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ISCR Case 03-09915.h1 — CASE

Case record

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

Decision Date8/18/2004
Statusdenied
LevelHEARING
TypeSTANDARD ISCR
Participants
Judge: James A. Young
Applicant's Counsel: Wilbur C. Smith
Guidelines Evaluated
- Guideline EPersonal Conduct · Unknown Outcome
- Guideline GAlcohol Consumption · Unknown Outcome
- Guideline HDrug Involvement & Substance Misuse · Unknown Outcome
- Guideline JCriminal Conduct · Unknown Outcome

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ISCR Case 03-09915.h1denied

Case Headnote

ISCR Case No. 03-09915.h1

deniedAug 18, 2004· Hon. James A. Young· hearing

Summary

A male applicant was denied a security clearance under Guidelines E (Personal Conduct), G (Alcohol Consumption), H (Drug Involvement), and J (Criminal Conduct). The denial stemmed from a history of criminal conduct, drug involvement, and excessive alcohol consumption, along with deliberate omissions on his security clearance application (SCA).

The Statement of Reasons detailed several allegations. These included excessive alcohol consumption from 1997 to at least January 2003, an underage drinking charge in 1997, and a 2001 conviction for DWAI. Drug involvement included marijuana use from 1997 to January 2002, and ecstasy and psilocybin use in 2000 and 2001. Criminal conduct included a 1998 arrest for disorderly conduct.

Furthermore, the applicant was found to have falsified material facts on his SCA by failing to disclose the 1997 underage drinking charge, the 1998 disorderly conduct arrest, and his ecstasy and psilocybin use in 2000 and 2001. The judge concluded that the applicant failed to mitigate the security concerns, specifically noting a lack of demonstrated positive changes regarding alcohol consumption, no clear intent to refrain from future drug abuse, and the knowing provision of false information on his application.

Why the Applicant Was Denied

The applicant has a history of excessive alcohol consumption and failed to demonstrate positive changes in behavior.
The applicant admitted to illegal drug use and did not establish a clear intent to refrain from future drug abuse.
The applicant knowingly provided false information on his security clearance application, failing to disclose relevant criminal history.

Conditions Referenced

Disqualifying

E2.A7.1.2.1raisedExcessive Alcohol Consumption
E2.A8.1.2.1raisedDrug Involvement
E2.A5.1.2.2raisedFalsification of Material Facts
E2.A10.1.2.2raisedCriminal Conduct

Key Rule Quoted

“The failure to disclose the alleged information in his SCA shifted the burden to Applicant to explain the omissions sufficiently to negate a finding of knowing and deliberate falsification.”
— ISCR Case No. 02-23133 at 5 (App. Bd. Jun. 9, 2004)

Procedural Posture

SOR issuedFeb 20, 2004
Answer filedMar 17, 2004
Hearing heldJun 21, 2004
Decision dateAug 18, 2004

Cite For

Failure to Mitigate Excessive Alcohol Consumption Under Guideline G
Failure to Disclose Criminal History Under Guideline E
Rebuttable Presumption of Drug Involvement Under Guideline H

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 all allegations under Guideline E, concluding that the applicant had deliberately failed to disclose relevant information on his security clearance application. The applicant's omissions were deemed to indicate a lack of candor and untrustworthiness, leading to the denial of his security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
3.a	Applicant falsified material facts on his SCA by deliberately failing to disclose he had been charged with underage drinking in 1997	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	—	—	—
3.b	Applicant falsified material facts on his SCA by deliberately failing to disclose he had been arrested for disorderly conduct in 1998	Against Applicant	Falsification Security FormFOUND DELIBERATE	Criminal Conduct	Denied	—	—	—
3.c	Applicant falsified material facts on his SCA by deliberately failing to disclose he had used ecstasy and psilocybin in 2000 and 2001	Against Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	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 G (Alcohol Consumption) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on all allegations related to alcohol consumption. The applicant had a history of excessive alcohol consumption, including a DUI conviction and an underage drinking citation, which he failed to mitigate. Consequently, the judge denied the security clearance.

¶	Allegation	Finding	Incident	Response	Disqualifying (¶22)	Mitigating applied (¶23)	Mitigation
1.a	Applicant consumed alcohol to excess from 1997 to at least 24 January 2003.	Against Applicant	Binge or Intoxication Pattern	Admitted	—	—	—
1.b	was charged with underage drinking in November 1997.	Against Applicant	Underage Drinking	Admitted	—	—	—
1.c	was arrested in April 2001 and subsequently convicted of DWAI.	Against Applicant	DUI or DWI Alcohol	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 judge found against the applicant on all allegations related to drug involvement under Guideline H. The applicant had a history of illegal drug use, including marijuana, ecstasy, and psilocybin, which raised concerns about his reliability and trustworthiness. As a result, the applicant's request for a security clearance was denied.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a	specific text not stated in this decision	Against Applicant	Unspecified Drug Involvement	Unspecified	Unknown	—	—	—
2.b	Applicant used marijuana from 1997 to January 2002	Against Applicant	Marijuana	Frequent	Admitted	(b) testing positive for an illegal drug	—	—
2.c	Applicant used ecstasy in 2000 and 2001	Against Applicant	MDMA	Experimental	Admitted	(b) testing positive for an illegal drug	—	—
2.c	Applicant used psilocybin (mushrooms) in about 2000 and 2001	Against Applicant	Psilocybin	Experimental	Admitted	(b) testing positive for an illegal drug	—	—

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 judge found against the applicant on all allegations under Guideline J, which included a history of criminal conduct involving disorderly conduct, underage drinking, and a conviction for driving while ability impaired (DWAI). The applicant failed to mitigate the concerns raised by this history, leading to the denial of the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
4.a	Applicant was arrested and charged with disorderly conduct in 1998.	Against Applicant	Unspecified Criminal Conduct	Charged Not Convicted	Unknown	(b) evidence of criminal conduct, regardless of charge or conviction	—	—
4.b	Applicant was cited for underage drinking in 1997, and convicted of DWAI in 2001.	Against Applicant	DUI or DWI Criminal	Convicted	Unknown	(b) evidence of criminal conduct, regardless of charge or conviction	—	—
4.c	Applicant violated 19 U.S.C. § 1001 by deliberately omitting material facts (as alleged in ¶ 3) from his SCA.	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Unknown	(b) evidence of criminal conduct, regardless of charge or conviction	—	—

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

SYNOPSIS

KEYWORD: Alcohol; Drugs; Personal Conduct; Criminal Conduct

DIGEST: Applicant has a history of criminal conduct, drug involvement, and excessive consumption of alcohol that he failed to mitigate. Clearance is denied.

CASENO: 03-09915.h1

DATE: 08/18/2004

DATE: August 18, 2004

In re:

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

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

Applicant for Security Clearance

ISCR Case No. 03-09915

DECISION OF ADMINISTRATIVE JUDGE

JAMES A. YOUNG

APPEARANCES

FOR GOVERNMENT

Francisco J. Mendez, Esq., Department Counsel

FOR APPLICANT Wilbur C. Smith, Esq.

SYNOPSIS

Applicant has a history of criminal conduct, drug involvement, and excessive consumption of alcohol that he failed to mitigate. Clearance is denied.

STATEMENT OF CASE

The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. On 20 February 2004, DOHA issued a Statement of Reasons (1) (SOR) detailing the basis for its decision-security concerns raised under Guideline G (Alcohol Consumption), Guideline H (Drug Involvement), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct) of the Directive. Applicant answered the SOR in writing on 17 March 2004 and elected to have a hearing before an administrative judge. The case was assigned to me on 20 May 2004. On 21 June 2004, I convened a hearing to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. DOHA received the hearing transcript (Tr.) on 1 July 2004. I left the record open for Applicant to submit additional character statements. Without objection, I admitted both documents he submitted- Exhibits E (Statement of manager) and F (Statement of friend).

FINDINGS OF FACT

Applicant consumed alcohol to the point of intoxication from 1997 to at least January 2003. Answer at 1. In 1997, during his freshman year in college, police stopped Applicant and his friends as they walked home from a fraternity party with cups of beer in their hands. Applicant was cited for underage drinking. He pled guilty to the charge, was fined, and ordered to attend first level alcohol awareness classes. Applicant successfully completed the classes. Tr. 15.

In February 1998, university police arrested Applicant for disorderly conduct. Ex. 4; Answer.

In April 2001, Applicant was driving a friend home. She became ill. He stopped the vehicle in the right-turn lane near a street corner. His passenger leaned out the window and vomited. A police officer stopped to investigate. He smelled alcohol on applicant's breath and saw that his eyes were bloodshot and watery and his speech was impaired. Applicant failed a roadside sobriety test and was administered a breath test. The results showed .163 grams of alcohol per 210 liters of breath. The police officer arrested Applicant and charged him with driving while under the influence of alcohol (DUI) and driving a vehicle with excess alcohol on his breath. Another test was performed at the county jail. The result was .127. Applicant pled guilty to a lesser charge of driving with his ability impaired (DWAI). The court sentenced him on 24 July 2001 to a term of probation from 3-18 months, community service, a fine, and the second level alcohol education program. Ex. 3; Answer; Tr. 18.

Applicant used illegal drugs of abuse from January 1997 to January 2002. He first used marijuana in high school and then on occasion in college. He stopped using marijuana in January 2002 because he came to realize it could jeopardize the future his college degree made possible. Applicant used ecstasy twice and psilocybin (hallucinogenic mushrooms) three to four times between 2000 and 2001. He stopped using ecstasy because he did not enjoy it.

Applicant completed his security clearance application (SCA) on 24 June 2002, certifying that it was "true, complete, and correct" to the best of his knowledge and belief, and acknowledging that "a knowing and willful false statement" could be punished by fine and imprisonment under the provisions of 18 U.S.C. § 1001. Ex. 1. Question 24 asked if Applicant had ever been charged with or convicted of any offense related to alcohol or drugs. Applicant answered "yes" and listed his 2001 DWAI conviction, but did not mention being charged with underage drinking in 1997. Question 26 asked if, in the previous seven years, Applicant had been arrested for, charged with, or convicted of any other offenses not listed elsewhere on the SCA. Applicant answered "no" and failed to list his 1998 arrest for disorderly conduct. Question 27 asked if, in the previous seven years, Applicant had illegally used any controlled substances. Applicant answered "yes," and listed his marijuana use, but deliberately failed to mention his use of ecstasy and psilocybin because he was concerned that to do so could affect his ability to get a security clearance. Ex. 3 at 2.

POLICIES

"[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has "the authority to . . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position . . . that will give that person access to such information." Id. at 527. The President has restricted eligibility for access to classified information to United States citizens "whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information." Exec. Or. 12968, Access to Classified Information § 3.1(b) (Aug. 4, 1995). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive.

Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. The Directive presumes a nexus or rational connection between proven conduct under any of the disqualifying conditions listed in the guidelines and an applicant's security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002); see Directive ¶ E3.1.15. An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ISCR Case No. 01-20700 at 3.

CONCLUSION

Guideline G--Alcohol Consumption

In the SOR, DOHA alleged Applicant consumed alcohol to excess from 1997 to at least 24 January 2003 (¶ 1.a), was charged with underage drinking in November 1997 (¶ 1.b), and was arrested in April 2001 and subsequently convicted of DWAI (¶ 1.c). Excessive alcohol consumption often leads to the exercise of questionable judgment, unreliability, failure to control impulses, and increases the risk of unauthorized disclosure of classified information due to carelessness. Directive ¶ E2.A7.1.1.

The Government established by substantial evidence each of the allegations in the SOR. Applicant had alcohol-related incidents away from work-his DWAI and citation for underage drinking. DC E2.A7.1.2.1. And he admits to a history of drinking to the point of intoxication; this could lead to the exercise of questionable judgment and increases the risk of unauthorized disclosure of classified information. Applicant contends he has limited his drinking to "only consuming a couple of drinks only on the weekend or so. If I want to enjoy a drink I'll have one." An applicant may mitigate excessive alcohol consumption by establishing that he has made positive changes in behavior supportive of sobriety. MC E2.A7.1.3.3. Applicant failed to convince me he has made such changes in his behavior. None of the mitigating conditions apply. I find against Applicant. Guideline H--Drug Involvement

In the SOR, DOHA alleged Applicant used marijuana from 1997 to January 2002 (¶ 2.b), used ecstasy in 2000 and 2001 (¶ 2.b), and used psilocybin (mushrooms) in about 2000 and 2001 (¶ 2.c). The improper or illegal involvement with drugs raises questions regarding an applicant'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. Directive ¶ E2.A8.1.1.

The Government established by substantial evidence and Applicant's admissions each of the allegations in the SOR. Applicant has a history of abusing drugs listed in the Controlled Substances Act of 1970. DC E2.A8.1.2.1. It is not clear when, if at all, Applicant stopped using illegal drugs. At one point he claimed he stopped using drugs before his DWAI, but then admitted to sporadically using drugs after the DWAI. See Tr. 16, 19, 26-28. Under the circumstances, I am unable to conclude Applicant has "[a] demonstrated intent not to abuse any drugs in the future." See MC E2.A8.1.3.3. As Applicant has not established any of the mitigating conditions, I find against him.

Guideline E--Personal Conduct

In the SOR, DOHA alleged Applicant falsified material facts on his SCA by deliberately failing to disclose he had been charged with underage drinking in 1997 (¶ 3.a), arrested for disorderly conduct in 1998 (¶ 3.b), and used ecstasy and psilocybin in 2000 and 2001 (¶ 3.c). Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate the applicant may not properly safeguard classified information. Directive ¶ E2.A5.1.1.

The Government established by substantial evidence that Applicant failed to disclose in his SCA that he had been charged with underage drinking in 1997, had been arrested for disorderly conduct in 1998, or had used ecstasy and psilocybin in 2000 and 2001. The deliberate omission of relevant and material facts from an SCA may disqualify an applicant from a security clearance. DC E2.A5.1.2.2. The failure to disclose the alleged information in his SCA shifted the burden to Applicant to explain the omissions sufficiently to negate a finding of knowing and deliberate falsification. See ISCR Case No. 02-23133 at 5 (App. Bd. Jun. 9, 2004).

Applicant admitted he deliberately provided false information about his drug use because it might affect his ability to get a clearance. Ex. 3 at 2. Applicant failed to credibly explain his omissions sufficiently to negate adverse findings. Guideline J--Criminal Conduct

In the SOR, DOHA alleged Applicant was arrested and charged with disorderly conduct in 1998 (¶ 4.a), cited for underage drinking in 1997, and convicted of DWAI in 2001 (¶ 4.b), and violated 19 U.S.C. § 1001 by deliberately omitting material facts (as alleged in ¶ 3) from his SCA. A history or pattern of criminal activity creates doubt about an applicant's judgment, reliability, and trustworthiness. Directive ¶ E2.A10.1.1.

It is a criminal offense to knowingly and willfully make any materially false, fictitious, or fraudulent statement or representation in any matter within the executive branch of the Government of the United States. 18 U.S.C. § 1001. Security clearances are within the jurisdiction of the executive branch of the Government of the United States. See Egan, 484 U.S. at 527.

The Government established each of the allegations by substantial evidence. Applicant was arrested in 1998 and charged with disorderly conduct, was charged with underage drinking in 1997, and convicted of DWAI in 2001. Based on Applicant's admissions, I conclude he knowingly and willfully made materially false representations on his SCA in violation of 18 U.S.C. 1001. Applicant has a history of committing criminal offenses. DC E2.A10.1.2.2. Applicant failed to establish clear evidence of successful rehabilitation (MC E2.A10.1.3.6) or any other mitigating condition. I find against Applicant.

FORMAL FINDINGS

The following are my conclusions as to each allegation in the SOR:

Paragraph 1. Guideline G: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant

Subparagraph 1.b: Against Applicant Subparagraph 1.c: Against Applicant

Paragraph 1. Guideline H: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

Subparagraph 2.b: Against Applicant

Subparagraph 2.c: Against Applicant

Paragraph 1. Guideline E: AGAINST APPLICANT

Subparagraph 3.a: Against Applicant

Subparagraph 3.b: Against Applicant

Subparagraph 3.c: Against Applicant

Paragraph 4. Guideline J: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

Subparagraph 2.b: Against Applicant

Subparagraph 2.c: Against Applicant

DECISION

In light of all of 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. Clearance is denied. James A. Young

Administrative Judge

1. Pursuant to Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified (Directive).

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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

SYNOPSIS

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

POLICIES

CONCLUSION

FORMAL FINDINGS

DECISION

FOOTNOTES