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ISCR Case 14-01719.h1 — CASE

ISCR Case 14-01719.h1granted

Case Headnote

ISCR Case No. 14-01719.h1

grantedDec 10, 2015· Hon. Elizabeth M. Matchinski· hearing

Summary

A 29-year-old information assurance manager was granted a security clearance despite concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The Statement of Reasons alleged the applicant used marijuana at least eight times between September 2004 and October 2006, including after receiving a Department of Defense security clearance. Additionally, the applicant was accused of falsifying her October 2006 and June 2008 Electronic Questionnaire for Investigations Processing (e-QIP) forms by failing to disclose her marijuana use within the preceding seven years.

Disqualifying conditions H.1.a, E.2.a, and E.2.b were raised. However, the judge applied mitigating conditions H.2.a and E.2.c. The decision to grant the clearance was based on several factors. The applicant has abstained from illegal drug use since 2006, demonstrating a sustained period of sobriety.

Furthermore, the applicant expressed remorse for her past omissions and took steps to rectify them. Strong endorsements from security professionals, who attested to her reliability and trustworthiness, also supported the favorable outcome.

Why the Applicant Prevailed

The applicant has abstained from illegal drug use since 2006.
The applicant expressed remorse and took steps to rectify her past omissions regarding drug use.
The applicant received strong endorsements from security professionals attesting to her reliability and trustworthiness.

Conditions Referenced

Disqualifying

H.1.araisedDrug Involvement
E.2.araisedFalsification of Security Clearance Application
E.2.braisedFalsification of Security Clearance Application

Mitigating

H.2.aappliedAbstinence From Illegal Drug Use
E.2.cappliedRemorse and Efforts to Rectify

Key Rule Quoted

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

Procedural Posture

SOR issuedSep 17, 2014
Answer filedOct 8, 2014
Hearing heldJul 29, 2015
Decision dateDec 10, 2015

Cite For

Mitigating Factors for Past Drug Use Under Guideline H
Consideration of Remorse and Rectification Efforts Under Guideline E
Importance of Endorsements From Security Professionals in Clearance Decisions

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

Standardized Decision Profile

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

Posture: Decision on RecordDecided: granted

The judge found that the applicant had falsified her security clearance applications by not disclosing her marijuana use. However, the judge determined that the applicant's personal conduct concerns were mitigated by her efforts to rectify the situation and her abstinence from drug use since 2006. Ultimately, the judge ruled in favor of the applicant on the personal conduct allegations under Guideline E.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant allegedly falsified her June 2008 Electronic Questionnaire for Investigations Processing (e-QIP) by not disclosing that she had used marijuana in the last seven years.	For Applicant	Falsification Security FormFOUND DELIBERATE	Other	Admitted	—	(a) prompt, good-faith correction before being confronted	Claimed Acknowledgment and Remorse
2.b	Applicant allegedly falsified her October 2006 Electronic Questionnaire for Investigations Processing (e-QIP) by not disclosing that she had used marijuana in the last seven years.	For Applicant	Falsification Security FormFOUND DELIBERATE	Other	Admitted	—	(a) prompt, good-faith correction before being confronted	Claimed Acknowledgment and Remorse

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: granted

The judge found that the applicant used marijuana approximately eight times while in college, including once after being granted a DOD interim security clearance. The judge ruled in favor of the applicant on both allegations under Guideline H, noting her abstinence from marijuana since 2006 and her intent not to use illegal drugs in the future as mitigating factors.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana at least eight times between September 2004 and October 2006	For Applicant	Marijuana	Occasional	Admitted	(a) any substance misuse	(a) behavior happened long ago / infrequent / unlikely to recur	Documented Abstinence Period Documented
1.b	Applicant used marijuana after she was granted a DOD security clearance	For Applicant	MarijuanaWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse	(a) behavior happened long ago / infrequent / unlikely to recur	Documented Abstinence Period Documented

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. 14-01719 ) Applicant for Security Clearance )

For Government: Stephanie Hess, Esq., Department Counsel For Applicant: Benjamin Flam, Esq.

12/10/2015 ______________

STATEMENT OF CASE

______________

MATCHINSKI, Elizabeth M., Administrative Judge:

Applicant used marijuana approximately eight times while in college, including once after she was granted a Department of Defense (DOD) interim security clearance as a student intern. She deliberately did not disclose her marijuana use on her October 2006 security clearance application. She exercised poor judgment by certifying a June 2008 application for a clearance upgrade without reviewing the form for accuracy. The drug involvement concerns are mitigated because of her abstinence from marijuana since 2006 and her intent not to use any illegal drug in the future. The personal conduct concerns are mitigated by her efforts at rectification with remorse. Clearance is granted.

Statement of the Case

On September 17, 2014, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing the security concerns under Guideline H, Drug Involvement, and Guideline E, Personal Conduct, and explaining why it was unable to find it clearly consistent with the national interest to grant or continue her security clearance eligibility. The DOD CAF took the action 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 the DOD on September 1, 2006.

Applicant answered the SOR allegations on October 8, 2014, and she requested a hearing before an administrative judge from the Defense Office of Hearings and Appeals (DOHA). On June 8, 2015, the case was assigned to me to conduct a hearing to determine whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. On June 29, 2015, I scheduled the hearing for July 29, 2015.

At the hearing, three Government exhibits (GEs 1-3) and four Applicant exhibits (AEs A-D) were admitted into evidence without objection. Department Counsel’s letter forwarding discovery to Applicant’s counsel was marked as a hearing exhibit (HE 1) for the record, but was not admitted as an evidentiary exhibit. Applicant and three witnesses testified, as reflected in a transcript (Tr.) received on August 6, 2015.

FINDINGS OF FACT

The SOR alleges under Guideline H that Applicant used marijuana at least eight times between September 2004 and October 2006 (SOR ¶ 1.a) and that she used marijuana after she was granted a DOD security clearance (SOR ¶ 1.b). Under Guideline E, Applicant allegedly falsified her June 2008 (SOR ¶ 2.a) and October 2006 (SOR ¶ 2.b) Electronic Questionnaires for Investigations Processing (e-QIPs) by not disclosing that she had used marijuana in the last seven years.

In her Answer to the SOR allegations, Applicant admitted that she used marijuana while in college fewer than ten times, including one time after she was granted an interim secret clearance. She denied any illegal drug use in the past eight years, and any intent to use an illegal drug in the future. She consented to automatic revocation of her security clearance eligibility for any future illegal drug involvement. Applicant admitted that she did not initially report her marijuana use on her October 2006 e-QIP, but she thereafter self- reported her drug use to her then employer’s facility security officer (FSO). About the omission of her marijuana use from her June 2008 e-QIP, Applicant asserted that she acted on the belief that her self-report of marijuana use had been submitted to the DOD.

Applicant’s admissions to using marijuana in college fewer than ten times and to deliberately failing to disclose that marijuana use on her October 2006 e-QIP are accepted and incorporated as findings of fact. After considering the pleadings, exhibits, and transcript, I make the following additional findings of fact:

Applicant is a 29-year-old information assurance manager (IAM) with a top secret clearance and special access eligibility. She has a master’s degree in criminal justice awarded in December 2012 and has worked for her current employer since June 2011. Applicant and her spouse married in August 2013, and as of late July 2015, they were expecting their first child. (GE 1; AE C; Tr. 22-23, 57.) Applicant pursued her undergraduate degree from September 2004 to May 2008. While in college, she used marijuana on approximately eight occasions at parties with her roommates. Her last use of marijuana occurred while she held a DOD interim secret clearance for her duties with a defense contractor (company X). (GE 1; AE C; Tr. 25.)

In June 2006, Applicant started working for company X as an intern in its security office. She was responsible for office tasks, including processing badges and providing security clearance paperwork to employees. (GEs 1-3; Tr. 21-22.) Applicant passed a drug screen for her internship with the defense contractor. (Tr. 25-26.)

On October 4, 2006, Applicant completed and certified to the accuracy of an e-QIP for a DOD secret clearance. Applicant responded negatively to inquiries concerning any illegal drug activity, including whether she had illegally used any controlled substance such as marijuana since age 16 or within the last seven years. (GE 3.) Applicant’s explanation for not disclosing her marijuana use is that she was “embarrassed and ashamed that [she] wasn’t going to get the job at [company X]” and scared that she would be precluded from pursuing a career in criminal justice or public service. (Tr. 24-25.)

Applicant felt guilty about concealing her marijuana use from her security clearance paperwork. (Tr. 23.) Sometime during her winter break in December 2006 or January 2007, she informed her FSO about her marijuana use, initially verbally and then in writing through an addendum that she understood would be submitted to the DOD. (Tr. 27-29, 59.) Applicant prepared the addendum on her work computer at company X and did not retain a hard copy. (Tr. 29, 54.) Applicant was granted a secret clearance around March 2007. (GE 1; Tr. 23.)

Applicant continued to intern with company X after college. By June 2008, her responsibilities in the security department had increased to require an upgrade of her security clearance to top secret. (Tr. 31.) On June 9, 2008, she certified to the accuracy of an e-QIP, which was largely consistent with her October 2006 e-QIP, excepting a change of current address for Applicant and for her college roommate;1 a change from her mother to her neighbor as able to verify her address in the summer of 2006; and disclosure that she had been granted a DOD secret clearance around June 2006 [sic]. Her June 2008 e- QIP contains a negative response to the drug inquiries concerning whether she had illegally used any controlled substance since age 16 or in the last seven years, and whether she had ever illegally used a controlled substance while possessing a security clearance. (GE 2; Tr. 31-32.) Applicant explained that she was asked by her FSO if anything had changed from her previous application. She responded “No” and was given the signature pages of the e-QIP, which she signed without reviewing a hard copy of the form. (Tr. 60.) Applicant testified that it did not occur to her at the time to review the e-QIP “because nothing had changed.” (Tr. 60.) She believed that her addendum to her October 2006 e-QIP had been provided to the DOD by her then FSO. (Tr. 32-34, 59.)

Applicant was interviewed by an authorized investigator for her top secret clearance. She did not volunteer any information about her drug use. Applicant’s unrebutted testimony is that she was not asked about any drug use or asked if there was any information she wanted to offer. She had always been told to answer the questions asked and assumed her disclosure of marijuana use in college had been provided to the government.2 (Tr. 61- 62.) Applicant’s security clearance was upgraded to top secret in September 2008. (GE 1; AE B; Tr. 23, 34, 44.) Around that time, Applicant accepted a full-time position with company X in document control, where she transmitted and received classified documents on various programs. (Tr. 22.)

The security office had a negative reputation within the company for its security posture. In April 2009, a new FSO was transferred from another facility to correct deficiencies in security at Applicant’s workplace. The facility had a large volume of classified activity, and some security procedures were not in compliance with the National Industrial Security Program Operating Manual (NISPOM). Two employees temporarily lost classified access eligibility for failure of the security office to submit security paperwork to the DOD. The new FSO found the paperwork in security files, but it took weeks for the employees to regain access. (Tr. 68-72.) In June 2009, Applicant was promoted to the position of industrial security specialist I, where she was essentially an information systems security manager (ISSM) in training. (AE C; Tr. 23.) The new FSO found her to be an excellent employee with no honesty or integrity issues. (Tr. 68-71.)

While certifying several computers on a classified information system in September 2010, Applicant and two other company X ISSMs accessed system administrator privileged accounts without the systems administrator present. The system administrator logged onto a workstation and then allowed the ISSM unsupervised access to certify the system. The ISSMs used the accounts to efficiently complete the certification process and did not believe they were violating the NISPOM because they had the requisite security clearance and need-to-know. Once they realized that their access was improper, they self-reported their violation. Corrective action was delayed due to a change in supervisory personnel and organizational changes. (AE B; Tr. 41.)

At the end of a workday in early December 2010, Applicant secured the primary locking device on main door to the document control facility and ensured that the room’s motion sensor alarm was properly engaged. Earlier that day, a document control specialist had disengaged a slide bolt on double doors in document control and then failed to re- engage the bolt. Applicant was not aware that she had to check the slide bolt in her end-of- day checks and did not realize that the double doors were improperly secured by only a knob lock. Applicant became aware of the violation the next day, and she self-reported her inadvertent failure to engage the slide bolt while closing the area the previous evening. Company X determined that there had been no loss or compromise of classified information, but Applicant was given a written warning for a first violation within 12 months. (AE A.) In January 2011, the company completed its inquiry into the September 2010 violation involving the computer certification process. Applicant was issued a written reprimand in lieu of the five-day suspension that could have been imposed for a second non-deliberate security breach in 12 months because she was the most junior ISSM and unaware that the process was not acceptable. (AE B.)

In June 2011, Applicant left company X and began working for her current employer as an information assurance officer. Her top secret clearance was transferred to her new employer. (GE 1; Tr. 23, 44.) Over the next three years, Applicant was cleared for multiple special access programs, and she received several performance awards from her employer. (AE C; Tr. 47, 93.)

On August 28, 2013, Applicant completed and certified to an e-QIP to renew her top secret clearance eligibility. She responded “Yes” to whether she had illegally used any drug or controlled substance in the last seven years, and to whether she had used any illegal drug while possessing a security clearance. Applicant disclosed that she used marijuana between approximately September 2004 and October 2006. As for the frequency of her use, Applicant stated:

I am not sure of the exact dates of use. Once in a while my college roommates and I would smoke marijuana. This was approximately 8 times over the 2 year period only during the school year. I was in possession of it, but never manufactured or sold it. I used it once after I received my Security Clearance in October and that was the last time that I had used it.

Applicant responded “No” to an e-QIP inquiry concerning any intent to use the drug in the future, explaining as follows:

I have not used marijuana since October of 2006 and will not ever again. I stopped using marijuana because I hated the feeling and the smell. I also decided that I wanted to major in criminal justice in October 2006 and decided I wanted a career in criminal justice.

Applicant denied any purchase of marijuana, but admitted that she had handled marijuana passed to her by one of her roommates. (GE 1.)

Applicant has abstained from any involvement with illegal drugs since 2006. On October 8, 2014, she executed a statement of intent to refrain from any illegal drug use in the future with automatic revocation of her security clearance eligibility for any violation. (AE C; Tr. 53-54.) She continues to associate with one of her college roommates involved in her marijuana use. However, this friend no longer uses marijuana. (Tr. 25.) In July 2014, Applicant was promoted to her current position of information assurance manager. She is responsible for the overall information technology security posture for multiple special access programs, including wide area networks, local area networks, and multi-user stand-alone information technology systems. (AE C.)

Applicant’s continued security clearance eligibility is endorsed without any reservations by her former security manager at company X (AE D) and by security professionals at her current employment. (AE C.) Her security manager at company X from April 2009 to June 2011 would rehire her if given the opportunity. (AE D; Tr. 74.) Applicant was hard working and professional in fulfilling her duties. (Tr. 69.)

Concerning security professionals at Applicant’s current workplace, the director of security for two large business areas oversees more than 50 security professionals. He attests to Applicant being one of his strongest employees in a complex and dynamic information technology environment. She has always demonstrated reliability and trustworthiness when dealing with extremely sensitive information. (AE C.) Likewise, an information technology security manager, who has spent most of his career in security for special access programs, worked closely with Applicant from June 2011 until her promotion in August 2014. Applicant was one of two information assurance officers who supported his programs, and she was instrumental in establishing new policies that strengthened their security posture. Applicant informed him that she had smoked marijuana in college, including once while holding an interim security clearance. (AE C; Tr. 82-83.) She expressed regret about her use of marijuana. (AE C.) She also told him about the addendum to correct the record well before it became an issue for the DOD. (Tr. 85.) He believes Applicant did not knowingly withhold information while completing the paperwork to renew her clearance. (AE C.)

Another security manager, who has a background in criminal investigations and military counterintelligence, has known about Applicant’s marijuana use in college since October 2013, if not before then. He reviewed her file, including her latest e-QIP, and interviewed her to determine whether to submit a “personal access request” for special access eligibility at that time. (Tr. 92-96.) Applicant disclosed to him that she used marijuana in college and did not disclose the drug use on her initial e-QIP.3 (AE C; Tr. 92- 93.) He believes that Applicant’s denial of drug use on her initial paperwork was influenced by fear of not getting a job, rather than an attempt to deceive the government. As for her efforts to correct the misrepresentation, Applicant told him that she spoke to her then FSO around January 2007, who instructed her to draft a statement as an addendum to her e- QIP. He is of the opinion that Applicant did not know until recently that her addendum had not been submitted to the DOD. (AE C.) He recommends Applicant for continued security clearance eligibility “absolutely without reservation.” (Tr. 95.)

POLICIES

The U.S. Supreme Court has recognized the substantial discretion the Executive Branch has in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are required to be considered 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 overall 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 to obtain 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 that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about 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 for drug involvement is articulated in AG ¶ 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.

Under AG ¶ 24(a), drugs are defined as “mood and behavior altering substances,” and include:

(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.

Under AG ¶ 24(b), drug abuse is defined as “the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.” Disqualifying condition AG ¶ 25(a), “any drug abuse,” applies because of Applicant’s use of marijuana when she was in college between approximately September 2004 and October 2006. AG ¶ 25(c), “illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia,” is implicated only in that Applicant had physical possession of marijuana passed to her by a roommate when she used it. There is no evidence that she purchased marijuana herself or that she kept a supply of the drug on hand. However, security concerns are raised by AG ¶ 25(g), “any illegal drug use after being granted a security clearance.” Applicant used marijuana on one occasion after she had been granted an interim secret clearance for her duties in security as an intern with company X.

Mitigating condition 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,” is established. There is no evidence that Appellant has used marijuana since 2006. It happened sufficiently long ago to enable an affirmative finding that it is not likely to reoccur, particularly where her use was limited to the college environment. The circumstances of her drug use are not likely to reoccur. Applicant is married and has a stable career path.

Applicant has also demonstrated her intent not to abuse any illegal drug in the future by satisfying all four components of AG ¶ 26(b):

(1) disassociation from drug-using associates and contacts;

(2) changing or avoiding the environment where drugs were used;

(3) an appropriate period of abstinence; and

(4) a signed statement of intent with automatic revocation of clearance for any violation.

Although Applicant still associates with a college roommate with whom she smoked marijuana in the past, she testified credibly that this friend no longer uses marijuana. Applicant is no longer in the college environment that was conducive to her illegal drug use. Her almost nine years of abstinence as of her security clearance hearing is sufficient to guarantee against relapse considering that she used marijuana fewer than 10 times and only in social settings when the drug was passed to her. Applicant also executed a statement of intent to refrain from any future drug involvement, fully aware and consenting to automatic revocation of her security clearance for any violation. Unquestionably, Applicant exercised poor judgment by using marijuana after she had been granted an interim secret clearance, but that marijuana use is reasonably attributed to youthful indiscretion and is not likely to be repeated. The drug involvement concerns are mitigated.

Guideline E, Personal Conduct

The security concerns about personal conduct are articulated in AG ¶ 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. 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.

The undisputed evidence is that Applicant falsely certified to the accuracy of her October 2006 when she responded negatively to whether she had used any illegal drug since the age of 16 or in the last seven years. AG ¶ 16(a) is established by her knowing falsification of her initial security clearance application. That disqualifying condition provides:

(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.

The SOR also alleges that Applicant falsified her June 2008 e-QIP, which was submitted to upgrade her security clearance eligibility. Applicant has consistently denied that she deliberately falsified that e-QIP because she had informed her FSO about her marijuana use verbally and then by written addendum in late December 2006 or early January 2007. She had been led to believe by her then FSO that her self-report of marijuana use would be provided to the DOD. When it came time to submit her June 2008 e-QIP, she was asked by the FSO whether anything had changed. She acted on the belief that her addendum had been submitted to the DOD and so answered negatively. Applicant further testified that the FSO provided her only the signature pages for the June 2008 e- QIP, which she signed without giving any thought to reviewing the form.

The DOHA Appeal Board has explained the process for analyzing falsification cases, stating:

(a) when a falsification allegation is controverted, Department Counsel has the burden of proving falsification; (b) proof of an omission, standing alone, does not establish or prove an applicant’s intent or state of mind when the omission occurred; and (c) a Judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning the applicant’s intent or state of mind at the time the omission occurred. [Moreover], it was legally permissible for the Judge to conclude Department Counsel had established a prima facie case under Guideline E and the burden of persuasion had shifted to the applicant to present evidence to explain the omission.

The negative response to the drug inquiries on Applicant’s June 2008 e-QIP could support a finding of deliberate falsification, especially in the absence of any proof of the claimed addendum. Evidence of some updates to address information suggests that she either filled out the June 2008 e-QIP herself in the computer, or she provided the address information at some point to her employer. An address change for Applicant would likely have been on record with her employer. However, Applicant’s June 2008 e-QIP also contained updated address information for her college roommate, which would likely not have been known without input from Applicant. Applicant was not asked how the address information came to be updated if she only signed the signature pages. Furthermore, Applicant testified that she told the FSO about her drug use before she executed the addendum on the FSO’s advice. The negative response to the drug use question on Applicant’s June 2008 e-QIP is not easily explained unless the FSO had misplaced the addendum and forgotten about Applicant’s oral self-report. A security manager at company X testified that there were some problems in the security office, including that some documents involving other employees had not been submitted to the DOD. However, the evidence also shows that Applicant did not volunteer information about her illegal drug use to the investigator who interviewed her for her clearance upgrade. Her testimony is that she was not asked about any drug involvement; she had been told to respond only to inquiries; and believing that her addendum had been provided to the DOD, she “didn’t at that point think that they thought it was a big deal.” (Tr. 61-62.) Given the negative responses to the drug inquiries on Applicant’s October 2006 and June 2008 e-QIPs, the investigator may not have asked Applicant about any drug use. Even so, Applicant would have gone a long way toward demonstrating her good-faith had she disclosed to the investigator that she had used marijuana in college.

Other evidence tends to bolster her credibility, however. Current co-workers testified that Applicant has been forthright with them about her marijuana use in college, her failure to report her drug use on her initial e-QIP, and her submission of an addendum to company X’s FSO to correct the record. Presumably, the security manager who has vetted her during the personal access request process could have verified her claim of the addendum by contacting company X’s FSO. Applicant had no reason to know that company X had purged its records on former employees in 2012. She stood to risk her standing with her current employer and perhaps her continued employment had she fabricated about her efforts to rectify the record through verbal report and then an addendum. Applicant self-reported her security violations when she was an ISSM at company X. While this does not preclude her from having falsified her June 2008 e-QIP, it is evidence of honesty that must be considered in assessing whether to find credible her denial of any intent to falsify her June 2008 e-QIP. Then too, she reported her marijuana involvement on her August 2013 e-QIP to renew her security clearance eligibility. Given company X’s security manager’s testimony about the facility’s poor security posture before April 2009, evidenced in part by the temporary loss of security clearance eligibility for two employees because company X’s security officials failed to submit their paperwork, it is certainly conceivable that Applicant’s former FSO did not submit the addendum. After considering all the circumstances, I conclude that Applicant did not knowingly falsify her June 2008 e-QIP. At the same time, fear of not being able to work as an intern in security for company X or being denied the opportunity to continue in her chosen field does not justify her initial falsification of her October 2006 e-QIP.

AG ¶ 17 (a), “the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts,” applies in mitigation of the October 2006 e-QIP falsification because of Applicant’s self-report to the FSO in late 2006 or early 2007. Yet, the ameliorative impact of that self-report is undermined somewhat by the poor judgment she exhibited in June 2008 when she signed her e-QIP without taking any steps to ensure the accuracy of the information reported.

AG ¶ 17(c) applies because of the passage of time since the falsification, although her deliberate misrepresentation about then recent, if not current, marijuana use is considered serious and has negative implications for her security eligibility. AG ¶ 17(c) provides:

(c) 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. Applicant’s disclosures of her past marijuana use when she completed her August 2013 e-QIP and during vetting by her employer to sponsor her for special access programs implicate two other mitigating conditions under AG ¶ 17:

(d) 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; and

(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.

There is no evidence that Applicant has been other than forthright about her marijuana use with her current employer.

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 her conduct and all relevant circumstances in light of the nine adjudicative process factors listed at AG ¶ 2(a).4 Applicant’s marijuana use during college, including her use on one occasion while possessing an interim security clearance, is attributed to youthful indiscretion. Of primary concern in this case is Applicant’s concealment of her drug use when she applied for security clearance eligibility for her job as an intern with company X in its security department. She acted in self-interest out of concern that she would be denied the job. Applicant was only 20 years old at the time, but the government must be assured that persons with security clearance eligibility can be counted on to act in the interests of the United States at all times.

On graduating from college, Applicant accepted a full-time position in document control. Certainly by then, she should have recognized the importance of ensuring the accuracy of any document that she certified by her signature. Even if she did not deliberately conceal her drug use when she applied to renew her security clearance in 2008, she raised considerable doubts about her judgment by attesting to the accuracy of an e-QIP that contained negative responses to whether she had used any illegal drug in the last seven years and whether she had ever used an illegal drug while possessing a security clearance. Applicant is credited with disclosing her marijuana use when she completed her August 2013 e-QIP and by informing her current employer during personal access request interviews.

Additionally, in the last seven years, Applicant has demonstrated that she can be counted on to handle classified information appropriately. Security infractions committed by her at company X were inadvertent, have not been repeated in her current employment, and were self-reported in a timely manner. Several security professionals familiar with Applicant’s work in the information technology security environment, including a security manager at company X, have no concerns about Applicant’s continued security clearance eligibility. Applicant has persuaded me that she understands the importance of complying with security requirements. After considering all the facts and circumstances, I conclude that it is clearly consistent with the national interest to continue her security clearance eligibility.

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: FOR APPLICANT

Subparagraph 1.a: For Applicant Subparagraph 1.b: For Applicant

Paragraph 2, Guideline E: FOR APPLICANT

Subparagraph 2.a: For Applicant Subparagraph 2.b: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is granted.

________________________ Elizabeth M. Matchinski Administrative Judge

FOOTNOTES

1 On her October 2006 e-QIP, Applicant provided her college address as her current address, which could be verified by her then roommate. (GE 3.) Applicant listed a neighbor as the person who could verify her current address on her June 2008 e-QIP. Her college roommate is listed as the person who could verify Applicant’s address in college. About the roommate’s address, Applicant commented for the period September 2007 to May 2008: “She lived with me while we were attending college, but she now resides at [address information omitted].” (GE 2.) 2 A security manager at company X testified that records were purged of former employees in 2012. (Tr. 76.) If the addendum had been retained in company X’s files, it is no longer available. Applicant testified that when she resigned from company X, she had to return her work computer on which she had prepared the addendum. (Tr. 29.) 3 In a character reference letter submitted on Applicant’s behalf (AE C), the senior security manager indicated that he has known Applicant since June 2011 and first became aware of Applicant’s “youthful discretion with marijuana during her college days” when he reviewed her SF 86 and then interviewed Applicant. The manager testified at Applicant’s hearing that the company is authorized to review only the most current e-QIP. (Tr. 96.) He added that he was adjudicating personal access requests for the company in 2012, 2013, and 2014. (Tr. 96.) On redirect examination, the senior manager responded affirmatively when asked whether the e-QIP form he reviewed contained full disclosure of her marijuana use:

She told me about the original one as part of my original interview with her. I knew about the incorrect first time she filled out the 86 and the advice she got at [company X]. She gave me all of that as—and told me that the one I was looking at was the most current and correct one and that it was fully truthful at that point. (Tr. 97-98.)

Given that Applicant’s drug use was not reported on either the October 2006 or June 2008 e-QIPs, and the security manager indicated he was processing personal access requests from 2012 through 2014, it could be inferred that he learned about Applicant’s marijuana use in college from reviewing her October 2013 e-QIP. Yet, he also testified that Applicant brought to his attention the discrepancy on her initial e-QIP within a month or so of their professional relationship. (Tr. 92.) He indicated in his character reference letter that he has worked with Applicant on a daily basis for the past four years. (AE C.) 4The factors under AG ¶ 2(a) are as follows:

(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.