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ISCR Case 17-01594.h1 — CASE

ISCR Case 17-01594.h1denied

Case Headnote

ISCR Case No. 17-01594.h1

deniedJul 1, 2017· Hon. Edward W. Loughran· hearing

Summary

A 43-year-old defense contractor was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline F (Financial Considerations), and Guideline H (Drug Involvement). The Statement of Reasons cited the applicant's marijuana use between approximately 1993 and May 2016, sometimes on a regular basis. Additionally, the applicant intentionally falsified his August 2016 SF 86 by failing to report this marijuana use.

Financial concerns included an unpaid judgment for $4,219, a $2,730 delinquent debt, and twelve delinquent medical debts. While the applicant successfully mitigated these financial issues, his history of drug use and the intentional falsification of his security questionnaire remained unmitigated.

The denial was based on the intentional falsification of the SF 86 regarding marijuana use, which raised questions about the applicant's reliability and trustworthiness. Furthermore, the applicant's personal conduct, including a prior misdemeanor conviction and the failure to disclose relevant information, was not mitigated, leading to the ultimate denial of the security clearance.

Why the Applicant Was Denied

The applicant intentionally falsified his SF 86 by omitting his marijuana use.
The applicant's history of marijuana use raised questions about his reliability and trustworthiness.
The applicant's personal conduct, including a prior misdemeanor conviction and failure to disclose relevant information, was not mitigated.

Conditions Referenced

Disqualifying

E2.aappliedPersonal Conduct
H1.aappliedDrug Involvement and Substance Misuse

Mitigating

F2.aappliedFinancial Considerations

Key Rule Quoted

“Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

Procedural Posture

SOR issuedMay 26, 2017
Answer filedJul 3, 2017Applicant elected to proceed without a hearing.
Hearing held—Written record only.
Decision dateJan 16, 2018

Cite For

Intentional Falsification of Security Questionnaires Under Guideline E
History of Drug Involvement Impacting Security Clearance Under Guideline H
Mitigation of Financial Issues Under Guideline F

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 under Guideline E. The applicant intentionally falsified his SF 86 by failing to disclose his marijuana use, which raised significant concerns about his reliability and trustworthiness. The judge concluded that the applicant did not mitigate these concerns, resulting in a denial of eligibility for a security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a	Applicant intentionally falsified his August 2016 SF 86 when he failed to report his marijuana use.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	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 F · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant mitigated the financial concerns under Guideline F, despite a history of financial problems including an unpaid judgment and delinquent debts. The applicant's claims regarding the resolution of these debts were accepted, leading to a favorable ruling on all financial allegations.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
2.a	unpaid judgment for $4,219 $4,219	For Applicant	Judgment Against Applicant	Unknown	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(b) conditions largely beyond the person’s control; acted responsibly (d) good-faith effort to repay or otherwise resolve debts	—
2.b	$2,730 delinquent debt $2,730	For Applicant	Unspecified Financial	Unknown	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(b) conditions largely beyond the person’s control; acted responsibly (d) good-faith effort to repay or otherwise resolve debts	—
2.c	12 delinquent medical debts	For Applicant	Medical Debt	Unknown	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(b) conditions largely beyond the person’s control; acted responsibly (d) good-faith effort to repay or otherwise resolve debts	—
2.d–2.n	11 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)	For Applicant			—	—	—

Descriptive standardized rendering of a decided public case (Guideline F). 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's history of marijuana use raised significant security concerns under Guideline H. Despite the applicant's claims of having stopped using marijuana and his intention not to use it in the future, the judge concluded that the applicant's past behavior and failure to disclose his drug use on the SF 86 undermined his reliability and trustworthiness. Consequently, the judge ruled against the applicant on the drug involvement allegations.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant smoked marijuana, sometimes on a regular basis, between about 1993 and May 2016.	Against Applicant	Marijuana	Regular	Admitted	(a) any substance misuse	—	—

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. 17-01594 ) Applicant for Security Clearance )

For Government: Tara R. Karoian, Esq., Department Counsel For Applicant: Pro se

02/27/2018 ______________

STATEMENT OF CASE

______________

LOUGHRAN, Edward W., Administrative Judge:

Applicant mitigated the security concerns under Guideline F (financial considerations), but he did not mitigate the security concerns under Guidelines E (personal conduct) and H (drug involvement and substance misuse). Eligibility for access to classified information is denied.

Statement of the Case

On May 26, 2017, the Department of Defense (DOD) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines E, F, and H. Applicant responded to the SOR on July 3, 2017, and elected to have the case decided on the written record in lieu of a hearing.

The Government’s written case was submitted on August 31, 2017. A complete copy of the file of relevant material (FORM) was provided to Applicant, who was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the security concerns. Applicant received the FORM on September 24, 2017. As of November 13, 2017, he had not responded. The case was assigned to me on January 16, 2018. The Government exhibits included in the FORM are admitted in evidence.

FINDINGS OF FACT

Applicant is a 43-year-old employee of a defense contractor. He was unemployed from February 2016 until August 2016, when he began work for his current employer. He attended college for a period without earning a degree. He married in 1994 and divorced in 2012. He has three children.1

The financial allegations in the SOR include an unpaid judgment for $4,219; a $2,730 delinquent debt; and 12 delinquent medical debts. However, the four medical debts alleged in SOR ¶¶ 1.dthrough 1.gare not established. The September 2016 credit report does not report a balance for any of those debts. The eight remaining medical debts total $1,670. Those eight debts, the judgment, and the $2,730 debt are all listed on a September 2016 credit report.2

Applicant stated, without supporting documentation, that the judgment was paid through garnishment of his wages. He is listed as a co-maker on the $2,730 delinquent debt. He indicated the account was used to buy furniture when he was married, and it was his ex-wife’s responsibility to pay the debt. He stated the medical debts were for his child’s medical treatment and should have been paid by health insurance.3

Applicant smoked marijuana, sometimes on a regular basis, between about 1993 and May 2016. He would stop for about 60 to 90 days when applying for a new job, which was not always successful because he failed a pre-employment drug test in 2002.4

Applicant intentionally falsified a Questionnaire for National Security Positions (SF 86) in August 2016, when he failed to disclose his marijuana use. He was interviewed for his background investigation in February 2017. He admitted his marijuana use. He stated that he did not report his marijuana use on the SF 86 because he knew that he would meet with an investigator and he would explain his use then. He also stated that he did not think drug use was relevant. He stated that he had not used marijuana since about May 2016, and he did not intend to use it in the future because he had grown out of it.5

In response to the SOR allegations under Guidelines E and H, Applicant admitted both allegations and added the comments: “I think it should be noted that I have never been arrested in my life for any reason what so ever.” That statement may be correct, but it is somewhat misleading. Applicant was criminally charged with displaying a disabled person’s placard when the disabled person (his child) was not in the vehicle. He was convicted of a misdemeanor criminal offense in 2009 after a jury trial. His sentence included probation and a fine. Warrants were also issued against Applicant in 2010 and 2012 for failure to appear (FTA) to address traffic citations. He paid the underlying fines and the warrants were dismissed.6

POLICIES

This case is adjudicated 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 (AG), which became effective on June 8, 2017.

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(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.”

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

Guideline H, Drug Involvement and Substance Misuse

The security concern for drug involvement and substance misuse is set out 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.

The guideline notes several conditions that could raise security concerns under AG ¶ 25. The following is potentially applicable in this case:

(a) any substance misuse (see above definition).

Applicant used marijuana between about 1993 and May 2016. The above disqualifying condition is applicable.

AG ¶ 26 provides conditions that could mitigate security concerns. The following are potentially applicable:

(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;

(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.

There is no evidence that Applicant has used marijuana since May 2016. He stated that he did not intend to use it in the future because he had grown out of it. However, he stopped smoking marijuana in the past and then resumed. He failed to divulge his drug use on his SF 86, and he did not think drug use was relevant. Applicant’s conduct continues to cast doubt on his reliability, trustworthiness, and good judgment. His well-established pattern of illegal drug use is not mitigated. AG ¶ 26(a) is not applicable, and AG ¶ 26(b) is partially applicable.

Guideline E, Personal Conduct

The security concern for personal conduct is set out in AG ¶ 15, as follows:

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 clearance investigative or adjudicative processes.

AG ¶ 16 describes conditions that could raise a security concern and may be disqualifying. The following disqualifying condition is potentially applicable:

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

Applicant intentionally falsified his August 2016 SF 86 when he failed to report his marijuana use. AG ¶ 16(a) is applicable. AG ¶ 17 provides conditions that could mitigate security concerns. The following are potentially applicable:

(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts;

(b) the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by advice of legal counsel or of a person with professional responsibilities for advising or instructing the individual specifically concerning security processes. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully;

(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;

(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; and

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.

Applicant disclosed his marijuana use during his background interview in February 2017. It is positive that Applicant revealed his marijuana use in his interview, but that cannot be considered a “prompt” correction. Applicant’s conduct continues to cast doubt on his current reliability, trustworthiness, and good judgment. Personal conduct concerns remain despite the presence of some mitigation.

Guideline F, Financial Considerations

The security concern for financial considerations is set out in AG ¶ 18:

Failure to live within one’s means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified or sensitive information. Financial distress can also be caused or exacerbated by, and thus can be a possible indicator of, other issues of personnel security concern such as excessive gambling, mental health conditions, substance misuse, or alcohol abuse or dependence. An individual who is financially overextended is at greater risk of having to engage in illegal or otherwise questionable acts to generate funds. The guideline notes several conditions that could raise security concerns under AG ¶ 19. The following are potentially applicable in this case:

(a) inability to satisfy debts; and

Applicant has a history of financial problems, including delinquent debts. The evidence is sufficient to raise the above disqualifying conditions.

The medical debts alleged in SOR ¶¶ 1.dthrough 1.gare not established. Those allegations are concluded for Applicant.

Conditions that could mitigate the financial considerations security concerns are provided under AG ¶ 20. The following are potentially applicable:

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

(b) the conditions that resulted in the financial problem were largely beyond the person’s control (e.g., loss of employment, a business downturn, unexpected medical emergency, a death, divorce or separation, clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances;

(c) the individual has received or is receiving financial counseling for the problem from a legitimate and credible source, such as a non-profit credit counseling service, and there are clear indications that the problem is being resolved or is under control;

(d) the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts; and

(e) the individual has a reasonable basis to dispute the legitimacy of the past-due debt which is the cause of the problem and provides documented proof to substantiate the basis of the dispute or provides evidence of actions to resolve the issue.

I accept Applicant’s statements that the judgment has been satisfied, his ex-wife was supposed to pay the furniture debt, and the medical debts were for his child’s medical treatment and should have been paid by health insurance. Any remaining financial issues are insufficient to be a security concern and are 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 the applicant’s conduct and all relevant 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. I have incorporated my comments under Guidelines E, F, and H in my whole-person analysis.

Overall, the record evidence leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance. I conclude Applicant mitigated the financial considerations security concerns, but he did not mitigate the personal conduct and drug involvement and substance misuse security concerns.

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

Subparagraph 1.a: Against Applicant

Paragraph 2, Guideline F: For Applicant

Subparagraphs 2.a-2.n: For Applicant

Paragraph 3, Guideline E: Against Applicant

Subparagraph 3.a: Against Applicant

CONCLUSION

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.

________________________ Edward W. Loughran Administrative Judge

FOOTNOTES

1 Items 3, 5. 2 Items 2, 4, 5. 3 Items 2, 4, 5. 4 Items 2, 5. 5 Items 2, 3. 6 Items 2, 5. The SOR did not allege the convictions and the warrants. Any matter that was not alleged in the SOR will not be used for disqualification purposes. It may be considered when putting Applicant’s statement in context, in the application of mitigating conditions, and during the whole-person analysis.