Loading case…

ISCR 09-02227.h1: Guideline D security clearance hearing, denied (2010) · CASE

ISCR Case 09-02227.h1denied

Case headnote

ISCR Case No. 09-02227.h1

deniedMay 13, 2010· Hon. Claude R. Heiny II· hearing

Summary

A 55-year-old quality manager, holding a security clearance since 1980, was denied a security clearance due to concerns under Guideline D (Sexual Behavior), Guideline E (Personal Conduct), and Guideline H (Drug Involvement). The denial stemmed from multiple DWI convictions and recent cocaine use.

Specific allegations included failing to report a 2007 DWI arrest to his company security officer until August 25, 2008. Further concerns involved any drug abuse, testing positive for illegal drug use, illegal drug possession, and a diagnosis of drug abuse or dependence. The applicant also faced allegations regarding the evaluation of drug abuse by a licensed clinical social worker, failure to complete a prescribed drug treatment program, illegal drug use after being granted a security clearance, and an expressed intent to continue illegal drug use or failure to commit to discontinuing it.

Despite completing a treatment program, the judge found insufficient evidence of rehabilitation and noted ongoing legal issues, specifically the pending outcome of his 2007 DWI court appearance, for which no documentation was provided. These factors led to the denial of the security clearance.

Why the applicant was denied

The applicant had multiple DWI convictions and was arrested for DWI and possession of cocaine in 2007.
The applicant failed to report his 2007 arrest to his security officer in a timely manner.
The applicant did not provide documentation of the outcome of his 2007 DWI court appearance, which was pending at the time of the hearing.

Conditions referenced

Disqualifying

AG ¶ 22(a)appliedAlcohol-related Incidents Away From Work
AG ¶ 25(a)appliedDrug Abuse
AG ¶ 25(c)appliedIllegal Drug Possession
AG ¶ 25(e)appliedDiagnosis of Drug Abuse
AG ¶ 25(g)appliedIllegal Drug Use After Being Granted a Security Clearance
AG ¶ 22(e)appliedDiagnosis of Alcohol Dependence
AG ¶ 22(f)appliedRelapse After Treatment

Mitigating

AG ¶ 23(b)appliedAcknowledgment of Alcoholism and Actions Taken to Overcome It
AG ¶ 26(b)appliedDemonstrated Intent Not to Abuse Drugs in the Future

Key rule quoted

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

Procedural posture

SOR issuedJul 27, 2009
Answer filedAug 18, 2009
Hearing heldNov 20, 2009
Decision dateDec 1, 2009

Cite for

Security Concerns Related to Multiple DWI Convictions Under Guideline H
Impact of Illegal Drug Use on Security Clearance Eligibility Under Guideline D
Consideration of Personal Conduct and Lack of Candor in Security Clearance Decisions Under Guideline E

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 55: “Applicant is a 55-year-old quality manager who has worked for a defense contractor since May 1984, and is seeking to maintain a security clearance.”
Tenure: ~25 years: “Applicant is a 55-year-old quality manager who has worked for a defense contractor since May 1984, and is seeking to maintain a security clearance.”
Clearance at issue: Secret: “He received his first secret clearance in 1980.”
Held a clearance before: Yes: “Applicant has had a security clearance since 1980.”

Standardized Decision Profile

SEAD-4 Guideline D (Sexual Behavior) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant's history of alcohol consumption and drug involvement raised significant security concerns. Despite some mitigating factors related to his participation in treatment programs, the applicant ultimately failed to demonstrate sufficient rehabilitation or a commitment to abstain from substance use, leading to a denial of his security clearance.

¶	Allegation	Finding	Type	Response	Disqualifying (¶13)	Mitigating applied (¶14)	Mitigation

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 the personal conduct concerns, specifically regarding his drug involvement and failure to report a 2007 DWI arrest. The applicant's admissions and lack of sufficient mitigation led to the denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on multiple drug involvement allegations, specifically noting the applicant's cocaine use after being granted a security clearance. The applicant's admissions regarding drug use and the lack of sufficient mitigation led to the denial of the security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation

Descriptive standardized rendering of a decided public case. 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. 09-02227 ) ) Applicant for Security Clearance )

For Government: Alison O'Connell, Esq., Department Counsel For Applicant: Pro se

May 13, 2010 ______________

STATEMENT OF CASE

______________

HEINY, Claude R., Administrative Judge:

Applicant was convicted of Driving While Intoxicated (DWI) in 1979 and 1993. In 2007, he was arrested for DWI and possession of a controlled substance, cocaine. Following a DIVERT court program, the cocaine charge was dropped. Applicant has yet to have his court appearance on the 2007 DWI charge. Applicant has had a security clearance since 1980. In 2007, he purchased and used cocaine. Applicant failed to rebut or mitigate the Government’s security concerns under drug involvement and personal conduct. Clearance is denied.

Statement of the Case

Applicant contests the Defense Department’s intent to deny or revoke his eligibility for an industrial security clearance. Acting under the relevant Executive Order and DoD Directive,1 the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) on July 27, 2009, detailing security concerns under alcohol consumption, drug involvment, and personal conduct.

On August 18, 2009, Applicant answered the SOR and requested a hearing. On September 30, 2009, I was assigned the case. On November 6, 2009, DOHA issued a notice of hearing scheduling the hearing, which was held on November 20, 2009. At the hearing, the Government offered Exhibits (Ex.) 1 through 8, which were admitted into evidence. Applicant testified on his own behalf. On December 1, 2009, DOHA received the transcript (Tr.).

FINDINGS OF FACT

In Applicant’s Answer to the SOR, he denied the factual allegations in ¶¶ 1.a, 1.b, 1.c, 1.e, 1.h, 1.i, 2.c, 2.g, 2.h, and 3.bof the SOR. He admitted the remaining factual allegations, with explanations. Applicant’s admissions to the SOR allegations are incorporated herein. After a thorough review of the record, pleadings, exhibits, and testimony, I make the following additional findings of fact:

Applicant is a 55-year-old quality manager who has worked for a defense contractor since May 1984, and is seeking to maintain a security clearance. He received his first secret clearance in 1980. (Ex. 1, page 5)

From 1977 to June 2008, Applicant consumed alcohol, at times to excess and to the point of intoxication. (Answer to SOR) In 1979, the year Applicant graduated from college, Applicant was stopped for a traffic violation after leaving a college party. When he refused to take a breathalyzer test, he was arrested, charged with Driving While Intoxicated (DWI), and incarcerated overnight. Applicant was convicted of DWI. Although he asserts there were no formal charges, the county court records and his substance abuse evaluation indicate this was a DWI. (Ex. 3)

In 1993, Applicant was convicted of Driving Under the Influence (DUI) and sentenced to a $600 fine and two years probation. (Ex. 7, Tr. 57) Up until 1993, Applicant would go to clubs once a week. (Tr. 66) Following his DUI conviction, Applicant did not return to frequenting clubs weekly until 2000. (Tr. 66)

Applicant admits that on September 27, 2007, he was arrested for DWI second offense and possession of a controlled substance, cocaine. Applicant was stopped by police for an illegal lane change. Applicant had previously been at a club drinking. He had intended to use the cocaine at the club. (Tr. 68) Following field sobriety tests, Applicant was asked if he would submit to a blood test. When he refused, Applicant was arrested. At the time of arrest, police found a bag containing .3 grams of cocaine. Although arrested in September 2007, Applicant did not report the arrest to his company security officer until August 25, 2008. (Ex. 4, Tr. 79) At the time of the hearing, Applicant had not yet gone to court on the DWI charge. His court date was set for four days after his security clearance hearing. (Tr. 80) The record was kept open for two weeks to allow Applicant to submit additional information including the results of his DWI court appearance. (Tr. 96) No additional information was received.

In April 2006, Applicant was granted his most recent DoD security clearance following a periodic reinvestigation. In January 2009, Applicant gave a personal subject interview in which he told the investigator he had used cocaine once a month from June 2007 to August 2007. (Ex. 2, page 2) At the hearing he stated he used monthly from June 2007 until his arrest in September 2007. (Tr. 62) In Applicant’s substance abuse evaluation (Ex. 3), the licensed professional counselor indicated Applicant’s acknowledgment of monthly use appeared to be a minimization. The evaluation also indicated Applicant had random use of cocaine in college. (Ex. 3) He said he used cocaine so he could stay awake and drink more alcohol. He admits purchasing cocaine in August 2007. (Answer to SOR) In May 2009, Applicant made corrections the investigator’s summary of the January 2009 interview. In his corrections, Applicant stated, “he bought cocaine from an associate and then from his dealer.” (Ex. 2)

Applicant entered into the DIVERT court program. Individuals must volunteer for DIVERT, which is a diversion and treatment program wherein individuals with substance abuse problems are not prosecuted and punished for their addictions, but instead receive intensive treatment and rehabilitation. (Ex. 3) In DIVERT, individuals receive counseling, random drug tests, attend weekly alcohol anonymous (AA) meetings, and have weekly progress reports to the judge administering his case. The judge plays an essential role in monitoring participants’ progress in treatment, supporting positive behavior and dispensing immediate sanctions for non-compliance with the program’s requirements. (Ex. 3)

Applicant entered the program in April 2008, but moved to outside treatment due to private insurance. (Ex. 3) From April 2008 to June 2008, he received individual, group, and multi-family counseling, chemical dependence education, relapse prevention, and written assignments. His discharge summary (Ex. 3) stated Applicant appeared “to have gained good insight to his addiction.” (Ex. 3) He returned to the program from August 20, 2008 to October 29, 2008. The DIVERT program manager stated Applicant made countless contributions to DIVERT activities. (Ex. 3) He successfully completed the DIVERT program. (Tr. 59) Applicant asserted the cocaine charge was dismissed. (Tr. 82) He provided no documentation supporting his assertion.

Applicant was required to wear a SCRAM (Secure Continuous Remote Alcohol Monitor) device on his ankle. The SCRAM device cost him $300 monthly. (Tr. 59)

Applicant attended daily AA meetings and learned he needed to do things differently. (Tr. 61) Applicant actively participated in AA meetings and was familiar with AA literature including the “Big Book.” (Tr. 88) Applicant had an AA sponsor, but has not talked to him since his sponsor relapsed. (Tr. 89) He last attended an AA meeting during the month of his security clearance hearing. (Tr. 87) He replaced going to bars with fishing and golfing. He no longer associates with the people he formerly knew at the bars. (Tr. 90) He no longer drinks or uses illegal drugs. (Tr. 61) Applicant acknowledges he is an alcoholic. (Tr. 94)

From September 2007 to April 2008, Applicant’s car was equipped with an interlock device. On April 1, 2008, Applicant and his wife went to dinner celebrating their 25th wedding anniversary. The restaurant gave them a free glass of wine. (Tr. 29) When they left to go home, his wife was driving and had problem starting the car. Applicant blew into the interlock device and it registered the alcohol from the wine. (Tr. 29) The substance abuse evaluation was conducted on April 3, 2008. It states Applicant violated the interlock device as recent as yesterday (4/1/2008). It states Applicant said, “he drank one beer with his wife at dinner and then attempted to drive home, thinking that he had waited long enough . . .” (Ex. 3) Applicant asserts he never made this statement to the licensed professional counselor who wrote the substance abuse evaluation. (Tr. 71)

Applicant’s April 2008 substance abuse evaluation diagnoses were Alcohol Dependence and Cocaine Abuse. (Ex. 3) From April 2008 through June 2008, he received counseling and chemical dependency education. On June 28, 2008, the SCRAM device detected alcohol on his skin. Applicant asserts this was caused by a skin lotion administered at a day spa. The Client Violation Report (Ex. 3) shows alcohol present starting at 7:00 p.m. June 28, 2008 and disappearing from the chart just after midnight June 28, 2008. Applicant was at the spa from 5 p.m. to 11:30 p.m. (Answer to SOR, Tr. 76) While at the spa, he drank no alcohol. (Tr. 76) The report indicated that reading was caused by consumption. (Ex. 3, Tr. 52) The judge disagreed with Applicant’s assertion that something at the spa caused the violation, and ordered Applicant to attend a 28 day inpatient treatment program. (Tr. 39) From July 22, 2008 to August 20, 2008, Applicant received inpatient treatment for a condition diagnosed in part as Alcohol Dependence and in part as Substance Abuse.

The SOR alleges Applicant told the investigator he had not drank since going into the DIVERT court program and deliberately failed to disclose he had been treated at a residential treatment facility for a relapse. In the interview, Applicant stated he entered the DIVERT court program in April 2008 and expected to be completed with the program in June 2009. Applicant’s January 2009 interview states:

He does not continue to drink alcohol or use any controlled substances, and will not drink alcohol or use any controlled substance after he graduates for the DIVERT court program.

While in college, Applicant used marijuana. He stopped his use in 1979. Applicant asserts that twice in college, he used “speed,” which is an amphetamine. However, Applicant’s substance abuse evaluation indicates his methamphetamine use was once “weekly through college.” (Ex. 3) Applicant is married and has two children ages 27 and 30. (Tr. 23) His wife considers Applicant a good father, a good husband, trustworthy, and an upstanding person who volunteers with youth. (Tr. 24) Applicant has not had alcohol in his home for a couple of years. (Tr. 25) When his wife learned about his illegal drug use she questioned him about it and he replied he must have been going through some kind of mid-life crisis. (Tr. 42) Applicant does not intent to drink in the future. (Tr. 75)

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which must 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.

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 to obtain 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 the applicant may deliberately or inadvertently fail to 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

Alcohol Consumption

Adjudicative Guideline (AG) ¶ 21 expresses the security concern pertaining to alcohol consumption, “Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual's reliability and trustworthiness.”

AG ¶ 22 describes conditions that could raise a security concern and may be disqualifying:

(a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent;

(b) alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, or drinking on the job, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent;

(c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent;

(d) diagnosis by a duly qualified medical professional (e.g., physician, clinical psychologist, or psychiatrist) of alcohol abuse or alcohol dependence;

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

(f) relapse after diagnosis of alcohol abuse or dependence and completion of an alcohol rehabilitation program; and

(g) failure to follow any court order regarding alcohol education, evaluation, treatment, or abstinence. AG ¶ 22(a) applies due to alcohol-related incidents away from work including: his 1979 and 1993 DWI convictions. Additionally, the charges from his September 2007- DWI arrest were set to go to court following the security clearance hearing. AG ¶ 22 (e) applies because he was diagnosed as alcohol dependent. AG ¶ 22 (f) applies because, after completing his initial treatment he was ordered to attend a 28 day inpatient treatment starting in July 2008 because he drank alcohol on June 28, 2008, which violated the terms of the DIVERT program.

AG ¶ 23 provides conditions that could mitigate alcohol consumption security concerns:

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

(b) the individual acknowledges his or her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol abuser);

(c) the individual is a current employee who is participating in a counseling or treatment program, has no history of previous treatment and relapse, and is making satisfactory progress; and

(d) the individual has successfully completed inpatient or outpatient counseling or rehabilitation along with any required aftercare, has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations, such as participation in meetings of Alcoholics Anonymous or a similar organization and has received a favorable prognosis by a duly qualified medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program.

Since his September 2007 arrest, Applicant had an alcohol drink on April 1, 2008, the date of his 25th wedding anniversary, and on June 28, 2008. He has consumed no alcohol in more than a year and a half. Sufficient time has passed to apply the mitigating factor listed in AG ¶ 23(a). Applicant acknowledges he is an alcoholic, has actively participated in AA, and has abstained from alcohol since June 2008. AG ¶ 23(b) applies.

Applicant successfully completed the DIVERT court program. He had completed both inpatient and outpatient counseling and rehabilitation along with required aftercare. He has maintained abstinence. He regularly participated in AA meetings and was familiar with AA teachings and literature. AG ¶ 23(b) partially applies. It does not fully apply because the record contains no favorable prognosis by a duly qualified medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program. There was no prognosis following his departure from the inpatient treatment program in August 2008 or upon completion of the DIVERT program.

Applicant was to attend court to determine the outcome of his 2007 DWI charge. I kept the record open to allow Applicant to submit the results of that court appearance. No documentation concerning his appearance was received.

Drug Involvement

AG ¶ 24 expresses the security concern pertaining to drug involvement that the 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.

AG ¶ 25 describes conditions that could raise a security concern and may be disqualifying:

(a) any drug abuse;

(b) testing positive for illegal drug use;

(c) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia;

(d) diagnosis by a duly qualified medical professional (e.g., physician, clinical psychologist, or psychiatrist) of drug abuse or drug dependence;

(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;

(f) failure to successfully complete a drug treatment program prescribed by a duly qualified medical professional;

(g) any illegal drug use after being granted a security clearance; and

(h) expressed intent to continue illegal drug use, or failure to clearly and convincingly commit to discontinue drug use.

The following AG conditions apply: AG ¶ 25(a) drug abuse; AG ¶ 25(c) possessing and purchasing illegal drugs; AG ¶ 25(e) being diagnosed with cocaine abuse; and AG ¶ 25(g) any illegal drug use after being granted a security clearance. AG ¶ 26 sets forth conditions that could mitigate security concerns.

(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;

(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;

(c) abuse of prescription drugs was after a severe or prolonged illness during which these drugs were prescribed, and abuse has since ended; and

(d) satisfactory completion of a prescribed drug treatment program, including but not limited to rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional.

There are no “bright line” rules for determining when conduct is “recent.” The determination must be based on a careful evaluation of the totality of the record within the parameters set by the directive. If the evidence shows “a significant period of time has passed without any evidence of misconduct,” then an administrative judge must determine whether that period of time demonstrates “changed circumstances or conduct sufficient to warrant a finding of reform or rehabilitation.”2

Between June 2007 and September 2007, Applicant purchased and used cocaine. He was diagnosed with cocaine abuse. His inpatient treatment ended in August 2008, and his participation in the DIVERT program ended in June 2009, six months before the hearing. I find Applicant’s September 2007 use to be recent. Applicant failed to give a satisfactory explanation why someone who has held a security clearance since 1980 would use cocaine. AG ¶ 26(a) does not apply.

Applicant has disassociated himself from drug-using associates and contacts. He avoids the environment where drugs are used. He no longer frequents clubs or bars, but spends his time fishing and golfing. Applicant states he will not use illegal drugs again. He has not executed a signed statement of intent with automatic revocation of clearance for any violation. AG ¶ 26(b) partially applies.

AG ¶ 26(c) does not apply because prescription drugs were not abused. AG ¶ 26(d) does not apply because the record contains no favorable prognosis. Applicant’s college use of marijuana and amphetamine is too remote to be of security concern.

Personal Conduct

Adjudicative Guideline (AG) ¶ 15 articulates the security concerns relating to personal conduct:

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 following Personal Conduct Disqualifying Conditions under AG ¶ 16 are potentially applicable:

(b) deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative;

(c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole- person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information;

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

(1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or other government protected information:

(2) disruptive, violent, or other inappropriate behavior in the workplace;

(3) a pattern of dishonesty or rule violations; and

(4) evidence of significant misuse of Government or other employer's time or resources;

(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, or (2) while in another country, engaging in any activity that is illegal in that country or that is legal in that country but illegal in the United States and may serve as a basis for exploitation or pressure by the foreign security or intelligence service or other group; and

(g) association with persons involved in criminal activity.

Deliberate omissions, concealment, or falsifications of material facts in any written document or oral statement to the Government, when applying for a security clearance, are certainly of security concern. But every inaccurate statement is not a falsification. A falsification must be deliberate and material. It is deliberate if it is done knowingly and willfully.

In this case, Applicant stated, during his January 2009 interview, he was not drinking alcohol or using any controlled substances, and his intention was not to drink alcohol or use any controlled substance after he graduated from the DIVERT court program. The interview’s summary language fails to establish he intentionally falsified his statement during the interview by failing to disclose he had been treated at a residential treatment facility for a relapse. He stated he entered the DIVERT court program in April 2008 and expected to be completed with the program in June 2009. There is no indication he was asked about his 2008 inpatient treatment or about possible relapses. Failing to volunteer this information does not establish a falsification. I find his actions did not constitute deliberate and willful falsification.

Regarding the personal conduct concerns involving Applicant’s cocaine use after being granted a clearance (SOR ¶ 2.b), the pertinent disqualifying conditions is AG ¶ 16(e)(1), which states, “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,” and AG ¶ 16(g) association with persons involved in criminal activity. Certainly, Applicant’s 2007 cocaine use while holding a security clearance violates important civil and criminal rules in our society, and conduct a person might wish to conceal, as it adversely affects a person’s professional and community standing.

Applicant has had a clearance since 1980 and his most recent update was 2006. He provided no reasonable explanation for his use of cocaine while holding a clearance. Applicant was on notice of the serious concern the Government places on drug abuse. Despite this knowledge, Applicant knowingly used cocaine while he possessed a security clearance. His conduct increased his vulnerability to coercion, exploitation, or duress. Under the circumstances, I am not convinced Applicant has demonstrated that the U.S. should entrust classified information to his care.

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 the circumstances. The administrative judge should consider 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.

I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant acknowledged he is an alcoholic. He has been diagnosed as alcohol dependent. However, he is abstaining from alcohol, changed his habits, associates, and where he spends his free time. Additionally, he has learned much from his AA attendance. Applicant’s alcohol consumption is no longer a security concern.

Applicant’s cocaine use while holding a security clearance is a security concern. Having held a clearance since 1980, he clearly knew the Government’s position on illegal drug use while holding a clearance. He failed to give an adequate explanation for his use. Additionally, Applicant held a clearance for 17 years before he used cocaine. It has now been two years since he has abstained. Not enough time has passed nor was his explanation of his cocaine use sufficient to assure me he will not again use cocaine. Overall, the record evidence leaves me without questions and doubts about Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising from his drug involvement and personal conduct.

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, Alcohol Consumption: FOR APPLICANT

Subparagraph 1.a – 1i: For Applicant

Paragraph 2, Drug Involvement: AGAINST APPLICANT

Subparagraph 2.a—2.f: Against Applicant Subparagraph 2.gand 2.h: For Applicant

Paragraph 3, Personal Conduct: AGAINST APPLICANT

Subparagraph 3.a: Against Applicant Subparagraph 3.b: 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.

_______________________ CLAUDE R. HEINY II Administrative Judge

FOOTNOTES

1 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) effective within the DoD on September 1, 2006. 2 ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004).