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ISCR Case 16-03639.h1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date6/1/2018
Statusdenied
LevelHEARING
TypeSTANDARD ISCR
Related decisionSee the appeal decision (Case 16-03639.a1) →
Participants
Judge: Nichole L. Noel
Applicant Representation: Pro Se
Guidelines Evaluated
- Guideline DSexual Behavior · Unknown Outcome
- Guideline EPersonal Conduct · Unknown Outcome
- Guideline JCriminal Conduct · Unknown Outcome

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Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
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ISCR Case 16-03639.h1denied

Case Headnote

ISCR Case No. 16-03639.h1

deniedJun 1, 2018· Hon. Nichole L. Noel· hearing

Summary

A 36-year-old federal contractor was denied a security clearance due to concerns under Guidelines D (Sexual Behavior), E (Personal Conduct), and J (Criminal Conduct). The denial stemmed from a history of illegal drug use, criminal conduct, and the intentional falsification of a previous security clearance application.

Specifically, the applicant admitted to using marijuana from 1997 to 2014, including after being granted access to classified information in 2006. This prolonged drug use, coupled with two alcohol-related criminal convictions in 2016, demonstrated a pattern of poor judgment and disregard for regulations.

Furthermore, the applicant intentionally falsified his 2006 security clearance application, which prevented the government from fully assessing his security worthiness. The judge concluded that the applicant failed to mitigate concerns regarding his reliability and trustworthiness, leading to the denial of access to classified information.

Why the Applicant Was Denied

Applicant has a 17-year history of illegal drug use, including marijuana, which raises questions about reliability and trustworthiness.
Applicant was convicted of two alcohol-related crimes in 2016, demonstrating a pattern of poor judgment.
Applicant intentionally falsified his 2006 security clearance application, undermining his credibility.

Conditions Referenced

Disqualifying

AG ¶ 25raisedDrug Involvement and Substance Misuse
AG ¶ 30raisedCriminal Conduct
AG ¶ 16raisedPersonal Conduct

Key Rule Quoted

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

Procedural Posture

SOR issuedFeb 2, 2017
Answer filed—Applicant requested a decision without a hearing.
Hearing held—No hearing was conducted.
Decision dateJun 1, 2018

Cite For

Disqualifying Conduct Under Drug Involvement and Substance Misuse Guidelines
Impact of Falsifying a Security Clearance Application on Credibility
Pattern of Criminal Conduct Affecting Security Clearance Eligibility

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 D (Sexual Behavior) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant faced allegations under Guideline D concerning his history of illegal drug use and criminal conduct. The judge found against the applicant on all allegations, concluding that his conduct raised significant concerns about his reliability and trustworthiness, ultimately denying his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
1.a	Applicant admits using marijuana from 1997 to 2014.	Against Applicant	Criminal Sexual Conduct	Admitted	—	—	—
1.b	Applicant's continued use of marijuana after being granted access to classified information in 2006.	Against Applicant	Criminal Sexual Conduct	Admitted	—	—	—
2.a	Applicant intentionally falsified his 2006 security clearance application.	Against Applicant	Criminal Sexual Conduct	Denied	—	—	—
2.b	Applicant's history of illegal drug use and criminal conduct are cross-alleged under the personal conduct guideline.	Against Applicant	Criminal Sexual Conduct	Denied	—	—	—
2.c	Applicant's behavior showed a disregard for the law, regulations, and the fiduciary relationship he voluntarily entered into with the Government.	Against Applicant	Criminal Sexual Conduct	Denied	—	—	—
2.d	Applicant's omissions in his previous adjudication prevented the Government from properly vetting his overall security worthiness.	Against Applicant	Criminal Sexual Conduct	Denied	—	—	—
3.a	Applicant was convicted of two alcohol-related crimes in 2016.	Against Applicant	Criminal Sexual Conduct	Admitted	—	—	—

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

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 all allegations under Guideline E, citing a history of illegal drug use and intentional falsification of his security clearance application. The applicant failed to mitigate concerns regarding his personal conduct, leading to a denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a–2.d	4 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 J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge ruled against the applicant on all allegations related to criminal conduct, citing a history of illegal drug use and alcohol-related offenses. The applicant's failure to mitigate these concerns led to a denial of security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	Criminal Conduct: Applicant was convicted of two alcohol-related crimes in 2016. While the 2016 incidents standing alone would be unlikely to affect a national security eligibility decision, when considered in combination with his other uncharged criminal conduct, almost 20 years of illegal drug use, Applicant has demonstrated a pattern of poor judgment that casts doubt on his ability to maintain access to classified information.	Against Applicant	Drug Related Criminal Charge	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—

Descriptive standardized rendering of a decided public case (Guideline J). 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. 16-03639 ) Applicant for Security Clearance )

For Government: Andre M. Gregorian, Esq., Department Counsel For Applicant: Pro se 06/01/2018 ______________

STATEMENT OF CASE

______________

NOEL, Nichole L., Administrative Judge:

Applicant contests the Department of Defense’s (DOD) intent to deny his eligibility for a security clearance to work in the defense industry. Applicant failed to mitigate concerns related to his history of illegal drug use and criminal conduct. He also intentionally falsified his 2006 security clearance application. Applicant’s continued access to classified information is denied.

Statement of the Case

On February 2, 2017, the DOD issued a Statement of Reasons (SOR) detailing security concerns under the drug involvement and substance misuse, personal conduct, and criminal conduct guidelines.1 DOD adjudicators were unable to find that it is clearly consistent with the national interest to grant Applicant’s security clearance and recommended that the case be submitted to an administrative judge for a determination whether to deny his security clearance. Applicant answered the SOR and requested a decision without a hearing.2 The Government submitted its written case on April 11, 2017. A complete copy of the file of relevant material (FORM) and the Directive were provided to Applicant. He received the FORM on April 18, 2017, He did not respond. The documents appended to the FORM are admitted as Government’s Exhibits (GE) 1 through 6, without objection.

PROCEDURAL MATTERS

While the case was pending decision, the Director of National Intelligence (DNI) issued the Security Executive Agent Directive 4, establishing the National Security Adjudicative Guidelines (AG) applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position. The 2017 AG superseded the AG implemented in September 2006, and they are effective for any adjudication made on or after June 8, 2017. Accordingly, I have applied them in this case.

FINDINGS OF FACT

Applicant, 36, has worked for his employer, a federal contractor, since September 2001. He started as an apprentice and has been promoted to an area manager position. Applicant applied for a security clearance in March 2006, disclosing monthly marijuana use from October 1998 to September 2001. He was granted access to classified information in June 2006.3

In the years following his 2006 security clearance application, Applicant married, fathered two children, and became a homeowner. He completed his most recent security clearance application in April 2016 and disclosed two alcohol-related criminal incidents. In February 2016, after consuming alcohol, Applicant was arrested and ultimately convicted of leaving the scene of an accident. He was arrested again in March 2016 for driving under the influence of alcohol (DUI). However, the DUI charge was dismissed and Applicant was convicted of the lesser charge of failure to submit to alcohol testing. He self-reported both incidents to his facility security officer.4

Applicant also reported that he used marijuana a few times per month from December 1997 until 2007.5 After 2007, Applicant reported that he continued to use the drug occasionally until August 2014. He explains that his marijuana use was purely recreational and asserts that he has not used the drug since 2014, citing his children, now ages 7 and 10, as the reason for his discontinued use. While he acknowledges that the 2006 security clearance application may have inaccurate information regarding his drug use, the inaccuracy was not done deliberately, but was his best recollection when he completed the application. He denies consuming marijuana to the point of impaired judgment or reporting to work under the influence of drug. Applicant states that he does not intend to use marijuana in the future.6

POLICIES

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 to be used 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, administrative judges apply the guidelines in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), 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 the 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 the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that adverse 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

The record contains evidence to support the Government’s prima facie case that Applicant engaged in disqualifying conduct under the drug involvement, criminal conduct, and personal conduct guidelines. He did not provide sufficient evidence to mitigate any of the alleged concerns.

Drug Involvement and Substance Misuse

Applicant admits using marijuana from 1997 to 2014. The illegal use of controlled substances can raise questions about an individual’s reliability and trustworthiness, 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.7 Applicant’s 17-year history of drug use is disqualifying on its own and is exacerbated by his continued use of marijuana after being granted access to classified information in 2006.8

Even though Applicant’s last reported use of marijuana occurred two years ago, the conduct is not mitigated by the passage of time. Applicant’s use of illegal drugs did not occur under unusual circumstances, each use occurred in a social setting. The record does not contain any evidence to indicate that Applicant’s use of illegal drugs was caused by substance dependence or abuse issues, emotional or physical problems, or any form of duress. It was recreational and intentional. Applicant has expressed his intent not to use drugs in the future. However, he has not presented anything to guarantee this statement, such as a signed statement of intent with revocation for any future violations. Given his pattern of disregard of federal law and his responsibilities as a clearance holder, Applicant’s promises to abstain from future marijuana use carry little weight. Applicant’s history of illegal drug use continues to reflect negatively on his ongoing security worthiness.

Criminal Conduct

Criminal conduct creates doubts about a person’s judgment, reliability, and trustworthiness. It also calls in to questions a person’s ability or willingness to comply with law, rules, and regulations.9 Applicant was convicted of two alcohol-related crimes in 2016. While the 2016 incidents standing alone would be unlikely to affect a national security eligibility decision, when considered in combination with his other uncharged criminal conduct, almost 20 years of illegal drug use, Applicant has demonstrated a pattern of poor judgment that casts doubt on his ability to maintain access to classified information.10 The conduct is not mitigated for the reasons given in the drug involvement and substance misuse section, above. Given his long history of criminal conduct, Applicant has not presented sufficient evidence of successful rehabilitation to assuage any concerns that he may engage in criminal conduct, either alcohol or drug related, in the future.

Furthermore, Applicant’s eventual self-reporting of his illegal drug use and his contemporaneous reporting of his two alcohol-related criminal conduct does not change the security significance of the underlying conduct. Here, Applicant engaged in an activity he knew to be in direct contravention of federal law and his responsibilities as an individual holding a security clearance. His behavior showed a disregard for the law, regulations, and the fiduciary relationship he voluntarily entered into with the Government when he was granted access to classified information.

Personal Conduct

Applicant’s history of illegal drug use and criminal conduct are cross-alleged under the personal conduct guideline. The alleged misconduct is independently disqualifying under those specific guidelines and has been considered under the relevant disqualifying and mitigating conditions as discussed above. However, the allegation that Applicant falsified his 2006 security clearance application warrants scrutiny under the personal conduct guideline.

On his 2006 security clearance application, Applicant reported that he used marijuana from 1997 to 2001. On his April 2016 application, Applicant reported his marijuana use as being continuous from 1997 to 2014. He claims that the disclosures on his 2006 application were his best recollection at the time. This claim is not credible. It is unlikely that Applicant’s memory of his drug use between 2001 and 2006 is more accurate a decade later than it was at the time he completed the 2006 application. Furthermore, the truthful disclosures on the 2016 application do not immunize the earlier falsification from a subsequent security review.

An applicant is expected to provide full, frank, and candid disclosures to the Government at all times. Anything less provides a rational basis for a finding against an applicant’s security worthiness. Applicant’s disclosure on his 2006 security clearance application was not due to an inaccurate memory, it was an intentional and material misstatement of fact on a document used to determine national security eligibility.11 A statement is material when the concealed information would have the potential to influence a decision or action. Applicant’s omissions in his previous adjudication prevented the Government from properly vetting his overall security worthiness. It is unlikely that Applicant would have been granted access to classified information, if he admitted contemporaneous drug use.

WHOLE PERSON CONCEPT

Based on the record, I have significant reservations about Applicant’s current security worthiness. In reaching this conclusion, I have also considered the whole- person factors at AG ¶ 2(d). The purpose of the security clearance adjudication is to make “an examination of a sufficient period of a person’s life to make an affirmative determination that the person is an acceptable security risk.”12 During the current adjudication, Applicant revealed conduct that supports a negative whole-person assessment of his judgment, reliability, and trustworthiness. His behavior also casts doubt on his ability to follow rules and regulations and demonstrates a disregard for his fiduciary relationship with the government. Accordingly, his continued 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, Drug Involvement and Substance Misuse: AGAINST APPLICANT

Subparagraphs 1.a – 1.b: Against Applicant

Paragraph 2, Personal Conduct: AGAINST APPLICANT

Subparagraphs 2.a – 2.d: Against Applicant

Paragraph 3, Criminal Conduct: AGAINST APPLICANT

Subparagraphs 3.a: Against Applicant

CONCLUSION

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

________________________ Nichole L. Noel Administrative Judge

FOOTNOTES

1 The DOD CAF acted under Executive Order (EO) 10865, Safeguarding Classified Information within Industry, signed by President Eisenhower on February 20, 1960, as amended; as well as DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program, dated January 2, 1992, as amended (Directive), and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, implemented on September 1, 2006. 2 GE 1. 3 GE 3. 4 GE 1-3, 5-6. 5 On the April 2016 security clearance application, Applicant reported that he used marijuana, “recreational[ly] a few times per month until 1007, then rarely used at all.” In his August 2016 background interview, Applicant acknowledged the “1007” date was a typo and should have read 2007. GE 4. 6 GE 1, 3-4. 7 See, AG ¶ 24. 8 AG ¶¶ 25(a) and (f). 9 AG ¶ 30. 10 AG ¶ 31(a). 11 AG ¶ 16(a). 12 AG ¶ 2(d).