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ISCR Case 02-22292.h1 — CASE

ISCR Case 02-22292.h1denied

Case Headnote

ISCR Case No. 02-22292.h1

deniedMay 8, 2003· Hon. Richard A. Cefola· hearing

Summary

A 49-year-old defense contractor was denied a security clearance under Guideline E (Personal Conduct) due to a lack of candor regarding past drug use. The applicant failed to disclose a history of marijuana use on his May 1999 Security Clearance Application (SCA). Specifically, he did not list a 1980 charge for Suspected Possession of a Controlled Substance (marijuana) when answering question 24, nor did he disclose any past marijuana abuse when answering question 27 on the same SCA.

The judge determined that these omissions were deliberate and that the applicant was not truthful about his past drug abuse. This raised disqualifying conditions under Guideline E2.A2.2.

Ultimately, the applicant did not provide sufficient evidence to mitigate the security concerns stemming from his personal conduct, failing to meet the burden of persuasion. Consequently, his security clearance was denied.

Why the Applicant Was Denied

The Applicant was not truthful about his past drug abuse on his Security Clearance Application.
He failed to disclose a history of marijuana use, which was deemed a deliberate omission.
The Applicant did not provide sufficient evidence to mitigate the security concerns.

Conditions Referenced

Disqualifying

E2.A2.2raisedDeliberate Omission, Concealment, or Falsification of Relevant and Material Facts From Any Personnel Security Questionnaire

Key Rule Quoted

“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.”

Procedural Posture

SOR issuedOct 7, 2002
Answer filedNov 6, 2002
Decision dateMay 8, 2003

Cite For

Lack of Candor Regarding Past Drug Use Under Guideline E
Deliberate Omission of Relevant Facts in Security Clearance Applications
Burden of Persuasion on the Applicant to Mitigate Security Concerns

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 was not truthful regarding his past drug abuse on his May 1999 Security Clearance Application. The applicant failed to disclose a 1980 charge for possession of marijuana and was found to have knowingly omitted his marijuana use from the application. Consequently, the judge ruled against the applicant on these personal conduct concerns, leading to the denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	In answering question 24 on his May 1999 SCA, the Applicant failed to list a 1980 charge for Suspected Possession of a Controlled Substance (marijuana).	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	Criminal Conduct	Denied	—	—	—
1.b	In answering question 27 on the same May 1999 SCA, the Applicant knowingly and wilfully failed to disclose any of his past marijuana abuse.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	Denied	(b) deliberately providing false information to an investigator or official	—	—

Descriptive standardized rendering of a decided public case (Guideline E). 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: May 8, 2003

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 02-22292

DECISION OF ADMINISTRATIVE JUDGE

RICHARD A. CEFOLA

SYNOPSIS

The Applicant was less than candid as to his past drug abuse on his May 1999 Security Clearance Application (SCA). He said "No" as to past drug use, when in fact he had used marijuana on an at times weekly basis during the period May 1992~August 1994. Clearance is denied.

STATEMENT OF CASE

On October 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 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 November 6, 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 February 27, 2003. 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 March 4, 2003, and submitted nothing in reply. The case was received by the undersigned for resolution on April 16, 2003. The issue raised here is whether the Applicant's personal conduct militates against the granting of a security clearance. [The Applicant denies the wilful falsification aspect of the allegations.]

FINDINGS OF FACT

The following Findings of Fact are based on Applicant's Answer to the SOR, and the File of Relevant Material. The Applicant is 49 years of age, and is employed by a defense contractor who seeks a security clearance on behalf of the Applicant. Guideline E - Personal Conduct

1.a. In answering question 24 on his May 1999 SCA, the Applicant failed to list a 1980 charge for Suspected Possession of a Controlled Substance (marijuana) (Government Exhibit (GX) 4 at page 7). He did, however, list a 1993 charge for "DUI" (id). The Applicant avers, credibly, that "I had the phrase 'The Last 7 Years' stuck in my brain and that is how I answered" (GX 3 at page 1). This is believable, and I find no wilful falsification here. This subparagraph is found for the Applicant.

1.b. In answering question 27 on the same May 1999 SCA, the Applicant knowingly and wilfully failed to disclose any of his past marijuana abuse (GX 4 at page 7). The Applicant "had used marijuana for approx(sic) 20 year(sic) ages 21–41 on a monthly, sometimes weekly basis" (GX 5 at page 1). He avers that he "simply forgot" (GX 3 at page 1). This is simply not believable. In answer to the prior question, he avers he had the last seven years stuck in his brain (id). Question 27 asks about drug usage, to include marijuana, "in the last 7 years." If the Applicant did, in fact, have seven years stuck in his brain, he clearly should have divulged that last two years of his weekly to monthly marijuana abuse. This subparagraph is found against the Applicant.

Mitigation

The Applicant offers little in the way of mitigation.

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:

Personal Conduct

Condition that could raise a security concern:

(2) The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire . . . or similar form . . . ;

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 E (personal conduct), 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.

Personal conduct is conduct involving questionable judgement, untrustworthiness, unreliability, or unwillingness to comply with rules and regulations. 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

The Applicant was not truthful as to his past drug abuse when he filled out his SCA in May of 1999. The second disqualifying condition under Personal Conduct is therefore applicable. It was only more than three years later, when the Applicant executed a sworn statement in October of 2002, that his past drug abuse was divulged. This is clearly not a prompt, good faith effort to correct his falsification; and as such, the third mitigating condition does not apply. The Applicant's lack of candor is clearly of security significance; and as such, Guideline E is found against the Applicant.

Considering all the evidence, the Applicant has not rebutted the Government's case regarding his personal conduct. The Applicant has thus not met the mitigating conditions of Guideline E, and of Section E.2.2. of the Directive. Accordingly, he has not met his ultimate burden of persuasion under Guideline E.

FORMAL FINDINGS

Formal Findings required by paragraph 25 of Enclosure 3 of the Directive are:

Paragraph 1: AGAINST THE APPLICANT

a. For the Applicant.

b. 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

02-22292.h1 FOR GOVERNMENT Kathryn D. MacKinnon, Esquire, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-22292.h1.html[6/24/2021 11:03:41 AM] 02-22292.h1