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ISCR Case 09-00134.h1 — CASE

ISCR Case 09-00134.h1denied

Case Headnote

ISCR Case No. 09-00134.h1

deniedMar 19, 2010· Hon. Elizabeth M. Matchinski· hearing

Summary

A 22-year-old defense contractor intern was denied a security clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from allegations that the applicant used marijuana on three occasions between spring 2007 and late July 2008, while already holding a secret-level security clearance. Furthermore, the applicant was alleged to have deliberately falsified his August 2008 Questionnaire for National Security Positions by not disclosing this marijuana use.

Additional concerns included the applicant's failure to disclose his marijuana use while possessing a secret clearance and his continued attendance at social functions where others might use illegal drugs as of April 2009. Disqualifying conditions were raised under Adjudicative Guidelines paragraphs 24 and 15.

Although the applicant demonstrated an intent to abstain from illegal drugs, and mitigating conditions under Adjudicative Guidelines paragraphs 26(a) and 26(b) were considered, the judge found that personal conduct concerns, specifically the marijuana use while holding a clearance and the lack of candor in failing to disclose it on his application, were not fully mitigated. Consequently, the security clearance application was denied.

Why the Applicant Was Denied

The applicant used marijuana three times while holding a security clearance.
The applicant failed to disclose his marijuana use on his security clearance application, which was deemed a lack of candor.

Conditions Referenced

Disqualifying

AG ¶ 24raisedDrug Involvement
AG ¶ 15raisedPersonal Conduct

Mitigating

AG ¶ 26(b)appliedDemonstrated Intent Not to Abuse Drugs in the FutureThe applicant has made efforts to avoid drug use and has abstained for 15 months.
AG ¶ 26(a)rejectedBehavior Happened so Long Ago or InfrequentlyThe judge found the recency of the applicant's drug use while holding a clearance significant.

Key Rule Quoted

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

Procedural Posture

SOR issuedJun 30, 2009
Answer filedJul 14, 2009
Hearing heldOct 28, 2009
Decision dateMar 19, 2010

Cite For

Denial of Security Clearance Due to Drug Involvement Under Guideline H
Lack of Candor in Security Clearance Application Under Guideline E
Mitigating Conditions for Drug Use and Personal Conduct Concerns

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 under Guideline E related to personal conduct, specifically regarding the failure to disclose marijuana use on his security clearance application. The applicant's claims of mitigation were not fully accepted, leading to a denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant was alleged to have deliberately falsified his August 2008 Questionnaire for National Security Positions by not disclosing his marijuana use.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Other	Admitted	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official	—	—
2.b	Applicant was alleged to have failed to disclose his marijuana use while he possessed a secret clearance.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Other	Admitted	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official	—	—
2.c	Applicant was alleged to have continued attendance at social functions that may include illegal drug use by others.	For Applicant	Rules Violation at Workplace	—	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 smoked marijuana on three occasions while holding a secret-level security clearance, which raised concerns under Guideline H. However, the judge ruled in favor of the applicant on all allegations related to drug involvement, indicating that the applicant's drug use was infrequent and that he demonstrated an intent to abstain from illegal drugs in the future. Despite this, the overall security clearance was denied due to personal conduct issues under Guideline E.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant smoked marijuana cigarettes passed to him on three occasions between the spring of 2007 and late July 2008, while he held a secret-level security clearance.	For Applicant	MarijuanaWHILE CLEARED	Occasional	Admitted	(g) expressed intent to continue, or failure to commit to discontinue	(a) behavior happened long ago / infrequent / unlikely to recur	—
1.b	Applicant smoked marijuana cigarettes passed to him on three occasions between the spring of 2007 and late July 2008, while he held a secret-level security clearance.	For Applicant	MarijuanaWHILE CLEARED	Occasional	Admitted	(g) expressed intent to continue, or failure to commit to discontinue	(a) behavior happened long ago / infrequent / unlikely to recur	—
1.c	Applicant continued to attend social functions where others might use illegal drugs as of April 2009.	For Applicant	Unspecified Drug InvolvementWHILE CLEARED	Not Applicable	Denied	(g) expressed intent to continue, or failure to commit to discontinue	—	—

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. 09-00134 SSN: ----------------- ) ) Applicant for Security Clearance )

For Government: Gina L. Marine, Esquire, Department Counsel For Applicant: Robert M. Shepard, Esquire

March 19, 2010 ______________

STATEMENT OF CASE

______________

MATCHINSKI, Elizabeth M., Administrative Judge:

Applicant is a 22-year-old recent college graduate who smoked marijuana three times from the spring of 2007 to late July 2008, while he held a secret-level security clearance for his duties as an intern with his defense contractor employer. Drug involvement concerns are mitigated by a demonstrated intent to abstain from illegal drugs in the future. Personal conduct concerns raised by his failure to disclose his marijuana use on his security clearance application are not fully mitigated. Clearance is denied.

Statement of the Case

Applicant submitted an Electronic Questionnaire for Investigations Processing (e-QIP) on August 14, 2008. On June 30, 2009, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant detailing the security concerns under Guideline H, drug involvement, and Guideline E, personal conduct, that provided the basis for its preliminary decision to deny him a security clearance. 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 adjudicative guidelines (AG) promulgated by the President on December 29, 2005, and effective within the Department of Defense as of September 1, 2006.

Applicant responded to the SOR on July 14, 2009, and he requested a hearing. On July 28, 2009, the case was assigned to me to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. Counsel for Applicant entered his appearance on August 27, 2009, and on September 1, 2009, I scheduled a hearing for October 28, 2009. On October 21, 2009, Applicant submitted an amended answer dated October 20, 2009, in which he provided detailed responses to the SOR allegations. This amended answer was accepted in lieu of Applicant’s pro se response.

I convened the hearing as scheduled on October 28, 2009. Two government exhibits (Ex. 1-2) and eight Applicant exhibits (Ex. A-H) were entered into evidence without any objections. Applicant and three witnesses testified on his behalf, as reflected in a transcript (Tr.) received on November 9, 2009.

FINDINGS OF FACT

DOHA alleged under Guideline H, drug involvement, that Applicant used marijuana about four times from the spring of 2007 to at least the summer of 2008 (SOR 1.a) while he held a secret-level security clearance granted in November 2006 (SOR 1.b), and that he continued to attend social functions where others might use illegal drugs as of April 2009 (SOR 1.c). Under Guideline E, personal conduct, Applicant was alleged to have deliberately falsified his August 2008 Questionnaire for National Security Positions by not disclosing his marijuana use (SOR 2.a), including while he possessed a secret clearance (SOR 2.b). DOHA also cross-alleged under Guideline E his continued attendance at social functions that may include illegal drug use by others (SOR 2.c).

In his amended Answer, Applicant admitted that he smoked marijuana when it was passed to him in a joint on three or four separate occasions, delineated as once each in the spring of 2007, in the spring of 2008, and in the summer of 2008. Applicant denied any subsequent involvement with marijuana, any purchase of marijuana, and any sale of marijuana. Applicant also acknowledged that he had been granted a Department of Defense secret-level clearance in November 2006, and an interim top- secret clearance in the summer of 2008. He denied any use of marijuana while he held an interim top-secret clearance. As for any ongoing association with drug users, Applicant acknowledged that he had resided in an off-campus apartment between April 27, 2009 and May 10, 2009, where parties were held at the complex, but he had no control over the guests or over whether marijuana was used at these social events. After his college graduation in May 2009, he moved home and was no longer attending any social functions where others might be engaged in illegal drug use. As for his omission of his marijuana use from his security questionnaire, Applicant admitted his “mistakes of omission,” but he averred that he had immediately revealed his drug use to a government investigator before any questioning began.

After considering the pleadings, exhibits, and transcript, I make the following findings of fact.

Applicant is a 22-year-old computer software engineer, who has been employed full-time by a defense contractor since July 2009 (Tr. 25-26). W hile he wa sin high school, Applicant was involved in a robotics program sponsored by his current employer (Tr. 28). Following his graduation in June 2005, Applicant began a paid internship with the company. He worked during school vacations and each summer while he was attending college from September 2005 to May 2009 (Ex. 1, Tr. 28-29). In November 2006, he was granted a Department of Defense secret-level security clearance for his duties with the defense contractor (Exs. 1, F, Tr. 53, 56).

Applicant was involved in playing and refereeing soccer as a youth (Ex. C), and he continued these activities while he was in college. He played club and intramural soccer, and was involved in an athletic spirit organization (Exs. E, F, Tr. 30-31). Applicant was responsible in his studies, civic commitments, and in making sure that he and his roommates paid their bills on time (Exs. E, F). Although marijuana use was prevalent at social gatherings on weekends in college, including at some parties that he attended, he did not use any illegal drugs at those functions (Ex. 2, Tr. 42, 65). However, while in Florida with a friend during spring break in 2007, Applicant took a hit off a marijuana “joint” passed to him at a party (Tr. 38). One year later, in the spring of 2008, he was at a local bar watching a sporting event when he again took a hit off a joint passed to him (Tr. 38). In late July 2008, he smoked marijuana with a female cousin (Tr. 39, 67-68). Again the drug was passed to him. He did not seek it (Tr. 39). Applicant had been drinking alcohol on each of the three occasions where he smoked marijuana (Tr. 74), although he knew when he used the drug that he was engaging in illegal activity (Tr. 69).

Applicant’s supervisor requested that he apply for an upgrade of his security clearance (Tr. 31) for his duties as an engineering intern (Ex. D). Applicant completed an e-QIP on August 14, 2008. He checked off “No” to questions 24.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.), amphetamines, depressants (barbiturates, methaqualone, tranquilizers, etc.), hallucinogenics (LSD, PCP, etc.) or prescription drugs?” and 24.b, “Have you ever illegally used a controlled substance while employed as a law enforcement officer, prosecutor, or courtroom official; while possessing a security clearance; or while in a position directly and immediately affecting the public safety?” (Ex. 1). Applicant did not disclose his drug use because it did not have a big impact on his life, he did not want to be “put in a pile with drug addicted people” (Tr. 34), and telling an investigator in person would be “the best way to go” (Tr. 58, 61). From discussions he had with persons who held top-secret clearances, Applicant believed that he would be interviewed during a “very thorough” background investigation for his top-secret clearance (Tr. 70-71).

In August 2008, Applicant applied for his employer’s highly selective engineering leadership development program (ELDP) (Ex. G). Under the program, selectees earn a master’s degree in three years while gaining valuable work experience and promotion to a senior engineering level position at the end of the program (Tr. 45, 110). Applicant was chosen for the ELDP based on his work ethic, leadership, experience, and personal integrity. A recruiter for the program, who is in the third year of the ELDP (Tr. 51), remained in contact with Applicant during his senior year in college. He observed no behavior by Applicant that would lead him to question Applicant’s selection for this program (Ex. D).

On October 15, 2008, Applicant was interviewed at college by a government investigator, who reviewed his e-QIP with him. When question 24.a was read to him, Applicant responded that his answer was incorrect, and that he had smoked marijuana on three occasions (Tr. 36, 75). Applicant told the investigator that he omitted his marijuana use from his e-QIP because it was only a few instances. He attributed his negative response to whether he used any illegal drug while possessing a security clearance to “oversight” (Ex. 2). Applicant was subsequently given an opportunity by DOHA to review a report of the investigator containing these representations. Applicant made no corrections (Ex. 2).

On April 27, 2009, Applicant indicated in response to DOHA drug interrogatories that he had used marijuana with remote frequency, on four occasions, between the spring of 2007 and his last use in the summer of 2008. Applicant listed four occasions, even though he specifically recalled three instances, just to make sure that he covered himself if he should later recall another occasion, given the prevalence of drugs at parties in college (Tr. 40, 64). He denied any future intent to use illegal substances because of his government security clearance, and he saw nothing positive to be gained from drug use (Ex. 2, Tr. 41). Yet, in response to whether he associates with persons who use illegal substances or frequents places where he has reason to believe drugs are being used or are used in his presence, Applicant wrote, “Marijuana use in college is nearly as prevalent as alcohol. When attending parties (Fri./Sat nights) there is almost always the presence of marijuana.” He declined offers of drug use, except on the three occasions detailed. As to whether he had made any changes indicative of a lifestyle away from past drug usage, Applicant responded that while he was still in college, he recognized “the importance of maintaining a proper self-image and [abiding] by the laws.” (Ex. 2).

In May 2009, Applicant earned his bachelor’s degree in computer science and engineering (Ex. F). He left off-campus housing and moved back home to live with his parents (Answer). He has since found it easier to control his environment. In late June or early July 2009, Applicant found himself in the presence of others smoking marijuana. He and a friend, also an employee of the same defense contractor, had gone over to another friend’s home and came upon people smoking marijuana on the friend’s porch. Applicant and his companion left after exchanging greetings with their friend and they did not use any marijuana (Tr. 47, 76). Applicant has made it clear to his family and close friends that he does not intend to participate in any illegal substances in any way in the future (Tr. 48). He does not have any close friends who currently use marijuana, but some of his friends, whom he may see in public places (not private settings) still use marijuana (Tr. 77). About twice a year, Applicant sees his cousin with whom he smoked marijuana in 2008. During their last visit in July 2009, she did not use marijuana (Tr. 69).

Sometime after Applicant submitted his e-QIP for a clearance upgrade to top- secret for his intern’s duties, the ELDP manager contacted Applicant about finding him his first rotational assignment in the incoming ELDP class (Tr. 121). Applicant notified the manager of the ELDP that there would be some issues with his security clearance because he had smoked marijuana in the past and had not disclosed his drug use on his e-QIP (Tr. 44-45, 101). On issuance of the SOR to Applicant on June 30, 2009, Applicant’s interim top-secret security clearance was withdrawn (Tr. 43). Applicant had been slated for a position in the upcoming ELDP program that involved classified work. A different placement was found for Applicant that would allow him to work on unclassified matters for upwards of a year (Tr. 116), and in mid-July 2009, Applicant became a full-time employee in his company’s ELDP (Tr. 44). Applicant’s employer does not condone illegal drug abuse by its employees (Tr. 106). When Applicant became a full-time employee, he took a drug test that he passed (Tr. 65-66).

Applicant’s job is very important to him (Tr. 46), and he understands that any future drug involvement could potentially result in the loss of his employment (Tr. 49). On October 27, 2009, Applicant executed an “Affidavit of Compliance Agreement” in which he indicated he would not use marijuana or otherwise engage in any illicit substance use in the future, he had no intent to smoke marijuana or other illegal drug in the future, and he understood that any use of marijuana would result in immediate violation of the agreement and revocation of his security clearance (Ex. H).

Some of Applicant’s coworkers were disappointed in him on learning that he had lost his clearance because of his drug use and not disclosing his marijuana use on his e-QIP (Tr. 44). Applicant has the support of those company employees for whom he worked as an intern in the summer of 2007 (Ex. B, Tr. 101-03), of the ELDP student in charge of recruiting activity for the ELDP (Ex. D), and of the ELDP manager (Tr. 119). Applicant was a punctual and hard-working intern, and he has been an excellent and reliable employee. Applicant called the employee for whom he worked directly in 2007, and he discussed with him the details of his failure to disclose information and the “actual incidents in question” (Ex. B). The manager of the department also had a discussion with Applicant after he learned from the ELDP manager that Applicant had lost his clearance (Tr. 105). Despite learning from Applicant that he had used marijuana and had not told the truth about his drug use on his e-QIP (Tr. 101), he still has a high opinion of Applicant and his value to their employer (Tr. 101-03). The ELDP manager likewise has no present concerns about Applicant and any drug use. Applicant told him that he freely offered the information about his e-QIP omission to the government investigator (Tr. 118), and Applicant seemed to him “quite remorseful about this having come up and frankly pretty scared when he first approached the topic with [him]” (Tr. 119).

POLICIES

The U.S. Supreme Court has recognized the substantial discretion the Executive Branch has in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 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 required to be considered 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. 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 applicant or proven by Department Counsel. . . .” The applicant has the ultimate burden of persuasion as to obtaining a favorable security decision.

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 that 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 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.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Drug Involvement

The security concern about drug involvement is set out in AG ¶ 24:

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.

Applicant smoked marijuana cigarettes passed to him on three occasions between the spring of 2007 and late July 2008, while he held a secret-level security clearance. AG ¶ 25(a), “any drug abuse,” and AG ¶ 25(g), “any illegal drug use after being granted a security clearance,” apply. AG ¶ 25(c), “illegal drug possession, cultivation, processing, manufacture, purchase, sale, or distribution, or possession of drug paraphernalia,” applies only in the limited sense that Applicant can be said to have had physical custody or possession of the marijuana when he smoked it.

Applicant’s abuse of marijuana may reasonably be characterized as infrequent. However, his claim of mitigation under AG ¶ 26(a), “the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is likely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment,” is not particularly persuasive, given the relative recency of his abuse and the fact that it occurred while he held a secret-level security clearance. Concerning whether Applicant has demonstrated an intent to forego future drug abuse sufficient to satisfy AG ¶ 26(b), “a demonstrated intent not to abuse any drugs in the future,” Applicant has not completely ceased all relations with drug-using associates and contacts. See AG ¶ 26(b)(1) (stating, “disassociation from drug-using associates and contacts”). About twice yearly, he continues to see the female cousin with whom he smoked marijuana in July 2008, although no marijuana was involved when they last met in July 2009. Some of his friends, who he may see in public places, still use marijuana. However, he does not have any close friends who currently use marijuana, and he has informed his friends and family members that he does not intend to participate in any way with illegal drugs in the future. While the government has legitimate concerns about Applicant’s attendance as of late April 2009 at social functions where drugs might be used, the risk of him relapsing is lessened considerably by his move into his parents’ home after college. This change in living environment, when coupled with his efforts to avoid situations where illegal drugs are present, warrants application of AG ¶ 26(b)(2), “changing or avoiding the environment where drugs were used.” Applicant’s present 15 months of abstinence is sufficient to demonstrate his intent not to abuse any drugs in future under AG ¶ 26(b)(3), “an appropriate period of abstinence,” considering he smoked marijuana only three or perhaps four times over a 16 or 17-month time span, when he was under 22 years of age. Also, on October 27, 2009, Applicant signed a statement of intent to refrain from drug abuse with the understanding that any violation would result in automatic revocation of his security clearance. AG ¶ 26(b)(4), “a signed statement of intent with automatic revocation of clearance for any violation,” applies.

Applicant’s employment situation serves as a significant deterrent to any future drug abuse. As one of only three chosen in the computer science field for his employer’s ELDP, Applicant stands to lose the opportunity to earn his master’s degree while earning an income and receiving valuable work experience. He credibly asserted that he had “learned [his] lesson” (Tr. 67), and nothing positive can be gained by using illicit substances. Given the limited extent of his drug involvement in the past, it does not appear that he would have any difficulty abiding by his stated intent to continue to abstain. Based on all the evidence, AG ¶ 26(b) applies to mitigate his marijuana use.

Personal Conduct

The security concern for personal conduct is set out in Guideline E, 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.

Applicant exercised poor judgment within the context of AG ¶ 15 when he abused marijuana while holding an active security clearance (SOR 2.c). He may not have been thinking about his clearance obligations when he accepted the offers to smoke marijuana, but he knew he was violating the law by doing so. While the concerns about his illicit substance abuse are more appropriately covered under Guideline H, supra, personal conduct AG ¶ 16(e), “personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in activities which, if known, may affect the person’s personal, professional, or community standing,” is pertinent. Drug abuse is conduct, which if known, could adversely affect one’s reputation, and Applicant testified that some of his coworkers were disappointed with him when they learned he had used an illegal drug because they have very high expectations of him (Tr. 44).

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,” is also implicated. Applicant was not forthright about his marijuana use when he completed his August 2008 e-QIP. He may well have preferred to disclose details of his drug involvement during his subject interview, but it does not justify his intentional false denials of illegal drug use, including drug use while he held a security clearance. He knew that his negative responses to questions 24.a and 24.bwere false.

Applicant’s falsification of the drug inquiries in August 2008 is too recent and too serious to be mitigated by AG ¶ 17(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.” He is credited with revealing his drug involvement to a government investigator during his interview on October 15, 2008. However, AG ¶ 17(a), “the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts,” cannot fully apply. His rectification was voluntary in that he was not confronted with evidence of his drug use before he corrected the record, but he waited until the investigator reviewed the drug questions with him. Applicant cannot be accorded full credit for a prompt rectification where the timeliness of the correction is due largely to when the investigator called him for an interview rather than Applicant first notifying the government or his employer of his omissions.

By revealing to the ELDP manager and subsequently other coworkers that he had used marijuana in the past, Applicant has “taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress” under AG ¶ 17(e), but Applicant has yet to demonstrate that he understands the importance of, and can be counted on to comply with, his obligation to provide true and complete information during the security clearance process. When asked at his hearing about his rationale for denying any drug use while he held a security clearance, Applicant testified, “Well, if you answer no to the first one [about any drug use in the last 7 years or since age 16], you kind of have to answer no to the second one” (Tr. 61). But when he was interviewed in October 2008, he told the investigator that he responded negatively to whether he used drugs while possessing a security clearance because of “oversight” (Ex. 2). When asked to explain at his hearing what he meant by “oversight,” Applicant responded:

The oversight is, I believe would be due to because when I spoke with [the investigator], I said, like I said here, I felt like my occasions were so remote and had no impact, that like how, I didn’t really feel, see the importance of the occasions and I felt comfortable just telling him about that, and so that’s what the oversight is (Tr. 63).

To omit information due to oversight is to err due to inattention or failure to notice something. Whether or not Applicant intended to imply that he made an inadvertent mistake, his explanation shows an ongoing tendency to rationalize or minimize his falsifications. Applicant testified that he understood the importance of full candor on his security clearance application (Tr. 62), but under the circumstances, I cannot apply AG 17(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.”

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 his conduct and all relevant circumstances in light of the nine adjudicative process factors listed at AG ¶ 2(a):

(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.

Applicant displayed poor judgment in using marijuana. Yet, his drug use was limited to only a few times, before he was a full-time employee of the defense contractor. Changes in his environment and lifestyle, including full-time employment in a leadership program at work, serve as a significant deterrent to any future drug abuse by Applicant. Yet, Applicant’s falsification of his application for a top-secret security clearance in August 2008 raises considerable doubts about whether his representations can be fully relied on. Personal concerns that he did not want to be labeled a drug user did not justify his lack of candor on his e-QIP. His subsequent efforts to downplay or minimize the seriousness of his false statements cast doubt about his reform at this time.

FORMAL FINDINGS

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

Paragraph 1, Guideline H: FOR APPLICANT

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

Paragraph 2, Guideline E: AGAINST APPLICANT

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

Elizabeth M. Matchinski Administrative Judge

FOOTNOTES

The Questionnaire for National Security Positions is a component of the e-QIP, which was admitted into evidence as Exhibit 1. The ELDP manager testified that the company typically reviews between 500 and 1,000 resumes from college seniors for the program, out of which only 15 are selected. Of those 15, Applicant was one of three in the computer software area (Tr. 112-13).

At his hearing, Applicant explained what he meant by “oversight,” as follows:

The oversight is, I believe would be due to [sic] because when I spoke with him, I said, like I said here, I felt like my occasions were so remote and had no impact, that like how, I didn’t really feel, see the importance of the occasions and I felt comfortable just telling him about that, and so that’s what the oversight is (Tr. 63). In his amended Answer, Applicant indicated that he immediately revealed his “errors” to the investigator before any questioning began. At his hearing, he admitted that the investigator read the drug question and he indicated in response that he had tried marijuana three times (Tr. 75).