1 DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ------------------- ) ISCR Case No. 07-05455 SSN: ----------- ) ) Applicant for Security Clearance ) Appearances For Government: Francisco Mendez, Esquire, Department Counsel For Applicant: Pro se ______________ Decision ______________ MARSHALL, Jr., Arthur E., Administrative Judge: On May 19, 2010, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) enumerating security concerns arising under Guideline J (Criminal Conduct), Guideline H (Drug Involvement), Guideline E (Personal Conduct), and Guideline F (Financial Considerations). The action was taken under Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense (DOD) Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the DOD on September 1, 2006. In a June 24, 2010, response, Applicant admitted six of the 11 allegations raised under Guideline J, all three allegations raised under Guideline H, two of the five allegations raised under Guideline E, and three of the five allegations raised under Guideline F. Applicant declined a hearing, but the Government requested that a hearing be held. DOHA assigned the case to me on September 10, 2010. The parties proposed a hearing date of October 29, 2010. A notice setting that date for the hearing was issued on September 30, 2010. I convened the hearing as scheduled. At the onset of the hearing, the Government moved to withdraw the allegations under Guideline F and Tr. 16, 35. 1 Tr. 45. 2 Id. 3 Tr. 19-21. 4 Tr. 34-35. 5 Tr. 35-36. 6 2 allegation 3.d under Guideline E. Similarly, the Government moved to amend allegation 3.c under Guideline E to change the date of April 2004 to April 2002. Lacking any objections, I granted the motions and the SOR was amended as noted. Applicant gave testimony and presented no documents for consideration. Department Counsel offered 16 documents, which were admitted as exhibits (Exs.) 1-16 without objection. The transcript (Tr.) of the proceeding was received on November 9, 2010, and the record was closed. Based on a review of the testimony, submissions, and exhibits, I find Applicant failed to meet his burden of mitigating security concerns related to personal conduct. Clearance denied. Findings of Fact Applicant is a 32-year-old assembler who has worked for the same defense contractor since 2006. He earned a high school diploma and attended some college. He is currently single and he is helping support his two young children. In 1996, when he was in high school, Applicant started using marijuana occasionally. Between 1996 and 1999, he smoked marijuana with some regularity1 because he “lived with some guys who smoked.” After 1999, when he lived on his own,2 Applicant “didn’t smoke every day, or every other day, it was rare, actually. Like I said, this is why I took several drug tests [during that time] and had no problem, because I have no problem.” As noted below, he was found in the possession of marijuana in3 2001 and 2004. He believes that completion of substance abuse awareness courses led to the dismissal of any related charges. He quit using drugs in 2005. He last4 5 purchased drugs at some time earlier.6 Between February 2000 and March 2008, Applicant was cited for multiple offenses by law enforcement. In February 2000, Applicant was charged with reckless driving. In November 2001, he was found guilty of possession of marijuana, sentenced to fines, ordered to complete a substance abuse awareness course, and had his driver’s license restricted for six months. The charge was then dismissed in 2003. In the interim, in about January 2002, he was found guilty of driving with a suspended license, fined, given 30 days (suspended), and his driver’s license was suspended for six months. In December 2002, he was charged with driving with a suspended license. In January 2004, he pled guilty to the charge of possession of marijuana, sentenced to fines, put on probation, had his license restricted, and was referred to a substance abuse awareness course. In September 2004, Applicant appeared in court to show that Tr. 17-18, 22-24. Applicant regrets not having seen the drug before his acquaintance left it in his vehicle. 7 Tr. 14-16, 52, 55-57. Applicant was unaware a dismissed charge was of interest to the Government. 8 Tr. 36. 9 See SOR allegation ¶ 3.e regarding Ex. 1 (Security Clearance Application, dated Sep. 8, 2006). That 10 question inquired whether the applicant had illegally used any controlled substances, including marijuana, in the preceding seven years or since the age of 16. Response to the SOR, dated Jun. 23, 2010. 11 Ex. 3 (Interrogatories, dated Jul. 14, 2008) at 4. 12 Ex. 4 (interrogatories, dated Nov. 8, 2008, interview, dated Mar. 2, 2007, to Mar. 9, 2007) at 10. The 13 interviewer then noted, “Subject does not feel he omitted his past drug use of marijuana in an effort to falsify or conceal material facts to the US Government.” Tr. 44-45. 14 3 he had an appropriate driver’s license and a charge of driving with suspended license was dismissed. In December 2004, Applicant was found guilty of possession of marijuana, sentenced to fines, given a restricted driver’s license, referred to a substance abuse awareness program, and his probation was extended. In June 2007, he was charged with drug possession after marijuana belonging to an acquaintance was found within Applicant’s control during a traffic stop. Applicant ultimately pled guilty to possession of drug paraphernalia and fined. In January 2008 and in March 2008, he7 was charged with driving under a revoked driver’s license, but the charges were dismissed when he appeared in court to show that he had a valid license. With regard to the dismissed cases against him regarding suspended or revoked license, Applicant credibly explained that such cases are dismissed upon a showing of a valid driver’s license. He currently has a valid, unrestricted driver’s license.8 9 In his response to the 2010 SOR, Applicant denied that he falsified material facts when he failed to list marijuana use between 1999 and 2005 in response to Section 24: (Your Use of Illegal Drugs and Drug Activity) of his September 8, 2006, security clearance application (SCA). Section 24 asked, “Since the age of 16 or in the10 last 7 years, whichever is shorter, have you illegally used any controlled substance, for example, marijuana. . . .” In explanation, Applicant wrote in his SOR answer, “I was under the impression they meant a user. Yes, I have smoked every now and then but not a user.” In a July 2008 interrogatory, when asked how marijuana affected him,11 Applicant wrote, “N/A don’t use, havent [sic] in a good long while like I said. Considerably long while. I’ve smoked marijuana a few times when I was a little younger.” In a March 2007 interview, he implied that his “past drug use was not12 pertinent because [his marijuana possession] charges were dismissed, as if it they [sic] never happened.” At the hearing, he stated, “I thought they were saying as far as, you13 know, if you used it every day. Now. . . if you are at a party, you take a couple of hits off somebody, I don’t really consider that using drugs.”14 Tr. 8, 41. Regarding SOR allegations ¶¶ 1.d, 1.f., 1.i. 15 Response to the SOR, supra, note 11; see also Tr. 40-41, Ex. 2 (Interrogatories, dated May 15, 2009) 16 at 28, Ex. 4 (Interrogatories, dated Nov. 8, 2008; interview of Mar. 2-Mar. 9, 2007). Tr. 54-57. Because of this misunderstanding, Applicant was “blown away” at the number of incidents 17 noted in his police record. He stated, “I was under the assumption that to be charged you had to be convicted. I figured if you were, like if it was dismissed, then you were never charged with it.” Response to the SOR, supra, note 11. 18 Id. See also Ex. 3 (Interrogatories, dated Jul. 14, 2008) at 7. 19 Tr. 41-43. 20 Ex. 2 (Interrogatories, dated May 15, 2009) at 29 of 32. 21 Id. 22 4 Applicant denied falsifying material facts in response to Section 23 (Your Police Record) of his SCA when he failed to disclose three charges for possession of marijuana that resulted in his attendance of substance abuse awareness programs in 2001 and 2004. He wrote, “(b)ecause I believed . . . these charges were removed15 from my entire record, thus never happened is what I was told.” In forming this belief,16 Applicant relied on information offered by counsel or suggested by the authorities. He equates the term “charged” with “convicted.” 17 During a March 2, 2007, interview with a DOD investigator, Applicant noted his two 2004 arrests, convictions, and referrals to substance abuse awareness courses, but failed to mention a similar incident from 2001. In response to the SOR, Applicant wrote that he admitted the SOR allegation at ¶ 3.b, but wrote, “I told the investigator everything I believed to be true” and claimed he had remembered all the incidents.18 When interviewed by a DOD investigator in September 2007, Applicant discussed his 2001 and 2004 drug arrests. He failed, however, to disclose his recent 2007 marijuana possession charge, to which he was ultimately found guilty of drug paraphernalia possession and fined. In response to SOR allegation ¶ 3.a, Applicant wrote that he did not mention the incident because, “the charge was still pending and [his] lawyer led [him] to believe [he] would win the case.” At the hearing, he testified19 that he assumed that if the matter was dismissed, there was no reason to mention it.20 In a May 2009 interrogatory, Applicant expressed his contrition for failing to report all adverse information. He acknowledged he had made a mistake. He stated21 that he “understood how important these incidents are” and expressed his “future intent of reporting any reportable incidents.”22 Policies When evaluating an applicant’s suitability for a security clearance, an administrative judge must consider the AG. In addition to brief introductory explanations See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995). 23 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995). 24 Id. 25 Id. 26 5 for each guideline, the AG list potentially disqualifying conditions and mitigating conditions. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. Under AG ¶ 2(c), this process is a conscientious scrutiny of a number of variables known as the “whole- person concept.” The administrative judge must consider all reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for access to classified information will be resolved in favor of national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. The Government must present evidence to establish controverted facts alleged in the SOR. An applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The burden of proof is something less than a23 preponderance of evidence. The ultimate burden of persuasion is on the applicant. 24 A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk the Applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. Section 7 of Executive Order 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). “The clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials.” Any reasonable doubt about whether an applicant should be allowed access25 to sensitive information must be resolved in favor of protecting such sensitive information.26 AG ¶ 30. 27 6 Based upon consideration of the evidence, Guideline J (Criminal Conduct), Guideline H (Drug Involvement), and Guideline E (Personal Conduct) are the most pertinent to this case. Conditions pertaining to these AGs that could raise a security concern and may be disqualifying, as well as those which would mitigate such concerns, are set forth and discussed below. Analysis Guideline J – Criminal Conduct The concern under this guideline is that “criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness. By its very nature, it calls into question a person’s ability or willingness to comply with laws, rules, and regulations.”27 In this case, Appellant admitted multiple allegations regarding drug-related charges between 2000 and 2007. Such facts are sufficient to raise both Criminal Conduct Disqualifying Condition AG ¶ 31(a) (a single serious crime or multiple lesser offenses) and AG ¶ 31(c) (allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted). Consequently, it is Applicant’s burden to mitigate the security concerns raised. Appellant quit using marijuana five years ago. He credibly explained that his 2007 conviction of possession of drug paraphernalia was the result of an acquaintance leaving some marijuana in his car. Applicant now understands the importance of eschewing not only the use of drugs, but also his contact with drugs. Given his wise choice in quitting marijuana in 2005 and his appreciation of how he came to be convicted of paraphernalia possession in June 2007, I find that Criminal Conduct Mitigating Condition AG ¶ 32(a) (so much time has elapsed since the criminal behavior happened, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment) applies. There is insufficient record evidence to fully explore the application of AG ¶ 32(d) (there is evidence of successful rehabilitation, including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community service). In light of his contrition and both his continued and successful employment since 2006, however, that condition applies to a limited extent. Applicant understands the criminal nature of his past association with marijuana. There is no evidence he will again knowingly involve himself in criminal activity. Criminal conduct security concerns are mitigated. AG ¶ 24. 28 Id. at ¶ 24(a)(1-2). 29 Id. at ¶ 24(b). 30 7 Guideline H - Drug Involvement Use of an illegal drug or misuse of a prescription drug can raise questions about an individual’s reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations. “Drugs” are defined as mood and behavior altering substances,28 and include drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended, (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens) and inhalants and other substances. “Drug abuse” is the illegal use of a drug or use of a legal drug in a29 manner that deviates from approved medical direction. 30 Applicant admitted he used marijuana, a controlled substance, from high school until 2005. He was subsequently found in the possession of marijuana in 2007, an incident that was reduced to possession of drug paraphernalia. Such facts are sufficient to raise Drug Involvement Disqualifying Condition AG ¶ 25 (a) (any drug abuse) and AG ¶ 25 (c) (illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia). With disqualifying conditions raised, the burden shifts to Applicant to mitigate related security concerns. Applicant used marijuana with some regularity while he lived with roommates between 1996 and 1999. He then reduced his drug use significantly before he quit using marijuana in 2005. Although he was charged for marijuana possession in 2007, the charge was reduced to possession of drug paraphernalia when it was determined the marijuana discovered was not his. He has had no subsequent drug-related incidents. There is no indication he plans to use illegal drugs in the future. Drug Involvement Mitigating Condition AG ¶ 26 (a) (the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment) applies. There is insufficient evidence to raise AG ¶ 26 (b)(1) (disassociation from drug- using associates and contacts) or AG ¶ 26 (b)(2) (changing or avoiding the environment where drugs were used). It is notable, however, that Applicant, who started abusing marijuana as a teen, is now 32 years of age. He quit using the drug five years ago. He has not been involved with drugs in over three years, when he was convicted of possession of an acquaintance’s drug paraphernalia under unique circumstances. In light of these facts, I find that AG ¶ 16 (b) (3) (an appropriate period of abstinence) applies. However, AG ¶ 26 (b) (4) (a signed statement of intent with automatic revocation of clearance for any violation) does not apply. AG ¶ 15. 31 Id. 32 8 After nine years of using marijuana, Applicant has been drug-free for over five years. His last noted contact with drugs was in June 2007. There is no indication that he will use drugs again in the future. Drug Involvement security concerns are mitigated. Guideline E – Personal Conduct Security concerns arise from matters of personal conduct because “conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified information.“ In addition, “any failure to31 provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process” is of special interest. Here,32 Applicant failed to fully disclose all of his drug charges and arrests in interviews conducted in March 2007 and September 2007 (SOR allegations ¶¶ 3.a-3.b). In addition, in his September 2006 SCA, Applicant failed to note three possession of marijuana charges from 2001 and 2004 in a question regarding his police record (SOR allegation ¶ 3.c), and he failed to disclose his use of marijuana between 1999 and 2005 (SOR allegation ¶ 3.e). As a preliminary matter, there is insufficient evidence to demonstrate that Applicant deliberately intended to mislead or falsify facts when regard to SOR allegations ¶¶ 3.a, 3.b, and 3.c. Regarding SOR allegation ¶ 3.a, Applicant has consistently stated that, in light of his attorney’s assurance of a successful case, he did not need to disclose his then-pending June 2007 charge of marijuana possession to investigators in September 2007. Regarding SOR allegation ¶ 3.b, Applicant repeatedly has stated or written that he thought that successful completion of the substance abuse awareness programs that led to the dismissals of his previous marijuana possession charges effectively removed them from his police record, making them nullities. His statements to this effect have been consistent since 2007. This misunderstanding also affected his incomplete answer to Section 23 (Your Police Record) on his 2006 SCA (SOR allegation ¶ 3.c). It is clear that Applicant, who has a high school diploma and attended some college, is unskilled with legal and law enforcement terminology, and that he relied on the advice of others. He similarly displayed an inability to distinguish between the terms “charged” and “convicted,” and believed anything “dismissed” is constructively expunged. In light of his credible testimony, his background, and his consistent remarks regarding these failures, there is no evidence that Applicant’s omissions were intentional or fraudulent. Lacking significantly less semantic nuance, however, is his interpretation of SCA Section 24 (Your Use of Illegal Drugs and Drug Activity), which directly asks whether an applicant has illegally used any controlled substances, including marijuana, since the age of 16 or in the preceding seven years. While Applicant admitted he had been charged for marijuana possession in a related question, he answered “no” to the question about past drug use. Applicant argues that he answered in the negative 9 because he only smoked marijuana “every now and then” and, therefore, he was not a user. At best, this argument is self-serving and lacks merit; at worst, it reflects poor judgment and reliability. The question does not break past illegal drug ingestion into separate categories, nor does it imply a threshold at which a certain amount of marijuana consumption defines a “user” versus a non-user. It simply asks about past illegal use of drugs. Personal Conduct Disqualifying Condition (PC DC) AG ¶ 16 (a) (deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities) applies. With a PC DC raised, the burden shifts to Applicant to mitigate the security concerns. There is no evidence that Applicant immediately disclosed complete facts about his past marijuana use in sufficient time to raise Personal Conduct Mitigating Condition (PC MC) AG ¶ 17(a) (the individual made prompt, good faith efforts to correct the omission, concealment, or falsification before being confronted with the facts). Failure to honestly disclose full and complete answers on the SCA undermines the investigative process and provides evidence of unreliability and untrustworthiness. If anything helps alleviate the severity of Applicant’s failure to report his past drug abuse, it is the fact that he did fully detail his past drug possession charge, thus giving investigators some indication that criminal activity and drugs could be issues. Moreover, while other omissions from his SCA may be mitigated because of semantic misunderstandings, Section 24 is straightforward. If there was any confusion as to its meaning, an applicant would best demonstrate good judgment and reliability by first asking for clarification about the question or consider the question in its context, not summarily deny past illegal drug consumption. However, this is the only omission that the facts tend to show is intentional, and it occurred over four years ago. Therefore, AG ¶ 17 (c) (the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment) applies in part. Furthermore, the candor subsequently displayed by Applicant in his interviews with DOD investigators is sufficient to raise AG ¶ 17(e) (the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress). None of the other PC MCs apply. Under this guideline, personal conduct security concerns related to SOR allegations ¶¶ 3.a-3c are mitigated, but related concerns regarding ¶ 3.e are mitigated only in part. Whole-Person Concept Under the whole-person concept, an administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of an applicant’s conduct and all the circumstances. An administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2 (a). Under AG ¶ 2(c), the ultimate determination of whether to grant a security clearance must be an overall commonsense judgment based on careful consideration of the guidelines and the whole-person concept. 10 I considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case, as well as the “whole-person” factors. Applicant is a 32-year-old assembler who has reliably held the same position since 2006. He is a high school graduate. He is single and responsibly helping support his two children. While living with roommates from 1996 until 1999, he used marijuana with some frequency. That use then tapered until he quit using the drug in 2005, during which time he was convicted of marijuana possession three times. He continued associating with drug users until at least 2007, when he was convicted of drug paraphernalia possession. Applicant intends to remain drug-free. Applicant’s past drug use and any significant criminal conduct are inextricably intertwined. He has not been involved with drugs for several years. While there are other charges noted for criminal activity, such lesser crimes were apparently caused by disputes concerning whether he had or was eligible for a valid driver’s license. To the extent such charges were dismissed when Applicant showed the court he had a valid driver’s license, those charges only reflect a certain laxity in carrying his permit at all times. Absent evidence his state requires its drivers to carry a driver’s license at all times, which it apparently does not, these incidents are of comparatively minor significance to a determination of Applicant’s security clearance worthiness. Applicant’s testimony was generally credible throughout the hearing, and his testimony was usually consistent with interrogatories and interviews conducted since 2007. His explanation about why he failed to disclose his drug possession arrests was credible and plausible, especially given his age, education, and the fact he relied on the advice of others. What is less consistent and plausible, however, is his explanation as to why he denied past drug use in response to Section 24 on his SCA. Despite Applicant’s testimony and his answer to the SOR, someone who smoked marijuana “every now and then” or would take “a couple of hits off somebody” at parties is still someone who has illegally used marijuana. Moreover, his offered distinction between the meanings of “use” and a “user” stands in stark contrast to his July 2008 comment conceding past drug use when he stated “don’t use, havent [sic] in a good long while.” This response shows that Applicant appreciated that he had used marijuana, even if his use had not been recent. Here, Applicant had only quit using marijuana in 2005, so his answer to Section 24 should have been “yes.” Although it is recognized that the passage of three years is a long time to one in his 20s, his answer reflects a general intent to minimize the scope of his past drug involvement. In his May 2009 interrogatory, Applicant expressed contrition for his failure to report his past drug use. While some current use of the vernacular may mean that a “user” signifies regular or habitual drug use, its application in this context is self-serving and minimizes the scope of one’s drug involvement. Applicant’s failure to fully disclose his past drug use is worrisome. The clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials. Any reasonable doubt about whether an applicant should be allowed access to sensitive information must be resolved in favor of protecting such sensitive information. Given the security concerns remaining under Guideline E and the whole-person analysis, personal conduct security concerns are unmitigated. Clearance is denied. 11 Formal Findings Formal findings for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline J: FOR APPLICANT Subparagraphs 1.a-1.k: For Applicant Paragraph 2, Guideline H: FOR APPLICANT Subparagraphs 2.a - 2.c: For Applicant Paragraph 3, Guideline E: AGAINST APPLICANT Subparagraphs 3.a-3.c: For Applicant Subparagraph 3.d: Withdrawn Subparagraph 3.e: Against Applicant Paragraph 4, Guideline F: WITHDRAWN Conclusion In light of all of the circumstances presented by the record in this case, it is not clearly consistent with national interest to grant Applicant a security clearance. Clearance denied. ARTHUR E. MARSHALL, JR. Administrative Judge