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ISCR Case 03-17410.h1 — CASE

ISCR Case 03-17410.h1denied

Case Headnote

ISCR Case No. 03-17410.h1

deniedJan 24, 2005· Hon. Joseph Testan· hearing

Summary

A 45-year-old defense contractor was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from intentional falsifications on his 1997 and 1999 Security Clearance Applications (SCAs) regarding illegal drug use. Specifically, he falsely answered "no" to a question asking if he had ever illegally used a controlled substance while holding a security clearance or in a position affecting public safety.

The applicant's testimony regarding these falsifications was deemed incredible, with the judge finding his interpretation of the question absurd and developed after the fact. Furthermore, in March 2001, after initially denying marijuana use when confronted by his employer's security department, he admitted to smoking marijuana. Despite promising to cease use to protect his job and clearance, he continued to use marijuana until at least May, and possibly June, 2003.

The judge concluded that the applicant intentionally falsified material facts on his SCAs, which are felonies. This, combined with his long-term marijuana use, his inability or unwillingness to be truthful about it, and his continued use after promising to abstain, demonstrated a continuing pattern of dishonesty and a lack of credibility, reliability, and trustworthiness.

Why the Applicant Was Denied

The applicant intentionally falsified material facts on his Security Clearance Applications in 1997 and 1999, which are felonies under 18 U.S.C. 1001.
The applicant's testimony at the hearing was deemed incredible and demonstrated a continuing pattern of dishonesty.
The applicant's long-term marijuana use and failure to cease use after promising to do so indicated a lack of reliability and trustworthiness.

Conditions Referenced

Disqualifying

E2.A5.1.2.2appliedDeliberate Omission, Concealment, or Falsification of Relevant and Material Facts From Any Personnel Security Questionnaire.
E2.A8.1.2.1appliedAny Drug Abuse.

Key Rule Quoted

“When such an individual intentionally falsifies material facts on a security clearance application, it is extremely difficult to conclude that he or she nevertheless possesses the good judgment, reliability and trustworthiness required of clearance holders.”

Procedural Posture

SOR issuedJun 10, 2004
Answer filedJul 1, 2004
Hearing heldNov 16, 2004
Decision dateJan 24, 2005

Cite For

Intentional Falsification of Security Clearance Applications Under Guideline E
Credibility Issues in Testimony Affecting Security Clearance Decisions
Long-term Drug Use Impacting Security Clearance Eligibility 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 Guideline E due to intentional falsifications of material facts on security clearance applications. The applicant's conduct was deemed a continuing pattern of dishonesty that was too serious to be mitigated, resulting in the denial of clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	In April 1997, applicant intentionally provided false information on a Security Clearance Application (SCA) that he knew was going to be used to assess his security-worthiness. Specifically, in response to Question 28, which asked, "Have you EVER illegally used a controlled substance while employed as a law enforcement officer, prosecutor, or courtroom official; while possessing a security clearance; or while in a position directly and immediately affecting public safety?" applicant stated "no."	Against Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
2.b	In April 1999, applicant intentionally provided false material information on another SCA that he knew was going to be used to assess his security-worthiness. Specifically, in response to Question 28, which was identical to the Question 28 referenced in the immediately preceding paragraph, he again stated "no."	Against Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
2.c	Applicant's testimony concerning the falsifications was absolutely incredible. His interpretation of Question 28 is absurd, particularly for a man of his intelligence, and appears to have been arrived at long after he completed the two SCAs.	Against Applicant	Lack of Candor in InterviewFOUND DELIBERATE	—	Denied	(a) deliberate omission, concealment, or falsification on a security form	—	—
2.d	In March 2001, applicant was confronted by a member of his employer's security department and asked about allegations that he smoked marijuana outside of the work place. At first applicant denied any involvement with marijuana. When the investigator asked applicant what the results would be if he were to take a urine test, applicant admitted smoking marijuana at a party a week earlier.	Against Applicant	Lack of Candor in Interview	—	Denied	—	—	—
2.e	Despite his March 2001 statements that he didn't want to jeopardize his job or clearance, and that he would immediately cease using marijuana, applicant continued to use marijuana until at least May, and possibly June, 2003.	Against Applicant	Rules Violation at Workplace	—	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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant under Guideline H due to his long-term marijuana use and failure to be truthful about it, particularly after promising to abstain. The applicant's history of drug use and dishonesty led to the conclusion that he has not reformed and is likely to continue using marijuana in the future, resulting in a denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant first started smoking marijuana while in high school. He continued to smoke it with varying frequency, at times as much as once every two months, until May/June 2003.	Against Applicant	Marijuana	Frequent	Admitted	(a) any substance misuse	—	—
1.b	Despite his March 2001 statements that he didn't want to jeopardize his job or clearance, and that he would immediately cease using marijuana, applicant continued to use marijuana until at least May, and possibly June, 2003.	Against Applicant	MarijuanaRelated Misconduct	Frequent	Admitted	(a) any substance misuse	—	—
1.c	Applicant's long term use of marijuana, his inability or unwillingness to be truthful about it, and his use of it after he promised his security officer he would abstain from any further use.	Against Applicant	Marijuana	Frequent	Admitted	(a) any substance misuse	—	—
1.d	specific text not stated in this decision	Against Applicant	Unspecified Drug Involvement	Unspecified	Unknown	—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). 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: Personal Conduct; Drugs

DIGEST: Applicant's intentional falsifications of material facts on 1997 and 1999 Security Clearance Applications (SCA), which constitute felonies under 18 U.S.C. 1001, together with his incredible testimony at the DOHA hearing, establish a continuing pattern of dishonesty that is too recent and too serious to be mitigated. Clearance is denied.

CASENO: 03-17410.h1

DATE: 01/24/2005

DATE: January 24, 2005

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 03-17410

DECISION OF ADMINISTRATIVE JUDGE

JOSEPH TESTAN

APPEARANCES

SYNOPSIS

Applicant's intentional falsifications of material facts on 1997 and 1999 Security Clearance Applications (SCA), which constitute felonies under 18 U.S.C. 1001, together with his incredible testimony at the DOHA hearing, establish a continuing pattern of dishonesty that is too recent and too serious to be mitigated. Clearance is denied.

STATEMENT OF CASE

On June 10, 2004, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, (as administratively reissued on April 20, 1999), issued a Statement of Reasons (SOR) to applicant which 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 and recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked.

Applicant responded to the SOR in writing on July 1, 2004. The case was assigned to the undersigned on August 9, 2004. A Notice of Hearing was issued on October 6, 2004, and the hearing was held on November 16, 2004. The transcript was received on December 1, 2004.

FINDINGS OF FACT

Applicant is a 45 year old employee of a defense contractor. He has held a DoD clearance since 1985.

Applicant first started smoking marijuana while in high school. He continued to smoke it with varying frequency, at times as much as once every two months, until May/June 2003. Applicant testified that the longest period of time he went without smoking marijuana since high school would have been "three, four or five years" (TR at 46).

In April 1997, applicant intentionally provided false information on a Security Clearance Application (SCA) that he knew was going to be used to assess his security-worthiness. Specifically, in response to Question 28, which asked, "Have you EVER illegally used a controlled substance while employed as a law enforcement officer, prosecutor, or courtroom official; while possessing a security clearance; or while in a position directly and immediately affecting public safety?" applicant stated "no."

In April 1999, applicant intentionally provided false material information on another SCA that he knew was going to be used to assess his security-worthiness. Specifically, in response to Question 28, which was identical to the Question 28 referenced in the immediately preceding paragraph, he again stated "no."

Applicant testified, in essence, that his "no" responses to these two questions were correct because the way he interprets Question 28, a "yes" response was required only if he was a law enforcement officer, prosecutor, or courtroom official who possessed a security clearance. He added that when he admitted the two allegations of falsification in his response to the SOR, he mistakenly

thought the SOR was referring to Question 27 (1) on the two SCAs in question, not Question 28. Applicant's testimony concerning the falsifications was absolutely incredible. His interpretation of Question 28 is absurd, particularly for a man of his intelligence, and appears to have been arrived at long after he completed the two SCAs.

In March 2001, applicant was confronted by a member of his employer's security department and asked about allegations that he smoked marijuana outside of the work place. At first applicant denied any involvement with marijuana. When the investigator asked applicant what the results would be if he were to take a urine test, applicant admitted smoking marijuana at a party a week earlier. Applicant then admitted to the investigator that he smoked marijuana on rare occasions at parties or concerts. He then told the investigator that he did not want to jeopardize his job or security clearance and would immediately cease any further use of marijuana. According to applicant, when he made this last statement he meant it (Exhibit 6; TR at 56).

Despite his March 2001 statements that he didn't want to jeopardize his job or clearance, and that he would immediately cease using marijuana, applicant continued to use marijuana until at least May, and possibly June, 2003 (Exhibit 4). When asked by Department Counsel why he used marijuana after telling his company's security officer that he would cease this activity immediately, applicant responded, "Stupid. Human Nature. I am only human" (TR at 57).

Documentary evidence offered by applicant establishes that he performs well at his job (Exhibits A and B).

CONCLUSION

With respect to Guideline E, applicant's falsifications of material facts on the SCAs are extremely troubling. The Government relies heavily on the honesty and integrity of individuals seeking access to our nation's secrets. When such an individual intentionally falsifies material facts on a security clearance application, it is extremely difficult to conclude that he or she nevertheless possesses the good judgment, reliability and trustworthiness required of clearance holders. Applicant's intentional falsifications of material facts requires application of Disqualifying Condition E2.A5.1.2.2 (the deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire . . .). No Mitigating Conditions apply to applicant's dishonest conduct. (2) Based on the foregoing, Guideline E is found against applicant.

With respect to Guideline H, the evidence establishes that applicant used marijuana to at least May/June 2003. Because there is no evidence that he has used it since then, I cannot conclude that he is currently an unlawful user of marijuana. Accordingly, 10 U.S.C. 986 is not applicable to automatically bar applicant' clearance request. However, based on applicant's long term use of marijuana, his inability or unwillingness to be truthful about it, and his use of it after he promised his security officer he would abstain from any further use (which leads to the conclusion that he is either unable or unwilling to stop this illegal drug use), I cannot conclude that applicant has reformed and is unlikely to use marijuana in the future. Disqualifying Condition E2.A8.1.2.1 (any drug abuse) applies. No Mitigating Conditions are applicable. Based on the foregoing, Guideline H is found against applicant.

FORMAL FINDINGS

GUIDELINE H: AGAINST THE APPLICANT

GUIDELINE E: 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.

Joseph Testan

Administrative Judge

1. Question 27, which was identical on both SCAs, asked, "Since the age of 16 or in the last 7 years, whichever is shorter, have you illegally used any controlled substance, for example marijuana . . ." Applicant responded "no" to this question on both SCAs. These responses were clearly false. Quite incredibly, applicant testified that he responded "no" to these questions because he didn't see himself as "an illegal user of marijuana," and that "it just seemed to [him] that that little bit of indiscriminate use or not even use, just partaking, was not something that warranted a yes . . ." (TR at 49-50).

2. Mitigating Condition E2.A5.1.3.2 doesn't apply because the falsification was recent. Mitigating Condition E2.A5.1.3.3 doesn't apply because applicant did not make a prompt, good-faith effort to correct his falsifications before being confronted with the facts.

FOOTNOTES

FOR GOVERNMENT Edward W. Loughran, Department Counsel file:///usr.osd.mil/...Computer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/03-17410.h1.htm[6/24/2021 3:28:20 PM] FOR APPLICANT Pro Se