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ISCR Case 07-11307.h1 — CASE

ISCR Case 07-11307.h1denied

Case Headnote

ISCR Case No. 07-11307.h1

deniedSep 30, 2008· Hon. John Grattan Metz, Jr.· hearing

Summary

A 37-year-old data monitor for a defense contractor was denied a security clearance due to concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The applicant's history of marijuana use and his failure to fully disclose this information during the application process were central to the decision.

Specifically, the applicant failed to disclose marijuana use in 1998, prior to military enlistment, and resumed use in 2001 while in the military. This military use resulted in positive urinalyses in August, October, and December of 2001. Additionally, the applicant did not disclose marijuana use in the summer of 2005, just months before applying for the clearance. While he did disclose a single instance of marijuana use in August 2001, these other instances were omitted.

The judge determined that the applicant's repeated omissions and misrepresentations regarding his drug history demonstrated a lack of candor and trustworthiness. This pattern of falsification undermined his assertions of rehabilitation and future abstinence, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant had a history of marijuana use spanning multiple years, including periods before, during, and after military service.
The applicant failed to disclose prior marijuana use and misrepresented the extent of his drug use during the clearance application process.
The applicant's past falsifications undermined his claims of rehabilitation and intent to abstain from drug use in the future.

Conditions Referenced

Disqualifying

H ¶ 25(a)raisedDrug Abuse
H ¶ 25(c)raisedIllegal Drug Possession
E ¶ 16(a)raisedDeliberate Omission or Falsification

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 issuedMay 8, 2008
Answer filedUndated
Hearing heldN/ARequested decision without hearing.
Decision dateSep 30, 2008

Cite For

Lack of Candor in Security Clearance Applications Under Guideline E
Disqualification Due to Drug Involvement Under Guideline H
Importance of Full Disclosure in Security Clearance Evaluations

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 concealment of illegal drug use and misrepresentation of facts on security forms. The applicant's failure to disclose relevant information demonstrated a lack of candor, leading to the denial of the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant failed to disclose that he had used marijuana in 1998, before enlisting in the military.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Other	Denied	—	—	—
2.b	Applicant failed to disclose that he resumed using marijuana while in the military in 2001.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Other	Denied	—	—	—
2.c	Applicant failed to disclose that he had used marijuana in summer 2005, just months before applying for his clearance.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Other	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 judge found multiple instances of marijuana use by the applicant, including use while in the military and shortly before applying for a security clearance. The applicant's failure to disclose prior drug use and misrepresentation of facts during investigations contributed to the decision. Ultimately, the judge ruled against the applicant on all allegations under Guideline H, concluding that the applicant did not mitigate the security concerns related to drug involvement.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant disclosed a one-time use of marijuana in August 2001, but failed to disclose that he had used marijuana in 1998, before enlisting in the military.	Against Applicant	Marijuana	Occasional	Admitted	—	—	—
1.b	Applicant failed to disclose that he resumed using marijuana while in the military in 2001.	Against Applicant	MarijuanaWHILE CLEARED	Occasional	Denied	—	—	—
1.c	Applicant failed to disclose that he had used marijuana in summer 2005, just months before applying for his clearance.	Against Applicant	Marijuana	Occasional	Admitted	—	—	—
1.d	Applicant's marijuana use while in the military resulted in positive urinalyses in August 2001, October 2001, and December 2001.	Against Applicant	Drug Test FailureWHILE CLEARED	Not Applicable	Admitted	—	—	—

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. 07-11307 SSN: ) ) Applicant for Security Clearance )

For Government: Ray T. Blank Jr., Esquire, Department Counsel For Applicant: Pro se

September 30, 2008 ______________

STATEMENT OF CASE

______________

METZ, John Grattan, Jr., Administrative Judge:

On 8 May 2008, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines H, and E. Applicant submitted an undated answer, and requested a decision without hearing. DOHA assigned the case to me 26 September 2008. The record in this case closed 24 September 2008, the day Department Counsel indicated no objection to Applicant’s response to the government’s File of Relevant Material (FORM).

FINDINGS OF FACT

Applicant admitted the SOR allegations, except for SOR 1.b. He is a 37-year-old data monitor employed by a defense contractor since October 2005. He has not previously held a clearance.

When Applicant completed a clearance application in October 2005 (Item 4), he disclosed a one-time use of marijuana in August 2001 (question 24), his non-judicial punishment for a positive urinalysis in October 2001 (question 23), and his resulting general (under honorable conditions) discharge from the military in December 2001 (question 19). He failed to disclose that he had used marijuana in 1998, before enlisting in the military. He failed to disclose that he resumed using marijuana while in the military in 2001. He failed to disclose that he had used marijuana in summer 2005, just months before applying for his clearance.

Applicant’s marijuana use while in the military resulted in positive urinalyses in August 2001, October 2001, and December 2001. He received non-judicial punishment for these offenses in December 2001, and was processed for administrative separation from the military effective the end of December 2001.

When military law enforcement officials began investigating Applicant’s positive urinalyses in October 2001, Applicant denied having ever used any illegal drugs, including marijuana. Applicant made this false statement because he was trying to protect himself (Item 5). When Applicant answered government interrogatories in October 2007 (Item 5), he misrepresented the extent of his drug use, claiming to have used marijuana once in summer 2005, and once in June/July 2001. He stated an intent to not use illegal drugs in the future.

Applicant asserts that he has not used marijuana since summer 2005, and has no intent to do so. He claims he does not associate any more with marijuana smoking acquaintances. He cites his increased maturity, his marriage in September 2003, and his trying to start a family with his wife as reasons he will not use drugs in the future.

POLICIES

The Revised Adjudicative Guidelines (RAG) list factors 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 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 RAG ¶ 2(a). The presence or absence of a disqualifying or mitigating condition is not determinative for or against Applicant. However, specific adjudicative guidelines should be followed where 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) and Guideline E (Personal 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

ANALYSIS

The government established a case for disqualification under Guideline H, by demonstrating Applicant’s sporadic marijuana use 1998 and summer 2005. However, Applicant has not mitigated the security concerns. There was nothing unusual about the circumstances of his marijuana use, so I cannot conclude that the marijuana use is unlikely to recur. He has not demonstrated intent to not abuse these drugs in the future. Applicant’s marijuana use occurred in three different periods of his life, before, during, and after his military service. All the marijuana use occurred after he was 27 years old. Without some corroboration of his changed circumstances or his character and work, his past falsifications make it difficult to credit his claims of rehabilitation. Under these circumstances I cannot conclude that Applicant is unlikely to use drugs in the future. Accordingly, I resolve Guideline H against Applicant.

The government established a case for disqualification under Guideline E, and Applicant did not mitigate the security concerns. He deliberately concealed his illegal drug use during a criminal investigation in October 2001, and misrepresented the extent of his marijuana use in October 2005 and October 2007. He did so knowing that these issues were of security concern to the government.

None of the Guideline E mitigating conditions apply. The concealed information was relevant to a clearance decision. His eventual disclosures cannot be considered either forthright or prompt.

Applicant’s failure to disclose his illegal drug use and financial issues 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 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

Paragraph 2. Guideline E: AGAINST APPLICANT

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

CONCLUSION

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 GRATTAN METZ, JR Administrative Judge

FOOTNOTES

DOHA acted under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1990), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive), and the revised adjudicative guidelines (RAG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006. See, Department of the Navy v. Egan, 484 U.S. 518 (1988).

¶25.(a) any drug abuse ; (c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia;

¶ 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 [Emphasis supplied];

¶ 26.(b) a demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of abstinence; (4) a signed statement of intent with automatic revocation of clearance for any violation. ¶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. . .;