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ISCR Case 16-03067.h1 — CASE

ISCR Case 16-03067.h1denied

Case Headnote

ISCR Case No. 16-03067.h1

deniedSep 18, 2017· Hon. Elizabeth M. Matchinski· hearing

Summary

A 30-year-old engineer was denied a security clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from his past misuse of prescription opiates and his misrepresentation of this drug use on his September 2015 security clearance application (SF 86).

Specifically, the applicant falsified his SF 86 by denying intentional misuse of prescription drugs in the last seven years and denying that he had ever voluntarily sought counseling or treatment for drug use. In fact, he had misused unprescribed opiates multiple times between December 2008 and January 2014, and received treatment for diagnosed opium addiction and severe depression from December 2011 to January 2014.

While the applicant demonstrated treatment for his opiate addiction and depression, the judge found that his lack of candor on the application was not mitigated. His admission to illegal opiate use and misrepresentation on the SF 86 raised significant concerns about his reliability and trustworthiness, leading to the denial of his clearance.

Why the Applicant Was Denied

The applicant's lack of candor regarding his drug abuse on the security clearance application was not mitigated.
The applicant admitted to using opiates illegally and misrepresenting this on his SF 86, which raised significant concerns about his reliability and trustworthiness.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedSubstance Misuse
AG ¶ 25(c)raisedIllegal Possession of a Controlled Substance

Mitigating

AG ¶ 26(a)appliedBehavior Happened so Long AgoThe applicant's drug abuse occurred several years prior and was infrequent.
AG ¶ 26(b)appliedAcknowledgment and Steps TakenThe applicant voluntarily sought treatment for his drug involvement.

Key Rule Quoted

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

Procedural Posture

SOR issuedDec 7, 2016
Answer filedJan 4, 2017
Hearing heldMay 24, 2017
Decision date—

Cite For

Lack of Candor in Security Clearance Applications Under Guideline E
Drug Involvement Concerns Under Guideline H
Mitigating Conditions Related to Acknowledgment and Treatment of Substance Misuse

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 allegations of personal conduct under Guideline E, specifically regarding falsification on his security clearance application. The applicant was determined to have intentionally misrepresented his drug use and treatment history, which raised significant concerns about his candor and reliability.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Falsified his September 2015 security clearance application (SF 86) by responding negatively to inquiries concerning whether he had intentionally misused any prescription drugs in the last seven years	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	Admitted	(a) deliberate omission, concealment, or falsification on a security form (c) credible adverse information across areas supporting a whole-person concern	—	—
2.b	Falsified his September 2015 security clearance application (SF 86) by responding negatively to inquiries concerning whether he had ever voluntarily sought counseling or treatment for use of a drug or controlled substance	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	Admitted	(a) deliberate omission, concealment, or falsification on a security form (c) credible adverse information across areas supporting a whole-person concern	—	—

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 that the applicant misused prescription opiates that were not prescribed for him from approximately December 2008 to December 2011 and received treatment for opium addiction and severe depression from December 2011 to January 2014. However, the judge ruled against the applicant on the basis of personal conduct related to his lack of candor on his security clearance application, leading to a denial of the security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	misused prescription opiates that were not prescribed for him on multiple occasions between December 2008 and January 2014	For Applicant	Prescription Opioid Misuse	Frequent	Denied	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	received treatment from December 2011 to January 2014 for diagnosed opium addiction and severe depression	For Applicant	Drug Diagnosed Disorder	Not Applicable	Denied	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—

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: ) ) (Redacted) ) ISCR Case No. 16-03067 ) Applicant for Security Clearance )

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

09/18/2017 ______________

STATEMENT OF CASE

______________

MATCHINSKI, Elizabeth M., Administrative Judge:

Applicant used opiates that were not prescribed for him from approximately December 2008 to December 2011. He received treatment from about September 2011 to November or December 2014 for opium addiction and severe depression. The drug involvement security concerns are mitigated by the passage of time with no intention of any future drug involvement. Personal conduct security concerns raised by his lack of candor about his drug abuse on his security clearance application are not mitigated. Clearance is denied.

Statement of the Case

On December 7, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing the security concerns under Guideline H, drug involvement, and Guideline E, personal conduct, and explaining why it was unable to find it clearly consistent with the national interest to grant or continue security clearance eligibility for him. The DOD CAF took the action under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information effective within the DOD on September 1, 2006.

On January 4, 2017, Applicant answered the SOR allegations and requested a hearing before an administrative judge from the Defense Office of Hearings and Appeals (DOHA). On April 10, 2017, the case was assigned to me to conduct a hearing to determine whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. On April 19, 2017, I scheduled a hearing for May 24, 2017.

While this case was pending final adjudication, the Director of National Intelligence (DNI) issued Security Executive Agent Directive 4 establishing the National Security Adjudicative Guidelines (AG) applicable to all covered individuals who require national security eligibility or eligibility to hold a sensitive position. On May 18, 2017, I provided Applicant with a copy of the updated Directive incorporating the new AG which supersede the adjudicative guidelines implemented in September 2006 and are effective for any adjudication made on or after June 8, 2017. I advised him that I would be adjudicating his security clearance eligibility under the new AG,1 and that I would consider a request to leave the record open after his hearing for additional information if necessary in light of this change in the AG.

I convened the hearing as scheduled on May 24, 2017. Two Government exhibits (GEs 1-2) and seven Applicant exhibits (AE A-G) were admitted into evidence without objection. A letter forwarding discovery of the Government’s exhibits was marked as a hearing exhibit (HE 1) for the record but not entered into evidence. Applicant testified, as reflected in a transcript (Tr.) received on June 2, 2017. Applicant did not request that the record be held open for post-hearing submissions.

Summary of SOR Allegations

The SOR alleges under Guideline H that Applicant misused prescription opiates that were not prescribed for him on multiple occasions between December 2008 and January 2014 (SOR ¶ 1.a) and that he received treatment from December 2011 to January 2014 for diagnosed opium addiction and severe depression (SOR ¶ 1.b). Under Guideline E, Applicant is alleged to have falsified his September 2015 security clearance application (SF 86) by responding negatively to inquiries concerning whether he had intentionally misused any prescription drugs in the last seven years (SOR ¶ 2.a) and whether he had ever voluntarily sought counseling or treatment for use of a drug or controlled substance (SOR ¶ 2.b).

When Applicant responded to the SOR, he admitted that he had used opioids (synthetically-derived painkillers) but never opium or opiates. He denied that he misused opioids during the time period alleged and explained that he had not misused any prescription painkillers since 2011 nor engaged in any illegal drug use since then. He denied any intention of future involvement and attributed his drug use to a mental health issue that has since been resolved. Applicant admitted that he had been treated for depression and prescribed Suboxone. Applicant admitted that he had “misrepresented” his use of prescription painkillers on his security clearance application, but he denied any intention to deceive. He explained that he had not realized when he completed his SF 86 that his abuse had occurred after 2008 and, not being sure of his last date of use, “[he] did not want to make a positive statement of drug use on a speculative date.” Applicant denied that he deliberately failed to disclose his treatment in that he disclosed information about his treatment provider on his form. He explained that he sought counseling “as a means of improving [his] mental health as [he] was suffering from depression and self-medicating with opioids.” He did not regard his counseling as a drug-treatment program.

FINDINGS OF FACT

After considering the pleadings, exhibits, and transcript, I make the following findings of fact.

Applicant is a 30-year-old engineer with a bachelor’s degree awarded in January 2009. He began working for his current employer, a defense contractor, initially as a subcontractor in November 2010. After 2.5 years, he was hired as an employee. He has not married. (GE 1; Tr. 30-31.) In January 2016, Applicant began taking graduate courses in computer science twice weekly in the evenings while working during the day for his employer. (GE 2; AEs F, G.) As of the spring semester 2017, he had a cumulative grade point average of 3.96 on a 4.00 scale. (AE G.) He expects to finish his master’s degree in the fall semester of 2018. (Tr. 30-31.) He has not previously held a DOD clearance. He requires a secret clearance to remain on his current program. (Tr. 32.)

On September 16, 2015, Applicant completed and certified to the accuracy of a Questionnaire for National Security Positions (SF 86) incorporated within an Electronic Questionnaire for Investigations Processing (e-QIP). He responded “Yes” to the following inquiry: “In the last seven (7) years, have you consulted with a health care professional regarding an emotional or mental health condition or were you hospitalized for such a condition?” He provided the name of his psychologist and indicated that he had counseling or treatment from approximately September 2011 to approximately November 2014. Applicant responded “No” to all the inquiries concerning illegal use of drugs or drug activity, including the following: “In the last seven (7) years, have you illegally used any drugs or controlled substances?” and “In the last seven (7) years have you intentionally engaged in the misuse of prescription drugs, regardless of whether or not the drugs were prescribed for you or someone else?” He also responded “No” to whether he had ever voluntarily sought counseling or treatment as a result of his drug use. (GE 1.)

During Applicant’s background investigation, information was developed that implicated Applicant in substance abuse. On January 19, 2016, Applicant was interviewed by an authorized investigator for the Office of Personnel Management (OPM). After Applicant verified his negative response on his SF 86 to any illegal use of drugs or drug activity in the last seven years, he was informed that information had been developed that he was a substance abuser from December 2011 to December 2014. After denying any illegal drug use a second time, Applicant elaborated that he began using opiates in 2009 after surgery. After he exhausted his prescribed supply of painkillers, he purchased opiates from friends. He continued to use opiates without a prescription on a biweekly basis with friends in social settings until sometime in 2011. Feeling dependent on opiates and self- medicating for depression, Applicant indicated that he sought counseling for his depression with the mental health practitioner listed on his SF 86, and the clinician prescribed Suboxone for him. Applicant asserted that he stopped using opiates in 2011 on a date that he could not recall. In response to why he did not list his misuse of opiates on his SF 86, Applicant stated that he thought his drug use was beyond the seven-year scope of the inquiry. He added that he would not have completed the SF 86 if he knew his substance abuse would have been raised as an issue. Instead, he would have waited to complete the SF 86 until his drug use was beyond the scope of the inquiry. (GE 2.)

Applicant responded to DOHA drug interrogatories on November 4, 2016. When asked to affirm whether he received drug abuse treatment, counseling, or supportive treatment in part for opiate addiction from about December 2011 to about December 2014, Applicant answered “Yes” but explained that he did not have access to his clinical records to validate that he completed his treatment. He added, “I do not use now and stopped taking my opiate addiction medication.” He stated that he sought treatment on his own when he recognized that he was addicted. After reviewing the OPM investigator’s report of his January 2016 interview, Applicant indicated that the report was inaccurate in that it could be inferred that he sought treatment for other than depression. He explained that Suboxone was prescribed for opiate addiction after his initial sessions. He added that he had no intention of obtaining a security clearance when he began this program and that he would have chosen to wait some time to show that his drug addiction was no longer an issue. Applicant made no other corrections to the report of his interview. (GE 2.)

At his hearing, Applicant testified that he first used opiates when he had surgery right after college in 2008 or 2009 and that he used them sporadically and without a valid prescription. (Tr. 33.) He then indicated that he used opiates (Percocet, Vicodin, or oxycodone depending on availability) to address a “severe mental health crisis,” although he later indicated that there was also a “recreational component” to his drug abuse. He knew that his use of prescription opiates without a valid prescription was illegal. He testified that he used the opiates once or twice a week when he was with a friend from whom he purchased them illegally, spending “probably thousands.” (Tr. 27, 33-37, 54.) When asked whether he still associates with that friend, Applicant responded, “No. Okay, yeah, I’d prefer not to say if you don’t mind.” (Tr. 35.) Applicant attended high school with this person. He denied any in-person contact with him since “like, 2010, 2011.” Applicant’s friend obtained the drugs from a dealer who acquired the drugs from out-of-state prescription-medication clinics. Applicant was present on some occasions when his friend purchased opiates from the dealer, although not since 2010 or 2011. Applicant testified that he was still abusing opiates when he sought treatment for his depression in the fall of 2011, after he had a breakdown during a biomechanical engineering class.2 (Tr. 36-39.) Applicant maintained that he stopped using opiates a month or so after he began his counseling and informed his psychologist that he had an opiate problem, and she prescribed a low dose of the opiate antagonist Suboxone. Applicant denied any illegal use of drugs since then. (Tr. 40-41.) He stopped taking the Suboxone three years after the drug was first prescribed. (Tr. 55.) He stopped seeing the psychologist in 2014 in part because she continued to prescribe Suboxone for him when he thought he no longer needed it. (Tr. 56.) Applicant’s family members are not aware that he had abused prescription drugs, although Applicant claims that he would be “okay with telling them now.” (Tr. 57.)

About his failure to disclose his misuse of prescription opiates on his SF 86, Applicant testified on direct examination as follows:

So when I filled out the e-QIP, I just didn’t do due diligence. That’s the honest truth, and I had used prescription drugs in the 2010 to—well, I had used them probably early 2011, but when I filled it out, I wasn’t thinking about time frame. It had been a number of years, maybe five years, and not having any records of my drug use, I erred on the side of caution and didn’t say I used them in the last seven years. Was that an intelligent decision, perhaps not, but that was the call I made at the time. (Tr. 26-27.)

When confronted on cross-examination with his admission of having used opiates illegally to sometime in 2011, which would have been within seven years of his September 2015 SF 86, Applicant reiterated that he was not sure when he had last used opiates and that he had to “dig back into [his] records to find exactly when [he] went to see [his psychologist] and determine, you know, [his] drug use timeline.” (Tr. 43-44.) When asked to explain why he was able to provide an estimated start date of September 2011 for his treatment but not able to provide beginning and end dates for his opiate use, Applicant had no answer other than he was not sure of the time, and there was no record of the time for his drug use. (Tr. 45.)

Character and Work References

Applicant’s annual performance evaluations for 2013 through 2015 reflect that he has met or exceeded established targets in all areas. He received an overall rating of “Fully Competent Performance” for 2013 (AE C) and 2014 (AE D), and the highest rating of “Exceptional Performance” for 2015. Applicant’s direct supervisor noted in 2015 that Applicant is “always willing and able to share his time and knowledge to the benefit of the team.” (AE E.) In a separate character reference letter (AE A), Applicant’s supervisor vouched for Applicant’s dedication and conscientious attitude toward his work. Applicant’s knowledge of logistics tools had proven invaluable to the team. She described Applicant as hardworking, ambitious, and committed to developing a quality product. (AE A.) A co-worker of Applicant’s for the past two years has developed a friendship with Applicant outside of work. This co-worker has had a security clearance for over 15 years and has not witnessed or heard of any behavior by Applicant blemishing his character or questioning his ability to safeguard information. Applicant has been instrumental in the success of their program and can be counted on to help every member of the team. (AE B.)

POLICIES

The U.S. Supreme Court has recognized the substantial discretion the Executive Branch has in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are required to be considered 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 overall adjudicative goal is a fair, impartial, and commonsense 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 national security eligibility will be resolved in favor of the 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. 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 ultimate burden of persuasion to obtain 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 that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that 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.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline H: Drug Involvement and Substance Misuse

The security concerns about drug involvement and substance misuse are articulated in AG ¶ 24:

The illegal use of controlled substances, 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.

Applicant began the illegal use of prescription opiates Percocet, Vicodin, or oxycodone shortly after he graduated from college in December 2008. He continued to use the drugs regularly, once or twice a week, until a month or so into his treatment for depression and opiate addiction. On his SF 86, he provided estimated dates of September 2011 to November 2014 for his mental health treatment. Applicant affirmed in November 2016 that he had drug treatment from about December 2011 to about December 2014. Mental health records that may have clarified the dates of Applicant’s drug use are not in evidence. Based on the record available, the evidence fails to establish that he misused opiates from December 2008 to January 2014 as alleged in the SOR. It may reasonably be concluded that Applicant abused opiates for three years, from approximately December 2008 to December 2011. Applicant was prescribed Suboxone, an opiate antagonist, a month or so into his treatment with his psychologist. There is no evidence that he continued to abuse opiates while taking Suboxone. During the three years of his opiate abuse, Applicant paid a friend “thousands” for the opiates, knowing that they were acquired illegally from a drug dealer. Disqualifying conditions AG ¶ 25(a), “any substance misuse (see above definition),” and AG ¶ 25(c), “illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia,” apply.

The regularity of Applicant’s opiate abuse, his admission to the OPM investigator that he felt dependent on the opiates when he was self-medicating with opiates, and his treatment with Suboxone medication, suggest that he may have been addicted to opiates. Applicant indicated in November 2016 that he was prescribed Suboxone for opiate addiction. Yet, at his hearing he denied knowing whether he had been diagnosed with substance use disorder or whether that diagnosis had been established. There are no medical records in evidence, and the anecdotal references to a diagnosis of addiction fall short of establishing AG ¶ 25(d), “diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of substance use disorder.” AG ¶ 25(e), “failure to successfully complete a drug treatment program prescribed by a duly qualified medical or mental health professional,” could apply in that Applicant apparently ceased his counseling with the psychologist in part because she continued to prescribe Suboxone that he felt he no longer needed, but it was also three years into his counseling, which he maintains was for mental health issues primarily and not drug treatment.

With no clear evidence implicating Applicant in the illegal use of opiates after 2011, AG ¶ 26(a) applies in that it happened “so long ago.” AG ¶ 26(a) provides:

(a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment.

At the same time, his abuse of opiates up to twice a week for approximately three years, in knowing disregard of its illegality, raises considerable doubts about his judgment, reliability, and trustworthiness.

Applicant is credited with voluntarily obtaining counseling when he felt he was dependent on opiates to self-medicate for his depression and with continuing in counseling for about three years. AG ¶ 26(b) provides for mitigation when an individual acknowledges his drug involvement and has taken steps to address it:

(b) the individual acknowledges his or her drug involvement and substance misuse, provides evidence of actions taken to overcome this problem, 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; and

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

A comment in an OPM investigator’s report that Applicant was implicated in substance abuse from December 2011 to December 2014 falls considerably short of establishing that Applicant used opiates after 2011. Applicant denies any abuse of opiates after 2011. The dates provided by the investigator coincide with Applicant’s treatment, which included prescribed Suboxone. If the investigator had information contradicting Applicant’s report of no opiate abuse after 2011, it was not presented in evidence. Five plus years of no substance misuse is sufficient to establish a pattern of abstinence. Applicant testified that he has had no in-person contact with the friend involved in his opiate abuse since 2011, although when asked whether he was still associated with that friend, Applicant responded, “No. Okay, yeah, I’d prefer not to say if you don’t mind.” However, his record of academic and work accomplishments since 2015 tends to substantiate that Applicant’s abuse of opiates is behind him. While I have some concerns about Applicant’s credibility because of his demonstrated lack of candor about his opiate involvement as outlined in Guideline E, infra, I cannot presume that he is continuing to abuse opiates without evidence of drug involvement or substance misuse.

Guideline E: Personal Conduct

The concerns about personal conduct are articulated in AG ¶ 15:

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 or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes.

Applicant repeatedly used opiates without a valid prescription from approximately December 2008 to December 2011, and he did not report that substance misuse on his September 2015 SF 86. He responded negatively on the form to all of the drug inquiries, including questions about whether he had intentionally misused any prescription drugs in the last seven years and whether he had voluntarily sought counseling or treatment as a result of his use of a drug or a controlled substance. It is simply not credible for him to claim that he lacked sufficient recall of the dates of his opiate abuse to not know that his drug use was within the seven-year scope of the relevant drug inquiries. He told an OPM investigator that he abused opiates from 2009 to sometime in 2011. Both the beginning and end dates for his illegal involvement with opiates were within seven years of his SF 86.

Moreover, although Applicant reported his counseling on his SF 86 in response to the psychological and emotional health inquiries, he answered “No” to whether he had ever voluntarily sought counseling or treatment as a result of his use of a drug. Even assuming that he sought treatment primarily for mental health concerns, he knew he was self- medicating his depression with opiates. In response to DOHA interrogatories, Applicant stated, “I handled my addiction on my own with no need for external pressure. I recognized my addiction, sought treatment, and have not done opiates since.” In assessing Applicant’s credibility on this issue, I also cannot ignore Applicant’s initial lack of candor during his OPM interview about his opiate abuse. Disclosure of his opiate abuse came only after he was advised by the OPM investigator that information had surfaced implicating him in substance abuse and after he had verified for a second time his negative response to the SF 86 drug inquiry. Applicant’s motivation for concealing his illegal use of opiates and his treatment for his opiate abuse is seen in his admission that he would have chosen to wait to apply for a clearance until such time as his addiction no longer presented a security issue. Disqualifying condition AG ¶ 16(a) applies. It provides:

(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 security clearance eligibility or trustworthiness, or award fiduciary responsibilities.

None of the mitigating conditions under AG ¶ 17 fully apply. Concerning AG ¶ 17(a), “the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts,” Applicant twice verified his negative response to the drug-use inquiry before he admitted that he had used opiates illegally. Applicant’s SF 86 falsification was too recent, and, because it violates 18 U.S.C. § 1001 too serious to implicate AG ¶ 17(c), which provides:

(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment.

Perhaps more significantly from a trustworthiness standpoint going forward, Applicant’s ongoing failure to acknowledge the intentional nature of his SF 86 falsifications reflects a lack of reform. AG ¶ 17(d) is not reasonably established by his hearing testimony that he “erred on the side of caution” by denying any drug activity when he completed his SF 86. AG ¶ 17(d) provides:

(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that contributed to untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur.

The personal conduct security concerns are not adequately mitigated.

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 his conduct and all relevant circumstances in light of the nine adjudicative process factors listed at AG ¶ 2(d).3 In making the overall commonsense determination required under AG ¶ 2(a), I have to consider Applicant’s mental health issues as a contributor to his opiate abuse. Even so, Applicant’s opiate abuse had a recreational component as well. Now that he has dealt with his mental health issues and taken Suboxone for approximately three years to address his illegal opiate use, he is not likely to resume his drug activity. He has established a good record at work and is held in high regard by his manager and a co-worker. It is unlikely that Applicant would be able to perform so well at work and in his graduate studies if he was abusing opiates with any regularity.

However, Applicant raised considerable doubts about whether his representations can be fully trusted. He asks that I believe he did not give enough thought to the purpose or implications of his SF 86. Whether he was lying when he completed his SF 86 as the evidence overwhelmingly suggests, or he failed to give enough importance to the SF 86 to ensure the accuracy of his responses, he has yet to demonstrate the sound judgment that would be required of him should he be granted security clearance eligibility. It is well settled that once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or renewal of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990). The Government must be able to rely on those persons holding security clearance eligibility to fulfill their responsibilities consistent with laws, regulations, and policies, and without regard to their personal interests. For the reasons discussed, Applicant has raised enough doubt in that regard to where I am unable to conclude that it is clearly consistent with the national interest to grant him eligibility for a security clearance.

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: FOR APPLICANT

Subparagraphs 1.a-1.b: For Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT

Subparagraphs 2.a-2.b: Against Applicant

CONCLUSION

In light of all of the circumstances, 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.

_____________________ Elizabeth M. Matchinski Administrative Judge

FOOTNOTES

1 Application of the AGs that were in effect as of the issuance of the SOR would not change my decision in this case. 2 The college’s degree audit for his graduate study indicates that he started his program in the spring semester of 2016. (AE F.) He earned his undergraduate degree in January 2009 after finishing his studies in December 2008. When asked about his education during his January 2016 interview, Applicant did not indicate that he took any classes in 2011. He graduated from high school in June 2004, from college in late 2008, and began his graduate study in January 2016. 3 The factors under AG ¶ 2(d) are as follows:

(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.