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ISCR Case 04-08762.h1 — CASE

ISCR Case 04-08762.h1denied

Case Headnote

ISCR Case No. 04-08762.h1

deniedApr 27, 2006· Hon. James A. Young· hearing

Summary

A 30-year-old electronics technician 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 good job performance and supervisor respect, but his continued illegal marijuana use and falsification of his security clearance application raised significant security concerns.

The Statement of Reasons detailed that the applicant used and purchased marijuana from 1991 through December 2001, testing positive in March, May, September, and October of 2001. He received an Article 15 on September 29, 2001, for marijuana use and was convicted of possession after a December 2001 arrest. Additionally, the applicant falsified material facts on his security clearance application, which constituted a violation of 18 U.S.C. § 1001.

The denial was based on the applicant's discharge from the Army for illegal marijuana use, his continued abuse of marijuana while holding a security clearance, and his deliberate falsification of his application by failing to disclose seven years of illegal drug use. His claims of rehabilitation were deemed not credible due to his ongoing drug use and dishonesty during the investigation.

Why the Applicant Was Denied

The applicant was discharged from the Army for illegal marijuana use and continued to abuse marijuana while holding a security clearance.
He deliberately falsified his security clearance application by failing to acknowledge his illegal drug use over the previous seven years.
The applicant's claims of rehabilitation were not credible given his ongoing drug use and dishonesty during the security investigation.

Conditions Referenced

Disqualifying

E2.A8.1.2.1raisedDrug Abuse
E2.A8.1.2.2raisedIllegal Purchase of Drugs
E2.A5.1.2.2raisedFalsification of Material Facts
E2.A10.1.2.1raisedAdmission of Criminal Conduct
E2.A10.1.2.2raisedEngagement in Multiple Lesser Offenses

Key Rule Quoted

“An applicant has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance.”
— ISCR Case No. 01-20700 at 3.

Procedural Posture

SOR issuedMay 10, 2005
Answer filedMay 20, 2005
Hearing heldMar 15, 2006
Decision dateApr 27, 2006

Cite For

Denial of Clearance Due to Ongoing Drug Use Under Guideline H
Falsification of Security Clearance Application Under Guideline E
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 the personal conduct allegation under Guideline E, determining that the applicant deliberately falsified material facts on his security clearance application. The applicant admitted to the falsification, which raised significant concerns about his trustworthiness and reliability. Consequently, the judge denied the applicant's request for a security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant falsified material facts on his SCA.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Other	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 multiple allegations of drug involvement, specifically regarding illegal use and purchase of marijuana, as well as positive drug tests. The applicant's continued marijuana use while holding a security clearance and his falsification of a security clearance application were significant factors in the decision. Ultimately, the applicant's security clearance was denied.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana from 1991-December 2001.	Against Applicant	MarijuanaWHILE CLEARED	Regular	Admitted	—	—	—
1.b	Applicant purchased marijuana.	Against Applicant	MarijuanaWHILE CLEARED	Not Applicable	Admitted	—	—	—
1.c	Applicant tested positive for marijuana in March 2001.	Against Applicant	Drug Test FailureWHILE CLEARED	Not Applicable	Admitted	—	—	—
1.d	Applicant tested positive for marijuana in May 2001.	Against Applicant	Drug Test FailureWHILE CLEARED	Not Applicable	Admitted	—	—	—
1.e	Applicant tested positive for marijuana in September 2001.	Against Applicant	Drug Test FailureWHILE CLEARED	Not Applicable	Admitted	—	—	—
1.f	Applicant received an Article 15 on 29 September 2001 for using marijuana.	For Applicant	Drug Diagnosed DisorderWHILE CLEARED	Not Applicable	Admitted	—	—	—
1.g	Applicant tested positive for marijuana in October 2001.	Against Applicant	Drug Test FailureWHILE CLEARED	Not Applicable	Admitted	—	—	—
1.h	Applicant was convicted of possession of marijuana after a December 2001 arrest.	Against Applicant	Drug Distribution or DealingWHILE CLEARED	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 found against the applicant on allegations of criminal conduct related to illegal drug use and falsification of a security clearance application. The applicant admitted to the allegations, which included multiple instances of marijuana use and a violation of 18 U.S.C. § 1001. The judge concluded that the applicant's criminal conduct raised significant concerns about his judgment and trustworthiness, leading to the denial of his security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	Applicant's illegal drug use amounted to criminal conduct	Against Applicant	Drug Related Criminal Charge	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability (b) evidence of criminal conduct, regardless of charge or conviction	—	—
3.b	He violated 18 U.S.C. § 1001 by falsifying material facts on his SCA	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 was discharged from the Army for illegal use of marijuana. He continued to abuse marijuana while holding a security clearance, even after completing a periodic security clearance application (SCA). He deliberately falsified his security clearance application by failing to acknowledge his illegal use of marijuana during the previous seven years. Clearance is denied.

CASE NO: 04-08762.h1

DATE: 04/27/2006

DATE: April 27, 2006

In re:

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

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

Applicant for Security Clearance

ISCR Case No. 04-08762

DECISION OF ADMINISTRATIVE JUDGE

JAMES A. YOUNG SYNOPSIS

Applicant was discharged from the Army for illegal use of marijuana. He continued to abuse marijuana while holding a security clearance, even after completing a periodic security clearance application (SCA). He deliberately falsified his security clearance application by failing to acknowledge his illegal use of marijuana during the previous seven years. Clearance is denied.

STATEMENT OF CASE

The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. In accordance with Department of Defense Directive 5220.6 ¶ E3.1.2 (Jan 2. 1992), as amended, DOHA issued a Statement of Reasons (SOR) on 10 May 2005 detailing the basis for its decision-security concerns raised under Guideline H (Drug Involvement), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct) of the Directive. Applicant answered the SOR in writing on 20 May 2005 and elected to have a hearing before an administrative judge. The case was originally assigned to another administrative judge, but was reassigned to me on 14 February 2006. On 15 March 2006, I convened a hearing to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. DOHA received the hearing transcript (Tr.) on 24 March 2006.

FINDINGS OF FACT

Applicant is a 30-year-old electronics technician for a defense contractor. He served in the U.S. Army from July 1993 until January 2002, when he was separated with a general discharge under honorable conditions because of his illegal drug use. Until then, his commander had rated him as being in the top 10 percent of more than 75 noncommissioned officers under his command. In 1996, Applicant obtained a security clearance, which he still had at the time of the hearing. In his current position, he is well respected for his job performance, and has the full trust of his supervisors. Applicant was selected by his current employer to work at a G-8 summit meeting where he performed very well in helping protect the participants.

Applicant first used marijuana in 1991 or 1992 when he was in high school. In 1993, he joined the Army. In 1998, Applicant's urinalysis was positive for marijuana. Although disciplinary proceedings were initiated against Applicant, the case was dropped and he was allowed to transfer to Korea. In January 2001, while a noncommissioned officer (sergeant, E-5), Applicant's urinalysis was positive for marijuana. Applicant was punished for illegal drug use under Article 15, Uniform Code of Military Justice (UCMJ). 10 U.S.C. § 815. He was reduced in grade to E-4. His commander initiated discharge action against him for illegal drug abuse. On at least three additional occasions military urinalyses established Applicant continued to use marijuana between January 2001 and his discharge in January 2002.

In December 2001, before his discharge was executed, Applicant was arrested by local law enforcement for possession of marijuana, less than two ounces. The local court ordered him to attend drug classes as part of a pretrial diversion program. As part of the program, Applicant was required to submit a urine specimen for testing. When his urine specimen tested positive for marijuana, he was eliminated from the diversion program and eventually pled guilty to the wrongful possession of marijuana.

On 18 June 2002, Applicant completed a security clearance application by certifying that his statements therein were "true, complete, and correct" to the best of his knowledge and belief, and by acknowledging that a knowing and willful false statement could be punished under 18 U.S.C. § 1001 by fine and/or imprisonment. Question 27 asked if, in the previous seven years, Applicant had illegally used any controlled substance, including marijuana. Applicant answered "no." Question 25 asked if, the the previous seven years, Applicant had been subject to disciplinary proceedings under the Uniform Code of Military Justice. Applicant answered "yes," and admitted receiving an Article 15 for "misconduct" in January 2001. He continued to use marijuana after completing the SCA.

Applicant was interviewed by an agent of the Defense Security Service (DSS), and provided a signed, sworn statement dated 12 June 2004. In it, Applicant claimed the only drug-related incident he was involved in, other than his December 2001 arrest, was the January 2001 Article 15. He also admitted purchasing the marijuana he used for $2 or $3 per "joint." He asserted that he had not used any marijuana since December 2001.

On 4 October 2004, Applicant was re-interviewed and provided another signed, sworn statement to a DSS agent. In it, Applicant admitted he "tested positive for drugs at least four times." Ex. 3 at 1. At the hearing, Applicant admitted he lied to cover up his drug use.

Applicant's current employer does not perform drug testing.

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. The President authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information "only upon a finding that it is clearly consistent with the national interest to do so." Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive. An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ISCR Case No. 01-20700 at 3.

Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

CONCLUSION

Guideline H-Drug Involvement

In the SOR, DOHA alleged Applicant used marijuana from 1991-December 2001 (¶ 1.a); purchased marijuana (¶ 1.b); tested positive for marijuana in March 2001 (¶ 1.c), May 2001 (¶ 1.d), September 2001 (¶ 1.e), October 2001 (¶ 1.g); received an Article 15 on 29 September 2001 for using marijuana (¶ 1.f); and was convicted of possession of marijuana after a December 2001 arrest (¶ 1.h). In his Answer, Applicant admitted each of the allegations. The improper or illegal involvement with drugs raises questions regarding an applicant'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. Directive ¶ E2.A8.1.1.

The Government's evidence established potentially disqualifying conditions under Guideline H. Applicant abused illegal drugs by smoking marijuana. DC E2.A8.1.2.1. He also illegally purchased marijuana. DC E2.A8.1.2.2. Applicant was an unrepentant marijuana user. He kept using the illegal drug despite knowing the Army was testing for marijuana use, despite his being punished by the Army for such illegal use, and despite his discharge from military service because of his use of marijuana. He even smoked marijuana after he completed a security clearance application in which he deliberately lied about his drug use. Applicant claims he does not currently use marijuana and did not use in 2004, 2005, or 2006. An applicant may mitigate drug involvement security concerns by showing the drug involvement was not recent (MC E2.A8.1.3.1) and he has a demonstrated intent not to abuse any drugs in the future (MC E2.A8.1.3.3). After carefully reviewing all of the evidence, including his continued use of marijuana while he had a security clearance, after being discipline and then discharged by the Army, and even after he completed his SCA, Applicant failed to persuade me of the sincerity of his commitment to living a drug-free life. None of the mitigating conditions apply. However, as the allegation in ¶ 1.fis merely the subsequent disciplinary action for the offense alleged in ¶ 1.c, I find for Applicant on ¶ 1.f. I find against him on the other subparagraphs of ¶ 1.

Guideline E-Personal Conduct

In the SOR, DOHA alleged Applicant falsified material facts on his SCA (¶ 2.a). In his Answer, Applicant admitted the allegation. Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate the applicant may not properly safeguard classified information. Directive ¶ E2.A5.1.1.

The deliberate omission or falsification of relevant and material facts from any SCA is a security concern and may be disqualifying. DC E2.A5.1.2.2. Information is material if it would affect a final agency decision or, if incorrect, would impede a thorough and complete investigation of an applicant's background. ISCR Case No. 01-06870, 2002 WL 32114535 (App. Bd. Sep. 13, 2002). Information is material if it would affect a final agency decision or, if incorrect, would impede a thorough and complete investigation of an applicant's background. ISCR Case No. 01-06870, 2002 WL 32114535 (App. Bd. Sep. 13, 2002). An applicant's failure to accurately note his illegal drug use on his SCA would impede a thorough security investigation and affect a final agency decision. Applicant admits he deliberately falsified his SCA by claiming he had not illegally used any controlled substance, including marijuana, in the previous seven years. His falsification was not isolated. He also deliberately tried to mislead security investigators by making a false statement about his use of marijuana. After carefully reviewing all of the evidence, Applicant's testimony, the disqualifying and mitigating conditions, and the adjudicative process factors, conclude none of the mitigating conditions applies. I find against Applicant on ¶ 2.

Guideline J-Criminal Conduct

In the SOR, DOHA alleged Applicant's illegal drug use amounted to criminal conduct (¶ 3.a); and he violated 18 U.S.C. § 1001 by falsifying material facts on his SCA (¶ 3.b). In his answer, Applicant admitted each of the allegations. A history or pattern of criminal activity creates doubt about an applicant's judgment, reliability, and trustworthiness. Directive ¶ E2.A10.1.1. It is a criminal offense to knowingly and willfully make any materially false, fictitious, or fraudulent statement or representation in any matter within the executive branch of the Government of the United States. 18 U.S.C. § 1001. Security clearances are within the jurisdiction of the executive branch of the Government of the United States. See Egan, 484 U.S. at 527. Information is material if it would affect a final agency decision or, if incorrect, would impede a thorough and complete investigation of an applicant's background. ISCR Case No. 01-06870, 2002 WL 32114535 (App. Bd. Sep. 13, 2002). An applicant's failure to accurately complete his SCA concerning his illegal drug use would impede a thorough security investigation and affect a final agency decision. Applicant admitted deliberately omitting information about his use of illegal drugs from his SCA.

It is a potentially disqualifying condition for an applicant to admit to criminal conduct (DC E2.A10.1.2.1) or to engage in a single serious crime or multiple lesser offenses (DC E2.A10.1.2.2). Applicant's illegal use of marijuana on several occasions amounts to multiple lesser offenses. His deliberate omission of relevant and material information about his use of drugs from his SCA is a serious offense. Mitigating conditions pertinent to Applicant's case include the following: the criminal behavior was not recent (MC E2.A10.1.3.1) and there is clear evidence of successful rehabilitation (MC E2.A10.1.3.6). After carefully evaluating all of the evidence, considering Applicant's testimony, and reviewing the disqualifying and mitigating conditions, as well as the adjudicative process factors, I find against Applicant on ¶ 3. His criminal conduct persisted until at least January 2004, when he was still trying to mislead security investigators by failing to disclose the full extent of his illegal drug use. He failed to persuade me there is clear evidence of rehabilitation.

FORMAL FINDINGS

The following are my conclusions as to each allegation in the SOR:

Paragraph 1. Guideline H: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant

Subparagraph 1.b: Against Applicant

Subparagraph 1.c: Against Applicant

Subparagraph 1.d: Against Applicant

Subparagraph 1.e: Against Applicant Subparagraph 1.f: For Applicant

Subparagraph 1.g: Against Applicant

Subparagraph 1.h: Against Applicant

Paragraph 2. Guideline E: AGAINST APPLICANT

Subparagraph 2.a: Against Applicant

Paragraph 3. Guideline J: AGAINST APPLICANT

Subparagraph 3.a: Against Applicant

Subparagraph 3.b: Against Applicant

DECISION

In light of all of the circumstances in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is denied.

JAMES A. YOUNG

Administrative Judge

FOOTNOTES

APPEARANCES

FOR GOVERNMENT Francisco J. Mendez Jr., Esq., Department Counsel file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/04-08762.h1.htm[7/2/2021 3:34:27 PM] FOR APPLICANT Pro Se