ISCR Case 02-23365.h1

Case Headnote

ISCR Case No. 02-23365.h1

deniedNov 5, 2003· Hon. Henry Lazzaro· hearing

Summary

A 26-year-old software engineer and Army Reserve Staff Sergeant was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline J (Criminal Conduct). The applicant had used marijuana on multiple occasions since high school, with the last instance occurring in January 2001 while vacationing in a country where it was legal. Crucially, he failed to disclose this marijuana use on his August 16, 2001, Questionnaire for National Security Positions (SF 86).

While his initial failure to disclose marijuana use upon enlisting in the Army in 1995, reportedly on a recruiter's advice, was considered a youthful indiscretion, his later omission on the SF 86 was deemed falsification. This conduct raised disqualifying conditions, specifically DC 2, DC 4, and DC 5.

Despite the application of mitigating conditions MC 3, MC 5, and MC 6, and positive character references, the judge found that the applicant's marijuana use while holding a security clearance constituted a breach of trust. His failure to disclose this use on the SF 86 further solidified the decision, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant used marijuana while possessing a security clearance, which was a breach of trust.
The applicant failed to disclose his marijuana use on the SF 86, constituting falsification.
The applicant's conduct raised significant security concerns that were not mitigated by his positive character references.

Conditions Referenced

Disqualifying

DC 2raisedDeliberate Omission, Concealment, or Falsification of Relevant and Material Facts
DC 4raisedPersonal Conduct or Concealment of Information That Increases Vulnerability to Coercion
DC 5raisedA Pattern of Dishonesty or Rule Violations

Mitigating

MC 5appliedThe Individual Has Taken Positive Steps to Significantly Reduce Vulnerability to Coercion
MC 3rejectedThe Individual Made Prompt, Good-faith Efforts to Correct the FalsificationThe applicant did not disclose all marijuana use until questioned at the hearing.
MC 6appliedThere Is Clear Evidence of Successful Rehabilitation

Key Rule Quoted

“No one has a right to a security clearance and "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials."”
— Egan, 484 U.S. at 531.

Procedural Posture

SOR issuedJun 10, 2003
Answer filedUndated
Hearing heldSep 5, 2003
Decision dateNov 5, 2003

Cite For

Security Concerns Related to Marijuana Use Under Guideline E
Falsification of Security Clearance Application Under Guideline J
Impact of Personal Conduct 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.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant has used marijuana on a number of occasions since his senior year in high school, the last use occurring in approximately January 2001, while he was vacationing in a foreign country where the use of marijuana is legal.	Against Applicant	Questionable Judgment General	—	Admitted	(b) deliberately providing false information to an investigator or official (d) pattern of dishonesty, rule violations, or other untrustworthy behavior (e) personal conduct or concealment creating vulnerability to exploitation	—	—
1.b	Applicant also failed to disclose his use of marijuana on a Questionnaire for National Security Positions (SF 86) he submitted on August 16, 2001.	For Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	Admitted	(a) deliberate omission, concealment, or falsification on a security form (b) deliberately providing false information to an investigator or official (d) pattern of dishonesty, rule violations, or other untrustworthy behavior	—	—
1.c	His failure to disclose the marijuana use when he first enlisted in the Army in 1995, on the advice of a recruiter, might be excused as a youthful indiscretion.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	Admitted	(b) deliberately providing false information to an investigator or official (d) pattern of dishonesty, rule violations, or other untrustworthy behavior (e) personal conduct or concealment creating vulnerability to exploitation	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

1.a

Applicant has used marijuana on a number of occasions since his senior year in high school, the last use occurring in approximately January 2001, while he was vacationing in a foreign country where the use of marijuana is legal.

Against Applicant

Questionable Judgment General

—

Admitted

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

(d) pattern of dishonesty, rule violations, or other untrustworthy behavior

(e) personal conduct or concealment creating vulnerability to exploitation

—

1.b

Applicant also failed to disclose his use of marijuana on a Questionnaire for National Security Positions (SF 86) he submitted on August 16, 2001.

For Applicant

Falsification Security FormFOUND DELIBERATE

Drug Involvement

Admitted

(a) deliberate omission, concealment, or falsification on a security form

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

(d) pattern of dishonesty, rule violations, or other untrustworthy behavior

—

1.c

His failure to disclose the marijuana use when he first enlisted in the Army in 1995, on the advice of a recruiter, might be excused as a youthful indiscretion.

Against Applicant

Omission or Failure to DiscloseFOUND DELIBERATE

Drug Involvement

Admitted

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

(d) pattern of dishonesty, rule violations, or other untrustworthy behavior

(e) personal conduct or concealment creating vulnerability to exploitation

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	The applicant falsified his SF 86 submitted on August 16, 2001, by failing to disclose his marijuana use.	For Applicant	Fraud or Deception Criminal	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	(c) no reliable evidence the individual committed the offense	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

2.a

The applicant falsified his SF 86 submitted on August 16, 2001, by failing to disclose his marijuana use.

For Applicant

Fraud or Deception Criminal

Conduct No Charge

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(c) no reliable evidence the individual committed the offense

—

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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