DATE: July 16, 2004
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
PHILIP S. HOWE
APPEARANCES
FOR GOVERNMENT
Marc E. Curry, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant is 24 years old and works for a defense contractor. He has a history of marijuna and alcohol use, and four uses of LSD, all during his college years. He started using marijuana and drinking alcohol while in high school. He has two DUI arrests, and two possession of marijuna charges. Applicant ceased using alcohol and marijuana substantially after his auto accident in November 2000 which could have killed him. His last use of either substance was in mid-2002. Applicant falsified his security clearance applications in 2001. Applicant mitigated the alcohol and drug use security concerns. Applicant did not mitigate the criminal conduct and personal conduct security concerns. Clearance is denied.
STATEMENT OF THE CASE
On October 30, 2003, 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 (Drug Involvement), Guideline J (Criminal Conduct), Guideline G (Alcohol Consumption), 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 November 24, 2003, Applicant responded to the SOR allegations. He requested a hearing. This case was assigned to me on January 27, 2004.
A Notice of Hearing was issued on February 12, 2004, setting the hearing for February 18, 2004. Applicant waived the 15 day notice period (Tr. 6). 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 seven exhibits which were admitted into evidence. The Government questioned the Applicant. Applicant appeared, testified, and offered three exhibits. I received the transcript (Tr.) of the hearing on February 25, 2004.
FINDINGS OF FACT
Applicant admitted all of the allegations of the SOR. 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 24 years old. He is unmarried, and a college graduate working for a defense contractor. (Exhibit 1 at 1; Tr. 53)
Applicant used LSD on four occasions from 1997 to 2000. He smoked opium with marijuana in cigarettes on ten occasions between 1997 and 2000. He also used amphetamines on several occasions while in college between 1997 and 2001, often to help keep himself awake to study. Applicant started using marijuana while in high school, and he increased its use in college. He used it between 1995 and August 2002, when he last used it. While in an alcohol treatment program in early 2001, Applicant tested positive for marijuana in February 2001. Applicant also used marijuana after he completed his security clearance application (SCA) in December 2001. (Tr. 18 to 37; Exhibits 2, 3, and 7 at attachments 2, 3, and 4)
Applicant was arrested in 1999 for operating a motor vehicle intoxicated (OMVI), having a blood alcohol content of .14% (the legal limit in his home state is .08%), failure to stop at a stop sign, and crossing the center line. All the charges were merged by the county prosecutor into driving under the influence (DUI), Applicant pled no contest, and was found guilty. Applicant was sentenced to 180 days confinement of which 177 were suspended, and Applicant's driver's license was suspended for 165 days. Applicant attended a three day alcohol education program. (Tr. 25, 26; Exhibit 6, Exhibit 7 attachments 2, 3 and 4)
Applicant was drinking heavily on one night in November 2000, when he drove fast, hit an obstruction, his car became airborne, crashed through a church graveyard, and hit a tree. His car was demolished, but Applicant suffered only a concussion and some lacerations. He was in the hospital from Thursday to Sunday. Applicant's BAC was .30%. Applicant stopped his drinking substantially from that point onward. He voluntarily enrolled in an alcohol treatment program, which took place from February to April 2001. No alcohol problem diagnosis was made or communicated to Applicant. This program took three hours for each of three days over the three months of the program. Applicant also had a jar of marijuana in that car on that night and was charged with its possession. (Tr. 27to 34; Exhibit 5, Exhibit 7 attachments 2 and 3)
Applicant drank alcohol with increasing frequency from 1995 to 2001, and decreasing frequency after his November 2000 accident. Applicant attended Alcoholics Anonymous (AA) from February 12, 2001 to May 2002. He stopped going because he could not find a non-smoking AA group in his home area. Applicant's last alcoholic drink was in May 2002 at a graduation party. He does not intend to drink again. (Tr. 32 to 37)
Applicant was arrested in August 2002 for marijuana possession. The charge was reduced to disorderly conduct due to a problem with the search and arrest of Applicant and his friends. Applicant does not intend to use drugs again. (Tr. 22, 37; Exhibit 7, attachments 3 and 5)
Applicant deliberately concealed information concerning his illegal use of drugs in answer to Question 27 on his SCA by denying any such use. He did not disclose his use of drugs from 1997 to 2002. He admitted he deliberately failed to disclose this information in his Answer and at the hearing. Applicant also did not disclose the same information on an SCA completed in the summer of 2001. (Tr. 38 to 40; Exhibit 1 at 9; Answer)
Applicant deliberately concealed his alcohol use and treatment at the 1999 three day information course and the alcohol treatment program Applicant entered voluntarily in February 2001 after his accident. Applicant admitted he failed to disclose this information both in his Answer to the SOR and at the hearing. But Applicant also made the same falsifications on an SCA completed in the summer of 2001. (Tr. 38 to 40; Exhibit 1 at 10; Answer)
Applicant was on the dean's or president's Lists during every semester he attended college. He presented exhibits consisting of a character reference letter, two employee evaluations, and 12 letters of appreciation from officials with whom Applicant dealt in his official capacity. Applicant made an articulate presentation at the hearing, seemed sincere and very credible. He is sober, and focused on his work, family, girlfriend, and his health. (Tr. 9; Exhibits A, B, C, and 7 at 14 to 25)
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 E2.A8.1.1.1.
(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), E2.A8.1.1.2.1
(2) Inhalants and other similar substances. E2.A8.1.1.2.2
(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. E2.A8.1.1.3
(D) Conditions that could raise a security concern and may be disqualifying include: E2.A8.1.2
(1) Any drug abuse (see above definition). E2.A8.1.2.1
(2) Illegal drug possession, including cultivation, processing, manufacture, purchase,
sale, or distribution. E2.A8.1.2.2
(E) Conditions that could mitigate security concerns include: E2.A8.1.3
(1) The drug involvement is not recent; E2.A8.1.3.1
(3) A demonstrated intent not to abuse any drugs in the future; E2.A8.1.3.3
Guideline J - Criminal Conduct
The Concern: A history or pattern of criminal activity creates doubt about a person's judgment, reliability and trustworthiness. E2.A10.1.1.
Conditions that could raise a security concern and may be disqualifying include:
(1) Allegations or admissions of criminal conduct, regardless of whether the person was formally charged. E2.A10.1.2.1.
(2) A single serious crime or multiple lesser offenses. E2.A10.1.2.2.
Conditions that could mitigate security concerns include: E2.A10.1.3.
(1) The criminal behavior was not recent. E2.A10.1.3.1.
(6) There is clear evidence of successful rehabilitation. E2.A10.1.3.6.
Guideline G - Alcohol Consumption
The Concern: Excessive alcohol consumption often leads to the exercise of questionable judgment, unreliability, failure to control impulses, and increases the risk of unauthorized disclosure of classified information due to carelessness. E2.A7.1.1.
Conditions that could raise a security concern and may be disqualifying include:
(1) Alcohol-related incidents away from work, such as driving while under the influence. E2.A7.1.2.1.
Conditions that could mitigate security concerns include:
(2) The problem occurred a number of years ago and there is no indication of a recent problem. E2.A7.1.3.2
(3) Positive changes in behavior supportive of sobriety. E2.A7.1.3.3.
Guideline E - Personal Conduct:
(A) The Concern: 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.
(B) Conditions that could raise a security concern and may be disqualifying include:
(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; E2.A5.1.2.2.
(C) Conditions that could mitigate security concerns include:
None
Under 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 draw only those inferences and conclusions which have a reasonable and logical basis in the evidence of record
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:
Considering Paragraph 1 and Guideline H, Applicant admitted his past use of illegal drugs. Disqualifying Condition (DC) 1 applies here. Applicant also possessed illegal drugs while using them, and was arrested twice for possession of marijuana. Both charges were disposed of in other charges, the first involving his 2000 auto accident and the other the August 2002 disorderly conduct charge. DC 2 applies to those facts.
Applicant's drug use stopped in August 2002, and is not recent. Mitigating Condition (MC) 1 applies here. Applicant stated in writing and at the hearing his intention not to use drugs again. MC 3 applies here. I conclude Guideline H for Applicant.
Regarding Paragraph 2 and Guideline G, DC 1 applies to these facts. Applicant has two alcohol-related driving arrests, one involving a very serious accident which could have killed him. Applicant does not attend AA, but did attend for 15 months between 2001 and 2002.
MC 2 applies because Applicant's alcohol problems occurred more than two years ago. His last drink of alcohol was in May 2002. There is no indication of a current alcohol problem, and Applicant has never been diagnosed as having an alcohol problem. MC 3 applies because Applicant has made positive changes in his life by focusing on his family, his work which he enjoys, his girlfriend, his family, and his health. The shock of the November 2000 auto accident obviously jolted him into a consistent sobriety. I conclude Guideline G for Applicant.
Considering Paragraph 3 and Guideline J, DC 1and DC 2 apply here. Applicant has three arrests for alcohol or drugs, including the two DUI arrests, and the possession of marijuana arising from the auto accident, and later in August 2002 while in an apartment. Applicant's falsification of the answers to Questions 27 and 30 of the SCA are violative of federal law, 18 U.S.C. 1001, which section makes it a felony to knowingly and willfully make a false statement or representation to any department of agency of the United States Government.
MC 1 applies to subparagraphs 3.a and 3.c. All of these criminal charges and dispositions occurred no later than 2002. While the falsifications also occurred in 2002 when Applicant made them, they are of a continuing nature and not mitigated. He admitted his error in his statement of January 30, 2002, and his SCA is dated January 3, 2002, but such falsifications go to the heart of the security clearance process. The Government must be able to rely on the veracity of those persons to whom it grants access to its classified material and locations. MC 6 also applies to subparagraphs 3.a and 3.c, but not 3.b for the same reasons.. Applicant has not repeated these offenses, and has clearly rehabilitated himself over the past two years. He freely admitted his transgressions at the hearing, and appeared sincere and contrite for all offenses, including the falsifications. He asserted he has matured, and I saw that new attitude at the hearing. I conclude Guideline J against Applicant because of his falsifications.
Considering Paragraph 4 and Guideline E, I conclude the Government established by substantial evidence the allegations as set forth in Paragraph 4 of the SOR. Applicant falsified his drug use and alcohol treatment information on his SCA. He acknowledged he did not want to have this information disclosed to his employer. DC 2 applies because of this deliberate falsification.
I cannot find any MC that apply to the facts in this part of the case against Applicant. Applicant completed two SCAs the same way, containing the same falsifications. Therefore, I conclude Guideline E against Applicant.
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
Subparagraph 1.d.: For Applicant
Subparagraph 1.e.: For Applicant
Subparagraph 1.f.: For Applicant
Paragraph 2 Guideline G: For Applicant
Subparagraph 2.a.: For Applicant
Subparagraph 2.b.: For Applicant
Subparagraph 2.c.: For Applicant
Subparagraph 2.d.: For Applicant
Paragraph 3 Guideline J: Against Applicant
Subparagraph 3.a.: For Applicant
Subparagraph 3.b.: Against Applicant
Subparagraph 3.c.: For Applicant
Paragraph 4 Guideline E: Against Applicant
Subparagraph 4.a.: Against Applicant
Subparagraph 4.b.: Against Applicant
DECISION
In light of all the circumstances and facts 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.
Philip S. Howe
Administrative Judge