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ISCR 01-23671.h1: Guideline H security clearance hearing, denied (2002) · CASE

ISCR Case 01-23671.h1denied

Case headnote

ISCR Case No. 01-23671.h1

deniedOct 3, 2002· Hon. Joseph Testan· hearing

Summary

A security clearance was denied under Guideline H (Drug Involvement) for an applicant with a history of marijuana use spanning from 1977 to 1997. During this period, the applicant used marijuana approximately twice monthly, with some of this use occurring while he held a Department of Defense security clearance. The applicant also purchased marijuana during the time he was using it.

The denial was primarily based on the applicant's inability or unwillingness to unequivocally commit to abstaining from future marijuana use. The applicant indicated a conditional intent regarding future use, suggesting he would continue if not granted access. This stance raised concerns about his reliability and trustworthiness.

Despite the application of a mitigating condition, the judge found that the applicant's lack of an unequivocal commitment to future abstinence precluded a determination that granting a clearance would be consistent with national interest. Consequently, the security clearance was denied.

Why the applicant was denied

The applicant's past marijuana use occurred while he held a DoD security clearance.
The applicant expressed conditional intentions regarding future marijuana use, indicating he would continue if not granted access.
The applicant's inability to demonstrate an unequivocal intent not to use marijuana in the future undermined his reliability and trustworthiness.

Conditions referenced

Disqualifying

E2.A8.1.2.1raisedAny Drug Abuse.
E2.A6.1.2.2raisedIllegal Drug Possession.

Mitigating

E2.A8.1.3.1appliedThe Drug Involvement Was Not Recent.

Key rule quoted

“The applicant's conduct reflects adversely on his judgment, reliability and trustworthiness, and strongly suggests that he cannot be relied upon to safeguard classified information.”

Procedural posture

SOR issuedJan 7, 2002
Answer filedMar 6, 2002Applicant elected to have case determined on written record.
Hearing held—No hearing; case determined on written record.
Decision dateOct 3, 2002

Cite for

Denial of Clearance Due to Conditional Future Drug Use Intentions
Impact of Past Drug Use on Security Clearance Eligibility
Reliability and Trustworthiness Concerns Under Guideline H

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

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Clearance at issue: Secret: “Some of this use occurred while he held a DoD security clearance.”
Held a clearance before: Yes: “Some of this use occurred while he held a DoD security clearance.”

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The applicant's past marijuana use, which occurred while holding a security clearance, raised significant concerns regarding his judgment and reliability. Despite having abstained from marijuana use since 1997, the applicant's inability to unequivocally commit to not using marijuana in the future led to the denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation

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

Full decision

The complete, official text, footnotes and signatures included, is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DATE: October 3, 2002 In Re: --------------------- SSN: ----------- Applicant for Security Clearance ISCR Case No. 01-23671 DECISION OF ADMINISTRATIVE JUDGE JOSEPH TESTAN

SYNOPSIS Applicant's inability or unwillingness to state, without equivocation, that he will not use marijuana in the future precludes a finding that it is now clearly consistent with the national interest to grant him access to classified information. Clearance is denied.

STATEMENT OF CASE

On January 7, 2002, 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 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 applicant and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked. Applicant responded to the SOR in writing on March 6, 2002, and elected to have his case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's written case (FORM) on or about May 28, 2002. Applicant did not file a response to the FORM. The case was assigned to me on July 15, 2002.

FINDINGS OF FACT

Applicant used marijuana, an average of twice monthly, from September 1977 to at least November 1997. Some of this use occurred while he held a DoD security clearance. He purchased marijuana during the time he was using it. In a signed, sworn statement that he gave to the Defense Security Service (DSS) in December 1999, applicant stated the following: As far as my future intentions toward marijuana use are concerned, it depends on the outcome of this investigation. I will not use marijuana if I get the access because I know that I should not. If I do not get the program access, I will continue to use marijuana. If I had to not use it to hold a clearance, I would also continue not to use it. If I was not in this environment (aerospace) and did not need access, I would also continue to use marijuana because it is something that I enjoy. In his response to the SOR, applicant stated the following about his marijuana use and his future intentions: In 1997, I discontinued the activities at my own volition, in the interest of being approved {apparently for a special access program} and in having the widest variety of employment opportunities. However, discontinuance did not seem to have a direct bearing on the approval or denial - only the acknowledgment of past activities. It was following this consideration that my existing clearance came into question and this current re-evaluation was initiated. If it {sic} receiving any new or maintaining any existing clearances was contingent on discontinuing the activity (regardless of any acknowledged past activities), I would comply with the discontinuance in accordance with DoD Directive 5220.6, Dated January 2, 1992, Enclosure 2, Attachment 8, Guideline H, paragraph E2.A8.1.3.3.

POLICIES

Enclosure 2 of the Directive sets forth Guidelines (divided into Disqualifying Factors and Mitigating Factors) which must be followed by the Administrative Judge. Based on the foregoing Findings of Fact, the following Disqualifying Factors and Mitigating Factors are applicable: Drug Involvement Disqualifying Factors 1. E2.A8.1.2.1: Any drug abuse. 2. E2.A6.1.2.2: Illegal drug possession. Mitigating Factors 1. E2.A8.1.3.1: The drug involvement was not recent.

CONCLUSION

The evidence establishes that applicant used marijuana an average of twice a month from September 1977 to at least November 1997. During half of these twenty years of marijuana use, applicant held a DoD security clearance. Applicant's conduct reflects adversely on his judgment, reliability and trustworthiness, and strongly suggests that he cannot be relied upon to safeguard classified information. Although applicant has apparently abstained from the use of marijuana since approximately November 1997, his inability or unwillingness to demonstrate an unequivocal, unconditional intent not to use marijuana in the future precludes application of mitigating factor E2.A8.1.3.3, and precludes a finding that it is now clearly consistent with the national interest to grant him access to classified information.

FORMAL FINDINGS

PARAGRAPH 1: AGAINST THE APPLICANT

DECISION

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 a security clearance for applicant. ____________________________ Joseph Testan Administrative Judge

FOOTNOTES

01-23671.h1 FOR GOVERNMENT Martin H. Mogul, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/01-23671.h1.html[7/2/2021 2:27:54 PM] 01-23671.h1