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ISCR Case 08-03416.h1 — CASE

ISCR Case 08-03416.h1denied

Case Headnote

ISCR Case No. 08-03416.h1

deniedJan 26, 2010· Hon. Shari Dam· hearing

Summary

A 41-year-old welder was denied a security clearance under Guidelines E (Personal Conduct), H (Drug Involvement), and J (Criminal Conduct) due to a history of issues in these areas. The Statement of Reasons cited the applicant's deliberate failure to disclose illegal drug use on his e-QIP and his omission of 2005 drug abuse treatment during a February 2008 interview. Additionally, an August 2008 affidavit contained an inconsistent description of a 2007 alcohol relapse compared to a prior statement.

The judge found that the applicant's failure to disclose past drug use and criminal history during the security clearance process significantly undermined his reliability and trustworthiness. Disqualifying conditions E2.a, H1.a, and H1.c were raised, while mitigating conditions E2.a and H2.a were applied.

Ultimately, the denial was based on the applicant's lack of candor regarding his drug use and treatment history, with his explanations for these omissions deemed not credible. His history of criminal conduct, including multiple felonies and substance abuse, further contributed to the decision.

Why the Applicant Was Denied

The applicant failed to disclose illegal drug use on his e-QIP and during interviews, raising concerns about his candor and reliability.
The applicant's explanations for omissions were deemed not credible, particularly regarding his drug use and treatment history.
The applicant's history of criminal conduct, including multiple felonies and substance abuse, contributed to the denial.

Conditions Referenced

Disqualifying

E2.araisedDeliberate Omission, Concealment, or Falsification of Relevant Facts
H1.araisedAny Drug Abuse
H1.craisedIllegal Drug Possession

Mitigating

E2.arejectedPrompt, Good-faith Efforts to Correct the OmissionThe applicant did not voluntarily disclose his history of illegal drug abuse.
H2.arejectedBehavior Happened so Long AgoThe applicant's drug use was not infrequent and occurred within the relevant timeframe.

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural Posture

SOR issuedSep 30, 2009
Answer filedOct 16, 2009
Hearing heldJan 26, 2010
Decision dateFeb 3, 2010

Cite For

Failure to Disclose Drug Use During the Security Clearance Process Under Guideline E
Impact of Criminal History on Security Clearance Eligibility Under Guideline J
Credibility of Applicant's Explanations for Omissions 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 E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on two allegations of personal conduct under Guideline E, specifically regarding the deliberate omission of illegal drug use on the e-QIP and during an interview. However, the judge found in favor of the applicant on one allegation related to the accuracy of an affidavit concerning a past alcohol relapse. Overall, the applicant's personal conduct concerns were not mitigated, leading to a denial of security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant deliberately failed to disclose illegal drug use on the e-QIP.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official	—	—
1.b	During the February 2008 interview, Applicant did not disclose the 2005 treatment for drug abuse.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	Denied	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official	—	—
1.c	In the August 2008 affidavit, Applicant's description of his 2007 alcohol relapse was inconsistent with his prior statement about it.	For Applicant	Lack of Candor in Interview	—	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 that the applicant had a history of drug involvement, including marijuana and other substances, but ruled in favor of the applicant on all allegations under Guideline H. The applicant demonstrated a commitment to sobriety and abstinence from drugs since 2005, which contributed to the favorable findings.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a–2.h	8 sub-charges — specific text not stated in this decision (for the applicant).	For Applicant	Unspecified Drug Involvement	Unspecified		—	—	—

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 found against the applicant on the criminal conduct allegations, specifically ruling against him on the DWI charge and the theft of a motor vehicle. The applicant's history of criminal behavior raised significant concerns regarding his reliability and trustworthiness, leading to the denial of his security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a–3.f	2 sub-charges — specific text not stated in this decision (against the applicant).	Against Applicant		—		—	—	—

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

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 08-03416 ) ) Applicant for Security Clearance )

For Government: Paul M. Delaney, Esquire, Department Counsel For Applicant: Pro Se

March 24, 2010 ______________

STATEMENT OF CASE

______________

DAM, Shari, Administrative Judge:

Based upon a review of the record evidence as a whole, eligibility for access to classified information is denied.

On September 30, 2009, the Defense Office of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR), detailing security concerns under Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), 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 (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense for SORs issued after September 1, 2006.

Applicant answered the SOR in writing on October 16, 2009, and requested a hearing before an administrative judge. On November 16, 2009, DOHA assigned the case to another administrative judge, and re-assigned it to me on December 4, 2009. DOHA issued a Notice of Hearing on December 18, 2009. The case was heard on January 26, 2010, as scheduled. Department Counsel offered Government Exhibits (GE) 1 through 10 into evidence without objection. Applicant testified and offered Applicant Exhibit (AE) A into evidence without objection. DOHA received the hearing transcript on February 3, 2010.

FINDINGS OF FACT

In his Answer, Applicant denied the three allegations in ¶ 1 of the SOR; he admitted the allegations in ¶¶ 2.a through 2.f, and 2.h, and denied the allegation in ¶ 2.g; he admitted the allegations in ¶¶ 3.a through 3.d, and denied those in ¶¶ 3.e and 3.f. His admissions are incorporated into the findings of fact herein:

Applicant is 41 years old and has been married since July 1997. In February 2009, he was awarded custody of his 13-year-old daughter from a previous relationship. (AE A.) In May 2007, he began a position as a welder for a defense contractor. Before that, he was unemployed for five months. From April 2003 to January 2007, he had a steady position with a large contractor. He worked for eleven years as a welder for another company prior to that job. He stated that he is a good, steady worker. (Tr. at 26.)

Applicant began consuming alcohol in 1986, at the age of 17. Initially, he drank occasionally, but gradually increased his consumption to a case of beer on weekends. (GE 4 at 6.) He consumed alcohol to the point of intoxication. (Id. at 9.) In 1987, he began smoking marijuana on a monthly basis. Within two to three years, he used it on a daily basis. He continued to use marijuana until 2005. (Tr. at 29.) He also occasionally experimented with amphetamines, cocaine, and other illegal substances during his 20’s and early 30’s. (Answer.) He admitted that he is addicted to both alcohol and marijuana. He has no intention to use either substance again. (GE 4. at 2.)

Applicant has a history of criminal incidents. In 1987 or 1988, he was arrested and charged with Driving While Intoxicated (DWI) when he was 17 years old and recently out of high school. He and his friends had been consuming alcohol at a softball tournament before the arrest. (Tr. at 53.) He was found guilty and placed on probation for an unrecalled period of time. (GE 3 at 13.)

On May 11, 1990, Applicant was charged with Theft of a Motor Vehicle, a felony. He stole a car that was donated to a not-for-profit organization where he was working, and gave it to his sister. (Tr. at 56-57.) He pled guilty and was sentenced to five years of probation. He was incarcerated for about ten days. (GE 4 at 8.)

On April 2, 1991, Applicant was charged with Burglary II, a felony, after he stole a stereo from his ex-girlfriend’s boyfriend, with whom he had an altercation. Prior to being arrested, Applicant admitted to the boyfriend that he took the stereo. (Tr. at 62.) In June 1991, he was sentenced to 27 months incarceration, suspended, and placed on probation for ten years. In order to decrease those ten years, he served one year and one day in jail, and then a short period of probation. (GE 3 at 14; Tr. at 68.)

On November 6, 1992, Applicant was arrested and charged with another DWI, a gross misdemeanor. In January 1994, 15 months later, he pled guilty, was fined $450, and was sentenced to one year of confinement, followed by two years of probation. (GE 6.) He was released from his sentence and probation in early 1995. (GE 4 at 3; GE 6.)

Applicant admitted that he and friends stole items in order to support their drug or alcohol addictions in the early 1990’s. (Tr. at 65.) In fact, when he was arrested in April 1991, the police found a compact disc player he stole from a co-worker on January 25, 1989. (GE 7.) Applicant has not been involved in any criminal activity since he was released from confinement and probation in 1995, about 15 years ago. (GE 3; Tr. at 66.)

On May 16, 2005, Applicant voluntarily entered a 30-day inpatient treatment program for alcohol abuse because it (and not drugs) was creating a major problem in his life, with his family, and the legal system. He did not enter treatment for drug addiction as alleged in SOR ¶ 2.g. (Tr. at 32, 49, 50.) At the time of his admittance into the program, he received four diagnoses: Alcohol Dependence; Cannabis Dependence; Cocaine Abuse; and Amphetamine Abuse. A licensed alcohol and drug counselor (LADC) documented the same diagnoses when he completed inpatient treatment on June 21, 2005, and recommended that he attend 12 hours of weekly aftercare, participate in a minimum of two outside support group meetings per week, abstain from all mood altering chemicals, and, maintain consistent contact with a sponsor. His prognosis was “Good.” (GE 5.) He started the outpatient aftercare treatment program on June 23, 2005, and completed it on October 13, 2005. His discharge diagnoses remained: Alcohol Dependence; Cannabis Dependence; Cocaine Abuse; and Amphetamine Abuse. The LADC discharged him with a “Fair” prognosis and recommended that he abstain from all mood-altering chemicals, obtain and maintain weekly contact with a sponsor; attend at least one support meeting a week; and follow through on recommendations of the Primary Treatment and Aftercare program. (Id.)

Applicant has remained drug free and sober since May 9, 2005, except for an incident in 2007 when he drank several beers and became intoxicated at a golf outing. (GE 3 at 15; Tr. at 79.). He attended a support group for six months after completing the aftercare program in October 2005. (Tr. at 37.) He manages to remain sober and abstain from drugs because he is committed to sobriety and abstinence and no longer associates with his previous friends. (Tr. at 38.) Since working for the defense contractor, he has had four random drug screenings.1 (Tr. at 35.)

In May 2007, Applicant completed an electronic security clearance application (e- QIP). In response to Section 24: Your Use of Illegal Drugs and Drug Activity: a. Since the age of 16 or in the last 7 years, whichever is shorter, have you illegally used any controlled substance, for example, marijuana, cocaine, crack cocaine, hashish, narcotics (opium, morphine, codeine, heroin, etc.) hallucinogenic (LSD, PCP, etc.), or prescription drugs?” Applicant answered “no.” In response to Section 25: Your Use of Alcohol: In the last 7 years, has your use of alcoholic beverages (such as liquor, beer, wine) resulted in any alcohol-related treatment or counseling (such as for alcohol abuse or alcoholism)?” he answered “yes.” He disclosed the May 2005 treatment program.

In February 2008, Applicant was interviewed by a government investigator about his treatment for alcohol abuse and the criminal incidents that he disclosed on the e- QIP. During that interview, he extensively discussed both topics, but did not mention anything about illegal drug use. (GE 3.) He said that he remained sober since May 2005, except for one night when he relapsed and drank to the point of intoxication. He called his wife who drove him home. (Id. at 15.)

Subsequent to that interview, the Government obtained a copy of Applicant’s Discharge Summaries from the treatment center he entered in May 2005. The summaries detail Applicant’s history of alcohol and chemical dependency. (GE 5.)

On August 2, 2008, a government investigator interviewed Applicant about his alcohol and illegal drug use and drafted an affidavit summarizing the interview. Applicant initialed each page of the affidavit and signed the last page. The affidavit contains information about Applicant’s treatment for substance abuse in 2005. It noted that Applicant stated that he remained sober since completing the treatment program in 2005, “except for one incident in 2007 (precise date unrecalled) when I had one beer to drink.” (GE 4 at 1.) He asserted that he was certain that he mentioned his drug use during the February 2008 interview. (Id. at 2.)

On June 10, 2009, Applicant completed Interrogatories related to illegal drug use. He indicated that he regularly used drugs from the age of 18 to 36 years old. He noted the last time he used marijuana was May 10, 2005. He admitted that he purchased drugs, but never sold them. He experimented with cocaine, crack cocaine, mushrooms, LSD, crank, and speed, but did not use them regularly. He stated he had no intention to use illegal drugs in the future. (GE 2.)

The SOR alleged in Paragraph 1 that Applicant deliberately failed to disclose pertinent information three times during the security clearance process: (1) in his answer to Question 24 on the May 2007 e-QIP, he did not disclose illegal drug use; (2) during the February 2008 interview, he did not disclose the 2005 treatment for drug abuse; and (3) in the August 2008 affidavit, his description of his 2007 alcohol relapse was inconsistent with his prior statement about it. Applicant denied that he intentionally failed to disclose requested information. (Tr. at 46.) His employer did not provide any assistance in completing the forms. (Tr. at 73.)

Applicant testified that he misread Question 24. In his mind, all of the criminal behavior, including his illegal drug use, occurred more than seven years ago. He knew that the last criminal activity for which he was incarcerated occurred 15 years before and he simply did not think about the 2005 illegal drug usage while completing the e- QIP. (Tr. at 41-43, 80.) Later during his testimony, he stated that he did not try to hide his past, but probably tried “to block off” past events from his mind, feeling that he “paid his debt to society.” (Tr. at 75.)

During the February 2008 interview, Applicant did not mention that he received treatment for illegal drug abuse. He did not think that it was necessary because it was not the main reason he voluntarily entered the rehabilitation program. (Tr. at 44.)

Applicant denied that he told the investigator who drafted the August 2008 affidavit that he had only one beer when he relapsed in 2007. He specifically remembered telling the investigator that he was intoxicated and that his wife had to drive him home. (Tr. at 45). That testimony is consistent with the information he disclosed during the February 2008 interview.

Applicant was candid and remorseful about his past behavior. He takes full responsibility for his conduct. (Tr. at 27.) He is “not proud of what [he] did growing up.” (Tr. at 27.) After he was released from incarceration in 1995, he realized his mistakes and the importance of having physical freedom. “If I live on the straight and narrow, I can have my freedom and live the dream, and my idea of a dream is my family and a good job.” (Id.) He admitted that he is an alcoholic and has a drug addiction. (Tr. 83.)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the revised Adjudicative Guidelines (AG). In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(c), 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture. According to Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “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.” Section 7 of Executive Order 10865 provides that 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.”

A person who seeks access to classified information enters 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.

ANALYSIS

Guideline E, Personal Conduct

The security concerns pertaining to the personal conduct guideline are 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 information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

The Government alleged in SOR ¶ 1 that Applicant deliberately falsified information three times during the security clearance process because he failed to disclose specific information. The Government argued that those omissions were potential disqualifying conditions under AG ¶ 16: (a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities; and

(b) deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative. Although Applicant acknowledged that he did not disclose the information, he denied that he intentionally misled the Government. When a falsification allegation is controverted or denied, as in this case, the Government has the burden of proving it. Proof of an omission, standing alone, does not establish or prove an applicant’s state of mind when the omission occurred. An administrative judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning an applicant’s state of mind at the time the omission occurred. See ISCR Case No. 03-09483 at 4 (App. Bd. Nov. 17, 2004) (explaining holding in ISCR Case No. 02-23133 at 5 (App. Bd. Jun. 9, 2004)). After listening to Applicant’s testimony and observing his demeanor, I find that his explanations for failing to disclose previous illegal drug usage in the e-QIP, as alleged in SOR ¶ 1.a, is not credible. Question 24 is clear on its face. It precedes Question 25 inquiring about use of alcohol, in which Applicant honestly disclosed treatment for alcohol dependence, which co-existed with his drug abuse for over ten years according to his later statements. The Government established a potential disqualifying condition under AG ¶ 16(a). His reason for not disclosing drug abuse during the February 2008 interview is also not credible. The fact that he voluntarily entered treatment for alcohol and not drug abuse, does not excuse the non-disclosure of his illegal drug behavior and treatment, considering the length of time he used marijuana along with alcohol. Additionally, he used marijuana up to May 2005, about two years before he completed the e-QIP, after which he participated in drug rehabilitation until sometime in 2006 when he ceased going to support meetings. The evidence supports application of AG ¶ 16(b).

While his explanations for failing to disclose information as alleged in SOR ¶¶1.a and 1.bare not credible, Applicant’s statement that the August 2008 affidavit does not accurately reflect his interview is credible. The information contained in the affidavit regarding the number of beers he had in 2007 leading to a relapse, is inconsistent with the information he gave to the investigator in February 2008, when he disclosed that he had several beers and became intoxicated. Given his detailed February 2008 account about the circumstances underlying the relapse, the fact that he did not personally draft the affidavit and his vigorous testimony denying the allegation in ¶ 1.c, the evidence is insufficient to prove that he falsified the affidavit and to establish a disqualifying condition under AG ¶ 16(b). SOR ¶ 1.cis found in his favor.

The evidence supporting those two disqualifying conditions requires a closer examination and balancing of resulting security concerns with any potentially mitigating matters, and shifts the burden to Applicant to rebut, explain, extenuate, or mitigate those concerns. The guideline includes six conditions in AG ¶ 17 that could mitigate security concerns arising from personal conduct, three of which may be applicable:

(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts;

(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; and

(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 caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur.

The evidence does not support the application of AG ¶ 17(a). Applicant did not voluntarily disclose his history of illegal drug abuse. The Government learned of it after obtaining his treatment record for alcohol abuse and confronting him with the information. Although Applicant’s failure to disclose his illegal drug history occurred in May 2007, almost three years ago, that non-disclosure is not a minor offense because such information is essential in the determination of one’s eligibility for a security clearance. The evidence does not trigger the application of AG ¶ 17(c). Applicant’s continued denial that he intentionally withheld information during the security clearance application process, precludes the application of AG ¶ 17(d).

Guideline H, Drug Involvement

AG ¶ 24 expresses the security concern pertaining to illegal drug involvement:

Use of an illegal drug or misuse of a prescription drug can raise questions about an individual's reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person's ability or willingness to comply with laws, rules, and regulations.

(a) Drugs are defined as mood and behavior altering substances, and include:

(1) Drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens), and

(2) inhalants and other similar substances;

(b) drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.

Department Counsel argued that the evidence established security concerns under three Guideline H disqualifying conditions set forth in AG ¶ 25:

(a) any drug abuse (see above definition); (c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and

(e) evaluation of drug abuse or drug dependence by a licensed clinical social worker who is a staff member of a recognized drug treatment program.

With some regularity, Applicant purchased and used illegal drugs, including marijuana, cocaine, LSD, and amphetamines, from the age of 18 to 36. The evidence supports the application of AG ¶ 25(a) and AG ¶ 25(c). The Government also argued that the evidence raised a disqualification under AG ¶ 25(e). Although Applicant was evaluated and diagnosed as drug dependent in May 2005, the evaluation and diagnoses are documented as having been performed by a licensed alcohol and drug counselor (LADC) on staff of a recognized drug treatment program and not a licensed clinical social worker (LCSW) as required under AG ¶ 25(e). Hence, said disqualifying condition does not apply.

AG ¶ 26 provides four conditions that could mitigate security concerns raised under this guideline, two of which may be 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; and

(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; and,

(4) a signed statement of intent with automatic revocation of clearance for any violation;

Applicant asserted that the last time he used illegal drugs was in May 2005, about five years ago. He repeatedly stated that he has no intention to use them in the future and ceased associating with those friends with whom he engaged in illegal activity. There is no evidence in the record to contradict those assertions. He indicated that he has undergone at least four random drug screenings for his employer. The evidence supports the application of AG ¶ 26 (a) and ¶ 26 (b) (1) and (b) (3).

Guideline J, Criminal Conduct

AG ¶ 30 expresses the security concern pertaining to criminal conduct: Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules and regulations.

Department Counsel argued that the evidence established security concerns under two disqualifying conditions set forth in AG ¶ 31:

(a) a single serious crime or multiple lesser offenses; and

(c) allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted.

Applicant was arrested and charged with criminal behavior four times between 1987 and 1992, including felonies in 1991 and 1992. The evidence is sufficient to establish AG ¶ 31(a). Applicant’s deliberate failures to disclose pertinent information on two occasion during the security clearance process, as found under Guideline E above, constitute violations of 18 U.S.C. § 1001, a criminal statute, and raise a disqualifying condition under AG ¶ 31(c).

AG ¶ 32 provides two conditions that could mitigate the foregoing security concerns arising under this guideline:

(a) so much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur and does not cast doubt on the individual's reliability, trustworthiness, or good judgment; and

(d) there is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement.

The last criminal charge in Applicant’s history occurred in November 1992 and the sentence was completed in 1995. Approximately 15 years have passed since then, and the record does not contain any evidence of other criminal arrests or convictions. Two of the criminal charges involved alcohol for which Applicant sought treatment in May 2005. He has been married for 13 years and was awarded custody of his daughter in February 2009. He has a steady work history. He did not hesitate to express remorse over his past criminal conduct and his intent to remain sober and abstinent. AG ¶ 32(a) and AG ¶ 32(d) have application to the allegations in SOR ¶¶ 1.a through 1.e. However, those mitigating conditions do not apply to the falsification offenses that occurred in May 2007 and February 2008, because insufficient time has passed and Applicant strongly denied the allegations, which negates potential rehabilitation.

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 relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a). They include the following:

(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.

According to AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security clearance must include 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 facts and circumstances surrounding this case. Applicant is a 41-year-old man, who has a history of criminal conduct, alcohol-related incidents, and substance abuse issues. These problems began in 1986 and continued to 2005, when he took action to address his illegal drug use and alcoholism. Since 1992 there is no evidence of criminal arrests, and since 2005 he has remained drug free and essentially sober, but for one relapse in 2007. He has come to terms with his addictions, and the effect that they and his criminal history have had in his life. He is committed to living a responsible life looking after his family. His actions to change his life are laudable when considered in relationship to a long history of substance abuse and prior criminal incidents.

However, Applicant’s failure to be forthright in disclosing his illegal drug use in May 2007 and in February 2008 is troubling. The Government would not have learned of the long-term drug problem if it had not secured Applicant’s substance abuse treatment records. At this time, the record lacks sufficient evidence of behavioral rehabilitation to assure the Government that a similar discrepancy will not occur in the near future.

Overall, the record evidence leaves me with questions as to Applicant’s eligibility and suitability for a security clearance at this time. For these reasons, I conclude Applicant mitigated the security concerns arising from his drug involvement, but not those raised by his personal and criminal conduct.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline E: AGAINST APPLICANT Subparagraph 1.a: Against Applicant Subparagraph 1.b: Against Applicant Subparagraph 1.c: For Applicant

Paragraph 2, Guideline H: FOR APPLICANT Subparagraphs 2.a through 2.h: For Applicant

Paragraph 3, Guideline J: AGAINST APPLICANT Subparagraphs 3.a through 3.e: For Applicant Subparagraph 3.f Against Applicant

CONCLUSION

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

_________________ SHARI DAM Administrative Judge

FOOTNOTES

1 The record does not contain the results of the random drug screens.