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ISCR Case 03-04387.h1 — CASE

ISCR Case 03-04387.h1denied

Case Headnote

ISCR Case No. 03-04387.h1

deniedNov 30, 2005· Hon. Mary E. Henry· hearing

Summary

A 46-year-old support program manager for a defense contractor was denied a security clearance due to concerns under Guidelines E (Personal Conduct), G (Alcohol Consumption), H (Drug Involvement), and J (Criminal Conduct). The denial stemmed primarily from a history of drug use and a failure to disclose relevant information on security clearance applications.

Specifically, the applicant intentionally withheld information about his drug use on applications completed in 1990 and 2002. He failed to disclose a 1987 arrest for marijuana possession, a $100 fine, and a 1998 charge for unlawful possession of marijuana during a DUI arrest. The applicant also did not acknowledge his prior illegal drug use as a student, which included experimenting with cocaine, hallucinogenic mushrooms, LSD, hashish, amphetamines, and marijuana between 1976 and 1984, nor his marijuana use after receiving a security clearance.

While the applicant had not been arrested for alcohol-related offenses since 1998 and stated no intent to use marijuana in the future, these mitigating factors related to alcohol consumption and criminal conduct were insufficient. The intentional withholding of information and the extent of his drug involvement raised significant security concerns, leading to the denial of his security clearance.

Why the Applicant Was Denied

The applicant intentionally withheld information regarding his drug use on security clearance applications.
He failed to disclose his 1987 arrest for possession of marijuana and the additional charge in 1998.
The applicant's history of drug use and lack of candor raised significant security concerns.

Conditions Referenced

Disqualifying

E2.A2.1appliedPersonal Conduct
G2.A2.1raisedAlcohol Consumption
H2.A2.1appliedDrug Involvement
J2.A2.1raisedCriminal Conduct

Mitigating

G2.B2.1appliedAlcohol Consumption
J2.B2.1appliedCriminal Conduct

Key Rule Quoted

“The security clearance process is designed to ensure that individuals granted access to classified information are trustworthy and reliable.”

Procedural Posture

SOR issuedNov 30, 2004
Answer filedJan 27, 2005
Hearing heldOct 14, 2005
Decision dateNov 30, 2005

Cite For

Failure to Disclose Past Drug Use on Security Clearance Applications
Impact of Personal Conduct on Security Clearance Eligibility
Mitigating Factors Related to Alcohol Consumption and Criminal Conduct

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 that the applicant intentionally withheld information regarding his drug use and previous arrests when completing security clearance applications. Despite some mitigating factors, the applicant failed to overcome the security concerns related to personal conduct, leading to a denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	The applicant intentionally withheld information related to his drug use when he completed his security clearance applications in 1990 and 2002.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	Admitted	—	—	—
2.b	The applicant did not reveal that he was also charged with possession of marijuana during his 1998 arrest for driving under the influence.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Admitted	—	—	—
2.c	The applicant failed to acknowledge his previous illegal drug use while a student and his use of marijuana after he had received a security clearance.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	Admitted	—	—	—

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 G (Alcohol Consumption) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant had a history of alcohol-related incidents, including a DUI in 1998. The judge found that the applicant failed to fully disclose his past alcohol use and related legal issues on security clearance applications. Despite some mitigating factors, the judge ultimately denied the application for a security clearance due to unresolved concerns regarding alcohol consumption.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	The applicant was arrested in 1998 for driving under the influence (DUI).	Against Applicant	DUI or DWI Alcohol	Admitted	—	—	—
1.b	The applicant was charged with unlawful possession of marijuana in 1998.	Against Applicant	Unspecified Alcohol Incident	Admitted	—	—	—
1.c	The applicant was arrested in 1987 for possession of a controlled substance (marijuana).	Against Applicant	Unspecified Alcohol Incident	Admitted	—	—	—
1.d	The applicant failed to disclose his 1987 arrest for possession of marijuana on his security clearance applications.	Against Applicant	Unspecified Alcohol Incident	Admitted	—	—	—
1.e	The applicant failed to disclose his alcohol use after receiving a security clearance.	Against Applicant	Unspecified Alcohol Incident	Admitted	—	—	—
1.f	The applicant has not been arrested for any alcohol-related offenses since 1998.	For Applicant	Unspecified Alcohol Incident	Admitted	—	—	—
1.g	The applicant has stated that he does not intend to use marijuana in the future.	For Applicant	Unspecified Alcohol Incident	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline G). 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 admitted to a history of marijuana use and other drug involvement from 1976 to 1997, including use while holding a security clearance. He failed to disclose this information on security clearance applications. The judge found that the applicant did not mitigate the security concerns related to drug involvement, resulting in a denial of his clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Between 1976 and 1984, Applicant experimented with various illegal drugs. He tried cocaine about ten times, hallucinogenic mushrooms once, LSD once, hashish one a month or less for a few years, amphetamines about eight times, and marijuana on numerous occasions.	Against Applicant	MarijuanaWHILE CLEARED	Experimental	Admitted	—	—	—
1.b	In 1987, the police arrested Applicant and charged him with possession of a controlled substance (marijuana), a misdemeanor offense.	Against Applicant	Drug Distribution or Dealing	Not Applicable	Admitted	—	—	—
1.c	In 1990, Applicant completed a security clearance application, wherein he listed his 1987 arrest, and signed a statement. In his signed statement, he acknowledged smoking, and occasionally purchasing, marijuana from 1978 to 1984 due to peer pressure. He then stated he quit smoking marijuana in 1984.	Against Applicant	Drug Use During ClearanceWHILE CLEARED	Not Applicable	Admitted	—	—	—
1.d	He failed to acknowledge his previous illegal drug use while a student and his use of marijuana after he had received a security clearance.	Against Applicant	Unspecified Drug InvolvementWHILE CLEARED	Unspecified	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). The verbatim source decision is shown in full below.

Standardized Decision Profile

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

Posture: Decision on RecordDecided: denied

The applicant had a history of drug use and was arrested for driving under the influence (DUI) in 1998, for which he was convicted. He failed to disclose his past drug use and arrests on security clearance applications. The judge found that the applicant did not mitigate the security concerns related to his criminal conduct, resulting in a denial of his security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	In 1987, the police arrested Applicant and charged him with possession of a controlled substance (marijuana), a misdemeanor offense. He pled not guilty. The court found him guilty and fined him $100.00.	Against Applicant	Drug Related Criminal Charge	Convicted	Admitted	—	—	—
1.b	In 1998, he was arrested for driving under the influence (DUI) and charged with DUI and unlawful possession of marijuana. The court found him guilty of DUI, and dismissed the possession of marijuana charge. The court sentenced him to two days in jail, fined him $400.00, and placed him on one year probation.	Against Applicant	DUI or DWI Criminal	Convicted	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline J). 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: November 30, 2005 In Re: ---------------------- SSN: ----------- Applicant for Security Clearance ISCR Case No. 03-04387 DECISION OF ADMINISTRATIVE JUDGE MARY E. HENRY

SYNOPSIS From 1976 until 1984, Applicant smoked marijuana and experimented with multiple other drugs as a high school and college student. After college, from 1984 until 1997, he continued to smoke marijuana. During part of this time, he held a security clearance. He intentionally withheld the information related to his drug use when he completed his security clearance applications in 1990 and 2002. He did reveal his 1998 arrest for driving under the influence, but did not reveal that he was also charged with possession of marijuana. Applicant has mitigated the government's security concerns under Guidelines G and J, but has failed to overcome the security concerns as to Guidelines E and H. Clearance is denied.

STATEMENT OF CASE

On November 30, 2004, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified, issued a Statement of Reasons (SOR) to Applicant. The SOR 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. Specifically, the SOR sets forth security concerns arising under Guideline E, Personal Conduct; Guideline G, Alcohol Consumption; Guideline H, Drug Involvement; and Guideline J, Criminal Conduct, of the Directive. DOHA recommended the case be referred to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked. On January 27, 2005, Applicant submitted his initial notarized response to the allegations. On June 24, 2005, through counsel, he submitted a supplemental notarized response to the allegations. He requested a hearing. This matter was assigned to another administrative judge on September 6, 2005, but reassigned to me on September 13, 2005 because of caseload considerations. A notice of hearing was issued on September 26, 2005, and a hearing was held on October 14, 2005. The government filed a Motion in Limine opposing the use of polygraph testing results as evidence, and the testimony of a polygraph expert. Applicant filed a response motion. Based on the decision of the Appeal Board in ISCR Case No. 96-0785 (App. Bd. Sept. 3,1998), the government's motion was denied, the evidence was admitted, and the evidence would be weighed. Eleven government exhibits and four Applicant Exhibits were admitted into evidence. (1) Two additional Government Exhibits were admitted for administrative notice. Applicant testified. Two experts also testified on his behalf. Following a brief voir dire, the government stipulated to the expertise of the polygraph expert. (2) The government did not object to the qualifications of the second expert. (3) The hearing transcript (Tr.) was received on October 28, 2005.

FINDINGS OF FACT

Applicant admitted all the allegations of the SOR. (4) Those admissions are incorporated here as findings of fact. After a complete review of the evidence in the record and upon due consideration, I make the following additional findings of fact: Applicant is a 46-year-old support program manager for a defense contractor. (5) He has worked for this contractor or its predecessor for almost twenty years. (6) He completed a security clearance application (SF 86) in July 2002. (7) Applicant graduated from college in 1984 with a Bachelor of Arts degree. (8) He recently began working on his Masters in Business Administration. (9) His first marriage ended in divorce. (10) He has remarried. (11) He has primary custody of his twin sons, age 13. (12) He coaches soccer and baseball, and actively participates in the activities of his church, including bible study. (13) Since beginning his employment, Applicant has progressed forward in his job, assuming more responsibility over the years. He currently works as a program manager and co-team leader. (14) Since 1996, his performance evaluations have been "outstanding" or "exceeds requirements," with one "meets requirements". (15) He has received cash awards for his performance, and recently, a letter of appreciation. (16) Both his co-workers and his government team members recognize him as an expert in the work he does. (17) Between 1976 and 1984, his high school and college years, Applicant experimented with various illegal drugs. He tried cocaine about ten times, hallucinogenic mushrooms once, LSD once, hashish one a month or less for a few years, amphetamines about eight times, and marijuana on numerous occasions. (18) He never sold LSD, hashish, cocaine, hallucinogenic mushrooms, or amphetamines. (19) He never bought LSD, hallucinogenic mushrooms, or amphetamines. (20) He has not bought cocaine or hashish since 1985, and with the exception of marijuana, he has not used any drugs since this date. (21) In 1987, the police arrested Applicant and charged him with possession of a controlled substance (marijuana), a misdemeanor offense. (22) He pled not guilty. (23) The court found him guilty and fined him $100.00. (24) In 1990, Applicant completed a security clearance application, wherein he listed his 1987 arrest, (25) and signed a statement. (26) In his signed statement, he acknowledged smoking, and occasionally purchasing, marijuana from 1978 to 1984 due to peer pressure. (27) He then stated he quit smoking marijuana in 1984. (28) He also admitted purchasing and using cocaine while a student, but not to the use of other illegal drugs. (29) Finally, he stated he did not intend to use any illegal drugs in the future. (30) Subsequent to completing this statement, he received a security clearance in 1991. (31) In January 1998, Applicant and his young sons attended a super bowl party at the home of a friend. (32) During this time, he drank alcohol. He also observed a small bag on the floor. (33) He picked up the bag and put it in his pocket. (34) Before the party ended, his then wife called from the airport and asked that he drive to the airport and pick her up. (35) He told her he had been drinking and did not believe he should drive. (36) She became very upset, and started making threats related to their impending divorce. (37) He drove to the airport, and parked in a no parking zone. (38) The police arrived, conducted a sobriety field test, and searched him. (39) They found the bag in his pocket, and concluded that it may contain marijuana. (40) They then arrested him for driving under the influence (DUI) and charged him with DUI and unlawful possession of marijuana. (41) The court found him guilty of DUI, and dismissed the possession of marijuana charge. (42) The court sentenced him to two days in jail, fined him $400.00, and placed him on one year probation. (43) He has not used marijuana since 1997, and has stated that he does not intend to use it in the future. (44) He has not been arrested for any alcohol-related offenses. (45) He no longer associates with the friend with whom he drank and smoked marijuana. (46) As previously noted, Applicant completed a second security clearance application. Although he listed his 1998 arrest as a DUI, he did not list his 1987 arrest for possession of marijuana or the additional charge for possession of marijuana in 1998. (47) He failed to acknowledge his previous illegal drug use while a student and his use of marijuana after he had received a security clearance. (48) Instead, he answered "no" to questions 27 and 28. (49) Subsequent to completing his security clearance application, he completed three sworn statements. (50) In the first sworn statement, he stated he had not used any illegal drugs since 1984, while a college student. (51) 1. Pages B-12, B-14, B-15, and B-16 of Applicant Exhibit B and C-1 to C-3 and, C-9 of Applicant Exhibit C were highlighted in yellow by counsel prior to the submission of this evidence into the record. 2. Tr. at 44; See Fed.R. Evid. 702, 703. 3. Tr. at 41; See Fed.R. Evid. 702, 703. 4. Applicant's supplemental response to SOR, dated June 24, 2005 at 1-2. 5. Government Exhibit 1 (Security Clearance Application, dated July 15, 2002) at 1. 6. Id. 7. Id. 8. Id.; Tr. at 66. 9. Tr. at 66. 10. Id. at 67; Government Exhibit 1, supra note 5, at 2. 11. Tr. at 66; Government Exhibit 11 (Applicant's Answers to Interrogatories, dated March 19, 2004) at 5. 12. Tr. at 71, Applicant Exhibit C (Court documents on custody decision, dated October 28, 2003) at 9. 13. Applicant Exhibit D (Curriculm Vitae and report, dated October 13, 2005) at 14. 14. Tr. at 72, 78. 15. Applicant Exhibit B-1 through B-18 (Applicant's performance evaluations for the years 1996 through 1998, and 2001 through 2004) 16. Tr. at 74-76; Applicant Exhibit B-19 (letter of Appreciation, dated July 12, 2005). 17. Tr. at 78. 18. Government Exhibit 8 (Applicant's signed sworn statement, dated November 6, 2002). 19. Id. at 3-4. 20. Id. 21. Id. at 1-4. 22. Government Exhibit 10 (Applicant's signed sworn statement, dated October 10, 1990) at 1-2. 23. Id. at 2. 24. Id. 25. Tr. at 88-89. 26. Id. at 89; Government Exhibit 10, supra note 22, at 2. 27. Government Exhibit 10, supra note 22, at 2. 28. Id. at 3. 29. Id. 30. Id. 31. Tr. at 89. 32. Government Exhibit 8, supra note 18, at 1; Tr. at 68. 33. Government Exhibit 8, supra note 18, at 1-2; Tr. at 68. 34. Id. 35. Tr. at 68-69. 36. Id. 37. Id. 38. Id. 39. Id. at 69, 84. 40. Id. 41. Government Exhibit 2 (United States Department of Justice, Federal Bureau of Investigation, Criminal records report dated July 30, 2002); Government Exhibits 3-5 (State court records on 1998 arrest and disposition). 42. Government Exhibits 3-5, supra note 41. 43. Id. 44. Tr. at 100. 45. Id. 46. Id. 47. Government Exhibit 1, supra note 5, at 5. 48. Id at 5-6. 49. Id. 50. Government Exhibit 7 (Applicant's signed sworn statement, dated September 24, 2002); Government Exhibit 8, supra note 18; Government Exhibit 9 (Applicant's signed sworn statement, dated November 7, 2002). 51. (52) 52.

FOOTNOTES

03-04387.h1 FOR GOVERNMENT Melvin A. Howry, Esq., Department Counsel FOR APPLICANT Bruce R. Heurlin, Esq. file:///usr.osd.mil/...Computer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/03-04387.h1.html[6/24/2021 3:11:16 PM] 03-04387.h1