ISCR Case No. 04-12548.h1

KEYWORD: Drugs; Personal Conduct

DIGEST: Applicant illegally used marijuana for over 28 years, commencing in 1973 and ending in 2001, despite holding a "Q" security clearance during 1996-2000. He also lied repeatedly both on his Security Clearance Applications and to investigators. His pattern of questionable judgment, irresponsibility, and immature behavior in using marijuana, especially after having been granted a security clearance, as well as his deliberate falsifications, raise grave doubts about his security eligibility and suitability. In the absence of a longer period of confirmed abstinence, his recent vows to abstain, in light of his past conduct, do not constitute a "demonstrated intent" not to abuse any drugs in the future. Clearance is denied.

CASENO: 04-12548.h1

DATE: 03/14/2006

DATE: March 14, 2006

In re:

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

Applicant for Security Clearance

ISCR Case No. 04-12548

DECISION OF CHIEF ADMINISTRATIVE JUDGE

ROBERT ROBINSON GALES

FOR GOVERNMENT

Jeff A. Nagel, Esquire, Department Counsel

Melvin A. Howry, Esquire, Department Counsel

FOR APPLICANT

Donald G. Gilpin, Esquire

SYNOPSIS

Applicant illegally used marijuana for over 28 years, commencing in 1973 and ending in 2001, despite holding a "Q" security clearance during 1996-2000. He also lied repeatedly both on his Security Clearance Applications and to investigators. His pattern of questionable judgment, irresponsibility, and immature behavior in using marijuana, especially after having been granted a security clearance, as well as his deliberate falsifications, raise grave doubts about his security eligibility and suitability. In the absence of a longer period of confirmed abstinence, his recent vows to abstain, in light of his past conduct, do not constitute a "demonstrated intent" not to abuse any drugs in the future. Clearance is denied.

On September 29, 2005, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant, pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, 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. The SOR detailed reasons, under Guidelines H (drug involvement) and E (personal conduct), 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 a clearance should be granted, continued, denied, or revoked.

In a sworn written statement, dated October 24, 2005, Applicant responded to the SOR allegations, and elected to have his case decided on the written record in lieu of a hearing. Department Counsel submitted the government's written case on November 16, 2005. A complete copy of the file of relevant material (FORM) (1) was provided to Applicant, and he was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. On January 9, 2006, he submitted a "written statement of mitigating condition," along with six attachments, marked as Exhibits 1-6. Department Counsel did not object to these documents and they were admitted as marked. The case was assigned to me on March 3, 2006.

Applicant admitted one, and a portion of another, of the factual allegations pertaining to drug involvement under Guideline H (subparagraphs 1.b. and a portion of 1.a.), as well as both factual allegations pertaining to personal conduct under Guideline E (subparagraphs 2.a. and 2.b.). Those admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact:

Applicant is a 49-year-old employee of a defense contractor, and he is seeking to retain a top secret security clearance granted to him in 2001. (2) He was previously granted a "Q" clearance by the Department of Energy in about 1996, a clearance which he held until 2000. (3) Applicant has been employed by the same company, currently as a scientist, since April 2001. (4) Two supervisors support his application and characterize him and his work performance in favorable terms. He is considered trustworthy, conscientious, hardworking, discrete, and devoted to his work. (5) Applicant was married to his first wife in 1984 and divorced in 1986. (6) He married his second wife in 1994 and was divorced in 2000. (7) He has two sons, born in 1996 and 1999. (8)

For over 28 years, Applicant was an illegal substance abuser whose substance of choice was marijuana. (9) He started using it in approximately 1973, when he was a 17-year-old high school student, and continued using it on an occasional basis (one to two puffs, one or two times per month) while with friends during social or study sessions. (10) He abstained from mid-1975 until mid-1979, during a hiatus from school. (11) In August or September 1979, he resumed his marijuana abuse, at a higher and more frequent level (one-half of a marijuana cigarette, two or three times per week). (12) In 1985, his frequency decreased to about two to three times per month. (13)

In 1989, his employer instituted a random drug testing policy for its employees. Recognizing the risks associated with that policy, Applicant further reduced his marijuana use to two or three times per year. (14) He continued the same level and frequency of marijuana use until 1991. (15) From 1991 until June 1993, while employed as a science teacher, his frequency increased to one-half a marijuana cigarette, every two or three weeks. (16) The frequency of his marijuana use decreased to one time every couple of months in June 1993, and remained constant until September 1994, when he got married the second time. (17) Despite his comment that "with so many potential risks as a result of random drug testing and holding a security clearance," he "greatly reduced" his marijuana use in September 1994 to six times per year, every couple of months, and continued that frequency until mid-2001. (19) However, no real reduction took place, as "one time every couple of months" is the same as "six times per year, every couple of months." In mid-2001, he smoked an entire marijuana cigarette. (20) He abstained from that date on.

Applicant attributed his marijuana use to its calming and relaxing qualities, and the fact that it made him "reclusive." (21) During his years of marijuana use, Applicant never purchased, or even contributed to the purchase of, the substance, but received it from friends. (22)

Random drug tests were administered to Applicant over the years and he passed the tests taken in 1989, 1993, 1996, and 2000. (23) In August 2001, while being considered for re-employment with a government contractor, as a condition of employment, Applicant failed the pre-employment drug test administered to him. (24) The job offer was rescinded. (25)

On February 6, 2003, Applicant completed his Security Clearance Application (SF 86), (26) and in response to an inquiry pertaining to ever ("since the age of 16 or in the last 7 years, whichever is shorter") having used a variety of illegal substances, including marijuana, (27) Applicant responded "no." (28) In response to another inquiry pertaining to ever using a controlled substance while possessing a security clearance, (29) he also responded "no." (30) He certified that his responses were true, complete, and accurate. They were not, for he had omitted and concealed his use of marijuana, as described above. Applicant subsequently admitted that he had deliberately omitted and concealed the truth, and falsified the responses. (31)

Ten months later, in December 2003, Applicant was interviewed by a special agent of the Defense Security Service (DSS). During that interview, Applicant "intentionally and deliberately lied" to the agent regarding his substance abuse. (32) He specifically denied that he had used marijuana during any time since the late 1980s or very early 1990s, and "not within the past 10 years." (33) After the interview, he began to have second thoughts about his lies and called the agent to request another meeting and opportunity to correct the record. The following day, they met and during the interview, Applicant stated he intended to be "fully cooperative and fully honest," but once again, was not. (34) Applicant intentionally lied when he denied he used marijuana from 1994 to Summer 2000. (35) He subsequently explained that he "was not ready to admit that [Applicant] had continued to use marijuana during the time when [he] held a Q security clearance. . . ." (36) After further consideration, Applicant reversed his position and decided to be totally candid. (37) He signed a statement explaining his history of marijuana abuse.

On February 10, 2005, Applicant completed another SF 86, (38) and in response to an inquiry identical in number and content to the one in the 2003 SF 86, it appears Applicant again responded "no." (39) The "electronic" response to the inquiry is "no," but the response has a line through it with a handwritten "yes." (40) It is not clear who placed the line through the "no" or who wrote "yes." Creating further confusion is the statement by Applicant found in block 43, wherein he stated:

During my interview with DSS investigator . . . , I changed my answers to questions 27 and 28. I made a full statement to her, which she wrote up and I signed and swore to. (41)

The SOR alleged falsification of the 2005 SF 86 while both the government and Applicant addressed only the 2003 SF 86. It is not known how the comments pertaining to 2003 were placed on the 2005 SF 86.

Applicant not only had difficulties being candid and truthful with the government, he continues to have similar problems with family and associates. For example, he informed his business unit Director of Security that "he had used a controlled substance (marijuana) on several different occasions over the last several years." (42) He clearly minimized the extent, frequency, and duration of his drug use. Applicant also advised the Director of Security that he had reported his substance abuse to DSS "freely and voluntarily. . . after an interview with an investigator. . . ." (43) Applicant chose not to tell him the entire truth by omitting the fact that he had lied in his SF 86 in February 2003, and lied twice to the investigator in December 2003.

In December 2005, Applicant referred himself to a counseling and guidance center where the Clinical Director is a Licensed Professional Clinical Counselor (LPCC). He participated in an intake interview and attended two follow-up counseling sessions. He also completed two urine analysis drug screens, both of which were negative for cannabis. (44) He was scheduled to continue counseling into the spring of 2006. (45) The LPCC stated Applicant "does not present with any substance abuse or mental health issues." (46)

Applicant contends that "in the distant past, he occasionally smoked marijuana." (47)

Enclosure 2 of the Directive sets forth adjudicative guidelines which must be considered in the evaluation of security suitability. In addition to brief introductory explanations for each guideline, the adjudicative guidelines are divided into those that may be considered in deciding whether to deny or revoke an individual's eligibility for access to classified information (Disqualifying Conditions) and those that may be considered in deciding whether to grant an individual's eligibility for access to classified information (Mitigating Conditions). An administrative judge need not view the adjudicative guidelines as inflexible ironclad rules of law. Instead, acknowledging the complexities of human behavior, these guidelines, when applied in conjunction with the factors set forth in the Adjudicative Process provision set forth in Section E2.2., Enclosure 2, of the Directive, are intended to assist the administrative judge in reaching fair and impartial common sense decisions.

Because the entire process is a conscientious scrutiny of a number of variables known as the "whole person concept," all available, reliable information about the person, past and present, favorable and unfavorable, should be considered in making a meaningful decision. The Adjudicative Process factors which an Administrative Judge should consider are: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (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 pertinent 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.

Based upon a consideration of the evidence as a whole, I find the following adjudicative guidelines most pertinent to an evaluation of the facts of this case:

Drug Involvement--Guideline H: 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.

Personal Conduct--Guideline E: Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information.

Conditions that could raise a security concern and may be disqualifying, as well as those which could mitigate security concerns, pertaining to both adjudicative guidelines are set forth and discussed in the Conclusions section below.

Since the protection of the national security is the paramount consideration, the final decision in each case must be arrived at by applying the standard that the issuance of the clearance is "clearly consistent with the interests of national security," (48) or "clearly consistent with the national interest." For the purposes herein, despite the different language in each, I conclude that both standards are one and the same. In reaching this decision, I draw only those conclusions that are reasonable, logical and based on the evidence contained in the record. Likewise, I avoid drawing inferences that are grounded on mere speculation or conjecture.

In the decision-making process, the burden of producing evidence initially falls on the government to establish a case which demonstrates, in accordance with the Directive, that it is not clearly consistent with the national interest to grant or continue an applicant's access to classified information. If the government meets its burden, the heavy burden of persuasion then falls upon the applicant to present evidence in refutation, explanation, extenuation or mitigation sufficient to overcome the doubts raised by the government's case, and to ultimately demonstrate that it is clearly consistent with the national interest to grant or continue the applicant's clearance.

A person who seeks access to classified information enters into a fiduciary relationship with the government predicated upon trust and confidence. It is a relationship that transcends normal duty hours and endures throughout off-duty hours as well. It is because of this special relationship that the government must be able to repose a high degree of trust and confidence in those individuals to whom it grants access to classified information. Decisions under this Directive include, by necessity, consideration of the possible risk that an applicant may deliberately or inadvertently fail to protect or safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information.

One additional comment is worthy of note. Applicant's allegiance, loyalty, and patriotism are not at issue in these proceedings. Section 7 of Executive Order 10865 specifically provides that industrial security clearance decisions shall be "in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned." Security clearance decisions cover many characteristics of an applicant other than allegiance, loyalty, and patriotism. Nothing in this Decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied decision as to Applicant's allegiance, loyalty, or patriotism.

Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors, and conditions, including those described briefly above, I conclude the following with respect to each allegation set forth in the SOR:

The government has established its case under Guideline H. Applicant's illegal use of marijuana from 1973 until 1975 and again from 1979 until 2001 is of concern, especially in light of his desire to have continuing access to the nation's secrets. Marijuana use was, and remains, against the law, DoD policy, and his corporate policy. The Directive clearly expresses the government's concern regarding drug involvement in provision E2.A8.1.1.1. (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). Drug abuse is defined in provision E2.A8.1.1.3. (the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction). Provision E2.A8.1.1.2.1. generally identifies and defines drugs, as follows (drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens)). Applicant's overall conduct pertaining to his illegal substance abuse clearly falls within Drug Involvement Disqualifying Condition (DI DC) E2.A8.1.2.1. (any drug abuse).

His initial substance abuse occurred when Applicant was a high school teenager and continued during his initial semester in college. He abstained from mid-1975 until mid-1979. Had such conduct ceased and not been repeated, there might be no further security concern. However, he resumed his marijuana use when he returned to college, and continued using it for the next 22 years, albeit at varying amounts and frequencies. It is troubling that although he was aware his employer had instituted a random drug testing policy for its employees in 1989, he still continued to use marijuana several times per year. More troubling, however, is that he continued his substance abuse after he had been granted a "Q" clearance which he held from 1996 until 2000. Applicant's actions, especially after he had been granted the security clearance, reflect questionable judgment, irresponsibility, and immature behavior. As such, he placed his own desire to use drugs above his fiduciary responsibilities as a holder of a security clearance.

Applicant argued that since his most recent marijuana involvement occurred "in the distant past," it should not be considered recent, a condition recognized under Drug Involvement Mitigating Condition (DI MC) E2. A8.1.3.1. (the drug involvement was not recent). While the presence or absence of rehabilitation and other pertinent behavioral changes are significant factors in the overall adjudicative process, the presence or absence of one particular condition is not controlling. In this instance, I reject Applicant's characterization of his drug use as an event in the "distant past," and consider Applicant's marijuana use in 2001 to be recent. Applicant's occasional use of marijuana in varying amounts and frequencies from 1973 to mid-1975, and again from mid-1979 until 2001, removes his actions from the application of DI MC E2.A8.1.3.2. (the drug involvement was an isolated or aberrational event).

In December 2005, Applicant referred himself to a counseling and guidance center where he participated in one intake interview and attended two counseling sessions. Neither he nor the LPCC furnished any substantial information as to the exact nature and scope of the program other than the characterizations of "intake assessment" and "counseling." Moreover, it is unclear if the program included individual or group therapy, or drug education. While the counselor opined that Applicant "does not present with any substance abuse or mental health issues," he offers no explanations regarding Applicant's history of more than 28 years of substance abuse. There is no diagnosis in the record, but there is an unsupported favorable impression which purports to be a prognosis. In the absence of more specific program and counseling information, I am unable to determine if the program qualified as a "prescribed drug treatment program." These circumstances negate the full application of DI MC E2.A8.1.3.4. (satisfactory completion of a prescribed drug treatment program, including rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a credentialed medical professional).

Applicant asserts he has abstained from marijuana since his positive pre-employment drug screen in 2001. However, based on the record evidence, including the more than 28 year period of his marijuana use, interrupted by four years of abstinence, and his multiple false statements to DSS about his drug use, I am not confident that Applicant's overall substance abuse will not recur. In the absence of a longer period of abstinence, his new vow cannot yet be construed as a "demonstrated intent not to abuse any drugs in the future," as set forth in DI MC E2.A8.1.3.3. (a demonstrated intent not to abuse any drugs in the future). Under these circumstances, Applicant has failed to mitigate or overcome the government's case. Accordingly, allegations 1.a. and 1.b. of the SOR are concluded against Applicant.

The government has also established its case under Guideline E. Examination of Applicant's actions reveals a pattern of conduct involving questionable judgment, untrustworthiness, and unreliability. There is little dispute surrounding Applicant's pattern of deceptive actions, for he has admitted the essential elements of the allegations. Notwithstanding his certifications, oaths, and affirmations that his responses and statements were true and accurate, Applicant, on at least three separate occasions within 10 months, willfully falsified, omitted, or concealed material facts pertaining to his history of substance abuse. In February 2003, he lied regarding two questions about his drug abuse while completing his SF 86. He lied again on December 1, 2003, while being interviewed by DSS. After having second thoughts about his lies that day, he requested an opportunity to correct the record. The following day, despite promising to be "fully cooperative and fully honest," he again lied. The original responses on the 2005 SF 86 also were lies. From that scenario of perpetually refining the truth, it appears Applicant learned nothing about honesty and candor.

Applicant's actions fall within Personal Conduct Disqualifying Condition (PC DC) E2.A5.1.2.2. (the deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities), PC DC E2.A5.1.2.3. (deliberately providing false or misleading information concerning relevant and material matters to an investigator, security official, competent medical authority, or other official representative in connection with a personnel security or trustworthiness determination), PC DC E2.A5.1.2.4. (personal conduct or concealment of information that increases an individual's vulnerability to coercion, exploitation or duress, such as engaging in activities which, if known, may affect the person's personal, professional, or community standing or render the person susceptible to blackmail), and PC DC E2.A5.1.2.5. (a pattern of dishonesty or rule violations, including violation of any written or recorded agreement made between the individual and the agency).

Applicant's ensuing forthrightness regarding his history of substance abuse does not lessen or minimize, much less erase or nullify, the impact of his initial and recurring falsifications, omissions, and deceptions. That eventual admission was insufficient to activate Personal Conduct Mitigating Condition (PC MC) E2.A5.1.3.3. (the individual made prompt, good-faith efforts to correct the falsification before being confronted with the facts).

Complete honesty and candor on the part of applicants for access to classified information is essential to make an accurate, meaningful security clearance determination. Without all the relevant and material facts, a clearance decision is susceptible to error, thus jeopardizing the nation's security. The nature of Applicant's actions and activities, therefore, poses a serious potential risk to the nation's security precautions which go to the very heart of the nation's security system. An applicant's responsibilities associated with the granting of a security clearance are considerable in terms of protecting the national security and in maintaining appropriate personal conduct. Along with the responsibilities is accountability. In this instance, Applicant is now held accountable for those past actions and activities. I do not take this position lightly, but based on the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), my evaluation of the evidence, and my application of the pertinent factors and conditions under the Adjudicative Process, I believe Applicant has failed to mitigate or overcome the Government's case. The evidence leaves me with grave questions and doubts as to Applicant's continued security eligibility and suitability. Accordingly, allegations 1.a., 1.b., 2.a., and 2.b. of the SOR are concluded against Applicant. For the reasons stated, I conclude Applicant is not eligible for access to classified information.

Formal findings For or Against Applicant on the allegations set forth in the SOR, as required by Section E3.1.25. of Enclosure 3 of the Directive, are:

Paragraph 1., Guideline H: AGAINST THE APPLICANT

Subparagraph 1.a.: Against the Applicant

Subparagraph 1.b.: Against the Applicant

Subparagraph 1.c.: Against the Applicant

Paragraph 2., Guideline E: AGAINST THE APPLICANT

Subparagraph 2.a.: Against the Applicant

Subparagraph 2.b.: Against the Applicant

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. Clearance is denied.

Robert Robinson Gales

Chief Administrative Judge

1. The government submitted six items in support of its contentions.

2. Item 4 (Security Clearance Application (SF 86), dated February 10, 2005), at 7.

3. Id. at 2; Item 6 (Statement, dated December 2, 2003), at 2.

4. Id. Item 4, at 1.

5. Applicant Exhibit B (Letter from supervisor, dated January 2, 2006); Applicant Exhibit C (Letter from supervising manager, dated January 3, 2006).

6. Item 4, supra note 2, at 3.

7. Id.

8. Id., 3-4.

9. Item 3 (Response to SOR, dated October 24, 2005; Item 6, supra note 3, at 2).

10. Id. Item 6.

11. Id.

12. Id.

13. Id.

14. Id. at 3.

15. Id.

16. Id.

17. Id.

18. Id.

19. Id.

20. Id. 21. Id.

22. Id. at 4.

23. Id.

24. Item 3, supra note 9.

25. Item 6, supra note 3, at 4.

26. Item 5 (Security Clearance Application, dated February 6, 2003).

27. Id., Question 27.

28. Id. at 8.

29. Id., Question 28.

30. Id. at 8.

31. Item 3, supra note 9. It should be noted that Applicant specifically referred to his falsification in his SF 86, dated February 2003, despite the fact the SOR allegation (2.a.) only referred to a subsequent SF 86.

32. Item 6, supra note 3, at 1.

33. Id.

34. Id. at 2.

35. Id.

36. Id.

37. Id.

38. Item 4 (Security Clearance Application, dated February 10, 2005).

39. Id. at 6.

40. Id.

41. Id. at 8.

42. Letter from Director of Security, dated February 9, 2006, attached to Item 3, supra note 9, at 1.

43. Id.

44. Applicant Exhibit A (Letter from Clinical Director, dated January 6, 2006).

45. Id.

46. Id.

47. Written Statement of Mitigating Condition, dated January 9, 2006), at 2.

48. Exec. Or. 12968, "Access to Classified Information;" as implemented by Department of Defense Regulation 5200.2- R, "Personnel Security Program," dated January 1987, as amended by Change 3, dated November 8, 1995, and further modified by memorandum, dated November 10, 1998. However, the Directive, as amended by Change 4, dated April 20, 1999, uses both "clearly consistent with the national interest" (Sec. 2.3.; Sec.2.5.3.; Sec. 3.2.; and Sec. 4.2.; Enclosure 3, Sec. E3.1.1.; Sec. E3.1.2.; Sec. E3.1.25.; Sec. E3.1.26.; and Sec. E3.1.27.), and "clearly consistent with the interests of national security" (Enclosure 2, Sec. E2.2.3.); and "clearly consistent with national security" (Enclosure 2, Sec. E2.2.2.)