DATE: July 31, 2006
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SSN: -----------
Applicant for Security Clearance
ECISION OF ADMINISTRATIVE JUDGE
JOAN CATON ANTHONY
APPEARANCES
FOR GOVERNMENT
D. Michael Lyles, Esq., Department Counsel
Francisco Mendez, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant falsified material facts about his drug use and purchase of illegal drugs on two security clearance applications and in interviews with authorized investigators of the Defense Security Service. He also provided false information on a security clearance application about his employment record and his use of illegal drugs while employed as a federal law enforcement officer and while holding a security clearance. Additionally, Applicant admitted security violations while employed as a federal law enforcement officer. Applicant's deliberate falsifications demonstrated a pattern of criminal activity. He failed to mitigate security concerns arising from his conduct under Guidelines E, K, and J of the Directive. Clearance is denied.
The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. On September 16, 2005, under the applicable Executive Order (1) and Department of Defense Directive, (2) DOHA issued a Statement of Reasons (SOR), detailing the basis for its decision-security concerns raised under Guideline E (Personal Conduct), Guideline K (Security Violations), and Guideline J (Criminal Conduct) of the Directive. On October 7, 2005, Applicant submitted an answer to the SOR and elected to have a hearing before an administrative judge. The case was assigned to me March 20, 2006. On April 26, 2006, I convened a hearing to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. The Government called no witnesses and introduced five exhibits (Ex.), which were admitted to the record without objection. Applicant called no witnesses and offered no exhibits. On May 10, 2006, DOHA received the transcript (Tr.) of the proceeding.
The SOR in this case contains 29 allegations of disqualifying conduct under Guideline E, two allegations under Guideline K, and one allegation under Guideline J, Criminal Conduct. In a signed, sworn statement to an authorized investigator in January 2004, Applicant admitted the Guideline E and K disqualifying conduct alleged in the SOR. In his October 7, 2005, answer to the SOR, Applicant admitted five allegations under Guideline E and denied 22 Guideline E allegations. He admitted in part and denied in part two Guideline E allegations. He admitted one Guideline K allegation and denied the other Guideline K allegation. He neither admitted nor denied the Guideline J allegation, asserting he was not an attorney and unable to render a legal opinion. Applicant provided no credible explanation for admitting the Guideline E and K allegations in January 2004 and then denying Guideline E and K allegations in his October 7, 2005 answer to the SOR. Applicant's admissions are incorporated as findings of fact.
Applicant is 57 years old and employed as a translator by a government contractor. His first marriage ended in divorce in 1992. He married his present wife in 1992. He is the father of four adult children who were born during his first marriage. (Ex. 1; Tr. 43.)
Applicant served in the U.S. Army from 1967 to 1970 and from 1973 to 1975. (Ex. 1.) From 1968 to approximately 1988, Applicant used and purchased marijuana. His most frequent use of marijuana during this time was two to three times a week. He used marijuana once in 1991. (Ex. 2 at 2; Tr. 26-27.)
During the period 1972 to approximately 1990, Applicant used and purchased hashish, with varying frequency. He used Thai Sticks (3)
, with varying frequency,
in the early 1970s. Between 1971 and 1974, he used cocaine approximately four or five times, and he purchased cocaine. (Ex. 2 at 2.) Applicant used speed (4)
with varying frequency from about 1968 to about 1970, and he purchased speed. During a period of time between the late 1960s and
approximately August 1970, Applicant used LSD 25 to 50 times, and he purchased LSD. Between 1968 and 1969, Applicant used opium about seven times,
and he purchased opium. In the period 1972 to 1975, Applicant used heroin about 15 times, and he purchased heroin. Applicant used barbiturates illegally. In
the early 1970s, he also abused snappers (5)
. (Ex. 2 at 2.) Applicant was employed as a federal law enforcement officer from September 1975 to about August 1989. During this employment, he held a Top Secret
security clearance and used illegal drugs, including marijuana and hashish. (Ex. 1; Ex. 2; Ex. 3 at 4.) In approximately 1986, while employed as a federal law enforcement officer, Applicant conducted at least four unauthorized private tours of a national
monument for a lobbyist and the lobbyist's friends. Without authorization, he also distributed official mementos and souvenirs to individuals he took on the
private tours of the national monument and to other federal employees working at the national monument. On two occasions, while he was employed as a
federal law enforcement officer, Applicant performed paid security services for a private citizen, even though he knew that such moonlighting was against the
policies of his federal law enforcement agency. (Ex. 2 at 3-4.) On at least two occasions, while assigned to a secure federal facility, Applicant removed classified material from a burn bag and read it, even though he had no
need to know the classified information. He acknowledged he may have discussed the classified information with another federal law enforcement officer, who
also had no need to know the classified information. (Ex. 2 at 4.) Applicant was assigned by his employer to perform community service because he had violated his agency's policies when he gave the private tours, distributed
mementos, and took classified material from a burn bag and read it. (Tr. 30-31.) In August 1989, as a result of his unauthorized conduct and pending the disposition of possible criminal charges against him, Applicant received an indefinite
suspension from his position as a federal law enforcement officer. Fearing the investigation of the allegations against him would take a long time and he
would be harassed, Applicant resigned from his position sometime in late 1989. (Ex. 5; Ex. 2 at 4-5.). Applicant completed and signed a personal security questionnaire (DD Form 398) on September 30, 1992. Question 22 a. on the DD Form 398 reads as
follows "Have you ever tried or used or possessed any narcotic (to include heroin or cocaine), depressant (to include quaaludes), stimulant, hallucinogen (to
include LSD or PCP), or cannabis (to include marijuana or hashish), or any mind-altering substance (to include glue or paint), even one time or on an
experimental basis, except as prescribed by a licensed physician?" (Ex. 3.) Applicant answered "yes" to Question 22 a. and appended the following explanation to his DD Form 398: During my time in the army in [name of country omitted], I was exposed to marijuana. My outlook on drugs while living in the jungle in a combat setting was
far different from my upbringing. I smoked marijuana occasionally in social situations (with neighbors) in the 1970s and early 1980s while living in [name of
State omitted] and once at a party in [name of city omitted] in 1990. I have absolutely no desire to use, possess or have contact with any drugs now or at any time in the future. Question 22 b. on the DD Form 398 reads as follows: "Have you ever been involved in the illegal purchase, manufacture, trafficking, production, or sale of any
narcotic, depressant, stimulant, hallucinogen, or cannabis?" Applicant responded "no" to question 22 b. Applicant was interviewed by a special agent of the
Defense Investigative Service and prepared a signed statement in the presence of the special agent on April 8, 1993. In his statement Applicant admitted
smoking marijuana from 1968 to 1969, from 1970 through 1982, and once in 1990. He did not admit any other illegal drug use, and he denied ever purchasing
or selling marijuana. (Ex. 4 at 1.) On July 1, 1998, Applicant certified and signed a security clearance application (SF-86). Question 20 on the SF-86 asks an applicant if, in the last 10 years, he
or she has been fired from a job, quit after being told he or she would be fired, left a job by mutual agreement following allegations of misconduct, left a job by
mutual agreement following allegations of unsatisfactory performance, or left a job for another reason under unfavorable circumstances. Applicant responded
"no" to Question 20. (Ex. 1.) Question 27 on the SF-86 reads as follows: "Your Use of Illegal Drugs and Drug Activity-Illegal Use of Drugs Since the age of 16 or in the last 7 years,
whichever is shorter, have you illegally used any controlled substance, for example, marijuana, cocaine, crack cocaine, hashish, narcotics (opium, morphine,
codeine, heroin, etc.), amphetamines, depressants (barbiturates, methaqualone, tranquilizers, etc.), hallucinogenics (LSD, PCP, etc.), or prescription drugs?
Applicant answered "yes" to Question 27 and admitted using marijuana 10 times between June 1968 and August 1990. He did not admit hashish use from
about 1972 to 1990. (Ex. 1.) Question 28 on the SF-86 reads as follows: "Your Use of Illegal Drugs and Drug Activity - Use in Sensitive Positions Have you EVER illegally used a
controlled substance while employed as a law enforcement officer, prosecutor, or courtroom official; while possessing a security clearance; or while in a
position directly and immediately affecting public safety?" Applicant answered "no" to Question 28. In his answer to the SOR, Applicant acknowledged meeting with an authorized investigator of the Department of Defense in September 1998 and denied he
deliberately failed to disclose his involvement with illegal drugs. (Answer to SOR at 2; Item 8.) On January 29, 2004, Applicant was interviewed by a special agent of the Defense Investigative Service. Applicant admitted all of his past drug activity. He
stated he had not listed or acknowledged his drug use and drug purchases previously because he felt if he were to put it all on his SF-86, his "clearance request
would be immediately trashed." (Ex. 2 at 3.) At his hearing, Applicant stated that embarrassment about his drug activity caused him to falsify his answers on
his DD Form 398 and SF-86. (Tr. 43.) Item 25 on the DD Form 398 reads as follows: "CERTIFICATION BY PERSON COMPLETING FORM I certify that the entries made by me are true,
complete, and accurate to the best of my knowledge and belief and are made in good faith. I understand that a knowing and willful false statement on this form
can be punished by fine or imprisonment or both. (See U.S. Code, Title 18 Section 1001.)" Applicant signed and certified his DD Form 398 on September 30,
1992. On July 1, 1998, when Applicant completed his SF-86, he signed and dated the following statement: "CERTIFICATION BY PERSON COMPLETING
FORM My statements on this form, and any attachments to it, are true, complete, and correct to the best of my knowledge and belief and are made in good
faith. I understand that a knowing and willful false statement on this form can be punished by fine or imprisonment or both. (See section 1001 of title 18,
United States Code)." "[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has "the
authority to . . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a
position . . . that will give that person access to such information." Id. at 527. The President has restricted eligibility for access to classified information to
United States citizens "whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness,
honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to
abide by regulations governing the use, handling, and protection of classified information." Exec. Or. 12968, Access to Classified Information § 3.1(b) (Aug. 2,
1995). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive. Enclosure 2 of the Directive sets forth personal security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each
guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the
Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7.
It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance. Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that disqualify, or may
disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. The Directive presumes a nexus or rational
connection between proven conduct under any of the disqualifying conditions listed in the guidelines and an applicant's security suitability. See ISCR Case No.
95-0611 at 2 (App. Bd. May 2, 1996). Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate
the facts. ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002); see Directive ¶ E3.1.15. An applicant "has the ultimate burden of demonstrating that it is
clearly consistent with the national interest to grant or continue his security clearance." ISCR Case No. 01-20700 at 3. Guideline E - Personal Conduct In the SOR, DOHA alleged Applicant raised security concerns when he falsified material facts in his answers to Questions 22.a. and 22.b. on the DD Form 398
he executed and signed on September 30, 1992 and in his answers to Questions 20, 27, and 28 on the SF-86 he signed and certified on July 1, 1998. (SOR ¶¶
1.a., 1.b., 1.d., 1.e.(1), 1.e.(2), and 1.g.). DOHA also alleged Applicant deliberately falsified material facts in a signed sworn statement, he executed and
presented to an authorized investigator on April 8, 1993 (¶1.c.) and that during an interview with an authorized investigator of the Defense Department in
September 1998, he deliberately failed to disclose his involvement with illegal drugs (¶¶1.f (1) through 1.f (17). Further, DOHA alleged that, from
approximately 1986 to 1989, while employed as a federal law enforcement officer, Applicant conducted at lease four unauthorized private tours of a national
monument ( ¶ 1.h.); that he distributed mementos associated with the national monument, without authorization, which resulted in a criminal investigation and
a requirement by his employer that he perform 40 hours of community service (¶1.i.); that, contrary to the policy of his employing agency, he performed private
security services, for which he was compensated (¶ 1.j.); that, at least twice in about 1987, without having authorization and a need to know, he removed and
read classified information from a burn bag located in the national monument (¶1.k.); and that he resigned from his position as a federal law enforcement
officer in late 1989, following an indefinite suspension and pending the disposition of possible criminal charges against him. (¶ 1.l.). Guideline E conduct, which involves questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules
and regulations, could indicate an applicant may not properly safeguard classified information. Directive ¶ E2.A5.1.1. With respect to the Guideline E conduct alleged in the SOR and admitted by Applicant, the Government has established its case. Applicant's failure to answer
Questions 22 a and 22 b on his DD Form 398 completely, truthfully, and correctly and his failure to answer Questions 20, 27 and 28 on his SF-86 completely,
truthfully, and correctly raise security concerns under Disqualifying Condition (DC) E2.A5.1.2.2. of Guideline E. His deliberate false statements and omissions
in interviews with authorized investigators of the Defense Department regarding the nature and extent of his use of illegal drugs raise concerns under DC E2.
A5.1.2.3. In an interview with an authorized investigator in January 2004, Applicant admitted his past use of drugs and said he deliberately failed tell the truth about his
drug-related conduct because he was ashamed and feared that if he told the truth he would not be granted a security clearance. Applicant's concealment of his
drug use, his use of drugs while holding a security clearance, and his indefinite suspension from his position as a law enforcement officer are facts that could
affect his personal and professional standing and could make him vulnerable to coercion and blackmail. DC E2.A5.1.2.4. His actions in conducting
unauthorized tours, distributing, without authorization, mementos, violating his agency's policies by working as a private security guard, and removing and
reading, without a need to know, classified information from a burn bag suggest a pattern of dishonesty or rule violation and raise additional concerns under DC
E2.A5.1.2.5. His repeated false statements raise concerns about his truthfulness and honesty. Applicant's reticence, between 1992 and 2004, to reveal the truth
about his conduct indicated that, under some circumstances, he would likely put his interests before those of the Government. It is well established that
embarrassment is not a mitigating condition under the Directive. ISCR Case No. 99-0557 at 3 (App. Bd. Jul.10, 2000). Mitigating condition (MC) E2.A5.1.3.1 does not apply to the facts of this case: the information Applicant withheld is pertinent to a determination of his
judgment, trustworthiness, and reliability. Only one other mitigating condition under Guideline E might be applicable to the instant case. The security concern
raised by Applicant's disqualifying conduct could be mitigated if the falsification was an isolated incident, was not recent, and if the Applicant subsequently
provided the correct information voluntarily. MC E.2.A.5.1.3.2. Applicant supplied the correct information only when repeatedly questioned by authorized
investigators of the Department of Defense. His falsifications were multiple and occurred recently. Accordingly, MC E.2.A.6.1.3.2. does not apply to the facts
of Applicant's case. The Guideline E allegations in the SOR are concluded against the Applicant. Guideline K -Security Violations In the SOR, DOHA alleged under Guideline K of the Directive that Applicant, on at least two occasions, while employed in 1987 as a federal law enforcement
officer, removed and read, without the need to know, classified documents from a burn bag. (¶ 2.a.). DOHA also alleged that after reading the classified
documents, Applicant discussed their contents with another federal law enforcement officer (¶ 2.b.). Under Guideline K, noncompliance with security
regulations raises doubt about an individual's trustworthiness, willingness, and ability to safeguard classified information. E2.A11.1.1. Applicant's deliberate and negligent conduct raises security concerns under Disqualifying Condition (DC) E2.A11.1.2.2. of Guideline K. Applicant's conduct
was infrequent, making Mitigating Condition (MC) E2.A.11.1.3.2 applicable. However, his conduct was deliberate, not the consequence of improper or
inadequate training, and did not demonstrate a positive attitude towards the discharge of security responsibilities. Thus, MC E2.A11.1.3.1., E2.A.11.1.3.3., and
E2.A11.1.3.4. are not applicable. The Guideline K allegations of the SOR are concluded against the Applicant. Guideline J - Criminal Conduct In the SOR, DOHA alleged Applicant demonstrated a history or pattern of criminal activity by his deliberate and multiple material falsifications about the full
extent of his use of illegal drugs, his purchase of illegal drugs, his resignation from a position after he was suspended under unfavorable circumstances, and his
use of illegal drugs while employed as a federal law enforcement officer and possessing a security clearance. Applicant deliberately falsified two personnel
security questionnaires which he then signed, dated, and certified. Additionally, he misled and provided false information to authorized investigators who
questioned him about the truth and accuracy of his answers on the questionnaires. In the SOR, DOHA alleged that Applicant's deliberate falsifications
constituted a violation of Federal law under Section 1001 of Title 18, United States Code. (¶ 3.a.) Applicant admitted making knowing and willful false statements in his responses to Questions 22 a and 22 b on his DD Form 398 and Questions 20, 27, and 28
on his SF-86. Under section Title 18, Section 1001, of the United States Code, it is a felony crime to knowingly make a materially false, fictitious, or fraudulent statement to
a department or agency of the Federal government. Applicant admitted preparing and signing a DD Form 398, a SF-86, and written statements to government
investigators in which he deliberately concealed unfavorable information about the extent of his illegal drug use, his purchase of illegal drugs, his suspension
from a position pending disposition of possible criminal charges against him; and his use of illegal drugs while employed as a federal law enforcement officer
and while holding a security clearance. Applicant's admitted criminal conduct raises security concerns under Disqualifying Conditions (DC) E2.A10.1.2.1. and DC E2.A10.1.2.2. of Guideline J. His
history or pattern of criminal activity raises doubts about his judgment, reliability and trustworthiness. ¶ E2.A10.1.1. A person seeking access to classified
information enters into a fiduciary relationship with the Government based upon trust and confidence. Where the facts proven by the Government or admitted
by the applicant raise doubts about the applicant's judgment, reliability or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that
he or she is nevertheless security worthy. Applicant's falsifications of his security clearance applications and signed, sworn statements occurred in 1992, 1993, and 1998. He allowed his falsifications
and omissions to stand uncorrected until January 2004, when he prepared and signed a statement admitting his willful false statements. Applicant's criminal
acts were therefore recent. They were not isolated events but instead demonstrated a pattern of criminal conduct. Thus, neither MC E2.A10.1.3.1. nor MC
E2.A10.1.3.2. of Guideline J applies to Applicant's Guideline J conduct. Additionally, no other mitigating conditions under Guideline J are applicable to the
facts of Applicant's case. Accordingly, the Guideline J allegations in the SOR are concluded against the Applicant. The following are my conclusions as to each allegation in the SOR: Paragraph 1. Guideline E: AGAINST APPLICANT Subparagraph 1.a.: Against Applicant Subparagraph 1.b.: Against Applicant Subparagraph 1.c.: Against Applicant Subparagraph 1.d.: Against Applicant Subparagraph 1.e(1): Against Applicant Subparagraph 1.e(2): Against Applicant Subparagraph 1.f(1): Against Applicant Subparagraph 1.f(2): Against Applicant Subparagraph 1.f(3): Against Applicant Subparagraph 1.f(4): Against Applicant Subparagraph 1.f(5): Against Applicant Subparagraph 1.f(6): Against Applicant Subparagraph 1.f(7): Against Applicant Subparagraph 1.f(8): Against Applicant Subparagraph 1.f(9): Against Applicant Subparagraph 1.f(10): Against Applicant Subparagraph 1.f(11): Against Applicant Subparagraph 1.f(12): Against Applicant Subparagraph 1.f(13): Against Applicant Subparagraph 1.f(14): Against Applicant Subparagraph 1.f(15): Against Applicant Subparagraph 1.f(16): Against Applicant Subparagraph 1.f(17): Against Applicant Subparagraph 1.g.: Against Applicant Subparagraph 1.h.: Against Applicant Subparagraph 1.i.: Against Applicant Subparagraph 1.j.: Against Applicant Subparagraph 1.k.: Against Applicant Subparagraph 1.l.: Against Applicant Paragraph 2. Guideline K: AGAINST APPLICANT Subparagraph 2.a.: Against Applicant Subparagraph 2.b.: Against Applicant Paragraph 3. Guideline J: AGAINST APPLICANT Subparagraph 3.a.: Against Applicant DECISION In light of all of 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 is denied. Joan Caton Anthony Administrative Judge 1. Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified.
2. Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified.
3. Thai Sticks are defined as bundles of marijuana soaked in hashish oil and/or marijuana buds bound on short sections of bamboo.
Http://www.nicd.us/drugstreetandslangterms.html#T. 4. Speed is defined as methamphetamine; amphetamine; crack. Http://www.nicd.us/drugstreetandslangterms.html#T. 5. Snappers are defined as isobutyl nitrite, a vasodilator used as a recreational drug. Http://www.nicd.us/drugstreetandslangterms.html#T.