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ISCR Case 04-12549.h1 — CASE

ISCR Case 04-12549.h1denied

Case Headnote

ISCR Case No. 04-12549.h1

deniedMay 11, 2006· Hon. John Grattan Metz, Jr.· hearing

Summary

A 47-year-old custom evaluation analyst was denied a security clearance under Guidelines E (Personal Conduct), H (Drug Involvement), and J (Criminal Conduct). The denial stemmed from the applicant's willful misrepresentation of marijuana use on multiple clearance applications and continued drug use while holding a clearance.

Specifically, the applicant deliberately failed to disclose marijuana use within the last seven years and after being granted a clearance on applications submitted in February 1997 and July 2003. She also did not disclose marijuana purchases on these applications. Furthermore, the applicant deliberately failed to disclose drug use when first applying for a clearance in 1989.

The judge found that the applicant willfully misrepresented her marijuana use on applications in 1989, 1997, and 2003, and used marijuana while holding a clearance. Crucially, the applicant did not demonstrate a sufficient intent to refrain from future drug use, leading to the determination that granting a clearance was not consistent with national interest.

Why the Applicant Was Denied

The applicant willfully misrepresented her marijuana use on multiple clearance applications.
The applicant used marijuana while holding a clearance, raising concerns about her suitability.
The applicant did not demonstrate a sufficient intent to refrain from drug use in the future.

Conditions Referenced

Disqualifying

E2.A8.1.2.1raisedAny Drug Abuse
E2.A8.1.2.2raisedIllegal Drug Possession, Including Purchase
E2.A5.1.2.2raisedDeliberate Omission, Concealment, or Falsification of Relevant and Material Facts
E2.A10.1.2.1raisedAllegations or Admissions of Criminal Conduct

Key Rule Quoted

“The government has a compelling interest in ensuring each Applicant possesses the requisite judgement, reliability, and trustworthiness of those who must protect national interests as their own.”
— Department of the Navy v. Egan, 484 U.S. 518 (1988)

Procedural Posture

SOR issuedJul 20, 2005
Answer filedAug 8, 2005
Hearing heldOct 17, 2005
Decision dateMay 11, 2006

Cite For

Willful Misrepresentation of Drug Use on Clearance Applications Under Guideline E
Recent Drug Involvement While Holding a Clearance Under Guideline H
Criminal Conduct Related to Falsification of Information 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 that the applicant deliberately misrepresented her marijuana use on multiple clearance applications, which raised significant concerns regarding her personal conduct. The applicant's conduct was deemed unsuitable for access to classified information, leading to a denial of her security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	The applicant deliberately failed to disclose her use of marijuana within the last seven years on her July 2003 clearance application.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	Denied	—	—	—
2.b	The applicant deliberately failed to disclose her use of marijuana after being granted a clearance on her July 2003 clearance application.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	Denied	—	—	—
2.c	The applicant did not disclose her marijuana purchases on her July 2003 clearance application.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	—	Denied	—	—	—
2.d	The applicant deliberately failed to disclose her use of marijuana within the last seven years on her February 1997 clearance application.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	Denied	—	—	—
2.e	The applicant deliberately failed to disclose her use of marijuana after being granted a clearance on her February 1997 clearance application.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	Denied	—	—	—
2.f	The applicant did not disclose her marijuana purchases on her February 1997 clearance application.	For Applicant	Omission or Failure to DiscloseNOT DELIBERATE	—	Denied	—	—	—
2.g	The applicant deliberately failed to disclose her drug use when she first applied for a clearance in 1989.	Against Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Drug Involvement	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 ruled against the applicant on Guideline H due to her marijuana use and misrepresentation of that use on clearance applications. The applicant's drug use occurred while holding a clearance, and she failed to demonstrate a sufficient intent to refrain from future drug use, leading to the denial of her security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	used marijuana while holding a clearance	Against Applicant	MarijuanaWHILE CLEARED	Not Applicable	Admitted	—	—	—
1.b	purchased marijuana	For Applicant	Marijuana	Occasional	Admitted	—	—	—
1.c	failed to disclose marijuana use on clearance applications	Against Applicant	Unspecified Drug Involvement	Unspecified	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 ruled against the applicant under Guideline J, finding that the applicant's multiple falsifications on clearance applications constituted criminal conduct. The applicant did not mitigate the security concerns related to this conduct, which was deemed recent and not isolated. Consequently, the judge denied the security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	Applicant wilfully misrepresented her marijuana use on clearance applications in 1989, February 1997 and July 2003, rendering her an unsuitable candidate for access to classified information.	Against Applicant	Fraud or Deception Criminal	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 wilfully misrepresented her marijuana use on clearance applications in 1989, February 1997 and July 2003, rendering her an unsuitable candidate for access to classified information. She also used marijuana while holding a clearance and has not demonstrated the required intent to refrain from drug use in the future. Clearance denied. CASE NO: 04-12549.h1 DATE: 05/11/2006 DATE: May 11, 2006

In Re:

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

Applicant for Security Clearance

ISCR Case No. 04-12549

DECISION OF ADMINISTRATIVE JUDGE JOHN GRATTAN METZ, JR.

APPEARANCES

SYNOPSIS

Applicant wilfully misrepresented her marijuana use on clearance applications in 1989, February 1997 and July 2003, rendering her an unsuitable candidate for access to classified information. She also used marijuana while holding a clearance and has not demonstrated the required intent to refrain from drug use in the future. Clearance denied.

STATEMENT OF CASE

Applicant challenges the 20 July 2005 Defense Office of Hearings and Appeals (DOHA) Statement of Reasons (SOR) recommending denial or revocation of her clearance because of drug involvement, personal conduct, and criminal conduct. (1) She answered the SOR 8 August 2005, and requested a hearing. DOHA assigned the case to me 28 September 2004 and I heard it 17 October 2005. DOHA received the transcript 28 October 2005.

FINDINGS OF FACT

Applicant admitted buying marijuana (1.b.) and deliberately falsifying two clearance applications (2.b., 2.e., and 3.a.). She denied the remaining allegations of the SOR. Accordingly I incorporate her admissions as findings of fact. She is a 47-year-old custom evaluation analyst employed by a defense contractor since June 2004. (2) She has held an industrial clearance since approximately 1989. Applicant used marijuana at varying frequency from 1978 to fall 2004. Her period of "regular" marijuana use (3) was between 1978 and the early 1990s. She used marijuana sporadically since then until fall 2004. (4) Early in her marijuana use, she purchased small amounts for her personal use or contributed to purchases for use in a group. (5)

When Applicant first applied for a clearance in 1989, she deliberately failed to disclose her drug use as required by the application (2.g.). She did so because she feared she would not get her clearance, and because she might lose her job. When she applied for an upgrade in access in February 1997, she deliberately failed to disclose her use of marijuana within the last seven years (2.d.) and her use of marijuana after being granted a clearance (2.e.). She did so because she feared both the effect of her drug use on her clearance and the effect of disclosing her past falsification on her clearance. She also failed to disclose her marijuana purchases (2.f.) because she had never been involved in any purchases for profit and because her purchases fell outside the 7-year window asked by the question. When Applicant completed a clearance application for her periodic reinvestigation in July 2003, she deliberately failed to disclose her use of marijuana within the last seven years (2.a.) and her use of marijuana after being granted a clearance (2.b.). She did so because she feared the effect of disclosing her past falsifications on her clearance. She also failed to disclose her marijuana purchases (2.c.) because she had never been involved in any purchases for profit and because her purchases fell outside the 7-year window asked by the question.

Applicant's falsifications over the years began to weigh on her. When she was interviewed for her clearance in December 2003, the agent went through her application asking for corrections or changes to her answers. When the agent got to the drug questions (27-29), Applicant revealed the truth about her drug history.

Applicant has acknowledged that she was aware that her marijuana use was unlawful, contrary to government policy, and contrary to her employers' policies. She does not believe that her marijuana use ever put classified information at risk. Nevertheless, she has stated her intent to refrain from drug use in the future in order to retain her clearance.

Applicant's character references uniformly praise her honesty and integrity. However, only one reference appears to be fully aware of Applicant's misconduct. A few more describe their awareness of Applicant's "mistakes." Most do not appear to be aware of any of the issues in the SOR.

POLICIES AND BURDEN OF PROOF

The Directive, Enclosure 2 lists adjudicative guidelines to be considered in evaluating an Applicant's suitability for access to classified information. Administrative Judges must assess both disqualifying and mitigating conditions under each adjudicative issue fairly raised by the facts and circumstances presented. 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 for or against Applicant. However, specific adjudicative 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. Considering the SOR allegations and the evidence as a whole, the relevant, applicable, adjudicative guidelines are Guideline H (Drug Involvement), Guideline E (Personal Conduct), and Guideline J (Criminal Conduct).

Security clearance decisions resolve whether it is clearly consistent with the national interest to grant or continue an Applicant's security clearance. The government must prove, by something less than a preponderance of the evidence, controverted facts alleged in the SOR. If it does so, it establishes a prima facie case against access to classified information. Applicant must then 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.

Persons with access to classified information enter into a fiduciary relationship with the government based on trust and confidence. Therefore, the government has a compelling interest in ensuring each Applicant possesses the requisite judgement, reliability, and trustworthiness of those who must protect national interests as their 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. (6)

CONCLUSION

The government established a Guideline H (7) case and Applicant did not mitigate the security concerns. Although her last marijuana use was in fall 2004, her drug use while cleared raises particular concerns about her suitability for a clearance. (8)

Further, Applicant meets none of the mitigating conditions for drug involvement. Her drug use is recent. (9) It is not isolated or aberrational. (10) While she now vows to remain drug free that vow is directly connected to retaining her clearance, and is undercut by her use of marijuana in fall 2004--after her most recent clearance application and subject interview. Consequently, she has failed to demonstrate intent to refrain from drug abuse in the future. (11) Accordingly, I conclude Guideline H against Applicant.

The government also established a Guideline E case and Applicant did not mitigate the conduct. She deliberately misrepresented her drug history on three clearance applications over fourteen years. (12) She did so to first obtain, then retain, her clearance. Her conduct demonstrates a lack of candor required of cleared personnel. The government has an interest in examining all relevant and material adverse information about an Applicant before making a clearance decision. The government relies on applicants to truthfully disclose that adverse information. Further, an applicant's willingness to report adverse information about herself provides some indication of her willingness to report inadvertent security violations or other security concerns in the future, something the government relies on in order to perform damage assessments and limit the compromise of classified information. Applicant's conduct suggests she is willing to put her personal needs ahead of legitimate government interests.

None of the Guideline E mitigating conditions apply. The concealed information was relevant to a clearance decision. (13) The falsifications were not isolated, they were recent, although the Applicant did eventually provide the correct information voluntarily. (14) And while she did disclose her drug use before being confronted with it, that disclosure cannot be considered either prompt or good faith within the meaning of the guideline, given the passage of more than four months from the last falsified clearance application and her December 2003 subject interview. (15) There is no evidence suggesting Applicant received bad advice about what she was required to disclose on her clearance application. (16) However, I conclude that she did not falsify her 1997 and 2003 applications when she failed to disclose her drug purchases, both because she never did so for profit and because the purchases occurred outside the 7-year window required by the question. Nevertheless, I resolve Guideline E against Applicant.

The government established a Guideline J case, and the Applicant did not mitigate the security concerns. Her multiple falsifications on her clearance applications violated 18 U.S.C. §1001. (17) None of the Guideline J mitigating factors apply. Her conduct is recent, (18) not isolated, (19) and there is little evidence of successful rehabilitation. (20) Accordingly, I conclude Guideline J against Applicant.

FORMAL FINDINGS

Paragraph 1. Guideline H: AGAINST APPLICANT

Subparagraph a: Against Applicant Subparagraph b: For Applicant Subparagraph c: Against Applicant

Paragraph 2. Guideline E: AGAINST APPLICANT Subparagraph a: Against Applicant Subparagraph b: Against Applicant Subparagraph c: For Applicant Subparagraph d: Against Applicant Subparagraph e: Against Applicant Subparagraph f: For Applicant Subparagraph g: Against Applicant

Paragraph 3. Guideline J: AGAINST APPLICANT

Subparagraph a: Against Applicant

DECISION

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. Clearance denied.

___________________ John G. Metz, Jr. Administrative Judge 1. Required by Executive Order 10865 and Department of Defense Directive 5220.6, as amended (Directive). 2. Applicant changed employers between her July 2003 clearance application and the hearing. 3. Defined by Applicant as more than three times per year. She said some years she used as many as 4-5 times per year, some years not at all. 4. Her last use occurred after her most recent clearance application (July 2003) and subject interview (December 2003). 5. Never more than $25.00. 6. See, Department of the Navy v. Egan, 484 U.S. 518 (1988). 7. E2.A8.1.2.1. Any drug abuse; E2.A8.1.2.2. Illegal drug possession, including . . .purchase. . .; 8. E2.A8.1.2.5…. Recent drug involvement, especially following the granting of a security clearance, . . will almost invariably result in an unfavorable determination. 9. E2.A8.1.3.1. The drug involvement was not recent; 10. E2.A8.1.3.2. The drug involvement was an isolated or aberrational event; 11. E2.A8.1.3.3. A demonstrated intent not to abuse any drugs in the future; 12. 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, . . . [or] determine security clearance eligibility or trustworthiness. . .; 13. E2.A5.1.3.1. The information was unsubstantiated or not pertinent to a determination of judgment, trustworthiness, or reliability; 14. E2.A5.1.3.2. The falsification was an isolated incident, was not recent, and the individual has subsequently provided correct information voluntarily; 15. E2.A5.1.3.3. The individual made prompt, good-faith efforts to correct the falsification before being confronted with the facts; 16. E2.A5.1.3.4. Omission of material facts was caused or significantly contributed by improper or inadequate advice of authorized personnel, and the previously omitted information was promptly and fully provided; 17. E2.A10.1.2.1. Allegations or admissions of criminal conduct, regardless of whether the person was formally charged; E2.A10.1.2.2. A single serious crime or multiple lesser offenses. 18. E2.A10.1.3.1. The criminal behavior was not recent. 19. E2.A10.1.3.2. The crime was an isolated incident. 20. E2.A10.1.3.6. There is clear evidence of successful rehabilitation.

FOOTNOTES

FOR GOVERNMENT Jason Perry, Esquire, Department Counsel Francisco J. Mendez, Esquire, Department Counsel