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ISCR Case 16-01047.h1 — CASE

ISCR Case 16-01047.h1denied

Case Headnote

ISCR Case No. 16-01047.h1

deniedNov 7, 2017· Hon. Michael H. Leonard· hearing

Summary

A 30-year-old network engineer was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The applicant had a history of illegal steroid use and purchase from 2008 to December 2013. This drug involvement raised disqualifying conditions, though mitigating conditions were applied, including a three-year period of abstinence and disassociation from drug-using associates.

However, the primary reason for denial stemmed from the applicant's personal conduct. During the security clearance process, the applicant made a series of false statements regarding his illegal steroid use. This dishonesty raised significant concerns about his reliability and trustworthiness.

Ultimately, the judge found the applicant's false statements to be serious misconduct. No mitigating conditions were applied to the applicant's personal conduct under Guideline E, leading to the denial of his security clearance application.

Why the Applicant Was Denied

The applicant made a series of false statements about his illegal steroid use during the security clearance process.
The judge found that the applicant's dishonesty raised significant concerns about his reliability and trustworthiness.
No mitigating conditions applied to the applicant's personal conduct under Guideline E.

Conditions Referenced

Disqualifying

AG ¶ 15raisedPersonal Conduct
AG ¶ 25(a)raisedDrug Involvement
AG ¶ 25(c)raisedIllegal Possession of a Controlled Substance

Mitigating

AG ¶ 26(a)rejectedBehavior Happened Long AgoWhile the applicant had not used steroids since December 2013, the judge found the past behavior was serious and not minor.
AG ¶ 26(b)rejectedAcknowledgment of Drug InvolvementThe applicant's false statements during the security clearance process undermined any acknowledgment of past drug involvement.

Key Rule Quoted

“It is well-established law that no one has a right to a security clearance.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedAug 8, 2016
Answer filedAug 15, 2016
Hearing heldJan 27, 2017
Decision dateNov 7, 2017

Cite For

Serious Misconduct Due to False Statements During the Security Clearance Process Under Guideline E
Denial of Security Clearance Based on Past Drug Involvement Under Guideline H
Importance of Honesty and Candor in Security Clearance Applications

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 that the applicant made a series of false statements regarding his illegal steroid use during the security clearance process, which raised concerns about his reliability and trustworthiness. The judge ruled against the applicant on the personal conduct allegations under Guideline E, concluding that the applicant did not mitigate the concerns raised by his conduct.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	specific text not stated in this decision	For Applicant	Unspecified Personal Conduct	—	Unknown	—	—	—
2.b	Applicant made a series of false statements about his illegal steroid use during the security clearance process.	Against Applicant	Lack of Candor in InterviewFOUND DELIBERATE	Other	Admitted	—	—	—
2.c–2.d	2 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant		—		—	—	—

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 had a history of illegal steroid use from 2008 to 2013 but had not used or purchased steroids in over three years. The judge ruled in favor of the applicant on the drug involvement allegations, indicating that the applicant had taken steps to abstain from substance misuse. However, the overall decision was denied due to concerns about the applicant's reliability and trustworthiness stemming from false statements made during the security clearance process.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The applicant illegally used and purchased steroids, intermittently, beginning in 2008 to about December 2013.	For Applicant	Anabolic Steroid Misuse	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	(a) behavior happened long ago / infrequent / unlikely to recur	Documented Abstinence Period Documented
1.b	The applicant made a series of false statements about his illegal steroid use.	For Applicant	Unspecified Drug Involvement	Unspecified	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. 16-01047 ) ) Applicant for Security Clearance

For Government: Benjamin R. Dorsey, Esq., Department Counsel For Applicant: Pro se

11/07/2017 ______________

STATEMENT OF CASE

______________

LEONARD, Michael H., Administrative Judge:

Applicant contests the Defense Department’s intent to deny or revoke his eligibility for access to classified information. He illegally used and purchased steroids, intermittently, beginning in 2008 to about December 2013. He has not used or purchased steroids in more than three years and he no longer associates with those that do. But in 2014 he made a series of false statements about his illegal steroid use. Accordingly, this case is decided against Applicant.

Statement of the Case

Applicant completed and submitted a Questionnaire for National Security Positions (SF 86 format) on August 21, 2014.1 This document is commonly known as a security clearance application. Thereafter, on August 8, 2016, after reviewing the application and the information gathered during a background investigation, the Department of Defense Consolidated Adjudications Facility, Fort Meade, Maryland, sent Applicant a statement of reasons (SOR), explaining it was unable to find that it was clearly consistent with the national interest to grant him eligibility for access to classified information. The SOR is similar to a complaint. It detailed the factual reasons for the action under the security guidelines known as Guideline H for drug involvement and Guideline E for personal conduct.

Applicant answered the SOR on August 15, 2016; he admitted the factual allegations made in the SOR; and he requested a hearing before an administrative judge. The case was assigned to me December 7, 2016. The hearing took place as scheduled on January 27, 2017. The hearing transcript (Tr.) was received on February 7, 2017.

FINDINGS OF FACT

Applicant is a 30-year-old network engineer for a federal contractor. He has worked for his current employer since August 2014. He has never married and has no children. His educational background includes a bachelor’s degree in information systems science. He has a good employment record based on letters of recommendation from two of his direct supervisors.2

Applicant has admitted a history of illegal use and purchase of steroids, intermittently, beginning in 2008 and ending in about 2013. His history of drug involvement and substance misuse was established during the course of a background investigation.3 He also admitted extensive use of steroids during his hearing testimony.4 His history includes a period of abstinence from February 2010 to about April 2012.5 He is uncertain about the details of his usage (e.g., specific dates), but he readily admitted the illegal use and purchase of steroids during the 2008-2013 period.6 He quit using steroids after concluding doing so was no longer worth it along with his desire to obtain a clearance and further his job prospects.7

Applicant made a series of false statements about his illegal use of steroids during the security clearance process. First, in July 2014, during an interview conducted by another governmental agency to determine his access to sensitive compartmented information (SCI), he deliberately falsified facts about his previous steroid use. Second, in August 2014, when he completed his security clearance application, he deliberately understated his usage by claiming that he took a single pill on one occasion in April 2008 in order to help him lose body fat. Third, in November 2014, during an interview conducted during his background investigation, he deliberately understated his usage by claiming that his illegal steroid use was limited to the single month of April 2008.

Applicant has not used or purchased illegal steroids since December 2013, a period of nearly four years. He no longer associates with people involved with the use or purchase of illegal steroids. He was unequivocal in stating that he intends to abstain from all illegal drug involvement and substance misuse.

Law and Policies

This case is adjudicated under Executive Order (E.O.) 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 National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AG), effective June 8, 2017.8

It is well-established law that no one has a right to a security clearance.9 As noted by the Supreme Court in Department of the Navy v. Egan, “the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.”10 Under Egan, Executive Order 10865, and the Directive, any doubt about whether an applicant should be allowed access to classified information will be resolved in favor of protecting national security.

A favorable clearance decision establishes eligibility of an applicant to be granted a security clearance for access to confidential, secret, or top-secret information.11 An unfavorable clearance decision (1) denies any application, (2) revokes any existing security clearance, and (3) prevents access to classified information at any level.12

There is no presumption in favor of granting, renewing, or continuing eligibility for access to classified information.13 The Government has the burden of presenting evidence to establish facts alleged in the SOR that have been controverted.14 An applicant is responsible for presenting evidence to refute, explain, extenuate, or mitigate facts that have been admitted or proven.15 In addition, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision.16

In Egan, the Supreme Court stated that the burden of proof is less than a preponderance of evidence.17 The Appeal Board has followed the Court’s reasoning, and a judge’s findings of fact are reviewed under the substantial-evidence standard.18

DISCUSSION

Under Guideline H for drug involvement and substance misuse, the concern is that:

[t]he illegal use of controlled substances, to include the misuse of prescriptions and non-prescription drugs, and the use of other substances that cause physical or mental impairment or are use 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.19

In analyzing the facts of this case, I considered the following disqualifying and mitigating conditions:

AG ¶ 25(a) any substance abuse;

AG ¶ 25(c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia;

AG ¶ 26(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; and

AG ¶ 26(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 of revocation of national security eligibility.

I have considered the totality of Applicant’s drug involvement and substance misuse during 2008-2013 as reflected in the record evidence. While his steroid use was intermittent and had a period of abstinence, it was also neither minor nor trivial. Nevertheless, more than three years have passed since his last involvement with steroids in December 2013, he no longer associates with people involved with illegal steroids use or purchase, and he has persuaded me that he has no intent to engage in future substance misuse. For all these reasons, the Guideline H matter is decided for Applicant.

Under Guideline E for personal conduct, the concern is that “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 concern is any failure to cooperate or provide truthful and candid information during national security investigative or adjudicative processes.”20 A statement is false if it is made deliberately (knowingly and willfully). An omission of relevant and material information is not deliberate if the person genuinely forgot about it, inadvertently overlooked it, misunderstood the question, or genuinely thought the information did not need to be disclosed.

It is undisputed that Applicant made a series of false statements about his involvement with steroids during the 2014 investigative process.21 Doing so is serious misconduct, and it is not easily explained away or mitigated by the passage of time. I have considered the pertinent mitigating conditions and none apply in Applicant’s favor. For all these reasons, the Guideline E matter is decided against Applicant.

Following Egan and the clearly-consistent standard, I have doubts or concerns about Applicant’s reliability, trustworthiness, good judgment, and ability to protect classified or sensitive information. In reaching this conclusion, I weighed the evidence as a whole and considered if the favorable evidence outweighed the unfavorable evidence or vice versa. I also considered the whole-person concept. Accordingly, I conclude that he did not meet ultimate burden of persuasion to show that it is clearly consistent with the national interest to grant him eligibility for access to classified information.

FORMAL FINDINGS

The formal findings on the SOR allegations are:

Paragraph 1, Guideline H: For Applicant

Subparagraphs 1.a-1.b: For Applicant

Paragraph 2, Guideline E: Against Applicant

Subparagraph 2.a: For Applicant Subparagraphs 2.b, 2.c, and 2.d Against Applicant

CONCLUSION

In light of the record as a whole, it is not clearly consistent with the national interest to grant Applicant access to classified information.

Michael H. Leonard Administrative Judge

FOOTNOTES

1 Exhibit 1. 2 Exhibits A and B. 3 Exhibits 1-4. 4 Tr. 35, 37. 5 Tr. 40-42. 6 Tr. 40-41. 7 Tr. 59-60. 8 The 2017 AG are available at http://ogc.osd.mil/doha. 9 Department of the Navy v. Egan, 484 U.S. 518, 528 (1988) (“it should be obvious that no one has a ‘right’ to a security clearance”); Duane v. Department of Defense, 275 F.3d 988, 994 (10th Cir. 2002) (no right to a security clearance). 10 484 U.S. at 531. 11 Directive, ¶ 3.2. 12 Directive, ¶ 3.2. 13 ISCR Case No. 02-18663 (App. Bd. Mar. 23, 2004). 14 Directive, Enclosure 3, ¶ E3.1.14. 15 Directive, Enclosure 3, ¶ E3.1.15. 16 Directive, Enclosure 3, ¶ E3.1.15. 17 Egan, 484 U.S. at 531. 18 ISCR Case No. 01-20700 (App. Bd. Dec. 19, 2002) (citations omitted). 19 AG ¶ 24. 20 AG ¶ 15. 21 AG ¶¶ 16(a) and (b).