ISCR Case 03-16221.h1

Case Headnote

ISCR Case No. 03-16221.h1

deniedDec 7, 2005· Hon. Barry M. Sax· hearing

Summary

A 53-year-old male applicant was denied a security clearance due to concerns under Guideline H (Drug Involvement) and Guideline J (Criminal Conduct). The applicant had a long history of drug abuse, dating back to the early 1970s and continuing until at least January 2001. This included frequent use of cocaine, including crack cocaine, from August 1997 to January 2001, with approximately 20-25 uses in the three years prior to January 2001. He also used marijuana, hashish, peyote, LSD, amphetamines, and mescaline at various times. Notably, he continued illegal drug use for several years after being granted a Department of Defense security clearance in June 1997, despite a sworn statement in 1982 that he did not intend to use drugs in the future.

In early 2001, the applicant received treatment for cocaine abuse, with a diagnosis indicating a high probability of substance dependence. Following this, he continued with Cocaine Anonymous for an additional period.

Beyond drug involvement, the applicant had a record of non-alcohol-related criminal activity. This included a 1971 arrest for possession and sale of dangerous drugs (dismissed), a 1971 non-judicial punishment for marijuana possession, a 1975 arrest for rape (dismissed), a 1999 arrest for assault and disorderly conduct (dismissed after probation and program completion), and a 2002 arrest for prostitution and loitering for the purpose of prostitution, resulting in a guilty finding for loitering and 12 months probation. The judge found that this pattern of conduct raised significant security concerns, leading to the denial of his clearance application.

Why the Applicant Was Denied

The applicant has a long history of drug abuse, including cocaine use until at least January 2001.
He continued to use illegal drugs for several years after receiving a security clearance in 1997.
The applicant has a record of non-alcohol-related criminal activity, including arrests for assault and prostitution.

Conditions Referenced

Disqualifying

AG ¶ 24(a)raisedDrug Abuse
AG ¶ 24(b)raisedIllegal Drug Possession
AG ¶ 30(a)raisedAny Criminal Conduct
AG ¶ 30(b)raisedA Single Serious Crime or Multiple Lesser Offenses

Mitigating

AG ¶ 21(a)rejectedDrug Involvement Was Not RecentThe applicant's drug use history is extensive and recent use raises concerns.
AG ¶ 21(d)rejectedSuccessful Completion of a Rehabilitation ProgramWhile the applicant completed a treatment program, the judge found insufficient evidence of successful rehabilitation.

Key Rule Quoted

“An applicant's admission of the information in specific allegations relieves the Government of having to prove those allegations.”

Procedural Posture

SOR issuedSep 8, 2004
Answer filedSep 24, 2004
Hearing held—Decision based on written record.
Decision dateDec 7, 2005

Cite For

Long History of Drug Abuse Under Guideline H
Criminal Conduct Impacting Security Clearance Under Guideline J
Insufficient Evidence of Rehabilitation for Security Clearance Eligibility

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	used cocaine, to include crack cocaine, with varying frequency, from August 1997 to at least January 2001. During the three years prior to January 2001, he had used cocaine "approximately 20-25 times"	Against Applicant	CocaineWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.b	has purchased cocaine.	Against Applicant	CocaineWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.c	received treatment, from January 22, 2001 to March 21, 2001, at a health care facility in State A. His condition was diagnosed in part, as Cocaine Abuse. The results of his drug screening indicated a high probability of substance dependence. After the treatment program was completed Applicant continued in Cocaine Anonymous for an additional period.	Against Applicant	Treatment FailureWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.d	used cocaine, as set forth in 1.a, above, after he was granted a Department of Defense security clearance on June 7, 1997.	Against Applicant	CocaineWHILE CLEARED	Frequent	Admitted	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.e	continued to use cocaine until at least January 2001, even though he had stated, in a sworn statement to an agent of the Defense Security Service (DSS), executed by Applicant on December 23, 1982, that he did not intend to use drugs in the future.	Against Applicant	CocaineWHILE CLEARED	Not Applicable	Admitted	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.f	used marijuana, with varying frequency, from 1970 to at least August 1982.	Against Applicant	Marijuana	Frequent	Admitted	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.g	has purchased marijuana.	Against Applicant	Marijuana	Not Applicable	Admitted	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.h	was arrested on October 13, 1971 in State B and charged with Possession and Sale of Dangerous Drugs. The charge was dismissed.	For Applicant	Drug Use During ClearanceWHILE CLEARED	Not Applicable	Denied	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.i	had non-judicial punishment (NJP) imposed on him on June 28, 1971, under Article 15 of the Uniform Code of Military Justice (UCMJ). The offense was his Possession of Six Grams, More or Less, of Marijuana.	Against Applicant	Drug Use During ClearanceWHILE CLEARED	Not Applicable	Denied	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.j	used hashish, with varying frequency, from March 1973 to at least August 1974.	Against Applicant	Unspecified Drug Involvement	Frequent	Denied	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.k	has purchased hashish.	Against Applicant	Unspecified Drug Involvement	Not Applicable	Denied	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.l	used peyote once, in 1972.	Against Applicant	Unspecified Drug Involvement	Experimental	Denied	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.m	used LSD once, in 1972.	Against Applicant	LSD	Experimental	Denied	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.n	used amphetamines once, in 1972.	Against Applicant	Unspecified Drug Involvement	Experimental	Denied	(a) any substance misuse (b) testing positive for an illegal drug	—	—
1.o	used mescaline once or twice, in 1970.	Against Applicant	DMT or Other Hallucinogen	Occasional	Denied	(a) any substance misuse (b) testing positive for an illegal drug	—	—

Allegation

Finding

Substance / event

Use level

Response

Disqualifying (¶25)

Mitigating applied (¶26)

Mitigation

1.a

used cocaine, to include crack cocaine, with varying frequency, from August 1997 to at least January 2001. During the three years prior to January 2001, he had used cocaine "approximately 20-25 times"

Against Applicant

CocaineWHILE CLEARED

Frequent

Admitted

(a) any substance misuse

(b) testing positive for an illegal drug

—

1.b

has purchased cocaine.

Against Applicant

CocaineWHILE CLEARED

Not Applicable

Admitted

(a) any substance misuse

(b) testing positive for an illegal drug

—

1.c

received treatment, from January 22, 2001 to March 21, 2001, at a health care facility in State A. His condition was diagnosed in part, as Cocaine Abuse. The results of his drug screening indicated a high probability of substance dependence. After the treatment program was completed Applicant continued in Cocaine Anonymous for an additional period.

Against Applicant

Treatment FailureWHILE CLEARED

Not Applicable

Admitted

(a) any substance misuse

(b) testing positive for an illegal drug

—

1.d

used cocaine, as set forth in 1.a, above, after he was granted a Department of Defense security clearance on June 7, 1997.

Against Applicant

CocaineWHILE CLEARED

Frequent

Admitted

(a) any substance misuse

(b) testing positive for an illegal drug

—

1.e

continued to use cocaine until at least January 2001, even though he had stated, in a sworn statement to an agent of the Defense Security Service (DSS), executed by Applicant on December 23, 1982, that he did not intend to use drugs in the future.

Against Applicant

CocaineWHILE CLEARED

Not Applicable

Admitted

(a) any substance misuse

(b) testing positive for an illegal drug

—

1.f

used marijuana, with varying frequency, from 1970 to at least August 1982.

Against Applicant

Marijuana

Frequent

Admitted

(a) any substance misuse

(b) testing positive for an illegal drug

—

1.g

has purchased marijuana.

Against Applicant

Marijuana

Not Applicable

Admitted

(a) any substance misuse

(b) testing positive for an illegal drug

—

1.h

was arrested on October 13, 1971 in State B and charged with Possession and Sale of Dangerous Drugs. The charge was dismissed.

For Applicant

Drug Use During ClearanceWHILE CLEARED

Not Applicable

Denied

(a) any substance misuse

(b) testing positive for an illegal drug

—

1.i

had non-judicial punishment (NJP) imposed on him on June 28, 1971, under Article 15 of the Uniform Code of Military Justice (UCMJ). The offense was his Possession of Six Grams, More or Less, of Marijuana.

Against Applicant

Drug Use During ClearanceWHILE CLEARED

Not Applicable

Denied

(a) any substance misuse

(b) testing positive for an illegal drug

—

1.j

used hashish, with varying frequency, from March 1973 to at least August 1974.

Against Applicant

Unspecified Drug Involvement

Frequent

Denied

(a) any substance misuse

(b) testing positive for an illegal drug

—

1.k

has purchased hashish.

Against Applicant

Unspecified Drug Involvement

Not Applicable

Denied

(a) any substance misuse

(b) testing positive for an illegal drug

—

1.l

used peyote once, in 1972.

Against Applicant

Unspecified Drug Involvement

Experimental

Denied

(a) any substance misuse

(b) testing positive for an illegal drug

—

1.m

used LSD once, in 1972.

Against Applicant

LSD

Experimental

Denied

(a) any substance misuse

(b) testing positive for an illegal drug

—

1.n

used amphetamines once, in 1972.

Against Applicant

Unspecified Drug Involvement

Experimental

Denied

(a) any substance misuse

(b) testing positive for an illegal drug

—

1.o

used mescaline once or twice, in 1970.

Against Applicant

DMT or Other Hallucinogen

Occasional

Denied

(a) any substance misuse

(b) testing positive for an illegal drug

—

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
2.a	the 1971 arrest alleged in SOR 1.h., above.	For Applicant	Weapons Offense	Dismissed or Nolle Prossed	Denied	—	—	—
2.b	the 1973 NJP alleged in SOR 1.i., above.	Against Applicant	Assault or Battery	Conduct No Charge	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
2.c	Applicant was arrested in January 1975 in State C, and charged with Rape. The charge was dismissed.	For Applicant	Unspecified Criminal Conduct	Dismissed or Nolle Prossed	Denied	—	—	—
2.d	Applicant was arrested on February 20, 1999 in State A. He was charged with (1) Assault and (2) Disorderly Conduct. He was placed on 12 months probation and ordered to attend a Domestic Violence Diversion Program. Both counts were dismissed after he successfully completed all conditions.	Against Applicant	Assault or Battery	Diversion or Deferred	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
2.e	Applicant was arrested on March 6, 2002 in State A and charged with (1) Prostitution and (2) Loitering for the Purpose of Prostitution. He was found guilty of Count 2 and was sentenced to 12 months probation. Count (1) was dismissed.	Against Applicant	Unspecified Criminal Conduct	Convicted	Denied	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—

Allegation

Finding

Offense

Criminal disposition

Response

Disqualifying (¶31)

Mitigating applied (¶32)

Mitigation

2.a

the 1971 arrest alleged in SOR 1.h., above.

For Applicant

Weapons Offense

Dismissed or Nolle Prossed

Denied

—

2.b

the 1973 NJP alleged in SOR 1.i., above.

Against Applicant

Assault or Battery

Conduct No Charge

Denied

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

—

2.c

Applicant was arrested in January 1975 in State C, and charged with Rape. The charge was dismissed.

For Applicant

Unspecified Criminal Conduct

Dismissed or Nolle Prossed

Denied

—

2.d

Applicant was arrested on February 20, 1999 in State A. He was charged with (1) Assault and (2) Disorderly Conduct. He was placed on 12 months probation and ordered to attend a Domestic Violence Diversion Program. Both counts were dismissed after he successfully completed all conditions.

Against Applicant

Assault or Battery

Diversion or Deferred

Denied

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

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

—

2.e

Applicant was arrested on March 6, 2002 in State A and charged with (1) Prostitution and (2) Loitering for the Purpose of Prostitution. He was found guilty of Count 2 and was sentenced to 12 months probation. Count (1) was dismissed.

Against Applicant

Unspecified Criminal Conduct

Convicted

Denied

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

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

—

Loading case…

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