DATE: March 15, 2002

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SSN: -----------

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

ROGER C. WESLEY

APPEARANCES

FOR GOVERNMENT

William S. Fields, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant, with a history of alcohol and illegal substance abuse, mitigates his abuse concerns by avoidance of any alcohol-related incidents in over four years, backed by the absence of any diagnosed alcohol problems or evidence of drug abuse, save for isolated slip in 1999, but fails to overcome trust concerns associated with his SF-86 drug-involvement omissions and his ensuing omissions and misleading statements to a DSS interviewer, which he basically corrected only when he was confronted in a third interview. Clearance is denied.

On October 6, 2001, 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 Applicant, which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant, and recommended referral to an administrative judge to determine whether clearance should be granted, continued, denied or revoked

Applicant responded to the SOR on October 29, 2001, and requested a hearing. The case was assigned to this Administrative Judge on November 9, 2001, and was scheduled for hearing. A hearing was convened on December 5, 2001, for the purpose of considering whether it would be clearly consistent with the national interest to grant, continue, deny or revoke Applicant's security clearance. At hearing, the Government's case consisted of five exhibits; Applicant relied on three witnesses (including himself) and three exhibits. The transcript (R.T.) of the proceedings was received on December 13, 2001.

Before the close of the hearing, Government moved to amend paragraph 3.a of the SOR to conform to the evidence. Specifically, Government moved to amend Applicant's alleged no answer to question 24 of his SF-86 to a yes as to his 1997 alleged alcohol-related arrest, which he did list (see ex. 1). Applicant offering no objection to Government's proposed amendment, and good cause being shown, Government's motion was granted.

Applicant is a 25-year old business staff member of his defense contractor who seeks a security clearance.

Summary of Allegations and Responses

Applicant is alleged to have (1) consumed alcohol to the point of intoxication once a month, (2) been arrested and charged with underage possession of alcohol in State A in November 1996, and (3) charged and convicted of underage possession of alcohol in State B in May 1997.

Additionally, Applicant is alleged to have (a) used marijuana over a hundred times with varying degrees of frequency from the Spring of 1993 to May of 1999, (b) used LSD approximately five to six times between the Summer of 1994 and the Summer of 1995, (c) ingested hallucinogenic mushrooms on one occasion in July 1997, (d) inhaled nitrous oxide gas approximately five or six times over the Winter of 1994 and 1995, (e) attempted to cultivate marijuana in the past and (f) aided a friend in selling marijuana between November 1994 and the Fall of 1995.

So, too, Applicant is alleged to have falsified his Questionnaire for National Security Positions ("SF-86") of August 31, 1999 by answering no to (I) question 24 (inquiring about his police record), omitting his underage drinking arrest in November 1996, (ii) question 27 (inquiring about his use of drugs), omitting his use of illegal substances, and (iii) question 29 (inquiring about his purchase, sale and cultivation of drugs), omitting his purchase, sale and cultivation of marijuana. Applicant is also alleged to have understated his marijuana use in a signed, sworn statement given to DSS in January 2001, and in the same statement to have falsified material facts by denying his ever purchasing, distributing or cultivating marijuana. Because of his alleged omissions and misstatements, Applicant is alleged to have committed criminal violations covered by 18 U.S.C. Sec. 1001.

For his answer to the SOR, Applicant admitted most of the covered allegations, denying only his being arrested for underage drinking in 1996 (claiming he was charged and ticketed, but not arrested). He added explanations to his 1997 underage charge, claiming he was in the car when it was pulled over, but did not physically handle the alcohol, and to his using marijuana many times between 1993 and 1995, but then only once thereafter, in 1999.

Relevant and Material Factual Findings

The allegations covered in the SOR and admitted to by Applicant are incorporated herein by reference adopted as relevant and material findings. Additional findings follow.

While in college and for a time following graduation, Applicant abused alcohol from time to time, oft-drinking to intoxication (at least once a month) between 1994 and late 2000. During this time, he was involved in two alcohol-related incidents. In November 1996, he was cited and charged with underage possession of alcohol, and later fined and court-ordered to perform fifteen hours of community service (ex. 4); he drank three beers at a pre-game party and two afterwards when his girlfriend (who was driving) was stopped (see R.T., at 34-35). In May 1997, he was charged again with underage possession of alcohol: On this occasion, he was seated in the front passenger seat of a car which was stopped for failing to stop for a stop sign. While the alcohol was located in the back seat, it was determined by the court to be in Applicant's constructive possession. He was convicted of underage possession of alcohol and court-ordered to perform 30 hours of community service, which he is credited with completing. But in neither arrest incident was he required to, or volunteered to, attend education classes addressing the dangers of alcohol abuse.

Despite assurances in his first DSS statement in August 2000 that he had not abused alcohol since his graduation from college and had curtailed his drinking to weekends and social occasions, Applicant acknowledged in his hearing testimony that he had drank to intoxication on a monthly basis between 1994 and 2000 (mostly on weekends with friends), before cutting back on his abusive drinking in late 2000 (see R.T., at 39, 41-42). Still, he drank to intoxication on several occasions over the past twelve months (consuming 6 to 7 beers at each sitting), with the latest coming just two months before the hearing while at home relaxing with a friend (see R.T., at 35-36, 39). He insists he has no drinking problem, however, and confines his drinking mostly to his home (R.T., at 41-42). The absence of any documented medical diagnosis of dependence or abuse affords him some corroboration (see R.T., at 45-46, 50-53).

During his last year in high school and first year of college (1993 and 1995), Applicant regularly used marijuana: over a hundred times, mostly at parties and in social situations, oft-purchasing the substance for his personal use. On one occasion sometime in 1995, he aided a friend sell marijuana. He quit using marijuana following his freshman year in college (a year in which he estimates to have used marijuana on only ten occasions). He tried the substance just once thereafter (in 1999) before discontinuing his marijuana use altogether. Because he reserved a 20 to 30 per cent chance of using marijuana again in the future when last questioned by a DSS agent, his expressed absence of any real intention to use illegal substances in the future could not be considered unqualified (see ex. 2). After further reconsideration, he recanted this reservation and assured at hearing he "had no interest in doing drugs ever again" (see R.T., at 39). His disclaimers appear to be sincere; although his credibility has been severely challenged, both his demonstrated maturation and time way from illegal substances convince that he is serious this time about non-recurrent drug use. His insistent disclaimers about any interest in returning to illegal drugs are accepted.

Besides marijuana, Applicant tried numerous other drugs as well. Between 1994 and 1995 he used LSD approximately five to six times. He ingested hallucinogenic mushrooms on one occasion in July 1997 and inhaled nitrous oxide gas approximately five to six times over the Winter of 1994 and 1995. He also attempted unsuccessfully to cultivate marijuana: around 1995.

When asked to complete an SF-86 in August 1999, Applicant provided false and misleading answers to several questions: question 24 (inquiring about his police record), question 27 (inquiring about his use of illegal substances), and question 29 (inquiring about his purchases, sales and cultivation of illegal substances). Applicant attributes his omission of his 1996 alcohol-related arrest to his misunderstanding the scope of the question: He was of the impression his alcohol-related charge was expunged and need not be listed. Desirous of avoiding any impressions that he was an alcoholic, he omitted the incident when answering question 24 of his SF-86. Having acknowledged his later 1997 arrest in his response to question 24, he is able to convince his omission of his 1996 arrest was the result of mistaken understanding, and not deliberate omission.

Applicant attributes no mistaken impressions to his failure to acknowledge his involvement in illegal substances when answering questions 27 and 29: just his concern about losing his job were he to list the same (see ex. 2; R.T., at 32-33). None of Applicant's explanations may be accepted as mistaken impressions of the scope of the questions concerning illegal substance involvement. Applicant was motivated to avert as much Government detection of his past drug activity, both as a high school and college student, that he could to save his clearance and job. Applicant may not avoid drawn inferences of knowing and wilful concealment of his drug use, sale and cultivation attempts.

When first interviewed by DSS Agent A in August 2000, Applicant made no mention of his past drug activities. Five months later (in January 2001), Agent A returned to interview Applicant a second time. In this second interview, Agent A asked Applicant about his past use of illegal drugs. Applicant acknowledged using marijuana in the summer of 1994, but claimed he didn't like it and never used it again (see ex. 3). Not only did he fail to identify any other illegal drugs he used, but he understated his marijuana use, and denied he ever sold or cultivated illegal drugs. Characterizing his isolated drug use as a high school and college student as something of his past that could prove hurtful if disclosed, he chose not to list any illegal drug involvement in his SF-86.

Just two weeks after interviewing Applicant for the second time, Agent A revisited Applicant for a third time. This time, Applicant admitted being untruthful in both his security forms and his previous DSS interviews about the extent of his drug use: He was untruthful for fear of losing his job due to the amount of his "involvement in illegal drugs." (see ex. 2). When confronted by Agent A, he admitted a more extensive history of marijuana use: beginning in the Spring of 1993 while he was a high school senior (over a one hundred time altogether during his senior year), and continuing during his first year in college, albeit not nearly as much: no more than ten times his freshman year (1994-1995) and maybe another ten times during his second year in college (see ex. 2). In the same DSS interview, Applicant acknowledged using other drugs (LSD and mushrooms) and inhaling nitrous oxide. He also admitted to understating his use of illegal substances in prior DSS interviews and to omitting his one attempt (in 1994 or 1995) to cultivate marijuana, albeit unsuccessfully. He attributed his omissions to fear of losing his job over the amount of his involvement in illegal drugs (see ex. 2; R.T., at 32-33). Applicant is credited with admitting to associating with friends who still use drugs (see ex. 2).

Applicant appears to be well regarded by his superiors. In a three-month skill evaluation by his employer, he was credited with receiving hands-on training on databases while working on developing techniques for reporting contract actions taken for clients. Applicant impressed his superiors with his willingness and ability to learn contract tasks quickly, interact effectively with clients, complete work in a timely manner with attention to detail, and firm grasp of computer skills (see ex. A). Since his employment in 1999, Applicant has received job appraisals that range mostly from above average to outstanding.

The Adjudicative Guidelines of the Directive (Change 4) list "binding" policy considerations to be made by Judges in the decision making process covering DOHA cases. The term "binding," as interpreted by the DOHA Appeal Board, requires the Judge to consider all of the "Conditions that could raise a security concern and may be disqualifying" (Disqualifying Conditions), if any, and all of the "Mitigating Conditions," if any, before deciding whether or not a security clearance should be granted, continued or denied. The Guidelines do not require the Judge to assess these factors exclusively in arriving at a decision. In addition to the relevant Adjudicative Guidelines, judges must take into account the pertinent considerations for assessing extenuation and mitigation set forth in E.2.2 of the Adjudicative Process of Enclosure 2 of the Directive, which are intended to assist the judges in reaching a fair and impartial common sense decision.

Viewing the issues raised and evidence as a whole, the following adjudication policy factors are pertinent herein:

Disqualifying Conditions:

DC 1 Alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, or other criminal incidents related to alcohol use.

DC 5 Habitual or binge consumption of alcohol to the point of impaired judgment.

Mitigating Conditions:

MC 1 The alcohol-related incidents do no represent a pattern.

MC 3 Positive changes in behavior supportive of sobriety.

Disqualifying Conditions:

DC 1 Any drug use.

DC 2 Illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution.

Mitigating Conditions:

MC 1 The drug involvement was not recent.

MC 2 The drug involvement was an isolated or aberrational event.

MC 3 A demonstrated intent not to abuse any drugs in the future.

Basis: 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.

Disqualifying Conditions:

DC 2 The deliberate omission, concealment, falsification or misrepresentation of relevant and material 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.

DC 3 Deliberately providing false or misleading information concerning relevant and material matters to an investigator, security official, competent medical authority, or other representative in connection with a personnel security or trustworthiness determination.

Mitigating conditions:

MC 3 The individual made prompt, good faith efforts to correct the falsification before being confronted with the facts.

Disqualifying Conditions:

DC 1 Allegations or admission of criminal conduct.

DC 2 A single serious crime or multiple lesser offenses.

Mitigating Conditions:

MC 1 The criminal behavior was not recent.

MC 2 The crime was an isolated incident.

By dint of the precepts framed by the Directive, a decision to grant or continue an Applicant's request for security clearance may be made only upon a threshold finding that to do so is clearly consistent with the national interest. Because the Directive requires Administrative Judges to make a common sense appraisal of the evidence accumulated in the record, the ultimate determination of an applicant's eligibility for a security clearance depends, in large part, on the relevance and materiality of that evidence. As with all adversary proceedings, the Judge may draw only those inferences which have a reasonable and logical basis from the evidence of record. Conversely, the Judge cannot draw factual inferences that are grounded on speculation or conjecture.

The Government's initial burden is twofold: (1) It must prove any controverted fact[s] alleged in the Statement of Reasons and (2) it must demonstrate that the facts proven have a nexus to the applicant's eligibility to obtain or maintain a security clearance. The required showing of nexus however, does not require the Government to affirmatively demonstrate that the applicant has actually mishandled or abused classified information before it can deny or revoke a security clearance. Rather, consideration must take account of accessible risks that an applicant may deliberately or inadvertently fail to safeguard classified information.

Once the Government meets its initial burden of proof of establishing admitted or controverted facts, the burden of proof shifts to the applicant for the purpose of establishing his or her security worthiness through evidence of refutation, extenuation or mitigation.

Applicant presents as a highly regarded member of his employer's management team who

abused alcohol in college and thereafter, regularly drinking to intoxication between 1994 and late 2000. His cited abuses encompass two alcohol-related incidents: charged underage drinking in 1996 (dismissed) and charged underage possession in 1997, in which he was convicted and assigned community service. With no long term education program to his credit, he has continued to drink to levels of intoxication, albeit much less so over the past 12 months.

Based on his two arrests involving alcohol-related incidents and admitted drinking to the level of intoxication on numerous occasions, Applicant's alcohol consumption has become a security concern and entitled Government to invoke two disqualifying conditions of the Adjudicative Guidelines for alcohol: DC 1 (alcohol-related incidents) and DC 5 (habitual or binge consumption of alcohol to the point of impaired judgment). While Applicant could have likely benefitted from a long term education program, none was apparently order by the courts. Despite his occasional drinking excesses over the past 12 months, Applicant has averted any alcohol-related incidents, while compiling an impressive employment history. For these modest changes in drinking behavior, Applicant is entitled to mitigation credits. To be sure, his continued monthly drinking to intoxication is still relatively fresh (undiminished by either of his alcohol-related incidents until just a year ago), and is a source of some security concern. But his own claimed lack of a drinking problem is corroborated by the record. Without any indicia of a diagnosed drinking problem or alcohol-related incident (in or out of work) since his last such incident in 1997 (a period of almost four years), he is entitled to take advantage of most of the available mitigating conditions: MC 1 (alcohol-related incidents do not indicate a pattern), MC 2 (no indication of recent problems). Although MC 3 (positive changes supportive of sobriety) would not appear to be available to Applicant (given his recent drinking practices), its unavailability is not dispositive of failed mitigation either.

Taking into account the significant period that has elapsed since Applicant' last alcohol-related incident (some four), his exhibited maturation in his work, and the absence of any diagnosed alcohol problem, Applicant meets his evidentiary burden of overcoming Government security concerns associated with his past alcohol-related behavior. His added maturity over how and when he chooses to drink, coupled with the absence of any documented drinking problem, is enough to absorb any clearance risks associated with abusive drinking. Favorable conclusions warrant with respect to sub-paragraphs 1.a through 1.c.

Besides abusing alcohol, Applicant abused marijuana and other illegal drugs within the past seven years. He used marijuana regularly during his senior year in high school (over a hundred times with varying frequency) and for his ensuing freshman year in college before essentially giving up illegal drugs altogether, save for one isolated slip in May 1999. His past history of illegal drug use, along with an isolated marijuana sale and cultivation attempt, is considerable and encompasses regular use over a two-year period during his senior year in high school and freshman year of college. That he returned to use marijuana on another occasion in May 1999 raises further questions, but not enough to make him a risk for recurrent use. What raises some initial security concerns is the reservations he expressed in his third DSS interview on the chance of his returning tomarijuana us in the future.

To convince he should be trusted on his hearing assurances that he will never use marijuana or other illegal substances again as long as he holds a security clearance, Applicant places great stress on his maturity, as is reflected in his praiseworthy work record. Applicant's excellent work accomplishments and recognition for conscientious and reliable devotion to his job are certainly favorable considerations to factor into a whole person evaluation of his drug-free commitments. But it is not dispositive either. Our Appeal Board has consistently drawn bright distinctions between an applicant's value to his employer (most certainly displayed by Applicant in this proceeding) and his suitability to be cleared to access classified information. Cf. ISCR Case No. 98-0370 (January 28, 1999); ISCR Case No. 96-0710 (June 20, 1997). Predictability judgments about an applicant's likelihood to return to drugs are more heavily weighted by the applicant's prior substance abuse history (to include prior hedging on future drug use).

Both Applicant's exhibited maturity and revised intentions not to return to illegal drugs provide safe assurances that this time he is sincere about his assured intentions not to use illegal drugs in the future. Not that he has been fully honest about his drug abuse history when challenged in the past. But his periods of heaviest use did cease almost eight years ago. Only his isolated slip in May 1999 mars his otherwise clean break with marijuana and all other illegal drugs. His past omissions notwithstanding, Applicant is entitled to significant mitigation credit for not only his long period of sustained abstinence spanning 1995 and 1999, but also his return to self-enforced abstinence since his last use of illegal drugs of any kind in May 1999. Applicant may take advantage of two of the mitigating conditions of the Adjudicative Guidelines for drugs: MC 1 (non-recency) and MC 2 (isolated or aberrational use). Applicant is sufficiently convincing on his no-drug pledge (taking into account his time in abstinence, his maturation, and his exhibited hearing sincerity) that safe predictive judgments may be in order that he is unlikely to return to illegal substance abuse in the foreseeable future. He may thus benefit fully from MC 3 (demonstrated intent not to abuse drugs in the future).

Considering Applicant's overall drug abuse history, his past reservations on using illegal drugs in the future, and his most recent reassurances, any doubts regarding the durability of his abstinence are currently reconciled with national interest concerns. Favorable conclusions warrant, accordingly, with respect to sub-paragraphs 1.a through 1.f of Guideline H.

With respect to the covered omissions in Applicant's SF-86 and ensuing DSS statements, dual treatment is warranted. His omission of his 1996 alcohol-related incident in his SF-86 is reconcilable with his claimed misunderstanding of the question. Different conclusions warrant, however, with respect to his drug involvement omissions. Both with respect to his drug use, sale and attempt at cultivating illegal drugs, he falsified his actions: not just in his SF-86, but in his later DSS statements.

None of Applicant's drug-related omissions and misrepresentations were occasioned by misunderstanding or memory lapse, but rather his harbored concerns about losing his job and clearance. Precisely because so much trust and reliability is imposed on persons accessed to see classified information the tolerance for knowing and wilful omissions are narrowly crafted. For certain, an applicant's duty of truthful disclosure is a fiducial one that derives from the special relationship of trust the applicant has in ensuring he can be entrusted to safeguard the Government's secrets. See Snepp v. United States, 444 U.S. 507, 511n.6 (1980). An applicant's fiducial duty to account for whatever drug activity he has been involved is a mandatory accounting requirement imposed on him for facilitating the Government's investigation into his clearance eligibility and may not be parsed to suit the applicant's personal interests, no matter how important the job or clearance might be to him. With access to classified information, Applicant becomes a steward of the Nation's secrets and may not elect to place his own interests over the Government's just to secure his job and clearance prospects.

General disclosure requirements imposed on applicants were never meant to shield applicants from punctilious accounting of all of their historical use of illegal drugs. For controlling guidelines on prior trust breaches, the principles recounted in both Snepp and the Restatement on Trusts are instructive. These recounted principles of fiducial responsibility and accountability are etched in the jurisprudence of our national and state jurisprudence alike. Applicant could not in reason safely ignore any of these principle-based guidelines.

Government may invoke several disqualifying conditions (DC) of the Adjudicative Guidelines for personal conduct: DC 1 (falsification of a government form) and DC 2 (misrepresentation of material facts to a federal agent). Government may also rely on generally accepted disclosure rules, absent which an applicant might be excused from exercising his fundamental fiducial responsibilities. Cf. IIA Scott on Trusts, Sec. 172, at 460.

Applicant's omission of his 1996 underage possession arrest is adequately explained as the result of a misunderstanding of the question and is successfully refuted. Such is not the case with respect to Applicant drug-related omissions. By averting any candid disclosures of the extent of his drug involvement until after he submitted his SF-86 and completed his DSS interviews two years later, he foreclosed any opportunities to mitigate the probative force of his omissions/misrepresentations with prompt, good faith disclosures of his own. Not only may Applicant not take advantage of any of the mitigating conditions in the Adjudicative Guidelines for personal conduct, but he is in no position either to forge overall impressions of restored judgment, reliability, and trust necessary for eligibility to hold a security clearance.

For all of these reasons above, Applicant fails to establish the degree of restored trust for mitigating his knowing and wilful drug use omissions and misstatements at this time. Unfavorable conclusions warrant with respect to sub-paragraphs 3.b through 3.f. Applicant is entitled to favorable conclusions with respect to sub-paragraph 3.a that covers his omission of his 1996 alcohol-related incident.

That neither Applicant's SF-86 omissions nor his DSS omissions and misstatements resulted in formal charges and adjudication against Applicant does not mean that the falsification issues may not be raised and considered anew in a clearance proceeding such as the present under the felony coverage of 18 U.S.C. Sec. 1001. Our Appeal Board has repeatedly stated that the Government can prove applicant engagement in criminal conduct, even in the absence of a criminal conviction. Cf. ISCR Case No. 94-1213 (June 7, 1996). Applicant himself admits his omissions violated the felony provisions of 18 U.S.C. Sec. 1001; his explanations provide insufficient extenuation to avert application of the criminal conduct guidelines to his SF-86 drug-related omissions and ensuing misstatements. And insufficient time has passed on these covered allegations to mitigate the conduct under either MC 1 (criminal behavior not recent) or MC 6 (clear evidence of successful rehabilitation). Applicant's explanations, considered in their totality, simply provide to little cover to forestall assignment of criminal falsification to his concealment efforts. Thus, unfavorable conclusions are in order with respect to the allegations covered by sub-paragraph 4.a.

In reaching my recommended decision, I have considered the evidence as a whole, including each of the factors set forth in E.2.2 of the Adjudicative Process of Enclosure 2 of the Directive.

In reviewing the allegations of the SOR and ensuing conclusions in the context of the FINDINGS OF FACT, CONCLUSIONS and the FACTORS listed above, this Administrative Judge makes the following FORMAL FINDINGS:

GUIDELINE G: FOR APPLICANT

Sub-para 1.a: FOR APPLICANT

Sub-para. 1.b: FOR APPLICANT

Sub-para. 1.c: FOR APPLICANT

GUIDELINE H: FOR APPLICANT

Sub-para. 2.a: FOR APPLICANT

Sub-para. 2.b: FOR APPLICANT

Sub-para. 2.c: FOR APPLICANT

GUIDELINE E: AGAINST APPLICANT

Sub-para. 3.a: FOR APPLICANT

Sub-para. 3.b: AGAINST APPLICANT

Sub-para. 3.c: AGAINST APPLICANT

Sub-para. 3.d: AGAINST APPLICANT

Sub-para. 3.e: AGAINST APPLICANT

Sub-para. 3.f: AGAINST APPLICANT

GUIDELINE J: AGAINST APPLICANT

Sub-para. 4.a: AGAINST 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 Applicant's security clearance.