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ISCR Case 97-0692.h1 — CASE

ISCR Case 97-0692.h1denied

Case Headnote

ISCR Case No. 97-0692.h1

deniedMar 4, 1998· Hon. Richard A. Cefola· hearing

Summary

A 41-year-old defense contractor employee was denied a security clearance under Guideline H (Drug Involvement) due to an extensive history of drug use. The applicant used marijuana, at times daily, from approximately 1973 until March 1997. During this period, specifically from 1980 to 1992 while living in State A, marijuana use was almost daily, and the applicant purchased the drug weekly or bi-weekly. The applicant was arrested for marijuana possession in 1986 and again in 1988 or 1989.

Beyond marijuana, the applicant also used other illegal substances, including hashish, psilocybin mushrooms, cocaine, crystal methamphetamine, and purported LSD, from about 1973 until 1985, purchasing these drugs on numerous occasions. Although the applicant received counseling for marijuana abuse after the 1986 arrest and acknowledged dependency, and stated that usage decreased to three or four times a year after moving to State B in 1992, concerns remained.

The denial was based on the applicant's long history of drug use, the recency of the last marijuana use in March 1997, and statements indicating a potential future intent to use marijuana, such as a sworn statement in September 1997 that future use would be a "vacation type thing with old friends," and an admission at the hearing of occasional cravings. The judge found insufficient evidence to mitigate concerns about future drug involvement.

Why the Applicant Was Denied

The applicant had a long history of drug use, including marijuana and other illegal substances, spanning over three decades.
The applicant's last use of marijuana was only a year prior to the hearing, raising concerns about current drug involvement.
The applicant's statements indicated a potential future intent to use marijuana, undermining claims of rehabilitation.

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 issuedOct 20, 1997
Answer filedNov 7, 1997
Hearing heldFeb 4, 1998
Decision dateMar 4, 1998

Cite For

Denial Based on Extensive Drug Involvement Under Guideline H
Insufficient Evidence of Rehabilitation or Intent to Abstain From Drug Use
Importance of Recent Drug Use in Security Clearance Determinations

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 judge found that the applicant had a long history of marijuana use, including periods of dependency, and had used other illegal substances. Despite attempts to abstain, the applicant's recent drug use and statements about potential future use raised security concerns. The judge concluded that the applicant did not meet the mitigating conditions for drug involvement, resulting in a denial of the security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	The Applicant used marijuana, with varying frequency, at times daily, from about 1973 until his last usage in March of 1997.	Against Applicant	Marijuana	Regular	Admitted	—	—	—
1.b	From 1980 to 1992, while living in State A, the Applicant used marijuana on almost a daily basis.	Against Applicant	Marijuana	Regular	Admitted	—	—	—
1.c	In 1986, he was arrested, in part, for possession of marijuana.	Against Applicant	Drug Distribution or Dealing	Not Applicable	Admitted	—	—	—
1.d	In 1988 or 1989, he was arrested a second time for possession of the illegal substance.	Against Applicant	Drug Distribution or Dealing	Not Applicable	Admitted	—	—	—
1.e	During this period of time he also purchased the drug, "[g]enerally every week, or week and a half."	Against Applicant	Drug Distribution or Dealing	Not Applicable	Admitted	—	—	—
1.f	The Applicant also used other illegal substances from about 1973 until about 1985, including hashish, psilocybin mushrooms, cocaine, crystal methamphetamine, and what was purported to him to be LSD.	Against Applicant	Unspecified Drug Involvement	Unspecified	Admitted	—	—	—
1.g	Since moving to State B, in 1992, the Applicant frequency of usage has decreased to three or four times a year.	Against Applicant	Marijuana	Occasional	Admitted	—	—	—
1.h	Subsequent to his 1986 arrest, the Applicant received counseling for his marijuana abuse, and he realized that he was dependent on the drug.	Against Applicant	Drug Diagnosed Disorder	Not Applicable	Admitted	—	—	—
1.i	In September of 1997, the Applicant executed a sworn statement in which he averred, "[i]n the future I would say my use of marijuana will only be a vacation type thing with old friends."	Against Applicant	Stated Intent to Use Again	Not Applicable	Admitted	—	—	—
1.j	At his hearing, he further averred that he "occasionally" has a craving for the drug.	Against Applicant	Stated Intent to Use Again	Not Applicable	Admitted	—	—	—
1.k	The Applicant also used other illegal substances from about 1973 until about 1985.	Against Applicant	Unspecified Drug Involvement	Unspecified	Admitted	—	—	—
1.l	This usage included hashish, psilocybin mushrooms, cocaine, crystal methamphetamine, and what was purported to him to be LSD.	Against Applicant	Unspecified Drug Involvement	Unspecified	Admitted	—	—	—
1.m	He also purchased these drugs on numerous occasions.	Against Applicant	Drug Distribution or Dealing	Not Applicable	Admitted	—	—	—
1.n	The Applicant avers that since moving to State B in 1992, except for vacation periods, he has tried to abstain from the use of marijuana.	Against Applicant	Unspecified Drug Involvement	Unspecified	Admitted	—	—	Claimed Abstinence Period Documented

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: March 4, 1998 In Re: SSN: Applicant for Security Clearance ISCR Case No. 97-0692 DECISION OF ADMINISTRATIVE JUDGE RICHARD A. CEFOLA

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

STATEMENT OF CASE

On October 20, 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 the 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 November 7, 1997. The case was received by the undersigned on January 5, 1998. A notice of hearing was issued on January 9, 1998, and the case was heard on February 4, 1998. The Government submitted documentary evidence, and called one witness to testify. Testimony was taken from the Applicant. The transcript was received on March 3, 1998. The issues raised here are whether the Applicant's drug involvement 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, the documents and the live testimony. The Applicant is 41 years of age, is pursuing an AA degree at a community college, and is employed by a defense contractor as a senior drafter. He currently has no security clearance, but his employer seeks a secret security clearance on behalf of the Applicant. Criterion H - Drug Involvement 1.a.~1.e. The Applicant used marijuana, with varying frequency, at times daily, from about 1973 until his last usage in March of 1997 (Transcript (TR) at page 15 line 13 to page 21 line 6). From 1980 to 1992, while living in State A, the Applicant used marijuana on almost a daily basis (TR at page 20 line 3–17). During this period, in 1986, he was arrested, in part, for possession of marijuana (TR at page 24 line 15 to page 26 line 12). In 1988 or 1989, he was arrested a second time for possession of the illegal substance (TR at page 23 line 4 to page 24 line 14). During this period of time he also purchased the drug, "[g]enerally every week, or week and a half" (TR at page 21 line 7 to page 22 line 5). Since moving to State B, in 1992, the Applicant frequency of usage has decreased to three or four times a year (TR at page 18 line 9 to page 19 line 13). Subsequent to his 1986 arrest, the Applicant received counseling for his marijuana abuse, and he realized that he was dependent on the drug (TR at page 27 line 10 to page 28 line 4). In September of 1997, the Applicant executed a sworn statement in which he averred, "[i]nthe future I would say my use of marijuana will only be a vacation type thing with old friends" (Government Exhibit (GX) 5 at page 2). At his hearing, he further averred that he "occasionally" has a craving for the drug (TR at page 40 lines 1–12). 1.f.~1.n. The Applicant also used other illegal substances from about 1973 until about 1985 (GX 5 at pages 2–3). This usage included hashish, psilocybin mushrooms, cocaine, crystal methamphetamine, and what was purported to him to be LSD (TR at page 32 line 7 to page 37 line 2). He also purchased these drugs on numerous occasions (GX 5 at page 3). Mitigation The Applicant avers that since moving to State B in 1992, except for vacation periods, he has tried to abstain from the use of marijuana (TR at page 19 lines 15–22).

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, and to the point of dependency, from 1973 until his last usage in March of 1997, only about a year ago. Furthermore, in his September 1997, sworn statement he averred that he might use it in the future, a statement he only recanted in his November 1997, Answer to the SOR by stating that he would try to resist the temptation. As I am not convinced that the Applicant will not use marijuana in the future, I must conclude that the Applicant's fairly recent drug abuse 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. f. Against the Applicant. g. Against the Applicant. h. Against the Applicant. i. Against the Applicant. j. Against the Applicant. k. Against the Applicant. l. Against the Applicant. m. Against the Applicant. n. 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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