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ISCR Case 97-0492.h1 — CASE

ISCR Case 97-0492.h1denied

Case Headnote

ISCR Case No. 97-0492.h1

deniedFeb 10, 1998· Hon. Richard A. Cefola· hearing

Summary

A 41-year-old electrical technician was denied a security clearance under Guideline H (Drug Involvement) due to a long history of drug use. The applicant used marijuana approximately twice a month from 1974 to 1983, and again from 1989 until at least January 11, 1997. Additionally, he used methamphetamine about three or four times per month from 1974 until 1983.

A sworn statement from January 14, 1997, revealed the applicant's intention to potentially use marijuana again if offered at a party, and he explicitly stated he had taken no steps to stop using it because he intended to continue. Although the applicant later averred he would not use drugs in the future, this assertion was deemed insufficient.

The denial was based on the applicant's extensive drug use history, his recent statements indicating an intent to continue marijuana use, and his failure to provide substantial mitigating evidence. The judge found the applicant's claims of future abstinence unconvincing given his prior admissions and intentions.

Why the Applicant Was Denied

The applicant had a long history of drug use, including marijuana and methamphetamine, spanning over three decades.
The applicant's recent statements indicated an intention to continue using marijuana, undermining claims of future abstinence.
The applicant failed to provide substantial evidence to mitigate the government's prima facie case regarding drug involvement.

Conditions Referenced

Disqualifying

H1raisedDrug Abuse
H2raisedIllegal Drug Possession or Purchase

Key Rule Quoted

“The improper or illegal involvement with drugs raises questions regarding an individual's willingness or ability to protect classified information.”

Procedural Posture

SOR issuedJul 23, 1997
Answer filedAug 12, 1997
Hearing heldN/ADetermined on written record.
Decision dateFeb 10, 1998

Cite For

Long History of Drug Use as a Disqualifying Factor Under Guideline H
Insufficient Evidence of Rehabilitation or Future Abstinence From Drug Use
Recent Admissions of Intent to Use Drugs as a Basis for Denial of Security Clearance

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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The applicant's drug involvement included marijuana and methamphetamine use over several years. The judge found against the applicant on all allegations related to drug involvement, concluding that the applicant's history of drug use raised significant security concerns.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The Applicant used marijuana, with varying frequency, on an average of about twice a month from 1974 to 1983, and again from 1989 until at least January 11, 1997.	Against Applicant	Marijuana	Occasional	Admitted	—	—	—
1.b	The Applicant also used methamphetamine, with varying frequency, 'about three or four times per month' from 1974 until 1983.	Against Applicant	Methamphetamine	Occasional	Admitted	—	—	—
1.c	In a sworn statement, executed by the Applicant on January 14, 1997, he averred the following as to his future use of the drug: 'As to whether I will use marijuana ever again, if I happen to be at a party in the future and a marijuana cigarette is passed around, I may take a hit off it.'	Against Applicant	Stated Intent to Use Again	Not Applicable	Admitted	—	—	—
1.d	In that same document he reiterated this intention, 'I have not taken any steps to stop using marijuana because I intend to use it in the future.'	Against Applicant	Stated Intent to Use Again	Not Applicable	Admitted	—	—	—
1.e	The Applicant now avers that he will not use drugs in the future.	Against Applicant	Unspecified Drug Involvement	Unspecified	Admitted	—	—	Claimed Other

Descriptive standardized rendering of a decided public case (Guideline H). 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: February 10, 1998 In Re: SSN: Applicant for Security Clearance ISCR Case No. 97-0492 DECISION OF ADMINISTRATIVE JUDGE RICHARD A. CEFOLA

FOR GOVERNMENT Martin H. Mogul, Esquire, Department Counsel FOR APPLICANT Pro Se

STATEMENT OF CASE

On July 23, 1997, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to the Applicant, which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the interests of national security to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked. The SOR is attached. Applicant filed an Answer to the SOR on or about August 12, 1997. Applicant elected to have this case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's File of Relevant Material (FORM) on October 21, 1997. Applicant was instructed to submit objections or information in rebuttal, extenuation or mitigation within 30 days of receipt of the FORM. Applicant received his copy on October 27, 1997, and submitted nothing in reply. The case was received by the undersigned for resolution on February 10, 1998. The issue raised here is whether the Applicant's admitted drug usage militates against the granting of a security clearance.

FINDINGS OF FACT

The following Findings of Fact are based on Applicant's Answer to the SOR, and the File of Relevant Material. The Applicant is 41 year old electrical technician, and is employed by a defense contractor who seeks a security clearance on behalf of the Applicant. Criterion H - Drug involvement 1.a.~1.e. The Applicant used marijuana, with varying frequency, on an average of about twice a month from 1974 to 1983, and again from 1989 until at least January 11, 1997 (Government Exhibit (GX) 5 at pages 1–2). During the periods of his usage, he purchased marijuana on a "twice-monthly" basis (GX 5 at page 2). In a sworn statement, executed by the Applicant on January 14, 1997, he averred the following as to his future use of the drug: "As to whether I will use marijuana ever again, if I happen to be at a party in the future and a marijuana cigarette is passed around, I may take a hit off it" (GX 5 at page 2). In that same document he reiterated this intention, "I have not taken any steps to stop using marijuana because I intend to use it in the future. As for when, I am not sure" (GX 5 at page 2, emphasis supplied). However, in his August 12, 1997, Answer to the SOR, the Applicant now avers "that I will refrain from future use of this [marijuana] or any other illegal drug" (GX 3 at page 2). The Applicant also used methamphetamine, with varying frequency, "about three or four times per month" from 1974 until 1983 (GX 5 at page 1). He "paid about $4.00 per month or $1.00 per capsule" for the drug (GX 5 at page 1). Mitigation The Applicant now avers that he will not use drugs in the future.

POLICIES

Enclosure 2 and Section F.3. of the 1992 Directive set forth both policy factors, and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. The conditions should be followed in every case according to the pertinent criterion, however, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on his own common sense. Because each security clearance case presents its own unique facts and circumstances, it should not be assumed that these conditions exhaust the realm of human experience, or apply equally in every case. Conditions most pertinent to evaluation of this case are: Drug Involvement Conditions that could raise a security concern: (1) any drug abuse (drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction); (2) illegal drug possession . . . purchase. Conditions that could mitigate security concerns: none As set forth in the Directive,"[each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy in enclosure 2, including as appropriate: a. Nature and seriousness of the conduct and surrounding circumstances. b. Frequency and recency of the conduct. c. Age of the applicant. d. Motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequence involved. e. Absence or presence of rehabilitation. f. Probability that circumstances or conduct will continue or recur in the future. The Administrative Judge, however, can only draw those inferences or conclusions that have a reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature. The Government must make out a prima facie case under Criterion H (drug involvement) which establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between an applicant's adverse conduct and his ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required. Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the past adverse conduct, is unlikely to be repeated, and that the Applicant presently qualifies for a security clearance. The improper or illegal involvement with drugs, raises questions regarding an individual's willingness or ability to protect classified information. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations at all times and in all places. If an applicant has demonstrated a lack of respect for the law in his private affairs, then there exists the possibility that an applicant may demonstrate the same attitude towards security rules and regulations.

CONCLUSION

The Applicant used marijuana over a period covering three decades, from 1974 to 1983, and again from 1989 until at least January 11, 1997, only three days prior to executing his sworn statement. This marijuana use ended only a little more than nine months ago (the date of the Government's FORM ends the time line used for adjudication purposes in this case). In addition, in his January 14, 1997, sworn statement he averred "I intend to use it in the future," a statement he only recanted seven months later in his Answer. Based on the foregoing, I must conclude that the Applicant's fairly recent use of marijuana is of present security significance. Considering all the evidence, the Applicant has not rebutted the Government's prima facie case regarding his drug involvement. The Applicant has thus not met the mitigating conditions of Criterion H, and of Section F.3. of the Directive. Accordingly, he has not met his ultimate burden of persuasion under Criterion H.

FORMAL FINDINGS

Formal Findings required by paragraph 25 of Enclosure 3 of the Directive are: Paragraph 1: AGAINST THE APPLICANT a. Against the Applicant. b. Against the Applicant. c. Against the Applicant. d. Against the Applicant. e. Against the Applicant. Factual support and reasons for the foregoing are set forth in FINDINGS OF FACT and CONCLUSIONS, supra.

DECISION

In light of the circumstances presented by the record in this case, it is not clearly consistent with the interests of national security to grant or continue a security clearance for the Applicant. Richard A. Cefola Administrative Judge

FOOTNOTES

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