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ISCR 02-02247.h1: Guideline H security clearance hearing, denied (2003) · CASE

ISCR Case 02-02247.h1denied

Case headnote

ISCR Case No. 02-02247.h1

deniedFeb 26, 2003· Hon. Richard A. Cefola· hearing

Summary

A 26-year-old Software Engineer's security clearance application was denied under Guideline H (Drug Involvement) due to a history of illegal drug use spanning from January 1994 to November 2001. The Statement of Reasons detailed several instances of drug use, including cocaine approximately three times in October 2000, and opium five times between January 1997 and January 1998.

Further allegations included LSD use twice from May 1995 to January 1997, hashish use two to ten times from January 1995 to January 1999, and marijuana use several times from January 1994 to November 2001. These activities raised disqualifying conditions H.a and H.b.

The Administrative Judge determined that the Applicant's drug involvement was recent and covered a significant portion of his adult life. The Applicant did not provide sufficient evidence to mitigate the security concerns, failing to meet the burden of persuasion under Guideline H, which ultimately led to the denial of his security clearance.

Why the applicant was denied

The Applicant's drug involvement was recent and spanned a significant period of his adult life.
The Applicant failed to provide substantial evidence to mitigate the security concerns raised by his drug use.
The Administrative Judge determined that the Applicant did not meet the burden of persuasion under Guideline H.

Conditions referenced

Disqualifying

H.araisedAny Drug Abuse
H.braisedIllegal Drug Possession

Key rule quoted

“The improper or illegal involvement with drugs raises questions regarding an individual's willingness or ability to protect classified information.”

Procedural posture

SOR issuedAug 29, 2002
Answer filedSep 30, 2002
Hearing heldN/ADetermined on a written record.
Decision dateFeb 26, 2003

Cite for

Recent Drug Involvement as a Significant Security Concern Under Guideline H
Failure to Mitigate Security Concerns Related to Drug Use
Burden of Persuasion Under Guideline H Not Met by the Applicant

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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The Applicant's drug involvement spanned from January 1994 to November 2001, during which he used various illegal substances including cocaine, opium, LSD, hashish, and marijuana. The judge found that the Applicant's recent drug use raised significant security concerns, leading 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: February 26, 2003 In Re: ------------------- SSN: ----------- Applicant for Security Clearance ISCR Case No. 02-02247 DECISION OF ADMINISTRATIVE JUDGE RICHARD A. CEFOLA

SYNOPSIS The Applicant used various illegal substances from January of 1994 until his last usage November of 2001. His drug involvement is fairly recent; and as such, is of current security significance. Clearance is denied. On August 29, 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 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 September 30, 2002. 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 November 24, 2002. 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 December 5, 2002, and Applicant's reply was received on January 7, 2003. The case was received by the undersigned for resolution on January 14, 2003. The issue raised here is whether the Applicant's admitted drug involvement militates 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 26 years of age, and is employed as a Software Engineer by a defense contractor who seeks a security clearance on behalf of the Applicant. Guideline H - Drug Involvement 1.a.~1.e. The Applicant used various illegal substances, with varying frequency, from about January of 1994 until his last usage in November of 2001 (Government Exhibit (GX) 4 at pages 9–10, and GX 5 at page 1). The Applicant describes his illegal drug usage in the following terms: I used cocaine approximately three times in October 2000; opium five times from Jan 97 to Jan 98; LSD two times from May 1995 to January 1997; hashish two to ten times from January 1995 to January 1999; and marijuana several times from January 1994 to November 2001, while I was in high school and college (GX 5 at page 1, emphasis supplied). Mitigation In his sworn statement, the Applicant avers that he intends no future drug involvement (EX 5 at page 2), and in his Response to the FORM he claims to be a changed person (Response at page 1). His uncle, who "retired from the U.S. Secret Service," thinks highly of the Applicant (Response at pages 3–4).

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: Drug Involvement Conditions that could raise a security concern: a. Any drug abuse (drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction); b. Illegal drug possession . . . . 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 H (Drug Involvement), 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. The improper or illegal involvement with drugs, raises questions regarding an individual's willingness or ability to protect classified information. 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

This 26 year old's occasional drug involvement extends over a period of about 8 years, from January of 1994 until November of 2001. This period covers most of the Applicant's adult life. He used a variety of illegal substances: Marijuana, Hashish, Cocaine, LSD and Opium. His last drug usage occurred only about 15 months ago. Although the Applicant now disavowals any future drug abuse, it is too soon to say that his past abuse is not of present security significance. Guideline H is therefore found against the Applicant. Considering all the evidence, the Applicant has not rebutted the Government's case regarding his drug involvement. The Applicant has thus not met the mitigating conditions of Guideline H, and of Section E.2.2. of the Directive. Accordingly, he has not met his ultimate burden of persuasion under Guideline H.

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. d. Against the Applicant. e. 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

02-02247.h1 FOR GOVERNMENT Melvin A. Howry, Esquire, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-02247.h1.html[6/24/2021 10:47:41 AM] 02-02247.h1