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ISCR Case 96-0563.h1 — CASE

ISCR Case 96-0563.h1denied

Case Headnote

ISCR Case No. 96-0563.h1

deniedDec 31, 1996· Hon. John Grattan Metz, Jr.· hearing

Summary

A 23-year-old defense contractor employee was denied a security clearance due to extensive drug involvement and multiple instances of personal conduct issues, specifically falsification. The applicant's drug use began in high school, with marijuana use continuing until July 1996, just days before his final interview. He also used LSD three or four times between 1991 and 1992, and hallucinogenic mushrooms three times between 1992/1993 and April 1994. Additionally, the applicant engaged in accommodation sales of drugs, netting approximately $50, which ceased after his arrest in April 1994 for trafficking mushrooms.

The denial was primarily based on the applicant's repeated falsifications on National Agency Questionnaires (NAQs) and during interviews with the Defense Investigative Service (DIS). He understated the full extent of his drug use, purchases, and sales on multiple NAQs. During a DIS interview, he falsely claimed to have only used marijuana between January 1993 and May 1994, and later asserted he had not used marijuana after Summer 1995, or any drugs since September 1995.

These knowing, multiple falsifications to a federal agency were deemed to violate 18 U.S.C. §1001 and had the potential to influence the background investigation. The judge concluded that the applicant's drug abuse raised serious doubts about his reliability and trustworthiness, and his repeated dishonesty indicated a lack of integrity necessary for access to classified information. The clearance was denied under Guideline E (Personal Conduct), Guideline H (Drug Involvement), and Guideline J (Criminal Conduct).

Why the Applicant Was Denied

The applicant had a history of extensive drug use, including marijuana, LSD, and hallucinogenic mushrooms.
The applicant falsified multiple National Agency Questionnaires regarding his drug use.
The applicant's repeated dishonesty undermined his credibility and trustworthiness.

Conditions Referenced

Disqualifying

HraisedDrug Involvement
EraisedPersonal Conduct
JraisedCriminal Conduct

Key Rule Quoted

“"the clearly consistent standard indicates that security-clearance determinations should err, if they must, on the side of denials."”
— Department of the Navy v. Egan, 484 U.S. 518, 531 (1988)

Procedural Posture

SOR issuedAug 13, 1996
Answer filedUndatedRequested an administrative decision on the record.
Hearing heldNot specified
Decision dateDec 31, 1996

Cite For

Extensive Drug Involvement Under Guideline H
Falsification of Information 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 all allegations under Guideline E, determining that the applicant knowingly and willfully falsified information regarding his drug use on multiple occasions. The applicant's lack of full disclosure and the timing of his admissions raised significant concerns about his reliability and trustworthiness.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	The Applicant falsified a National Agency Questionnaire (NAQ) when he understated the full extent of his drug use, purchases, and sales.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	Admitted	—	—	—
2.b	During a subject interview with the Defense Investigative Service (DIS), the Applicant falsely asserted he had only used marijuana between January 1993 and May 1994.	Against Applicant	Lack of Candor in InterviewFOUND DELIBERATE	Drug Involvement	Admitted	—	—	—
2.c	The Applicant falsely asserted he had not used marijuana after Summer 1995.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	Admitted	—	—	—
2.d	The Applicant again falsified a National Agency Questionnaire (NAQ) when he understated the full extent of his drug use, asserting that it occurred between 1991 and May 1994.	Against Applicant	Falsification Security FormFOUND DELIBERATE	Drug Involvement	Admitted	—	—	—
2.e	The Applicant's failure to fully disclose his drug abuse history until he was confronted with a follow-up interview suggests that he cannot be relied upon to speak the truth if the truth presents possible adverse consequences for his own interests.	Against Applicant	Lack of Candor in InterviewFOUND DELIBERATE	—	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 several drug involvement allegations, citing a history of marijuana use and falsification of drug use on security questionnaires. The applicant's admissions and the extent of his drug use raised significant concerns about his reliability and trustworthiness, leading to the denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant first used marijuana in 1989 or 1990 while in high school, using it once a month. During college (approximately 1991) to his drug arrest in April 1994, Applicant used marijuana approximately twice a week.	Against Applicant	Marijuana	Regular	Admitted	—	—	—
1.b	Applicant engaged in accommodation sales of drugs between early 1993 and April 1994, netting approximately $50.00. The drug sales ended when Applicant was arrested on 5 April 1994 for trafficking mushrooms.	Against Applicant	Drug Distribution or Dealing	Not Applicable	Admitted	—	—	—
1.c	Applicant used hallucinogenic mushrooms three times between 1992/1993 and April 1994; he used LSD three or four times between summer 1991 and early 1992.	For Applicant	Psilocybin	Experimental	Admitted	—	—	—
1.d	Applicant used marijuana once a month, with the last use on 5 July 1996, some four days before his last DIS interview.	For Applicant	Marijuana	Occasional	Admitted	—	—	—
1.e	Applicant falsified a National Agency Questionnaire (NAQ) when he understated the full extent of his drug use, purchases, and sales.	For Applicant	Unspecified Drug Involvement	Not Applicable	Admitted	—	—	—
1.f	Applicant repeated these falsifications on a 23 October 1995 National Agency Questionnaire (NAQ).	For Applicant	Unspecified Drug Involvement	Not Applicable	Admitted	—	—	—
1.g	Applicant falsely asserted he had only used marijuana between January 1993 and May 1994.	For Applicant	Unspecified Drug Involvement	Not Applicable	Admitted	—	—	—
1.h	Applicant falsely asserted he had not used marijuana after Summer 1995.	For Applicant	Unspecified Drug Involvement	Not Applicable	Admitted	—	—	—
1.i	Applicant falsely asserted that he had not used any drugs since September 1995.	For Applicant	Unspecified Drug Involvement	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 the criminal conduct allegations, determining that the applicant's history of drug abuse and multiple falsifications to a federal agency raised serious doubts about his judgment and trustworthiness. The applicant's conduct was deemed disqualifying, leading to the denial of his security clearance.

¶	Allegation	Finding	Offense	Criminal disposition	Response	Disqualifying (¶31)	Mitigating applied (¶32)	Mitigation
3.a	The Applicant's knowing, multiple falsifications to an agency of the federal government on matters within that agency's jurisdiction clearly violate 18 U.S.C. §1001.	Against Applicant	Fraud or Deception Criminal	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—
3.b	The falsifications had the potential to influence the course of the background investigation--in areas of legitimate concern to the Government.	For Applicant	Unspecified Criminal Conduct	Conduct No Charge	Admitted	(a) pattern of minor offenses casting doubt on judgment/reliability	—	—

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

APPEARANCES

DATE: December 31, 1996 __________________________________________ In Re: -------------------- SSN: ----------- Applicant for Security Clearance __________________________________________ ISCR Case No. 96-0563 DECISION OF ADMINISTRATIVE JUDGE JOHN G. METZ, JR.

FOR THE GOVERNMENT Matthew E. Malone, Esquire Department Counsel FOR THE APPLICANT Pro se

STATEMENT OF CASE

On 13 August 1996, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant, stating that DOHA could not make the preliminary affirmative finding(1) that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. By undated response, Applicant answered the SOR and requested an administrative decision on the record. Applicant did not respond to the Government's File of Relevant Material (FORM)--issued 8 October 1996; the record in this case closed 15 November 1996, the day the response was due at DOHA. I received the case on 12 December 1996 to determine whether clearance should be granted, continued, denied or revoked. A copy of the SOR is attached to this Determination and incorporated by reference.

FINDINGS OF FACT

Applicant admitted the allegations of the SOR; accordingly, I incorporate the admissions as findings of fact. Applicant is a 23-year old employee of a defense contractor seeking a secret clearance. On 22 March 1995, Applicant falsified a National Agency Questionnaire (NAQ)(DD Form 398-2)(FORM, Item 4) when he understated the full extent of his drug use, purchases, and sales. He repeated these falsifications on a 23 October 1995 National Agency Questionnaire (NAQ)(DD Form 398-2)(FORM, Item 5). During a subject interview with the Defense Investigative Service (DIS) on 1 February 1996, Applicant falsely asserted he had only used marijuana between January 1993 and May 1994. In a 21 March 1996 sworn statement to the DIS (Item 7), Applicant admitted he had used marijuana after May 1994, but falsely asserted he had not used marijuana after Summer 1995. Two days later (Item 8), he contacted the DIS to disclose that he had recalled using marijuana once more in September 1995, but falsely asserted that he had not used any drugs since that later date.(2) Finally, Applicant again falsified a 7 June 1996 National Agency Questionnaire (NAQ)(DD Form 398-2)(FORM, Item 6) when he understated the full extent of his drug use, asserting that it occurred between 1991 and May 1994. Not until Applicant was confronted with a final DIS interview on 9 July 1996 (Item 9), did he disclose the true extent of his drug abuse: Applicant first used marijuana in 1989 or 1990 while in high school, using it once a month. During college (approximately 1991) to his drug arrest in April 1994, Applicant used marijuana approximately twice a week. From his April 1994 drug arrest to college graduation (not otherwise specified), Applicant claimed he used no drugs. From graduation to July 1996, Applicant used marijuana once a month, with the last use on 5 July 1996, some four days before his last DIS interview. Applicant used hallucinogenic mushrooms three times between 1992/1993 and April 1994; he used LSD three or four times between summer 1991 and early 1992. He purchased the drugs he used in high school and college; the largest single buy was $20.00, the aggregate spent on drugs $200.00. Applicant engaged in accommodation sales of drugs between early 1993 and April 1994, netting approximately $50.00. The drug sales ended when Applicant was arrested on 5 April 1994 for trafficking mushrooms--he later pleaded to furnishing a controlled substance. Applicant asserted that he failed to disclose his more extensive drug use to the other DIS agents "because I felt it was insignificant when compared with other parts of my past." (Item 9).

POLICIES

Enclosure 2 of the Directive sets forth adjudicative guidelines to be considered in evaluating an individual's security eligibility. The Administrative Judge must take into account the conditions raising or mitigating security concerns in each area applicable to the facts and circumstances presented. Each adjudicative decision must also assess the factors listed in Section F.3. and in Enclosure (2) of the Directive. Although the presence or absence of a particular condition for or against clearance is not determinative, the specific adjudicative guidelines should be followed whenever a case can be measured against this policy guidance, as the guidelines reflect consideration of those factors of seriousness, recency, motivation, etc. Considering the evidence as a whole, the following adjudication policy factors are most pertinent to this case: DRUG INVOLVEMENT (CRITERION 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. Conditions that could raise a security concern and may be disqualifying include: (1) any drug abuse; (2) illegal drug possession, including . . . purchase, sale . . . Conditions that could mitigate security concerns include: None. PERSONAL CONDUCT (CRITERION E) Conduct involving questionable judgment, untrustworthiness, unreliability, 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 include: (2) 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. . .; (3) deliberately providing false or misleading information concerning relevant and material matters to an investigator, . . . in connection with a personnel security or trustworthiness determination; Conditions that could mitigate security concerns include: None. CRIMINAL CONDUCT (CRITERION J) A history or pattern of criminal activity creates doubt about a person's judgment, reliability and trustworthiness. Conditions that could raise a security concern and may be disqualifying include: (1) any criminal conduct, regardless of whether the person was formally charged; Conditions that could mitigate security concerns include: None. Burden of Proof Initially, the Government must prove controverted facts alleged in the Statement of Reasons. If the Government meets that burden, the burden of persuasion then shifts to the applicant to establish his security suitability through evidence of refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of disqualifying conduct, it is nevertheless clearly consistent with the national interest to grant or continue the security clearance. A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. Where facts proven by the Government raise doubts about an applicant's judgment, reliability or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he or she is nonetheless security worthy. As noted by the United States Supreme Court in Department of the Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security-clearance determinations should err, if they must, on the side of denials."

CONCLUSION

The Government has established its case under Criterion H. Applicant's extensive history of drug abuse raises serious doubts about his fitness for access to classified information. His use, purchase and sale of LSD and mushrooms is sufficiently remote to suggest that he will not use these drugs in the future. However, his use of marijuana presents a different question. Applicant's use of marijuana is more extensive than his use of other drugs, and more recent. While the Applicant stated an intent to not use drugs in the future, he had made similar statements on his NAQs and prior sworn statements yet continued to use marijuana until July 1996--at a time he knew that DoD was concerned about his fitness for access to classified information because of that drug abuse. On these facts, I conclude that it is too early to determine that Applicant's drug abuse is completely behind him. I find Criterion H. against Applicant. The Government has established its case under Criteria E. The information sought by the Government on the NAQs and during the subject interviews was relevant and material to the Government's investigation of the Applicant's fitness for access to classified information, and the Applicant knowingly and wilfully falsified that information. Each time, Applicant disclosed only so much of his drug history as he thought would get by the DIS. The Applicant's failure to fully disclose his drug abuse history until he was confronted with a follow up interview, suggests that he cannot be relied upon to speak the truth if the truth presents possible adverse consequences for his own interests. Although Applicant claims that he omitted the later drug because of its relative insignificance, I reject that explanation. He knew the answers he provided were false; and indeed he knew the answers had to be false for him to get what he wanted--a security clearance. At no time did Applicant make any effort to fully disclose his drug abuse history, much less a prompt, good faith effort.(3) I find criterion E. against the Applicant. The Government has established its case under Criterion J. The Applicant's knowing, multiple falsifications to an agency of the federal government on matters within that agency's jurisdiction clearly violate 18 U.S.C. §1001. The falsifications had the potential to influence the course of the background investigation--in areas of legitimate concern to the Government. However, I find that Applicant is unlikely to engage in drug sales in the future; Applicant's sale activity was minimal, and has not recurred since April 1994. I find criterion J. against the Applicant.

FORMAL FINDINGS

Paragraph 1. Criterion H: AGAINST THE APPLICANT Subparagraph a: Against the Applicant Subparagraph b: Against the Applicant Subparagraph c: For the Applicant Subparagraph d: For the Applicant Subparagraph e: For the Applicant Subparagraph f: For the Applicant Subparagraph g: For the Applicant Subparagraph h: For the Applicant Subparagraph i: For the Applicant Paragraph 2. Criterion E: AGAINST THE APPLICANT Subparagraph a: Against the Applicant Subparagraph b: Against the Applicant Subparagraph c: Against the Applicant Subparagraph d: Against the Applicant Subparagraph e: Against the Applicant Paragraph 3. Criterion J: AGAINST THE APPLICANT Subparagraph a: Against the Applicant Subparagraph b: For the 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. John G. Metz, Jr. Administrative Judge 1. Required by Executive Order 10865, as amended and Department of Defense Directive 5220.6, dated January 2, 1992--and amended by Change 3 dated 16 February 1996 (Directive). 2. This falsification was not alleged in the SOR, and I have not considered it on the merits of the case; however, I have considered it on the issue of Applicant's general credibility. 3. Notwithstanding that he contacted DIS on 23 March 1996 to disclose drug use in September 1995; he falsely asserted that September 1995 was the last drug use, when his use of drugs continued into 1996.

FOOTNOTES

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