DATE: May 25, 2004

------------------------

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

MICHAEL H. LEONARD

APPEARANCES

FOR GOVERNMENT

Marc E. Curry, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant, a 59-year-old man, has a history of illegal drug involvement that includes four arrests for drug-related criminal conduct. His criminal conduct culminated in 1972 when he received a 15-year sentence to confinement (10 years suspended) upon his guilty plea to possession of a controlled drug with intent to distribute; he was released from confinement in 1973. He has been employed by the same defense contractor since 1977. Under 10 U.S.C. § 986, the Defense Department is prohibited from granting or renewing Applicant's security clearance based on his sentence to confinement exceeding one year unless the prohibition is waived by the Secretary of Defense; a waiver is not recommended. Clearance is denied.

On August 27, 2003, the Defense Office of Hearings and Appeals (DOHA) issued to Applicant a Statement of Reasons (SOR) stating the reasons why DOHA proposed to deny or revoke access to classified information for Applicant. ⁽¹⁾ The SOR, which is in essence the administrative complaint, alleges a security concern under Guideline J for criminal conduct. Among other things, the SOR alleges a security concern based on Applicant's 1971 criminal conviction in state court on a drug charge resulting in a sentence to confinement for 15 years (10 years suspended). The SOR also alleges Applicant is ineligible for access to classified information under 10 U.S.C. § 986--the so-called Smith Amendment--based on his sentence to confinement exceeding one year.

In his one-page answer to the SOR, dated September 22, 2003, Applicant requested a clearance decision based on a written record in lieu of a hearing. He also admitted to the allegations in SOR subparagraphs 1.a. through 1.e. Thereafter, Department Counsel prepared and submitted its written case. The File of Relevant Material (FORM) was mailed to Applicant on or about December 30, 2003, and it was received by Applicant January 12, 2004. Applicant's written response to the FORM was due February 11, 2004, and no response was received. The case was assigned to me February 24, 2004.

Applicant's admissions are incorporated into my findings, and after a thorough review of the pleadings and the record evidence, I make the following essential findings of fact:

Applicant is a 59-year-old man. His first marriage in 1964 ended in divorce in 1965. His second marriage in 1969 ended in divorce in 1973. He married for a third time in 1977 and that marriage ended when his spouse passed away in 1994. His fourth marriage in 1995 ended in divorce in 2000. Applicant has two children, born in 1981 and 1984, from his third marriage. He served in the U.S. Army from May 1966 - May 1969, which included duty in Vietnam.

Applicant has a history of illegal drug involvement that includes drug abuse and drug-related criminal conduct. He started smoking marijuana while stationed in Vietnam, and his drug abuse continued until he discontinued usage sometime in 1971. During this period, Applicant used marijuana on a regular, sometimes daily, basis. He also experimented with LSD, cocaine, and heroin.

Applicant's first encounter with the law was in March 1969 when he was arrested for possession of narcotics and burglary. The charges were later amended to disorderly person and he received a one-year sentence, suspended, with probation granted on or about June 13, 1969.

In June 1971, Applicant was arrested and charged with possession of hashish and possession of marijuana. The charges against him were nolle prossed.

In October 1971, Applicant was arrested for possession of a controlled substance with intent to distribute the same. Applicant agreed to buy some marijuana for a friend. He bought the marijuana, approximately 7/8th of a pound, and returned to his home. Upon his return, the police raided his home and found the marijuana. In February 1972, he pleaded guilty and received a 15-year sentence to confinement (with 10 years suspended) in a state correctional institution. He was held in confinement until on or about September 4, 1973.

Applicant was arrested a fourth and final time in April 1979, and charged with possession with intent to distribute marijuana. The basis for this charge was that police found marijuana in Applicant's home located in a room he rented to a friend. He appeared in court in July 1979 and told his story to the judge who dismissed the charges and the case. The record evidence indicates no other illegal drug involvement, either drug abuse or drug-related criminal conduct.

Applicant is employed as a project engineer. He has worked for the same defense contractor since October 1977. In his answer to the SOR, Applicant reports the following: (1) he has not used drugs since the last incident in April 1979; (2) he raised his two children by himself after the death of his third wife in 1994; (3) he is a homeowner; (4) he is a member of a church; (5) his illegal drug involvement is a thing of the past; and (6) he is a productive and loyal citizen deserving of trust.

The Directive sets forth adjudicative guidelines to consider when evaluating a person's security-clearance eligibility, including disqualifying conditions (DC) and mitigating conditions (MC) for each applicable guideline. In addition, each clearance decision must be a fair and impartial commonsense decision based on the relevant and material facts and circumstances, the whole-person concept, and the factors listed in ¶ 6.3.1. through ¶ 6.3.6. of the Directive. Although the presence or absence of a particular condition or factor for or against clearance is not outcome determinative, the adjudicative guidelines should be followed whenever a case can be measured against this policy guidance. Considering the evidence as a whole, Guideline J for criminal conduct ⁽²⁾ is most relevant here. This case also involves application of 10 U.S.C. § 986.

The only purpose of a security-clearance decision is to decide if it is clearly consistent with the national interest to grant or continue a security clearance for an applicant. ⁽³⁾ There is no presumption in favor of granting or continuing access to classified information. ⁽⁴⁾ The government has the burden of proving controverted facts. ⁽⁵⁾ The U.S. Supreme Court has said the burden of proof in a security-clearance case is less than the preponderance of the evidence. ⁽⁶⁾ The DOHA Appeal Board has followed the Court's reasoning on this issue establishing a substantial-evidence standard. ⁽⁷⁾ "Substantial evidence is more than a scintilla, but less than a preponderance of the evidence." ⁽⁸⁾ Once the government meets its burden, an applicant has the burden of presenting evidence of refutation, extenuation, or mitigation sufficient to overcome the case against them. ⁽⁹⁾ In addition, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision. ⁽¹⁰⁾

As noted by the Court in Egan, "it should be obvious that no one has a 'right' to a security clearance," and "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." ⁽¹¹⁾ Under Egan, Executive Order 10865, and the Directive, any doubt about whether an applicant should be allowed access to classified information will be resolved in favor of protecting national security.

Under Guideline J, criminal conduct is a security concern because a history or pattern of criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. A history of illegal behavior indicates an individual may be inclined to break, disregard, or fail to comply with regulations, practices, or procedures concerning safeguarding and handling classified information.

In addition to Guideline J, under the so-called Smith Amendment, the Defense Department and the military departments may not grant or renew a security clearance for any DoD officer or employee, an employee, officer, or director of a DoD contractor, or a member of the armed forces on active duty or in an active status who falls under any of four statutory categories. ⁽¹²⁾ The statutory category at issue here is § 986(c)(1), which provides: "The person has been convicted in any court of the United States of a crime and sentenced to imprisonment for a term exceeding one year." The statute also provides that the Secretary of Defense or the secretary of the relevant military department may, in a meritorious case, authorize an exception to the statutory prohibition for persons in two of the four statutory categories; namely, paragraphs (1) and (4) of § 986(c). The statute does not define, explain, or describe a "meritorious" case.

In June 2001, the Deputy Secretary of Defense issued official policy guidance designed to assist the DoD and military departments in uniformly implementing 10 U.S.C. § 986. Concerning criminal convictions, the policy guidance is the statute disqualifies persons with convictions in both state and federal courts, including military courts, with sentences imposed for more than one year regardless of the amount of time actually served. Like the statute, the policy guidance does not define, explain, or describe a "meritorious" case. And DOHA issued Operating Instruction 64, dated July 10, 2001, which requires, among other things, administrative judges to take the following action concerning waiver recommendations:

If an Administrative Judge issues a decision denying or revoking a clearance solely as a result of 10 U.S.C. 986, the Administrative Judge shall include without explanation either the statement 'I recommend further consideration of this case for a waiver of 10 U.S.C. 986' or 'I do not recommend further consideration of this case for a wavier of 10 U.S.C. 986.'

Here, based on the record evidence as a whole, the government has established its case under Guideline J. Applicant's drug-related criminal conduct ⁽¹³⁾ is evidence of a history or pattern of illegal behavior that creates doubt about his judgment, reliability, and trustworthiness. Given these circumstances, both DC 1 ⁽¹⁴⁾ and DC 2 ⁽¹⁵⁾ apply against Applicant. And Applicant's 1972 conviction and 15-year sentence to confinement, adjudged by a state court, falls within the scope of 10 U.S.C. § 986. Accordingly, unless the Secretary of Defense grants a waiver, Applicant is--by operation of federal law--ineligible for access to classified information.

I have reviewed the MC under Guideline J and two apply in Applicant's favor. First, his drug-related criminal conduct starting in 1969 ending with his conviction in 1972 is more than three decades old, and so it is not recent. ⁽¹⁶⁾ Second, Applicant has reformed and rehabilitated ⁽¹⁷⁾ himself since his release from confinement as demonstrated by: (1) his steady and productive employment with the same employer since October 1977; (2) raising two children by himself after his wife's death in 1994; (3) owing a home; (4) belonging to a church; and (5) conducting himself as a law-abiding citizen since at least 1979. The remaining MC do not apply given the facts and circumstances here.

To sum up under Guideline J, the record evidence shows Applicant engaged in drug-related criminal conduct during 1969 - 1971. More than 30 years have passed since his 1972 conviction and 15-year sentence to confinement, and I assess the likelihood of additional drug-related criminal conduct as low to remote. Ordinarily, I would be inclined to decide this case in favor of Applicant based on the passage of time and the evidence of his reform and rehabilitation. But I am deciding this case against Applicant solely as a result of 10 U.S.C. § 986. In reaching my decision, I have considered the evidence as a whole, both favorable and unfavorable, as well as the whole-person concept and other appropriate factors and guidelines in the Directive.

As required by ¶ E3.1.25 of Enclosure 3 to the Directive, below are my conclusions as to the allegations in the SOR:

SOR ¶ 1-Guideline J: Against the Applicant

Subparagraph a: For the Applicant

Subparagraph b: For the Applicant

Subparagraph c: For the Applicant

Subparagraph d: For the Applicant

Subparagraph e: Against 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. Clearance is denied. And I do not recommend further consideration of this case for a waiver of 10 U.S.C. § 986.

1. This action was taken under Executive Order 10865, dated February 20, 1960, as amended, and DoD Directive 5220.6, dated January 2, 1992, as amended and modified (Directive).

2. Guideline J is found at Attachment 10 to Enclosure 2 of the Directive, at page 37.

3. ISCR Case No. 96-0277 (July 11, 1997) at p. 2.

4. ISCR Case No. 02-18663 (March 23, 2004) at p. 5.

5. ISCR Case No. 97-0016 (December 31, 1997) at p. 3; Directive, Enclosure 3, Item E3.1.14.

6. Department of Navy v. Egan, 484 U.S. 518, 531 (1988).

7. ISCR Case No. 01-20700 (December 19, 2002) at p. 3 (citations omitted).

8. ISCR Case No. 98-0761 (December 27, 1999) at p. 2.

9. ISCR Case No. 94-1075 (August 10, 1995) at pp. 3-4; Directive, Enclosure 3, Item E3.1.15.

10. ISCR Case No. 93-1390 (January 27, 1995) at pp. 7-8; Directive, Enclosure 3, Item E3.1.15.

11. Egan, 484 U.S. at 528, 531.

12. 10 U.S.C. § 986(c)(1) through (c)(4).

13. I have attached little, if any, security significance to Applicant's last arrest in 1979 based on his explanation coupled with the state court's dismissal.

14. "Allegations or admissions of criminal conduct, regardless of whether the person was formally charged."

15. "A single serious crime or multiple lesser offenses."

16. MC 1 is "The criminal behavior was not recent."

17. MC 6 is "There is clear evidence of successful rehabilitation."