CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 15-01840.h1 — CASE

ISCR Case 15-01840.h1denied

Case Headnote

ISCR Case No. 15-01840.h1

deniedJul 1, 2015· Hon. Roger C. Wesley· hearing

Summary

A 52-year-old defense contractor technician was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The applicant's history included purchasing and using cocaine with varying frequency between 1984 and 2012, with some of this use occurring while holding a security clearance from 2002 to 2012. Additionally, the applicant used various prescription drugs without prescriptions between 2006 and 2012, also while holding a security clearance.

Further concerns included a felony conviction for entering an automobile in June 1982 and three alcohol-related arrests between 1984 and 1997. The applicant admitted to all allegations without providing mitigating explanations or evidence of rehabilitation.

The judge determined that the applicant's lengthy history of illegal and non-prescribed drug use, particularly while holding a security clearance, was a significant concern. Insufficient time had elapsed to confidently predict that the applicant would not return to illegal drug use in the future, leading to the denial of the security clearance.

Why the Applicant Was Denied

The applicant had a lengthy history of illegal drug use and non-prescribed drug use while holding a security clearance.
The applicant admitted to all allegations without providing mitigating explanations or evidence of rehabilitation.
The judge determined that not enough time had elapsed to predict that the applicant would not return to illegal drug use in the future.

Conditions Referenced

Disqualifying

DC ¶ 25(a)raisedAny Drug Abuse
DC ¶ 25(c)raisedIllegal Possession, Including Cultivation, Processing, Manufacture, Purchase, Sale, or Distribution; or Possession of Drug Paraphernalia
DC ¶ 16(c)raisedCredible Adverse Information in Several Adjudicative Areas

Key Rule Quoted

“A decision to grant or continue an applicant's security clearance may be made only upon a threshold finding that to do so is clearly consistent with the national interest.”
— Exec. Or. 10865

Procedural Posture

SOR issuedAug 26, 2015
Answer filedSep 15, 2015Applicant elected to have the case decided on the written record.
Hearing held—
Decision dateMar 10, 2016

Cite For

Denial of Security Clearance Due to Extensive Drug Use History
Failure to Provide Mitigating Evidence for Drug Involvement
Impact of Personal Conduct on Security Clearance Eligibility

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 all allegations under Guideline E, indicating concerns regarding personal conduct. The applicant's history of drug use and criminal behavior contributed to the decision to deny the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant purchased and used cocaine with varying frequency while holding a security clearance between 2002 and 2012.	Against Applicant	Pattern of Dishonesty or Rule Violations	—	Admitted	—	—	—
2.b	Applicant purchased and used cocaine with varying frequency between 1984 and 2012.	Against Applicant	Pattern of Dishonesty or Rule Violations	—	Admitted	—	—	—
2.c	Applicant used various prescription drugs without prescriptions, while holding a security clearance, between 2006 and 2012.	Against Applicant	Pattern of Dishonesty or Rule Violations	—	Admitted	—	—	—
2.d	Applicant has a criminal history that includes a felony conviction for entering an automobile in June 1982.	Against Applicant	Pattern of Dishonesty or Rule Violations	Criminal Conduct	Admitted	—	—	—
2.e	Applicant has three alcohol-related arrests between 1984 and 1997.	Against Applicant	Pattern of Dishonesty or Rule Violations	Alcohol	Admitted	—	—	—
2.f	specific text not stated in this decision	Against Applicant	Unspecified Personal Conduct	—	Unknown	—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant's drug involvement raised significant security concerns, particularly due to his history of cocaine use and misuse of prescription drugs while holding a security clearance. The applicant admitted to the allegations but failed to provide sufficient evidence of rehabilitation or mitigation, leading to a denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	purchased and used cocaine with varying frequency while holding a security clearance between 2002 and 2012	Against Applicant	CocaineWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	purchased and used cocaine with varying frequency between 1984 and 2012	Against Applicant	Cocaine	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.c	used various prescription drugs without prescriptions, while holding a security clearance, between 2006 and 2012	Against Applicant	Prescription Other MisuseWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.d–1.f	3 sub-charges — specific text not stated in this decision (against the applicant). (low confidence)	Against Applicant	Unspecified Drug Involvement	Unspecified		—	—	—

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. 15-01840 ) ) Applicant for Security Clearance )

For Government: Tara R. Karoian, Esq., Department Counsel For Applicant: Pro se 03/10/2016 ______________

STATEMENT OF CASE

______________

WESLEY, Roger C., Administrative Judge:

Based upon a review of the pleadings and exhibits, I conclude that Applicant has not mitigated security concerns regarding his drug use and personal conduct. Eligibility for access to classified information is denied.

History of the Case

On August 26, 2015, Department of Defense (DOD) Consolidated Adjudication Facility (CAF) issued a Statement of Reasons (SOR) detailing reasons why DOD adjudicators could not make the the preliminary affirmative determination of eligibility for granting a security clearance, and recommended referral to an administrative judge to determine whether a security clearance should be granted, continued, denied, or revoked. The action was taken 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 (AGs) implemented by the DOD on September 1, 2006. Applicant responded to the SOR on September 15, 2015, and elected to have his case decided on the basis of the written record. Applicant received the Government’s File of Relevant Material (FORM) on October 29, 2015, and did not respond to the FORM. The case was assigned to me on January 6, 2016.

Summary of Pleadings

Under Guideline H, Applicant allegedly (a) purchased and used cocaine with varying frequency while holding a security clearance between 2002 and 2012; (b) purchased and used cocaine with varying frequency between 1984 and 2012; (c) and used various prescription drugs without prescriptions, while holding a security clearance, between 2006 and 2012. These allegations are realleged as personal conduct under Guideline E.

Besides the drug-related allegations urged under Guidelines H and E, separate allegations were advanced under Guideline E only: criminal charges and conviction for entering an automobile (a felony) in June 1982 and three alcohol-related arrests between 1984 and 1997.

In his response to the SOR, Applicant admitted each of the allegations. He offered no explanations or claims with respect to the allegations under each of the guidelines.

FINDINGS OF FACT

Applicant is a 52-year-old technician for a defense contractor who seeks a security clearance. The allegations covered in the SOR and admitted by Applicant are adopted as relevant and material findings. Additional findings follow.

Background

Applicant never married and has no children. He attended technical college classes between September 1983 and May 1985 and earned an associate’s degree in June 1985. (Item 4) He claimed no military service. Applicant worked for his current employer since June 1985 and has held a security clearance since January 2002. (Items 3 and 4)

Drug use

Applicant was introduced to cocaine in 1984 and used it randomly untill 1998 when he increased his use to sporadic use every two to three months. (Item 8) After suspending his cocaine use between 1999 and 2008, he resumed his use in 2008 and used it with varying frequency until April 2012. (Items 4 and 8)

Between 2002 and April 2012, while holding a security clearance, Applicant purchased and used cocaine with varying frequency, typically four times a year. (Items 4-8) In an OPM interview, Applicant assured the agent he voluntarily quit using cocaine in April 2012. (Item 8) He insisted he no longer has any intention of using cocaine in the future. Without any evidence of continued cocaine use or purchases, Applicant’s claims are accepted.

Besides cocaine, Applicant used various prescription drugs without prescriptions between 2006 and 2012. He used these prescription drugs while holding a security clearance. Since his last use in 2012, he no longer uses any drug requiring a prescription, without a prescription.

Criminal history

Applicant’s criminal history is considerable. It includes alcohol-related offenses, three in all between 1984 and 1997. (Items 4-8) Since 1997, he has had no reported alcohol-related incidents or reports of other types of criminal offenses. (Items 4-8)

Applicant’s criminal history also includes a 1982 felony conviction arising out of his breaking into an automobile with a group of acquaintances with the intention of stealing stereo equipment. (Item 8) Records document that the court ordered him to pay restitution ($75) and spend two weeks in jail. Since 1997, he has had no reported alcohol-related or other types of criminal offenses.

Endorsements

Applicant provided no character references. Nor did he furnish any performance evaluations or evidence of contributions to his community.

POLICIES

The AGs list guidelines to be used by administrative judges in the decision-making process covering DOHA cases. These guidelines take into account factors that could create a potential conflict of interest for the individual applicant, as well as considerations that could affect the individual’s reliability, trustworthiness, and ability to protect classified information. These guidelines include "[c]onditions that could raise a security concern and may be disqualifying” (disqualifying conditions), if any, and many of the "[c]onditions that could mitigate security concerns.”

The AGs must be considered before deciding whether or not a security clearance should be granted, continued, or denied. The guidelines do not require administrative judges to place exclusive reliance on the enumerated disqualifying and mitigating conditions in the guidelines in arriving at a decision. Each of the guidelines is to be evaluated in the context of the whole person in accordance with AG ¶ 2(c).

In addition to the relevant AGs, administrative judges must take into account the pertinent considerations for assessing extenuation and mitigation set forth in AG ¶ 2(a) of the AGs, which are intended to assist the judges in reaching a fair and impartial commonsense decision based upon a careful consideration of the pertinent guidelines within the context of the whole person. The adjudicative process is designed to examine a sufficient period of an applicant’s life to enable predictive judgments to be made about whether the applicant is an acceptable security risk.

When evaluating an applicant’s conduct, the relevant guidelines are to be considered together with the following AG ¶ 2(a) factors: (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 chances; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence.

Viewing the issues raised and evidence as a whole, the following individual guidelines are pertinent in this case:

Drug Involvement

The Concern: Use of an illegal drug or misuse of a prescription drug can raise questions about an individual’s reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations. AG, ¶ 24.

Personal Conduct

The Concern: Conduct involving questionable judgment, untrustworthiness, unreliability, 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. AG, ¶ 15.

Burden of Proof

By virtue of the principles and policies framed by the AGs, a decision to grant or continue an applicant's security clearance may be made only upon a threshold finding that to do so is clearly consistent with the national interest. Because the Directive requires administrative judges to make a commonsense appraisal of the evidence accumulated in the record, the ultimate determination of an applicant's eligibility for a security clearance depends, in large part, on the relevance and materiality of that evidence. See United States, v. Gaudin, 515 U.S. 506, 509-511 (1995). As with all adversarial proceedings, the judge may draw only those inferences which have a reasonable and logical basis from the evidence of record. Conversely, the judge cannot draw factual inferences that are grounded on speculation or conjecture. The Government's initial burden is twofold: (1) it must prove by substantial evidence any controverted facts alleged in the SOR, and (2) it must demonstrate that the facts proven have a material bearing to the applicant's eligibility to obtain or maintain a security clearance. The required materiality showing, however, does not require the Government to affirmatively demonstrate that the applicant has actually mishandled or abused classified information before it can deny or revoke a security clearance. Rather, the judge must consider and weigh the cognizable risks that an applicant may deliberately or inadvertently fail to safeguard classified information.

Once the Government meets its initial burden of proof of establishing admitted or controverted facts, the evidentiary burden shifts to the applicant for the purpose of establishing his or her security worthiness through evidence of refutation, extenuation, or mitigation. Based on the requirement of Exec. Or. 10865 that all security clearances be clearly consistent with the national interest, the applicant has the ultimate burden of demonstrating his or her clearance eligibility. “[S]ecurity-clearance determinations should err, if they must, on the side of denials.” See Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).

ANALYSIS

Applicant is a technician for a defense contractor who purchased and used cocaine over an 18--year period spanning 1984 and April 2012. For much of this time (i.e., between 2002 and 2012) he held a security clearance and presumably was aware the DOD’s anti-drug policy in force. Besides his cocaine use and purchases, Applicant used various prescription drugs without prescriptions over a six-year period between 2006 and 2012.

On the strength of the evidence presented, two disqualifying conditions of the Adjudicative Guidelines for drug abuse are applicable: DC ¶ 25(a), “any drug abuse,” and DC ¶ 25(c), “illegal possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia.” Because Applicant’s cocaine use and non-prescribed prescription drug use is barred by state law in Applicant’s state of residence as well as federal law, his use of these drugs are covered by Guideline E as well. DC ¶ 16(c) of Guideline E, “credible adverse information in several adjudicative areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information,” applies to Applicant’s situation.

Considering the lengthy history of Applicant’s involvement with illegal drugs and non-prescribed drugs, not enough time has elapsed to facilitate safe predictable judgments that he will not return to illegal drug use in the foreseeable future. None of the pertinent mitigating conditions covered by AG ¶ 24 of Guideline H are available to Applicant under the facts of his case. Likewise, none of the mitigating conditions covered by Guideline E are available to Applicant. His lengthy involvement with illegal drugs and prescription drugs without prescriptions makes safe predictions of future avoidance difficult to invoke. More time is needed to warrant inferences that Applicant is at no reasonable risk to recurrence.

From a whole-person perspective, Applicant has established insufficient probative evidence of his ability to abstain from purchasing and using illegal drugs and non-prescribed drugs without risk of recurrence. Applicant’s own acknowledgments of poor judgment in using cocaine and non-prescribed substances are encouraging, but not enough at this time to absorb recurrence risks. Due to the substantial elapse of time since Applicant last committed an alcohol-related or other criminal offense, predictions are warranted that he is no longer at risk to recurrent incidents in the foreseeable future.

Taking into account all of the facts and circumstances surrounding Applicant’s lengthy history of illegal drug and non-prescribed drug involvement, he fails to mitigate security concerns related to his drug use. Unfavorable conclusions warrant with respect to the allegations covered by subparagraphs 1.a through 1.fof Guideline H and 2.a through 2.fof Guideline E. Because of th age involved with Applicant’s reported alcohol- related incidents without any recurrent offenses, favorable conclusions are warranted with respect to the allegations covered by subparagraphs 2-gthrough 2.j.

FORMAL FINDINGS

In reviewing the allegations of the SOR and ensuing conclusions reached in the context of the findings of fact, conclusions, conditions, and the factors listed above, I make the following formal findings:

GUIDELINE H: (DRUG INVOLVEMENT): AGAINST APPLIICANT

Subparas. 1.a-1.f: Against Applicant

GUIDELINE E: (PERSONAL CONDUCT): AGAINST APPLICANT

Subparas. 2.a-2f: Against Applicant Subparas. 2.g-2.j: For Applicant

CONCLUSION

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue Applicant’s security clearance. Clearance is denied.

Roger C. Wesley Administrative Judge