DATE: May 22, 2003
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
PHILIP S. HOWE
APPEARANCES
FOR GOVERNMENT
Catherine M. Engstrom, Esq., Department Counsel
Peregrine D. Russell-Hunter, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant used marijuana from 1975 to 1982 frequently, and then tapered off. He failed to disclose the last two uses in 1998 in his security clearance application. He also failed to disclose his a job termination on his application when that information was specifically requested. Applicant mitigated these concerns by showing he has not used any illicit drugs in five years and has no intent to use again, coupled with other factors. His failure to disclose these two items on his application were successfully mitigated. Clearance is granted.
STATEMENT OF THE CASE
On September 24, 2002, the Defense Office of Hearings and Appeals (DOHA), under Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified, issued a Statement of Reasons (SOR) to Applicant. The SOR detailed reasons under the personnel security Guideline H (Drugs) and Guideline E (Personal Conduct) 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. The SOR recommended referral to an Administrative Judge to conduct proceedings and determine whether clearance should be granted, continued, denied, or revoked.
In a signed and sworn statement, dated October 18, 2002, Applicant responded to the SOR allegations. He requested a hearing. This case was originally assigned to Administrative Judge Roger Willmeth on January 31, 2003. The case was reassigned to Administrative Judge Matthew Malone on March 17, 2003, due to caseload considerations. It was reassigned to me on March 31, 2003, due to caseload considerations.
A Notice of Hearing was issued on April 1, 2003 setting the hearing for May 1, 2003. On that date, I convened the hearing to consider whether it is clearly consistent with the national interest to grant Applicant's security clearance. The Government presented ten exhibits which were admitted into evidence. Applicant appeared and testified, presented and offered four exhibits, all of which were admitted into evidence. I received the transcript (Tr.) of the hearing on ay 9, 2003.
FINDINGS OF FACT
Applicant admitted the SOR allegations in subparagraphs 1.b., 1.c., 2.b. and 2.c. He denied the allegations in subparagraphs 1.a. and 2.a.. Those admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence in the record, and upon due consideration of the same, I make the following additional findings of fact:
Applicant is 42-years-old, married and has one child. Applicant was educated and trained as an accountant, and worked in various private companies as an accountant, credit manager, or general manager. In the late 1990s he retrained into the computer field and is now a senior network engineer. Applicant now requests a security clearance to work on classified computer systems for his latest employer. (Tr. 60-62)
Applicant ceased his weekly smoking of marijuana in the 1980s, and almost totally quit smoking marijuana in 1995. He did use marijuana twice between 1995 and 1998 when friends used it and offered it to him. From 1975 Applicant used cocaine until 1982, Valium until 1979, acid until 1982, and hashish until 1985. Applicant stated he started using marijuana when his mother got ill and died when he was 15 years old. He used marijuana as a "numbing agent." (Answer at 1; Tr. 13, 35, 42-45; Exhibit 3 at 1)
Applicant used marijuana twice after 1995, but did not disclose that information in response to Question 27 on his security clearance application. The two uses occurred within the seven year time period prior to the date Applicant completed his security clearance application, which was January 18, 2001. Applicant stated he just forgot the put down on the security clearance application the last two times he smoked marijuana before 1998. I find him to be credible based upon his demeanor and forthrightness of his testimony at the hearing. (Answer at 1; Exhibit 1 at 10; Tr. 46-48)
Applicant purchased marijuana from his own use between 1975 and 1995. He spent about $80 monthly on his marijuana purchases. He used marijuana 8 to 15 times per year from 1982 until 1985. He stopped using marijuana in 1995 when he realized his daughter deserved better from him, but then used it again a few times until 1998. He said he used the marijuana in the mid to late 1990s with friends and it was their marijuana. He used marijuana at concerts of rock groups he attended for many years. He decided never to use marijuana again and has stayed away from friends who provided it to him and encouraged him to use marijuana. (Answer at 1; Exhibit 3 at 1-3; Tr.37-42)
Applicant was terminated from his employment in September 1995 because of his misconduct in dealing with an irate customer. He admitted he made a statement about another part of his employer's company which criticized the quality of service provided by that other company. (Answer at 2; Tr.32-35; Exhibits 4 to 10 at all)
Applicant was terminated by the same employer in 1992 for abuse of tardiness and sick leave regulations. Applicant did not disclose this 1992 termination in response to Question 20 on his security clearance application. I find Applicant's testimony that his departure from the company was not a termination for cause, but more of an amicable parting of the ways, in part because he was rehired by the same company, which then terminated him again in 1995, to be believable. However, I find also that he was terminated in 1992 and he should have disclosed it on his security clearance application. His former employer submitted a statement in support of Applicant which asserted he did not leave due to a significant lack of performance and the employer feels "very positive" about Applicant. He gave a positive recommendation to Applicant. (Answer at 2; Tr.24, 27, 29, 30; Exhibits 4 to 10 at all; Exhibit D)
In between working for the same company from 1992 to 1995, Applicant worked for a printing company. He worked there for three months, until he was terminated from that company. He explained that he defended his secretary when she was verbally assaulted by the supervisor of the company. (Tr. 23-26, 31)
Applicant submitted two letters from officials in the Department of the Army recommending Applicant for a security clearance based on his work performance. A coworker and friend submitted a letter of recommendation also. (Exhibits A, B, and C; Tr. 17-20)
POLICIES
"[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 judgement, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing he use, handling, and protection of classified information." Exec. Or. 12968, Access to Classified Information § 3.1(b) (Aug. 4, 1995). Eligibility for a security clearance is predicted upon the applicant meeting the security guidelines contained in the Directive.
The adjudication process is based on the whole person concept. All available, reliable information about the person, past and present, is to be taken into account in reaching a decision as to whether a person is an acceptable security risk. Enclosure 2 to the Directive sets forth adjudicative guidelines that must be carefully considered according to the pertinent Guideline in making the overall common sense determination required.
Each adjudicative decision must also include an assessment of:
(1) the nature, extent, and seriousness of the conduct;
(2) the circumstances surrounding the conduct, and the extent of knowledgeable participation;
(3) how recent and frequent the behavior was;
(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 pertinent 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 (See Directive, Section E2.2.1. of Enclosure 2).
Because each security case presents its own unique facts and circumstances, it should not be assumed that the factors exhaust the realm of human experience or that the factors apply equally in every case. Moreover, although adverse information concerning a single condition may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility, or other behavior specified in the Guidelines.
Initially, the Government must establish, by substantial evidence, that conditions exist in the personal or professional history of the applicant which disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. All that is required is proof of facts and circumstances that indicate an applicant is at risk for mishandling classified information, or that an applicant does not demonstrate the high degree of judgment, reliability, or trustworthiness required of persons handling classified information. ISCR Case No. 00-0277, 2001 DOHA LEXIS 335 at **6-8 (App. Bd. 2001). Once the Government has established a prima facie case by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. See Directive ¶ E3.1.15. An applicant "has the ultimate burden of demonstrating that is clearly consistent with the national interest to grant or continue his security clearance.: ISCR Case No. 01-20700 at 3 (App. Bd. 2002). "Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security." Directive ¶ E2.2.2. "[S]ecurity clearance determinations should err, if they must, on the side of denials." Egan, 484 U.S. at 531. See Exec. Or. 12968 § 3.1(b).
Based upon a consideration of the evidence as a whole, I find the following adjudicative guidelines most pertinent to an evaluation of the facts of this case:
Guideline H - Drug Involvement
(A) Improper or illegal involvement with drugs, raises questions regarding an individual's willingness or ability to protect classified information. Drug abuse or dependence may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information
(B) Drugs are defined as mood and behavior-altering substances and include:
(1) 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
(2) Inhalants and other similar substances.
(C) Drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.
(D) Conditions that could raise a security concern and may be disqualifying include:
(1) Any drug abuse (see above definition).
(3) Diagnosis by a credentialed medical professional (e.g. physician, clinical psychologist, or psychiatrist) of drug abuse or drug dependence.
(4) Evaluation of drug abuse or drug dependence by a licensed clinical social worker who is a staff member of a recognized drug treatment program.
(E) Conditions that could mitigate security concerns include:
(1) The drug involvement is not recent;
(3) A demonstrated intent not to abuse any drugs in the future;
Guideline E - Personal Conduct:
(A) Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information. The following will normally result in an unfavorable clearance action or administrative termination of further processing for clearance eligibility:
(B) Conditions that could raise a security concern and may be disqualifying also include:
(1) Reliable, unfavorable information provided by associates, employers,
coworkers, neighbors, and other acquaintances;
(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;
(4) Personal conduct or concealment of information that increases an individual's
vulnerability to coercion, exploitation or duress, such as engaging in
activities which, if known, may affect the person's personal, professional,
or community standing or render the person susceptible to blackmail;
(C) Conditions that could mitigate security concerns include:
(1) The information was . . . not pertinent to a determination of judgment,
trustworthiness, or reliability;
(2) The falsification was an isolated incident, was not recent, and the individual
has subsequently provided correct information voluntarily.
(5) The individual has taken positive steps to significantly reduce or eliminate
vulnerability to coercion, exploitation, or duress;
Under the provisions of Executive Order 10865, as amended, and the Directive, a decision to grant or continue an applicant's clearance may be made only upon an affirmative finding that to do so is clearly consistent with the national interest. In reaching the fair and impartial overall common sense determination required, I can only draw those inferences and conclusions which have a reasonable and logical basis in the evidence of record. Likewise, I have attempted to avoid drawing any inferences that are based on mere speculation or conjecture.
CONCLUSIONS
Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors, and conditions above, I conclude the following with respect to each allegation set forth in the SOR:
With respect to Guideline H, the Government established its case. The SOR alleges Applicant used marijuana in 1975 continuously until 1998. Under Guideline H, an applicant's illegal involvement with drugs raises questions regarding his willingness to protect classified information. I conclude Disqualifying Conditions (DC) 1, 3, and 4 apply here. A security concern may exist if an applicant uses or purchases illegal drugs such as marijuana.
Next, I review the Mitigating Conditions (MC) set forth in the Directive to determine if any apply here. After evaluating all of the evidence, I conclude two (MC 1 and 3) are applicable in this case. The facts of this case show Applicant used marijuana over a 23 year period, with frequent use from ages 15 to 22 . After that age he tapered off his use of marijuana, and ceased using any other drugs. His marijuana use after 1982 was occasional and he ceased it totally in 1995, except for two subsequent incidents which are the subject matter of this SOR and hearing. Applicant stated at the hearing he completed the security clearance application hurriedly and did not intend to hide the last two incidents. He did reveal his use from 1994 and 1995. He stated he has no intention to resume use of marijuana or other drugs. While his early use of various drugs looks serious, he is not charged with those actions in the SOR, nor does the security clearance application request that information in Questions 21 to 29. They are limited to a 7 year period if they are not more specific in what information they seek. I find the five year period of non-use of marijuana, and the 20 year non-use of other substances. I give great weight to Applicant's declared intention to not use marijuana, his commitment to his daughter not to use it, and the positive efforts he made to transition himself to a new career field which has more stability for his work history to be persuasive factors. Applicant has also aged out of the youthful use of drugs and disassociated himself from those people he formerly knew who created an environment in which Applicant used drugs. In short, his life and environment have changed and Applicant is not going to repeat his youthful illegal actions. He has too much to lose now. Accordingly, allegations 1.a., 1.b., and 1.c. of the SOR are concluded for Applicant.
With respect to Guideline E, I conclude the Government established by substantial evidence the allegations as set forth in subparagraphs 2.a., 2.b., and 2.c. of the SOR. However, I find Applicant has mitigated each allegation. I will discuss each of these allegations in turn.
First, regarding subparagraph 2.a., Applicant failed to disclose completely his drug involvement on the personnel security questionnaire Question 27 submitted in June 2001 for the period after 1996. Under Guideline E conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information. A security concern may exist when an applicant deliberately omits, conceals, or falsifies relevant and material facts from his personnel security questionnaire or deliberately provides false or misleading information concerning relevant and material matters to an investigator in connection a personnel security determination. Applicant admitted he used marijuana in 1994 and 1996 on his application, but did not admit the later use in 1998. His testimony at the hearing that he did not intend to hide his 1998 use because he hurriedly completed the security clearance application is credible. He stated further he remembered the other incidents when the investigator stimulated his recollection. I believe that statement also, because he disclosed the 1994 and 1996 incidents, so there is no logic or benefit to him to hide the 1997 or 1998 incidents. I conclude there was no deliberate omission, concealment or falsification of that information, so DC 2 does not apply. Therefore, I find for Applicant on subparagraph 2.a. of the SOR.
Second, Applicant was terminated in September 1995 from his employer for misconduct. This type of conduct, saying something inappropriate to a customer about one of his employer's companies, is the gravamen of the Government's allegation. Applicant revealed this termination in response to Question 20 on his security clearance application. His personal conduct was of the type which would increase his vulnerability to coercion, exploitation or duress because it affected his community standing (1). DC 1 and 4 apply. However, this incident occurred under the stress of verbal confrontations with an irate customer. It was situational, and there is no evidence the same type of comment has occurred in the intervening eight years. Applicant is not in that line of business anymore, and his computer work places him in a different environment. I find that MC 1 and 5 applies, in addition to which I do not find this incident to be the type of personal conduct to disqualify a person from a security clearance because of its insignificance in the general order of life. I find for Applicant on the allegations of subparagraph 2.b. of the SOR.
Third, the Government alleges Applicant failed to disclose his termination in 1992 from employment with the same employer from which he was later terminated in 1995. When terminated in 1992, he filed for unemployment compensation and his former employer stated on a government form that Applicant did not fit into the company, so he was terminated. Applicant had been warned twice about leave forms and tardiness, and while Applicant did not think his termination resulted from misconduct withing the scope of Question 20, it is clear that it did and he should have listed it on his security clearance application. Therefore, DC 1 and 2 apply. But Applicant had a reasonable belief, as shown by his testimony at the hearing, that this termination was not a termination for cause, but an amicable parting of the ways, particularly since he was rehired later that year by the same employer, with whom he worked until 1995. That termination of his work relationship with a family owned company was not significant in showing any pattern of misconduct. His use of leave and tardiness were the issues there, not theft or embezzlement, for example. The incident is not relevant to the determination of reliability or trustworthiness, or Applicant's judgment on matters for which he seeks a security clearance, so MC 1 applies. MC 2 applies because Applicant was forthcoming about the circumstances surrounding his departure from that employment in 1992. He did disclose the other termination in 1992 from another employer, and the 1995 termination from the first employer. He must have known an investigation of both incidents would have revealed the first job departure, so what would be the purpose or value of hiding such a matter. There is none, and I believe his explanation. I find for Applicant on this subparagraph 2.c.
FORMAL FINDINGS
Formal Findings as required by Section E3.1.25 of Enclosure 3 of the Directive are hereby rendered as follows:
Paragraph 1 Guideline H: For Applicant
Subparagraph 1.a.: For Applicant
Subparagraph 1.b.: For Applicant
Subparagraph 1.c.: For Applicant
Paragraph 2 Guideline E: For Applicant
Subparagraph 2.a.: For Applicant
Subparagraph 2.b.: For Applicant
Subparagraph 2.c.: For Applicant
DECISION
In light of all the circumstances and facts presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant.
_____________________
Philip S. Howe
Administrative Judge
1. See Tr. 52-53