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ISCR Case 09-06841.h1 — CASE

ISCR Case 09-06841.h1denied

Case Headnote

ISCR Case No. 09-06841.h1

deniedApr 1, 2011· Hon. Richard A. Cefola· hearing

Summary

A 39-year-old male applicant was denied a security clearance due to concerns under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The denial stemmed from a history of marijuana use and deliberate falsifications on his security clearance application.

Specifically, the applicant admitted to using marijuana from approximately age 17 or 18, initially three to four times per week until age 26, then resuming use once or twice a month from age 30 until August or September 2009. He also tested positive for marijuana in March 2005 and used the substance after being granted a security clearance in May 2009.

Regarding personal conduct, the applicant willfully falsified his May 2009 security clearance application. He falsely answered "No" to a question about illegal controlled substance use in the preceding seven years, despite smoking marijuana once or twice a month during that period. Additionally, while he disclosed a 1994 DUI arrest, he failed to list a 1989 marijuana possession charge, claiming he had forgotten about it. The judge concluded that the applicant's long-term drug use and intentional omissions on his application raised significant doubts about his reliability and trustworthiness, leading to the denial.

Why the Applicant Was Denied

The applicant admitted to long-term marijuana use, including illegal use after being granted a security clearance.
The applicant falsified his security clearance application by omitting relevant drug-related charges and providing misleading answers.

Conditions Referenced

Disqualifying

H.25.araisedAny Drug Abuse
H.25.graisedIllegal Drug Use After Being Granted a Security Clearance
E.16.araisedDeliberate Omission, Concealment, or Falsification of Relevant Facts

Key Rule Quoted

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

Procedural Posture

SOR issuedSep 2, 2010
Answer filedSep 20, 2010Applicant requested an Administrative Determination.
Hearing held—
Decision dateApr 1, 2011

Cite For

Long-term Drug Use as a Disqualifying Factor Under Guideline H
Falsification of Security Clearance Application Under Guideline E
The Paramount Consideration of National Security in Clearance Decisions

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 allegations of personal conduct under Guideline E. The applicant was determined to have falsified information on his security clearance application regarding drug use and prior charges, which raised significant concerns about his reliability and trustworthiness.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	The Applicant answered “No” to Section 23a on his May 2009 SCA. The posited question asks if the Applicant “In the last 7 years . . . illegally used any controlled substance” to include “marijuana.” This is a wilful falsification as the 39-year-old Applicant smoked marijuana “once or twice a month,” in the last 7 years prior to him executing his SCA.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	Admitted	—	—	—
2.b	The Applicant answered “Yes” to Section 22d on his May 2009 SCA. The posited question asks if the Applicant has “ever been charged with . . . any offense(s) related to alcohol or drugs.” This is a willful falsification as, although the Applicant listed a 1994 Driving Under the Influence of alcohol arrest; he failed to list his 1989 marijuana possession charge, noted above. This is also a wilful falsification, despite the claim of having “forgot” about it.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge found that the applicant had a long history of marijuana use, which included usage after being granted a security clearance. The applicant's admissions and the positive drug test contributed to the decision against granting the security clearance. The judge concluded that the applicant did not mitigate the security concerns related to drug involvement.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The Applicant began using marijuana in cigarette form around the age of 17 or 18. He usually smoked it with friends at parties or while riding around with them. He usually purchased it from friends or acquaintances. He never sold or distributed drugs. Marijuana is the only illegal substance he has ever used. He smoked marijuana to relax. He typically made him feel mellow, relaxed and sometimes silly. He had purchased the marijuana the night of his arrest from an acquaintance prior to the party. From high school until he was around 26 years old, he smoked marijuana three to four times per week. He usually smoked about a quarter of an ounce per week. From the age of 26 until the age of 30, he quit smoking marijuana. At the age of 30 he started smoking marijuana again but only once or twice per month. He last smoked marijuana in August or September of 2009.	Against Applicant	MarijuanaWHILE CLEARED	Frequent	Admitted	—	—	—
1.b	In March of 2005, the Applicant tested positive for marijuana.	Against Applicant	Drug Test Failure	Not Applicable	Admitted	—	—	—
1.c	The Applicant used marijuana subsequent to being granted a security clearance in May of 2009.	Against Applicant	MarijuanaWHILE CLEARED	Occasional	Admitted	—	—	—
1.d	specific text not stated in this decision	Against Applicant	Unspecified Drug Involvement	Unspecified	Unknown	—	—	—

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. 09-06841 ) ) Applicant for Security Clearance )

For Government: Daniel F. Crowley, Esquire, Department Counsel For Applicant: Pro se

April 1, 2011

______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

The Applicant submitted his Security Clearance Application (SF 86), on May 15, 2009. On September 2, 2010, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns under Guideline F for Applicant. 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 for cases after September 1, 2006.

The Applicant acknowledged receipt of the SOR on September 7, 2010. He answered the SOR in writing on September 20, 2010, and requested an Administrative Determination by an Administrative Judge. Department Counsel issued a File of Relevant Material (FORM) on January 28, 2011. The Applicant did not respond to the FORM. Based upon a review of the case file, pleadings, and exhibits, eligibility for access to classified information is denied.

FINDINGS OF FACT

In his Answer to the SOR, dated September 20, 2010, the Applicant admitted all of the factual allegations of the SOR, with some explanation. He qualified his admission to subparagraph 2.b. averring that he “forgot” about being charged with Possession of Marijuana, when he answered Section 22don his May 2009 SCA.

Guideline H - Drug Involvement

1.a.~1.d. In an affidavit executed by the Applicant on April 2, 2010, he describes his Drug Involvement in the following terms:

I began using marijuana in cigarette form around the age of 17 or 18 [about 1989]. I usually smoked it with friends . . . either at parties or while riding around with them. I usually purchased it from friends or acquaintances. I never sold or distributed drugs. Marijuana is the only illegal substance I have ever used. I smoked marijuana to relax. It typically made me feel mellow, relaxed and sometimes silly. I had purchased the marijuana the night of my arrest [and charge in 1989] from an acquaintance prior to the party. From high school until I was around 26 years old, I smoked marijuana three to four times per week. I usually smoked about a quarter of an ounce per week. From the age of 26 until the age of 30, I quit smoking marijuana. At the age of 30 I started smoking marijuana again but only once or twice per month. I last smoked marijuana in August or September of 2009. (FORM, Item 7 at page 2.)

In March of 2005, the Appellant tested positive for marijuana. (FORM, Item 7 at page 3.) He also used marijuana subsequent to being granted a security clearance in May of 2009.

Guideline E - Personal Conduct

2.a. The Applicant answered “No” to Section 23a on his May 2009 SCA. The posited question asks if the Applicant “In the last 7 years . . . illegally used any controlled substance” to include “marijuana.” (FORM, Item 4 at page 33; Emphasis in original.) This is a wilful falsification as the 39-year-old Applicant smoked marijuana “once or twice a month,” in the last 7 years prior to him executing his SCA. (FORM, Item 2 at page 4.)

2.b. The Applicant answered “Yes” to Section 22don his May 2009 SCA. The posited question asks if the Applicant has “ever been charged with . . . any offense(s) related to alcohol or drugs.” (FORM, Item 4 at page 32.) This is a willful falsification as, although the Applicant listed a 1994 Driving Under the Influence of alcohol arrest; he failed to list his 1989 marijuana possession charge, noted above. This is also a wilful falsification, despite the claim of having “forgot” about it.

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 over-arching adjudicative goal is a fair, impartial and commonsense decision. According to AG Paragraph 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 Paragraph 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 Paragraph E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive Paragraph E3.1.15, the Applicant is responsible “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 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

Guideline H - Drug Involvement

The security concern relating to the guideline for Drug Involvement is set out in Paragraph 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.

The guideline also notes several conditions that could raise security concerns. Under Subparagraph 25(a), “any drug abuse” may be disqualifying. In addition, “any illegal drug use after being granted a security clearance” under Subparagraph 25(g) may be disqualifying. Here, the Applicant illegally used marijuana over a period of 20 years from about 1989 until about August or September of 2009. I find no countervailing mitigating conditions that are applicable here, as his usage stopped only about a year and a half ago.

Guideline E - Personal Conduct

The security concern relating to the guideline for Personal Conduct is set out in Paragraph 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.

The guideline notes several conditions that could raise security concerns. Under Subparagraph 16(a), “deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire . . . or similar form . . .” may be disqualifying. Here, the Applicant falsified his answers to Sections 22 and 23 on his May 2009 SCA. I can find no countervailing Mitigating Condition that is applicable, as there is no showing of “prompt, good-faith efforts to correct the . . . falsification” as required by the first mitigating condition.

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. Under AG Subparagraph 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.

The Administrative Judge should also consider the nine adjudicative process factors listed at AG Subparagraph 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.

I considered all of the evidence, including the potentially disqualifying and mitigating conditions surrounding this case. The Applicant has offered nothing further for my consideration in response to the Government’s FORM. Thus, the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. He was clearly less than candid with the Government as to his long term past drug abuse. For all these reasons, I conclude Applicant has not mitigated the security concerns arising from his Drug Involvement and related 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, Guideline H: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant

Subparagraph 1.b: Against Applicant

Subparagraph 1.c: Against Applicant

Subparagraph 1.d: Against Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

Subparagraph 2.b: Against Applicant

CONCLUSION

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

Richard A. Cefola Administrative Judge