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ISCR Case 03-11575.h1 — CASE

ISCR Case 03-11575.h1denied

Case Headnote

ISCR Case No. 03-11575.h1

deniedJul 30, 2004· Hon. John Grattan Metz, Jr.· hearing

Summary

A 20-year-old electrician was denied a security clearance due to concerns under Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The applicant had a history of marijuana use, occurring weekly from September 1998 to November 2001 and fortnightly from November 2001 to January 2003. Additionally, the applicant used LSD once in January 2003.

The denial was primarily based on the applicant's deliberate concealment of this drug history on his January 2003 security clearance application, which also constituted a violation of 18 U.S.C. §1001. The administrative judge found that the applicant's regular use of marijuana and a single instance of LSD demonstrated recent drug involvement.

Furthermore, the judge determined that the applicant's explanation for these omissions was not credible, indicating a significant lack of candor and trustworthiness. Consequently, the security clearance was denied.

Why the Applicant Was Denied

The applicant regularly used marijuana and LSD, demonstrating recent drug involvement.
The applicant falsified his security clearance application by concealing his drug history.
The applicant's explanation for his omissions was deemed not credible, indicating a lack of candor.

Conditions Referenced

Disqualifying

E2.A8.1.2.1raisedAny Drug Abuse
E2.A8.1.2.2raisedIllegal Drug Possession, Including Purchase
E2.A5.1.2.2raisedDeliberate Omission, Concealment, or Falsification of Relevant and Material Facts
E2.A10.1.2.1raisedAllegations or Admission of Criminal Conduct

Key Rule Quoted

“A security clearance decision is intended to resolve whether it is clearly consistent with the national interest to grant or continue an Applicant's security clearance.”
— Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural Posture

SOR issuedOct 20, 2003
Answer filedNov 13, 2003
Hearing held—Requested decision without hearing.
Decision dateJul 30, 2004

Cite For

Lack of Candor in Security Clearance Applications Under Guideline E
Recent Drug Involvement as a Disqualifying Factor Under Guideline H
Falsification of Security Clearance Applications as a Violation of Trustworthiness 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.

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 Guideline E due to deliberate concealment of drug use history on a security clearance application. The applicant admitted to using marijuana and LSD but did not disclose this information until confronted during an interview. The judge concluded that the applicant's lack of candor demonstrated a disregard for the trustworthiness required for security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	The applicant deliberately concealed his drug history from the government.	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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant was found to have regularly used marijuana and once used LSD, with a history of drug use from 1998 to 2003. The judge ruled against the applicant on all allegations under Guideline H, citing a lack of credible intent to refrain from future drug use and the deliberate concealment of his drug history in his clearance application.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The applicant bought and used marijuana weekly from September 1998 to November 2001 and fortnightly from November 2001 to January 2003.	Against Applicant	Marijuana	Regular	Admitted	—	—	—
1.b	The applicant used LSD once in January 2003.	Against Applicant	LSD	Experimental	Admitted	—	—	—
1.c	The applicant falsified his January 2003 clearance application by wilfully concealing this drug history.	Against Applicant	Unspecified Drug Involvement	Not Applicable	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 judge ruled against the applicant on Guideline J, finding that he deliberately concealed his drug history, which constituted criminal conduct under 18 U.S.C. §1001. The applicant's lack of candor and intent to mislead were significant factors in the decision to deny his security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	The applicant deliberately concealed his drug history from the government, which violated 18 U.S.C. §1001.	Against Applicant	Fraud or Deception Criminal	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (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: Drugs; Personal Conduct; Criminal Conduct

DIGEST: Applicant bought and used marijuana weekly from September 1998 to November 2001 and fortnightly from November 2001 to January 2003. He used LSD once in January 2003. He falsified his January 2003 clearance application by wilfully concealing this drug history. Clearance denied.

CASENO: 03-11575.h1

DATE: 07/30/2004

DATE: July 30, 2004

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 03-11575 DECISION OF ADMINISTRATIVE JUDGE

JOHN GRATTAN METZ, JR.

APPEARANCES

SYNOPSIS

Applicant bought and used marijuana weekly from September 1998 to November 2001 and fortnightly from November 2001 to January 2003. He used LSD once in January 2003. He falsified his January 2003 clearance application by wilfully concealing this drug history. Clearance denied.

STATEMENT OF CASE

Applicant challenges the 20 October 2003 Defense Office of Hearings and Appeals (DOHA) Statement of Reasons (SOR) recommending denial or revocation of his clearance because of drug involvement, personal conduct, and criminal conduct (1). He answered the SOR 13 November 2003, and requested a decision without hearing. He did not respond to DOHA's 17 May 2004 File of Relevant Material (FORM). The record closed 19 July 2004, when the response was due. DOHA assigned the case to me 19 July 2004.

FINDINGS OF FACT

Applicant admitted the allegations of the SOR, but denied intent to falsify his clearance application. I incorporate his admissions as findings of fact. He is a 20-year-old electrician employed by a defense contractor since August 2002. He has never applied for a clearance before.

When Applicant applied for a clearance in January 2003, he deliberately concealed his extensive drug abuse and drug purchases from September 1998 to January 2003. During a Defense Security Service interview in March 2003, he admitted deliberately omitting his drug abuse because he wanted to conceal it from his employer. He claimed he fully intended to disclose his drug abuse during his personal interview. However, while he disclosed his drug history during that interview, there is no evidence that he volunteered the information before being questioned or confronted. His answer repeats this stated intent and claims he was too embarrassed to disclose his drug history.

Applicant used marijuana weekly from September 1998 to November 2001, spending about $40.00 per week buying "quarter" bags. He mostly used alone, but sometimes shared with his friends. He used marijuana fortnightly from November 2001 to January 2003, buying a "quarter" bag every two or three weeks. Again, he mostly used alone, but sometimes shared with friends. He spent about $2,000.00 on marijuana over this period. He claims he stopped using marijuana after he experienced a bad LSD trip in January 2003, the first and only time he used LSD. He says he intends to remain drug-free.

POLICIES

The Directive, Enclosure 2 sets forth adjudicative guidelines to be considered in evaluating an Applicant's suitability for access to classified information. The Administrative Judge must take into account both disqualifying and mitigating conditions under each adjudicative issue fairly raised by the facts and circumstances presented. Each adjudicative decision must also reflect a fair and impartial common sense consideration of the factors listed in Section 6.3. of the Directive. The presence or absence of a disqualifying or mitigating condition is not determinative for or against Applicant. However, specific adjudicative guidelines should be followed whenever a case can be measured against them, as they represent policy guidance governing the grant or denial of access to classified information. Considering the SOR allegations and the evidence as a whole, I conclude the relevant, applicable, adjudicative guidelines are Guideline H (Drug Involvement), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct).

BURDENS

A security clearance decision is intended to resolve whether it is clearly consistent with the national interest to grant or continue an Applicant's security clearance. The government must prove, by something less than a preponderance of the evidence, controverted facts alleged in the SOR. If it does so, it establishes a prima facie case against access to classified information. Applicant must then refute, extenuate or mitigate the Government's case. Because no one has a right to a security clearance, the Applicant bears a heavy burden of persuasion.

A person who has access to classified information enters into a fiduciary relationship with the Government based on trust and confidence. The Government, therefore, has a compelling interest in ensuring each Applicant possesses the requisite judgement, reliability, and trustworthiness of those who must protect national interests as their own. The "clearly consistent with the national interest" standard compels resolution of any reasonable doubt about an Applicant's suitability for access in favor of the Government. (2)

CONCLUSION

The government established a Guideline H case and Applicant did not mitigate the conduct. He bought and abused marijuana regularly from 1998 to 2003. (3) His use is recent. (4) While he now vows to remain drug free, in part because of the bad LSD trip in January 2003, that vow is neither credible nor sufficient to demonstrate intent to refrain from drug abuse in the future, particularly given the circumstances of Applicant's past use. Accordingly, I resolve Guideline H against Applicant.

The government established a Guideline E and J case and Applicant did not mitigate the conduct. He deliberately concealed his drug history from the government. (5) His explanation is not credible and I conclude he intended to conceal this information from both the government and his employer. This conduct violated 18 U.S.C. §1001. (6) While he disclosed his drug history during his March 2002 interview, he did not disclose the information before then and no evidence suggests he voluntarily disclosed the information before questioning or confrontation.

Applicant's conduct demonstrates a lack of candor required of cleared personnel. The government has an interest in examining all relevant and material adverse information about an Applicant before making a clearance decision. The government relies on applicants to truthfully disclose that adverse information. Further, an applicant's willingness to report adverse information about himself provides some indication of his willingness to report inadvertent security violations or other security concerns in the future, something the government relies on in order to perform damage assessments and limit the compromise of classified information. Applicant's conduct suggests he is willing to put his personal needs ahead of legitimate government interests. I resolve Guideline E and J against Applicant.

FORMAL FINDINGS

Paragraph 1. Guideline H: AGAINST THE APPLICANT

Subparagraph a: Against the Applicant

Subparagraph b: Against the Applicant

Subparagraph c: Against the Applicant Paragraph 2. Guideline E: AGAINST THE APPLICANT

Subparagraph a: Against the Applicant

Paragraph 3. Guideline J: AGAINST THE APPLICANT

Subparagraph 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 Applicant.

___________________ John G. Metz, Jr.

Administrative Judge

1. Required by Executive Order 10865 and Department of Defense Directive 5220.6, as amended (Directive).

2. See, Department of the Navy v. Egan, 484 U.S. 518 (1988).

3. E2.A8.1.2.1. Any drug abuse. . .; E2.A8.1.2.2. Illegal drug possession, including. . . purchase. . .

4. E2.A8.1.2.5…. Recent drug involvement. . . will almost invariably result in an unfavorable determination.

5. E2.A5.1.2.2. The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, . . . [or] determine security clearance eligibility or trustworthiness. . .; 6. E2.A10.1.2.1. Allegations or admission of criminal conduct, regardless of whether the person was formally charged; E2.A10.1.2.2. A single serious crime or multiple lesser offenses.

FOOTNOTES

FOR GOVERNMENT Braden M. Murphy, Esquire, Department Counsel FOR APPLICANT file:///usr.osd.mil/...Computer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/03-11575.h1.htm[6/24/2021 3:19:28 PM] Pro Se