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ISCR Case 06-24005.h1 — CASE

ISCR Case 06-24005.h1denied

Case Headnote

ISCR Case No. 06-24005.h1

deniedAug 23, 2007· Hon. John Grattan Metz, Jr.· hearing

Summary

A 30-year-old senior consultant was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The denial stemmed from the applicant's deliberate falsification of information on his clearance applications and during polygraph examinations regarding his history of illegal drug use.

Specifically, the applicant concealed his drug use between 1996 and June 2004, answering "no" to questions about illegal drug use on multiple applications, including one in December 2005 for a clearance upgrade. He initially failed to disclose this history during a lifestyle polygraph, only admitting to it under pressure in a subsequent examination. His drug history included marijuana use from 1996 to June 2004, hallucinogenic mushrooms between 2001 and February 2004, and opium at least once in 2000. He also continued marijuana use after receiving an interim secret clearance in June 2004.

The judge found that the applicant's deliberate concealment of his drug history and lack of candor constituted criminal conduct and violated trustworthiness standards. His abstinence from drug use for just over 18 months was deemed insufficient to demonstrate a future intent to refrain. Consequently, the applicant was found unsuitable for a security clearance, and his application was denied.

Why the Applicant Was Denied

The applicant deliberately falsified his clearance applications regarding drug use.
He concealed a significant history of illegal drug use, including marijuana and hallucinogenic mushrooms.
The applicant's lack of candor and intent to conceal relevant information violated trustworthiness standards.

Conditions Referenced

Disqualifying

HraisedDrug Involvement
EraisedPersonal Conduct
JraisedCriminal Conduct

Key Rule Quoted

“The government has a compelling interest in ensuring each Applicant possesses the requisite judgement, reliability, and trustworthiness of those who must protect national interests as their own.”
— Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural Posture

SOR issuedFeb 1, 2007
Answer filedFeb 20, 2007
Hearing heldJul 30, 2007
Decision dateAug 23, 2007

Cite For

Deliberate Falsification of Security Clearance Applications Under Guideline E
Concealment of Drug Use History Under Guideline H
Lack of Candor Impacting Security Clearance Eligibility Under Guideline J

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, citing deliberate falsifications in security clearance applications and a lack of candor regarding drug use. The applicant's conduct was deemed unsuitable for maintaining a security clearance, leading to a denial of the application.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Deliberately concealed his drug use between 1996 and June 2004 by answering 'no' to question 27 (illegal drug use, last seven years).	Against Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	Admitted	—	—	—
1.b	Continued to conceal his drug use by answering 'no' to questions 27 and 28 in his December 2005 application for a clearance upgrade.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	Admitted	—	—	—
1.c	Failed to disclose his illegal drug use during a lifestyle polygraph examination, only admitting to it under pressure during a subsequent examination.	Against Applicant	Lack of Candor in InterviewFOUND DELIBERATE	Drug Involvement	Admitted	—	—	—

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 judge found that the applicant's history of drug use, including marijuana, hallucinogenic mushrooms, and opium, was significant and not infrequent. The applicant's attempts to conceal this history during the clearance application process were deemed deliberate falsifications, leading to a denial of the security clearance. The applicant's abstinence from drug use for just over 18 months was insufficient to mitigate the security concerns.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The applicant has a history of drug abuse, including marijuana use from 1996 to June 2004.	Against Applicant	Marijuana	Regular	Admitted	—	—	—
1.b	The applicant has used hallucinogenic mushrooms between 2001 and February 2004.	Against Applicant	Psilocybin	Regular	Admitted	—	—	—
1.c	The applicant has used opium at least once in 2000.	Against Applicant	Unspecified Drug Involvement	Not Applicable	Admitted	—	—	—
1.d	The applicant continued to use marijuana after being granted an interim secret clearance in June 2004.	Against Applicant	MarijuanaWHILE CLEARED	Regular	Admitted	—	—	—
1.e	The applicant concealed his drug use in his clearance applications.	Against Applicant	Unspecified Drug Involvement	Not Applicable	Admitted	—	—	—
1.f	The applicant's drug use was relevant to a clearance decision and was not disclosed in a timely manner.	Against Applicant	Unspecified Drug Involvement	Not Applicable	Admitted	—	—	—
1.g	The applicant's drug use demonstrates a lack of candor required of cleared personnel.	Against Applicant	Unspecified Drug Involvement	Not Applicable	Admitted	—	—	—
1.h	The applicant's abstinence from drug use for just over 18 months is inadequate to demonstrate an intent to refrain from drug use in the future.	Against Applicant	Unspecified Drug Involvement	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 ruled against the applicant on the Guideline J allegations, finding that the applicant's deliberate concealment of his illegal drug use constituted criminal conduct. The applicant's actions were deemed to violate relevant laws and policies, leading to a denial of his security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	Applicant deliberately concealed his illegal drug use from the government, which constitutes criminal conduct.	Against Applicant	Drug Related Criminal Charge	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—

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; Personal Conduct; Criminal Conduct

DIGEST: Applicant’s deliberate falsifications of his 23 June 2004 and 1 December 2005 clearance applications, and the drug abuse history he concealed, render him unsuitable for a security clearance. Clearance denied.

CASENO: 06-24005.h1

DATE: 08/23/2007

DATE: August 23, 2007

) ) In Re: ) ) ISCR Case No. 06-24005 ------------- ) SSN: ----------- ) ) Applicant for Security Clearance )

DECISION OF ADMINISTRATIVE JUDGE JOHN GRATTAN METZ, JR

APPEARANCES

SYNOPSIS Applicant’s deliberate falsifications of his 23 June 2004 and 1 December 2005 clearance applications, and the drug abuse history he concealed, render him unsuitable for a security clearance. Clearance denied.

STATEMENT OF CASE

Applicant challenges the 1 February 2007 Defense Office of Hearings and Appeals (DOHA) Statement of Reasons (SOR) recommending denial or revocation of his clearance because of drug involvement, personal conduct, and criminal conduct. He answered the SOR 20 February 2007, and requested a hearing. DOHA assigned the case to me 20 June 2007, and I convened a hearing 30 July 2007. DOHA received the transcript (Tr.) 8 August 2007.

FINDINGS OF FACT

Applicant admitted the SOR allegations. Accordingly, I incorporate his admissions as findings of fact. He is a 30-year-old senior consultant employed by defense contractors since June 1997. He seeks to retain the security clearance he obtained fraudulently in July 2004.

When Applicant applied for an industrial clearance in June 2004 (G.E. 1), he deliberately concealed his drug use between 1996 and June 2004 by answering “no” to question 27 (illegal drug use, last seven years). In fact, he had a significant history of marijuana use from 1996 to June 2004, and had used hallucinogenic mushrooms between 2001 and February 2004, and opium at least once in 2000. Based on his false answers, Applicant was granted an interim secret clearance in July 2004. His clearance was transferred when he took employment with a new defense contractor in November 2005.

In December 2005, Applicant applied for a clearance upgrade to top secret/special compartment information (TS/SCI)(G.E. 2) and continued to conceal his drug use by answering “no” to questions 27 (illegal drug use, last seven years) and 28 (illegal drug use while possessing a security clearance). In fact, he had continued to use marijuana after being granted an interim secret clearance in June 2004, to at least a Christmas party in mid-December 2005—after he submitted his application for clearance upgrade. Applicant acknowledged that he falsified his clearance applications because he did not want his employer and the government to know about his drug abuse history.

In January 2006, Applicant was scheduled for a lifestyle polygraph required by another government agency in conjunction with his December 2005 application for an upgraded clearance. During the pre-examination interview, he categorically denied having used illegal drugs. However, after the polygrapher began the examination, she stopped the examination because Applicant was visibly nervous about the drug questions. Applicant then disclosed that he had used illegal drugs, but was too nervous to provided details. The polygraph was rescheduled for February 2006 with a different polygrapher. During the pre-examination interview, Applicant disclosed the full nature and extent of his drug abuse, and the polygrapher was satisfied with the examination results. In June 2006, the government agency denied the requested access to SCI because of Applicant’s drug use and his falsifications of his drug abuse history (G.E. 3).

Applicant accepts full responsibility for his drug use, and acknowledges the invalidity of his past rationalizations: He was under a lot of cultural pressure from his parents to excel in college, but he had poor grades. Drug use allowed him to explain his poor grades to himself. He did, however, understand that drug use was illegal and prohibited by college, employer, and governmental policies.

Applicant states that he has not used any illegal drugs since December 2005, and vows never to use illegal drugs again. He asserts that he no longer associates with most of the crowd that he used drugs with. However, he also used marijuana with his brother and his girlfriend-then-wife. She was a sporadic user with Applicant, but did not know the full extent of his marijuana use when she was not around. She stopped using marijuana in early 2006, when she became pregnant with their daughter, now nine-months-old. Applicant cites his new family obligations as further incentive to remain drug free. Applicant has disclosed his full drug history to his wife and his brother. Nevertheless, neither his parents nor his sister are aware of his drug history. The record contains no independent evidence of Applicant’s work performance or character.

POLICIES AND BURDEN OF PROOF

The Directive, Enclosure 2 lists adjudicative guidelines to be considered in evaluating an Applicant’s suitability for access to classified information. Administrative Judges must assess both disqualifying and mitigating conditions under each adjudicative issue fairly raised by the facts and circumstances presented. Each decision must also reflect a fair and impartial common sense consideration of the factors listed in Section 6.3. of the Directive. The presence or absence of a disqualifying or mitigating condition is not determinative for or against Applicant. However, specific adjudicative guidelines should be followed whenever a case can be measured against them, as they represent policy guidance governing the grant or denial of access to classified information. Considering the SOR allegations and the evidence as a whole, the relevant, applicable, adjudicative guidelines are Guideline H (Drug Involvement), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct).

Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an Applicant’s security clearance. The government must prove, by something less than a preponderance of the evidence, controverted facts alleged in the SOR. If it does so, it establishes a prima facie case against access to classified information. Applicant must then refute, extenuate, or mitigate the government’s case. Because no one has a right to a security clearance, the Applicant bears a heavy burden of persuasion.

Persons with access to classified information enter into a fiduciary relationship with the government based on trust and confidence. Therefore, the government has a compelling interest in ensuring each Applicant possesses the requisite judgement, reliability, and trustworthiness of those who must protect national interests as their own. The “clearly consistent with the national interest” standard compels resolution of any reasonable doubt about an Applicant’s suitability for access in favor of the government.2

CONCLUSION

The government established a case for disqualification under Guideline H, and Applicant failed to mitigate the security concerns. Applicant’s use and purchase of marijuana, use and purchase of hallucinogenic mushrooms, and use of opium are neither distant in time or infrequent. His abstinence from drug use—just over 18 months—is inadequate to demonstrate an intent to refrain from drug use in the future. I cannot conclude Applicant is unlikely to use illegal drugs in the future. Accordingly, I resolve Guideline H for Applicant.

The government established a case for disqualification under Guideline E and J, and Applicant did not mitigate the security concerns. He deliberately concealed his illegal drug use from the government. He did so knowing that his illegal drug use was prohibited by both company and governmental policies. But for the polygraph examination, he might never have disclosed the truth. Further, none of the Guideline E mitigating conditions apply. The concealed information was relevant to a clearance decision. Applicant’s falsifications prohibited the government from evaluating his illegal drug use in a timely fashion, and at a time when such recent drug use would have raised significant security concerns. In addition, the government detrimentally relied on Applicant’s falsifications in granting his clearance. Finally, his disclosure of illegal drug use in February 2006 was neither prompt nor forthright. Indeed, for practical purposes, it was forced from him.

Applicant’s Answer clearly establishes that he intended to conceal his illegal drug use from the government and effect the course of his background investigation. This conduct violated 18 U.S.C. §1001, whether he was successful in effecting the course of his investigation or not. However, in this case his falsifications did influence the investigation, and he was granted his clearance.

after being granted a security clearance; Applicant’s failure to disclose his illegal drug use demonstrates a lack of candor required of cleared personnel. The government has an interest in examining all relevant and material adverse information about an Applicant before making a clearance decision. The government relies on applicants to truthfully disclose that adverse information in a timely fashion, not when it is perceived to be prudent or convenient. Further, an applicant’s willingness to report adverse information about himself provides some indication of his willingness to report inadvertent security violations or other security concerns in the future, something the government relies on to perform damage assessments and limit the compromise of classified information. Applicant’s conduct suggests he is willing to put his personal needs ahead of legitimate government interests. I resolve Guideline E and J against Applicant.

FORMAL FINDINGS

Paragraph 1. Guideline H: AGAINST APPLICANT

Subparagraph a: Against Applicant Subparagraph b: Against Applicant Subparagraph c: Against Applicant Subparagraph d: Against Applicant Subparagraph e: Against Applicant Subparagraph f: Against Applicant Subparagraph g: Against Applicant Subparagraph h: Against Applicant

Paragraph 1. Guideline E: AGAINST APPLICANT

Subparagraph a: Against Applicant Subparagraph b: Against Applicant Subparagraph c: Against Applicant

Paragraph 2. Guideline J: AGAINST APPLICANT

Subparagraph a: Against 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 denied.

John G. Metz, Jr. Administrative Judge

FOOTNOTES

FOR GOVERNMENT Gina Marine, Esquire, Department Counsel

FOR APPLICANT Pro Se Required by Executive Order 10865 and Department of Defense Directive 5220.6, as amended and modified—most recently in August 2006 (Directive). See, Department of the Navy v. Egan, 484 U.S. 518 (1988).

¶25.(a) any drug abuse. . .; (c) illegal drug possession, including. . . purchase. . . ; (c) any illegal drug use

¶26.(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;

¶26.(b). a demonstrated intent not to abuse any drugs in the future, such as; . . . (3) an appropriate period of abstinence;

¶16.(a) deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, . . . [or] determine security clearance eligibility or trustworthiness. . .;

¶31.(a) a single serious crime or multiple lesser offenses; (c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted;