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ISCR Case 02-23883.h1 — CASE

ISCR Case 02-23883.h1denied

Case Headnote

ISCR Case No. 02-23883.h1

deniedMar 9, 2004· Hon. James A. Young· hearing

Summary

A 45-year-old assembly technician for a defense contractor was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement), despite having previously held a clearance. The Statement of Reasons detailed a history of marijuana use spanning from 1976 until at least 2002.

Specifically, the applicant admitted to purchasing marijuana on at least 20 occasions between 1976 and 1994. Crucially, he used marijuana in 2000, 2001, and 2002 while holding a top secret security clearance. This occurred after he signed a statement on October 10, 1995, indicating no future intent to use drugs.

The denial was based on the applicant's admitted marijuana use while holding a clearance, which demonstrated a lack of reliability and questionable judgment. His failure to uphold a prior commitment to abstain from illegal drug use raised concerns about trustworthiness, and his drug use pattern indicated a potential vulnerability to coercion or exploitation.

Why the Applicant Was Denied

The applicant admitted to using marijuana while holding a top secret security clearance, demonstrating a lack of reliability and questionable judgment.
The applicant's prior commitment to abstain from illegal drug use was not upheld, raising concerns about his trustworthiness.
The applicant's drug use pattern indicated vulnerability to coercion or exploitation.

Conditions Referenced

Disqualifying

E2.A8.1.2.1raisedDrug Abuse
E2.A8.1.2.2raisedIllegal Possession of Drugs
E2.A5.1.2.4raisedVulnerability to Coercion
E2.A5.1.2.5raisedPattern of Rules Violations

Mitigating

E2.A8.1.3.1rejectedNot Recent Drug InvolvementThe applicant continued to use illegal drugs up until 2002 while holding a top secret clearance.

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 issuedSep 8, 2003
Answer filedSep 22, 2003Applicant elected to have the case decided on the written record.
Hearing held—No hearing; decided on written record.
Decision dateMar 9, 2004

Cite For

Denial of Security Clearance Due to Drug Involvement While Holding a Clearance
Impact of Personal Conduct on Security Clearance Eligibility
Failure to Mitigate Security Concerns Related to Illegal Drug Use

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 against the applicant on the personal conduct allegation under Guideline E, determining that the applicant used marijuana while holding a top secret security clearance. The applicant failed to mitigate the concerns regarding his reliability and questionable judgment, leading to the denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant used marijuana in 2000, 2001, and 2002 while holding a top secret security clearance.	Against Applicant	Questionable Judgment General	—	Denied	(b) deliberately providing false information to an investigator or official (d) pattern of dishonesty, rule violations, or other untrustworthy behavior	—	—

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

Posture: Decision on RecordDecided: denied

The judge found that the applicant used marijuana on an occasional basis from 1976 to 1994 and cocaine from 1980 to 1987. The applicant admitted to using marijuana five times between July 2000 and January 2002 while holding a security clearance. The judge concluded that the applicant failed to mitigate the drug involvement concerns, resulting in a denial of the security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana from 1976 until at least 2002	Against Applicant	MarijuanaWHILE CLEARED	Occasional	Admitted	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.b	Applicant purchased marijuana on at least 20 occasions between 1976 and 1994	Against Applicant	Marijuana	Occasional	Admitted	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.c	Applicant used marijuana after signing a statement on 10 October 1995 that he had no future intentions to use drugs	Against Applicant	Marijuana	Occasional	Admitted	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.d	Applicant used marijuana in 2000, 2001, and 2002 while holding a top secret clearance	Against Applicant	MarijuanaWHILE CLEARED	Occasional	Admitted	(a) any substance misuse (b) testing positive for an illegal drug	—	—

Descriptive standardized rendering of a decided public case (Guideline H). 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: March 9, 2004

In re:

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

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

Applicant for Security Clearance

ISCR Case No. 02-23883

DECISION OF ADMINISTRATIVE JUDGE

JAMES A. YOUNG

SYNOPSIS

Applicant used marijuana on an occasional basis between 1976 and 1994 and cocaine on an occasional basis from 1980 to 1987. In October 1995, during an investigation of Applicant's suitability for a security clearance, he told a Department of Defense investigator that he had no future intention of using illegal drugs. He was granted a clearance. In 2001, during another investigation of Applicant's suitability for a security clearance, Applicant admitted using marijuana on five occasions between July 2000 and January 2002. Applicant failed to mitigate the drug involvement and personal conduct security concerns raised by his use of marijuana while possessing a security clearance. Clearance is denied.

STATEMENT OF CASE

The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. On 8 September 2003, DOHA issued a Statement of Reasons (SOR) (1) detailing the basis for its decision-security concerns raised under Guideline H (Drug Involvement) and Guideline E (Personal Conduct) of the Directive. Applicant answered the SOR in writing on 22 September 2003 and elected to have the case decided on the written record in lieu of a hearing. Department Counsel submitted the Government's written case on 22 January 2004. A complete copy of the file of relevant material (FORM) was provided to Applicant, and he was afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the disqualifying conditions. Applicant received the FORM on 9 February 2004 and responded on 20 February 2004. The case was assigned to me on 5 March 2004.

FINDINGS OF FACT

Applicant is a 45-year-old assembly technician for a defense contractor. He has been married since 1996.

In June 1995, Applicant completed a security clearance application (SCA) as part of the process to obtain a security clearance. Item 5. In response to question 32 about drug and alcohol use, Applicant asserted that he had never used marijuana. Id. at 6. In a signed, sworn statement he subsequently made to an agent of the Defense Investigative Service on 5 October 1995, Applicant admitted using marijuana from approximately 1976 until March 1994 "on an occasional basis." Item 6 at 1. He also admitted using cocaine on an occasional basis from 1980 until 1987. In a follow-up statement made five days later, Applicant stated that he had "no future intentions to use or otherwise involve myself with illegal drugs." Item 7 at 1. In January 1996, Applicant completed another signed, sworn statement in which he admitted purchasing $2,000 worth of cocaine on at least 3 occasions. He sold some of the cocaine to friends and acquaintances and used the rest himself. Item 9. Despite this drug history, Applicant was granted a top secret security clearance in 1996.

Applicant completed another SCA in February 2001. In answer to question 27 concerning any use of illegal drugs in the previous seven years, Applicant answered that he had used marijuana twice between July and September 2000. Item 4 at 6. Applicant answered "no" to question 28 concerning whether he had ever illegally used a controlled substance while possessing a security clearance. Id. In a signed, sworn statement given on 5 February 2002, Applicant admitted using marijuana five times between 7 July 2000 and about 12 January 2002. Item 9 at 2.

POLICIES

"[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has "the authority to . . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position . . . that will give that person access to such information." Id. at 527. The President has restricted eligibility for access to classified information to United States citizens "whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information." Exec. Or. 12968, Access to Classified Information § 3.1(b) (Aug. 4, 1995). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive.

Enclosure 2 of the Directive sets forth personal security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. The Directive presumes a nexus or rational connection between proven conduct under any of the disqualifying conditions listed in the guidelines and an applicant's security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002); see Directive ¶ E3.1.15. An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ISCR Case No. 01-20700 at 3.

CONCLUSION

Guideline H--Drug Involvement

In the SOR, DOHA alleged Applicant used marijuana from 1976 until at least 2002 (¶ 1.a.), purchased marijuana on at least 20 occasions between 1976 and 1994 (¶ 1.b.), used marijuana after signing a statement on 10 October 1995 that he had no future intentions to use drugs (¶ 1.c.), and used marijuana in 2000, 2001, and 2002 while holding a top secret clearance (¶ 1.d.). The improper or illegal involvement with drugs raises questions regarding an applicant's willingness or ability to protect classified information. Drug abuse or dependence may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information. Directive ¶ E2.A8.1.1. The Government established by Applicant's admissions that he abused a controlled substance (DC E2.A8.1.2.1.) by illegally using marijuana and he illegally possessed drugs (DC E2.A8.1.2.2.) by illegally purchasing marijuana. It is a mitigating condition that the drug involvement was not recent. See MC E2.A8.1.3.1. Although the purchases of marijuana and some of the uses of that controlled substance were not recent, I am unwilling to apply this mitigating condition. Knowing how seriously the Department of Defense viewed illegal drug use from the security clearance process and the fact he was subject to random drug testing, Applicant continued to use illegal drugs on a sporadic basis up until 2002 while holding a top secret clearance. I find against Applicant.

Guideline E--Personal Conduct

In the SOR, DOHA alleged Applicant used marijuana in 2000, 2001, and 2002 while holding a top secret security clearance . ¶ 2.a. Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonest, or unwillingness to comply with rules and regulations could indicate an applicant may not properly safeguard classified information. Directive ¶ E2.A5.1.1.

The Government established by Applicant's admissions that he used marijuana during 2000, 2001, and 2002 while holding a Top Secret security clearance. This is personal conduct that increases Applicant's vulnerability to coercion or exploitation (DC E2.A5.1.2.4) and represents a pattern of rules violations (DC E2.A5.1.2.5.). Applicant claims he has stopped using controlled substances and will not do so in the future. Answer. But he made a similar commitment in 1995 that he did not keep. Item 7 at 1. He was on notice of the seriousness with which the Government viewed illegal drug abuse. He was in a position that was subject to random drug testing. After considering all the circumstances, Applicant failed to demonstrate that he has sufficiently mitigated the security concerns raised by his unreliability and questionable judgment. I find against Applicant.

FORMAL FINDINGS

The following are my conclusions as to each allegation in the SOR:

Paragraph 1. Guideline H: AGAINST APPLICANT

Subparagraph 1.a.: Against Applicant

Subparagraph 1.b.: Against Applicant

Subparagraph 1.c.: Against Applicant

Subparagraph 1.d.: Against Applicant

Paragraph 2. Guideline E: AGAINST APPLICANT

Subparagraph 2.a.: Against Applicant

DECISION

In light of all 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 Applicant. Clearance is denied.

James A. Young

Administrative Judge

1. Pursuant to Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified.

FOOTNOTES

02-23883.h1 FOR GOVERNMENT Rita C. O'Brien, Esq., Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-23883.h1.html[6/24/2021 11:05:26 AM] 02-23883.h1