CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 14-00379.h1 — CASE

ISCR Case 14-00379.h1denied

Case Headnote

ISCR Case No. 14-00379.h1

deniedOct 16, 2014· Hon. Richard A. Cefola· hearing

Summary

A 59-year-old former Navy service member was denied a security clearance under Guideline H (Drug Involvement) and Guideline E (Personal Conduct). The denial stemmed from his admitted history of marijuana use and the falsification of his security questionnaire.

The applicant acknowledged periodic marijuana use since high school, continuing through his Navy service and up until June 2012, when he also purchased the drug. Despite stating he would not use marijuana in the future, he could not definitively rule out the possibility.

A key factor in the denial was the applicant's willful falsification of his August 23, 2013, e-QIP. He answered "No" to questions regarding illegal drug use within the last seven years, thereby denying his 2012 marijuana use and purchase. The judge concluded that the applicant's long-term drug use and lack of candor regarding his drug history presented significant security concerns, leading to the denial of his clearance.

Why the Applicant Was Denied

Applicant admitted to using marijuana periodically for about 40 years, with his last use in June 2012.
Applicant falsified his e-QIP by denying recent drug use, which constituted willful falsification.

Conditions Referenced

Disqualifying

H.25.araisedAny Drug Abuse
H.25.craisedIllegal Purchase of Drugs
E.16.araisedDeliberate Omission or Falsification

Key Rule Quoted

“Any doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.”

Procedural Posture

SOR issuedMay 5, 2014Amended on June 25, 2014
Answer filedMay 22, 2014Amended on July 1, 2014
Hearing heldAug 15, 2014
Decision dateOct 16, 2014

Cite For

Denial Based on Long-term Drug Use Under Guideline H
Falsification of Security Questionnaire Under Guideline E
Importance of Candor 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.

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on the personal conduct allegation under Guideline E, specifically regarding the falsification of information on his e-QIP. The applicant answered 'No' to a question about illegal drug use, despite having used marijuana within the relevant timeframe. This was deemed a willful falsification, leading to a denial of security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant answered “No,” to “Section 23 - Illegal Use of Drugs or Drug Activity . . . In the last seven (7) years,” on his August 23, 2013, e-QIP, thereby denying his 2012 usage and purchase of marihuana. This was a wilful falsification.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	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, including usage while in the Navy, and admitted to purchasing marijuana as recently as June 2012. The applicant's last use was two years prior to the hearing, and he expressed uncertainty about future use. The judge ruled against the applicant on all allegations under Guideline H, concluding that the applicant did not mitigate the security concerns related to his drug involvement.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant smoked marijuana periodically while in high school, and continued his usage while in the Navy.	Against Applicant	Marijuana	Frequent	Admitted	—	—	—
1.b	He used marijuana periodically, with 'numerous breaks over the years,' until his last usage in June of 2012, when he also purchased the drug.	Against Applicant	Marijuana	Frequent	Admitted	—	—	—
1.c	Although he avers no future use of marijuana, he can not 100% rule it out.	Against Applicant	Stated Intent to Use Again	Not Applicable	Admitted	—	—	—

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. 14-00379 ) ) Applicant for Security Clearance )

For Government: Jeff Nagel, Esquire, Department Counsel For Applicant: Pro se

October 16, 2014

______________

STATEMENT OF CASE

______________

CEFOLA, Richard A., Administrative Judge:

Applicant submitted his Electronic Questionnaires for Investigations Processing (e-QIP) on August 23, 2013. On May 5, 2014, as further amended on June 25, 2014, the Department of Defense (DOD) issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines H and E 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), effective within the Department of Defense after September 1, 2006.

Applicant answered the SOR, and its amendment, in writing on May 22, 2014, and on July 1, 2014, respectively, and requested a hearing before an Administrative Judge. The Defense Office of Hearings and Appeals (DOHA) received the request on June 27, 2014, and I received the case assignment that same date. DOHA issued a notice of hearing on July 18, 2014, and I convened the hearing as scheduled on August 15, 2014. The Government offered Exhibits (GXs) 1 and 2, which were received without objection. Applicant testified on his own behalf, as did his wife. DOHA received the transcript of the hearing (TR) on August 25, 2014. I granted Applicant’s request to keep the record open until September 15, 2014, to submit additional matters. On August 29, 2014, he submitted Exhibit (AppX) A, which was received without objection. The record closed on September 15, 2014. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is denied.

FINDINGS OF FACT

In his Answers to the SOR, Applicant admitted the factual allegations in all of the Subparagraphs of the SOR, with explanations. He also provided additional information to support his request for eligibility for a security clearance.

Applicant is 59 years of age, and served in the United States Navy for six years from 1973–1979. (TR at page 27 line 10 to page 30 line 7, and AppX A at pages 1–5.)

Guideline H - Drug Involvement

1.a.~1.c. Applicant smoked marijuana periodically while in high school, and continued his usage while in the Navy. (TR at page 27 line 10 to page 28 line 11.) He used marijuana periodically, with “numerous breaks over the years,” until his last usage in June of 2012, when he also purchased the drug. (TR at page 28 line 12 to page 29 line 15.) Applicant estimated he smoked marijuana “a lot.” (TR at 29 lines 12–15.) Previously, in June of 1993, he was also arrested for and found guilty of Possession of Marijuana. (TR at page 29 line 16 to page 30 line 11, and GX 2 at page 3.) Although he avers no future use of marijuana, he can not 100% rule it out. (TR at page 34 lines 20–25.)

Guideline E - Personal Conduct

2.a. Applicant answered “No,” to “Section 23 - Illegal Use of Drugs or Drug Activity . . . In the last seven (7) years,” on his August 23, 2013, e-QIP, thereby denying his 2012 usage and purchase of marihuana. (TR at page 36 line 9 to page 40 line 24, and GX 1 at page 40.) This was a wilful falsification.

POLICIES

When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the 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. 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 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 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, “illegal . . . purchase” under Subparagraph 25(c) may be disqualifying. Here, Applicant used marijuana, periodically, for a period of about 40 years. His last usage and purchase of the illegal substance was in 2012.

I can find no countervailing mitigating condition that is applicable here. Subparagraphs 26(a) and 26(b)(4) require that Applicant’s “behavior happened so long ago, was so infrequent . . . that it is unlikely to recur . . . ,” and that he has shown “a demonstrated intent not to abuse any drugs in the future . . . .” The Applicant’s 40 years of periodic usage ended only two years ago, and he testified that he was not 100% sure he would not use marijuana in the future.

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 . . . .” Here, Applicant falsified his answer to Sections 23 on his August 2013 e-QIP. He used and purchased marijuana the year prior to executing this document. I can find no countervailing Mitigating Condition that is applicable here.

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 the unqualified support of his spouse who abhors the use of illegal drugs (TR at page 45 line 18 to page 49 line 9), and has done well in his current employment. (AppX A.) However, 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 past drug abuse. For this reason, I conclude Applicant has not mitigated the security concerns arising from his Drug Involvement and Personal Conduct.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline H: Against APPLICANT

Subparagraph 1.a: Against Applicant

Subparagraph 1.b: Against Applicant

Subparagraph 1.c: Against Applicant

Paragraph 2, Guideline E: AGAINST APPLICANT

Subparagraph 2.a: 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.

Richard A. Cefola Administrative Judge