ISCR Case 10-05860.h1

Case Headnote

ISCR Case No. 10-05860.h1

deniedSep 17, 2012· Hon. Henry Lazzaro· hearing

Summary

A 35-year-old simulator technician was denied a security clearance due to concerns under Guidelines E (Personal Conduct), H (Drug Involvement), and J (Criminal Conduct). The applicant had a history of drug abuse from 1993 to 2008, including marijuana and cocaine use, a positive cocaine test, and participation in drug programs. He also faced multiple criminal charges, including DUIs in 2000 and 2009, and an arrest in 2004 for unlawful delivery of a controlled substance, which was reduced to unlawful possession after he cooperated with police.

Despite mitigating factors related to his drug use and criminal history, the primary reason for denial was the applicant's deliberate falsification of information on his security clearance applications in June 2004 and January 2010. He admitted to providing false answers and also gave inaccurate information to an OPM investigator regarding his drug use cessation dates. Furthermore, he did not fully disclose his cocaine use history until his hearing.

The decision emphasized that no mitigating conditions applied to the personal conduct concerns because the applicant's drug abuse history was not completely revealed until the hearing. The deliberate and recent nature of the false information, compounded by additional inaccuracies during the OPM interview, was deemed significant enough to warrant the denial of his security clearance.

Why the Applicant Was Denied

The applicant provided false answers in security clearance applications, which he admitted were deliberate.
The false information provided was recent and compounded by additional inaccuracies during an OPM interview.
No mitigating condition applied to the personal conduct concerns, as the applicant's history of drug abuse was not fully disclosed until the hearing.

Conditions Referenced

Disqualifying

DC 16(a)appliedDeliberate Omission, Concealment, or Falsification of Relevant Facts

Mitigating

MC 32(a)appliedTime Elapsed Since Criminal Behavior
MC 32(d)appliedEvidence of Successful Rehabilitation
MC 26(a)appliedBehavior Unlikely to Recur
MC 26(b)appliedDemonstrated Intent Not to Abuse Drugs in the Future
MC 26(d)appliedSatisfactory Completion of a Prescribed Drug Treatment Program

Key Rule Quoted

“No one has a right to a security clearance and the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.”
— Egan, 484 U.S. at 531.

Procedural Posture

SOR issuedApr 4, 2012
Answer filedUndated
Hearing heldAug 21, 2012
Decision dateSep 17, 2012

Cite For

Deliberate Falsification of Security Clearance Applications Under Guideline E
Mitigating Factors Related to Drug Involvement and Criminal Conduct Under Guidelines H and J
The Importance of Full Disclosure in Security Clearance Applications.

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

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a	Applicant deliberately provided false answers in the security clearance applications he submitted in June 2004 and January 2010.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	Admitted	(a) deliberate omission, concealment, or falsification on a security form	—	—
3.b	Although not alleged in the SOR, he also provided false information when he was interviewed by an OPM investigator about when he stopped using both marijuana and cocaine.	Against Applicant	Lack of Candor in InterviewFOUND DELIBERATE	Other	Admitted	(a) deliberate omission, concealment, or falsification on a security form	—	—
3.c	Applicant admits he deliberately provided false information in the security clearance applications he submitted.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	Admitted	(a) deliberate omission, concealment, or falsification on a security form	—	—
3.d	He did not provide the Government with a complete history of his drug abuse until he admitted at the hearing that he used cocaine in 2008.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	Admitted	(a) deliberate omission, concealment, or falsification on a security form	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

3.a

Applicant deliberately provided false answers in the security clearance applications he submitted in June 2004 and January 2010.

Against Applicant

Falsification Security FormFOUND DELIBERATE

Other

Admitted

(a) deliberate omission, concealment, or falsification on a security form

—

3.b

Although not alleged in the SOR, he also provided false information when he was interviewed by an OPM investigator about when he stopped using both marijuana and cocaine.

Against Applicant

Lack of Candor in InterviewFOUND DELIBERATE

Other

Admitted

(a) deliberate omission, concealment, or falsification on a security form

—

3.c

Applicant admits he deliberately provided false information in the security clearance applications he submitted.

Against Applicant

Falsification Security FormFOUND DELIBERATE

Other

Admitted

(a) deliberate omission, concealment, or falsification on a security form

—

3.d

He did not provide the Government with a complete history of his drug abuse until he admitted at the hearing that he used cocaine in 2008.

Against Applicant

Omission or Failure to DiscloseFOUND DELIBERATE

Drug Involvement

Admitted

(a) deliberate omission, concealment, or falsification on a security form

—

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a	Applicant abused prescribed and non-prescribed controlled substances between 1993 and 2008.	For Applicant	Unspecified Drug Involvement	Unspecified	Admitted	(a) any substance misuse (b) testing positive for an illegal drug (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (d) diagnosis of a substance use disorder	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	—
2.b	He has purchased marijuana and cocaine.	For Applicant	Drug Distribution or Dealing	Not Applicable	Admitted	(a) any substance misuse (b) testing positive for an illegal drug (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (d) diagnosis of a substance use disorder	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	—
2.c	He tested positive for cocaine in a work-administered urinalysis.	For Applicant	Drug Test FailureWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse (b) testing positive for an illegal drug (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (d) diagnosis of a substance use disorder	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	—
2.d	He participated in inpatient and outpatient drug programs, including a multi-year methadone program.	For Applicant	Treatment Failure	Not Applicable	Admitted	(a) any substance misuse (b) testing positive for an illegal drug (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (d) diagnosis of a substance use disorder	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	—
2.e	He was diagnosed as a cocaine abuser by a physician.	For Applicant	Drug Diagnosed Disorder	Not Applicable	Admitted	(a) any substance misuse (b) testing positive for an illegal drug (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (d) diagnosis of a substance use disorder	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	—
2.f	He has not used an unprescribed controlled substance since he last used cocaine in 2008.	For Applicant	Unspecified Drug Involvement	Unspecified	Admitted	(a) any substance misuse (b) testing positive for an illegal drug (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia (d) diagnosis of a substance use disorder	(a) behavior happened long ago / infrequent / unlikely to recur (b) acknowledges involvement; evidence of action; established abstinence	—

Allegation

Finding

Substance / event

Use level

Response

Disqualifying (¶25)

Mitigating applied (¶26)

Mitigation

2.a

Applicant abused prescribed and non-prescribed controlled substances between 1993 and 2008.

For Applicant

Unspecified Drug Involvement

Unspecified

Admitted

(a) any substance misuse

(b) testing positive for an illegal drug

(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia

(d) diagnosis of a substance use disorder

(a) behavior happened long ago / infrequent / unlikely to recur

(b) acknowledges involvement; evidence of action; established abstinence

—

2.b

He has purchased marijuana and cocaine.

For Applicant

Drug Distribution or Dealing

Not Applicable

Admitted

(a) any substance misuse

(b) testing positive for an illegal drug

(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia

(d) diagnosis of a substance use disorder

(a) behavior happened long ago / infrequent / unlikely to recur

(b) acknowledges involvement; evidence of action; established abstinence

—

2.c

He tested positive for cocaine in a work-administered urinalysis.

For Applicant

Drug Test FailureWHILE CLEARED

Not Applicable

Admitted

(a) any substance misuse

(b) testing positive for an illegal drug

(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia

(d) diagnosis of a substance use disorder

(a) behavior happened long ago / infrequent / unlikely to recur

(b) acknowledges involvement; evidence of action; established abstinence

—

2.d

He participated in inpatient and outpatient drug programs, including a multi-year methadone program.

For Applicant

Treatment Failure

Not Applicable

Admitted

(a) any substance misuse

(b) testing positive for an illegal drug

(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia

(d) diagnosis of a substance use disorder

(a) behavior happened long ago / infrequent / unlikely to recur

(b) acknowledges involvement; evidence of action; established abstinence

—

2.e

He was diagnosed as a cocaine abuser by a physician.

For Applicant

Drug Diagnosed Disorder

Not Applicable

Admitted

(a) any substance misuse

(b) testing positive for an illegal drug

(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia

(d) diagnosis of a substance use disorder

(a) behavior happened long ago / infrequent / unlikely to recur

(b) acknowledges involvement; evidence of action; established abstinence

—

2.f

He has not used an unprescribed controlled substance since he last used cocaine in 2008.

For Applicant

Unspecified Drug Involvement

Unspecified

Admitted

(a) any substance misuse

(b) testing positive for an illegal drug

(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia

(d) diagnosis of a substance use disorder

(a) behavior happened long ago / infrequent / unlikely to recur

(b) acknowledges involvement; evidence of action; established abstinence

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was charged with Driving Under the Influence (DUI) in July 2009. His blood alcohol concentration (BAC) was 0.08. He pled guilty to the offense and was fined $600 and ordered to attend a Level 1 alcohol and drug class. Additionally, his driving privileges were revoked for 90 days. Applicant successfully completed the terms of his sentence.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.b	Applicant was again charged with DUI In April 2000. He pled guilty to this offense in September 2004, and was sentenced to 12 months confinement and fined $1,200 plus costs. The sentence was suspended for two years with unspecified conditions.	For Applicant	DUI or DWI Criminal	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—
1.c	Applicant was arrested in September 2004, and charged with Unlawful Delivery of a Controlled Substance. According to Applicant, the offense actually occurred in 2002 when his girlfriend sold marijuana to some people without his knowledge. Upon being arrested, Applicant was given the opportunity to cooperate with the police in other narcotics investigations in return for a reduced sentence. He provided the cooperation, and was allowed to plead guilty to a reduced charge of Unlawful Possession of a Controlled Substance. He was sentenced to a pretrial diversion program, fined $2,000, and ordered to attend a Level 2 drug and alcohol class.	For Applicant	Drug Related Criminal Charge	Diversion or Deferred	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (c) currently on parole or probation	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Applicant was charged with Driving Under the Influence (DUI) in July 2009. His blood alcohol concentration (BAC) was 0.08. He pled guilty to the offense and was fined $600 and ordered to attend a Level 1 alcohol and drug class. Additionally, his driving privileges were revoked for 90 days. Applicant successfully completed the terms of his sentence.

For Applicant

DUI or DWI Criminal

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(c) currently on parole or probation

—

1.b

Applicant was again charged with DUI In April 2000. He pled guilty to this offense in September 2004, and was sentenced to 12 months confinement and fined $1,200 plus costs. The sentence was suspended for two years with unspecified conditions.

For Applicant

DUI or DWI Criminal

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(c) currently on parole or probation

—

1.c

Applicant was arrested in September 2004, and charged with Unlawful Delivery of a Controlled Substance. According to Applicant, the offense actually occurred in 2002 when his girlfriend sold marijuana to some people without his knowledge. Upon being arrested, Applicant was given the opportunity to cooperate with the police in other narcotics investigations in return for a reduced sentence. He provided the cooperation, and was allowed to plead guilty to a reduced charge of Unlawful Possession of a Controlled Substance. He was sentenced to a pretrial diversion program, fined $2,000, and ordered to attend a Level 2 drug and alcohol class.

For Applicant

Drug Related Criminal Charge

Diversion or Deferred

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(c) currently on parole or probation

—

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Summary

Why the Applicant Was Denied

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision