DATE: February 12, 2003

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

PAUL J. MASON

APPEARANCES

FOR GOVERNMENT

Erin C. Hogan, Esq., Department Counsel

FOR APPLICANT

Pro se

In his security clearance application of October 1999, Applicant intentionally furnished false information when he indicated he had never used drugs. In November 2000, Applicant was asked to provide the entire scope of his drug history. While admitting he used drugs, Applicant falsely stated he had only used marijuana once. Not until he was confronted with medical records showing periodic marijuana and speed use did Applicant come forward with a complete account of his drug use. Applicant's character evidence from his supervisor and the police chief is not enough to overcome the negative evidence under the personal conduct guideline. Clearance is denied.

On July 23, 2002, 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 denied or revoked. The SOR is attached. Applicant filed his Answer to the SOR on August 7, 2002.

The case was transferred to the undersigned on September 25, 2002. A notice of hearing was issued on October 24, 2002, and the case was heard on November 21, 2002. The Government and Applicant submitted documentary evidence. Testimony was taken from one witness and Applicant. The transcript was received on December 4, 2002.

Applicant's Exhibit C (AE C), a truth verification examination (lie detector), was conducted byApplicant 's part-time employer (police department) to examine the veracity of background information provided by Applicant to the employer. The exam was conducted on November 20, 2001, and lasted seventy minutes. According to the Chief of Police, Applicant passed all phases of the exam before he was hired on December 5, 2001. Even though no objection was made to preclude the exhibit from becoming evidence, I still must determine the weight to be given this exhibit. Assuming the exam was offered in evidence to rehabilitate Applicant's reputation for telling the truth, the results of the examination carry little or no probative weight. There is no foundation evidence in the record explaining how this kind of exam was conducted and the extent to which the results are accepted in the scientific community to prove matters in issue. Next, there is no foundation evidence indicating the qualifications of the personnel conducting the examination. Since lie detection equipment was used during the examination, a question arises whether the equipment properly maintained and reliable. Considering the evidence as a whole, although the rules of evidence are relaxed in hearings under the Directive, a minimum demonstration of foundation evidence should be proffered before this kind of test result is admitted in evidence.

The following Findings of Fact are based on the documents, testimony and transcript. The SOR alleges personal conduct. Applicant admitted all allegations and requested a hearing.

Applicant is 28 years old and employed as a security officer. He seeks a secret security clearance.

Subparagraph 1.a. On October 21, 1999,Applicant intentionally supplied false information in his "no" response to question 27 (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?) on a Security Clearance Application (Standard Form 86). (Tr. 31)

In GE 3 (sworn statement, November 17, 2000), Applicant intentionally falsified his drug history by under reporting his marijuana use. Applicant also lied by stating he had never used any other drugs. A second interview/sworn statement (GE 2) was conducted after the investigating agent obtained medical records (GE 4) revealing discrepant drug information about Applicant's drug history.Applicant actually used marijuana between 1992 and 1997. The frequency of marijuana use was about every three months. He quit using marijuana in 1997. ⁽¹⁾

According to GE 2, Applicant also used speed between 1993 and 1995. He did not recall the frequency of use but recalled using the drug in social situations. He never purchased or sold speed or marijuana as both drugs were always provided. Applicant had no intention of using either drug in the future. Applicant did not disclose his drug history because he did not want to reopen his past, and he was afraid he would not receive a security clearance. (Tr. 34)

Subparagraph 1.b. On October 21, 1999, while Applicant answered "yes" to question 24 (Have your ever been charged with or convicted of any offense(s) related to alcohol or drugs?), he reported the alcohol-related incident which occurred in December 1996 (driving while under the influence of alcohol, (DWI)) but did not list the 1992 offense where he had used alcohol prior to receiving the speeding or reckless operation charge. ⁽²⁾ However, at the hearing, Applicant stated he did not list the 1992 alcohol-related offense on the questionnaire because he was charged with reckless operation or speeding, and not an alcohol offense. He stated:

My interpretation of the question, have you ever been charged with or convicted of any offenses related to alcohol or drugs? I was just charged with reckless operation, which was speeding. According to my - - in the year I've been a law enforcement officer, if I was charged with an alcohol offense or convicted, I would have been charged with OMVI or DUI and I was not.

Having weighed Applicant's sworn statement (GE 3) with his testimonial explanations, athere is insufficient evidence for me to find unequivocally that Applicant's speeding charge (or reckless operation conviction) was related to his consumption of one can of beer.

AE 3, the test verification examination, contains eight questions Applicant was asked. The third question asks, "Have you ever abused any drugs other than what you disclosed during the background investigation? Applicant indicated (Tr. 35) he disclosed his entire drug history in the background investigation as he had in GE 2. I am unable to give much weight to Applicant's testimony because I do not know what information Applicant furnished to police during the background investigation.

Applicant's supervisor (coordinator for security) of five years believes Applicant is an outstanding and trustworthy security officer who needs minimal supervision. The performance evaluations which the supervisor prepares, clearly supports his views of Applicant. The supervisor has observed no indication of dishonest conduct by Applicant, and does not believe Applicant's falsifications should prevent him from receiving his security clearance.

Applicant's part-time supervisor (Chief of Police) admires Applicant's honesty and his professionalism on the job. (AE C).

Enclosure 2 of the Directive sets forth policy factors which must be given binding consideration in making security clearance determinations. These factors must be considered in every case according to the pertinent criterion; however, the factors are in no way 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 case presents its own unique facts and circumstances, it should not be assumed that the factors exhaust the entire realm of human experience or that the factors apply equally in every case. In addition, the Judge, as the trier of fact, must make critical judgments as to the credibility of witnesses. Factors most pertinent to evaluation of the facts in this case are:

Disqualifying Conditions:

2. The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, ...[to] determine security clearance eligibility or trustworthiness, or awards fiduciary responsibilities.

Mitigating Conditions:

None.

Every security clearance case must also be evaluated under additional policy factors that make up the whole person concept. Those factors (found at pages 16-17 of Enclosure 2 of the Directive) include: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct; (3) the frequency and recency of the conduct; (4) the individual's age and maturity at the time of the conduct; (5) the voluntariness of participation; (6) the presence or absence of rehabilitation and other behavioral changes; (7) the motivation for the conduct; (8) The potential for pressure, coercion, exploitation, or duress, and, (9) the likelihood of continuation or recurrence.

As set forth in the Directive, every personnel security determination must be a fair and impartial overall commonsense decision based upon all available information, both favorable and unfavorable, and must be arrived at by applying the standard that the granting (or continuance) of a security clearance under this Directive may only be done upon a finding that to do so is clearly consistent with the national interest. In reaching determinations under the Directive, careful consideration must be directed to the actual as well as the potential risk involved that an applicant may fail to properly safeguard classified information in the future. The Administrative Judge 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 establish all the factual allegations under Guideline E (personal conduct) 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 the 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 repeat itself and Applicant presently qualifies for a security clearance.

When an individual intentionally conceals relevant or material false information on a security form or in a sworn statement, he demonstrates questionable judgment, dishonesty, and untrustworthiness under the personal conduct guideline. Applicant's drug omissions from his security clearance application in October 1999 constitutes poor judgment/dishonesty and fall within the scope of the second disqualifying condition (DC) of the personal conduct guideline.

Applicant's personal conduct is made worse by the fact he falsified his drug history a second time when under reporting his marijuana use and choosing to conceal his use of speed in November 2000. (GE 3) ⁽³⁾

Of the seven mitigating conditions (MC) under the personal conduct guideline, the first three conditions are potentially applicable to the facts and circumstances of this case. After a careful look at all the mitigating conditions both individually and together, Applicant has not met his ultimate burden of persuasion. Applicant is unable to take advantage of MC 1 because his falsification was substantiated in his subsequent sworn statement in January 2001(GE 2) and medical records (GE 4). Had Applicant not falsified his drug use on two occasions, the underlying drug history probably would have been mitigated by passage of almost five years without drug use.

ThoughApplicant disclosed his drug use in GE 2 January 2001, his original falsification was not an isolated event, and therefore, he does not gain the benefit of the MC 2. Because Applicant did not reveal his drug history in January 2001 until confronted with the medical records by the investigator, MC 3 is also inapplicable to Applicant's case in mitigation.

Applicant's feelings or motives for not disclosing truthful information about his past do not justify or excuse providing false information on two official documents. A security clearance aspirant is expected to provide truthful information during all phases of the security investigation.

Having weighed and balanced the entire record, Applicant has not met his ultimate burden of persuasion under subparagraph 1.a.. ⁽⁴⁾ In reaching my decision, I have also carefully weighed and balanced the intentional falsifications and quality character evidence against the general variables of the whole person concept.

With regard to subparagraph 1.b., though Applicant omitted the speeding or reckless operation offense charge from the security application, he did not do so intentionally. Having had one beer before being stopped by police does not make his speeding or reckless operation offense alcohol-related unless there is some evidence, e.g., charging documents or testimony from Applicant, indicating his beer consumption influenced or caused him to drive in an dangerous manner. y finding under subparagraph 1.b. is for Applicant.

Paragraph 1(personal conduct): AGAINST THE APPLICANT.

1a. Against the Applicant.

1.b. For the Applicant.

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 a security clearance for Applicant.