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ISCR 02-31151.h1: Guideline E security clearance hearing, denied (2006) · CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date2/28/2006
Statusdenied
LevelHEARING
TypeSTANDARD ISCR
From the decisionFacts this decision states. Hover a value to see the exact sentence.
Clearance at issueSecret
Held a clearance beforeYes
Delinquent debt cited$19,180 (on a payment plan)
Participants
Judge: Kathryn Moen Braeman
Applicant's Counsel: John Ryan
Guidelines Evaluated
- EPersonal Conduct · Against Applicant
- FFinancial Considerations · For Applicant
- HDrug Involvement & Substance Misuse · Against Applicant
- JCriminal Conduct · Against Applicant
Other decisions whose allegations most closely resemble this one’s. Similarity of the allegations only.
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ISCR Case 02-31151.h1denied

Case headnote

ISCR Case No. 02-31151.h1

deniedFeb 28, 2006· Hon. Kathryn Moen Braeman· hearing

Summary

A 58-year-old trucking company owner was denied a security clearance due to concerns under Guidelines E (Personal Conduct), F (Financial Considerations), H (Drug Involvement), and J (Criminal Conduct). The applicant had a history of drug use, including selling marijuana from 1988 to 1991, and using cocaine during 1990-1991. Critically, he used methamphetamine in 2002, after applying for the clearance, and misrepresented his drug use to the Defense Security Service.

Regarding financial issues, a judgment from 2000 was resolved in 2005. Another account, placed for collection in October 1999 with an initial debt over $9,000, grew to $19,180 before being settled for $6,500 in February 2005. While the applicant did resolve his financial issues and completed probation for prior drug offenses without incident, these mitigating factors were insufficient.

The denial was primarily based on his recent drug use after applying for the clearance, his misrepresentation of drug use to authorities, and his failure to demonstrate clear evidence of successful rehabilitation from drug involvement.

Why the applicant was denied

The applicant engaged in recent drug use after applying for a security clearance.
He misrepresented his past drug use and future intent in a sworn statement to the Defense Security Service.
The applicant failed to provide clear evidence of successful rehabilitation from drug use.

Conditions referenced

Disqualifying

E2.A8.1.1.2.1raisedAny Drug Abuse
E2.A5.1.2.3raisedDeliberately Providing False or Misleading Information
E2.A10.1.2.1raisedAllegations or Admissions of Criminal Conduct

Mitigating

E2.A6.1.3.6appliedGood-faith Effort to Repay Overdue Creditors

Key rule quoted

“The responsibility for producing evidence initially falls on the Government to demonstrate that it is not clearly consistent with the national interest to grant or continue Applicant's access to classified information.”

Procedural posture

SOR issuedNov 18, 2004
Answer filedDec 7, 2004notarized
Hearing heldNov 29, 2005scheduled after delays due to counsel's availability
Decision dateFeb 28, 2006

Cite for

Misrepresentation of Drug Use Under Guideline E
Recent Drug Involvement Under Guideline H
Failure to Demonstrate Rehabilitation Under Guideline J

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.

Clearance at issue: Secret: “He completed a SF-86 security clearance application in April 2001.”
Held a clearance before: Yes: “He was granted an interim security clearance in 2002.”
Delinquent debt cited: $19,180 (on a payment plan): “Ultimately, the amount owed grew to $19,180.”

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge ruled against the applicant under Guideline E due to concerns regarding personal conduct, specifically false statements made to the Defense Security Service about past drug use. The applicant's lack of candor and subsequent drug use after pledging abstinence contributed to the decision. Overall, the applicant failed to demonstrate sufficient evidence of rehabilitation or reform regarding these personal conduct issues.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation

Standardized Decision Profile

SEAD-4 Guideline F · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant had resolved his long-standing financial issues, leading to a ruling in favor of the applicant under Guideline F. Despite previous debts, the applicant demonstrated financial responsibility and stability, which mitigated the government's concerns. Ultimately, the judge ruled for the applicant on both subparagraphs under Guideline F, indicating that the financial issues no longer raised security concerns.

The sub-allegation breakdown is part of the Professional plan. See what it includes.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The judge ruled against the applicant on multiple drug involvement allegations due to a history of drug abuse, including marijuana sales, cocaine use, and methamphetamine use. The applicant's failure to demonstrate successful rehabilitation and misrepresentation of drug use contributed to the denial of the security clearance.

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

Standardized Decision Profile

SEAD-4 Guideline J (Criminal Conduct) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge ruled against the applicant on the criminal conduct allegation due to a history of drug abuse and misrepresentation of drug use to authorities. The applicant failed to demonstrate sufficient evidence of rehabilitation or mitigating circumstances, leading to the denial of the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	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

SYNOPSIS

KEYWORD: Drugs; Personal Conduct; Financial; Criminal Conduct

DIGEST: Security concerns persist over Applicant's drug abuse, personal conduct, and criminal conduct over his recent use of drugs in 2002 after he applied for a security clearance. Also, he misrepresented his past use of drugs and his future intent to the Defense Security Service (DSS) in a signed, sworn statement in June 2002. While he stopped using drugs, overall, he failed to demonstrate clear evidence of successful rehabilitation. He resolved his long-standing financial issues so those dated debts no longer raise security concerns. Clearance is denied.

CASENO: 02-31151.h1

DATE: 02/28/2006

DATE: February 28, 2006

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 02-31151

DECISION OF ADMINISTRATIVE JUDGE

KATHRYN MOEN BRAEMAN

APPEARANCES

Joseph Johnson, Esquire

SYNOPSIS

Security concerns persist over Applicant's drug abuse, personal conduct, and criminal conduct over his recent use of drugs in 2002 after he applied for a security clearance. Also, he misrepresented his past use of drugs and his future intent to the Defense Security Service (DSS) in a signed, sworn statement in June 2002. While he stopped using drugs, overall, he failed to demonstrate clear evidence of successful rehabilitation. He resolved his long-standing financial issues so those dated debts no longer raise security concerns. Clearance is denied.

STATEMENT OF CASE

The Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to the Applicant on November 18, 2004. The SOR detailed reasons why the Government could not make the preliminary positive finding that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. (1) The SOR alleges specific concerns over drug abuse (Guideline H), personal conduct (Guideline E), financial issues (Guideline F) and criminal conduct (Guideline J). Through counsel Applicant responded to these SOR allegations in an Answer notarized on December 7, 2004, and requested a hearing.

After Department Counsel stated the case was ready to proceed on August 31, 2005, the case was assigned to me on September 6, 2005. Because of scheduling problems with Applicant's counsel, the scheduling of the hearing was delayed. On November 10, 2005, DOHA issued a Notice of Hearing and set this case to be heard on November 29, 2005, in a city near where Applicant lives and works. At the hearing the government presented seven exhibits (Exhibits 1-7) which were admitted into evidence without objection. Applicant's counsel offered three exhibits (Exhibits A-C) which were admitted into evidence without objection. Applicant and his wife testified. The transcript (TR) was received on December 8, 2005.

FINDINGS OF FACT

After a complete and thorough review of the evidence in the record, and upon due consideration of that evidence, I make the following Findings of Fact:

Applicant, 58 years old, has been the owner/operator of a trucking company from September 1999 to present. He needs a security clearance because of the nature of the goods he hauls. He completed a SF-86 security clearance application in April 2001. The second driver who works with him is his wife. (Exhibits 1, 2; TR 21-24) He was granted an interim security clearance in 2002. (TR 65)

Applicant has been married since December 1965 and has two children born in 1966 and 1981. (Exhibit 1) He graduated from a state university with a degree in marketing in 1969. He took over his family farm in 1977 and still operates the farm. (TR 21)

Drugs, Personal Conduct, Finances and Criminal Conduct

On his 2001 Security Clearance Application Applicant disclosed no prior use of drugs, but did disclose an arrest in 1991 for possession for which he received probation. In his Defense Security Service (DSS) interview in June 2002, Applicant clarified that he was arrested for Felony Possession of Marijuana. In 1988-89 he began growing marijuana on his farm for profit and selling small amounts to friends for $100 per ounce. He sold marijuana for two to three years and used the profit for family living expenses. He tried marijuana but did not become a regular user. While he was growing marijuana and after his arrest, he and his wife were separated in from 1990 to1991 as she opposed his growing marijuana. He began racing motorcycles and also used cocaine during this period from 1990-91. When an employee living on his farm was caught in 1991 with 28 grams of marijuana in his van, Applicant was arrested in January 1991 and pleaded guilty to Felony Possession of Marijuana and was placed on unsupervised probation for five years. He stated to DSS that he "completed" his probation "without incident and never had any further involvement with marijuana or any other illegal substance." Also, he had "no intention of doing so in the future." When he signed the statement, he attested that it was true and correct. However, he failed to acknowledge to the DSS agent his 1990-91 use of cocaine. His future conduct did not demonstrate that he fulfilled his intent not to use illegal drugs in the future. (Exhibits 2, 5; TR 25-26, 30-31, 36, 44-50, 57-60, 61, 63-65) Also, in his Answer to the SOR he denied using cocaine in 1990-91. (Answer; TR 53-54) In January 2004 he admitted in a DSS statement that he "failed to acknowledge" in his prior statement that he "had used cocaine on several occasions during the 1980's." After his prior arrest he had participated in a counseling program in lieu of going to prison where he told them that he had been "addicted to cocaine." He explained he had exaggerated his use of cocaine in the 1980's to be accepted into the counseling program instead of having to serve time in prison. He did possess and use cocaine in 1990-91. While he claimed he had no intent to misrepresent his involvement with drugs in his DSS Statement in June 2002, that denial is not credible given his earlier misrepresentation about his drug use to his probation officer and counselor to avoid prison time and his subsequent drug involvement. He admitted that subsequent to his June 2002 interview he had another drug-related incident as he illegally obtained three grams of methamphetamine and used it to try to lose weight. When he returned to work, he tested positive for methamphetamine in September 2002. He was suspended for thirty days and again went to a treatment center for assessment and counseling in September 2002 where they recommended that he attend a 12-step self-help program and be given regular drug screens. (Answer, Exhibits 3, 4; TR 25-26, 31-34, 55-57, 60, 62)

Applicant has also had financial problems which developed after he started a catering business in 1992 that was initially successful but later became too burdensome. As a result of the catering business, he developed debts. He had a truck repossessed in 1998; later the creditor obtained a judgement of $6,000 in February 2000 for the balance owed after resale. In September 2000 the court ordered a wage garnishment. In June 2002 Appellant said he intended to pay this account in full. However, he did not do so until July 2005. Another account was placed for collection in October 1999 on which he owed over $9,000. Ultimately, the amount owed grew to $19,180. He settled that amount owed for $6,500 in February 2005. (Answer, Exhibits 2, 7; Exhibits B, C; TR 22-23, 38-40)

Currently, he and his wife have two credit cards where they are current with payments. His farm and home are paid for as are his vehicles. (TR 37-38) He and his wife recently started a college scholarship program with a local high school. (TR 41-44)

References

The director of operations for his firm stated in November 2005 that Applicant was a reliable, safe, and qualified driver. (Exhibit A)

Applicant's wife who is 57 testified she has worked in the trucking business with her husband since 2000 and has a security clearance. She described her husband as a happy man. Their annual income is approximately $100,000. (TR 66- 72)

POLICIES

Enclosure 2 of the Directive sets forth adjudicative guidelines to consider in evaluating an individual's security eligibility. They are divided into conditions that could raise a security concern and may be disqualifying and conditions that could mitigate security concerns in deciding whether to grant or continue an individual's access to classified information. But the mere presence or absence of any given adjudication policy condition is not decisive. Based on a consideration of the evidence as a whole, I weighed relevant Adjudication Guidelines as set forth below:

Guideline H - Drug Involvement

E.2.A.8.1.1. The Concern: Improper or illegal involvement with drugs, raises questions regarding an individual'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.

Guideline F - Financial Considerations

The Concern: An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. Unexplained affluence is often linked to proceeds from financially profitable criminal acts.

Guideline E - Personal Conduct

E2.A5.1.1. The Concern: Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information.

Guideline J - Criminal Conduct

E2.A10.1.1. The Concern: A history or pattern of criminal activity creates doubt about a person's judgment, reliability and trustworthiness.

The responsibility for producing evidence initially falls on the Government to demonstrate that it is not clearly consistent with the national interest to grant or continue Applicant's access to classified information. The Applicant presents evidence to refute, explain, extenuate, or mitigate in order to overcome the doubts raised by the Government, and to demonstrate persuasively that it is clearly consistent with the national interest to grant or continue the clearance. Under the provisions of Executive Order 10865, as amended, and the Directive, a decision to grant or continue an applicant's security clearance may be made only after an affirmative finding that to do so is clearly consistent with the national interest. In reaching the fair and impartial overall common sense determination, the Administrative Judge may draw only those inferences and conclusions that have a reasonable and logical basis in the evidence of record.

CONCLUSION

Guideline H - Drug Involvement

The Government established security concerns over Applicant's drug use and sales as illegal involvement with drugs raises questions regarding an individual's willingness or ability to protect classified information. He sold marijuana from fall 1988 to his arrest in January 1991. He also used cocaine from 1990-91 and used methamphetamines in 2002. Drug abuse or dependence may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information. His actions fall within conditions that could raise a security concern and may be disqualifying including: E2.A8.1.1.2.1. (any drug abuse) and E2.A8.1.1.2 2. (illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution).

While Applicant mitigated (2) security concerns over his earlier use of cocaine and 1989-91 sales of marijuana as he successfully completed probation, he returned to use drugs subsequently after he had executed a security clearance application in April 2002 and after he had sworn in June 2002 that he would not use drugs again. Thus, E2.A8.1.1.3.1. (no recent drug involvement) does not apply to his recent methamphetamine use. Security concerns persist. Thus, I conclude that the factors leading to the later drug involvement raise concerns as he did not provide sufficient evidence in mitigation. His drug involvement was not isolated and he had not completed a drug treatment program.

Hence, after considering the Adjudicative Process factors and the Adjudicative Guidelines, I rule for Applicant under subparagraphs 1.e. and 1.f. and against Applicant on subparagraphs 1.a. through 1.d. incorporated under SOR Paragraph 1. Personal Conduct

Also, the Government established security concerns over Applicant's Personal Conduct because of his false statement to DSS in June 2002 that he had never used cocaine when he had used in 1990-91. Also, while he stated an intent never to use drugs in the future, he did use again in September 2002 shortly after he provided a statement pledging abstinence. Thus, Applicant falls within Disqualifying Conditions E2.A5.1.2.3. Deliberately providing false or misleading information concerning relevant and material matters to an investigator, security official, competent medical authority, or other official representative in connection with a personnel security or trust-worthiness determination and E2.A5.1.2.5, a pattern of dishonesty or rule violations. None of Applicant's explanations meet the mitigation (3) guidelines. While not alleged, I note that he also falsified the extent of his use of cocaine to his probation officer after his 1991 arrest in order to stay in a treatment program and avoid serving time in prison.

Looking at Applicant as a whole person (4) and considering the circumstances surrounding his conduct (E2.2.1.2), I conclude Applicant failed to provide sufficient evidence of a current record of rehabilitation and pertinent behavioral changes even though he has a favorable employment reference. Overall, I conclude that he has failed to provide sufficient evidence of reform over these personal conduct issues. Thus, after considering the Adjudicative Process factors and the Adjudicative Guidelines, I rule against Applicant under SOR Paragraph 2 under subparagraph 2.a.

Financial Considerations

Applicant mitigated the Government's security concerns under Financial Disqualifying Condition (E2.A6.1.2.1. history of not meeting financial obligations, E2.A6.1.2.3. inability or unwillingness to satisfy all of his debts). Applicant had two large debts: in one matter a judgment was entered in 2000 which he did not resolve until 2005 and with another large debt he did not settled it until 2005. Despite this long delay, Applicant eventually took action to resolve these financial concerns. He is now on a stable financial footing.

Thus, Applicant has shown financial responsibility under E2.A6.1.3.6. as there are now clear indications that the problem is being resolved or is under control with respect to these two debts. Applicant mitigated (5) these financial concerns as he also has a favorable reference from his employer. After considering the Adjudicative Process factors and the Adjudicative Guidelines, I rule for Applicant under subparagraphs 3.a. and 3.b. where he has resolved financial issues under SOR Paragraph 3.

Criminal Conduct The Government established security concerns (6) over Applicant's criminal conduct as he falsified a statement to the DSS about his past and future drug use which is a violation of 18 U.S.C. Section 1001 as discussed above under Personal Conduct. The government security program relies on the honesty of applicants. While Applicant provided evidence of a successful work record, he failed to provide sufficient evidence to establish that he meets any of the mitigating conditions for criminal conduct. For example, he provided insufficient evidence to establish MC 6 (E2.A10.1.3.6): clear evidence of successful rehabilitation. Establishing a college scholarship program while commendable does not mitigate intentional falsification to the government. Thus, Applicant has failed to mitigate (7) his criminal conduct. Consequently, I conclude that the factors leading to the earlier falsification may still recur. Hence, after considering the Adjudicative Process factors and the Adjudicative Guidelines, I rule against Applicant on subparagraph 4.a. incorporated under SOR Paragraph 4.

FORMAL FINDINGS

After reviewing the allegations of the SOR in the context of the Adjudicative Guidelines in Enclosure 2 and the factors set forth under the Adjudicative Process section, I make the following formal findings:

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

Subparagraph 1.e.: For Applicant

Subparagraph 1.f.: For Applicant

Paragraph 2. Guideline E: AGAINST APPLICANT

Subparagraph 2.a.: Against Applicant Paragraph 3. Guideline F: FOR APPLICANT

Subparagraph 3.a.: For Applicant

Subparagraph 3.b.: For Applicant

Paragraph 4. Guideline J: AGAINST APPLICANT

Subparagraph 4.a.: Against 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 the Applicant. Clearance is denied.

Kathryn Moen Braeman

Administrative Judge

1. This procedure is required by Executive Order 10865, as amended, and Department of Defense Directive 5220.6, dated January 2, 1992 (Directive), as amended by Change 4, April 20, 1999.

2. E2.A8.1.1.3. Conditions that could mitigate security concerns include: E2.A8.1.1.3.1.The drug involvement was not recent; E2.A8.1.1.3.2. The drug involvement was an isolated or aberrational event; E2.A8.1.1.3.3. A demonstrated intent not to abuse any drugs in the future; E2.A8.1.1.3.4. Satisfactory completion of a prescribed drug treatment program, including rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable diagnosis by a credentialed medical professional.

3. E2.A5.1.3. Conditions that could mitigate security concerns include: E2.A5.1.3.1. The information was unsubstantiated or not pertinent to a determination of judgment, trustworthiness, or reliability; E2.A5.1.3.2. The falsification was an isolated incident, was not recent, and the individual has subsequently provided correct information voluntarily; E2.A5.1.3.3. The individual made prompt, good-faith efforts to correct the falsification before being confronted with the facts; E2.A5.1.3.4. Omission of material facts was caused or significantly contributed to by improper or inadequate advice of authorized personnel, and the previously omitted information was promptly and fully provided; E2.A5.1.3.5. The individual has taken positive steps to significantly reduce or eliminate vulnerability to coercion, exploitation, or duress; E2.A5.1.3.6. A refusal to cooperate was based on advice from legal counsel or other officials that the individual was not required to comply with security processing requirements and, upon being made aware of the requirement, fully and truthfully provided the requested information; E2.A5.1.3.7. Association with persons involved in criminal activities has ceased.

4. In evaluating the relevance of an individual's conduct, the adjudicator should consider the following factors: E.2.21.1. The nature, extent, and seriousness of the conduct; E2.2.1.2. The circumstances surrounding the conduct, to include knowledgeable participation; E2.2.1.3. The frequency and recency of the conduct; E2.2.1.4. The individual's age and maturity at the time of the conduct; E2.2.1.5. The voluntariness of the participation; E2.2.1.6. The presence or absence of rehabilitation and other pertinent behavioral changes; E.2.2.1.7. The motivation for the conduct; E.2.2.1.8. The potential for pressure, coercion, exploitation, or duress; and E.2.2.1.9. The likelihood of continuation or recurrence. (E.2.2. Adjudication Process)

5. E2.A6.1.3. Conditions that could mitigate security concerns include: E2.A6.1.3.1. The behavior was not recent; E2.A6.1.3.2. It was an isolated incident; E2.A6.1.3.3. The conditions that resulted in the behavior were largely beyond the person's control (e.g., loss of employment, a business downturn, unexpected medical emergency, or a death, divorce or separation); E2.A6.1.3.4. The person has received or is receiving counseling for the problem and there are clear indications that the problem is being resolved or is under control; E2.A6.1.3.5. The affluence resulted from a legal source; and E2.A6.1.3.6. The individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.

6. E2.A10.1.2. Conditions that could raise a security concern and may be disqualifying include:

E2.A10.1.2.1 Allegations or admissions of criminal conduct, regardless of whether the person was formally charged.; E2.A10.1.2.2. A single serious crime or multiple lesser offenses.

7. E2.A10.1.3. Conditions that could mitigate security concerns include: E2.A10.1.3.1. The criminal behavior was not recent; E2.A10.1.3. 2. The crime was an isolated incident; E2.A10.1.3.3. The person was pressured or coerced into committing the act and those pressures are no longer present in that person's life; E2.A10.1.3. 4. The person did not voluntarily commit the act and/or the factors leading to the violation are not likely to recur; E2.A10.1.3. 5. Acquittal; E2.A10.1.3.6 There is clear evidence of successful rehabilitation.

FOOTNOTES

FOR GOVERNMENT file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-31151.h1.htm[6/24/2021 11:18:01 AM] Nichole Noel, Esquire, Department Counsel FOR APPLICANT John Ryan, Esquire