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ISCR Case 01-27288.h1 — CASE

ISCR Case 01-27288.h1denied

Case Headnote

ISCR Case No. 01-27288.h1

deniedDec 31, 2003· Hon. John Grattan Metz, Jr.· hearing

Summary

A 28-year-old defense contractor was denied a security clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed primarily from the applicant's recreational marijuana use, which occurred from October 1992 to May 1997, with an additional instance in January 2001. This later use took place after the applicant had already applied for a security clearance.

The judge determined that the applicant's intent to abstain from drug use was inconsistent and appeared to be driven by a perception of personal risk rather than a genuine commitment to refrain. Specifically, past periods of abstinence were linked to the applicant's fear of being caught, and the recent drug use during the background investigation further indicated a lack of commitment.

While the judge ruled in the applicant's favor regarding allegations of falsifying drug use history, the unmitigated recreational marijuana use, particularly the recent instance, led to the denial of the security clearance.

Why the Applicant Was Denied

Applicant's recreational marijuana use was not mitigated due to inconsistent intent to refrain from drug use.
Recent drug use occurred during the background investigation, indicating a lack of commitment to abstain from drugs.
Past abstinence was linked to the applicant's perception of being caught rather than a genuine desire to stop using drugs.

Conditions Referenced

Disqualifying

E2.A8.1.2.1raisedAny Drug Abuse
E2.A8.1.2.5raisedRecent Drug Involvement

Mitigating

E2.A8.1.3.3rejectedA Demonstrated Intent Not to Abuse Any Drugs in the FutureThe applicant's intent to refrain from drug use was not credible.

Key Rule Quoted

“"the clearly consistent standard indicates that security-clearance determinations should err, if they must, on the side of denials."”
— Department of the Navy v. Egan, 484 U.S. 518, 531 (1988)

Procedural Posture

SOR issuedDec 17, 2002
Answer filedJan 2, 2003Applicant requested an administrative decision on the record.
Hearing held—
Decision dateDec 31, 2003

Cite For

Denial of Security Clearance Due to Inconsistent Drug Use History
Credibility of Applicant's Intent to Refrain From Drug Use
Falsification Allegations Not Supported by Evidence

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 that the applicant truthfully disclosed his drug abuse history on his clearance application and did not find sufficient evidence to support the allegation of falsification regarding his drug use. Therefore, the judge ruled in favor of the applicant under Guideline E.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	specific text not stated in this decision	For 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 against the applicant regarding his drug involvement, specifically noting his recreational abuse of marijuana from October 1992 to May 1997, with additional use in January 2001. The applicant's intent to refrain from drug use was deemed inconsistent with his past behavior and not credible. The judge ruled that the applicant's drug use was not mitigated, leading to a denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant's recreational abuse of marijuana from October 1992 to May 1997, with additional use in January 2001, after applying for a clearance, is not mitigated where Applicant's demonstrated intent to refrain from drug abuse varied directly with his perception of personal risk of adverse consequences.	Against Applicant	MarijuanaWHILE CLEARED	Regular	Admitted	—	—	—
1.b–1.c	2 sub-charges — specific text not stated in this decision (for the applicant). (low confidence)	For 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

DATE: December 31, 2003

In Re:

-----------------------

SSN: -----------

Applicant for Security Clearance

ISCR Case No. 01-27288

DECISION OF ADMINISTRATIVE JUDGE

JOHN G. METZ, JR.

SYNOPSIS

Applicant's recreational abuse of marijuana from October 1992 to May 1997, with additional use in January 2001, after applying for a clearance, is not mitigated where Applicant's demonstrated intent to refrain from drug abuse varied directly with his perception of personal risk of adverse consequences. However, record does not support allegation of falsification of his previously disclosed drug abuse history on a November 2002 interrogatory. Clearance denied.

STATEMENT OF CASE

On 17 December 2002, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant, stating that DOHA could not make the preliminary affirmative finding (1) that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. On 2 January 2003, Applicant answered the SOR and requested an administrative decision on the record. Applicant did not respond to the Government's File of Relevant Material (FORM)--issued 16 July 2003; the record closed 24 August 2003, the day the response was due at DOHA. The case was assigned to me on 15 September 2003, and I received it the same day to decide if clearance should be granted, continued, denied, or revoked.

FINDINGS OF FACT

Applicant admitted using marijuana about 25 times between October 1992 and January 2002 (2), LSD once in November 1992, and hallucinogenic mushrooms twice in late 1995 (paragraph 1), but denied having falsified his 21 November 2002 interrogatories by misrepresenting his drug use (paragraph 2); accordingly, I incorporate the admissions as findings of fact, except that I conclude that Applicant last used marijuana in January 2001.

Applicant--a 28-year-old employee of a defense contractor--seeks access to classified information. He has not previously held a clearance. On 8 November 1999, Applicant executed a Security Clearance Application (SCA)(SF-86)(Item 4) on which he truthfully disclosed his illegal drug use to that date: marijuana approximately 25 times from October 1992 to June 1998, (3) hallucinogenic mushrooms twice between October and December 1995, and LSD once in November 1992. On 12 January 2001, he executed a sworn statement disclosing that he last used marijuana on 1 January 2001, after partying with friends. His stated that he had not used marijuana after graduating from college in 1997 because he feared being caught by a random drug test. He used on New Year's Day because his friends were using and he knew his employer-- the same employer who nominated him for his clearance and the same employer for whom Applicant had a background investigation pending since November 1999--did not administer random drug tests. Nevertheless, Applicant insists that he will not use drugs in the future, even though he still associates with people who do use drugs.

On 21 November 2002, Applicant executed drug interrogatories proposed to him by DOHA. The interrogatories refer generally, but not by date, to the Applicant's statement to the DSS. In response to a series of questions, Applicant stated that he had not used any illegal drugs and had decided to stop using drugs on 1 January 2002 because it was illegal, unhealthy, and would limit his career opportunities. Elsewhere in the interrogatories, Applicant states that having a clearance will open up a variety of opportunities to him.

POLICIES

Enclosure 2 of the Directive sets forth adjudicative guidelines to be considered in evaluating an individual's security eligibility. The Administrative Judge must take into account the conditions raising or mitigating security concerns in each area applicable to the facts and circumstances presented. Each adjudicative decision must also assess the factors listed in Section 6.3. and in Enclosure 2 of the Directive. Although the presence or absence of a particular condition for or against clearance is not determinative, the specific adjudicative guidelines should be followed whenever a case can be measured against this policy guidance, as the guidelines reflect consideration of those factors of seriousness, recency, motivation, etc.

Considering the evidence as a whole, the following adjudication policy factors are most pertinent to this case:

DRUG INVOLVEMENT (GUIDELINE H)

E2.A8.1.1. The Concern:

E2.A8.1.1.1. Improper or illegal involvement with drugs raises questions regarding an individual's willingness or ability to protect classified information. Drug abuse or dependence may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information.

E2.A8.1.1.2. Drugs are defined as mood and behavior-altering substances.

E2.A8.1.1.2.1. 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

E2.A8.1.1.2.2. Inhalants and other similar substances,

E2.A8.1.1.3. Drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.

E2.A8.1.2. Conditions that could raise a security concern and may be disqualifying include:

E2.A8.1.2.1. Any drug abuse (see above definition);

E2.A8.1.2.2. Illegal drug possession. . .

E2.A8.1.2.5. . . . Recent drug involvement, especially following the granting of a security clearance, or an expressed intent not to discontinue use, will almost invariably result in an unfavorable determination. E2.A8.1.3. Conditions that could mitigate security concerns include:

E2.A8.1.3.1. The drug involvement was not recent;

E2.A8.1.3.2. The drug involvement was an isolated or aberrational event;

E2.A8.1.3.3. A demonstrated intent not to abuse any drugs in the future.

PERSONAL CONDUCT (GUIDELINE E)

E2A5.1.1. The Concern: Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information. . .

E2. A5.1.2. Conditions that could raise a security concern and may be disqualifying include:

E2.A5.1.2.2. The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, . . . [or] determine security clearance eligibility or trustworthiness. . .;

E2.A5.1.2.3. Deliberately providing false or misleading information concerning relevant and material matters to an investigator, . . . in connection with a personnel security or trustworthiness determination;

E2.A5.1.3. Conditions that could mitigate security concerns include:

None.

Burden of Proof

Initially, the government must prove controverted facts alleged in the SOR. If the government meets that burden, the burden of persuasion then shifts to the applicant to establish his security suitability through evidence of refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of disqualifying conduct, it is nevertheless clearly consistent with the national interest to grant or continue the security clearance.

A person who seeks access to classified information enters into a fiduciary relationship with the government predicated upon trust and confidence. Where facts proven by the government raise doubts about an applicant's judgment, reliability or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he or she is nonetheless security worthy. As noted by the United States Supreme Court in Department of the Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security-clearance determinations should err, if they must, on the side of denials."

CONCLUSION

The Government has established its case under Guideline H, and the Applicant has not mitigated the conduct. Applicant was a recreational abuser of marijuana from approximately October 1992 to 1997. And although he disclosed this drug abuse in his November 1999 clearance application--at which point he was put on notice that drug use was against Government policy--he later used drugs with friends when the opportunity presented itself. This use was inconsistent with his later-stated intent to refrain from marijuana use in the future. Further, his past use was without regard to its illegality, his past periods of abstinence are directly related to his perception of the likelihood of being caught, and his statement of future intent to refrain is directly related to the career-enhancing affect of having a clearance. Yet when he considered the likelihood of being caught low, he freely used drugs with his friends. His use was recent, in that it occurred during his background investigation, and neither isolated nor aberrational. Nevertheless, his use of mushrooms in 1995 and his use of LSD in 1992 seems experimental at worst and unlikely to recur.

Although Applicant now vows to refrain from marijuana abuse having "matured," I find that vow neither credible nor sufficient to constitute a demonstrated intent to refrain from drug abuse in the future, particularly given the circumstances of Applicant's past use. Accordingly, I resolve Guideline H against Applicant.

The Government has not established its case under Guideline E. Applicant truthfully disclosed his drug abuse history on his clearance application, and later disclosed a more recent use to the DSS. Yet, the Government posits that Applicant's answers to a poorly worded and vague interrogatory--one that apparently has not been updated since before DISCR was redesignated DOHA--constitute a deliberate falsification of a drug abuse history that Applicant previously disclosed. This is simply not credible.

Applicant's explanation that he read the question as calling only for any drug use after the referenced DSS interview is much more credible. Further, his statement that he decided to refrain from future drug use in January 2002, does not necessarily imply that he used drugs into January 2002, notwithstanding his later admission to the SOR allegation. I resolve Guideline E for Applicant.

FORMAL FINDINGS

Paragraph 1. Guideline H: AGAINST THE APPLICANT

Subparagraph a: Against the Applicant

Subparagraph b: For the Applicant

Subparagraph c: For the Applicant

Paragraph 2. Guideline E: FOR THE APPLICANT

Subparagraph a: For 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.

John G. Metz, Jr.

Administrative Judge

1. Required by Executive Order 10865, as amended and Department of Defense Directive 5220.6, dated January 2, 1992--and amended by Change 3 dated 16 February 1996 (Directive).

2. Aside from this admission to a last use in January 2002, there is no record evidence to support that date. Applicant's January 2001 statement puts his last use in January 2001. The allegation for January 2002 appears to be based merely on Applicant's November 2002 interrogatories, in which he stated that he decided to stop using drugs in January 2002. However, there is nothing in the interrogatories to suggest that the statement signifies continued use to January 2002.

3. Although he later amended the ending date to May 1997, because he could not recall using marijuana after graduating from college in 1997.

FOOTNOTES

01-27288.h1 FOR GOVERNMENT Kathryn A. Trowbridge, Esquire, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/01-27288.h1.html[6/24/2021 10:45:12 AM] 01-27288.h1