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ISCR Case 04-07229.h1 — CASE

ISCR Case 04-07229.h1denied

Case Headnote

ISCR Case No. 04-07229.h1

deniedFeb 13, 2006· Hon. Charles D. Ablard· hearing

Summary

A 44-year-old defense contractor employee 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 occasional drug use spanning 20 years while holding a security clearance, though he has not used drugs since 2002.

Key allegations included the applicant's failure to provide complete and accurate information on three SF 86 forms and providing false information to a Defense Security Service investigator regarding his drug use. His stated rationale for these misstatements was fear of social stigma. This pattern of rule violations and lack of full disclosure raised significant concerns.

Despite the applicant's cessation of drug use in 2002, the judge determined that the allegations were not sufficiently mitigated. The long history of undisclosed drug use and the repeated failures to disclose this information demonstrated a lack of trustworthiness and reliability, leading to the denial of the security clearance.

Why the Applicant Was Denied

Applicant had a long history of occasional drug use while holding a security clearance.
He failed to disclose his drug use on three separate SF 86 forms and to an investigator.
The judge found that his conduct demonstrated a lack of trustworthiness and reliability.

Conditions Referenced

Disqualifying

E2.A8.1.1.3raisedDrug Involvement
E2.A5.1.2.2raisedFailure to Provide Complete and Accurate Information
E2.A10.1.1raisedPattern of Criminal Conduct

Mitigating

E2.A8.1.3.1appliedDrug Involvement Not Recent
E2.A8.1.3.3appliedDemonstrated Intent Not to Abuse Drugs in the Future
E2.A10.1.3.1appliedCriminal Conduct Not Recent

Key Rule Quoted

“"[N]o one has a 'right' to a security clearance."”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedJun 2, 2005
Answer filedJun 22, 2005
Hearing heldNov 17, 2005
Decision dateFeb 13, 2006

Cite For

Denial of Clearance Due to Long-term Drug Use Under Guideline H
Failure to Disclose Drug Use on SF 86 Forms Under Guideline E
Pattern of Criminal Conduct Related to Drug Use 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 all allegations under Guideline E, citing a pattern of rule violations and willful omissions on security clearance applications. The applicant's failure to disclose drug use and provide complete and accurate information was deemed significant, leading to the denial of the security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	The applicant failed to provide complete and accurate information on his SF 86.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Other	Admitted	—	—	—
2.b	The applicant provided false information to a Defense Security Service investigator regarding his drug use.	Against Applicant	Lack of Candor in InterviewFOUND DELIBERATE	Other	Admitted	—	—	—
2.c	The applicant has a pattern of rule violations.	Against Applicant	Pattern of Dishonesty or Rule Violations	—	Admitted	—	—	—
2.d	The applicant's drug use was not disclosed on three SF 86s.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Other	Admitted	—	—	—
2.e	The applicant's rationale for his misstatements was fear of social stigma.	Against Applicant	Questionable Judgment General	—	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 judge found against the applicant on two allegations of drug involvement, citing occasional drug use over a 20-year period while holding a security clearance. The applicant admitted to using marijuana approximately ten times and hashish twice, with the last use occurring in 2002. Although the applicant no longer uses drugs, the judge concluded that the history of drug use and failure to disclose it on security clearance applications warranted a denial of the clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	failed to mitigate allegations of occasional drug use over a 20 year period while holding a security clearance	Against Applicant	MarijuanaWHILE CLEARED	Occasional	Admitted	—	—	—
1.b	failure to acknowledge his drug use on three SF 86s and to an investigator	Against Applicant	Unspecified Drug InvolvementWHILE CLEARED	Unspecified	Admitted	—	—	—
1.c	no longer uses drugs and has not done so since 2002	For Applicant	Unspecified Drug Involvement	Not Applicable	Admitted	—	—	Claimed Rehabilitation Evidence

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 the Guideline J allegations, determining that the applicant's history of drug use and failure to disclose this information on security clearance applications raised significant security concerns. Despite the applicant's cessation of drug use since 2002, the judge concluded that the applicant's conduct was not consistent with the national interest, leading to a denial of the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	specific text not stated in this decision	Against Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	—	—	—

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, a 44-year-old employee of a defense contractor, failed to mitigate allegations of occasional drug use over a 20 year period while holding a security clearance and failure to acknowledge his drug use on three SF 86sand to an investigator. He no longer uses drugs and has not done so since 2002. He mitigated allegation regarding 10 U.S.C. §986 in that he is not a current drug user. Clearance is denied.

CASENO: 04-07229.h1

DATE: 02/13/2006

DATE: February 13, 2006

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 04-07229

DECISION OF ADMINISTRATIVE JUDGE

CHARLES D. ABLARD

APPEARANCES

SYNOPSIS

Applicant, a 44-year-old employee of a defense contractor, failed to mitigate allegations of occasional drug use over a 20 year period while holding a security clearance and failure to acknowledge his drug use on three SF 86sand to an investigator. He no longer uses drugs and has not done so since 2002. He mitigated allegation regarding 10 U.S.C. §986 in that he is not a current drug user. Clearance is denied.

STATEMENT OF CASE

On June 2, 2005, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified, 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. DOHA recommended the case be referred to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

On June 22, 2005, Applicant responded to the SOR allegations, and requested a hearing. The matter was assigned to me on September 6, 2005. A notice of hearing was issued on September 27, 2005, and a hearing was held on November 17, 2005. Five government exhibits and seven applicant exhibits were admitted into evidence. The Applicant testified. The transcript was received on December 1, 2005.

FINDINGS OF FACT

Applicant admitted all of the specific SOR allegations. After a complete review of the record, I make the following additional findings of fact:

Applicant is a 44-year-old employee of a defense contractor working on network management. He has worked for two companies during his 22-year career. The issues in the case involve Applicant's occasional use of illegal substances during that period while holding a security clearance, and his failure to report that use on three applications for security clearance (SF 86) in 1999 and 2002. On his first two SF 86she answered in the negative to both Questions 27 and 28 relating to past drug use (Exhs. 2 and 3). On his third SF 86 dated October 7, 2002, he answered in the affirmative to Question 27 concerning past use but in the negative concerning use while holding a security clearance (Exh. 1). He did not report the drug use as he feared the social stigma of admitting the conduct. On ay 21, 2002, Applicant gave false information to a Defense Security Service investigator by denying his drug use. He later admitted use from 1979 until 2002 to the investigator.

The drug uses Applicant has now admitted were use of marijuana approximately ten times over the past 20 years and two uses of hashish while in the Netherlands in 2000. His most recent use was of marijuana in 2002. He does not intend to use drugs in the future.

Applicant was denied a security clearance by the National Security Agency on March 6, 2003, for the same reasons raised in this matter. The denial became final on June 1, 2003.

Applicant is married with two teenage sons, is active in his church, and in his sons' scout program. He has no criminal record or financial problems.

Applicant is well regarded by his supervisors and colleagues who testified for him (Exhs. A, B, and C). Each of the references were aware that the allegations concerned falsification on his SF 86 but did not know that they involved allegations of drug use, and he does not want to tell them. He is performing his work in a highly satisfactory manner and is regarded very favorably by his employer having received top ratings in evaluations (Exhs. D, E, and F).

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.

An evaluation of whether the applicant meets the security guidelines includes consideration of the following factors: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the frequency and recency of the conduct; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other behavioral changes; (7) the motivation for the conduct; (8) the potential for pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or recurrence. Directive, ¶ E2.2.1. Security clearances are granted only when "it is clearly consistent with the national interest to do so." Executive Order No. 10865 § 2. See Executive Order No. 12968 § 3.1(b).

Initially, the Government must establish, by something less than a preponderance of the evidence, that conditions exist in the personal or professional history of the applicant which disqualify, or may disqualify, the applicant from being eligible for access to classified information See Egan, 484 U.S. at 531. The applicant then bears the burden of demonstrating it is clearly consistent with the national interest to grant or continue a security clearance. "Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security." Directive, ¶ E2.2.2. "[S]ecurity clearance determinations should err, if they must, on the side of denials." Egan, 484 U.S. at 531. See Executive Order No. 12968 § 3.1(b).

CONCLUSION

Upon consideration of all the facts in evidence, and after application of all appropriate adjudicative factors, I conclude the following with respect to all allegations set forth in the SOR:

The government has cited Disqualifying Condition (DC) 1 under Guideline H concerning drug involvement as relevant to the proposed denial of a security clearance for the Applicant. Drug involvement is always a security concern because it raises questions about a person's willingness or ability to protect classified information. Any drug abuse is a condition that may be disqualifying. The

following definition is provided: "Drug abuse is the illegal use of a drug . . . ." (E2.A8.1.1.3) Possible Mitigating Conditions that might be applicable are that the drug involvement was not recent. (E2.A8.1.3.1.), the drug involvement was an isolated or aberrational event (E2.A8.1.3.2), and there is a demonstrated intent not to abuse any drugs in the future. (E2.A8.1.3.3.) While Applicant has not used drugs since 2002 and is unlikely to use in the future, his use was not isolated and his conduct in failing to acknowledge it on several occasions and to his colleagues who submitted letters of recommendation, leads me to conclude that it is premature to grant a clearance. Also, the fact that he used drugs even occasionally while holding a clearance and while traveling abroad for his company leads me to the conclusion that mitigating conditions should not be applied.

Under Guideline E (Personal Conduct) of the Directive, questionable judgment, untrustworthiness, unreliability, or unwillingness to comply with rules and regulations could indicate the person may not properly safeguard classified information. (E2.A5.1.1.) The Government has established that Applicant has been involved in a pattern of rule violations (E2.A5.1.2.5.) and has failed to give complete and accurate information on his SF 86. (E2.A5.1.2.2.) The allegations include the fact that these willful omissions constitute a violation of 18 U.S.C.§1001, a felony. Applicant's rationale for his admitted misstatements to the investigator was the fear of social stigma. No mitigating conditions are applicable.

Under Guideline J (Criminal Conduct) is also applicable to Applicant. The Government has established a sufficient basis that Disqualifying Condition E2.A10.1.1. is applicable to Applicant in that he has had a pattern of criminal conduct. It could be mitigated by application of the facts in the case to certain of the Mitigating Conditions (MC) if the conduct was not recent (E2.A10.1.3.1.), the crime was an isolated incident (E2.A10.1.3.2), the circumstances leading to the violations are not likely to recur (E2.A10.1.3.4.), or there is clear evidence of successful rehabilitation. (E2.A10.1.3.6) The last drug use was almost four years ago so is not recent and, in view of the possible effect of drug use on Applicant's career, it is unlikely to recur. Those conditions are applicable. However, balancing the long term use of drugs, even occasionally, especially while holding a security clearance I find against him on this allegation.

An issue was raised at the hearing regarding the application of 10 U.S.C.§986 which provides a ban on a security clearance to a person who is a current unlawful user of drugs. I conclude that Applicant is not a "current" user as required by the Department of Defense criteria of June 7, 2005. It is for the other reasons stated above that I conclude that a clearance should be denied.

In all adjudications the protection of our national security is of paramount concern. Persons who have access to classified information have an overriding responsibility for the security concerns of the nation. The objective of the security clearance process is the fair-minded, commonsense assessment of a person's trustworthiness and fitness for access to classified information.

The "whole person" concept recognizes we should view a person by the totality of their acts and omissions. Each case must be judged on its own merits taking into consideration all relevant circumstances, and applying sound judgment, mature thinking, and careful analysis. Although Applicant is an impressive person of talent who holds a responsible position in his company, his failure to fully report adverse information on several occasions leads to the conclusion that it is premature to grant a security clearance. While he expresses regret for his conduct and the omissions on his SF 86, he has offered excuses and reasons that are not consistent with sound judgment. After considering all the evidence in its totality, and as an integrated whole to focus on the whole person of Applicant, I conclude Applicant's record of conduct justifies a finding that it is not clearly consistent with the national interest to grant a security clearance to him. It is premature to grant a clearance.

FORMAL FINDINGS

Formal findings as required by the Directive (Par. E3.1.25) are as follows:

Paragraph 1. Guideline H: AGAINST APPLICANT

Subparagraph 1.a.: Against Applicant

Subparagraph 1.b.: Against Applicant

Subparagraph 1.c.: For Applicant

Paragraph 2. Guideline E: AGAINST APPLICANT

Subparagraph 2.a.: Against Applicant

Subparagraph 2.b.: Against Applicant

Subparagraph 2.c.: Against Applicant

Subparagraph 2.d.: Against Applicant

Subparagraph 2.e.: Against Applicant

Paragraph 3. Guideline J: AGAINST APPLICANT Subparagraph 3.a.: 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 renew a security clearance for Applicant. Clearance is denied.

Charles D. Ablard

Administrative Judge

FOOTNOTES

FOR GOVERNMENT file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/04-07229.h1.htm[7/2/2021 3:32:40 PM] Eric Borgstrom, Esq. , Department Counsel FOR APPLICANT Pro Se