative or adjudicative processes. (AG ¶ 15). Personal conduct is always a security concern because it asks whether the person’s past conduct justifies confidence that the person can be trusted to properly safeguard classified or sensitive information. Authorization for a security clearance depends on the individual providing correct and accurate information. If a person conceals or provides false information, the security clearance process cannot function properly to ensure that granting access to classified or sensitive information is in the best interest of the United States Government.

While there is a security concern for a deliberate omission, concealment, or falsification of a material fact in any written document or oral statement to the Government when applying for a security clearance, not every omission, concealment, or inaccurate statement is a falsification. A falsification must be deliberate and material. It is deliberate if done knowingly and willfully with intent to deceive.

Applicant’s failure to list her substance misuse on the SCA raises a security concern under Personal Conduct Disqualifying Condition AG ¶ 16(a) (deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine eligibility or trustworthiness, or award fiduciary responsibilities).

Applicant admitted that she intentionally omitted reference to her substance misuse on her 2003 SCA. She fully disclosed the substance misuse on her May 7, 2015 e-QIP. I find Applicant deliberately failed to provide correct and accurate information concerning her substance misuse on her 2003 SCA.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(d):

(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.

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.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant admitted substance misuse from April 1993 until June 2012 while being eligible for access to classified information. She deliberately failed to note her substance misuse on her October 2003 SCA. Overall, these facts leave me with questions and doubts about Applicant’s judgment, reliability, trustworthiness, and eligibility and suitability for access to classified information. For all these reasons, I conclude that Applicant has not mitigated drug involvement and personal conduct security concerns. Eligibility for access to classified information is denied.

FORMAL FINDINGS

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 APPLICANT

Subparagraphs 1.a – 1.b: Against Applicant

Paragraph 2, Guideline E AGAINST APPLICANT

Subparagraph 2.a : Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant Applicant eligibility for a security clearance. Eligibility for access to classified information is denied.

_________________ TH0MAS M. CREAN Administrative Judge

FOOTNOTES

1 I considered the previous AGs, effective September 1, 2006, as well as the new AGs, effective June 8, 2017. My decision would be the same if the case were considered under the previous AGs.