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ISCR Case 06-19569.h1 — CASE

ISCR Case 06-19569.h1denied

Case Headnote

ISCR Case No. 06-19569.h1

deniedApr 20, 2007· Hon. Paul J. Mason· hearing

Summary

A 33-year-old project engineer was denied a security clearance due to concerns under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct). The applicant used marijuana from approximately 1994 until early 2005 and unprescribed hydro-codeine from January 2004 to June 2005.

His criminal history included an October 1994 arrest for marijuana possession. In May 1998, he was charged with multiple offenses related to marijuana, including conspiracy to sell/deliver and possession with intent to sell/distribute, ultimately pleading guilty to a misdemeanor for maintaining a vehicle/dwelling for a controlled substance. A handgun charge from August 2005 was canceled, but his explanation for having the weapon was deemed inadequate.

The judge found that the applicant's long history of drug use and criminal conduct demonstrated poor judgment and unreliability. The applicant's unsubstantiated evidence did not mitigate his drug involvement, nor did he adequately explain his criminal behavior or provide sufficient evidence of rehabilitation. Consequently, the security clearance was denied.

Why the Applicant Was Denied

The applicant had a long history of drug use, including marijuana and hydro-codeine, which raised concerns under Guideline H.
The applicant's criminal conduct, including multiple drug-related convictions, demonstrated poor judgment and unreliability under Guideline J.
The applicant failed to provide sufficient evidence of rehabilitation or a change in behavior to mitigate the concerns raised by his past actions.

Conditions Referenced

Disqualifying

H.25.araisedAny Drug Abuse
H.24.braisedIllegal Use of a Drug or Use of a Legal Drug in a Manner That Deviates From Approved Medical Direction
J.31.araisedA Single Serious Crime or Multiple Lesser Offenses

Key Rule Quoted

“Drug abuse raises questions about a person’s willingness to comply with drug laws and other laws, as well as security rules and regulations.”

Procedural Posture

SOR issuedSep 26, 2006
Answer filedOct 3, 2006Requested decision on the record.
Hearing held—
Decision dateApr 20, 2007

Cite For

Denial Based on History of Drug Use Under Guideline H
Impact of Criminal Conduct on Security Clearance Eligibility Under Guideline J
Insufficient Evidence of Rehabilitation to Mitigate Past Drug Abuse and Criminal Behavior

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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations related to drug involvement. The applicant admitted to using marijuana and hydro-codeine over several years, with a history of drug-related criminal conduct. The judge concluded that the applicant's drug use and associated convictions raised significant concerns about his reliability and trustworthiness, leading to the denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana at varying frequency from approximately 1994 until early January 2005.	Against Applicant	Marijuana	Frequent	Admitted	—	—	—
1.b	Before ending his marijuana use in 2005, he began his unprescribed use of hydro-codeine in January 2004, and used hydro-codeine until June 2005.	Against Applicant	Prescription Opioid Misuse	Regular	Admitted	—	—	—
1.c	In October 1994, Applicant was arrested for possession of marijuana.	Against Applicant	Drug Distribution or Dealing	Not Applicable	Admitted	—	—	—
1.d	In May 1998, Applicant was charged with conspiracy to sell/deliver controlled substance marijuana, possession with intent to sell/distribute marijuana, possession of marijuana, and maintaining a vehicle/dwelling of controlled substance.	Against Applicant	Drug Distribution or Dealing	Not Applicable	Admitted	—	—	—
1.e	Applicant pled guilty to a misdemeanor of maintaining a vehicle/dwelling of a controlled substance.	Against Applicant	Drug Distribution or Dealing	Not Applicable	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). 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 found against the applicant on all allegations under Guideline J, indicating a pattern of criminal conduct that raised concerns about the applicant's judgment and reliability. The applicant's history of drug-related offenses and a handgun charge contributed to the decision to deny the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant's criminal behavior from 1994 to August 2005 represents a pattern of adverse conduct that activates CC DC 31. (a) (a single serious crime or multiple lesser offenses) applies.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
2.b	Though his handgun charge was cancelled in August 2005, his failure to adequately explain why he had the gun in his automobile precludes him from mitigating the pattern of criminal behavior under the criminal conduct guideline.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—

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

SYNOPSIS

KEYWORD: Drugs; Criminal Conduct

DIGEST: Applicant used marijuana at varying frequency from 1994 to early January 2005. Before ending his marijuana use in 2005, he began his unprescribed use of hydro-codeine in January 2004, and use hydro-codeine until June 2005. His unsubstantiated evidence in mitigation does not overcome his history of drug use under the drug involvement guideline. Though his handgun charge was cancelled in August 2005, his failure to adequately explain why he had the gun in his automobile precludes him from mitigating the pattern of criminal behavior under the criminal conduct guideline. Clearance is denied.

CASENO: 06-19569.h1

DATE: 04/20/2007

DATE: April 20, 2007

) ) In Re: ) ) ISCR Case No. 06-19569 ---------------------- ) SSN: ------------ ) ) Applicant for Security Clearance )

DECISION OF ADMINISTRATIVE JUDGE PAUL J. MASON

APPEARANCES

SYNOPSIS

Applicant used marijuana at varying frequency from approximately 1994 until early January 2005. Before ending his marijuana use in 2005, he began his unprescribed use of hydro-codeine in January 2004, and used hydro-codeine until June 2005. His unsubstantiated evidence in mitigation does not overcome his history of drug use under the drug involvement guideline. Though his handgun charge was cancelled in August 2005, his failure to adequately explain why he had a gun in his automobile precludes him from mitigating the pattern of criminal behavior under the criminal conduct guideline. Clearance is denied. STATEMENT OF CASE

The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. On September 26, 2006, under Executive Order 10865 and Department of Defense Directive 5200.6, including revised Adjudicative Guidelines (AG) issued December 29, 2005, and implemented by the Department of Defense effective September 1, 2006, DOHA issued a Statement of Reasons (SOR) detailing the reasons for its security concerns raised under the drug involvement guideline (Guideline H), and the criminal conduct guideline (Guideline J) of the Directive. In his answer dated October 3, 2006, Applicant requested a decision be made on the record in lieu of a hearing.

A copy of the Government’s File of Relevant Material (FORM, the Government’s evidence in support of the SOR) was sent to Applicant on January 12, 2007. Applicant received the FORM on January 24, 2007. Applicant’s response to the FORM was due by February 23, 2007. No response was submitted. The case was assigned to me for decision on March 22, 2007.

FINDINGS OF FACT

The SOR alleges drug involvement and criminal conduct. Applicant admitted the factual allegations. His objective for seeking a security clearance is to provide more opportunities for his son that were not available for Applicant. He has done work on several military installations around the country and appreciates the meaning of national security. He believes he deserves forgiveness. Applicant is 33 years old and employed as a project engineer with a defense contractor. He seeks a secret security clearance.

Concerning the first drug allegation (1.a.), Applicant indicated the bulk of his marijuana use was in college. According to his security clearance application (SCA), he attended college in about 1993, during the time he was an intern at the Department of Energy in 1993 (Item 4). Applicant used the drug to: (1) increase his chances of getting accepted by his peers; (2) contend with a bad relationship with his father; and, (3) medicate serious back pain caused by a football injury and several car accidents. Applicant used the drug twice during New Year’s Eve and New Year’s day 2005 “for old time’s sake.” He has used no marijuana since then. (Item 3). Applicant used hydro- codeine (1.b.) between January 2004 and June 2005 to reduce lower back pain. He was offered the drug as a gift. When the intensity of his back pain reduced, Applicant replaced his hydro-codeine use with over-the-counter medications.

In October 1994, Applicant was arrested for possession of marijuana (1.c.). He pled guilty, performed community service and was fined. Twelve months later, Applicant was cited for the same offense. This time he paid a $500.00 fine, and his driving privileges in the state were revoked for one year.

In May 1998 (1.e.), Applicant’s friend needed a ride to the airport, and “being the Good Samaritan,”Applicant agreed he would drive the friend. They were arrested and charged with (1) conspiracy to sell/deliver controlled substance marijuana, a felony, (2) possession with intent to sell/distribute marijuana, felony, (3) possession of marijuana, felony, and (4) maintaining a vehicle/dwelling of controlled substance, a felony. He pled guilty to a misdemeanor of maintaining a vehicle/dwelling of a controlled substance. He was sentenced to 45 months incarceration, placed on 24 months probation, and fined $200.00. Though Applicant maintains that he was only providing a ride for his friend to the airport, Applicant pled guilty to the plea bargain due to insufficient funds and a lack of confidence his friend would tell the truth at trial. Applicant no longer associates with drug users and is more conscious of the individuals he associates with.

The drug offenses in 1.c., 1.d., and 1.e. constitute criminal behavior (2.a. of the SOR) that Applicant acknowledges. His answer to 2.b. is that the charge (handgun in a vehicle) was cancelled as the gun is legally owned.

Applicant noted he traveled to foreign countries and accomplished “various lifetime achievements,” but none as important as being told that his wife was expecting a child. Applicant provided no evidence about those achievements. He provided no additional evidence about his reputation on or off the job.

POLICIES

Enclosure 2 of the Directive sets forth guidelines containing disqualifying conditions (DC) and mitigating conditions (MC) that should be given binding consideration in making security clearance determinations. These conditions must be considered in every case along with the general factors of the whole person concept. However, the conditions are not automatically determinative of the decision in any case nor can they supersede the Administrative Judge's reliance on his own common sense. Burden of Proof

Initially, the government must establish, by substantial evidence, that conditions exist in the personal or professional history of the applicant which disqualifies, or may disqualify, the applicant from being eligible for access to classified information. See Department of the Navy v. Egan, 484 U.S. 518, 531 (1988) “[T]he Directive presumes there is a nexus or rational connection between proven conduct under any of the Criteria listed therein and an applicant’s security suitability.” ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996) (quoting DISCR Case No. 92-1106 (App. Bd. Oct. 7, 1993)).

Once the government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. “[S]ecurity clearance determinations should err, if they must, on the side of denials.” See Egan, 481 U.S. at 531; see Directive E2.2.2.

Drug Involvement (Guideline H)

Improper or illegal involvement with drugs raises questions regarding an individual’s w1illingness or ability to protect classified information. Drug abuse may impair social or occupational functioning.

Criminal Conduct (Guideline J)

Violating the law shows poor judgment and unreliability.

CONCLUSION

Drug abuse raises questions about a person’s willingness to comply with drug laws and other laws, as well as security rules and regulations. If a person demonstrates a propensity to violate the law by using illegal or unprescribed drugs to satisfy his personal desires, then there is good likelihood he may adopt the same posture toward security regulations he disagrees with. Applicant used marijuana at varying frequencies from 1994 (during college) until January 2005. Drug Involvement (DI) disqualifying condition (DC) 25. (a) (any drug abuse) applies to Applicant’s marijuana use, while DI DC 25. (a) and DI DC 24. (b) (drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates form approved medical direction) apply to Applicant’s hydro-codeine use from January 2004 to June 2005. It is reasonable to infer that marijuana use quickly became an integral part of his lifestyle as evidenced by his convictions for possession of marijuana in 1994 and 1995. The convictions exemplify poor judgment in that he was willing to possess and/or use the drug while driving his automobile. Applicant’s conviction in 1998 for maintaining a vehicle/dwelling where a controlled substance is located raises even more concerns about the level of his involvement with marijuana. These concerns are substantiated by the severity of the sentence that included probation for two years. DI DC 25. ©) (illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution . . . ) applies.

There are four mitigating conditions that may apply to the evidence of drug abuse. DI mitigating condition (MC) 26. (a) (the behavior happened so long ago, was so infrequent, or happened under circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment) does not apply as his drug use did not end until June 2005, less than 18 months before the date of the SOR. DI MC 26. (b) (a demonstrated intent not to abuse any drugs in the future) has not been established due to the lack of independent evidence to conclude Applicant’s drug use is clearly in the past. The reason for Applicant’s decision to use marijuana at the beginning of 2005, “for old time’s sake,” does not inspire sufficient confidence to conclude he will not use the same reason to use the drug in the future. The DI guideline is found against Applicant.

A pattern of criminal conduct (CC) raises doubt about a persons’s judgment, reliability and trustworthiness. Applicant’s criminal behavior from 1994 to August 2005 represents a pattern of adverse conduct that activates CC DC 31. (a) (a single serious crime or multiple lesser offenses) applies. Applicant’s two convictions in 1994 and 1995 for marijuana possession, and the 1998 conviction for maintaining a dwelling where a controlled substance is located fall within the scope of CC DC 31. (a). Even though Applicant considers himself innocent of any of the offenses he was charged with in 1998, he has provided insufficient extenuation or explanation to warrant the application of CC MC 32. ©) (evidence that the person did not commit the offense), due to his criminal record for the same type of offense before 1998. The fact that the handgun offense in August 2005 was canceled because he had a license for the gun, does not eliminate the poor judgment associated with carrying a handgun in a automobile. There is no evidence Applicant is a law enforcement officer; there is no evidence he is a correctional officer or a deputy; there is no evidence Applicant had a specific reason for possessing the handgun in an automobile. The fact the gun was licensed to him does not adequately explain why he had the weapon in his vehicle. The CC guideline is found against Applicant. Applicant’s failure to satisfy the mitigating conditions under the specific guidelines is not necessarily dispositive, as the general factors of the whole person model may support an overall finding in Applicant’s favor. While Applicant’s drug use in 1994 and 1995 is extenuated by his youthful age during the period, Applicant continued to use marijuana, and then hydro-codeine until he was 31 years old. The three drug convictions demonstrate the degree to which drugs were a part of Applicant’s lifestyle. While he claims that his life has changed now that he knows he will be a father, and he no longer associates with drug users, he has failed to produce the necessary evidence under 2. (a)(6) (the presence or absence of rehabilitation and other permanent behavioral changes) to support his drug-free claim in the future. Without ample evidence of permanent behavioral changes, there are inadequate bases for me to find for Applicant under the DI and CC guidelines.

FORMAL FINDINGS

Paragraph 1 (Drug Involvement, Guideline H): AGAINST THE APPLICANT

Subparagraph a. Against the Applicant. Subparagraph b. Against the Applicant. Subparagraph c. Against the Applicant. Subparagraph d. Against the Applicant. Subparagraph e. Against the Applicant.

Paragraph 2 (Criminal Conduct, Guideline J): AGAINST THE APPLICANT.

Subparagraph a. Against the Applicant. Subparagraph b. Against the Applicant.

DECISION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is denied.

Paul J. Mason Administrative Judge

FOOTNOTES

FOR GOVERNMENT D. Michael Lyles, Department Counsel

FOR APPLICANT Pro Se