ISCR Case 15-07176.h1

Case Headnote

ISCR Case No. 15-07176.h1

grantedJun 6, 2017· Hon. Wilford H. Ross· hearing

Summary

A 30-year-old defense contractor employee was granted a security clearance despite concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The Statement of Reasons detailed the applicant's past illegal drug use, including marijuana, LSD, Ecstasy, ketamine, and psilocybin mushrooms, from approximately 2004 through 2009. The applicant also used other experimental hallucinogenic substances during this period and admitted to drug use while employed as a lifeguard.

Initial security questionnaires in 2010 were found to have understated the extent and duration of his drug use, and omitted certain substances, leading to allegations of falsification. However, the applicant was significantly more forthcoming in a subsequent e-QIP submitted in 2014 and during interviews with investigators. The judge noted that some substances, like 2C-E and 2C-I, were not controlled at the time of use or the first questionnaire, and an omission regarding ketamine was deemed accidental given other admissions.

The decision to grant the clearance was based on several mitigating factors. The applicant had not used illegal drugs for over seven years by the time the record closed and expressed considerable regret for past use, including a one-time use of the legal substance salvia in 2012. He demonstrated a commitment to abstain from future illegal drug use and showed a significant change in behavior and honesty in his later disclosures.

Why the Applicant Prevailed

The applicant has not used illegal drugs for over seven years.
The applicant expressed considerable regret for past drug use and committed to abstaining from illegal drugs in the future.
The applicant was truthful in his 2014 e-QIP, demonstrating a change in behavior and understanding of the importance of honesty.

Conditions Referenced

Disqualifying

H.25.araisedAny Drug Use
H.25.graisedAny Illegal Drug Use After Being Granted a Security Clearance
E.16.araisedDeliberate Omission, Concealment, or Falsification of Relevant Facts

Mitigating

H.26.aappliedThe Behavior Happened so Long Ago, Was so Infrequent, or Happened Under Such Circumstances That It Is Unlikely to Recur
H.26.bappliedA Demonstrated Intent Not to Abuse Any Drugs in the Future
E.17.cappliedThe Offense Is so Minor, or so Much Time Has Passed, or the Behavior Is so Infrequent
E.17.dappliedThe Individual Has Acknowledged the Behavior and Taken Other Positive Steps to Alleviate the Stressors

Key Rule Quoted

“"Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security."”
— AG & 2(b)

Procedural Posture

SOR issuedJun 9, 2016
Answer filedJul 6, 2016
Hearing heldOct 18, 2016Applicant testified and presented witnesses.
Decision dateJun 6, 2017

Cite For

Mitigation of Past Drug Use Under Guideline H
Truthfulness in Security Clearance Applications Under Guideline E
Whole-person Assessment in Security Clearance Decisions

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 April 7, 2010. Section 23 of the questionnaire asked Applicant about his drug use history. Applicant admitted using and selling marijuana, mushrooms, Ecstasy, and LSD on an infrequent basis from 2004 through 2007. This answer understated the extent of Applicant’s drug use, as well as misstating the date it actually ended in 2009.	For Applicant	Falsification Security FormFOUND DELIBERATE	Other	Admitted	—	(c) offense is minor, long ago, infrequent, or unique circumstances (d) acknowledged the behavior; counseling/positive steps taken	Claimed Corrected Falsification Promptly Claimed Other
2.b	Applicant filled out a second e-QIP on May 7, 2014. He was much more forthcoming about his drug use in Section 23 of this questionnaire. He was also much more truthful during interviews with investigators from the Office of Personnel Management.	For Applicant	Falsification Security Form	—	Admitted	—	(c) offense is minor, long ago, infrequent, or unique circumstances (d) acknowledged the behavior; counseling/positive steps taken	—
2.c	The SOR also alleged Applicant falsified Government Exhibit 2 by not admitting he used the synthetic hallucinogens 2C-E and 2C-I during 2004 and 2006. However, as stated above, those substances were not Schedule I controlled substances at the time of his use, or at the time he filled out the first questionnaire.	For Applicant	Falsification Security Form	—	Denied	—	(c) offense is minor, long ago, infrequent, or unique circumstances (d) acknowledged the behavior; counseling/positive steps taken	—
2.d	Applicant did not admit in his 2010 questionnaire that he had used ketamine once in 2006. The SOR alleged that this failure also amounted to a falsification. Given his other admissions on that form of extensive drug use, even though far from complete, I find this omission to be accidental.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	—	Denied	—	(c) offense is minor, long ago, infrequent, or unique circumstances (d) acknowledged the behavior; counseling/positive steps taken	—
2.e	In his 2010 questionnaire Applicant answered, 'No,' to the question of whether he had ever used an illegal controlled substance while in a position directly or immediately affecting public safety. When Applicant filled out a new e-QIP in 2014 he changed that answer and admitted that he had used drugs while employed as a lifeguard during the summers from 2004 through 2006.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	—	Denied	—	(c) offense is minor, long ago, infrequent, or unique circumstances (d) acknowledged the behavior; counseling/positive steps taken	—
2.f	Applicant has not knowingly used any illegal drugs in seven years as of the date the record closed. He expressed considerable regret at his one-time use of the legal substance salvia in 2012. Applicant has repeatedly stated that he will not use illegal drugs in the future while he holds a security clearance.	For Applicant	Questionable Judgment General	—	Admitted	—	(c) offense is minor, long ago, infrequent, or unique circumstances (d) acknowledged the behavior; counseling/positive steps taken	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

Applicant filled out an e-QIP on April 7, 2010. Section 23 of the questionnaire asked Applicant about his drug use history. Applicant admitted using and selling marijuana, mushrooms, Ecstasy, and LSD on an infrequent basis from 2004 through 2007. This answer understated the extent of Applicant’s drug use, as well as misstating the date it actually ended in 2009.

For Applicant

Falsification Security FormFOUND DELIBERATE

Other

Admitted

—

(c) offense is minor, long ago, infrequent, or unique circumstances

(d) acknowledged the behavior; counseling/positive steps taken

Claimed

Corrected Falsification Promptly

Claimed

Other

2.b

Applicant filled out a second e-QIP on May 7, 2014. He was much more forthcoming about his drug use in Section 23 of this questionnaire. He was also much more truthful during interviews with investigators from the Office of Personnel Management.

For Applicant

Falsification Security Form

—

Admitted

—

(c) offense is minor, long ago, infrequent, or unique circumstances

(d) acknowledged the behavior; counseling/positive steps taken

—

2.c

The SOR also alleged Applicant falsified Government Exhibit 2 by not admitting he used the synthetic hallucinogens 2C-E and 2C-I during 2004 and 2006. However, as stated above, those substances were not Schedule I controlled substances at the time of his use, or at the time he filled out the first questionnaire.

For Applicant

Falsification Security Form

—

Denied

—

(c) offense is minor, long ago, infrequent, or unique circumstances

(d) acknowledged the behavior; counseling/positive steps taken

—

2.d

Applicant did not admit in his 2010 questionnaire that he had used ketamine once in 2006. The SOR alleged that this failure also amounted to a falsification. Given his other admissions on that form of extensive drug use, even though far from complete, I find this omission to be accidental.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

—

Denied

—

(c) offense is minor, long ago, infrequent, or unique circumstances

(d) acknowledged the behavior; counseling/positive steps taken

—

2.e

In his 2010 questionnaire Applicant answered, 'No,' to the question of whether he had ever used an illegal controlled substance while in a position directly or immediately affecting public safety. When Applicant filled out a new e-QIP in 2014 he changed that answer and admitted that he had used drugs while employed as a lifeguard during the summers from 2004 through 2006.

For Applicant

Omission or Failure to DiscloseNOT DELIBERATE

—

Denied

—

(c) offense is minor, long ago, infrequent, or unique circumstances

(d) acknowledged the behavior; counseling/positive steps taken

—

2.f

Applicant has not knowingly used any illegal drugs in seven years as of the date the record closed. He expressed considerable regret at his one-time use of the legal substance salvia in 2012. Applicant has repeatedly stated that he will not use illegal drugs in the future while he holds a security clearance.

For Applicant

Questionable Judgment General

—

Admitted

—

(c) offense is minor, long ago, infrequent, or unique circumstances

(d) acknowledged the behavior; counseling/positive steps taken

—

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant admitted that from approximately 2004 through 2009, when he was in high school and college, he used marijuana approximately 50 times primarily during summer months.	For Applicant	Marijuana	Experimental	Admitted	—	—	—
1.b	Applicant admitted he used various hallucinogenic drugs, including LSD, Ecstasy, ketamine, and psilocybin mushrooms from 2004 through 2009. Applicant estimated he used such substances between 20 and 30 times during this period.	For Applicant	DMT or Other Hallucinogen	Experimental	Admitted	—	—	—
1.c	In 2012 Applicant used the substance. He had used it several times while in college. Department Counsel affirmed that salvia, while a hallucinogen, is not a controlled substance.	For Applicant	Unspecified Drug Involvement	Not Applicable	Admitted	—	—	—
1.d	Applicant admitted using drugs while employed as a lifeguard during the period from 2004 through 2009.	For Applicant	Unspecified Drug InvolvementWHILE CLEARED	Not Applicable	Admitted	—	—	—
1.e	Applicant admitted that he used several other potentially hallucinogenic substances on an experimental basis (usually less than five times for each substance) during the period from 2004 through 2009.	For Applicant	DMT or Other Hallucinogen	Experimental	Admitted	—	—	—
1.f–1.i	4 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)	For Applicant	Unspecified Drug Involvement	Unspecified		—	—	—

Allegation

Finding

Substance / event

Use level

Response

Disqualifying (¶25)

Mitigating applied (¶26)

Mitigation

1.a

Applicant admitted that from approximately 2004 through 2009, when he was in high school and college, he used marijuana approximately 50 times primarily during summer months.

For Applicant

Marijuana

Experimental

Admitted

—

1.b

Applicant admitted he used various hallucinogenic drugs, including LSD, Ecstasy, ketamine, and psilocybin mushrooms from 2004 through 2009. Applicant estimated he used such substances between 20 and 30 times during this period.

For Applicant

DMT or Other Hallucinogen

Experimental

Admitted

—

1.c

In 2012 Applicant used the substance. He had used it several times while in college. Department Counsel affirmed that salvia, while a hallucinogen, is not a controlled substance.

For Applicant

Unspecified Drug Involvement

Not Applicable

Admitted

—

1.d

Applicant admitted using drugs while employed as a lifeguard during the period from 2004 through 2009.

For Applicant

Unspecified Drug InvolvementWHILE CLEARED

Not Applicable

Admitted

—

1.e

Applicant admitted that he used several other potentially hallucinogenic substances on an experimental basis (usually less than five times for each substance) during the period from 2004 through 2009.

For Applicant

DMT or Other Hallucinogen

Experimental

Admitted

—

1.f–1.i

4 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)

For Applicant

Unspecified Drug Involvement

Unspecified

—

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Case Profile

Summary

Why the Applicant Prevailed

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