DATE: November 19, 2003
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SSN: -----------
Applicant for Security Clearance
DECISION OF ADMINISTRATIVE JUDGE
JAMES A. YOUNG
APPEARANCES
FOR GOVERNMENT
Marc Curry, Esq., Department Counsel
FOR APPLICANT
Charles G. Snead, Esq.
SYNOPSIS
Forty-three-year-old Applicant used marijuana for 25 years and experimented with other illegal substances. He deliberately falsified his security clearance application by omitting any reference to his illegal use of controlled substances. Clearance is denied.
STATEMENT OF THE CASE
The Defense Office of Hearings and Appeals (DOHA) declined to grant or continue a security clearance for Applicant. On 15 July 2003, under the applicable Executive Order (1) and Department of Defense Directive, (2) DOHA issued a Statement of Reasons (SOR), detailing the basis for its decision-security concerns raised under Guideline H (Drug Involvement) and Guideline E (Personal Conduct) of the Directive. Applicant answered the SOR in writing on 8 August 2003 and elected to have a hearing before an administrative judge. The case was assigned to me on 8 September 2003. On 6 November 2003, I convened a hearing to consider whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. DOHA received the transcript (Tr.) of the proceeding on 18 November 2003.
FINDINGS OF FACT
Applicant is a 43-year-old employee of a defense contractor who runs simulators for training military personnel. He started smoking marijuana when he was 13. He smoked once or twice a month until he graduated from high school. After he graduated, he used marijuana "on nearly a daily basis." Ex. 2 at 2. In 1980, he was cited for possession of marijuana. He pled guilty and paid a small fine. He continued to use marijuana while he served in the U.S. Navy from December 1984 to February 1996. After leaving the Navy, Applicant continued to use marijuana until at least 1999. Applicant admits experimenting with cocaine, crystal methamphetamine, and hallucinogenic mushrooms
On 8 August 1996, Applicant completed his questionnaire for national security positions (SF 86) and certified that his answers were "true, complete, and correct to the best of [his] knowledge and belief." Ex. 1 at 9. Applicant answered "no" to Question 24(a) of the SF 86 which asked if he had illegally used any controlled substances. On 23 January 2002, when confronted by a Defense Security Service (DSS) agent, Applicant admitted, in a signed, sworn statement, using marijuana, cocaine, crystal methamphetamine, and hallucinogenic mushrooms, but denied using marijuana while in the Navy.
On 26 July 1999, Applicant was admitted to a behavioral wellness center. He was extremely manic. Applicant was diagnosed by a physician as having a bipolar disorder, manic, and being a polysubstance abuser. Ex. 3 at 3. Applicant is currently taking medication to control his bipolar disorder and appears to have his bipolar condition under control. His doctors do not believe his medical condition poses a threat to national security. Exs. D, E.
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 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.
Enclosure 2 of the Directive sets forth personal security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.
Initially, the Government must establish, by substantial evidence, conditions in the personal or professional history of the applicant that disqualify, or may disqualify, the applicant from being eligible for access to classified information. See Egan, 484 U.S. at 531. The Directive presumes a nexus or rational connection between proven conduct under any of the disqualifying conditions listed in the guidelines and an applicant's security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).
Once the Government establishes a disqualifying condition by substantial evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002); see Directive ¶ E3.1.15. An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ISCR Case No. 01-20700 at 3.
CONCLUSIONS
Guideline H-Drug Involvement
In the SOR, DOHA alleged Applicant used marijuana from 1974 to 1999 (¶ 1.a.), used cocaine in 1984 and 1997 (¶ 1.b.), abused crystal methamphetamine (¶ 1.c.), and was diagnosed as a polysubstance abuser (¶ 1.d.). The improper or illegal involvement with drugs raises questions regarding an applicant's willingness or ability too protect classified information. Drug abuse may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information. Directive ¶ E2.A8.1.1.1.
Applicant abused several drugs-marijuana, cocaine, crystal methamphetamine, and hallucinogenic mushrooms. DC E2.A8.1.2.1. He also has a diagnosis by a credentialed medical professional of drug abuse. DC E2.A8.1.2.3. The drug involvement was not recent, the last admitted use being in 1999. MC E2.A8.1.3.1. Although Applicant claimed it was his intent not to use marijuana in the future (see MC E2.A8.1.3.3.), in light of his history of making false or misleading statements, I did not find his claim to be credible. In weighing the disqualifying and mitigating conditions, I considered that Applicant was still using marijuana when he denied such use on his SF 86 in 1996. Under the circumstances, the disqualifying conditions outweigh the mitigating condition. Finding is against Applicant.
Guideline E-Personal Conduct
In the SOR, DOHA alleged Applicant falsified his answer to question 24(a) on his security clearance application by deliberately failing to disclose his use of marijuana in the previous seven years. 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. Directive ¶ E2.A5.l.l.
Applicant deliberately omitted, concealed, and falsified relevant and material facts from a personnel security questionnaire by failing to disclose his drug use during the previous seven years. DC E2.A5.1.2.2. Although the falsification was not recent (1996), it was not an isolated incident. Applicant continued to lie or mislead the Government concerning his illegal use of drugs. When confronted by the DSS agent with his history of drug abuse, Applicant denied using marijuana while he was in the Navy. Ex. 2 at 2. He admitted such use under cross-examination at the hearing. Tr. 39, 40. Thus, MC E2.A5.1.3.2. is not applicable. Finding is against Applicant.
FORMAL FINDINGS
The following are my conclusions as to each allegation in the SOR:
Paragraph 1. Guideline H: AGAINST APPLICANT
Subparagraph 1.a.: Against Applicant
Subparagraph 1.b.: Against Applicant
Subparagraph 1.c.: Against Applicant
Subparagraph 1.d.: Against Applicant
Paragraph 2. Guideline E: AGAINST APPLICANT
Subparagraph 2.a.: Against Applicant
DECISION
In light of all of 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.
James A. Young
Administrative Judge
1. Exec. Or. 10865, Safeguarding Classified Information within Industry (Feb. 20, 1960), as amended and modified.
2. Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992), as amended and modified.