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ISCR Case 16-00627.h1 — CASE

ISCR Case 16-00627.h1denied

Case Headnote

ISCR Case No. 16-00627.h1

deniedJul 17, 2017· Hon. Darlene Lokey Anderson· hearing

Summary

The security clearance application of a 59-year-old male with a Master's Degree was denied by Administrative Judge Darlene D. Lokey Anderson, primarily due to concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The applicant admitted to using marijuana on various occasions from 2008 to 2013, a period during which he held a security clearance. This history of drug use, particularly while cleared, raised concerns about his reliability and adherence to regulations.

Further issues arose from the applicant's security clearance application itself. He failed to disclose his marijuana use and falsely answered "NO" when asked if he had ever illegally used drugs while possessing a security clearance. These omissions and false statements were considered significant under Guideline E, indicating a lack of candor with the government.

Additionally, the applicant's history of DUI arrests was cited as evidence of poor judgment and unreliability. Despite some mitigating conditions being considered under both guidelines, the cumulative weight of admitted illegal drug use while cleared, providing false information on his application, and a history of DUI arrests led to the denial of his security clearance.

Why the Applicant Was Denied

Applicant admitted to illegal drug use while holding a security clearance.
Applicant provided false information on his security clearance application regarding drug use.
Applicant's history of DUI arrests demonstrates poor judgment and unreliability.

Conditions Referenced

Disqualifying

H.1.araisedAny Substance Abuse
H.1.craisedIllegal Possession of a Controlled Substance
H.1.fraisedIllegal Drug Use While Granted Access to Classified Information
E.2.draisedCredible Adverse Information

Mitigating

H.2.arejectedBehavior Happened so Long Ago, Was Infrequent, or Unlikely to RecurApplicant's marijuana use occurred multiple times while holding a security clearance, showing poor judgment.
E.3.crejectedOffense Is Minor or Unlikely to RecurApplicant's pattern of dishonesty and failure to disclose drug use is not considered minor.

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedNov 21, 2016
Answer filedJan 6, 2016
Hearing heldMay 11, 2017
Decision dateJul 17, 2017

Cite For

Denial Based on Illegal Drug Use While Holding a Security Clearance
False Statements on Security Clearance Application
Pattern of Dishonesty Affecting Security Clearance Eligibility

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 all allegations under Guideline E, Personal Conduct. The applicant's failure to disclose marijuana use on his security clearance application and his history of DUI arrests raised significant concerns about his reliability and trustworthiness. The judge concluded that the applicant did not mitigate these concerns, resulting in 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 security clearance application.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	Denied	—	—	—
2.b	Applicant answered 'NO' to whether he has ever illegally used or otherwise been involved with a drug or controlled substance while possessing a security clearance.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	Denied	—	—	—
2.c	Applicant's marijuana use shows a pattern of rule violations.	Against Applicant	Pattern of Dishonesty or Rule Violations	—	Denied	—	—	—
2.d	Applicant's history of DUI arrests demonstrates poor judgment and unreliability.	Against Applicant	Questionable Judgment General	—	Denied	—	—	—

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

Posture: Decision on RecordDecided: denied

The applicant admitted to multiple instances of marijuana use from 2008 to 2013 while holding a security clearance, which raised significant concerns regarding his reliability and trustworthiness. The judge found that the applicant's drug involvement did not meet the criteria for mitigation, leading to a denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant has a history of marijuana use that he has not been candid about with the Government.	Against Applicant	MarijuanaWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (f) any illegal drug use while holding a clearance or sensitive position	—	—
1.b	Applicant used marijuana from 2008 until 2013, on various occasions.	Against Applicant	MarijuanaWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (f) any illegal drug use while holding a clearance or sensitive position	—	—
1.c	Applicant's marijuana use occurred a number of times from 2008 to 2013 while holding a security clearance.	Against Applicant	MarijuanaWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (f) any illegal drug use while holding a clearance or sensitive position	—	—

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. 16-00627 ) ) Applicant for Security Clearance )

For Government: Adrienne Driskill, Esq., Department Counsel For Applicant: Pro se

July 17, 2017 ______________

STATEMENT OF CASE

______________

LOKEY ANDERSON, Darlene D., Administrative Judge:

Statement of the Case

On November 21, 2016, in accordance with DoD Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns under Guidelines H and E.1 The SOR further informed Applicant that, based on information available to the government, DoD adjudicators could not make the preliminary affirmative finding it is clearly consistent with the national interest to grant or continue Applicant’s security clearance.

Applicant answered the SOR on January 6, 2016, and requested a hearing before an administrative judge. (Answer.) The case was assigned to me on March 8, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing

1 I considered the previous Adjudicative Guidelines, effective September 1, 2006, as well as the new that same day, scheduling the hearing for May 11, 2017. The hearing was convened as scheduled. The Government offered exhibits 1 through 3, which were admitted without objection. Applicant offered exhibits A through C, which were also admitted without objection. Applicant testified on his own behalf. DOHA received the transcript of the hearing (Tr.) on May 19, 2017.

FINDINGS OF FACT

Applicant admitted each of the allegations in the SOR under Guideline H Drug Involvement and Substance Abuse. After a thorough and careful review of the pleadings, exhibits, and testimony, I make the following findings of fact.

Applicant is 59 years old, and divorced with two adult children. He possesses a Master’s Degree in Systems Management as well as other post-Master education. Applicant is employed as a Subcontract Manager and seeks to regain a security clearance in conjunction with his employment.

Applicant served in the U.S. Air Force from 1980 to 1987. He entered the ROTC and was later commissioned as an officer. At some point during his military career, Applicant stole a piece of Government property, a table, so he could set up an office, off base at his home. He received an Article 32, for his misconduct and the command allowed him to resign. He received an Other Than Honorable Discharge. (Tr. p. 28.)

Applicant has a history of marijuana use that he has not been candid about with the Government. Applicant has been working for his current employer for the past 29 years. He was granted a security clearance in 2007. During his employment with a defense contractor, he used marijuana from 2008 until 2013, on various occasions. Applicant explained that he belongs to a ski club comprised of a group of middle-aged guys that schedule four ski trips a year. Applicant joins the group on these ski trips once or twice a year. During this event, Applicant used marijuana on at least three separate occasions. He believes his use of marijuana to be trivial and so he did not list it on his security clearance application. Applicant states that he is not a drug user nor are his ski club member who are professionals. Applicant stated that he intends to continue his association with his friends in the ski club. They are casual friends and not close friends. Since his last marijuana use in 2013, he has not been involved or associated with any illegal drug use.

Applicant also admitted each of the allegations under Guideline E, Personal Conduct. Applicant completed a security clearance application dated January 27, 2015. Section 23 of the application asked him if in the last seven years had he illegal used any drug or controlled substances. The Applicant answered, “NO”. This was a false answer. Applicant failed to list his marijuana use discussed above.

Section 23 of the same security clearance application also asked the Applicant if he has ever illegally used or otherwise been involved with a drug or controlled substance while possessing a security clearance other than previously listed? Applicant again answered, NO”. This was also a false answer. Again, Applicant failed to list his marijuana use discussed above.

Applicant explained to the investigator when questioned as to why he excluded the information about his marijuana use on his security clearance application that, it was simply an oversight on his part. Applicant considers the activity to have occurred long ago, was minor in nature, and infrequent.

In February 2005, Applicant was arrested a third time for Driving Under the Influence of Alcohol (DUI). Applicant explained that his use of alcohol to excess occurred during a period associated with his marriage and subsequent divorce. His first arrest for DUI occurred in 1990, and the second in 1993. He believes that he has learned from his mistakes of the past. He no longer abuses alcohol and has not had any alcohol related incidents in the last eleven years.

Email correspondence to Applicant from various professional associates including a Legal Counsel, the Vice President and others regarding Applicant’s performance assessment indicates that he is a great performer, very responsible, and highly regarded. (Applicant’s Exhibits A, B and C.)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines (AG). 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 AG ¶ 2 describing 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 access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record.

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, and has the ultimate burden of persuasion as to obtaining a favorable clearance decision.”

A person who applies for access to classified information seeks to enter 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 protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to 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 Abuse

The security concern relating to the guideline for Drug Involvement and Substance Abuse is set out in AG ¶ 24:

The Illegal use of controlled substances to include the misuse of prescription and non-prescription drugs, and 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 . . . that raise questions about a person’s ability or willingness to comply with laws, rules, and regulations.

The guideline at AG ¶ 25 contains seven disqualifying conditions that could raise a security concern and may be disqualifying. Three conditions apply, as discussed below:

(a) any substance abuse

(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. The guideline in AG ¶ 26 contains four conditions that could mitigate drug involvement and substance abuse security concerns. One is 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.

Applicant’s marijuana use occurred a number of times from 2008 to 2013 while holding a security clearance. This shows poor judgment and unreliability. There is no mitigation for such misconduct, regardless of how long ago his last use occurred.

Guideline E: Personal Conduct

The security concern relating to the guideline for Personal Conduct is set out in AG ¶ 15:

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. The following will normally result in an unfavorable national security eligibility determination, security clearance action, or cancellation of further processing for national security eligibility:

(a) refusal, or failure without reasonable cause, to undergo or cooperate with security processing, including but not limited to meeting with a security investigator for subject interview, completing security forms or releases, and cooperation with medical or psychological evaluation,

(b) refusal to provide full, frank and truthful answers to lawful questions of investigators, security officials, or other official representatives in connection with a personnel security or trustworthiness determination.

The guideline at AG ¶ 16 contains seven disqualifying conditions that could raise security concerns. Two disqualifying conditions may apply:

(d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information. This includes, but is not limited to, consideration of: (3) a pattern of dishonesty or rule violations.

The guideline at AG ¶ 17 contains seven conditions that could mitigate security concerns. One of them may apply to Applicant:

(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.

Applicant’s use of marijuana shows a pattern rule violations. He has worked in the defense industry for almost 30 years and clearly understands the requirement to abstain from illegal drug use. Furthermore, his failure to disclose his marijuana use on his security clearance complicates matters even more and occurred as recently as 2015. This falsification is not a minor offense. Considering his background and experience in the industry, he knew or should have known to tell the truth on the application. Applicant was given more than one opportunity on the application to reveal his drug use and he repeatedly failed to do so. Finally, Applicant’s arrest history for Driving Under the Influence of Alcohol on three separate occasions shows further poor judgment. Considered together, there is no mitigation for this misconduct, which clearly casts doubt on his reliability, trustworthiness and good judgment.

WHOLE PERSON ANALYSIS

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 pertinent facts and circumstances surrounding this case. I have incorporated my comments under the guidelines for Drug Involvement and Personal Conduct Conditions in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but additional comment is warranted.

Applicant has twelve employees that work directly for him. His conduct regarding his honesty and integrity as it applies to security rules and regulations falls short of meeting security clearance eligibility. He states that his company trusts him to spend up to 15 million dollars of company money without oversight from management. He is obviously well respected at work and he performs great on the job. But in order to hold a security clearance much more is required.

Overall, the record evidence leaves me with questions or doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the Drug Involvement and Substance Abuse Concern, and the Personal Conduct security concern.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of the Directive, are:

Paragraph 1, Guideline H: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant Subparagraph 1.b: Against Applicant Subparagraph 1.c: Against Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant Subparagraph 2.b: Against Applicant Subparagraph 2.c: Against Applicant Subparagraph 2.d: Against Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, 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.

________________________ Darlene Lokey Anderson Administrative Judge

FOOTNOTES

Adjudicative Guidelines, effective June 8, 2017. My decision would be the same if the case was considered under the previous Adjudicative Guidelines, effective September 1, 2006.