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ISCR 11-11902.h1: Guideline E security clearance hearing, denied (2013) · CASE

ISCR Case 11-11902.h1denied

Case headnote

ISCR Case No. 11-11902.h1

deniedApr 1, 2013· Hon. Joan Caton Anthony· hearing

Summary

A 35-year-old engineering technician was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline H (Drug Involvement). The applicant had a history of excessive alcohol use and illegal drug use, specifically cocaine from 2007 to April 2011, and illegal Percocet use from 2009 to May 2011. He was diagnosed as a cocaine and opioid abuser and tested positive for drugs on three urinalysis tests during an alcohol treatment program. Notably, he used amphetamines in June 2011 while participating in this program and used illegal drugs while holding a security clearance.

Further issues arose from the applicant's failure to fully disclose his drug use. He did not list his illegal drug use on his e-QIP and denied using any illegal controlled substances within the last seven years during an interview.

Despite successfully completing an alcohol treatment program and demonstrating abstinence from alcohol, the security clearance was denied. The denial was based on the applicant's illegal drug use occurring while holding a security clearance, his failure to fully disclose this use, and the recent and frequent nature of his drug involvement, which raised doubts about his current reliability and trustworthiness.

Why the applicant was denied

The applicant's illegal drug use, including cocaine and Percocet, occurred while holding a security clearance.
The applicant failed to fully disclose his illegal drug use on his e-QIP and during an interview, raising concerns about his honesty and reliability.
The applicant's drug involvement was recent and frequent, casting doubt on his current reliability and trustworthiness.

Conditions referenced

Disqualifying

AG ¶ 25(a)raisedDrug Abuse
AG ¶ 25(g)raisedIllegal Drug Use After Clearance

Mitigating

AG ¶ 26(d)appliedCompletion of Drug Treatment Program

Key rule quoted

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

Procedural posture

SOR issuedSep 19, 2012
Answer filedOct 15, 2012
Hearing heldFeb 6, 2013
Decision dateApr 1, 2013

Cite for

Denial Based on Recent Illegal Drug Use While Holding a Security Clearance
Failure to Disclose Illegal Drug Use During the Clearance Process
Mitigation of Alcohol-related Concerns Under Guideline G Despite Ongoing Drug Involvement Under Guideline H.

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: 35: “Applicant is 35 years old.”
Held a clearance before: Yes: “He has held a security clearance since 2003 or 2004.”

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 all allegations under Guideline E, Personal Conduct. The applicant failed to disclose his illegal drug use on his e-QIP and during an interview, which the judge determined was deliberate. The applicant's conduct raised significant concerns regarding his reliability and trustworthiness.

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

Standardized Decision Profile

SEAD-4 Guideline G (Alcohol Consumption) · descriptive summary of a decided case

Posture: Decision on RecordDecided: deniedAUD DIAGNOSEDTREATMENT COMPLETED · FAVORABLE

The judge found that the applicant mitigated security concerns under Guideline G, Alcohol Consumption, despite a history of alcohol dependence and related incidents. The applicant completed an alcohol treatment program and has maintained abstinence since May 2011, but the judge ultimately denied the security clearance due to unresolved concerns under other guidelines.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation

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 raised significant security concerns, particularly due to his illegal use of cocaine and Percocet while holding a security clearance. Although some allegations were found in favor of the applicant, the overall findings under Guideline H were against him, leading to a denial of his 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. 11-11902 ) Applicant for Security Clearance )

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

04/01/2013 ______________

STATEMENT OF CASE

______________

ANTHONY, Joan Caton, Administrative Judge:

After a thorough review of the pleadings, exhibits, and testimony, I conclude that Applicant mitigated security concerns under Guideline G, Alcohol Consumption. However, he failed to mitigate security concerns under Guideline H, Drug Involvement, and Guideline E, Personal Conduct. Applicant’s eligibility for a security clearance is denied.

Applicant completed and certified an Electronic Questionnaire for Investigations Processing (e-QIP) on June 23, 2011. On September 19, 2012, the Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline G, Alcohol Consumption; Guideline H, Drug Involvement; and Guideline E, Personal Conduct. DOD acted under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within DOD for SORs issued after September 1, 2006. Applicant provided a notarized answer to the SOR on October 15, 2012. He elected to have a hearing before an administrative judge from the Defense Office of Hearings and Appeals (DOHA). The case was assigned to me on January 11, 2013. I convened a hearing on February 6, 2013, to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. The Government called no witnesses and introduced two exhibits, which were marked Ex. 1 and Ex. 2 and entered in the record without objection. Applicant testified, called no witnesses, and introduced four exhibits, which were identified and marked as Applicant’s Ex. A, Ex. B, Ex. C, and Ex. D and entered in the record without objection. Two of the exhibits offered by Applicant were unsigned letters of character reference. At the conclusion of the hearing, I left the record open until close of business on February 13, 2013, so that Applicant could, if he wished, provide signed copies of those documents. Applicant timely provided signed copies of the documents entered in the record as Ex. B and Ex. C. In addition, he provided one additional letter of character reference, which I marked as Ex. E and entered in the record without objection. DOHA received the hearing transcript (Tr.) on February 12, 2013.

FINDINGS OF FACT

The SOR contains three allegations of disqualifying conduct under Guideline G, Alcohol Consumption (SOR ¶¶ 1.a. through 1.c.), six allegations of disqualifying conduct under Guideline H, Drug Involvement, and three allegations of disqualifying conduct under Guideline E, Personal Conduct (SOR ¶¶ 2.a., 2.b., and 2.c.). In his Answer to the SOR, Applicant corrected the timeline in SOR ¶ 1.a. and admitted the underlying conduct. He also admitted the Guideline G allegations at ¶¶ 1.b. and 1.c. He admitted four allegations under Guideline H (SOR ¶¶ 2.a., 2.b., 2.d., and 2.f.) and denied two (SOR ¶¶ 2.c. and 2.e.) He neither admitted nor denied the Guideline E allegations at ¶ 3.a., which were cross-allegations of the conduct he answered at SOR ¶¶ 1.a. through 1.c. and SOR ¶¶ 2.a. through 2.f. He admitted the allegations at SOR ¶¶ 3.b. and 3.c. Applicant’s admissions are entered as findings of fact. (SOR; Answer to SOR.)

Applicant is 35 years old. He was married for the first time in February 2002. He and his first wife divorced in August 2003. Applicant married again in December 2005, and he and his second wife divorced in August 2007. Applicant and his third wife married in August 2008. Applicant has two stepchildren, aged 16 and 20, in his third marriage. (Ex.1; Tr. 21-22.)

Applicant has a high school education and several college credits. He has been employed as an engineering technician for almost 11 years by his current employer. He has held a security clearance since 2003 or 2004. (Ex. 1; Tr. 23-24.)

Applicant began to consume alcohol when he was a high school student. He denied ¶ 1.a. of the SOR that alleged he consumed alcohol to excess and at times to intoxication since 1991. In his answer to the SOR, he acknowledged excessive alcohol use from 2001 until 2011. He stated at his hearing that he began to consume alcohol in about 1995, when he was involved in binge drinking to intoxication about once a month. (Answer to SOR; Tr. 49-52.)

In 2007, during his second marriage, Applicant used cocaine that was provided by his wife. He used cocaine again about a year later. Applicant’s use of cocaine then accelerated. He began by using the drug once a month, and then used it about once a week with friends until about April 2011. His use continued into his third marriage. Applicant’s cocaine use is alleged at SOR ¶ 2.a. (Tr. 26-31.)

From 2009 until May 2011, Applicant also used the drug Percocet without a prescription. He initially obtained the drug from friends, and, later, he purchased it and used it with his wife. Applicant used the illegal drugs cocaine and Percocet while holding a security clearance. Applicant’s Percocet use is alleged at SOR ¶ 2.b. His use of illegal drugs while holding a security clearance is alleged at SOR ¶ 2.f. (Ex. 1; Tr. 31-35.)

Applicant opined that his alcohol use led to his illegal drug use. In March 2011, Applicant was arrested and charged with 1) driving, attempting to drive a vehicle while under the influence of alcohol and (2) driving, attempting to drive a vehicle while impaired by alcohol. As the result of a plea agreement, the charges were nolle prosequi on the condition that Applicant participate in and complete an alcohol treatment program. In May 2011, Applicant began a 90-day outpatient program at a recognized alcohol treatment center, where he was diagnosed as alcohol dependent and as a cocaine and opioid abuser by a licensed addictions counselor. Applicant completed the treatment program, which consisted of group sessions that met twice a week. At his hearing, Applicant acknowledged that he is an alcoholic. His arrest for driving while under the influence of or while impaired by alcohol is alleged at SOR ¶ 1.b. His diagnosis of alcohol dependence is alleged at SOR ¶ 1.c. His diagnosis of cocaine and opioid abuse is alleged at SOR ¶ 2.d. (Ex. 2; Ex. A; Tr. 34-39.)

During his treatment, Applicant enrolled in a Narcotics Anonymous (NA) 12-step program. He continued to attend NA meetings after his discharge from the treatment program. At his hearing he testified that he continues in aftercare and attends NA meetings one to three times a week. (Ex. A; Tr. 40-41.)

The SOR alleges at ¶ 2.c. that Applicant used amphetamines in June 2011, which was during his participation in the alcohol treatment program. The SOR also alleges at ¶ 2.e. that Applicant tested positive for drugs on three urinalysis tests during his participation in the alcohol treatment program. The allegation recites that Applicant tested positive for opiates in April 2011 and June 2011, and he tested positive for amphetamines in August 2011. Applicant denied both allegations. He acknowledged that he had tested positive for amphetamines during treatment, but he denied using amphetamines at any time. The Government did not present evidence corroborating the SOR allegations at ¶¶ 2.c. and 2.e. Applicant provided a treatment summary from the alcohol treatment program. The prognosis provided by the drug treatment counselor reads as follows: “Prognosis: Good [.] [Applicant] completed the goals of treatment. He was able to achieve and maintain abstinence as evidence in drug and alcohol testing. He is attending 12 step meetings regularly and has a sponsor.” (Answer to SOR; Ex. A; Tr. 42-44.)

Under ¶ 3.a. of the personal conduct guideline, the SOR cross-alleges Applicant’s alcohol-related behavior and drug involvement as alleged under SOR ¶¶ 1 and 2. Applicant did not respond to this allegation, although he answered the SOR alcohol consumption and drug involvement allegations. (Answer to SOR.)

When Applicant completed his e-QIP in June 2011, he was directed to respond to the following question:

Section 23: Illegal Use of Drugs or Drug Activity . . . a. In the last 7 years, have you illegally used any controlled substance, for example, cocaine, crack cocaine, THC (marijuana, hashish, etc.), narcotics (opium, morphine, codeine, heroin, etc.), stimulants (amphetamines, speed, crystal methamphetamine, Ecstasy, ketamine, etc.), depressants (barbiturates, methaqualone, tranquilizers, etc.), hallucinogenics (LSD, PCP, etc.), steroids, inhalants (toluene, amyl nitrate, etc.) or prescription drugs (including painkillers)?

Applicant answered “No” to Section 23a. He failed to list his illegal drug use. The SOR alleges at ¶ 3.b. that Applicant’s failure to list his illegal drug use was deliberate. (SOR.)

In August 2011, Applicant was interviewed by an authorized investigator. During the interview, Applicant denied using any illegal controlled substances within the last seven years. SOR ¶ 3.c. alleges that Applicant deliberately falsified his response to the drug use alleged at SOR ¶¶ 2.a., 2.b., and 2.c. After the interview, Applicant contacted the investigator and asked to speak with him again. He then admitted his illegal drug use to the investigator. (SOR; Answer to SOR; Tr. 44-46.)

At his hearing, Applicant stated that he was not truthful on his e-QIP and in his first interview with the investigator because he was embarrassed and fearful that if his drug use was revealed, he would lose his job. Applicant testified that his wife stopped using illegal drugs when he did. She has not participated in a drug treatment program. Applicant no longer associates with the friends with whom he used alcohol. He stated that he last used alcohol in May 2011, and he has no future intent to use illegal drugs or to consume alcohol. (Answer to SOR; Tr. 46-49.)

Applicant provided four letters of character reference for the record. Two of the letters were from coworkers who had worked with Applicant for several years. These individuals praised Applicant’s work ethic, his positive demeanor, and his willingness to help others. (Ex. B; Ex. C.)

A manager from Applicant’s employing company also provided a letter of character reference. He described Applicant’s progress from an entry-level employee to his current position as an engineering technician. He noted that Applicant was a reliable and valued employee who “has always demonstrated a professional attitude at work.” (Ex. D.)

A coworker who has known Applicant for over four years and who is herself an active member of NA also provided a letter of character reference. She explained that her late husband was Applicant’s NA sponsor. She praised Applicant’s forthrightness in addressing his substance abuse problems. (Ex. E.)

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security, and it has emphasized that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant an applicant’s eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended.

When evaluating an applicant’s suitability for a security clearance, an 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 used 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, the administrative judge applies these guidelines 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 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 G, Alcohol Consumption

Guideline G, Alcohol Consumption, applies in this case to a determination of eligibility for access to classified information. Under Guideline G, “[e]xcessive 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.”

Applicant began to drink alcohol in 1995, when he was a high school student, and he admitted he consumed alcohol to excess and to the point of intoxication from 2001 to 2011.He was arrested and charged with attempting to operate a vehicle while under the influence of alcohol. He has been diagnosed as alcohol dependent.

I have considered all of the Alcohol Consumption Disqualifying Conditions. I conclude that the record evidence in this case raises Guideline G disqualifying conditions at ¶¶ 22(a) and 22(e). AG ¶ 22(a) reads: “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.” AG ¶ 22(e) reads: “evaluation of alcohol abuse or alcohol dependence by a licensed clinical social worker who is a staff member of a recognized alcohol treatment program.”

The Guideline G disqualifying conduct could be mitigated under AG ¶ 23(a) if “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.” The disqualifying conduct could also be mitigated under AG ¶ 23(b) if “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).” If “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,” then AG ¶ 23(c) might apply. Finally, mitigation might be possible under AG ¶ 23 (d) if “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.”

Applicant was arrested and charged with an alcohol violation in 2011. As the result of a plea bargain, he attended a 90-day outpatient alcohol treatment program, where he was diagnosed as alcohol dependent. He completed the program and his counselor assessed his prognosis as “good.” He attends a 12-step aftercare program one to three times a week. He asserts he has not consumed alcohol since May 2011.

Applicant’s alcohol-related conduct is recent, and it occurred after many years of excessive consumption of alcohol. His abstinence is also recent. However, he has addressed his alcohol dependence, and he is to be commended for completing treatment and following aftercare recommendations. While insufficient time has passed for him to conclusively establish a reliable pattern of abstinence, he has done everything he can to date to demonstrate good faith in overcoming his alcohol dependence. I conclude that AG ¶ 23(a) applies in part in mitigation to Applicant’s case.

AG ¶ 23(b) does apply in Applicant’s case. He acknowledges that he is an alcoholic, and he has taken steps to address his diagnosis of alcohol dependence. He has abstained from alcohol for almost two years.

Applicant successfully completed outpatient counseling for his alcohol-related conduct. He has been abstinent and participates in aftercare, in accordance with his treatment recommendations. His counselor concluded that his prognosis is “good.” AG ¶ 23(d) also applies to Applicant’s case.

Guideline H, Drug Involvement

Use of an illegal drug or misuse of a prescription drug can raise questions about an individual’s reliability and trustworthiness 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 ¶ 24(a) defines drugs as “mood and behavior altering substances.” The definition of drugs includes “(1) drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens), and (2) inhalants and other similar substances.” AG ¶ 24(b) defines drug abuse as “the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.”

The Government presented no evidence to establish that Applicant used amphetamines in June 2011 or that he tested positive on three urinalysis tests during his participation in an alcohol treatment program. Applicant denied amphetamine use. His discharge summary from the alcohol treatment program made no mention of positive drug tests and concluded his drug and alcohol tests were evidence of abstinence. I conclude the allegations at SOR ¶¶ 2.cand 2.e. for Applicant.

Through Applicant’s admissions, the record establishes that he used cocaine from 2007 until about April 2011. He used the prescription drug Percocet illegally for two years, from 2009 until May 2011. Applicant used these illegal drugs while holding a security clearance.

Applicant’s drug involvement casts doubt on his reliability, trustworthiness, and good judgment. It also raises security concerns about his ability or willingness to comply with laws, rules, and regulations. I conclude that Applicant’s illegal drug use and his use of cocaine and Percocet after being granted a security clearance raises security concerns under AG ¶¶ 25(a) and 25(g). AG ¶ 25(a) reads: “any drug abuse [as defined at AG ¶ 24(b)].” AG ¶ 25(g) reads: “any illegal drug use after being granted a security clearance.”

Three Guideline H mitigating conditions might apply to the facts of Applicant’s case. If Applicant’s drug use “happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on [his] current reliability, trustworthiness, or good judgment,” then AG ¶ 26(a) might be applicable in mitigation. If Applicant demonstrated an “intent not to abuse any drugs in the future by (1) disassociation from drug-using associates and contacts, (2) changing or avoiding the environment where drugs were used, (3) abstaining from drug use for an appropriate period, or (4) signing a statement of intent with the automatic revocation of his security clearance for any violation,” then AG ¶ 26(b) might be applicable. If Applicant satisfactorily completed “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,” then AG ¶ 26(d) might apply.

Applicant’s was diagnosed as an abuser of cocaine and opioids. His illegal drug use is recent and frequent. By using illegal drugs while holding a security clearance, he exposed himself and the Government to the possibility that classified or otherwise privileged information could be compromised.

Applicant satisfactorily completed a drug and alcohol treatment program. His counselor concluded his prognosis was “good.” He testified he had abstained from drug use for almost two years. He stated that his wife, with whom he used illegal drugs, has stopped using drugs, but has received no drug treatment or counseling. He did not provide a signed statement of his intent not to abuse drugs in the future, with automatic revocation of his security clearance for any violation.

Applicant’s illegal drug use occurred over a period of four years when he was an adult, suggesting a lifestyle choice that went beyond curiosity and experimentation. Moreover, he used illegal drugs with his wife and while holding a security clearance. While he satisfactorily completed drug and alcohol treatment and attended aftercare activities every week, his wife has had no drug counseling or treatment. Insufficient time has elapsed since Applicant stopped using drugs to conclude that his abstinence will be permanent. In these circumstances, it may be difficult for Applicant to avoid drug use in the future. I conclude that while AG ¶ 26(d) applies in mitigation, AG ¶¶ 26(a) and 26(b) do not apply in mitigation to the facts of Applicant’s case.

Guideline E, Personal Conduct

AG ¶ 15 explains why personal conduct is a security concern:

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

Applicant’s personal conduct raises security concerns under AG ¶¶ 16(a), 16(b), and 16(e). AG ¶ 16(a) reads: “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.” AG ¶ 16(b) reads: “deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative.” AG ¶16(e) reads: “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 a person’s personal, professional, or community standing. . . .”

Applicant’s alcohol and drug-related conduct raised serious concerns about his judgment and his vulnerability to exploitation, manipulation, or duress. He admitted deliberately falsifying his answer to Section 23a on the e-QIP he executed on June 23, 2011. He also provided false and misleading information in an interview with an authorized investigator in August 2011 when he failed to disclose his illegal drug use.

Three Guideline E mitigating conditions might apply to the facts of this case. Applicant’s disqualifying personal conduct might be mitigated under AG ¶ 17(a) if “the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted by the facts.” AG ¶ 17(c) might apply if “the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment.” AG ¶ 17(d) might apply if “the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur.”

Applicant’s alcohol and drug treatment and his decision to avoid future alcohol and drug use are positive steps to change the behavior that caused his untrustworthy and unreliable behavior. However, he falsified material facts on his e-QIP and in an interview with an authorized investigator. To his credit, he later sought out the investigator and told him the truth about his illegal drug use.

Applicant stated that he falsified his security clearance application and initially deceived the investigator because he feared he would lose his job if he told the truth about his drug use. However, his deception caused the Government to trust him, which it would not have done if his drug use had been known. Applicant’s deception raises serious concerns about his trustworthiness, reliability, and judgment. While Applicant later provided a truthful statement to the investigator, insufficient time has elapsed to demonstrate that he now is a trustworthy and reliable person whose judgment can be trusted. I conclude that while AG ¶ 17(a) applies in part, AG ¶¶ 17(c) and 17(d) do not apply to the facts of Applicant’s case.

WHOLE PERSON CONCEPT

Under the whole-person concept, an administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of an applicant’s conduct and all relevant 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 in this case. Applicant was awarded a security clearance for the first time in 2003 or 2004. From 2007 until 2011, while holding a clearance, he abused cocaine and Percocet. He also consumed alcohol to excess. Applicant has satisfactorily completed substance abuse treatment, and he continues in aftercare, as directed. His counselor concluded his prognosis was “good.”

Because he feared he would not retain his job if he told the truth, Applicant was not candid about his illegal drug use when he completed his e-QIP in June 2011. He also failed to disclose his drug use when he was initially interviewed by an authorized investigator. Applicant’s lack of candor raises serious security concerns about his reliability, trustworthiness, and judgment. While Applicant demonstrated that he had mitigated security concerns under the alcohol consumption adjudicative guideline, he failed to meet his burden of persuasion in mitigating the Government’s allegations under the drug involvement and personal conduct adjudicative guidelines. Overall, the evidence in this case leaves me with questions and doubts about Applicant’s eligibility and suitability for a security clearance.

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 G: FOR APPLICANT

Subparagraphs 1.a. - 1.c.: For Applicant

Paragraph 2, Guideline H: AGAINST APPLICANT

Subparagraphs 2.a. - 1.b.: Against Applicant

Subparagraph 2.c.: For Applicant

Subparagraph 2.d.: Against Applicant

Subparagraph 2.e.: For Applicant

Subparagraph 2.f.: Against Applicant

Paragraph 3, Guideline E: AGAINST APPLICANT

Subparagraphs 3.a.-3.c.: Against 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.

________________________ Joan Caton Anthony Administrative Judge