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ISCR Case 10-05935.h1 — CASE

ISCR Case 10-05935.h1denied

Case Headnote

ISCR Case No. 10-05935.h1

deniedApr 20, 2012· Hon. Paul J. Mason· hearing

Summary

A 46-year-old systems integration analyst was denied a security clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement) due to deliberate omissions and false statements on his security applications. The applicant initially submitted an application in December 2003, denying any drug use since age 16 or in the preceding seven years.

In January 2007, on a subsequent SF 86, he disclosed cocaine use between June and August 2000 but omitted his marijuana use in October 2006, claiming he "was not even thinking about it." The judge found that the applicant used marijuana in October 2006 while holding a security clearance, which had been granted in October 2004. He admitted to inhaling a puff of marijuana and to cocaine use in June and July 2000, as well as a single instance of selling cocaine for $20 in 1991.

The applicant's defense that his security clearance was inactive due to unemployment when he used drugs was deemed invalid. Despite evidence of good character and the passage of time, the judge concluded that the deliberate omissions regarding his October 2006 marijuana use and his false denial of drug use while cleared were not mitigated, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant deliberately omitted relevant facts regarding his October 2006 marijuana use from his January 2007 security application.
The applicant falsely denied drug use while holding a security clearance, claiming his clearance was inactive due to unemployment, which was not a valid defense.
The applicant's explanations for his omissions were not credible and did not mitigate the security concerns.

Conditions Referenced

Disqualifying

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

Mitigating

AG ¶ 17(b)appliedImproper or Inadequate Advice of Authorized Personnel
AG ¶ 17(c)rejectedThe Offense Was Minor or Unlikely to Recur
AG ¶ 17(d)rejectedAcknowledgment of Behavior and Positive Steps Taken

Key Rule Quoted

“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.”

Procedural Posture

SOR issuedMar 24, 2011
Answer filedApr 18, 2011
Hearing heldFeb 15, 2012
Decision dateApr 20, 2012

Cite For

Deliberate Omission of Drug Use Under Guideline H
False Denial of Drug Use While Holding a Security Clearance Under Guideline E
Impact of Character Evidence on Security Clearance Decisions Despite Disqualifying Conduct.

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, citing deliberate omissions regarding drug use on security clearance applications. The applicant's claims of forgetfulness and reliance on advice were not sufficient to mitigate the concerns raised by his conduct. The overall outcome was a denial of eligibility for access to classified information.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	On December 30, 2003, Applicant submitted his first application for a security clearance. In response to question 27 requiring information about drug use since age 16 or in the last 7 years, he answered 'no.'	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
1.b	On January 11, 2007, Applicant submitted an SF 86. In response to question 27, requiring information about drug use since 16 or in the last 7 years, Applicant indicated 'yes' that he had used cocaine between June and August 2000. He indicated that he did not list his use of marijuana in October 2006 because he was not even thinking about it.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—

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's drug involvement issues were resolved in his favor based on the passage of time and credible character evidence. However, the overall eligibility for access to classified information was denied due to the applicant's deliberate omission of drug use from his security clearance application. The judge ruled against the applicant on the personal conduct allegations, which were tied to the drug involvement.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a	Applicant used marijuana while holding a security clearance granted to him in October 2004.	For Applicant	MarijuanaWHILE CLEARED	Not Applicable	Admitted	—	—	—
2.b	Applicant admitted he inhaled a puff of marijuana from a “joint.”	For Applicant	Marijuana	Occasional	Admitted	—	—	—
2.c	Applicant admitted using cocaine with varying frequency in June and July 2000.	For Applicant	Cocaine	Frequent	Admitted	—	—	—
2.d	Applicant’s cocaine sale occurred on one occasion in 1991 when he received $20 for a commensurate quantity of the drug.	For Applicant	Drug Distribution or Dealing	Not Applicable	Admitted	—	—	—
2.e	Applicant denies he used drugs while holding a security clearance because his security clearance was inactive.	For Applicant	Unspecified Drug InvolvementWHILE CLEARED	Not Applicable	Denied	—	—	—

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. 10-05935 ) Applicant for Security Clearance )

For Government: Gina L. Marine, Esquire, Department Counsel For Applicant: Leslie McAdoo Gordon, Esquire

04/20/2012 ______________

STATEMENT OF CASE

______________

MASON, Paul J., Administrative Judge:

Applicant’s deliberate omission of his October 2006 drug use from his January 2007 security application, coupled with his false denial that he used drugs after being granted a security clearance in October 2004, has not been mitigated. The drug involvement guideline is resolved in Applicant’s favor based on the passage of time and Applicant’s credible character evidence. Eligibility for access to classified information is denied.

Statement of the Case

On March 24, 2011, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing security concerns under personal conduct (Guideline E) and drug involvement (Guideline H). The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense (DoD) Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented by the Department of Defense on September 1, 2006. Applicant’s undated notarized answer to the SOR was received on April 18, 2011.

On November 29, 2011, Department Counsel filed an amendment to the SOR. On December 8, 2011, Applicant filed an answer to the amended SOR. DOHA issued a notice of hearing on January 23, 2012, for a hearing on February 15, 2012. The hearing was held as scheduled. At the hearing, eight exhibits (GE 1 through GE 8) were admitted in evidence without objection in support of the Government’s case. Applicant testified and proffered 21 exhibits (AE A through AE U), which were admitted in evidence without objection. DOHA received the transcript (Tr.) on February 23, 2012. The record closed on March 1, 2012.

Rulings on Procedure

The amended SOR, filed on November 29, 2011, replaces the three subparagraphs of paragraph 1 of the original SOR (March 24, 2011) with new subparagraphs 1.a through 1.c. The amended subparagraphs appear in Hearing Exhibit (HE 1). The amended SOR changes paragraph 2 (Guideline H) by adding new subparagraphs 2.dand 2.e. Those new paragraphs also appear in HE 1.

On February 8, 2012, I conducted a telephone conference call with the parties to discuss the request by Applicant’s counsel for a short continuance to obtain documents from another government agency. I denied the request, but informed Applicant’s counsel I would address the request for continuance at the hearing. I suggested that we proceed with the hearing, then leave the record open for a period to allow Applicant’s counsel additional time to retrieve the documents. At the hearing, the parties agreed to leave the record open for two weeks until March 1, 2012. (Tr. 7-8, 105) On February 29, 2012, Applicant’s counsel notified me by email that she decided not to proffer any additional documentation.

FINDINGS OF FACT

Applicant is 46 years old and single. In May 1988, he received his bachelor’s degree in science and engineering. (Tr. 33) Since January 11, 2007, Applicant has been employed as a systems integration analyst in information technology (IT). He seeks a secret security clearance. Drug Use History

In approximately 1982, Applicant was 17 years old when he began using drugs. He used marijuana on two occasions. In 1985, he was a college sophomore and used mushrooms on one occasion. In the summer of 1987, he purchased about $100 of cocaine from his brother and used the drug on one occasion at a bachelor’s party. (Tr. 40-42)

In 1991, Applicant returned home to visit his parents. He purchased about $100 of cocaine from his brother and used it over a three-week period. Within the three-week- period, after a friend’s repeated requests to buy some cocaine, the friend exchanged $20 with Applicant for $20 worth of the cocaine that Applicant had purchased earlier from his brother. (Tr. 43-44)

From 1998 to 2000, Applicant testified that he worked in information technology (IT) for a software company in a position not requiring a security clearance. (Tr. 35)

In the period between July and August 2000, a friend gave Applicant a small quantity of cocaine. Two or three weeks later, Applicant contacted the friend for more cocaine. The friend gave Applicant the name and number of a female who would sell him additional cocaine. Applicant purchased the drug from the female on two occasions, spending about $100 for each purchase. (Tr. 44-47) Applicant indicated that he used cocaine during the period because he was unemployed and frustrated. (GE 5 at 1) However, his security clearance applications reflect he was employed as a software engineer from May 1998 to April 2001. (GE 1, GE 2)

The SOR allegations will be addressed chronologically.

SOR ¶ 1.a. On December 30, 2003, Applicant was 38 years old when he submitted his first application for a security clearance. (GE 1) In response to question 27 requiring information about drug use since age 16 or in the last 7 years, he answered “no.” (SOR 1.a) Applicant testified that this SF 86 was his first application for a security clearance, so he sought guidance from his facility security officer (FSO) before responding to the drug use question. The FSO indicated that because Applicant was applying for a secret clearance, he had to disclose only drug use within the last three years. If he was applying for top secret access, he would have to disclose any drug use within the last seven years. Applicant answered “no” to question 27. (Tr. 55-57, 95) He did not recall the FSO specifically directing him to enter “no” to question 27. (Tr. 95-96) Applicant received his secret security clearance in October 2004. (Tr. 57; GE 1, GE 2) When Applicant submitted his SF 86 in December 2003, he had been employed since July 2002 as vice president of operations for a defense contractor. (GE 1, GE 2) At the end of 2005, Applicant became the FSO for this contractor. He held that position until he was laid off in September 2006. (Tr. 75-76; GE 4 at 1 AE N)

From October 2006 to November 2006, Applicant was unemployed. (GE 2 at 2) He indicated his security clearance became inactive. (Tr. 59-60; GE 2, GE 7) He began receiving unemployment compensation in October 2006. (AE E)

In October 2006, Applicant’s testimony and his affidavits confirm he ate dinner and drank a large quantity of wine with his fiancé and other guests at a restaurant. (Tr. 48-49, 51-52; GE 4, GE 5) In his affidavit dated March 11, 2010, he supplied information about smoking marijuana with the owner of the restaurant after the October 2006 dinner. (GE 4)3 He stated:

After dinner the owner invited me and other people to his office to talk. During the conversation, a marijuana joint was passed around the room; I took one puff and passed it on to someone else. Later, I realized that I should not have smoked Marijuana; it was a lapse in judgment. I contributed (sic) this bad decision to the alcohol that I had consumed during dinner. Since the stated incident, I have never used Marijuana or any other drug. (Id. at 1)

In his affidavit dated April 6, 2010, Applicant provided essentially the same information about the October 2006 dinner. He recalled that he took a puff of the marijuana “joint” and then went home. (GE 5 at 1)

SOR ¶ 1.b. On January 11, 2007, Applicant submitted an SF 86. He was applying for a top secret clearance and special compartmented access (TSSCI) In response to question 27, requiring information about drug use since 16 or in the last 7 years, Applicant indicated “yes” that he had used the cocaine between June and August 2000. He indicated that he did not list his use of marijuana in October 2006 because he was not even thinking about it. (Tr. 80-81) He claimed he did not learn he had smoked marijuana until the owner of the restaurant told him in April or May 2007. (Tr.78-79) In his answer to the original SOR, Applicant indicated he forgot about the one-time use of marijuana in October 2006. (See, answer to SOR) In responding to the question of why he previously indicated that he forgot to mention the one-time use of marijuana, Applicant testified, “Because at this time I, now, [restaurant owner] had - - you know, this is after [restaurant owner] had informed me, and that was - - so, yes, so now I remember, now I know what happened, based on [restaurant owner’s] telling of the incident, and then my spotty memory.” (Tr. 80)

SOR ¶ 1.c. In response to question 28 of the January 2007 SF 86 (use of drugs while holding a security clearance), Applicant answered “no” that he had not used drugs while holding a security clearance. His reasons were that he was unemployed and his security clearance was inactive in October 2006. (Tr. 59-60; GE 2 at 1, GE 7)

As Applicant explained in GE 4, his January 2007 SF 86 was filled out to obtain a TSSCI with another agency of the U.S. government. The pre-polygraph interview with the other agency was in March 2007, but the polygraph interviews focusing on Applicant’s drug use began in June 2007. (Tr. 84) In his first polygraph interview, Applicant recalled the focus of the questions was his drug use, including his drug use in October 2006, and whether he was truthful in his responses to the January 2007 SF 86. (Tr. 65, 85-89) The record is silent concerning whether Applicant informed the other agency that he did not discover he had used marijuana until April or May 2007.

On December 17, 2008, the other agency informed Applicant that he was denied TSSCI access based on his drug use, including his October 2006 use of marijuana, and using drugs while possessing a security clearance.

SOR ¶ 2.a. In October 2006, Applicant admitted he inhaled a puff of marijuana from a “joint.” (Answer to SOR; Tr. 67)

SOR ¶ 2.b. Applicant admitted using cocaine with varying frequency in June and July 2000. (Answer to SOR; Tr. 44-47)

SOR ¶ 2.c. Applicant admitted purchasing cocaine. (Answer to SOR; Tr. 41-47)

SOR ¶ 2.d. Applicant’s cocaine sale occurred on one occasion in 1991 when he received $20 for a commensurate quantity of the drug. He never sold cocaine at any other time.

SOR ¶ 2.e. Applicant used marijuana while holding a security clearance granted to him in October 2004. Applicant denies he used drugs while holding a security clearance because his security clearance was inactive due to his unemployment. (Tr. 68-70) Applicant has not used any drugs since October 2006. (GE 4 at 2) When he was hired into his current job in January 2007, his drug screen results were negative. (AE A) On March 10, 2010, Applicant indicated his willingness to sign a statement not to engage in future drug use. (GE 5) On December 16, 2011, he signed a statement of intent not to use any drugs in the future, and have his security clearance revoked for any violation. (AE C, GE 7) Applicant took a hair follicle test in January 2012. The results were negative. (AE D) Applicant’s fiancé is against drug use. (Tr. 100) His brother has not used drugs for eight years. It has been more than 20 years since Applicant saw the person who gave Applicant $20 for cocaine. (Tr. 53) Applicant’s other friend stopped using drugs in 2000. (Tr. 54)

Character Evidence

Applicant’s performance evaluations for four and one-half years range from a “successful contributor” to a “high contributor.” (AE F through AE J) Applicant and a friend of 15 years have served on the board of an organization that educates federal agencies and the public about the proper handling of pyrotechnics. (Tr. 70-71; AE L) Applicant’s sister, a detective and polygrapher on a police force, considers Applicant honest and dedicated. (AE M) In April 2011, Applicant received a letter of appreciation for his contributions to a project. (AE O). Applicant received two cash awards in December 2007 and October 2009 for a good job performance. Since he began employment for his current employer in January 2007, he has had no security violations. (Tr. 71; AE K) Though Applicant is not cleared at the TSSCI level, his coworkers with TSSCI have determined he is trustworthy because they escort him into controlled areas to address IT issues. (Tr. 73)

POLICIES

When evaluating an applicant's suitability for a security clearance, the administrative judge must consider the AG. Each guideline lists potentially disqualifying conditions and mitigating conditions, which are required to be considered to the extent they apply in evaluating an applicant's eligibility for access to classified information. These guidelines must be evaluated in the context of the whole-person concept.

The administrative judge's ultimate goal is to reach a fair and impartial decision based on common sense. The decision should also include a careful, thorough evaluation of a number of variables known as the whole-person concept that brings together all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. 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 about the potential, rather than actual, risk of compromise of classified information.

Under Directive ¶ E3.1.14., the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.l5., 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 for obtaining a favorable security decision.

At the hearing, Applicant cited several hearing-level decisions and two Appeal Board decisions to support his position that personal conduct and drug involvement issues have been mitigated. Hearing-level decisions are not binding on other administrative judges even though factual similarities may exist between the case decision and the case to be decided. The first Board decision cited by Applicant, ISCR Case No. 95-0560 at 3 (App. Bd. Aug. 16, 1996) explains that falsifications (under the Personal Conduct Criterion of the DoD Directive 5220.6, dated January 2, 1992) could still be relevant and material under other criteria even though the concealed conduct is determined to be mitigated. Though the current personal conduct guideline does not include the word “materiality,” failure to disclose relevant information may demonstrate poor judgement by an applicant in trying to mislead the Government in a security clearance application. The second Board case cited by Applicant (ISCR Case No. 98-6808 (App. Bd. June 27, 2000)) is a criminal conduct case, not a drug involvement case.

ANALYSIS

Personal Conduct

The security concern for personal conduct is set forth in AG ¶ 15:

AG ¶ 15. Conduct involving questionable judgment, lack of candor, dishonesty, or unwilingness 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.

AG ¶ 16 contains one disqualifying condition that may be applicable: 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). When examining the evidence under the personal conduct guideline to determine whether the falsifications or omissions were deliberate, it is important to keep in mind that every omission of material information is not deliberate. It can occur because of negligence, oversight, or misunderstanding. Having evaluated all the direct and circumstantial evidence relating to SOR ¶ 1.a, I conclude Applicant deliberately omitted relevant facts from his December 30, 2003, SF 86. He used cocaine on an occasional basis between June and July 2000, within the seven-year period set forth in question 27. AG ¶ 16(a) applies.

Regarding Applicant’s negative answer to question 27 of his SF 86 that he submitted on January 11, 2007 (SOR ¶ 1.b), his claim is that he did not include his use of marijuana in October 2006 because he became intoxicated from consuming too much wine at the restaurant, and did not remember his one-time marijuana use. In addition, he claims he did not learn he had used marijuana until the restaurant owner informed him in April or May 2007, three or four months after he submitted the SF 86. The only other reference to this April or May 2007 conversation occurred in his testimony at the hearing in February 2012. In affidavits Applicant furnished to the Government in March and April 2010, he did not express any difficulty recalling the puff he took from a marijuana “joint.”

There is no reference in the record about the April or May 2007 conversation during interviews with the other government agency in June 2007, or in Applicant’s answer to the SOR. In his answer, he uses the word “forget” in explaining why he did not include his marijuana use in October 2006. He did not state in his answer that he did not find out about his October 2006 marijuana use until April or May 2007. Forgetting about an event implies having remembered the event at an earlier date, but not being able to recall the event at a later date. The most reasonable interpretation for not remembering that an event occurred is having no recollection of the event. I conclude that Applicant deliberately omitted relevant information about his marijuana use from his January 2007 security clearance application. AG ¶ 16(a) applies

SOR ¶ 1.calleges Applicant deliberately omitted material information by responding “no” to question 28 (drug use while holding a security clearance) of his January 11, 2007 SF 86. He defends his “no” answer with a claim that his security clearance was inactive and he was unemployed. When Applicant used marijuana in October 2006, he had a security clearance that had been granted to him in October 2004.The fact that Applicant was unemployed in October 2006 did not nullify the continued validity of the security clearance he had been granted in October 2004. Possessing a valid security clearance facilitates a security clearance holder’s ability to transfer from one secured position to another without having to repeat a full background security investigation process. Requiring an applicant to undergo a full background investigation every time their employment ended would cripple the security clearance application process. Even though Applicant’s security clearance was inactive when he used marijuana in October 2006, he was not relieved of the responsibilities of a security clearance holder, one of which is not to not use drugs. AG ¶ 16(a) applies. There are four mitigating conditions under AG ¶ 17 that are potentially applicable to the circumstances in this case. Those conditions are: AG ¶ 17(a) the individual made prompt, good-faith efforts to correct the omission, concealment or falsification, before being confronted with the facts; AG ¶ 17(b) (the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security clearance process. Upon being made aware of the requirement to cooperate or provide information, the individual cooperated fully and truthfully); AG ¶ 17(c) (the offense was so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment); and AG ¶ 17(d) (the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate stressors, circumstances, or factors that caused untrustworthy, unreliable or other inappropriate behavior, and such behavior is unlikely to recur).

AG ¶ 17(b) applies to SOR ¶ 1.a of the SOR. While Applicant had been working in software for some time, his submission of his SF 86 in December 2003 was the first time he applied for a security clearance. When he read question 27 of the security form, he recalled he had used cocaine between June and July 2000. He exercised good judgment by seeking guidance from his FSO. His deliberate concealment of his cocaine use was “significantly contributed to by improper advice of authorized personnel” even though Applicant was 38 years old when he filled out his first security form in December 2003, SOR ¶ 1.a is found in Applicant’s favor.

On the other hand, I do not agree that Applicant simply did not remember his one- time marijuana use in October 2006 when he submitted his SF 86 in January 2007. (SOR ¶ 1.b) Considering the detail Applicant provided in the affidavits of the surrounding circumstances in which he used the marijuana, it seems logical that he would also indicate in those affidavits that he did not remember the marijuana use until he was reminded informed in April 2007 by the owner of the restaurant. There is no indication he informed the other government agency about how he found out he used marijuana. His answer makes no reference to the April 2007 conversation. Instead, he did not disclose his failure to remember claim until the hearing.

Applicant also argues that since he reported his more serious and drug use in his January 2007 SF 86, it does not make sense that he would deliberately try to conceal a one- time use of marijuana. Considering the evidence as a whole, he did not disclose his use of marijuana in October 2006 that occurred less than three months before he submitted his second SF 86, raising a reasonable inference of an intent to conceal his marijuana use. Applicant avers that because he disclosed his October 2006 drug use to the other agency in June 2007, there was no logical benefit for him to deliberately conceal that use on his January 2007 SF 86. Combined with the minor nature of the use, the infrequency of the use, and passage of five years, Applicant contends that it is unlikely to recur and does not raise doubts about his trustworthiness and good judgment.

Applicant’s subsequent disclosure of information in June 2007 of information that he concealed in his January 2000, SF 86 raises questions about his judgment and reliability. The absence of any reference in the record of the April 2007 conversation (where the owner of the restaurant supposedly reminded Applicant that he used marijuana in October 2006), except at the hearing in February 2012, substantially undermines the credibility of Applicant’s claim of having the April 2007 conversation. In sum, I am not persuaded there was a conversation in April 2007. Having evaluated all the evidence, Applicant’s deliberate omission of relevant information from his January 2007 SF 86 and denial that he used drugs while holding a security clearance granted to him in October 2004 continue to cast doubt on his trustworthiness and good judgment.

AG ¶ 17(d) does not apply to SOR ¶ 1.bbecause Applicant continues to maintain he did not know he had used marijuana in October 2006 when he filled out his SF 86 in January 2007. The mitigating condition does not apply to SOR ¶ 1.cbecause Applicant continues to believe his clearance was inactive and he was unemployed, temporarily releasing him from his responsibilities as a security clearance holder. Applicant’s abstinence from drug use since October 2006 shall be addressed under the drug involvement guideline.

Drug Involvement

Paragraph 24 of the AG sets forth the security concern attached to drug involvement:

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

AG ¶ 25 identifies several disqualifying conditions that could raise security concerns. The disqualifying conditions that are applicable are: AG ¶ 25(a) (any drug abuse); AG ¶ 25(c) (illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution, or possession of drug paraphernalia); and AG ¶ 25(g) (any illegal drug use after being granted a security clearance).

Applicant used marijuana in October 2006. He used cocaine with varying frequency between June and July 2000. He purchased cocaine on occasion. His sale of cocaine occurred 21 years ago. Lastly, Applicant used marijuana in October 2006 while holding a security clearance. AG ¶¶ 25(a), 25(c), and 25(g) apply.

The two relevant mitigating conditions under the drug involvement guideline are: AG ¶ 26(a) (the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment); and AG ¶ 26(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 are used, (3) an appropriate period of abstinence, and (4) a signed statement of intent with automatic revocation of clearance for any violation).

AG ¶ 26(a) may apply when the drug use was not recent. There is no automatic litmus test that determines recency. There is no evidence of cocaine use after July 2000. There is no evidence of drug use since Applicant’s one-time use of marijuana in October 2006. There is evidence Applicant no longer associates with drug users. There has been no sign of drug use in over five years. On March 10, 2010, Applicant stated his willingness to sign a statement to remain abstinent with a revocation of his security clearance for any violation. On December 16, 2011, Applicant signed a statement memorializing his intention to refrain from drug use. Applicant’s hair follicle test in January 2012, yielded negative results. AG ¶¶ 26(a) and 26(b) apply.

WHOLE PERSON CONCEPT

In evaluating Applicant’s security clearance worthiness, I have examined the evidence under the disqualifying and mitigating conditions of the financial guideline. I have also weighed the circumstances within the context of nine variables known as the whole- person concept. In evaluating the relevance of an individual's conduct, the administrative judge should consider the following factors:

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 the participation was 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.

The ultimate decision of whether the granting or continuing eligibility for a security clearance is clearly consistent with the interests of national security must be a judgment based on common sense after a careful review of the guidelines, which are to be evaluated in the context of the whole-person concept. (AG ¶ 2(c))

Applicant earned a bachelor’s of science and engineering degree in May 2008. Since he was hired by his current employer in January 2007 he has demonstrated a good performance record that has been recognized on two occasions by performance awards and commendation certificates. He has never had a security violation. I am convinced he has not used drugs for five years.

By contrast, Applicant deliberately omitted relevant information from his security application in December 2003. Though I have found for Applicant under AG ¶ 17(b) because the omission was significantly caused improper advice from authorized personnel, the deliberate falsification cannot be ignored under the whole-person concept and the fact that Applicant was 38 years old when he submitted the SF 86 in December 2003.

In January 2007, Applicant omitted relevant information about his drug use. Though he disclosed his cocaine use from 2000, he did not disclose his one-time use of marijuana in October 2006. Because the use occurred less than three months before he submitted his SF 86, I am not persuaded he did not remember the use when he submitted his SF 86 in January 2007. I do not believe he had a conversation with the owner in April 2007 because there is no reference to that conversation at any other location in the record. Based on a careful review of the record in the context of the specific adjudicative conditions and the whole-person concept, the personal conduct concerns have not been mitigated. Applicant’s lifestyle changes and his documented evidence showing a willingness to abstain from any drug use satisfies his burden of persuasion under the drug involvement guideline.

FORMAL FINDINGS

Paragraph 1 (Guideline E): AGAINST APPLICANT

Subparagraph 1.a: For Applicant Subparagraphs 1.band 1.c: Against Applicant

Paragraph 2 (Guideline H): FOR APPLICANT

Subparagraphs 2.a-2.e: For Applicant

CONCLUSION

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

Paul J. Mason Administrative Judge

FOOTNOTES

The first three pages of HE 1 are the amended SOR. The last two pages of the exhibit is the original SOR. (Id.) This contractor conducts business under three names. (Tr. 74-76)

The affidavit is four pages in length. Applicant’s initials appear at the end of each line of the affidavit. On the fourth page above his signature, he acknowledged that he initialed or signed each one of the four pages. He acknowledged the affidavit was true and complete to the best of his knowledge and belief. Applicant’s signature was witnessed by an agent of the Office of Personnel Management (OPM) before she provided her signature. In his answer to the SOR, Applicant indicated he tested negative. The exhibit indicates the test results were not in his personnel record, but the drug screening was completed on January 8, 2007.