ISCR Case 15-07127.h1

Case Headnote

ISCR Case No. 15-07127.h1

deniedNov 8, 2017· Hon. Wilford H. Ross· hearing

Summary

A 35-year-old construction manager was denied a security clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement) due to a history of illegal drug use and falsification of a government questionnaire. The applicant had a long history of drug abuse, including Percocet from 2009 to 2014, marijuana since 1999 with the last reported use in January 2017, and cocaine since 2004 with the last reported use in June 2016. Despite receiving drug abuse treatment since December 2012, the applicant tested positive for THC in February 2015 and for cocaine and oxycodone in March 2013 while in treatment.

The applicant intentionally falsified an e-QIP on February 27, 2015, by denying controlled substance use in the previous seven years, despite his ongoing use of marijuana and cocaine. He admitted this falsification, stating fear of job loss as his motivation. On the same e-QIP, he falsely answered "No" to ever being charged with an alcohol or drug offense, failing to disclose a November 2002 arrest for alcohol possession, which he believed was not relevant since the charges were dismissed. While he initially failed to disclose three positive drug tests during a subsequent interview, the judge found his belief that the question only applied to workplace tests to be not unreasonable, and therefore, lacked intent to falsify on that specific point.

However, the judge found the applicant's claims of intent to discontinue drug use unconvincing, citing his recent drug use and continued association with individuals who use illegal drugs. The judge concluded that the applicant's ongoing drug use and lack of credible commitment to abstain raised substantial doubts about his reliability and trustworthiness, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant had a long history of illegal drug use, including marijuana, cocaine, and prescription drugs without a prescription.
The applicant falsified a government questionnaire regarding his drug use, which demonstrated a lack of candor and trustworthiness.
The applicant's claims of intent to discontinue drug use were deemed unconvincing given his recent history of drug use.

Conditions Referenced

Disqualifying

H.25.araisedSubstance Misuse
H.25.braisedTesting Positive for an Illegal Drug
H.25.eraisedFailure to Successfully Complete a Drug Treatment Program
H.25.graisedExpressed Intent to Continue Drug Involvement
E.16.araisedDeliberate Omission or Falsification of Relevant Facts
E.16.braisedDeliberately Providing False or Misleading Information
E.16.graisedAssociation with Persons Involved with Criminal Activity

Mitigating

H.26notedMitigating Conditions for Drug Involvement
E.17notedMitigating Conditions for Personal Conduct

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 issuedJun 14, 2016
Answer filedJun 22, 2016
Hearing heldJan 23, 2017
Decision dateNov 8, 2017

Cite For

Denial of Security Clearance Due to Ongoing Drug Use and Lack of Rehabilitation Efforts
Falsification of Government Documents as a Basis for Security Clearance Denial
Impact of Personal Conduct on National Security Eligibility Under Guideline E

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant filled out an e-QIP on February 27, 2015. Section 23 of the questionnaire asked Applicant about his drug use history. First of all, that section asked whether Applicant had used controlled substances during the previous seven years. Applicant stated, “No.” This was a false answer to a relevant question concerning Applicant’s drug use history, since he had used marijuana and cocaine as described above. Applicant admitted his intentional falsification of this questionnaire during his testimony at the hearing. Applicant stated that his decision to put down a false answer was due to fear of losing his job.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	Admitted	(a) deliberate omission, concealment, or falsification on a security form	—	—
2.b	Applicant filled out an e-QIP on February 27, 2015. Section 22 of Government Exhibit 1 asked Applicant whether he had “EVER been charged with an offense involving alcohol or drugs?” Applicant answered, “No.” This was a false answer. Applicant had been arrested on November 22, 2002, for possession of alcohol while a passenger in a vehicle. The charges were eventually dismissed. Applicant believed he did not have to list this incident because the charges were dismissed.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Admitted	(a) deliberate omission, concealment, or falsification on a security form	—	—
2.c	Applicant was subsequently questioned by an investigator from the Office of Personnel Management on April 1, 2015. During that interview Applicant deliberately failed to disclose that he had three positive drug tests during treatment. When re-interviewed on July 30, 2015, Applicant stated that he believed the question only applied to “drug tests taken in the workplace.” He reiterated this statement at the hearing. Given Applicant’s background and lack of experience with the security clearance process, his belief was not unreasonable. Based on the available information, I find that Applicant did not have the intent to falsify his statements to the investigator on this point.	For Applicant	Lack of Candor in InterviewNOT DELIBERATE	—	Denied	—	—	—
2.d	Applicant continued to associate with individuals who use illegal drugs. He stated that he was doing this as recently as New Year’s 2017, when he used marijuana.	Against Applicant	Association with Persons in Criminal Activity	—	Denied	(g) association with persons involved in criminal activity	—	—
2.e	Section 22 of Government Exhibit 1 asked Applicant whether he had “EVER been charged with an offense involving alcohol or drugs?” Applicant answered, “No.” This was a false answer. Applicant had been arrested on November 22, 2002, for possession of alcohol while a passenger in a vehicle. The charges were eventually dismissed. Applicant believed he did not have to list this incident because the charges were dismissed.	For Applicant	Falsification Security FormNOT DELIBERATE	Criminal Conduct	Admitted	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

Applicant filled out an e-QIP on February 27, 2015. Section 23 of the questionnaire asked Applicant about his drug use history. First of all, that section asked whether Applicant had used controlled substances during the previous seven years. Applicant stated, “No.” This was a false answer to a relevant question concerning Applicant’s drug use history, since he had used marijuana and cocaine as described above. Applicant admitted his intentional falsification of this questionnaire during his testimony at the hearing. Applicant stated that his decision to put down a false answer was due to fear of losing his job.

Against Applicant

Falsification Security FormFOUND DELIBERATE

Drug Involvement

Admitted

(a) deliberate omission, concealment, or falsification on a security form

—

2.b

Applicant filled out an e-QIP on February 27, 2015. Section 22 of Government Exhibit 1 asked Applicant whether he had “EVER been charged with an offense involving alcohol or drugs?” Applicant answered, “No.” This was a false answer. Applicant had been arrested on November 22, 2002, for possession of alcohol while a passenger in a vehicle. The charges were eventually dismissed. Applicant believed he did not have to list this incident because the charges were dismissed.

Against Applicant

Falsification Security FormFOUND DELIBERATE

Criminal Conduct

Admitted

(a) deliberate omission, concealment, or falsification on a security form

—

2.c

Applicant was subsequently questioned by an investigator from the Office of Personnel Management on April 1, 2015. During that interview Applicant deliberately failed to disclose that he had three positive drug tests during treatment. When re-interviewed on July 30, 2015, Applicant stated that he believed the question only applied to “drug tests taken in the workplace.” He reiterated this statement at the hearing. Given Applicant’s background and lack of experience with the security clearance process, his belief was not unreasonable. Based on the available information, I find that Applicant did not have the intent to falsify his statements to the investigator on this point.

For Applicant

Lack of Candor in InterviewNOT DELIBERATE

—

Denied

—

2.d

Applicant continued to associate with individuals who use illegal drugs. He stated that he was doing this as recently as New Year’s 2017, when he used marijuana.

Against Applicant

Association with Persons in Criminal Activity

—

Denied

(g) association with persons involved in criminal activity

—

2.e

Section 22 of Government Exhibit 1 asked Applicant whether he had “EVER been charged with an offense involving alcohol or drugs?” Applicant answered, “No.” This was a false answer. Applicant had been arrested on November 22, 2002, for possession of alcohol while a passenger in a vehicle. The charges were eventually dismissed. Applicant believed he did not have to list this incident because the charges were dismissed.

For Applicant

Falsification Security FormNOT DELIBERATE

Criminal Conduct

Admitted

—

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant abused the prescription pain killer Percocet from approximately 2009 through approximately 2014.	Against Applicant	Prescription Opioid Misuse	Regular	Admitted	(a) any substance misuse (b) testing positive for an illegal drug (e) failure to complete a prescribed drug treatment program	—	—
1.b	Applicant began using marijuana in 1999, when he was in high school. He last used marijuana during New Year’s 2017.	Against Applicant	Marijuana	Occasional	Admitted	(a) any substance misuse (b) testing positive for an illegal drug (g) expressed intent to continue, or failure to commit to discontinue	—	—
1.c	Applicant first used cocaine in approximately 2004. He last used cocaine in approximately June 2016.	Against Applicant	Cocaine	Occasional	Admitted	(a) any substance misuse (b) testing positive for an illegal drug (g) expressed intent to continue, or failure to commit to discontinue	—	—
1.d	Applicant has been receiving drug abuse treatment from December 2012.	For Applicant	Treatment Failure	Not Applicable	Admitted	—	—	—
1.e	Earlier in treatment, in February 2015, Applicant tested positive for THC, the active ingredient in marijuana.	Against Applicant	Drug Test Failure	Not Applicable	Admitted	(b) testing positive for an illegal drug	—	—
1.f	In March 2013, while in treatment, Applicant tested positive for cocaine and oxycodone.	Against Applicant	Drug Test Failure	Not Applicable	Admitted	(b) testing positive for an illegal drug	—	—
1.g	Applicant has been attending voluntary drug treatment for his use of Percocet since 2012.	Against Applicant	Treatment Failure	Not Applicable	Admitted	—	—	—

Allegation

Finding

Substance / event

Use level

Response

Disqualifying (¶25)

Mitigating applied (¶26)

Mitigation

1.a

Applicant abused the prescription pain killer Percocet from approximately 2009 through approximately 2014.

Against Applicant

Prescription Opioid Misuse

Regular

Admitted

(a) any substance misuse

(b) testing positive for an illegal drug

(e) failure to complete a prescribed drug treatment program

—

1.b

Applicant began using marijuana in 1999, when he was in high school. He last used marijuana during New Year’s 2017.

Against Applicant

Marijuana

Occasional

Admitted

(a) any substance misuse

(b) testing positive for an illegal drug

(g) expressed intent to continue, or failure to commit to discontinue

—

1.c

Applicant first used cocaine in approximately 2004. He last used cocaine in approximately June 2016.

Against Applicant

Cocaine

Occasional

Admitted

(a) any substance misuse

(b) testing positive for an illegal drug

(g) expressed intent to continue, or failure to commit to discontinue

—

1.d

Applicant has been receiving drug abuse treatment from December 2012.

For Applicant

Treatment Failure

Not Applicable

Admitted

—

1.e

Earlier in treatment, in February 2015, Applicant tested positive for THC, the active ingredient in marijuana.

Against Applicant

Drug Test Failure

Not Applicable

Admitted

(b) testing positive for an illegal drug

—

1.f

In March 2013, while in treatment, Applicant tested positive for cocaine and oxycodone.

Against Applicant

Drug Test Failure

Not Applicable

Admitted

(b) testing positive for an illegal drug

—

1.g

Applicant has been attending voluntary drug treatment for his use of Percocet since 2012.

Against Applicant

Treatment Failure

Not Applicable

Admitted

—

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Case Profile

Summary

Why the Applicant Was Denied

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

ANALYSIS

WHOLE PERSON CONCEPT

FORMAL FINDINGS

CONCLUSION

FOOTNOTES