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ISCR 02-28811.h1: Guideline C security clearance hearing, denied (2005) · CASE

ISCR Case 02-28811.h1denied

Case headnote

ISCR Case No. 02-28811.h1

deniedApr 15, 2005· Hon. Joseph Testan· hearing

Summary

A 26-year-old defense contractor was denied a security clearance due to concerns under Guideline C (Foreign Preference) and Guideline H (Drug Involvement). The applicant obtained Canadian citizenship in 2002 on his mother's advice. While he credibly stated his loyalties lie entirely with the U.S., the primary disqualifying factor was his history of illegal drug use.

The applicant admitted to using marijuana with varying frequency from approximately 1995 to at least June 2002, and stated an intention to continue this use. He also used LSD from about 1996 to at least July 1998, and Ecstasy from approximately 1997 to at least July 2001.

The denial was based on the applicant's admitted pattern of drug abuse, his stated intention to continue using marijuana, which classified him as an unlawful user of a controlled substance, and the recency of his drug use. The judge found that these factors, particularly the unlawful drug use, disqualified him from receiving a security clearance.

Why the applicant was denied

The applicant admitted to using marijuana and other illegal drugs, demonstrating a pattern of drug abuse.
The applicant's stated intention to continue using marijuana classified him as an unlawful user of a controlled substance.
The recency of the applicant's drug use was a significant factor in the denial of the security clearance.

Conditions referenced

Disqualifying

E2.A8.1.2.1raisedAny Drug Abuse
E2.A8.1.2.2raisedIllegal Drug Possession . . . Purchase
E2.A3.1.2.1appliedThe Exercise of Dual Citizenship

Key rule quoted

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

Procedural posture

SOR issuedNov 5, 2003
Answer filedNov 26, 2003Applicant elected to have the case determined on a written record.
Hearing held—No hearing; case determined on written record.
Decision dateApr 15, 2005

Cite for

Disqualification Due to Unlawful Drug Use Under Guideline H
Impact of Dual Citizenship on Security Clearance Under Guideline C
Consideration of Recency of Drug Use in Clearance Decisions

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 26: “Applicant is a 26 year old employee of a defense contractor.”

Standardized Decision Profile

SEAD-4 Guideline C (Foreign Preference) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant acquired Canadian citizenship in 2002, which raised concerns under Guideline C regarding foreign preference. However, the judge found that the applicant's loyalties lie entirely with the U.S., and there was no evidence of a preference for Canada over the United States, leading to a favorable finding for the applicant under this guideline.

¶	Allegation	Finding	Type	Response	Disqualifying (¶10)	Mitigating applied (¶11)	Mitigation

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations under Guideline H due to his marijuana, LSD, and Ecstasy use, which he admitted occurred with varying frequency over several years. The applicant's stated intention to continue using marijuana was a significant factor in the decision to deny his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation

Descriptive standardized rendering of a decided public case. 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 15, 2005 In Re: -------------------- SSN: ----------- Applicant for Security Clearance ISCR Case No. 02-28782 DECISION OF ADMINISTRATIVE JUDGE JOSEPH TESTAN

SYNOPSIS Based on the recency of applicant's marijuana use, and his stated intention to continue using it, he is deemed "an unlawful user of . . . a controlled substance," and as such, is disqualified from receiving a DoD security clearance. Clearance is denied.

STATEMENT OF CASE

On November 5, 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 November 26, 2003, and elected to have his case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's written case (FORM) on or about November 9, 2004. Applicant did not file a response to the FORM. The case was assigned to me on December 17, 2004.

FINDINGS OF FACT

Applicant is a 26 year old employee of a defense contractor. Applicant admits without qualification all of the factual allegations under Guideline H. Accordingly, SOR Paragraphs 1a through 1gare incorporated by reference as Findings of Fact. Applicant admits without qualification both factual allegations under Guideline C. Accordingly, SOR Paragraphs 2a and 2bare incorporated by reference as Findings of Fact. With respect to Guideline E, applicant denies that he intentionally provided false, material information to the Government in response to Question 26 on a Security Clearance Application (SCA) he executed on March 15, 2001. Because the copy of the executed SCA in question provided in the FORM (Exhibit 4) did not have a Question 26, this allegation, and Guideline E, are found for applicant.

CONCLUSION

With respect to Guideline H, the evidence establishes that applicant (1) used marijuana with varying frequency from about 1995 to at least June 2002, and that he intends to continue using it, (2) used LSD with varying frequency from about 1996 to at least July 1998, and (3) used Ecstacy with varying frequency from approximately 1997 to at least July 2001. The evidence further establishes that applicant purchased all three drugs. This conduct reflects adversely on his judgment and reliability, and requires application of Disqualifying Conditions E2.A.8.1.2.1 (any drug abuse) and E2.A8.1.2.2 (illegal drug possession . . . purchase). In addition, given the recency of applicant's marijuana use and his stated intention to continue using it, he is deemed to be "an unlawful user of . . . a controlled substance," and as such, is disqualified from receiving a DoD security clearance pursuant to 10 U.S.C. 986. Accordingly, Guideline H is found against applicant. With respect to Guideline C, applicant was born and raised in the United States, In 2002, on the advice of his mother, he obtained Canadian citizenship. He applied for Canadian citizenship in part because he considered moving and working there. Disqualifying Condition E2.A3.1.2.1 (the exercise of dual citizenship) applies. Despite applicant's Canadian citizenship, he makes the credible statement that his "loyalties lie entirely with the U.S." (Exhibit 6). Notwithstanding his newly acquired Canadian citizenship, the evidence does not establish applicant has a preference for Canada over the United States. For this reason, Guideline C is found for applicant.

FORMAL FINDINGS

PARAGRAPH 1: AGAINST THE APPLICANT All subparagraphs found against the applicant PARAGRAPH 2: FOR THE APPLICANT Both subparagraphs found for the applicant PARAGRAPH 3: FOR THE APPLICANT

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

FOOTNOTES

FOR GOVERNMENT Francisco J. Mendez, Jr., Department Counsel FOR APPLICANT Pro Se