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ISCR Case 02-31537.h1 — CASE

ISCR Case 02-31537.h1denied

Case Headnote

ISCR Case No. 02-31537.h1

deniedDec 31, 2003· Hon. Darlene Lokey Anderson· hearing

Summary

A 30-year-old Systems Engineer was denied a security clearance under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from the applicant's history of illegal marijuana use and a stated potential for future use, which raised concerns about his judgment and reliability.

The applicant used marijuana from 1990 to 1994, on at least two occasions at parties with friends. His last reported use was in July 2002. A statement provided to the Defense Security Service in August 2002 indicated that he might use marijuana again if offered at a future party.

The judge determined that the applicant's past illegal drug use and his expressed potential for future use demonstrated poor judgment. Crucially, no evidence of rehabilitation or a firm intent to refrain from future drug use was presented, leading to the denial of the security clearance.

Why the Applicant Was Denied

The applicant engaged in illegal drug use from 1990 to 1994 and again in July 2002.
The applicant's potential future drug use indicated poor judgment.
No evidence of rehabilitation or intent to refrain from drug use was presented.

Conditions Referenced

Disqualifying

H1raisedDrug Abuse
E4raisedPersonal Conduct

Key Rule Quoted

“The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is an acceptable security risk.”

Procedural Posture

SOR issuedAug 11, 2003
Answer filedAug 27, 2003Applicant elected for a written record.
Hearing held—No hearing; case determined on written record.
Decision dateDec 31, 2003

Cite For

Denial of Clearance Due to Illegal Drug Use Under Guideline H
Poor Personal Conduct Related to Drug Involvement Under Guideline E
Lack of Mitigating Factors for Drug Abuse and Personal Conduct Issues.

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 personal conduct concerns related to poor judgment and unreliability due to illegal drug use. The applicant's history of marijuana use and potential future use were deemed insufficiently mitigated, leading to a denial of the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	The Applicant's illegal drug use set forth above, and the Applicant possible intent to use it in the future.	Against Applicant	Questionable Judgment General	—	Denied	—	—	—

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 applicant's illegal use of marijuana from 1990 until 1994, and again in July 2002, was found to be a significant concern for security clearance eligibility. The judge determined that the applicant failed to provide sufficient evidence of reform or rehabilitation, leading to a denial of the security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The Applicant used marijuana from 1990 until 1994 at least two times, at parties with friends.	Against Applicant	Marijuana	Experimental	Admitted	—	—	—
1.b	He last used it in July 2002.	Against Applicant	Marijuana	Experimental	Admitted	—	—	—
1.c	In a statement he provided to the Defense Security Service, in August 2002, he stated that if someone offers him some marijuana at a party in the future, he might possibly use it.	Against Applicant	Stated Intent to Use Again	Not Applicable	Admitted	—	—	—
2.a	The Applicant's illegal drug use set forth above, and the Applicant possible intent to use it in the future.	Against Applicant	Unspecified Drug Involvement	Unspecified	Admitted	—	—	—

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: December 31, 2003 In Re: -------------------------- SSN: ------------------ Applicant for Security Clearance ISCR Case No. 02-31537 DECISION OF ADMINISTRATIVE JUDGE DARLENE LOKEY ANDERSON

SYNOPSIS Applicant's illegal use of marijuana from 1990 until 1994, and again in July 2002, has not been mitigated by sufficient evidence of reform and rehabilitation. Clearance is denied.

STATEMENT OF CASE

On August 11, 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, (as amended) issued a Statement of Reasons (SOR) to the 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 the Applicant and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked. The Applicant responded to the SOR in writing on August 27, 2003, in which he elected to have the case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's File of Relevant Material (FORM) to the Applicant on October 27, 2003. The Applicant was instructed to submit information in rebuttal, extenuation or mitigation within 30 days of receipt. Applicant received the FORM on October 31, 2003, and did not submit a reply. The case was assigned to the undersigned for resolution on December 11, 2003.

FINDINGS OF FACT

The Applicant is 30 years old and unmarried. He is employed as a Systems Engineer by a defense contractor and is applying for a security clearance in connection with his employment. The Government opposes the Applicant's request for a security clearance, on the basis of allegations set forth in the Statement of Reasons (SOR). The following findings of fact are entered as to each paragraph and guideline in the SOR: Paragraph 1 (Guideline H - Drug Involvement). The Government alleges that the Applicant is ineligible for clearance because he has abused illegal substances. The Applicant used marijuana from 1990 until 1994 at least two times, at parties with friends. He last used it in July 2002. In a statement he provided to the Defense Security Service, in August 2002, he stated that if someone offers him some marijuana at a party in the future, he might possibly use it. He further states that if his employer told him that he was constrained from using marijuana, he would choose not to use it. (See, Government Exhibit 5). In his response to the SOR, the Applicant states that his past use of marijuana was a mistake and attributed it to the process of growing up. (See, Government Exhibit 3). Paragraph 2 (Guideline E - Personal Conduct). The Government alleges that the Applicant is ineligible for clearance because his conduct shows poor judgment, unreliability or untrustworthiness. The Applicant's illegal drug use set forth above, and the Applicant possible intent to use it in the future.

POLICIES

Enclosure 2 of the Directive sets forth adjudication policies divided into "Disqualifying Factors" and "Mitigating Factors." The following Disqualifying Factors and Mitigating Factors are found to be applicable in this case: Guideline H (Drug Involvement) Conditions that could raise a security concern: 1. any drug abuse; 2. illegal drug possession, including cultivation, processing, manufacture, purchase, sale or distribution. Conditions that could mitigate security concerns: None. Guideline E (Personal Conduct) Condition that could raise a security concern: 4. Personal Conduct or concealment of information that increases an individual's vulnerability to coercion, exploitation or duress, such as engaging in activities which, if known may affect the person's personal , professional, or community standing or render the person susceptible to blackmail; 6. Association with persons involved in criminal activity. Conditions that could mitigate a security concern: None. In addition, as set forth in Enclosure 2 of the Directive at pages 16-17, in evaluating the relevance of an individual's conduct, the Administrative Judge should consider the following general factors: a. The nature and seriousness of the conduct and surrounding circumstances b. The circumstances surrounding the conduct, to include knowledgeable participation c. The frequency and recency of the conduct d. The individual's age and maturity at the time of the conduct e. The voluntariness of participation f. The presence or absence of rehabilitation and other pertinent behavior changes g. The motivation for the conduct h. The potential for pressure, coercion, exploitation or duress i. The likelihood of continuation or recurrence. The eligibility criteria established in the DoD Directive identify personal characteristics and conduct which are reasonably related to the ultimate question, posed in Section 2 of Executive Order 10865, of whether it is "clearly consistent with the national interest" to grant an Applicant's request for access to classified information. The DoD Directive states, "The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is an acceptable security risk. Eligibility for access to classified information is predicted upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable should be considered in reaching a determination." The Administrative Judge can draw only those inferences or conclusions that have reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. Finally, as emphasized by President Eisenhower in Executive Order 10865, "Any determination under this order . . . shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the Applicant concerned."

CONCLUSION

In the defense industry, the security of classified industrial secrets is entrusted to civilian workers who must be counted upon to safeguard such sensitive information twenty-four hours per day, seven days per week. The Government is therefore appropriately concerned when available information indicates that an Applicant for clearance may be involved in instances of drug abuse and poor personal conduct which demonstrates poor judgment or unreliability. It is the Government's responsibility to present substantial evidence to support the finding of a nexus, or rational connection, between the Applicant's conduct and the continued holding of a security clearance. If such a case has been established, the burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation or mitigation which is sufficient to overcome or outweigh the Government's case. The Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent with the national interest to grant him a security clearance. In this case the Government has met its initial burden of proving that the Applicant engaged in drug abuse (Guideline H) and poor personal conduct (Guideline E). This evidence indicates poor judgment, unreliability and untrustworthiness on the part of the Applicant. Because of the scope and nature of the Applicant's conduct, I conclude there is a nexus or connection with his security clearance eligibility. Considering all of the evidence, the Applicant has failed to introduce persuasive evidence in rebuttal, explanation or mitigation that is sufficient to overcome the Government's case. The Applicant's history of drug abuse, from 1990 until 1994, and again in July 2002, at parties with friends, although intermittent, and not frequent, shows extremely poor judgment on his part. The fact that he may possibly use it in the future also shows poor judgment. There is no evidence of a demonstrated intent that he will not use marijuana in the future. None of the mitigating factors apply under either Guidelines H or E. Drug abuse is illegal, and the Applicant knew or should know that it is, and that it is clearly prohibited by the Department of Defense. The Applicant's drug use was not isolated, but extended over a period of several years, and may continue in the future. Accordingly, under the particular facts of this case, I am given no other choice than to find against the Applicant under Guideline H, (Drug Abuse) and Guideline E (Personal Conduct). On balance, it is concluded that the Applicant has failed to overcome the Government's case opposing his request for a security clearance. Accordingly, the evidence supports a finding against the Applicant as to the factual and conclusionary allegations expressed in Paragraphs 1 and 2 of the Government's Statement of Reasons.

FORMAL FINDINGS

Formal findings For or Against the Applicant on the allegations in the SOR, as required by Paragraph 25 of Enclosure 3 of the Directive are: Paragraph 1: Against the Applicant. Subpara. 1.a.: Against the Applicant. Subpara. 1.b.: Against the Applicant. Subpara. 1.c.: Against the Applicant. Paragraph 2: Against the Applicant. Subpara. 2.a.: Against 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 the Applicant. Darlene Lokey Anderson Administrative Judge

FOOTNOTES

02-31537.h1 FOR GOVERNMENT Jennifer I. Campbell, Department Counsel FOR APPLICANT Pro Se file:///usr.osd.mil/...omputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/02-31537.h1.html[6/24/2021 11:18:30 AM] 02-31537.h1