ISCR Case 03-05082.h1

Case Headnote

ISCR Case No. 03-05082.h1

deniedApr 28, 2004· Hon. Henry Lazzaro· hearing

Summary

A 47-year-old male applicant was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The denial stemmed primarily from a 1975 conviction for Receiving Stolen Goods, which resulted in a statutory disqualification under 10 U.S.C. § 986. Additionally, the applicant provided false information on his August 19, 2002, SF 86 security clearance application by failing to disclose a 1998 marijuana use and incorrectly answering questions about illegal drug use since age 16, in the last 7 years, and while possessing a security clearance.

The applicant had a history of drug use, including marijuana, cocaine, and LSD, from the early 1970s until an arrest in 1982, with a single instance of marijuana use in 1998. He was also convicted of Possession of Marijuana in 1982, receiving a suspended jail sentence, probation, and a fine. While some mitigating conditions related to drug involvement were considered, they were not sufficient to overcome the statutory disqualification and the deliberate falsification of his application.

The judge found that the applicant's false answer on the SF 86 undermined his trustworthiness, and his explanations for the falsification were inadequate. Consequently, the security clearance was denied.

Why the Applicant Was Denied

The applicant provided a false answer regarding drug use on his SF 86, undermining trustworthiness.
The applicant's 1975 conviction for Receiving Stolen Goods resulted in a statutory disqualification under 10 U.S.C. § 986.
The applicant's explanations for the false answer were not sufficient to mitigate security concerns.

Conditions Referenced

Disqualifying

DC 2raisedA Single Serious Crime or Multiple Lesser Offenses
DC 3raisedConviction in a Federal or State Court, Including a Court-martial of a Crime and Sentenced to Imprisonment for a Term Exceeding One Year

Mitigating

MC 1appliedThe Criminal Behavior Was Not Recent
MC 4appliedThe Factors Leading to the Violation Are Not Likely to Recur
MC 6appliedThere Is Clear Evidence of Successful Rehabilitation
MC 1appliedThe Drug Involvement Was Not Recent
MC 3appliedA Demonstrated Intent Not to Abuse Drugs in the Future

Key Rule Quoted

“The clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.”
— Egan, 484 U.S. at 531.

Procedural Posture

SOR issuedAug 27, 2003
Answer filedOct 1, 2003
Hearing heldJan 30, 2004
Decision dateApr 28, 2004

Cite For

Statutory Disqualification Under 10 U.S.C. § 986
Deliberate Falsification of Security Clearance Application
Mitigation of Drug Involvement Concerns

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
3.a	Applicant failed to disclose the 1998 marijuana use in a Security Clearance Application (SF 86) he signed on August 19, 2002.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	Admitted	(b) deliberately providing false information to an investigator or official	—	—
3.b	Applicant answered "No" to question 28 in the SF 86, which asked if he had ever illegally used a controlled substance while possessing a security clearance.	For Applicant	Falsification Security Form	—	Admitted	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

3.a

Applicant failed to disclose the 1998 marijuana use in a Security Clearance Application (SF 86) he signed on August 19, 2002.

Against Applicant

Falsification Security FormFOUND DELIBERATE

Drug Involvement

Admitted

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

—

3.b

Applicant answered "No" to question 28 in the SF 86, which asked if he had ever illegally used a controlled substance while possessing a security clearance.

For Applicant

Falsification Security Form

—

Admitted

—

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a	The applicant used marijuana, cocaine, and LSD somewhat sporadically between the early 1970s and his arrest in 1982. He again used marijuana on a single occasion in 1998.	For Applicant	MarijuanaWHILE CLEARED	Occasional	Admitted	(a) any substance misuse	(a) behavior happened long ago / infrequent / unlikely to recur (c) prescription abuse followed a prolonged illness and has since ended	—
2.b	The applicant answered "No" to question 27 in the Security Clearance Application (SF 86) he signed on August 19, 2002, which asked about illegal drug use since the age of 16 or in the last 7 years.	For Applicant	Drug Use During ClearanceWHILE CLEARED	Not Applicable	Admitted	—	—	—
2.c	The applicant answered "No" to question 28 in the SF 86, which asked if he had ever illegally used a controlled substance while possessing a security clearance.	For Applicant	Drug Use During ClearanceWHILE CLEARED	Not Applicable	Admitted	—	—	—

Allegation

Finding

Substance / event

Use level

Response

Disqualifying (¶25)

Mitigating applied (¶26)

Mitigation

2.a

The applicant used marijuana, cocaine, and LSD somewhat sporadically between the early 1970s and his arrest in 1982. He again used marijuana on a single occasion in 1998.

For Applicant

MarijuanaWHILE CLEARED

Occasional

Admitted

(a) any substance misuse

(a) behavior happened long ago / infrequent / unlikely to recur

(c) prescription abuse followed a prolonged illness and has since ended

—

2.b

The applicant answered "No" to question 27 in the Security Clearance Application (SF 86) he signed on August 19, 2002, which asked about illegal drug use since the age of 16 or in the last 7 years.

For Applicant

Drug Use During ClearanceWHILE CLEARED

Not Applicable

Admitted

—

2.c

The applicant answered "No" to question 28 in the SF 86, which asked if he had ever illegally used a controlled substance while possessing a security clearance.

For Applicant

Drug Use During ClearanceWHILE CLEARED

Not Applicable

Admitted

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
1.a	Applicant was convicted of Receiving Stolen Goods in 1975, sentenced to imprisonment for two years (all but 60 days being suspended), placed on eighteen months supervised probation, and ordered to pay restitution.	Against Applicant	Theft or Larceny	Convicted	Admitted	(b) evidence of criminal conduct, regardless of charge or conviction (c) currently on parole or probation	—	—
1.b	Applicant was arrested for Possession of Marijuana on March 19, 1982. He was convicted of that offense on June 30, 1982 and sentenced to serve 30 days in jail (suspended), eighteen months unsupervised probation, and fined $100.00.	For Applicant	Drug Related Criminal Charge	Convicted	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	(a) so much time has passed, or unusual circumstances, that it is unlikely to recur (c) no reliable evidence the individual committed the offense	Documented No Subsequent Offenses

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

1.a

Applicant was convicted of Receiving Stolen Goods in 1975, sentenced to imprisonment for two years (all but 60 days being suspended), placed on eighteen months supervised probation, and ordered to pay restitution.

Against Applicant

Theft or Larceny

Convicted

Admitted

(b) evidence of criminal conduct, regardless of charge or conviction

(c) currently on parole or probation

—

1.b

Applicant was arrested for Possession of Marijuana on March 19, 1982. He was convicted of that offense on June 30, 1982 and sentenced to serve 30 days in jail (suspended), eighteen months unsupervised probation, and fined $100.00.

For Applicant

Drug Related Criminal Charge

Convicted

Admitted

(a) pattern of minor offenses casting doubt on judgment/reliability

(a) so much time has passed, or unusual circumstances, that it is unlikely to recur

(c) no reliable evidence the individual committed the offense

Documented

No Subsequent Offenses

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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

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES