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ISCR Case 05-01331.h1 — CASE

ISCR Case 05-01331.h1denied

Case Headnote

ISCR Case No. 05-01331.h1

deniedJun 20, 2006· Hon. John Grattan Metz, Jr.· hearing

Summary

A 24-year-old assistant computer network administrator was denied a security clearance due to issues under Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct). The applicant admitted to using marijuana 10-15 times between 1999 and 2003, and experimenting with ecstasy, LSD, and hallucinogenic mushrooms several times each from 2000 to 2002.

Crucially, the applicant deliberately concealed this drug history on his January 2004 clearance application. The Statement of Reasons specifically alleged that he falsified his application by willfully hiding his drug use.

The judge determined that the applicant's intentional concealment of his drug history and his admitted drug use demonstrated a lack of candor and trustworthiness. Despite some mitigating conditions being considered, the disqualifying conditions related to personal conduct and drug involvement ultimately led to the denial of his security clearance.

Why the Applicant Was Denied

The applicant deliberately concealed his drug history on his clearance application.
He admitted to using marijuana and other drugs during the relevant time period.
The applicant's conduct demonstrated a lack of candor required of cleared personnel.

Conditions Referenced

Disqualifying

E2.A5.1.2.2raisedDeliberate Omission, Concealment, or Falsification of Relevant and Material Facts
E2.A10.1.2.1raisedAllegations or Admission of Criminal Conduct

Mitigating

E2.A8.1.3.1appliedThe Drug Involvement Was Not Recent
E2.A8.1.3.3appliedA Demonstrated Intent Not to Abuse Any Drugs in the Future

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 issuedSep 20, 2005
Answer filedOct 25, 2005
Hearing heldMar 23, 2006
Decision dateJun 20, 2006

Cite For

Disqualifying Conduct Related to Drug Use Under Guideline H
Lack of Candor in Security Clearance Applications Under Guideline E
Criminal Conduct Implications 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 Guideline E due to deliberate concealment of his drug history on a security clearance application. The applicant admitted to using marijuana and other drugs but failed to disclose this information until confronted during an interview. The judge concluded that the applicant's conduct demonstrated a lack of candor required for security clearance.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant falsified his January 2004 clearance application by wilfully concealing this drug history.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	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 that the applicant's drug involvement was mitigated. The applicant used marijuana 10-15 times from fall 1999 to fall 2003 and experimented with ecstasy, LSD, and hallucinogenic mushrooms several times between 2000 and 2002. The judge concluded that the applicant's drug use was not recent and that he had a credible intent to remain drug-free, resolving Guideline H in favor of the applicant.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
2.a	Applicant bought and used marijuana 10-15 times from fall 1999 to fall 2003.	For Applicant	Marijuana	Occasional	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur	—
2.b	He experimented with ecstasy, LSD, and hallucinogenic mushrooms several times each between 2000 and 2002.	For Applicant	Psilocybin	Experimental	Admitted	—	(a) behavior happened long ago / infrequent / unlikely to recur	—

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 on the Guideline J allegations, finding that the applicant's conduct demonstrated a lack of candor and violated 18 U.S.C. §1001. The applicant deliberately concealed his drug history from the government, which was deemed disqualifying. Consequently, the applicant's request for a security clearance was denied.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	Applicant bought and used marijuana 10-15 times from fall 1999 to fall 2003. He experimented with ecstasy, LSD, and hallucinogenic mushrooms several times each between 2000 and 2002. He falsified his January 2004 clearance application by wilfully concealing this drug history.	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	—	—

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: Personal Conduct; Drugs; Criminal Conduct

DIGEST: Applicant bought and used marijuana 10-15 times from fall 1999 to fall 2003. He experimented with ecstasy, LSD, and hallucinogenic mushrooms several times each between 2000 and 2002. He falsified his January 2004 clearance application by wilfully concealing this drug history. Clearance denied.

CASE NO: 05-01331.h1

DATE:06/20/2006

DATE: June 20, 2006

In Re:

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

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

Applicant for Security Clearance

ISCR Case No. 05-01331

DECISION OF ADMINISTRATIVE JUDGE

JOHN GRATTAN METZ, JR

APPEARANCES

SYNOPSIS

Applicant bought and used marijuana 10-15 times from fall 1999 to fall 2003. He experimented with ecstasy, LSD, and hallucinogenic mushrooms several times each between 2000 and 2002. He falsified his January 2004 clearance application by wilfully concealing this drug history. Clearance denied.

STATEMENT OF CASE

Applicant challenges the 20 September 2005 Defense Office of Hearings and Appeals (DOHA) Statement of Reasons (SOR) recommending denial or revocation of his clearance because of personal conduct, drug involvement, and criminal conduct. (1) He answered the SOR 25 October 2005, and requested a hearing. DOHA assigned the case to me 14 February 2006, and I heard it 23 March 2006. DOHA received the transcript 29 March 2006.

FINDINGS OF FACT

Applicant admitted the allegations of the SOR. Accordingly, I incorporate his admissions as findings of fact. He is a 24- year-old assistant computer network administrator employed by a defense contractor since December 2003. He has never applied for a clearance before. When Applicant applied for a clearance in January 2004, he deliberately concealed his drug abuse and drug purchases between fall 1999 and fall 2003 (question 27). During a Defense Security Service interview in October 2004, he admitted deliberately omitting his drug abuse because he 1) wanted to believe the question was aimed at heavy, regular, use; 2) was ashamed of his drug use because he knew it was illegal and dangerous; and, 3) was afraid he would not obtain his clearance.

Applicant began using marijuana in fall 1999, during his senior year in high school. He continued to use marijuana during college until fall 2003, when he stopped because he was starting to look for post-graduation employment and was concerned both about the legal and health consequences of his drug use. Between 2000 and 2002, he experimented with ecstasy and LSD twice each and with hallucinogenic mushrooms about four times. He says he intends to remain drug- free.

Applicant disclosed his drug abuse history during an October 2004 interview with the Defense Security Service. As the agent went over Applicant's clearance application, asking Applicant for confirmation or correction of the answers, Applicant disclosed his drug use when he got to question 27. Applicant did not disclose his drug abuse history to his employer, or seek to correct his clearance application, before the October 2004 interview. He was aware he could contact the government through his company facility security officer.

Applicant interviewed with his current employer in late fall 2003, while he was still in college, was hired in late December 2003, and applied for his clearance in mid-January 2004. He expected to graduate from college in January 2005. Applicant's supervisor, who participated in the company interviews of Applicant in late 2003, considers him a reliable, honest, and trustworthy employee. However, he did not know the issues concerning Applicant's clearance, and at the hearing was told only "he failed to list that he used drugs while he was in college." (Tr. 18). This fact did not change his opinion of Applicant.

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 E (Personal Conduct), Guideline H (Drug Involvement), 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. (2)

CONCLUSION

The government established a Guideline E and J case and Applicant did not mitigate the security concerns. He deliberately concealed his drug history from the government, at a time when he had stopped using marijuana only a few months. (3) He intended to conceal this information from the government and likely intended to keep it from his employer. This conduct violated 18 U.S.C. §1001. (4) While he disclosed his drug history during his October 2004 interview, he did not disclose the information before then, and then only when the agent was going over the questions on his application. The disclosure was neither prompt nor good-faith within the meaning of the mitigating conditions.

Applicant's 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 himself provides some indication of his 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 he is willing to put his personal needs ahead of legitimate government interests. I resolve Guideline E and J against Applicant.

The government established a Guideline H case, (5) but Applicant mitigated the security concerns. Applicant's use of ecstasy, LSD, and hallucinogenic mushrooms was experimental at best, and ended in 2002. His use of marijuana was only slightly more extensive and ended in fall 2003, over 2½ years ago. Although his drug use was not isolated or aberrational, (6) his use was not recent. (7) In addition, he has stated a credible intent, backed up by more than 2½ years drug free behavior, to refrain from drug use in the future. (8) I conclude Applicant is unlikely to use illegal drugs in the future. Accordingly, I resolve Guideline H for Applicant.

FORMAL FINDINGS

Paragraph 1. Guideline E: AGAINST APPLICANT

Subparagraph a: Against Applicant

Paragraph 2. Guideline H: FOR APPLICANT

Subparagraph a: For Applicant

Subparagraph b: For Applicant

Paragraph 3. Guideline J: AGAINST APPLICANT

Subparagraph a: Against 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 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. See, Department of the Navy v. Egan, 484 U.S. 518 (1988).

3. 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. . .;

4. E2.A10.1.2.1. Allegations or admission of criminal conduct, regardless of whether the person was formally charged; E2.A10.1.2.2. A single serious crime or multiple lesser offenses.

5. E2.A8.1.2.1. Any drug abuse. . .; E2.A8.1.2.2. Illegal drug possession, including. . . purchase. . .

6. E2.A8.1.3.2. The drug involvement was an isolated or aberrational event;

7. E2.A8.1.3.1. The drug involvement was not recent;

8. E2.A8.1.3.3. A demonstrated intent not to abuse any drugs in the future;

FOOTNOTES

FOR GOVERNMENT Jason Perry, Esquire, Department Counsel file:///usr.osd.mil/...yComputer/Desktop/DOHA%20transfer/DOHA-Kane/dodogc/doha/industrial/Archived%20-%20HTML/05-01331.h1.htm[7/2/2021 3:43:33 PM] FOR APPLICANT James R. Klimaski, Esquire