ISCR Case 02-02732.h1

Case Headnote

ISCR Case No. 02-02732.h1

deniedDec 22, 2004· Hon. Robert J. Tuider· hearing

Summary

A 31-year-old male applicant was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline H (Drug Involvement). The denial primarily stemmed from the falsification of his security clearance application. Specifically, the applicant failed to disclose a January 1993 felony arrest for aggravated assault and denied using illegal drugs while holding a security clearance, despite testing positive for MDMA in February 1995 while in the Marine Corps. He also falsely denied receiving alcohol-related treatment or counseling within the last seven years, having received counseling from February to June 1995 in the Marine Corps.

Further allegations included his discharge from the Marine Corps in August 1995 under other than honorable conditions for misconduct due to drug abuse. He also received counseling for drugs and alcohol, attended Alcoholics Anonymous, and consumed alcohol to the point of intoxication through at least 2001, continuing to consume approximately two six-packs of beer weekly. The January 1993 felony arrest occurred while he was "extremely intoxicated."

Despite the application of mitigating conditions related to his drug and alcohol use, the applicant's explanations for the omissions on his application were deemed not credible. The falsification of the application, particularly the omission of the felony arrest and denial of drug use while cleared, raised significant personal conduct concerns that ultimately led to the denial of his security clearance.

Why the Applicant Was Denied

The applicant falsified his security clearance application by omitting a felony arrest and denying drug use while holding a clearance.
The applicant's explanations for his omissions were not credible and did not mitigate the personal conduct concerns.

Conditions Referenced

Disqualifying

E2.A5.1.2.2appliedDeliberate Omission, Concealment, or Falsification of Relevant and Material Facts

Mitigating

E2.A8.1.3.1appliedThe Drug Involvement Was Not Recent
E2.A8.1.3.2appliedThe Drug Involvement Was an Isolated or Aberrational Event
E2.A8.1.3.3appliedA Demonstrated Intent Not to Abuse Any Drugs in the Future
E2.A7.1.3.1appliedThe Alcohol-related Incidents Do Not Indicate a Pattern
E2.A7.1.3.2appliedThe Problem Occurred a Number of Years Ago and There Is No Indication of a Recent Problem
E2.A7.1.3.3appliedPositive Changes in Behavior Supportive of Sobriety

Key Rule Quoted

“[N]o one has a 'right' to a security clearance.”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedOct 15, 2003
Answer filedNov 14, 2003
Hearing heldJan 20, 2004
Decision dateDec 22, 2004

Cite For

Falsification of Security Clearance Applications Under Guideline E
Mitigating Factors for Drug Involvement Under Guideline H
Mitigating Factors for Alcohol Consumption Under Guideline G

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

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a	The applicant falsified his security clearance application by failing to list felony offenses, whether charged or convicted, when in fact he had been arrested in January 1993 for aggravated assault.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Criminal Conduct	Admitted	(b) deliberately providing false information to an investigator or official	—	—
3.b	The applicant falsified his security clearance application by denying he had used illegal drugs while possessing a security clearance, when in fact he had tested positive in February 1995 for MDMA while in the Marine Corps holding a secret clearance.	For Applicant	Falsification Security FormNOT DELIBERATE	Drug Involvement	Denied	—	—	—
3.c	The applicant falsified his security clearance application by denying in the last seven years his use of alcohol resulted in any alcohol-related treatment or counseling, when in fact he had received counseling while in the Marine Corps from February 1995 to June 1995.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	—	Denied	(b) deliberately providing false information to an investigator or official	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

3.a

The applicant falsified his security clearance application by failing to list felony offenses, whether charged or convicted, when in fact he had been arrested in January 1993 for aggravated assault.

Against Applicant

Omission or Failure to DiscloseFOUND DELIBERATE

Criminal Conduct

Admitted

(b) deliberately providing false information to an investigator or official

—

3.b

The applicant falsified his security clearance application by denying he had used illegal drugs while possessing a security clearance, when in fact he had tested positive in February 1995 for MDMA while in the Marine Corps holding a secret clearance.

For Applicant

Falsification Security FormNOT DELIBERATE

Drug Involvement

Denied

—

3.c

The applicant falsified his security clearance application by denying in the last seven years his use of alcohol resulted in any alcohol-related treatment or counseling, when in fact he had received counseling while in the Marine Corps from February 1995 to June 1995.

Against Applicant

Omission or Failure to DiscloseFOUND DELIBERATE

—

Denied

(b) deliberately providing false information to an investigator or official

—

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
2.a	Applicant received counseling for drugs and alcohol as referenced in ¶ 1.c.	For Applicant	Treatment Non Compliance	Denied	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—
2.b	Applicant attended Alcoholics Anonymous due to his belief that he might have a drinking problem	For Applicant	Alcohol Use Disorder Diagnosed	Admitted	—	—	—
2.c	Applicant consumed alcohol to the point of intoxication through at least 2001	For Applicant	Binge or Intoxication Pattern	Admitted	(b) alcohol-related incident at work	—	—
2.d	Applicant continues to consume approximately two six-packs of beer each week	For Applicant	Binge or Intoxication Pattern	Admitted	(b) alcohol-related incident at work	—	—
2.e	Applicant was arrested in January 1993 for felony aggravated assault while "extremely intoxicated"	For Applicant	Alcohol Related Arrest	Admitted	(a) alcohol-related incident away from work (DUI, fighting, etc.)	—	—

Allegation

Finding

Incident

Response

Disqualifying (¶22)

Mitigating applied (¶23)

Mitigation

2.a

Applicant received counseling for drugs and alcohol as referenced in ¶ 1.c.

For Applicant

Treatment Non Compliance

Denied

(a) alcohol-related incident away from work (DUI, fighting, etc.)

—

2.b

Applicant attended Alcoholics Anonymous due to his belief that he might have a drinking problem

For Applicant

Alcohol Use Disorder Diagnosed

Admitted

—

2.c

Applicant consumed alcohol to the point of intoxication through at least 2001

For Applicant

Binge or Intoxication Pattern

Admitted

(b) alcohol-related incident at work

—

2.d

Applicant continues to consume approximately two six-packs of beer each week

For Applicant

Binge or Intoxication Pattern

Admitted

(b) alcohol-related incident at work

—

2.e

Applicant was arrested in January 1993 for felony aggravated assault while "extremely intoxicated"

For Applicant

Alcohol Related Arrest

Admitted

(a) alcohol-related incident away from work (DUI, fighting, etc.)

—

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The applicant used MDMA in approximately February 1995, while holding a security clearance in the Marine Corps.	For Applicant	MDMAWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse	(b) acknowledges involvement; evidence of action; established abstinence (c) prescription abuse followed a prolonged illness and has since ended (d) satisfactory completion of treatment with a favorable prognosis	—
1.b	The applicant was discharged from the Marine Corps in August 1995 under other than honorable conditions for misconduct due to drug abuse.	For Applicant	Unspecified Drug InvolvementWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse	(b) acknowledges involvement; evidence of action; established abstinence (c) prescription abuse followed a prolonged illness and has since ended (d) satisfactory completion of treatment with a favorable prognosis	—
1.c	The applicant received counseling for drugs and alcohol from approximately February 1995 to June 1995 through the Marine Corps due to using MDMA.	For Applicant	Unspecified Drug InvolvementWHILE CLEARED	Not Applicable	Denied	—	(b) acknowledges involvement; evidence of action; established abstinence (c) prescription abuse followed a prolonged illness and has since ended (d) satisfactory completion of treatment with a favorable prognosis	—

Allegation

Finding

Substance / event

Use level

Response

Disqualifying (¶25)

Mitigating applied (¶26)

Mitigation

1.a

The applicant used MDMA in approximately February 1995, while holding a security clearance in the Marine Corps.

For Applicant

MDMAWHILE CLEARED

Not Applicable

Admitted

(a) any substance misuse

(b) acknowledges involvement; evidence of action; established abstinence

(c) prescription abuse followed a prolonged illness and has since ended

(d) satisfactory completion of treatment with a favorable prognosis

—

1.b

The applicant was discharged from the Marine Corps in August 1995 under other than honorable conditions for misconduct due to drug abuse.

For Applicant

Unspecified Drug InvolvementWHILE CLEARED

Not Applicable

Admitted

(a) any substance misuse

(b) acknowledges involvement; evidence of action; established abstinence

(c) prescription abuse followed a prolonged illness and has since ended

(d) satisfactory completion of treatment with a favorable prognosis

—

1.c

The applicant received counseling for drugs and alcohol from approximately February 1995 to June 1995 through the Marine Corps due to using MDMA.

For Applicant

Unspecified Drug InvolvementWHILE CLEARED

Not Applicable

Denied

—

(b) acknowledges involvement; evidence of action; established abstinence

(c) prescription abuse followed a prolonged illness and has since ended

(d) satisfactory completion of treatment with a favorable prognosis

—

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Case Profile

Summary

Why the Applicant Was Denied

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES