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ISCR Case 04-01469.h1 — CASE

ISCR Case 04-01469.h1denied

Case Headnote

ISCR Case No. 04-01469.h1

deniedJun 15, 2005· Hon. Matthew E. Malone· hearing

Summary

A 37-year-old software engineer was denied a security clearance under Guideline H (Drug Involvement) due to a prolonged history of illegal drug use. His drug use began in 1983 at age 16 with marijuana, which he used intermittently, stopping only when facing drug screenings for defense contractor jobs. He also used LSD once in 1990 and then annually from 1993 to 1997, and purchased ecstasy for himself and friends.

The applicant's last reported marijuana use was in late 2004. However, this cessation occurred only after he was informed of the denial of his security clearance. He explicitly stated his willingness to abstain from illegal drugs while holding a clearance but expressed an intent to resume marijuana use, and possibly ecstasy, if he did not hold one. He acknowledged always knowing that his drug use was illegal.

The denial was based on the applicant's extensive 20-year history of illegal drug use, the involuntary nature of his recent cessation, and the judge's finding of a high probability of future drug use. Disqualifying Conditions 1 and 2 were raised, and the security clearance was ultimately denied.

Why the Applicant Was Denied

The applicant has a long history of illegal drug use spanning over 20 years.
The applicant's cessation of drug use was not voluntary but prompted by the denial of his clearance.
The judge found a high probability that the applicant would resume drug use in the future.

Conditions Referenced

Disqualifying

DC 1raisedIllegal Drug Involvement
DC 2raisedIllegal Drug Possession

Key Rule Quoted

“Improper or illegal involvement with drugs raises questions regarding an individual's willingness or ability to protect classified information.”

Procedural Posture

SOR issuedAug 24, 2004
Answer filed—
Hearing heldMar 10, 2005
Decision dateJun 15, 2005

Cite For

Long History of Illegal Drug Use Under Guideline H
Probability of Future Drug Use Impacting Security Clearance
Cessation of Drug Use Prompted by Clearance Denial

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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant has a long history of illegal drug use, including marijuana, LSD, and ecstasy, dating back to 1983. Although he has not used drugs since August 2004, this cessation was prompted by the denial of his security clearance request. The judge found that it is highly probable the applicant will resume drug use in the future, leading to the denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant began using marijuana in 1983 at about age 16. He used the drug with varying frequency until his freshman year in college in 1986, stopping because he was applying for student cooperative jobs with defense contractors that employed drug screening tests. Once clear of the drug tests, Applicant resumed his use of marijuana until about 1990, when he was nearing graduation. He again stopped using because he knew he would be subjected to drug testing as he applied for other jobs in the defense industry.	Against Applicant	Marijuana	Regular	Admitted	—	—	—
1.b	Applicant also used LSD once in 1990, which he has described as a bad experience. Undeterred, he resumed using LSD about once each year from 1993 to 1997.	Against Applicant	LSD	Occasional	Admitted	—	—	—
1.c	Applicant has purchased ecstacy for his use and for his friends to use as well.	Against Applicant	MDMA	Occasional	Admitted	—	—	—
1.d	Applicant last used marijuana sometime in late 2004 and is willing to continue his abstinence from and purchase of illegal drugs while he holds a security clearance, but will continue to buy and use marijuana in the future if he does not hold a clearance.	Against Applicant	MarijuanaWHILE CLEARED	Not Applicable	Admitted	—	—	—
1.e	Applicant has always been aware that it is illegal to use and possess marijuana, ecstacy, and LSD.	Against Applicant	Unspecified Drug Involvement	Unspecified	Admitted	—	—	—
1.f	Applicant expressed his intent to continue using marijuana and possible ecstacy in the future.	Against Applicant	Stated Intent to Use Again	Not Applicable	Admitted	—	—	—
1.g	Applicant has used illegal drugs for more than 20 years.	Against Applicant	Unspecified Drug Involvement	Unspecified	Admitted	—	—	—
1.h	The SOR also alleges that Applicant should be disqualified based on application of federal law.	Against Applicant	Unspecified Drug Involvement	Unspecified	Admitted	—	—	—
1.i	The cited statute does not address past or prospective drug use and, thus, does not apply.	For 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.

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

DIGEST: Applicant has been involved with illegal drugs since 1983. He has not used drugs since August 2004, but stopped only after being notified the government had denied his request for clearance because of his drug use. It is highly probable he will resume his drug use in the future. Clearance is denied.

CASENO: 04-01469.h1

DATE: 06/15/2005

DATE: June 15, 2005

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 04-01469

DECISION OF ADMINISTRATIVE JUDGE

MATTHEW E. MALONE

APPEARANCES

Daryle A. Jordan, Esquire

SYNOPSIS

Applicant has been involved with illegal drugs since 1983. He has not used drugs since August 2004, but stopped only after being notified the government had denied his request for clearance because of his drug use. It is highly probable he will resume his drug use in the future. Clearance is denied.

STATEMENT OF CASE

After reviewing the results of Applicant's background investigation, adjudicators for the Defense Office of Hearings and Appeals (DOHA) were unable to make a preliminary affirmative finding (1) it is clearly consistent with the national interest to give Applicant a security clearance. On August 24, 2004, DOHA issued to Applicant a Statement of Reasons (SOR) alleging facts that raise security concerns addressed in the Directive under Guideline H (illegal drugs). Applicant timely answered the SOR (Answer), admitted with explanation all of the allegations therein, and requested a hearing.

On March 10, 2005, I convened a hearing at which the government presented six exhibits (GE 1 - GE 6) to support the SOR. In response, Applicant presented three exhibits (AE A), his own testimony and that of two other witnesses. DOHA received the transcript (Tr) on March 22, 2005.

FINDINGS OF FACT

Applicant's admissions through his Answer are entered herein as facts. After a thorough review of the pleadings, transcript, and exhibits, I also find the following:

Applicant is 37 years old and works as a software engineer for a defense contractor that hired him in 1999. Applicant first went to work in the defense industry in 1986 while attending college to earn a degree in computer science, which he received in 1991. Applicant is well regarded by his current employer as eminently qualified for his position, easy to work with, a great team player, and very trustworthy.

Applicant began using marijuana in 1983 at about age 16. He used the drug with varying frequency until his freshman year in college in 1986, stopping because he was applying for student cooperative jobs with defense contractors that employed drug screening tests. Once clear of the drug tests, Applicant resumed his use of marijuana until about 1990, when he was nearing graduation. He again stopped using because he knew he would be subjected to drug testing as he applied for other jobs in the defense industry. Applicant resumed using marijuana on a regular basis, often weekly, in 1993.

Beginning his senior of college, Applicant also began using other illegal drugs. He used LSD once in 1990, which he has described as a bad experience. Undeterred, he resumed using LSD about once each year from 1993 to 1997. Applicant also used ecstacy two or three times in 1997, and again in 2002 despite the fact his last experience with the drug in 1997 made him ill. Applicant has purchased ecstacy for his use and for his friends to use as well. (SOR ¶¶1.a, 1.b, and 1.e)

Since he started using marijuana as a teenager, Applicant has purchased small amounts of the drug for personal use and to share with friends. He last used marijuana sometime in late 2004 and is willing to continue his abstinence from and purchase of illegal drugs while he holds a security clearance, but will continue to buy and use marijuana in the future if he does not hold a clearance. (SOR ¶¶1.c, 1.d, 1.f, 1.g, and 1.i)

Applicant was investigated for a clearance in 1992. In August 1992, he gave a written statement about his drug use to a Defense Security Service (DSS) agent, and asserted he had no intent to use illegal drugs in the future. In his most recent statement to DSS in December 2002, Applicant expressed his intent to continue using marijuana and possible ecstacy in the future. Applicant has always been aware that it is illegal to use and possess marijuana, ecstacy, and LSD. His wife uses marijuana and has also used ecstacy with Applicant, and they continue to associate with other persons who use marijuana.

POLICIES

The Directive sets forth adjudicative guidelines (2) to be considered in evaluating an Applicant's suitability for access to classified information. Security clearance decisions must reflect consideration of both disqualifying and mitigating conditions under each adjudicative issue applicable to the facts and circumstances of each case. Each 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 of a conclusion for or against an Applicant. However, specific applicable 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. Having considered the record evidence as a whole, I conclude the relevant adjudicative guideline to be applied here is Guideline H (illegal drugs).

BURDEN OF PROOF

A security clearance decision is intended to resolve whether it is clearly consistent with the national interest (3) for an Applicant to either receive or continue to have access to classified information. The government bears the initial burden of producing admissible information on which it based the preliminary decision to deny or revoke a security clearance for the Applicant. Additionally, the government must be able to prove controverted facts alleged in the SOR. If the government meets its burden, it establishes that it is not clearly consistent with the national interest for the Applicant to have access to classified information. The burden then shifts to the Applicant to 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. (4) 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 one who will protect the national interests as his or her 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. (5)

CONCLUSION

Improper or illegal involvement with drugs raises questions regarding an individual'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. Such conduct may also be criminal and indicative of a disregard for rules and regulations used to protect national interests. (6) In this instance, the government has produced sufficient information through its exhibits and Applicant's admissions to support the preliminary decision as expressed in the SOR that Applicant should be denied a security clearance. Available information shows Applicant has used illegal drugs for much of his adult life. Indeed, he has purchased and used marijuana since his mid-teens, and expanded his involvement to include LSD and ecstacy as he was finishing college. Guideline H disqualifying condition (DC) 1 (7) and DC 2 (8) apply.

By contrast, none of the listed mitigating conditions apply here. Applicant's drug use is recent in that it occurred within the past year. Also, Applicant's drug involvement is hardly an isolated or aberrational event insofar as he has used illegal drugs for more than 20 years. As for demonstrating an intent not to use in the future, Applicant has abstained in the past, but only long enough to complete job-related drug screening. He resumed using marijuana in 1993 despite telling DSS in August 1992 he had no intent to use drugs in the future. Applicant now avers he will abstain as long as might hold a security clearance. I conclude Applicant has every intention of using marijuana and possibly other illegal drugs in the future.

The SOR also alleges that Applicant should be disqualified based on application of federal law. (SOR ¶1.i) Specifically, 10 U.S.C. 986(c)(2) prohibits granting or renewing a security clearance if Applicant "is an unlawful user of, or is addicted to, a controlled substance..." The plain language of this statute means that a person who uses illegal drugs at or very near the time of the hearing may not under any circumstances be granted a clearance. Here it is uncontroverted that, as of the hearing date, Applicant had last used an illegal drug, to wit, marijuana, about seven months earlier. While he has indicated he may use drugs in the future, he was not using them as of the hearing. The cited statute does not address past or prospective drug use and, thus, does not apply. I find for Applicant as to this allegation.

I have carefully weighed all of the evidence, and I have applied the disqualifying and mitigating conditions as listed under the applicable adjudicative guideline. A fair and commonsense assessment (9) of Applicant's drug use over the past 20 years and the distinct probability he will continue to engage in such conduct sustains the government's concerns about Applicant's ability to protect classified information and to exercise the requisite good judgment and discretion expected of one in whom the government entrusts its interests. Applicant has failed to overcome the adverse information presented by the government.

FORMAL FINDINGS

Formal findings regarding each SOR allegation as required by Directive Section E3.1.25 are as follows:

Paragraph 1, Illegal Drugs (Guideline H): AGAINST THE APPLICANT

Subparagraph 1.a: Against the Applicant

Subparagraph 1.b: Against the Applicant

Subparagraph 1.c: Against the Applicant

Subparagraph 1.d: Against the Applicant

Subparagraph 1.e: Against the Applicant

Subparagraph 1.f: Against the Applicant Subparagraph 1.g: Against the Applicant

Subparagraph 1.h: Against the Applicant

Subparagraph 1.i: For 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 the Applicant.

Matthew E. Malone

Administrative Judge

1. Required by Executive Order 10865, as amended, and by DoD Directive 5220.6 (Directive), as amended.

2. Directive, Enclosure 2.

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

4. See Egan, 484 U.S. at 528, 531.

5. See Egan; Directive E2.2.2.

6. Directive, E2.A8.1.1.1.

7. Directive, E2.A8.1.2.1. Any drug abuse...;

8. Directive, E2.A8.1.2.2. Illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution;

9. Directive, E2.2.3.

FOOTNOTES

FOR GOVERNMENT Candace Le'i, Esquire, Department Counsel Erin C. Hogan, Deputy Chief Department Counsel

FOR APPLICANT file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/04-01469.h1.htm[7/2/2021 3:23:37 PM] file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/04-01469.h1.htm[7/2/2021 3:23:37 PM] file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/04-01469.h1.htm[7/2/2021 3:23:37 PM] file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/04-01469.h1.htm[7/2/2021 3:23:37 PM] file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/04-01469.h1.htm[7/2/2021 3:23:37 PM] file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/04-01469.h1.htm[7/2/2021 3:23:37 PM]