DATE: June 4, 2003

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

JOAN CATON ANTHONY

APPEARANCES

FOR GOVERNMENT

Marc E. Curry, Esq., Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant, aged 26, admits to using marijuana approximately 25 times between August 1996 and November 2000. Applicant falsified her security clearance application (SF-86), by not admitting to purchasing and using LSD approximately 10 times between 1998 and July 1999. Applicant executed the SF-86 containing the falsifications on October 26, 2001, and stated in her sworn statement on March 6, 2002, that she falsified her SF-86 because she was ashamed of her LSD use and didn't want company officials to learn of it. Applicant states that she has not used marijuana since October 2000 and she has not used LSD since July 1999. Clearance is denied.

On October 22, 2002, pursuant to Executive Order No. 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, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant that specified reasons why DOHA could not make a preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. DOHA recommended referral to an Administrative Judge to determine whether clearance should be denied or revoked.

In the SOR the Government alleged that Applicant was disqualified from obtaining a security clearance because of illegal involvement with drugs (Guideline H) and Personal Conduct involving the falsification of material facts on a Security Clearance Application (Guideline E). On November 15, 2002, Applicant responded to the SOR and requested that her case be determined on the record in lieu of a hearing. The Government submitted its File of Relevant Material (FORM) on January 7, 2003. By letter dated January 8, 2003, a copy of the FORM was forwarded to Applicant, with instructions to submit additional information and/or any objections within 30 days of receipt. Applicant did not file an objection to the FORM or supply any additional information for the record. On March 6, 2003, the case was assigned to me for a decision.

In her answer to the SOR, Applicant admitted the factual allegations as set forth in subparagraphs 1. a., 1.b., and 1.c., involving Guideline H, Drug Involvement, and the allegations as set forth in subparagraphs 2.a. and 2.b., involving Guideline E, Personal Conduct. Applicant's admissions are incorporated 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 a 26-year-old research assistant employed by a Government contractor. On October 26, 2001, Applicant executed a Security Clearance Application (SF-86), which contained a question numbered 27, which reads as follows:

Your Use of Illegal Drugs and Drug Activity - Illegal Use of Drugs.

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?

In response to question 27, Applicant answered "yes," and stated that she had used marijuana approximately 25 times from January 1998 to November 2000.

The SF-86 also contained a Question 29, which reads as follows:

Your Use of Illegal Drugs and Drug Activity - Drug Activity

In the last 7 years have you been involved in the illegal purchase, manufacture, trafficking, production, transfer, shipping, receiving, or sale of any narcotic, depressant, stimulant, hallucinogen, or cannabis for your own intended profit or that of another?

Applicant answered "no" to Question 29.

Upon completing the SF-86, Applicant signed the certification, which reads as follows:

My statements on this form, and any attachments to it, are true, complete, and correct to the best of my knowledge and belief and are made in good faith, I understand that a knowing and willful false statement on this form can be punished by fine or imprisonment or both. (See section 1001 of title 18, United States Code).

On March 6, 2002, Applicant provided a sworn statement to a Special Agent of the Defense Investigative Service, which reads, in pertinent part, as follows:

I first used marijuana in about 1996. I last used marijuana in October of 2000. I used marijuana about 25 times total. I used marijuana in the past in bong, joint and pipe methods. I obtained marijuana by sharing with past peers. I have never bought or sold marijuana.

I used LSD about 10 times total, in paper form. I used the LSD in late 1998 until July 1999. I had previously used LSD by placing paper in my mouth. The LSD made me feel crazy and not in control. I had purchased LSD from former peers. I have never received any treatment for drugs. I have NO future intention to use any illegal drugs to include LSD and marijuana. I fully understand DOD policy concerning no use of illegal drugs while holding a security clearance. I failed to list my use of LSD on my [SF-86] because I was ashamed and did not want certain company officials to know that I had used LSD. I have not used any marijuana since October 2000. I have not use[d] LSD since July 1999.

In a two-page statement accompanying her answer to the SOR, Applicant stated that she had not requested a hearing because she felt the issues in question "were the result of bad judgment and immaturity." Applicant stated further that she regretted her experimentation with and use of drugs and did not fully understand the implications of not disclosing the truth about her drug use. She stated that she had a strong record as an athlete and scholar in college and was pursuing graduate work. She said she believed she had begun a new chapter in her life and believed she was capable of adhering to guidelines for handing classified material.

"[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 judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the 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 predicated upon the applicant meeting the security guidelines contained in the Directive. See Directive, Enclosure 2.

In the defense industry, the security of classified information is entrusted to civilian workers who must be counted on to safeguard classified information and material twenty-four hours a day. The Government is therefore properly concerned where available information indicates that an applicant for a security clearance may be involved in conduct that demonstrates poor judgment, untrustworthiness, or unreliability. These concerns include consideration of the potential as well as the actual risk that an applicant may deliberately or inadvertently fail to properly safeguard classified information.

An evaluation of whether the applicant meets the security guidelines includes consideration of a number of variables known as the whole person concept. In evaluating the relevance of an individual's conduct, the adjudicator should consider the following factors: (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; (9) the likelihood for continuation or recurrence. Directive, ¶ E2.2.1. Security clearances are granted only when "it is clearly consistent with the national interest to do so." Exec. Or. 10864 § 2. See Exec. Or. 12968 § 3.1(b).

Adjudicative Guidelines H, Drug Involvement (Attachment 8 to Enclosure 2), and E, Personal Conduct (Attachment 5 to Enclosure 2) are most pertinent to this case. Guideline H defines drugs as mood and behavior-altering substances, including drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended, including marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens, inhalants and other similar substances. ¶¶ E2.A8.1.1.2, E2.A8.1.1.2.1, E2.A8.1.1.2.2. Guideline H defines drug abuse as "the illegal use of drugs or use of a legal drug in a manner that deviates from approved medical direction." ¶E2.A8.1.1.3.

The security concern identified under Guideline H is that 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. Conditions that could raise a security concern in this case and which may be disqualifying include:

E2.A8.1.2.1. Any drug abuse. . . ;

E2.A8.1.2.2: Illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution.

Relevant conditions that could mitigate security concerns about Applicant's drug use and involvement include:

E2.A8.1.3.1. The drug involvement was not recent;

E2.A8.1.3.2. The drug involvement was an isolated or a aberrational event;

E2.A8.1.3.3. A demonstrated intent not to abuse any drugs in the future.

The relevant provisions of Guideline E which apply to the facts of this case are:

E2.A5.1.1. 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.

Conditions that could raise a security concern and may be disqualifying include:

E2.A5.1.2.2. The deliberate omission, concealment, or falsification 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.A5.1.2.4 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.

In this case, the following condition could mitigate security concerns :

E2A5.1.3.2: The falsification was an isolated incident, was not recent, and the individual has subsequently provided correct information voluntarily.

An applicant's admission of the information in specific allegations relieves the Government of having to prove those allegations. If specific allegations and/or information are denied or otherwise controverted by the applicant, the Government has the initial burden of proving those controverted facts alleged in the Statement of Reasons. If the Government meets its burden (either by an applicant's admissions or by other evidence) and establishes conduct that creates security concerns under the Directive, the burden of persuasion then shifts to the applicant to present evidence in refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of conduct that falls within specific criteria in the Directive, it is nevertheless clearly consistent with the interests of national security to grant or continue a security clearance for the applicant.

A person seeking access to classified information enters into a fiduciary relationship with the Government based upon trust and confidence. Where the facts proven by the Government or admitted by the applicant raise doubts about the applicant's judgment, reliability or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he or she is nonetheless security worthy. In Egan, 484 U.S. at 531, the Supreme Court concludes that "[t]he clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." Accordingly, doubts against an applicant's security worthiness are to be resolved against the applicant.

Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors, and conditions, including those described above, I conclude the following with respect to each allegation set forth in the SOR:

Subparagraph 1.a. of the SOR alleges, under Guideline H, Drug Involvement, that Applicant used marijuana approximately 25 times between August 1996 and November 2000. Subparagraph 1.b. of the SOR alleges, under Guideline H, that Applicant used LSD approximately 10 times between 1998 and July 1999. Subparagraph 1.c. of the SOR alleges, under Guideline H, that Applicant purchased LSD between 1998 and July 1999.

Through Applicant's own admissions, the Government established a prima facie case that Applicant used marijuana and used and purchased LSD. Applicant has admitted the Guideline H drug involvement specified in the SOR and identified as disqualifying conditions under paragraphs E2.A.8.1.2.1 and E2.A8.1.2.2 of Guideline H.

By her own admissions, Applicant's involvement with and use of marijuana and LSD spanned a period of over four years, with her use of marijuana and LSD occurring concurrently from late 1998 to July 1999. Applicant's last use of marijuana occurred in November 2000, and her last use and purchase of LSD occurred in July 1999. The facts show that her drug involvement was not recent, and mitigating condition E2.A8.1.3.1 applies. In her sworn statement, dated arch 6, 2002, Applicant states that she has no future intention to use any illegal drugs, including marijuana and LSD. I find her statement a credible assertion of her intent not to abuse drugs in the future, pursuant to mitigating condition E2.A8.1.3.3. However, the fact remains that Applicant's serious illegal drug involvement occurred over a period of more than four years, and was neither an isolated nor aberrational part of her life. Thus, mitigating condition E2.A8.1.3.2 does not apply to the facts of Applicant's case, and the allegations in subparagraphs 1.a., 1.b., and 1.c are concluded against the Applicant.

With respect to Guideline E, Personal Conduct, the Government has also established its case. In subparagraph 2.a. of the SOR the Government alleges that, in executing her response to question 27 on the SF-86, Applicant deliberately failed to disclose her use of LSD, thus raising a security concern under subparagraph E2.A8.1.2.2 of Guideline E. Applicant admits she deliberately chose not to disclose her use of LSD in her response to Question 27. In her sworn statement, dated March 6, 2002, she avers that she was ashamed to admit the LSD use in her response to Question 27. Applicant's concealment of information she considered embarrassing could make her vulnerable to coercion and blackmail. ¶ E2.A5.1.2.4.

In subparagraph 2.b. of the SOR the Government alleges that Applicant deliberately failed to disclose, in her response to Question 29 of the SF-86 that she had purchased LSD. In her sworn statement of March 6, 2002, Applicant admitted purchasing LSD for her own use from former peers. On October 26, 2001, Applicant had completed the certification at the end of the SF-86 and attested, by her signature, that her responses to all questions on the form were true, complete and correct to the best of her knowledge and belief and that she understood that a knowing and willful false statement made in response to any of the questions was punishable under section 1001 of Title18, United States Code.

Only one mitigating condition under Guideline E might be applicable to the instant case. The security concern raised by Applicant's disqualifying conduct could be mitigated if the falsification was an isolated incident, was not recent, and if the Applicant subsequently provided the correct information voluntarily. ¶E2.A5.1.3.3. While Applicant supplied the correct information when questioned by a special agent of the Defense Investigative Service, the subject falsifications on Applicant's SF-86 were not isolated incidents and they are recent. Accordingly, allegations in subparagraphs 2.a. and 2.b of the SOR are concluded against the Applicant.

In my evaluation of the record, I have carefully considered each piece of evidence in the context of the totality of evidence and under all of the Directive guidelines that were generally applicable or might be applicable under the facts of the case. Under the whole person concept, I conclude that Applicant has not successfully overcome the Government's case opposing her request for a DoD security clearance.

Formal findings For or Against Applicant on the allegations set forth in the SOR, as required by Section E3.1.25 of Enclosure 3 of the Directive are:

Paragraph 1, Drug Involvement (Guideline H): AGAINST THE APPLICANT

Subparagraph 1.a.: Against the Applicant

Subparagraph 1.b.: Against the Applicant

Subparagraph 1.c: Against the Applicant

Paragraph 2, Personal Conduct (Guideline E): AGAINST THE APPLICANT

Subparagraph 2.a.: Against the Applicant

Subparagraph 2.b.: 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 the Applicant. Clearance is denied.