DATE: January 29, 2007

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

MARY E. HENRY

APPEARANCES

FOR GOVERNMENT

Daniel F. Crowley, Esq., Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant smoked marijuana from around age 12 until a young adult. He stopped smoking marijuana in the early 1980s. In 2003, he again smoked marijuana on one occasion, and purchased it on one occasion, which lead to his arrest and conviction on the charge of possession of marijuana. He has not used marijuana for three years and does not intend to do so. He mitigated the government's concerns regarding his drug involvement. Although he did not intentionally falsify his security clearance application, he intentionally falsify three of his answers to interrogatories. He has not mitigated the government's concerns regarding his personal conduct. Clearance is denied.

On September 25, 2006, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant, pursuant to 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 Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified. The SOR 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. Specifically, the SOR sets forth security concerns arising under Guideline H (Drug Involvement) and Guideline E (Personal Conduct) of the revised Adjudicative Guidelines (AG) issued on December 29, 2005 and implemented by the Department of Defense, effective September 1, 2006. DOHA recommended the case be referred to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked. On October 11, 2006, Applicant submitted a notarized response to the allegations. He requested a hearing.

This matter was assigned to me on November 17, 2006. DOHA issued a notice of hearing on November 21, 2006, and I held a hearing on December 19, 2006. Three government exhibits (GE), 1 through 3, were marked and admitted into evidence. Applicant submitted four documents, which were marked and admitted into evidence as applicant exhibits (AE), A through D. Applicant and one witness for the government testified. The hearing transcript (Tr.) was received on December 29, 2006.

Applicant admitted the allegations under Guideline H, subparagraph 1.b and Guideline E, subparagraph 2.d of the SOR. ⁽¹⁾ Those admissions are incorporated as findings of fact. He denied the remaining allegations. ⁽²⁾ After a complete review of the evidence in the record and upon due consideration, I make the following findings of fact.

Applicant is a 48 year old contract employee for the United States Department of State. He has worked under this contract for almost two years. He completed a security clearance application (SF 86) in March 2005. ⁽³⁾

Applicant is a high school graduate. He is single and the father of four children, ages 30, 16, 11, and 9. He is engaged to the mother of his two youngest children. He provides financial support for his three underage children and raised his oldest son, who is now in the United States Navy. ⁽⁴⁾

Drug Involvement

The security clearance investigator testified for the government and verified his written report of his December 8, 2005 interview with Applicant and Applicant's statements to him. His written report has been admitted into evidence. The investigator and Applicant discussed Applicant's 2003 drug arrest, which Applicant had listed on his SF-86. During the interview, Applicant voluntarily provided information about his prior drug use, 22003 arrest, and drug program participation to the investigator. ⁽⁵⁾

When a junior high school student, Applicant began smoking marijuana with friends once or twice every two weeks. He continued to smoke marijuana throughout high school, often several times a week. After high school, he smoked marijuana for awhile, and occasionally purchased it. He stopped smoking marijuana in the early 1980s, because he had a young child he was raising on his own. He did not want his child to see him smoking marijuana, and he had "responsibilities", meaning parental responsibilities. ⁽⁶⁾

In 2000 or 2001, his doctor advised him that he had high blood pressure (HBP). In October 2003, Applicant decided that he would start smoking marijuana again to relax, believing that this would help reduce his HBP. He walked five blocks to a neighborhood corner and purchased $5 worth of marijuana. On his way home, the police stopped him, arrested him, charged him with possession of marijuana, booked him, and then released him. The court found him guilty of possession of marijuana, and sentenced him to 40 hours of community service, six months probation, six months of outpatient drug treatment, and fined him $150. He completed the requirements of his sentence. ⁽⁷⁾ He has not been arrested any other time. ⁽⁸⁾ He denies smoking marijuana since his arrest.

At the direction of the court, he attended Narcotics Anonymous, a drug rehabilitation program selected by the court. In this program, he watched films about drugs with others in the program. Program attendees then told stories about people they knew with serious drug problems. Program Staff tested his urine on each visit, which was twice a week initially then once a week for six months. He failed the first urine test because he smoked one marijuana cigarette before his arrest. He passed the remaining urine tests while in the program. He did not receive individual counseling in this program. He has never been referred to a drug treatment program by a physician, nor has he ever participated in any other drug program. He has never had financial or employment problems connected to his marijuana use. He never sold marijuana or any other drug, nor does he intend to use it in the future. ⁽⁹⁾

Personal Conduct

On March 7, 2005, Applicant completed his security clearance application. Although he admitted a police record for alcohol/drug offenses and listed his 2003 arrest for possession of marijuana, he answered "no" to the following question on his SF-86: ⁽¹⁰⁾

Question 27. Your Use of Illegal Drugs and Drug Activity - Illegal Use of Drugs

Since the age of 16 or in the last 7 years, which ever 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 the SOR, Applicant stated that he answered "no" because he had not smoked the marijuana he bought. At the hearing, he admitted again that he had smoked a "white boy", a marijuana cigarette, the same day he was arrested, but prior to his arrest. He then stated that initially he passed on answering this question, then when he returned to it, he misread it. He also expected that someone at his job would be reviewing his answers before the papers were forwarded. He acknowledges that he made some mistakes in answering the questions. ⁽¹¹⁾

The government forwarded Applicant a set of interrogatories to answer in August 2006. The interrogatories asked if he had used any narcotic, depressant, stimulant, hallucinogenic (including LSD or PCP) and or any Cannabis (to include marijuana and hashish) since March 1998. He answered "no", and said he stopped using illegal substances more than five years ago. At the hearing, he could not explain why he answered "no" to the interrogatory question about his marijuana use, although he acknowledged that his answer was a mistake. He guessed that he said "no" because if he said "yes", they (he was not specific as to whom he meant) would probably think he was using LSD or PCP. He denied being a user of marijuana because he did not smoke marijuana daily or on a regular basis. He again stated that he had stopped smoking marijuana in the 1980s, as he had the responsibility of a child. He has not used marijuana since his arrest because he is responsible for two school age children, and has "no room for doing drugs". ⁽¹²⁾

The interrogatories also asked if he had completed or was he currently participating in a recognized alcohol or drug rehabilitation support group. He answered no because he was not currently in a drug treatment program. When asked at the hearing if he had participated in any kind of a drug rehabilitation program, he again said "no". Upon further questioning, he acknowledged that he considered the court drug program (Narcotics Anonymous) a drug rehabilitation program. Thus, he admitted that he should have answered "yes" to the question. ⁽¹³⁾

Applicant's current employer provided highly favorable recommendations on his behalf. He is viewed as efficient, diligent and extremely competent. He has excellent interpersonal skills, attendance, administrative skills, and customer service skills. The record does not contain any unfavorable information regarding his employment. ⁽¹⁴⁾

The revised Adjudicative Guidelines set forth disqualifying conditions (DC) and mitigating conditions (MC) applicable to each specific guideline. An administrative judge need not view the revised adjudicative guidelines as inflexible ironclad rules of law. Instead, acknowledging the complexities of human behavior, these guidelines, are intended to assist the administrative judge in reaching fair and impartial common sense decisions. Although the presence or absence of a particular condition or factor for or against clearance is not outcome determinative, the revised AG should be followed whenever a case can be measured against this policy guidance. In addition, each security clearance decision must be based on the relevant and material facts and circumstances, the whole-person concept, and the factors listed in the Directive. Specifically, these are: (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; and (9) the likelihood of continuation or recurrence. ⁽¹⁵⁾

The sole purpose of a security clearance determination is to decide if it is clearly consistent with the national interest to grant or continue a security clearance for an applicant. ⁽¹⁶⁾ The government has the burden of proving controverted facts. ⁽¹⁷⁾ The burden of proof is something less than a preponderance of the evidence. ⁽¹⁸⁾ Once the government has met its burden, the burden shifts to the applicant to present evidence of refutation, extenuation, or mitigation to overcome the case against him. ⁽¹⁹⁾ Additionally, an applicant has the ultimate burden of persuasion to obtain a favorable clearance decision. ⁽²⁰⁾

No one has a right to a security clearance, ⁽²¹⁾ and "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." ⁽²²⁾ Any reasonable doubt about whether an applicant should be allowed access to sensitive information must be resolved in favor of protecting such sensitive information. ⁽²³⁾ Section 7 of Executive Order 10865 specifically provides industrial security clearance decisions shall be "in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned." The decision to deny an individual a security clearance is not necessarily a determination as to the allegiance, loyalty, and patriotism of an applicant. ⁽²⁴⁾ 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.

Upon consideration of all the facts in evidence, and after application of all appropriate adjudicative factors, I conclude the following with respect to the allegations set forth in the SOR:

Guideline H - Drug Involvement

Use of an illegal drug or misuse of a prescription drug can raise questions about an individual's reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person's ability or willingness to comply with laws, rules, and regulations. ⁽²⁵⁾ (AG ¶ 24) Applicant used marijuana on a regular basis in the 1970s until the early 1980s. Although he had abstained from smoking marijuana for many years, in October 2003, he again smoked marijuana on one occasion and purchased it for use on one occasion. Subsequent to his arrest and court sentence for possession of marijuana, he tested positive for marijuana in his first drug test while attending Narcotics Anonymous. Based on the evidence of record, DC ¶ 25 (a) any drug abuse; DC ¶ 25 (b ) testing positive for illegal drug use; and DC ¶ 25 (c) Illegal drug possession, including cultivation, processing, manufacture, purchase sale, or distribution apply.

As a young teenager, Applicant began sporadically smoking marijuana. His use of marijuana increased some while a high school student and as a very young adult. As he matured and assumed the responsibilities of being a single parent for his oldest son, he decided to refrain from smoking marijuana, which he did for approximately 20 years. Under a mistaken belief that marijuana would help reduce his HBP because it relaxed him, Applicant smoked it once and purchased it once with the intent to smoke it. His inappropriate decision to purchase marijuana caused his arrest, resulted in a finding of guilt by the court on the possession of a $5 bag of marijuana charge, and a sentence which included participation in a drug rehabilitation program. Outside of these two incidents in 2003, Applicant has abstained from smoking marijuana. It is high unlikely that he will smoke it in the future, particularly since his last purchase lead directly to a first time criminal arrest. He actively participated in the drug rehabilitation program selected by the court, and except for his first drug test, his weekly or twice weekly drug test results were negative. Not only has it been over three years since he smoked marijuana, he has demonstrated a deep understanding of the negative impact this type of conduct has upon his family and career, and smoking marijuana does not help his HBP. He is financially responsible and an excellent employee. His attitude and understanding reflect that he is reliable and trustworthy, factors which are supported by his employer. MC ¶ 26 (a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or good judgment and (b) (3) a demonstrated intent not to abuse any drugs in the future, such as: ...(3) and appropriate period of abstinence apply. Applicant has mitigated the government's concerns about his drug involvement.

Guideline E - Personal Conduct

Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process. (AG ¶ 15) Under DC ¶ 16 (a), the government established that Applicant omitted material facts from his SF-86 when he answered Question 27. He denies, however, that he deliberately falsified his answer to this question. When a falsification allegation is controverted, the government has the burden of proving it. Proof of an omission, standing alone, does not establish or prove an applicant's intent or state of mind when the omission occurred. An administrative judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning an applicant's intent or state of mind at the time the omission occurred. ⁽²⁶⁾ For DC ¶ 16 (a) The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire . . . and DC ¶16 (b) Deliberately providing false or misleading information concerning relevant and material matters to an investigator . . . to apply, the government must establish that Applicant's omission, concealment or falsification in his answers was deliberate.

In his SF-86, Applicant advised that he had been arrested, charged and convicted of possession of marijuana in 2003. Despite his arrest, he denied using marijuana. When he met with the investigator in December 2005, he voluntarily and candidly provided the facts which lead to his arrest, outlined the sentence he received at court after being found guilty of possession of marijuana, and admitted that he failed his first drug test in his drug rehabilitation program because he smoked marijuana prior to his arrest. Applicant's voluntary statements are the sole source of the government's knowledge about all the facts surrounding his 2003 arrest, conviction and drug treatment. Without his voluntary admissions, the government would have no knowledge about his drug use in 2003 and his failed drug test when he first started the court selected drug rehabilitation program. Given the voluntariness of his statements to the investigator and his belief that because he smoked marijuana on one occasion and purchased it on one occasion, he is not a drug user, Applicant had no intent to hide his drug use, arrest or treatment. The evidence of record fails to establish any other drug use between 1998 and March 5, 2005, the date he completed his SF-86. MC ¶ 17(a)(1) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts applies. The government has not established that he intentionally falsified his answer to Question 27.

Concerning drug treatment, Applicant responded "no" to this interrogatory question, stating that he misread the question. At the hearing, he also answered "no" to my initial inquiry about drug treatment programs because he has never voluntarily admitted himself for drug treatment nor has he been referred for treatment by a medical professional. He considered his attendance at Narcotics Anonymous a consequence of his arrest, and as such denied that he was in a drug rehabilitation program. When questioned at the hearing, he finally acknowledged that Narcotics Anonymous was a drug treatment program. At the time he answered the interrogatories, he knew that Narcotics anonymous was a drug rehabilitation program, even though he refused to acknowledge it as such. Thus, he did intentionally falsify his answer to this interrogatory. Allegation 2.d. is found against Applicant.

Despite his previous admissions about his drug arrest, drug use, and drug treatment to the investigator in December 2005, Applicant answered "no" to the 2006 interrogatory questions related to drug use and drug treatment. He has provided differing explanations or guesses, not a reasonable explanation, for his negative answers. His inconsistent explanations for his "no" answers raise concerns about his trustworthiness to safeguard classified information under AG ¶ 16(b). None of the mitigating conditions listed in AG ¶ 17 (a)-(g) apply to allegations 2.b, 2.c and 2.d.

Whole person analysis

Protection of our national security is of paramount concern. Security clearance decisions are not intended to assign guilt or to impose further punishment for past transgressions. Rather, the objective of the adjudicative process is the fair-minded, commonsense assessment of a person's trustworthiness and fitness for access to classified information. Thus, in reaching this decision, I have considered the whole person concept in evaluating Appellant's risk and vulnerability in protecting our national interests.

As an adult, Applicant has maintained regular employment and raised his oldest son as a single parent. Although he has never married, he has three younger children for whom he has provided regular financial support and guidance. His finances are solid and his long-term work record fairly steady. His current employer praises his work ethic, his reliability, and his dependability. He is an asset to his office, because he has developed effective work relationships with co-workers, managers and contractors and is efficient.

Although he voluntarily provided the same information to the investigator about his 2003 arrest, conviction and drug use that he provided at the hearing, he failed to acknowledge his drug use in his answers to interrogatories for unexplainable reasons. His explanation that he resumed use of marijuana to reduce his HBP is not plausible or reasonable. Despite the voluntariness of his original admissions and his acknowledgment at the hearing that his answers were wrong, his inconsistent explanations in his answers and at the hearing for his incorrect answers raises concerns that he is attempting to hide the extent of his actual use of marijuana between the 1980s and 2003. Although he intends not to use drugs in the future, his inconsistent statements about his past drug use weight against granting a clearance. He has not mitigated the government's security concerns. Accordingly, for the reasons stated, I find that it is not clearly consistent with the national interest to grant a security clearance to Applicant.

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:

SOR ¶ 1-Guideline H : FOR APPLICANT

Subparagraphs a-b: For Applicant

SOR ¶ 2-Guideline E: AGAINST APPLICANT

Subparagraph a: For Applicant

Subparagraphs b-d: Against Applicant

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 a security clearance for Applicant. Clearance is denied.

1. Applicant's response to the SOR, dated March 17, 2006, at 1.

2. Id.

3. GE 1 (Applicant's security clearance application, dated March 5, 2005) at 1-2.

4. Id. at 3-4; GE 3 (Testimonies) at 1; AE D (Statements from fiancee) at 1-2; Tr. at 54.

5. GE 3, supra note 4, at 2; Tr. at 23-27.

6. GE 3, supra note 4, at 2; Tr. at 37, 49, 46, 52, 55.

7. GE 3, supra note 4, at 2; Tr. at 23-24, 37-41, 46, 56.

8. The government did not submit the Federal Bureau of Investigation's criminal arrest record as part of its case, nor the 2003 police arrest report as evidence in this case.

9. GE 3, supra note 4, at 2, Tr. at 40-42.

10. GE 1, supra note 3, at 6.

11. Response to SOR, supra note 1, at 1-2; Tr. at 43, 45-46

12. GE 2 (Applicant's answers to interrogatories propounded by the government) at 2; Tr. at 47-49.

13. GE 2, supra note 12, at 3; Tr. at 50.

14. AE A (Statement, dated December 4, 2006); AE B (Statement, dated August 25, 2005); AE C (E-mail, dated August 24, 2005)

15. Directive, revised Adjudicative Guidelines (AG) ¶2(a)(1)-(9).

16. ISCR Case No. 96-0277 at 2 (App. Bd., July 11, 1997).

17. ISCR Case No. 97-0016 at 3 (App. Bd., December 31, 1997); Directive, Enclosure 3, ¶ E3.1.14.

18. Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).

19. ISCR Case No. 94-1075 at 3-4 (App. Bd., August 10, 1995); Directive, Enclosure 3, ¶ E3.1.15.

20. ISCR Case No. 93-1390 at 7-8 (App. Bd. Decision and Reversal Order, January 27, 1995); Directive, Enclosure 3, ¶ E3.1.15.

21. Egan, 484 U.S. at 531.

22. Id.

23. Id.; Directive, revised AG ¶ 2(b).

24. Executive Order No. 10865 § 7.

25. Drug abuse is defined in AG ¶ 24(a)-(b) to include drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970.

26. See ISCR Case No. 03-09483 at 4 (App. Bd. Nov.17, 2004)(explaining holding in ISCR Case No. 02-23133 at 5 (App. Bd. Jun. 9, 2004)).