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ISCR Case 02-03171.h1 — CASE

ISCR Case 02-03171.h1denied

Case Headnote

ISCR Case No. 02-03171.h1

deniedApr 13, 2004· Hon. Joseph Testan· hearing

Summary

A 32-year-old computer operator was denied a security clearance under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The denial stemmed from the applicant intentionally providing false information regarding illegal drug use and a prior conviction resulting in a sentence of more than one year of incarceration.

Specifically, the applicant falsely stated "no" to illegal drug use on a March 1999 Security Clearance Application and during multiple interviews with a Defense Security Service Special Agent in late 2001, despite knowing these statements were untrue. Additionally, the applicant had a history of arrests and convictions, including multiple DUIs, petty theft, and public disturbance charges between 1991 and 1997. One DUI conviction resulted in a suspended sentence of 580 days of incarceration, a fine, and five years of probation. The applicant also tested positive for methamphetamine and marijuana.

Although the applicant had not been arrested since September 1997 and claimed to have successfully completed a rehabilitation program, no reasonable explanation was provided for the dishonest conduct. The judge found no mitigating factors, concluding that granting a security clearance was not consistent with national interest.

Why the Applicant Was Denied

Applicant intentionally provided false material information about illegal drug use to a DSS Special Agent.
Applicant's conviction for DUI resulted in a sentence of more than one year of incarceration, disqualifying him under 10 U.S.C. 986.
No reasonable explanation was provided for the applicant's dishonest conduct.

Conditions Referenced

Disqualifying

E2.A5.1.2.3raisedCriminal Conduct
J1raisedCriminal Conduct

Key Rule Quoted

“It is not clearly consistent with the national interest to grant or continue a security clearance for applicant.”

Procedural Posture

SOR issuedAug 26, 2003
Answer filedNov 14, 2003Response to SOR was made prior to this date.
Hearing heldMar 18, 2004
Decision dateApr 13, 2004

Cite For

Intentional Falsification of Information Under Guideline E
Disqualification Due to Criminal Conduct Under Guideline J
Impact of Prior Convictions on Security Clearance Eligibility

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 intentionally provided false information regarding his illegal drug use during interviews with a DSS Special Agent, which adversely affected his judgment and trustworthiness. The applicant's conduct was found against him under Guideline E, leading to the denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant completed a Security Clearance Application (SCA) in March 1999. On said application, applicant was asked if he had "illegally used a controlled substance..." during the previous seven years. Applicant responded "no."	For Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	Denied	—	—	—
1.b	Applicant was interviewed by a Special Agent of the Defense Security Service (DSS) on several occasions in late 2001. During one or more of these interviews, applicant told the agent that he had not used illegal drugs. Applicant knew that this was not true.	Against Applicant	Lack of Candor in InterviewFOUND DELIBERATE	Drug Involvement	Denied	(e) personal conduct or concealment creating vulnerability to exploitation	—	—
2.a	In September 1997, applicant was arrested and charged with Public Intoxication. In April 1996, applicant was arrested and charged with Driving Under the Influence with a Blood Alcohol Content of .08% or more and Driving on a Suspended License. He pleaded no contest to both charges and was sentenced to 580 days of incarceration (suspended), fined $2,547.35, and placed on probation for five years.	Against Applicant	Questionable Judgment General	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
2.b	In December 1995, applicant was arrested and charged with Petty Theft. In September 1995, applicant was charged with Driving on a Suspended License. He was found guilty. In January 1995, applicant was arrested and charged with (1) Fight and (2) Challenge to Fight in a Public Place. He was convicted of the charges and sentenced to 15 days in jail. In 1994, applicant was arrested and charged with Driving Under the Influence (DUI). He was found guilty and placed on probation. In August 1993, applicant was arrested and charged with DUI. In April 1993, applicant was arrested and charged with Shoplifting. In 1991, applicant was arrested and charged with DUI.	Against Applicant	Questionable Judgment General	Criminal Conduct	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
2.c	Applicant has not been arrested since September 1997. Since participating and successfully completing some type of alcohol and/or drug rehabilitation program seven or eight years ago, he has not abused alcohol or drugs.	Against Applicant	Unspecified Personal Conduct	—	Denied	—	—	—
2.d	specific text not stated in this decision	Unknown	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

Bond Amendment: the decision notes incarceration over one year or a dishonorable discharge — a statutory bar to SCI / Special Access / Restricted Data eligibility absent a waiver.

The judge found against the applicant on all allegations under Guideline J, except for the portion of subparagraph 2d regarding a positive drug test. The applicant's conviction for DUI and the associated sentence of more than one year of incarceration disqualified him from receiving a security clearance, leading to a denial of his application.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a–2.c	5 sub-charges — specific text not stated in this decision (4 against, 1 for the applicant).	Mixed		—		—	—	—
2.d	Applicant tested positive for methamphetamine and marijuana	Against Applicant	Drug Related Criminal Charge	Conduct No Charge	Unknown	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
2.e	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: April 13, 2004 In Re: -------------------- SSN: ----------- Applicant for Security Clearance ISCR Case No. 02-03171 DECISION OF ADMINISTRATIVE JUDGE JOSEPH TESTAN

SYNOPSIS Applicant's conviction and sentence of more than one year of incarceration disqualifies him from receiving a security clearance under 10 U.S.C. 986. Clearance is denied.

STATEMENT OF CASE

On August 26, 2003, 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 an unknown date prior to October 8, 2003, and again on November 14, 2003. The case was assigned to the undersigned on January 16, 2004. A Notice of Hearing was issued on February 27, 2004, and the hearing was held on March 18, 2004. The transcript was received on April 6, 2004.

FINDINGS OF FACT

Applicant is a 32 year old computer operator. Applicant completed a Security Clearance Application (SCA) in March 1999 (Exhibit 1). On said application, applicant was asked if he had "illegally used a controlled substance, for example, marijuana, cocaine, crack cocaine, hashish, narcotics (opium, morphine, codeine, heroin, etc.), amphetamines, depressants (barbiturates, methaqualone, tranquilizers, etc.), hallucinogenics (LSD, PCP, etc.), or prescription drugs" during the previous seven years. Applicant responded "no." Although applicant has a history of illegal drug use, the evidence does not support a finding that he used any illegal drugs during the seven years prior to arch 1999. (1) Accordingly, this allegation is found for applicant. Applicant was interviewed by a Special Agent of the Defense Security Service (DSS) on several occasions in late 2001. During one or more of these interviews, applicant told the agent that he had not used illegal drugs (TR at 24-25). Applicant knew that this was not true. (2) In fact, applicant had used LSD, cocaine, methamphetamine, and marijuana. He doesn't know why he lied to the agent (TR at 45). In September 1997, applicant was arrested and charged with Public Intoxication. In April 1996, applicant was arrested and charged with Driving Under the Influence with a Blood Alcohol Content of .08% or more and Driving on a Suspended License. He pleaded no contest to both charges and was sentenced to 580 days of incarceration (suspended), fined $2,547.35, and placed on probation for five years. In December 1995, applicant was arrested and charged with Petty Theft. In September 1995, applicant was charged with Driving on a Suspended License. He was found guilty. In January 1995, applicant was arrested and charged with (1) Fight and (2) Challenge to Fight in a Public Place. He was convicted of the charges and sentenced to 15 days in jail. In 1994, applicant was arrested and charged with Driving Under the Influence (DUI). He was found guilty and placed on probation. In August 1993, applicant was arrested and charged with DUI. In April 1993, applicant was arrested and charged with Shoplifting. In 1991, applicant was arrested and charged with DUI. Applicant has not been arrested since September 1997. Since participating and successfully completing some type of alcohol and/or drug rehabilitation program seven or eight years ago, he has not abused alcohol or drugs. (3)

CONCLUSION

With respect to Guideline E, the evidence establishes that in late 2001, applicant intentionally provided false material information about his illegal drug use to a DSS Special Agent. This conduct reflects adversely on applicant's judgment, reliability and trustworthiness. It also requires application of Disqualifying Condition E2.A5.1.2.3. Having been offered (1) no reasonable explanation for this dishonest conduct, (2) no evidence which would qualify applicant for any of the formal Mitigating Conditions, and (3) little or no evidence from which I can conclude applicant can now be relied upon to be truthful with the Government, Guideline E is found against him. With respect to Guideline J, the evidence establishes that in 1996, applicant was convicted of DUI and sentenced to 580 days of incarceration, all of which was suspended. On a common sense basis, given applicant's many years of clean and sober living, this incident has little current security significance. Nevertheless, I am constrained to follow the law, and given applicant's sentence of more than one year of incarceration, this incident disqualifies him from receiving a security clearance under 10 U.S.C. 986. (4) Accordingly, Guideline J is found against applicant.

FORMAL FINDINGS

PARAGRAPH 1: AGAINST THE APPLICANT Subparagraph 1a: For the Applicant Subparagraph 1b: Against the Applicant PARAGRAPH 2: AGAINST THE APPLICANT All subparagraphs found against applicant except for that portion of subparagraph 2dwhich alleges applicant tested positive for methamphetamine and marijuana.

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 1. Exhibits 14 and 15, which refer to a positive urinalysis, do not, standing alone, constitute credible proof that applicant used illegal drugs during this time period. 2. Applicant's intentional falsification constitutes criminal conduct under 18 U.S.C. 1001. 3. Applicant was unable or willing to provide much information about this program. See, TR at 41-44. 4. See, Footnote 1 of Disqualifying Condition cof the Criminal Conduct guideline.

FOOTNOTES

02-03171.h1 FOR GOVERNMENT Jennifer I. Campbell, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-03171.h1.html[6/24/2021 10:48:06 AM] 02-03171.h1