Date: December 30, 1996

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In Re:

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

Applicant for Security Clearance

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DOHA Case No. 96-0386

DECISION OF ADMINISTRATIVE JUDGE

ROBERT R. GALES

APPEARANCES

FOR THE GOVERNMENT FOR THE APPLICANT

Carla Conover, Esquire

Department Counsel

Pro se

STATEMENT OF CASE

On May 30, 1996, the Defense Office of Hearings and Appeals (DOHA), 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 Personnel Security Clearance Review Program" (Directive), dated January 2, 1992, as amended and modified, 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 a clearance should be granted, continued, denied, or revoked.

A copy of the SOR is attached to this Decision and included herein by reference.

In a sworn written statement, dated June 11, 1996, Applicant responded to the allegations set forth in the SOR, and elected to have his case decided on a written record, in lieu of a hearing. Department Counsel submitted the Government's written case on September 5, 1996. A complete copy of the file of relevant material (FORM)⁽¹⁾ was provided to Applicant, and he was afforded an opportunity to file objections and submit material in refutation, extenuation, or mitigation. He apparently chose not to do so within the prescribed 30-day period. The case was initially assigned to Administrative Judge John G. Metz, Jr., on November 14, 1996, but due to caseload considerations, was subsequently reassigned to, and received by, this Administrative Judge, on December 26, 1996.

FINDINGS OF FACT

Applicant has admitted nearly all of the factual allegations pertaining to drug involvement under Criterion H (subparagraphs 1.a. through 1.f., and 1.h. through 1.m.); alcohol consumption under Criterion G (subparagraphs 2.a. through 2.f., except for a portion of 2.d.); personal conduct under Criterion E (subparagraphs 3.b., 3.c., and 3.e.); and criminal conduct under Criterion J (subparagraph 4.a.). Those admissions are hereby incorporated herein as findings of fact. He denied the remaining subparagraphs, or portions thereof.

After a complete and thorough review of the evidence in the record, and upon due consideration of same, I make the following additional findings of fact:

Applicant is a thirty-five year old male employed by a defense contractor, and he is seeking to retain the SECRET clearance which had previously been granted to him in October 1989. He had also previously been granted a TOP SECRET clearance in April 1984, July 1989, and again in June 1993.

Applicant has been a poly-substance abuser whose choice of substances has been primarily marijuana and crack cocaine, but who has also abused a variety of other illegal substances.⁽²⁾ He first experimented with hashish during the summer of 1978, while residing with his family overseas, and continued using it about one time each weekend, until about July 1979. His last such use occurred in July 1979, and there is no evidence to rebut his contention that he has abstained since that time.

As Applicant phased out his hashish abuse, he commenced abusing marijuana,⁽³⁾ initially due to peer pressure, during the summer of 1979. From that initial exposure, to about April 1995, his use varied from one time every six weeks to several "joints" on a daily basis. In April 1995, and continuing until December 1995, Applicant abstained. He resumed his abuse of marijuana briefly in January 1996, and then it ceased. There is no evidence to rebut his contention that he has abstained since that time.

During the mid-1980s, Applicant started snorting and smoking cocaine. His frequent abuse of cocaine continued until he was introduced to crack cocaine on New Year's Eve, at the end of 1991, when it tapered off and was succeeded by the newer more potent substance.⁽⁴⁾ After abusing crack cocaine every weekend until June 1992, he eventually became addicted to it and abused crack cocaine on a daily basis until September 1992. Although he managed to briefly abstain in September-October 1992, he resumed its use, and last abused crack cocaine in April or May 1993. Applicant claims that "most of the time" he does not think of cocaine, but admits that it is hard.⁽⁵⁾ This would seem to indicate that there are times when he continues to think about it. Nevertheless, there is no evidence to rebut his contention that he has abstained since April or May 1993.

During a one or two week period in 1980-81, Applicant abused amphetamines identified as "white crosses."⁽⁶⁾ There is no evidence to rebut his contention that he has abstained since that time.

Applicant experimented, on a one-time basis, in 1987-88, with hallucinogenic mushrooms.⁽⁷⁾ There is no evidence to rebut his contention that he has abstained since that time.

During a three week period in 1991, on three occasions, Applicant also experimented with lysergic acid diethylamide (LSD).⁽⁸⁾ There is no evidence to rebut his contention that he has abstained since that time.

Applicant purchased varying quantities of hashish, marijuana, cocaine, and crack cocaine during the periods in which he abused those particular substances. In addition, during his period of crack cocaine abuse, Applicant frequently acted as the "middle man" to facilitate the trafficking and distribution of the substance.⁽⁹⁾ In that position, for his efforts, he sometimes received some of the substance for his own use, delivered the substance to buyers, and periodically collected payments for the substance from those buyers. His most recent involvement in that activity occurred in 1993.

Applicant also consumed alcohol, at times to excess and to the point of intoxication, from about 1974 to at least December 1995. He initially started drinking while in the sixth grade, and generally would share a bottle of wine with about ten other people. Over time, his consumption increased from one time per week to 12 beers per night, six nights per week. Periods of excessive consumption leading to intoxication and blackout were interrupted by periods of abstinence. While his alcohol consumption has diminished, he continues to drink and, on occasion, drive when he has done so.

As a result of his consumption of alcohol, Applicant has been involved in three incidents. In June 1980, and again in March 1984, after having consumed varying quantities of alcohol, he was cited for drinking in public -- the legal characterization for urinating in public. In August 1995, after consuming between eight and ten beers, he drove his automobile into another vehicle, and as a result, lost his driving privileges for one year.

On August 21, 1992, and continuing until August 25, 1992, Applicant underwent inpatient detoxification for a condition diagnosed as psychoactive substance dependence. The three substances identified were daily abuse of crack cocaine, three to six times a week abuse of alcohol, and daily abuse of marijuana and hashish. After being successfully discharged from the program, he was enrolled in an outpatient substance abuse and rehabilitation program on September 14, 1992, for a condition diagnosed as cocaine dependency and cannabis dependency with alcohol use. The outpatient program consisted of eight to nine hours of daily group and individual therapy, and was scheduled to continue for 30 days.

Among the requirements of the program were abstinence and undergoing periodic urinalysis. Applicant declined to take his prescribed Antabuse, and refused to stop smoking or consuming alcohol,⁽¹⁰⁾ and was eventually identified through a positive urinalysis, as having continued abusing cocaine and marijuana, while in the program.⁽¹¹⁾ Applicant admitted having used marijuana during the previous week, but was adamant in denying the use of cocaine. When directed to undergo another urinalysis, he refused to do so, and acknowledged that he was not ready to cease his abuse of marijuana.⁽¹²⁾ Applicant left the program prematurely on October 2, 1992,⁽¹³⁾ and moved in with friends who were marijuana users.⁽¹⁴⁾ As a result of his refusal to comply with program rules, he was discharged from the program,⁽¹⁵⁾ and his prognosis was considered to be poor.

Applicant contended he had followed the failed program up with attendance at meetings of Narcotics Anonymous (NA) for a period of six months, but he has offered no evidence to support his contention.

Applicant acknowledges that he was addicted to cocaine, and has vowed to never use illegal drugs in the future. As far as alcohol use is concerned, however, he denies the existence of a current problem, and intends to continue consuming alcohol in a "responsible" manner.

Applicant completed the privacy section of a PSQ on July 31, 1989,⁽¹⁶⁾ and in response to an inquiry pertaining to ever having been arrested, charged, cited, held, or detained by law enforcement authorities,⁽¹⁷⁾ Applicant responded "no." He certified that his PSQ response was true, complete, and accurate. It was false. He had lied, falsified, omitted, and concealed his true history of arrests, as described above.

Applicant completed the privacy section of an NAQ on March 13, 1995,⁽¹⁸⁾ and in response to an inquiry pertaining to ever having been arrested, charged, cited, held, or detained by law enforcement authorities,⁽¹⁹⁾ Applicant responded "no." He certified that his NAQ response was true, complete, and accurate. It was false. He had lied, falsified, omitted, and concealed his true history of arrests, as described above. Applicant initially defended his response to the fact that he did not consider the incidents of being cited for urinating in public to be arrests of the type referred to in the question.⁽²⁰⁾ However, he subsequently attributed his falsification to a fear of jeopardizing his security clearance and possibly losing his job, and his effort to have consistent response to the question.⁽²¹⁾

Applicant completed the privacy section of a PSQ on April 6, 1984,⁽²²⁾ and in response to an inquiry pertaining to ever having used a variety of illegal substances, including narcotics, depressants, stimulants, hallucinogens, and cannabis,⁽²³⁾ Applicant responded "no." He certified that his PSQ response was true, complete, and accurate. It was false. He had lied, falsified, omitted, and concealed his true history of substance abuse, as described above.

Applicant completed the privacy section of a PSQ on July 31, 1989, and in response to an inquiry pertaining to ever having used a variety of illegal substances, including narcotics, depressants, stimulants, hallucinogens, and cannabis,⁽²⁴⁾ Applicant responded "no." He certified that his PSQ response was true, complete, and accurate. It was false. He had lied, falsified, omitted, and concealed his true history of substance abuse, as described above.

Applicant completed the privacy section of an NAQ on March 13, 1995, and in response to an inquiry pertaining to ever having tried or used a variety of illegal substances, including narcotics, depressants, stimulants, hallucinogens, and cannabis,⁽²⁵⁾ Applicant responded "yes," and added that he had experimented with hashish and marijuana during high school.⁽²⁶⁾ He certified his NAQ responses were true, complete, and accurate. They were false. He had lied, falsified, omitted, and concealed his true history of substance abuse, as described above. Applicant initially defended his action and claimed that his omission of cocaine was unintentional, but acknowledged that he had been struggling with whether or not to include it as a substance abused.⁽²⁷⁾ He believed that he had added another sheet to the NAQ, but was unable to verify that supposed additional entry pertaining to cocaine. However, he subsequently attributed his falsification to a fear of jeopardizing his security clearance and possibly losing his job, and his effort to have consistent response to the question.⁽²⁸⁾

Applicant completed the privacy section of a PSQ on April 6, 1984, and in response to an inquiry pertaining to ever having been involved in the illegal purchase, possession, or sale of such substances,⁽²⁹⁾ Applicant responded "no." He certified that his PSQ response was true, complete, and accurate. It was false. He had lied, falsified, omitted, and concealed his true history of substance abuse, as described above.

Applicant completed the privacy section of a PSQ on July 31, 1989, and in response to an inquiry pertaining to ever having been involved in the illegal purchase, possession, or sale of such substances,⁽³⁰⁾ Applicant responded "no." He certified that his PSQ response was true, complete, and accurate. It was false. He had lied, falsified, omitted, and concealed his true history of substance abuse, as described above.

Applicant completed the privacy section of an NAQ on March 13, 1995, and in response to an inquiry pertaining to ever having been involved in the illegal purchase, possession, or sale of such substances,⁽³¹⁾ Applicant responded "no." He certified that his NAQ response was true, complete, and accurate. It was false. He had lied, falsified, omitted, and concealed his true history of substance abuse, as described above. Applicant initially defended his response and claimed that he did not consider his actions as a "middle man" in drug transactions to constitute trafficking.⁽³²⁾ He offered no explanation for his failure to acknowledge his past drug purchases. However, he subsequently attributed his falsification to a fear of jeopardizing his security clearance and possibly losing his job, and his effort to have consistent response to the question.⁽³³⁾

Applicant completed the privacy section of a PSQ on April 6, 1984, and in response to an inquiry pertaining to alcohol ever resulting in the loss of a job, arrest, or treatment for alcoholism,⁽³⁴⁾ Applicant responded "no." He certified that his PSQ response was true, complete, and accurate. It was false. He had lied, falsified, omitted, and concealed his true history of alcohol abuse, as described above.

Applicant completed the privacy section of a PSQ on July 31, 1989, and in response to an inquiry pertaining to alcohol ever resulting in the loss of a job, arrest, or treatment for alcoholism,⁽³⁵⁾ Applicant responded "no." He certified that his PSQ response was true, complete, and accurate. It was false. He had lied, falsified, omitted, and concealed his true history of alcohol abuse, as described above.

Applicant completed the privacy section of an NAQ on March 13, 1995, and in response to an inquiry pertaining to alcohol ever resulting in the loss of a job, arrest, or treatment for alcoholism,⁽³⁶⁾ Applicant responded "no." He certified that his NAQ response was true, complete, and accurate. It was false. He had lied, falsified, omitted, and concealed his true history of alcohol abuse, as described above. Applicant initially defended his response and claimed that he did not consider his detoxification and counseling to have been for his alcohol abuse, but rather for his cocaine dependency.⁽³⁷⁾

On December 19, 1995, Applicant was interviewed by a DIS agent, pertaining to substance abuse, and he admitted that he had used marijuana and hashish in high school and the summer of 1979; that he had used cocaine only in 1992; and that he had purchased only cocaine. He stated that he had used no illegal drugs since he had entered detoxification in September 1992. He certified and swore that his statement was true, complete, and accurate. It was false. He had again lied, falsified, omitted, and concealed his true history of substance abuse, as described above. He subsequently attributed his falsification to a fear of jeopardizing his security clearance and possibly losing his job, and his effort to have consistent responses on the issue.⁽³⁸⁾

On February 21, 1996, Applicant was again interviewed by a DIS agent, pertaining to substance abuse, and he finally admitted that he had previously lied, falsified, omitted, and concealed the true extent of his history of substance abuse, as described above. Applicant gave the same explanations, as described above, for his falsifications.

Applicant has been employed by his current employer since March 1995. He had been fired from his previous employer when he had entered detoxification in August 1992.⁽³⁹⁾ A characterization of his work performance has not been offered into evidence.

POLICIES

Enclosure 2 of the Directive sets forth adjudicative guidelines which must be considered in the evaluation of security suitability. In addition to brief introductory explanations for each guideline, the adjudicative guidelines are divided into those that may be considered in deciding whether to deny or revoke an individual's eligibility for access to classified information (Disqualifying Factors) and those that may be considered in deciding whether to grant an individual's eligibility for access to classified information (Mitigating Factors). An Administrative Judge need not view the adjudicative guidelines as inflexible ironclad rules of law. Instead, acknowledging the complexities of human behavior, these guidelines, when applied in conjunction with the factors set forth in the Adjudicative Process provision -- an expansion of the factors set forth in Section F.3. of the Directive, are intended to assist the Administrative Judge in reaching fair and impartial common sense decisions.

Because the entire process is a conscientious scrutiny of a number of variables known as the "whole person concept," all available, reliable information about the person, past and present, favorable and unfavorable, should be considered to make a meaningful decision. The Adjudicative Process factors which an Administrative Judge should consider are: (1) the nature, extent, and seriousness of the conduct; (2) the circumstances surrounding the conduct, to include knowledgeable participation; (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 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.

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:

[Drug Involvement - Criterion H]: 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.

Drugs are defined as mood and behavior altering:

(a) 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) and

(b) inhalants and other similar substances.

Drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.

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

(1) any drug abuse (see above definition);

(2) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution;

(3) failure to successfully complete a drug treatment program prescribed by a credentialed medical professional. Current drug involvement, especially following the granting of a security clearance, or an expressed intent not to discontinue use, will normally result in an unfavorable determination.

Conditions that could mitigate security concerns include:

(1) the drug involvement was not recent;

(3) a demonstrated intent not to abuse any drugs in the future;

[Alcohol Consumption - Criterion G]: 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.

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, fighting, child or spouse abuse, or other criminal incidents related to alcohol use;

(3) diagnosis by a credentialed medical professional⁽⁴⁰⁾ of alcohol abuse or alcohol dependence;

(4) habitual or binge consumption of alcohol to the point of impaired judgment;

(5) consumption of alcohol, subsequent to a diagnosis of alcoholism by a credentialed medical professional and following completion of an alcohol rehabilitation program

Conditions that could mitigate security concerns include:

None apply.

[Personal Conduct - Criterion E]: Conduct involving questionable judgment, untrustworthiness, unreliability, 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 also include:

(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;

(3) deliberately providing false or misleading information concerning relevant and material matters to an investigator, security official, competent medical authority, or other official representative in connection with a personnel security or trustworthiness determination;

(4) personal conduct or concealment of information that increases an individual's vulnerability to coercion, exploitation or pressure;

(5) a pattern of dishonesty or rule violations;