ISCR Case 02-24342.h1

Case Headnote

ISCR Case No. 02-24342.h1

deniedMay 11, 2004· Hon. Roger C. Wesley· hearing

Summary

A 48-year-old launch service mechanic for a defense contractor was denied a security clearance due to a long history of drug abuse, primarily marijuana, and repeated omissions of drug-related activities on his security clearance applications. The denial was based on Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct).

The applicant used marijuana from approximately 1970 to at least November 2002, including periods while holding security clearances in the Navy and with his current employer. He failed random drug tests in July 1998, September 2002, and November 2002, all positive for marijuana. He also received substance abuse counseling in 1998 and again in 2002. Furthermore, the applicant was arrested in September 1995 for child abuse, with charges later dropped, and in March 2001 for battery, resulting in court-ordered classes.

The applicant repeatedly falsified or omitted information on his security clearance forms and in sworn statements. This included understating or omitting drug use and purchases on SF-86 forms in 1985, 1989, and 2000, and omitting his 1998 substance abuse counseling and 1995 child abuse charges. He also continued marijuana use despite promises to cease in January and April 2002 sworn statements. The judge found the applicant's ongoing drug use and lack of credible mitigation warranted the denial.

Why the Applicant Was Denied

The applicant has a long history of drug abuse, primarily marijuana, much of which occurred while holding a security clearance.
The applicant continues to use marijuana, which is a violation of the Smith Amendment (10 U.S.C. Sec. 986).
The applicant made repeated omissions and understatements of his drug activity in his SF-86 forms and DSS interviews, which were not mitigated.

Conditions Referenced

Disqualifying

DC 1raisedAny Drug Use.
DC 2raisedIllegal Drug Possession, Including Cultivation, Processing, Manufacture, Purchase, Sale, or Distribution.
DC 2raisedThe Deliberate Omission, Concealment, Falsification or Misrepresentation of Relevant and Material Facts.
DC 1raisedAllegations or Admissions of Criminal Conduct, Regardless of Whether the Person Was Formally Charged.

Key Rule Quoted

“Under the Smith Amendment (10 U.S.C. Sec. 986), the Department of Defense may not grant or renew a security clearance for a defense contractor official or employee that falls under any of four statutory categories.”

Procedural Posture

SOR issuedNov 17, 2003
Answer filedDec 15, 2003
Hearing heldMar 5, 2004
Decision dateMay 11, 2004

Cite For

Mandatory Preclusion From Holding a Security Clearance Under the Smith Amendment Due to Drug Use
Disqualifying Conditions Related to Drug Involvement and Personal Conduct
The Impact of Ongoing Drug Use 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
2.a	used marijuana while holding a security clearance in the Navy (from 1975 to 1979), and after receiving a security clearance from his current employer in 1986 (using it to at least November 2002)	Against Applicant	Questionable Judgment General	—	Denied	—	—	—
2.b	omitted his use and purchase of drugs other than marijuana (which he understated) when completing a signed, sworn statement in October 1985	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Other	Denied	(b) deliberately providing false information to an investigator or official	—	—
2.c	falsified his SF-86 of August 1989 by omitting his use and purchases of other drugs besides marijuana (which he understated)	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	Denied	(b) deliberately providing false information to an investigator or official	—	—
2.d	falsified his SF-86 of August 2000 by omitting his 1998 substance abuse counseling	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	Denied	(b) deliberately providing false information to an investigator or official	—	—
2.e	falsified his SF-86 of July 2000 by omitting his 1995 child abuse charges	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	Denied	(b) deliberately providing false information to an investigator or official	—	—
2.f	omitted his continued marijuana use after December 1999 after stating in a signed, sworn statement of January 2002 that he had not	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Other	Denied	(b) deliberately providing false information to an investigator or official	—	—
2.g	continued to use marijuana despite promises made in his January 2002 signed, sworn statement that he would not use any illegal drugs in the future	Against Applicant	Questionable Judgment General	—	Denied	—	—	—
2.h	continued to use marijuana to at least November 2002 after assuring otherwise in a signed, sworn statement of April 2002	Against Applicant	Questionable Judgment General	—	Denied	—	—	—
2.i–2.j	2 sub-charges — specific text not stated in this decision (rulings shown). (low confidence)	Mixed		—		—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

2.a

used marijuana while holding a security clearance in the Navy (from 1975 to 1979), and after receiving a security clearance from his current employer in 1986 (using it to at least November 2002)

Against Applicant

Questionable Judgment General

—

Denied

—

2.b

omitted his use and purchase of drugs other than marijuana (which he understated) when completing a signed, sworn statement in October 1985

Against Applicant

Omission or Failure to DiscloseFOUND DELIBERATE

Other

Denied

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

—

2.c

falsified his SF-86 of August 1989 by omitting his use and purchases of other drugs besides marijuana (which he understated)

Against Applicant

Falsification Security FormFOUND DELIBERATE

Other

Denied

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

—

2.d

falsified his SF-86 of August 2000 by omitting his 1998 substance abuse counseling

Against Applicant

Falsification Security FormFOUND DELIBERATE

Other

Denied

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

—

2.e

falsified his SF-86 of July 2000 by omitting his 1995 child abuse charges

Against Applicant

Falsification Security FormFOUND DELIBERATE

Other

Denied

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

—

2.f

omitted his continued marijuana use after December 1999 after stating in a signed, sworn statement of January 2002 that he had not

Against Applicant

Omission or Failure to DiscloseFOUND DELIBERATE

Other

Denied

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

—

2.g

continued to use marijuana despite promises made in his January 2002 signed, sworn statement that he would not use any illegal drugs in the future

Against Applicant

Questionable Judgment General

—

Denied

—

2.h

continued to use marijuana to at least November 2002 after assuring otherwise in a signed, sworn statement of April 2002

Against Applicant

Questionable Judgment General

—

Denied

—

2.i–2.j

2 sub-charges — specific text not stated in this decision (rulings shown). (low confidence)

Mixed

—

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	used and purchased marijuana, with varying frequency, from about 1970 to at least November 2002	Against Applicant	MarijuanaWHILE CLEARED	Regular	Admitted	—	—	—
1.b	failed a random drug screening test in July 1998 (testing positive for marijuana)	Against Applicant	Drug Test FailureWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse	—	—
1.c	received counseling from his employee's assistance program for substance abuse from August 1998 to September 1998, and again from February 2002 to at least April 2002	Against Applicant	Treatment FailureWHILE CLEARED	Not Applicable	Admitted	(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.d	was randomly selected for company drug tests in September 2002, and again in November 2002, wherein he produced positive test results on each testing occasion	Against Applicant	Drug Test FailureWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse	—	—
1.e	continued to use marijuana despite promises made in his January 2002 signed, sworn statement that he would not use any illegal drugs in the future	Against Applicant	Stated Intent to Use AgainWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse	—	—
1.f	continued to use marijuana to at least November 2002 after assuring otherwise in a signed, sworn statement of April 2002	Against Applicant	Stated Intent to Use AgainWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse	—	—

Allegation

Finding

Substance / event

Use level

Response

Disqualifying (¶25)

Mitigating applied (¶26)

Mitigation

1.a

used and purchased marijuana, with varying frequency, from about 1970 to at least November 2002

Against Applicant

MarijuanaWHILE CLEARED

Regular

Admitted

—

1.b

failed a random drug screening test in July 1998 (testing positive for marijuana)

Against Applicant

Drug Test FailureWHILE CLEARED

Not Applicable

Admitted

(a) any substance misuse

—

1.c

received counseling from his employee's assistance program for substance abuse from August 1998 to September 1998, and again from February 2002 to at least April 2002

Against Applicant

Treatment FailureWHILE CLEARED

Not Applicable

Admitted

(c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia

—

1.d

was randomly selected for company drug tests in September 2002, and again in November 2002, wherein he produced positive test results on each testing occasion

Against Applicant

Drug Test FailureWHILE CLEARED

Not Applicable

Admitted

(a) any substance misuse

—

1.e

continued to use marijuana despite promises made in his January 2002 signed, sworn statement that he would not use any illegal drugs in the future

Against Applicant

Stated Intent to Use AgainWHILE CLEARED

Not Applicable

Admitted

(a) any substance misuse

—

1.f

continued to use marijuana to at least November 2002 after assuring otherwise in a signed, sworn statement of April 2002

Against Applicant

Stated Intent to Use AgainWHILE CLEARED

Not Applicable

Admitted

(a) any substance misuse

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	Was arrested in September 1995 and charged with cruelty towards child abuse (felony), after which he was released on his own cognizance and the charges were dropped.	For Applicant	Assault or Battery	Dismissed or Nolle Prossed	Admitted	—	—	—
3.b	Was arrested in March 2001 and charged with battery (misdemeanor 1st degree) for which he was ordered to attend parenting, anger management, and counseling classes.	For Applicant	Assault or Battery	Dismissed or Nolle Prossed	Admitted	—	(b) pressured/coerced and unlikely to recur absent that pressure	Documented Rehabilitation Evidence
3.c	specific text not stated in this decision	Against Applicant	Unspecified Criminal Conduct	—	Unknown	—	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

3.a

Was arrested in September 1995 and charged with cruelty towards child abuse (felony), after which he was released on his own cognizance and the charges were dropped.

For Applicant

Assault or Battery

Dismissed or Nolle Prossed

Admitted

—

3.b

Was arrested in March 2001 and charged with battery (misdemeanor 1st degree) for which he was ordered to attend parenting, anger management, and counseling classes.

For Applicant

Assault or Battery

Dismissed or Nolle Prossed

Admitted

—

(b) pressured/coerced and unlikely to recur absent that pressure

Documented

Rehabilitation Evidence

3.c

specific text not stated in this decision

Against Applicant

Unspecified Criminal Conduct

—

Unknown

—

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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

SYNOPSIS

APPEARANCES

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES