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ISCR Case 15-04309.h1 — CASE

ISCR Case 15-04309.h1denied

Case Headnote

ISCR Case No. 15-04309.h1

deniedJul 25, 2017· Hon. Mark W. Harvey· hearing

Summary

A 27-year-old information technology professional was denied a security clearance due to concerns under Guideline D (Drug Involvement) and Guideline E (Personal Conduct). The applicant admitted to multiple instances of marijuana use from 2008 until April 2014, including while in a public trust position. This history included a positive drug test in April 2014.

Further issues arose from the applicant's failure to disclose this marijuana use on two separate security clearance applications, dated August 7, 2011, and August 24, 2014. On the August 24, 2014 application, the applicant also falsely stated that his employment with a DOD contractor ended by mutual agreement, when he had, in fact, been fired.

The judge determined that the applicant's drug involvement and the dishonesty displayed in his security clearance applications were not mitigated. Consequently, the applicant was denied eligibility for access to classified information.

Why the Applicant Was Denied

The applicant admitted to using marijuana on multiple occasions until April 2014, including while holding a public trust position.
The applicant tested positive for marijuana in April 2014 and failed to disclose his drug use on his security clearance applications.
The applicant's dishonesty regarding his employment termination and drug use raised significant security concerns.

Conditions Referenced

Disqualifying

AG ¶ 25(a)appliedSubstance Misuse
AG ¶ 25(b)appliedTesting Positive for an Illegal Drug
AG ¶ 25(f)appliedIllegal Drug Use While Holding a Sensitive Position
AG ¶ 16(a)appliedDeliberate Omission or Falsification

Key Rule Quoted

“Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance.”
— Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990)

Procedural Posture

SOR issuedFeb 8, 2016
Answer filedMay 18, 2016Applicant did not request a hearing.
Hearing held—No hearing was held.
Decision dateJul 25, 2017

Cite For

Denial of Security Clearance Due to Drug Involvement Under Guideline D
Denial of Security Clearance Due to Dishonesty Under Guideline E
Importance of Full Disclosure 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 D (Sexual Behavior) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant faced allegations under Guideline D concerning drug involvement and personal conduct. The judge found against the applicant on all allegations, determining that the applicant's history of marijuana use and dishonesty regarding that use raised significant security concerns that were not mitigated.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation
1.a	Applicant used marijuana on multiple occasions from 2008 to at least April 2014.	Against Applicant	Unspecified Sexual Behavior	Admitted	—	—	—
1.b	Applicant tested positive for marijuana in April 2014 on his employer’s urinalysis test.	Against Applicant	Unspecified Sexual Behavior	Admitted	—	—	—
1.c	Applicant failed to disclose his marijuana use on his August 7, 2011 Questionnaire for National Security Positions (SF 86) or security clearance application (SCA).	Against Applicant	Unspecified Sexual Behavior	Admitted	—	—	—
1.d	Applicant lied about his history of marijuana use on his August 7, 2011 SCA and on his August 24, 2014 SCA.	Against Applicant	Unspecified Sexual Behavior	Admitted	—	—	—
2.a	Applicant expressed his remorse for lying on his SCAs.	Against Applicant	Unspecified Sexual Behavior	Admitted	—	—	—
2.b–2.c	2 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant			—	—	—

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 the personal conduct allegations under Guideline E, specifically regarding the applicant's failure to disclose his marijuana use on security clearance applications. The judge determined that the applicant's conduct raised significant concerns about his reliability and trustworthiness, leading to a denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant failed to disclose his marijuana use on his August 7, 2011 Questionnaire for National Security Positions (SF 86) or security clearance application (SCA).	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	Denied	—	—	—
2.b	Applicant admitted that he lied about his history of marijuana use on his August 7, 2011 SCA and on his August 24, 2014 SCA.	For Applicant	Lack of Candor in InterviewFOUND DELIBERATE	Drug Involvement	Admitted	—	—	—
2.c	On his August 24, 2014 SCA, he lied when he said he left employment with a DOD contractor by mutual agreement. In fact, he was fired.	For Applicant	Lack of Candor in InterviewFOUND DELIBERATE	Other	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). 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. 15-04309 ) ) Applicant for Security Clearance

For Government: Philip J. Katauskas, Esq., Department Counsel For Applicant: Pro se

07/25/2017 ___________

STATEMENT OF CASE

___________

HARVEY, Mark, Administrative Judge:

Applicant’s statement of reasons (SOR) alleges he used marijuana on multiple occasions from 2008 to at least April 2014. He has held a security clearance since October 2011. He tested positive for marijuana in April 2014 on his employer’s urinalysis test. Applicant failed to disclose his marijuana use on his August 7, 2011 Questionnaire for National Security Positions (SF 86) or security clearance application (SCA). Drug involvement and personal conduct security concerns are not mitigated. Eligibility for access to classified information is denied.

Statement of the Case

On August 24, 2014, Applicant completed and signed his SCA. (Item 5) On February 8, 2016, the Department of Defense (DOD) Consolidated Adjudications Facility (CAF) issued an SOR to Applicant under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry, February 20, 1960; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), January 2, 1992; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, effective on September 1, 2006 (Sept. 1, 2006 AGs).

The SOR detailed reasons why the DOD CAF did not find under the Directive that it is clearly consistent with the interests of national security to grant or continue a security clearance for her, and recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked. (Item 1) Specifically, the SOR set forth security concerns arising under the drug involvement and personal conduct guidelines.

On May 18, 2016, Applicant provided a response to the SOR, and he did not request a hearing. (Item 4) On June 29, 2016, Department Counsel completed the File of Relevant Material (FORM). On July 19, 2016, Applicant received the FORM, and he did not respond to the FORM. On May 22, 2017, the case was assigned to me. The case file consists of six exhibits. (Items 1-6) Applicant did not object to any of the Government exhibits, and they are admitted into evidence.

While this case was pending a decision, the Director of National Intelligence (DNI) issued Security Executive Agent Directive 4, establishing in Appendix A the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AGs) which he made applicable to all covered individuals who require initial or continued eligibility for access to classified information or eligibility to hold a sensitive position. The new AGs supersede the Sept. 1, 2006 AGs and are effective “for all covered individuals” on or after June 8, 2017. Accordingly, I have evaluated Applicant’s security clearance eligibility under the new AGs.1

Findings of Fact2

Applicant’s SOR response admitted the allegations in SOR ¶¶ 1.a through 1.dand 2.a through 2.c. (Item 2) He also provided extenuating and mitigating information. Applicant’s admissions are accepted as findings of fact. Additional findings of fact follow.

Applicant is 27 years old, and he has been employed in information technology since July 2014.3 He attended college or university for four years; however, he did not receive a degree. He has two information technology certifications. (Item 4) He has never served in the military. He has never married, and he does not have any children.

Drug Involvement

Applicant began his marijuana use in 2008, and he continued his marijuana use until April 2014.4 He “smoked marijuana daily with some breaks of 30 days” between April 2010 and May 2010. He stopped using marijuana in April 2014 because he wanted to retain his security clearance. He denied that he sold, transferred, manufactured, or grew marijuana. He used marijuana with his cousins and half-brother. He continues to associate with his cousins and half-brother. He used marijuana while holding a public trust position. He tested positive for marijuana on his employer’s random urinalysis test in April 2014. His employer suspended his employment until he passed a urinalysis test. He has not had any drug-related counseling.

Personal Conduct

On his August 7, 2011 SCA, Applicant denied that he used marijuana in the last seven years.5 On his August 24, 2014 SCA, Applicant said he used marijuana once, and he was caught on a urinalysis test in April 2014. He emphasized “I tried it once and was caught,” and it “happens to be my first and only offense.” He specifically denied that he had any other instances of illegal drug use. On his August 24, 2014, SCA he said he left employment with a DOD contractor by mutual agreement. In fact, he was fired. He said he lied because he was embarrassed, and he did not want his reputation at work to be damaged. He expressed his remorse for lying on his SCAs.

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicant’s eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended.

Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable.

The Government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. 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 about potential, rather than actual, risk of compromise of classified information. Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. Thus, nothing in this decision should be construed to suggest that it is based, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. It is merely an indication the applicant has not met the strict guidelines the President, Secretary of Defense, and DNI have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that may disqualify the applicant from being eligible for access to classified information. The Government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Drug Involvement

AG ¶ 24 articulates the security concern for drug involvement:

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.

AG ¶ 25 lists four conditions that could raise a security concern and may be disqualifying in this case: (a) any substance misuse (see above definition);

(b) testing positive for an illegal drug;

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

(f) any illegal drug use while granted access to classified information or holding a sensitive position.

Applicant’s SOR response and OPM PSIs establish Applicant possessed and used marijuana6 while hold a public trust position. His employer urinalysis test detected his marijuana use in April 2014. AG ¶¶ 25(a), 25(b), 25(c), and 25(f) are established.

AG ¶ 26 details conditions that could mitigate security concerns:

(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;

(c) abuse of prescription drugs was after a severe or prolonged illness during which these drugs were prescribed, and abuse has since ended; and

(d) satisfactory completion of a prescribed drug treatment program, including, but not limited to, rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional.

6 Schedules I, II, III, IV, and V, as referred to in the Controlled Substances Act are contained in

v. Raish, 545 U.S. 1 (2005) (discussing placement of marijuana on Schedule I). The DOHA Appeal Board concisely explained Applicant’s responsibility for proving the applicability of mitigating conditions as follows:

Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2 ¶ 2(b).

ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013).

AG ¶ 26(a) can mitigate security concerns when drug offenses are not recent. There are no “bright line” rules for determining when such conduct is “recent.” The determination must be based “on a careful evaluation of the totality of the record within the parameters set by the directive.” ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). If the evidence shows “a significant period of time has passed without any evidence of misconduct,” then an administrative judge must determine whether that period of time demonstrates “changed circumstances or conduct sufficient to warrant a finding of reform or rehabilitation.”5 There is no evidence of Applicant’s marijuana use after December 25, 2011. AG ¶ 26(a) applies to his marijuana-related conduct.6

AG ¶¶ 26(b), 26(c), and 26(d) are not fully applicable. Applicant did not abuse drugs after being issued a prescription that is lawful under federal law. Marijuana was never lawfully prescribed for him under federal law. He received drug and alcohol counseling; however, he continues to associate with marijuana users.

None of the mitigating conditions fully apply. Applicant used marijuana on multiple occasions from 2008 to April 2014. He has held a public trust position since 2011. He tested positive for marijuana in April 2014 on his employer’s urinalysis test. Drug involvement security concerns are not mitigated.

Personal Conduct

AG ¶ 15 explains why personal conduct is a security concern stating:

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 investigative or adjudicative processes.

AG ¶ 16 describes one condition that could raise a security concern and may be disqualifying in this case, “(a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire . . . used to conduct investigations, . . . determine security clearance eligibility or trustworthiness. . . .”9 In his SOR response, Applicant admitted that he lied about his history of marijuana use on his August 7, 2011 SCA and on his August 24, 2014 SCA. On his August 24, 2014 SCA, he lied when he

2004)). said he left employment with a DOD contractor by mutual agreement. In fact, he was fired. He said he lied because he was embarrassed, and he did not want his reputation at work to be damaged. AG ¶ 16(a) is established.

AG ¶ 17 provides seven conditions that could mitigate security concerns in this case:

(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;

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

(f) the information was unsubstantiated or from a source of questionable reliability; and

(g) association with persons involved in criminal activities was unwitting, has ceased, or occurs under circumstances that do not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations.

AG ¶ 17(a) applies to his lies about his history of marijuana use and termination from employment on his August 24, 2014 SCA. Applicant disclosed his history of marijuana use and his termination to an OPM investigator. SOR ¶¶ 2.band 2.care mitigated.

SOR ¶ 2.a is not mitigated. Applicant’s lie on his August 7, 2011 SCA was deliberate. This falsification by intentionally failing to disclose his marijuana use was serious, improper, and raised a security concern. No mitigating conditions apply. Personal conduct security concerns are not 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 the 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), “[t]he ultimate determination” of whether to grant a security clearance “must be an overall commonsense judgment based upon careful consideration of the guidelines” and the whole-person concept. My comments under Guidelines F and E are incorporated in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines but some warrant additional comment.

Applicant is 27 years old, and he has been employed with his current employer in information technology since July 2014. He attended college or university for four years; however, he did not receive a degree. He has two information technology certifications.

Applicant used marijuana on multiple occasions from 2008 to at least April 2014. He has held a security clearance since October 2011. He tested positive for marijuana in April 2014 on his employer’s urinalysis test. Applicant failed to disclose his marijuana use on his August 7, 2011 SCA. His decision to reveal his history of marijuana use during his OPM PSI in 2014, his expression of remorse, and the termination of his marijuana use are important mitigation.

Applicant’s falsification in a security context raises a serious security concern. The protection of national security relies on applicants to self-report conduct that jeopardizes security, even when that disclosure might damage the applicant’s career. Applicant cannot be trusted to disclose potentially derogatory information. He did not establish his reliability, trustworthiness, and ability to protect classified information.

I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, the Directive, and the AGs, to the facts and circumstances in the context of the whole person. Drug involvement and personal conduct security concerns are not mitigated. It is not clearly consistent with the interests of national security to grant Applicant security clearance eligibility at this time.

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 F: AGAINST APPLICANT

Subparagraphs 1.a through 1.d: Against Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant Subparagraphs 2.band 2.c: For Applicant

CONCLUSION

In light of all of the circumstances in this case, it is not clearly consistent with the interests of national security to grant Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied.

_________________________ Mark Harvey Administrative Judge

FOOTNOTES

1 Application of the AGs that were in effect as of the issuance of the SOR would not change my decision in this case. The new AGs are available at http://ogc.osd.mil/doha/5220-6 R20170608.pdf.

2 Some details were excluded to protect Applicant’s right to privacy. Specific information is available in the cited exhibits.

3 Unless stated otherwise, the source of the information in this paragraph is Applicant’s August 24, 2014 Questionnaire for National Security Positions (SF 86) or security clearance application (SCA). (Item 4)

4 The sources for the information in this paragraph are Applicant’s November 12 and 14, 2014, and February 5, 2015 Office of Personnel Management (OPM) personal subject interviews (PSI). (Item 6) 5 The sources for the information in his paragraph are Applicant’s August 24, 2014 SCA, his SOR response, and his November 12 and 14, 2014, and February 5, 2015 OPM PSI. (Items 4, 5, 6) 21 U.S.C. § 812(c). Marijuana is a Schedule (Sch.) I controlled substances. See Drug Enforcement Administration listing at http://www.deadiversion.usdoj.gov/21cfr/cfr/1308/1308 11.htm. See also Gonzales 5 ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). In ISCR Case No. 04-09239 at 5 (App. Bd. Dec. 20, 2006), the Appeal Board reversed the judge’s decision denying a clearance, focusing on the absence of drug use for five years prior to the hearing. The Appeal Board determined that the judge excessively emphasized the drug use while holding a security clearance, and the 20 plus years of drug use, and gave too little weight to lifestyle changes and therapy. For the recency analysis the Appeal Board stated:

Compare ISCR Case No. 98-0394 at 4 (App. Bd. June 10, 1999) (although the passage of three years since the applicant's last act of misconduct did not, standing alone, compel the administrative judge to apply Criminal Conduct Mitigating Condition 1 as a matter of law, the Judge erred by failing to give an explanation why the Judge decided not to apply that mitigating condition in light of the particular record evidence in the case) with ISCR Case No. 01-02860 at 3 (App. Bd. May 7, 2002) (“The administrative judge articulated a rational basis for why she had doubts about the sufficiency of Applicant's efforts at alcohol rehabilitation.”) (citation format corrections added).

In ISCR Case No. 05-11392 at 1-3 (App. Bd. Dec. 11, 2006) the Appeal Board, affirmed the administrative judge’s decision to revoke an applicant’s security clearance after considering the recency analysis of an administrative judge stating:

The administrative judge made sustainable findings as to a lengthy and serious history of improper or illegal drug use by a 57-year-old Applicant who was familiar with the security clearance process. That history included illegal marijuana use two to three times a year from 1974 to 2002 [drug use ended four years before hearing]. It also included the illegal purchase of marijuana and the use of marijuana while holding a security clearance. 6 In ISCR Case No. 02-08032 at 8 (App. Bd. May 14, 2004), the Appeal Board reversed an unfavorable security clearance decision because the administrative judge failed to explain why drug use was not mitigated after the passage of more than six years from the previous drug abuse.

9 The Appeal Board has cogently explained the process for analyzing falsification cases, stating:

(a) when a falsification allegation is controverted, Department Counsel has the burden of proving falsification; (b) proof of an omission, standing alone, does not establish or prove an applicant’s intent or state of mind when the omission occurred; and (c) a Judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning the applicant’s intent or state of mind at the time the omission occurred. [Moreover], it was legally permissible for the Judge to conclude Department Counsel had established a prima facie case under Guideline E and the burden of persuasion had shifted to the applicant to present evidence to explain the omission.

ISCR Case No. 03-10380 at 5 (App. Bd. Jan. 6, 2006) (citing ISCR Case No. 02-23133 (App. Bd. June 9,