DATE: March 1, 2005

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

ROGER C. WESLEY

Applicant's history of recurrent marijuana use over a six-year period is mitigated by the absence of any probative use in over three years and his assurances he will not return to marijuana in the foreseeable future with the team support at work and new found AA network support he has surrounded himself with. However, his exhibited pattern of covering up his drug use and most of his delinquent debts from his security applications and failing to resolve most of his delinquent debts with his available income until after receiving the SOR is not yet mitigated under any of the pertinent mitigation guidelines and raise continuing security concerns about Applicant's judgment and reliability. Clearance is denied.

On January 6, 2004, the Defense Office of Hearings and Appeals (DOHA), pursuant to Executive Order 10865 and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992, issued a Statement of Reasons (SOR) to Applicant, which detailed reasons 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, and recommended referral to an administrative judge to determine whether clearance should be granted, continued, denied or revoked.

Applicant responded to the SOR on February 13, 2004 and requested a hearing. The case was assigned to me on July 15, 2004, and was scheduled for hearing on September 23, 2004. A hearing was convened on September 23, 2004, for the purpose of considering whether it is clearly consistent with the national interest to grant, continue, deny, or revoke Applicant's security clearance. At hearing, the Government's case consisted of 13 exhibits; Applicant relied on one witness (himself) and two exhibits. The transcript (R.T.) of the proceedings was received on October 2, 2004.

Before the close of the hearing Applicant asked that the record be kept open to permit him time to supplement the record with documentation of payments to certain of his creditors, his new payment plan, and his updated security clearance application. There being no objection from the Government, and for good cause shown, Applicant was granted until October 22, 2004 to supplement the record. Department Counsel, in turn, was granted three days to respond. Within the time permitted to supplement the record, Applicant documented a payment plan (i.e., $150.00 a month to pay off the $11,151.88 balance) with creditor 1.c, payment in full of the debts owed to creditors 1.g and 1.h, and a consolidated payment plan to pay off the rest of Applicant's listed creditors. Department Counsel interposed no objections to any of the submitted exhibits, and the submissions are accepted as Applicant's exhibits C through E.

Because of the lateness of the hour, the parties agreed to forego their closing hearing arguments and submit written summations. These written summations have been received and considered.

Under Guideline F, Applicant is alleged to have experienced financial difficulties, reflected in the number of delinquent debts he accumulated between 1999 and 2002 (seven in all exceeding $13,000.00), for which he is financially capable of paying with the monthly net remainder, after expenses, he reported in July 2002 (i.e., of $281.00).

Under Guideline H, Applicant is alleged to have (a) used marijuana three to four times a day from 1995 to May 1996, and August 2000 to at least April 2001, (b) received treatment from April 2001 to October 2001, (c) tested positive for drug use while undergoing treatment for alcohol and drug abuse in 2000 and 2001, (d) been charged in May 2001 with use and possession of a controlled substance in violation of the UCMJ, for which he was found guilty and awarded Article 15 punishment, and (e) received a general discharge, under honorable conditions from the Army in December 2001 as a consequence of his earlier (in arch and April 2001) marijuana use/possession offense. Under Guideline J, Applicant's controlled substance charge and disposition allegation is incorporated by reference (should be 2.e, not 1.e).

Under Guideline E, Applicant is alleged to have (a) falsified his security clearance application (SF-86) of April 2002 by understating the duration of his marijuana use and his delinquent debts and (b) to have been involved in drug-related charges, which incorporate the allegations set forth under Guideline H by reference.

For his response to the SOR, Applicant admitted most of the allegations pertaining to his finances and involvement/treatment of marijuana. He denied testing positive for marijuana while undergoing treatment for alcohol and drug use (claiming his positive test occurred under the supervision of his command before he checked himself in for treatment). He denied intentionally understating his marijuana use more than seven years removed from when he filled out his SF-86, and denied understating his delinquent debts (claiming uncertainty over the status of his debts), but admitted the balance of the allegations covered by Guideline E.

Applicant is a 26-year-old analyst for a defense contractor who seeks a security clearance. The allegations covered in the SOR and admitted to by Applicant are incorporated herein by reference and adopted as relevant and material findings. Additional findings follow.

While in high school (between 1995 and 1996), Applicant smoked marijuana sporadically (about once a week on average), usually at parties and on social occasions. He quit using drugs when he entered the Army following his graduation from high school in June 1996. He resumed his marijuana use in 2000 (while still in the Army) under the stress of a deteriorating marriage. Between August and October 2000, and again between December 2000 and April 2001, he used the substance regularly, averaging his use three to four times a day (see ex. 3).

Amidst increasing tensions with his spouse at the time over Applicant's learning of his wife's infidelity with another member of his command, Applicant and his wife separated. In an ensuing confrontation with her in April 2001 over drugs, Applicant voluntarily reported his marijuana use to his commander (who had him field tested for drugs) and self-referred himself for treatment of alcohol and drug abuse. His pre-treatment field test yielded a positive reading for marijuana (see exs. 3 and 7).

Applicant continued his outpatient treatment for alcohol and drug abuse between April and October 2001. His outpatient discharge summary reports he refused to complete an aftercare plan and failed initially to return for his final closure group, before relenting and fulfilling both regimens.

While undergoing treatment for alcohol and drug abuse, Applicant was charged with wrongful use and possession of a controlled substance (marijuana) in May 2001, in violation of the UCMJ. The charges emanated from his positive drug test and the Army's investigation that ensued. Applicant accepted field grade Article 15 non-judicial punishment in May 2001 and was fined $482.00 a month for two months, received 45 days extra duty and a 45-day restriction, and had his rank reduced from E4 to E1 (see exs. 3 and 8).

Since entering his alcohol and drug treatment program in April 2001, Applicant has not resumed his use of marijuana, or any other illegal substance, and assures he has no intention of resuming his use of illegal substances. His assurances are tempered somewhat, though, by the qualifications attributed to him by his Army treatment team (viz., that he saw nothing wrong with marijuana use). Once he completed his outpatient program, he received a general discharge, with honorable conditions, from the Army, due to his noted commission of a serious offense (viz., his use and possession of marijuana in April 2001). To date, he has not been successful in changing the designation of his discharge to honorable, despite expressed intentions to do so.

Applicant accumulated numerous debts in the Army, which he permitted to become delinquent. All together, he accrued seven delinquent debts between 1996 and 2001 that total in excess of $13,000.00. He attributes his debt delinquencies primarily to indifference and over extending himself. His divorce from his spouse in June 2001 and ensuing allocation of principal responsibility for their outstanding debts caused some confusion for Applicant over payment of his biggest listed creditor (creditor 1.c), but not enough to prevent his addressing the debt much earlier. Despite a reported net monthly remainder of $281.00 in July 2002 (see ex. 3), he made no documented efforts to address his delinquent debts before receiving the SOR in January 2004.

Following the hearing, Applicant documented paying two of his related creditors (listed creditors 1.f and 1.g) with a single payment of $337.41 (see ex. D). He also documented a payment plan he arranged with creditor 1.c on a debt that now shows an increased balance of $11,151.58 (see ex. C). His agreed to plan calls for him to make monthly payments of $150.00, beginning in October 2004. Applicant provided no proofs, however, of his paying on this debt earlier (as claimed) or making any of these scheduled monthly payments since agreeing to the plan. Finally, Applicant documented entering into a consolidated repayment plan with CCC in October 2004 that provides for his making $147.00 monthly payments (with an extra $20.00 added to the first payment due in November 2004) to three of Applicant's listed creditors holding debts totaling $4,018.00 (see ex. E). Applicant's documentation credits him with making his scheduled monthly payments for November and December 2004. He provides no evidence, though, of paying or resolving his $660.00 debt with creditor 1.b.

Asked to execute an SF-86 in April 2002 (see ex. 1), Applicant understated his drug use when answering question 27: He understated his marijuana use by limiting his use within the previous seven years to one short four-month window spanning December 2000 and April 2001 (see ex. 1). He attributes his understated involvement with marijuana to a mistaken understanding that he didn't have to list his earlier marijuana use (viz., his 1995 to 1996 use) because (a) it was too dated (more than seven years previous) and (b) it was bound to come up anyway in an ensuing DSS interview.

Applicant's claimed misunderstanding of the scope of question 27 cannot be considered apart from his prior history of omissions of past drug use. He answered no, for instance, to ever using drugs when he completed an earlier SF-86 required of him after he entered the military in 1995 (see ex. 12). He attributes these earlier omissions to advice he received from his military recruiter about omitting any drug use on his SF-86 that might hamper his helicopter training acceptance (R.T., at 59-60). Applicant doesn't account either for why he excluded his more extensive marijuana use in 2000 (i.e., between August and December 2000) when he answered question 27, or why he understated his frequency of marijuana use (stating only a few times). Nor does he clarify why he failed to correct his understatements when he executed a second SF-86, two days later (see ex. 2). Taken together in historical perspective, Applicant's drug use omissions reveal sufficient familiarity with the potential implications drug use admissions could have on his clearance and job assignments to preclude any findings his omissions were all the result of clear misunderstandings and poor advice. Applicant's omissions were based on carefully crafted choices designed to minimize the negative implications of perceived excessive drug use. His omitted 1995-1996 use falls too far within the seven-year window of inquiry to plausibly result from an inadvertent misunderstanding of the scope of question 27 without more probative proofs of a good-faith mistake.

Applicant omitted most of his delinquent debts, as well, when executing his April 2002 SF-86. When answering questions 38 (debts more than 180 days delinquent) and 39 (debts more than 90 days delinquent), he responded in the affirmative and proceeded to list just two of his seven covered debts: creditors 1.a and 1.d. He attributes the omission of his remaining listed debts to (a) rushing through his completing of the form without any information about the details of his delinquent debts and (b) working on the assumption that the Government would check his credit report for the specifics on his debts (R.T., at 58-59). Applicant acknowledges he knew about his creditor 1.c account (his largest delinquent debt), but simply forgot about it when he was answering questions 38 and 39. Considering his general awareness of his delinquent debts (some disputed) at the time, his failure to acknowledge more in either the space provided or in the comment section of the SF-86 with the best information he had reflects a conscious choice to minimize his delinquent debts in the expectation he could provide more information were he asked in any follow-up inquiries. Applicant's omissions under these circumstances can not be characterized as the result of mistake or inadvertence. Inferences warrant that Applicant's omissions of his remaining delinquent debts were both knowing and wilful.

In July 2002, just two months after completing his SF-86, Applicant was interviewed by an agent from the Defense Security Service (DSS). Applicant assures he provided all of the details of his marijuana use without any prompting by the interviewing agent. He assures, too, that he described his delinquent debts voluntarily and without being shown a credit report or other suggestive material (R.T., at 62-64). While the written DSS statement Applicant signed (see ex. 3) contains no information to suggest agent knowledge of Applicant's more extensive marijuana use, the statement does include an Applicant acknowledgment of his credit report and his concurrence with the delinquent accounts reflected in the report. His assurances of voluntary disclosure, notwithstanding, both his acknowledgment of the credit report his DSS statement (ex. 3) and the detail in which he was able to recite his creditors holding delinquent debts cannot be reconciled with his claims of memory lapse concerning the same debts just two months previous. In the face of his discredited assurances about his voluntarily accounting for all of his delinquent debts, he provides too little evidence that he voluntarily disclosed the extent of his marijuana use to the interviewing DSS agent to sustain his assurances. His assurances of prompt, voluntary disclosures of the extent of his prior drug use and delinquent debts, under the circumstances, cannot be accepted.

Applicant is well regarded by his direct supervisor and members of his Government customer he provides contractual services for as a professional with proven talent, dedication and leadership qualities (see exs. A and B). Applicant is considered an important member of his project team.

The Adjudicative Guidelines of the Directive (Change 4) list Guidelines to be considered by judges in the decision making process covering DOHA cases. These Guidelines require the judge to consider all of the "Conditions that could raise a security concern and may be disqualifying" (Disqualifying Conditions), if any, and all of the "Mitigating Conditions," if any, before deciding whether or not a security clearance should be granted, continued or denied. The Guidelines do not require the judge to assess these factors exclusively in arriving at a decision. In addition to the relevant Adjudicative Guidelines, judges must take into account the pertinent considerations for assessing extenuation and mitigation set forth in E.2.2 of the Adjudicative Process of Enclosure 2

of the Directive, which are intended to assist the judges in reaching a fair and impartial common sense decision.

Viewing the issues raised and evidence as a whole, the following adjudication policy factors are pertinent herein:

The Concern: An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. Unexplained affluence is often linked to proceeds from financially profitable criminal acts.

The Concern: 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.

The Concern: A history or pattern of criminal activity creates doubt about a peson's judgment, reliability and trustworthiness.

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.

By virtue of the precepts framed by the Directive, a decision to grant or continue an Applicant's for security clearance may be made only upon a threshold finding that to do so is clearly consistent with the national interest. Because the Directive requires Administrative Judges to make a common sense appraisal of the evidence accumulated in the record, the ultimate determination of an applicant's eligibility for a security clearance depends, in large part, on the relevance and materiality of that evidence. As with all adversary proceedings, the Judge may draw only those inferences which have a reasonable and logical basis from the evidence of record. Conversely, the Judge cannot draw factual inferences that are grounded on speculation or conjecture.

The Government's initial burden is twofold: (1) It must prove any controverted fact[s] alleged in the Statement of Reasons and (2) it must demonstrate that the facts proven have a material bearing to the applicant's eligibility to obtain or maintain a security clearance. The required showing of material bearing, however, does not require the Government to affirmatively demonstrate that the applicant has actually mishandled or abused classified information before it can deny or revoke a security clearance. Rather, consideration must take account of cognizable risks that an applicant may deliberately or inadvertently fail to safeguard classified information.

Once the Government meets its initial burden of proof of establishing admitted or controverted facts, the burden of persuasion shifts to the applicant for the purpose of establishing his or her security worthiness through evidence of refutation, extenuation or mitigation of the Government's case.

Applicant brings a praiseworthy civilian work record to these proceedings, in addition to a history of recurrent marijuana use, delinquent debts and deliberate understatement of his drug use and debts over 180 and 90 days delinquent in two security applications he completed in April 2002. Applicant's recurrent involvement with marijuana, his unresolved debt delinquencies and his SF-86 omissions raise security significant issues about his judgment, reliability and trustworthiness required for eligibility to access classified information.

Illegal drug issues

Applicant's recurrent marijuana use was abusive by all evidentiary accounts and culminated in a positive drug test during his military service that resulted in his being charged with marijuana possession while a member of the Army and awarded Article 15 non-judicial punishment. Following his completion of outpatient treatment in which he was diagnosed cannabis dependent, he received a general discharge from the Army, under honorable conditions, in December 2001 for cited use and possession of marijuana. Since completion of his outpatient treatment in April 2001, he has not used marijuana or any other illegal substances and assures he has no intention of doing so.

Applicant's recurrent abusive use of marijuana was sustained at regular levels for almost two years spanning 1995 and 1996, and was resorted to again for a short period between August 2000 and April 2001, preceding his positive drug test. His history of marijuana involvement is sufficient to invoke two of the disqualifying conditions of the Adjudicative Guidelines for drugs, i.e., DC 1 (any drug abuse) and DC 2 (illegal drug possession, including cultivation, processing, manufacture, purchase, sale or distribution). Applicant's avoidance of marijuana over the past three years is not based on any received impressions of friends and colleagues, substance abuse counselors, or negative drug screens. His accepted claims are based entirely on his own testimony and the absence of any probative proof to the contrary from the Government.

Misconduct predictions, generally, may not be based on supposition or suspicion. See ISCR Case No. 01-26893 (October 2002); ISCR Case No. 97-0356 (April1998). The Appeal Board

has consistently held that an unfavorable credibility determination concerning an applicant is not a substitute for record evidence that the applicant used marijuana since his last recorded use, or based on his past use is likely to resume usage in the future. See ISCR Case No. 02-08032 (May 2004). Based on his own accepted testimony, Applicant may invoke MC 1 (the drug involvement was not recent) and MC 3 (A demonstrated intent not to abuse any drugs in the future). While Applicant's recurrent marijuana use over a six-year period raises some questions over the strength of his avoidance assurances, it is not enough to prevent Applicant's successful mitigation of the issue. Applicant's recurrent use of marijuana between 1995 and 2001 has been interrupted by a significant period of abstention before resumption in 2000 and has not been probatively repeated in over three years.

Applicant's assurances that his marijuana involvement is a thing of the past are entitled to acceptance based on his limited drug relapse between 2000 and 2001, the absence of any drug activity attributed to him over the past three plus years, and his strong character references from his supervisor and Government customer who have worked closely with him. Considering all of the developed evidence of record, Applicant mitigates security concerns associated with his recurrent use and possession of marijuana. Favorable conclusions warrant with respect to subparagraphs 2.a through 2.c of Guideline H and subparagraph 3.a of Guideline J.

Falsification Issues

Potentially serious and difficult to reconcile with the trust and reliability requirements for holding a security clearance are the timing and circumstances of Applicant's drug and delinquent debt understatements in each of his 2002 SF-86s, as well as in his earlier SF-86 executed shortly after his military enlistment in 1996. So much trust is imposed on persons cleared to see classified information that deviation tolerances must be administered narrowly.

By materially understating his past marijuana use and delinquent debts in each of his 2000 clearance applications, Applicant concealed materially important background information needed for the government to properly process and evaluate his security updates. His claims of misreading the scope of the drug question and forgetting about most of his delinquent debts are not accepted given the totality of the circumstances surrounding his omissions.

Applicant makes clear by his answers about taking the advice of his Army recruiter in 1996 to omit his prior drug use and his inconsistent answers about his memory lapses he attributes to his debt omissions that he approached both the drug and debt-related questions of his respective SF-86s with the intent to withhold as much information about his past marijuana use and delinquent debts as he could reasonably escape with. His omissions were knowing, deliberate, and material to a determination about his clearance suitability. They invite application of Disqualifying Conditions (DC) for personal conduct of the Adjudicative Guidelines: DC 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).

Mitigation is difficult to credit Applicant with, since he failed to take advantage of his first and only opportunity in his ensuing DSS interview to promptly and voluntarily disclose the extent of his marijuana use and debt delinquencies without any prompting from the interviewing agent. On this important question, Applicant's assurances to the contrary were too inconsistent and implausible to be accepted, and are not. Historically, the Appeal Board found the use of itigating Condition (MC) 2 of the Adjudicative Guidelines for personal conduct (The falsification was an isolated incident, was not recent, and the individual provided correct information voluntarily) to be unavailable to applicants seeking mitigation by treating the omission as isolated. The Board has foreclosed reliance on MC 3 (The individual made prompt, good-faith efforts to correct the falsification before being confronted with the facts) as well in circumstances (as here) where the applicant has repeated his falsifications and failed to take advantage of an earlier prospective employer opportunity to be fully truthful about his misstatements. Compare ISCR No. 03-00763 (January 2005) and ISCR Case No. 97-0289 (January 1998) with DISCR Case No. 93-1390 (January 1995). failed to take advantage of an afforded DSS interview opportunity to provide prompt, good-faith answers. Compare ISCR Case No. 97-0289 (January 1998) with DISCR Case No. 93-1390 (January 1995).

There can be no doubt but that Applicant has inspired confidence and trust among his defense contractor supervisor Government customer who regularly work with him. But in the face of his repeated acts of omission that date back to 1996, his favorable character evidence alone is not enough to absorb security concerns extant with the Government over his failure to be truthful through both his SF-86 submissions and initial DSS interview in 1997. Mitigation is further weakened by the qualifications expressed by most of his character witnesses: lack of awareness of Applicant's drug use and omissions of material information in each of his SF-86 submissions.

Considering all of the evidence produced in this record and the available guidelines in the Directive (inclusive of the E.2.2 factors), unfavorable conclusions warrant with respect to subparagraphs 4.a through 4.c of Guideline E.

Financial issues

Applicant accrued considerable delinquent debt between 1996 and 2001 following his discharge from the Army, which he has only minimally addressed with his available resources before receiving the SOR in January 2004. Applicant's listed delinquent debts (seven in all) exceed $13,000.00.

Based on Applicant's considerable accumulation of delinquent debt, two of the Disqualifying Conditions (DC) of the Adjudicative Guidelines for Guideline F apply: DC 1 (A history of not meeting financial obligations) and DC 3 (Inability or unwillingness to satisfy debts). Attributing his debts to indifference and over extending himself, he provides no basis for crediting him with extenuating circumstances. Based on his furnished financial history and statement of net available income, Applicant's finances appear to have been sufficient to enable him to make at least modest payments on his debts before issuance of the SOR.

Applicant's debts are neither extenuated nor mitigated enough to enable him to take advantage of any of the mitigating conditions at this time. Significant delinquent debt attributable to an applicant that is neither extenuated nor mitigated by good-faith resolution raises implicit security risks over the potential for needed funds and recurrent judgment lapses. The government does not have to wait until an individual mishandles or fails to safeguard classified information before it can make an unfavorable security clearance decision. Cf. Adams v. Laird, 420 F.2d 230, 238-39 (DC Cir. 19969), cert. denied, 397 U.S. 1039 (1970).

In Applicant's case, neither extenuation nor mitigation is demonstrated sufficiently to enable him to invoke either MC 3 (The conditions that resulted in the behavior were largely beyond the person's control (e.g., loss of employment, a business downturn, unexpected medical emergency, or a death, divorce or separation)) or MC 6 (The individual initiated a good-faith effort to repay overdue creditors) of the Guideline, based on either his financial circumstances in 1997 to 1999, or his repayment efforts after he had returned to full-time employment. While Applicant's recent payments of two of his smaller creditors and executed payment plans covering all but one of his remaining creditors are encouraging, his plan commitments are still relatively untested and lack sufficient payment seasoning to facilitate safe predictive judgments about his ability to follow through with his plans.

Taking into account all of the circumstances surrounding Applicant's debt accumulations and repayment history, Applicant fails to mitigate the Government's security concerns at this time. Unfavorable conclusions warrant, accordingly, with respect to subparagraphs 1.a through 1.e. and 1.h of the allegations governed by the Adjudicative Guidelines pertinent to Guideline F. Through payment of his debts covered by subparagraphs 1.f and 1.g, Applicant mitigates security concerns associated with these two debts.

In reaching my decision, I have considered the evidence as a whole, including each of the E: 2.2 factors enumerated in the Adjudicative Guidelines of the Directive.

In reviewing the allegations of the SOR and ensuing conclusions reached in the context of the FINDINGS OF FACT, CONCLUSIONS, CONDITIONS, and the factors listed above, this Administrative Judge makes the following FORMAL FINDINGS:

GUIDELINE F (FINANCIAL): AGAINST APPLICANT

Sub-para. 1.a: AGAINST APPLICANT

Sub-para. 1.b: AGAINST APPLICANT

Sub-para. 1.c: AGAINST APPLICANT

Sub-para. 1.d: AGAINST APPLICANT

Sub-para. 1.e: AGAINST APPLICANT

Sub-para. 1.f: FOR APPLICANT

Sub-para. 1.g: FOR APPLICANT

Sub-para. 1.h: AGAINST APPLICANT

GUIDELINE H (DRUGS): FOR APPLICANT

Sub-para. 2.a: FOR APPLICANT

Sub-para. 2.b: FOR APPLICANT

Sub-para. 2.c: FOR APPLICANT

Sub-para. 2.d: FOR APPLICANT

Sub-para. 2.e: FOR APPLICANT

GUIDELINE J (CRIMINAL CONDUCT): FOR APPLICANT

Sub-para. 3.a: FOR APPLICANT

GUIDELINE E (PERSONAL CONDUCT): AGAINST APPLICANT

Sub-para. 4.a: AGAINST APPLICANT

Sub-para. 4.b: AGAINST APPLICANT

Sub-para. 4.c: AGAINST 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 Applicant's security clearance. Clearance is denied.