CASEClearance Adjudication Search EngineCASE

Loading case…

ISCR Case 00-0627.h1 — CASE

ISCR Case 00-0627.h1denied

Case Headnote

ISCR Case No. 00-0627.h1

deniedDec 30, 2002· Hon. Richard A. Cefola· hearing

Summary

A 44-year-old defense contractor was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial stemmed from repeated willful falsifications regarding his past drug abuse on security clearance applications and sworn statements.

Specifically, the Applicant knowingly and willfully failed to disclose the full extent of his drug abuse on a May 1998 Questionnaire for National Security Positions (QNSP), and again in signed sworn statements executed on November 17, 1998, and August 4, 1999. These repeated falsifications were found to be violations of 18 U.S.C. 1001.

The Administrative Judge determined that the Applicant's lack of candor and failure to disclose critical information demonstrated disqualifying conditions under both guidelines. The Applicant did not present sufficient evidence to mitigate these concerns, leading to the denial of his security clearance.

Why the Applicant Was Denied

The Applicant knowingly and willfully failed to disclose the full extent of his past drug abuse on multiple occasions.
The Applicant's repeated falsifications were deemed a violation of 18 U.S.C. 1001, demonstrating a lack of candor.
The Applicant did not provide sufficient evidence to mitigate the concerns raised by his personal and criminal conduct.

Conditions Referenced

Disqualifying

E2raisedPersonal ConductThe deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire.
J1raisedCriminal ConductAllegations or admission of criminal conduct, regardless of whether the person was formally charged.

Key Rule Quoted

“[each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy in enclosure 2, including as appropriate: a. Nature, extent, and seriousness of the conduct, and surrounding circumstances.”

Procedural Posture

SOR issuedNov 2, 2000
Answer filedDec 8, 2000
Hearing held—Determined on a written record in lieu of a hearing.
Decision dateDec 30, 2002

Cite For

Lack of Candor in Security Clearance Applications Under Guideline E
Repeated Willful Falsifications as a Violation of 18 U.S.C. 1001
Insufficient Mitigation of Personal and Criminal Conduct Concerns.

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 multiple allegations of personal conduct related to the applicant's repeated falsifications regarding past drug abuse. The applicant's lack of candor and failure to disclose the full extent of drug use were deemed significant security concerns, leading to the denial of the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	In answering question 24 on a May 1998 Questionnaire for National Security Positions (QNSP), the Applicant knowingly and wilfully failed to disclose the full extent of his past drug abuse.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	Denied	(b) deliberately providing false information to an investigator or official (c) credible adverse information across areas supporting a whole-person concern	—	—
1.b	In a signed sworn statement, executed by the Applicant on November 17, 1998, the Applicant again knowingly and wilfully failed to disclose the full extent of his past drug abuse.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	Denied	(b) deliberately providing false information to an investigator or official (c) credible adverse information across areas supporting a whole-person concern	—	—
1.c	In a signed sworn statement, executed by the Applicant on August 4, 1999, the Applicant, for the third time, knowingly and wilfully failed to disclose the full extent of his past drug abuse.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	Denied	(b) deliberately providing false information to an investigator or official (c) credible adverse information across areas supporting a whole-person concern	—	—
1.d	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 J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations related to criminal conduct, specifically regarding the applicant's repeated falsifications about past drug abuse. The applicant's lack of candor and failure to disclose the full extent of his drug use were deemed significant security concerns, leading to the denial of the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In answering question 24 on a May 1998 Questionnaire for National Security Positions (QNSP), the Applicant knowingly and wilfully failed to disclose the full extent of his past drug abuse. This wilful falsification is a violation of 18 U.S.C. 1001.	Against Applicant	Drug Related Criminal Charge	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.b	In a signed sworn statement, executed by the Applicant on November 17, 1998, the Applicant again knowingly and wilfully failed to disclose the full extent of his past drug abuse. This wilful falsification is also a violation of 18 U.S.C. 1001.	Against Applicant	Drug Related Criminal Charge	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
1.c	In a signed sworn statement, executed by the Applicant on August 4, 1999, the Applicant, for the third time, knowingly and wilfully failed to disclose the full extent of his past drug abuse. This wilful falsification is a third violation of 18 U.S.C. 1001.	Against Applicant	Drug Related Criminal Charge	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
2.a	specific text not stated in this decision	Against Applicant	Unspecified Criminal Conduct	—	Unknown	—	—	—

Descriptive standardized rendering of a decided public case (Guideline J). 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

DATE: December 30, 2002 In Re: -------------------- SSN: ----------- Applicant for Security Clearance ISCR Case No. 00-0627 DECISION OF ADMINISTRATIVE JUDGE RICHARD A. CEFOLA

SYNOPSIS The Applicant was less than candid as to the true extent of his past drug abuse on a May 1998 Questionnaire for National Security Positions, again in a November 1998 sworn statement, and for a third time in an August 1999 sworn statement. These repeated wilful falsifications are also a violation of 18 U.S.C. 10001. Clearance is denied.

STATEMENT OF CASE

On November 2, 2000, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked. Applicant filed an Answer to the SOR on December 8, 2000. Applicant elected to have this case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's File of Relevant aterial (FORM) on February 8, 2001. Applicant was instructed to submit objections or information in rebuttal, extenuation or mitigation within 30 days of receipt of the FORM. Applicant received his copy on September 24, 2001, and Applicant's reply was received on or about October 24, 2001. The case was received by the undersigned for resolution on December 30, 2002. The issues raised here are whether the Applicant's repeated personal conduct and related criminal conduct militate against the granting of a security clearance.

FINDINGS OF FACT

The following Findings of Fact are based on Applicant's Answer to the SOR, the File of Relevant Material and Applicant's Response. The Applicant is 44 years of age and is employed by a defense contractor who seeks a security clearance on behalf of the Applicant. Guideline E - Personal Conduct & Guideline J - Criminal Conduct 1.a. and 2.a. In answering question 24 on a May 1998 Questionnaire for National Security Positions (QNSP), the Applicant knowingly and wilfully failed to disclose the full extent of his past drug abuse (Item 4 at page 8, Item 7 at page 1, and Item 8 at page 1). He failed to disclose that he used cocaine from September of 1992 to September of 1996; that he used crack cocaine, at times on a daily basis, from January of 1995 to September of 1996; and that he used marijuana, at times monthly during 1991 (id). This wilful falsification is a violation of 18 U.S.C. 1001. 1.b. and 2.a. In a signed sworn statement, executed by the Applicant on November 17, 1998, the Applicant again knowingly and wilfully failed to disclose the full extent of his past drug abuse (Item 9 at pages 1–2, Item 6 at page 16, and Item 7 at pages 1–2). He failed to disclose that he used both hashish and cocaine while serving in the United States Air Force from about 1997 until 1982; that he used heroin in 1985; that he used LSD from about 1985 until 1992; that he tested positive for cocaine and received treatment for Cocaine Dependence in 1991; that he used crack cocaine, at times on a daily basis, from January of 1995 to September of 1996; and that he sold illegal drugs (id). This wilful falsification is also a violation of 18 U.S.C. 1001. 1.c. and 2.a. In a signed sworn statement, executed by the Applicant on August 4, 1999, the Applicant, for the third time, knowingly and wilfully failed to disclose the full extent of his past drug abuse (Item 5 at page 2, Item 6 at page 16, and Item 7 at pages 1–2). This wilful falsification is a third violation of 18 U.S.C. 1001. The Applicant explains the reason for his repeated falsifications in his answer to the SOR: I knew employees who were discharged for not being able to obtain security clearances. I didn't want the consequences of my previous drug usage to continually become a detriment to my family. I knew my attendence(sic) to(sic) treatment facilities was documented but the uncertainty of not knowing if my drug usage prior to my employment would get me discharged was the sole reason for my not being forthright (Item 3 at page 3). Mitigation The Applicant offers little in the way of mitigation.

POLICIES

Enclosure 2 and Section E.2.2. of the 1992 Directive set forth both policy factors, and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. The conditions should be followed in every case according to the pertinent criterion, however, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on his own common sense. Because each security clearance case presents its own unique facts and circumstances, it should not be assumed that these conditions exhaust the realm of human experience, or apply equally in every case. Conditions most pertinent to evaluation of this case are: Personal Conduct Conditions that could raise a security concern: (2) The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire . . . or similar form . . . ; (3) Deliberately providing false or misleading information concerning relevant and material matters to and investigator . . . in connection with a personal security or trustworthiness determination; Conditions that could mitigate security concerns: None. Criminal Conduct Condition that could raise a security concern: (1) Allegations or admission of criminal conduct, regardless of whether the person was formally charged; Conditions that could mitigate security concerns: None. As set forth in the Directive,"[each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy in enclosure 2, including as appropriate: a. Nature, extent, and seriousness of the conduct, and surrounding circumstances. b. Frequency and recency of the conduct. c. Age and maturity of the applicant. d. Motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequence involved. e. Absence or presence of rehabilitation. f. Probability that circumstances or conduct will continue or recur in the future." The Administrative Judge, however, can only draw those inferences or conclusions that have a reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. The Government must make out its case under Guideline E (personal conduct), and Guideline J (criminal conduct); which establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between an applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required. Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the past adverse conduct, is unlikely to be repeated, and that the Applicant presently qualifies for a security clearance. Personal conduct is conduct involving questionable judgement, untrustworthiness, unreliability, or unwillingness to comply with rules and regulations. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations at all times and in all places. If an applicant has demonstrated a lack of respect for the law in his private affairs, there then exists the possibility that an applicant may demonstrate the same attitude towards security rules and regulations.

CONCLUSION

The Applicant was not truthful as to the full extent of his past drug abuse on three separate occasions: when he fill out his QNSP in May of 1998, six months later when he executed a sworn statement in November of 1998, and eight months after that when he executed a sworn statement in August of 1999. It was only with the Government's submission of the Applicant's medical and treatment records that the full extent of the Applicant's past drug abuse came to light (Items 6, 7 and 8). The Applicant has yet to admit the true extent of his drug involvement. This lack of candor is clearly of security significance; and as such, Guidelines E and J are found against the Applicant. Considering all the evidence, the Applicant has not rebutted the Government's case regarding his personal conduct and related criminal conduct. The Applicant has thus not met the mitigating conditions of Guidelines E and J, and of Section E.2.2. of the Directive. Accordingly, he has not met his ultimate burden of persuasion under Guidelines E and J.

FORMAL FINDINGS

Formal Findings required by paragraph 25 of Enclosure 3 of the Directive are: Paragraph 1: AGAINST THE APPLICANT a. Against the Applicant. b. Against the Applicant. c. Against the Applicant. Paragraph 1: AGAINST THE APPLICANT a. Against the Applicant. Factual support and reasons for the foregoing are set forth in FINDINGS OF FACT and CONCLUSIONS, supra.

DECISION

In light of the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for the Applicant. Richard A. Cefola Administrative Judge

FOOTNOTES

00-0627.h1 FOR GOVERNMENT William S. Fields, Esquire, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/00-0627.h1.html[7/2/2021 2:12:08 PM] 00-0627.h1