DATE: February 11, 1998

SSN:

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

RICHARD A. CEFOLA

APPEARANCES

FOR GOVERNMENT

Martin H. Mogul, Department Counsel

FOR APPLICANT

Pro Se

STATEMENT OF THE CASE

On June 20, 1997, 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 the Applicant, which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the interests of national security to grant or continue a security clearance for the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked.

The SOR is attached.

Applicant filed an Answer to the SOR on or about August 19, 1997.

Applicant elected to have this case determined on a written record in lieu of a hearing. Department Counsel submitted the Government's File of Relevant Material (FORM) on October 21, 1997. Applicant was instructed to submit objections or information in rebuttal, extenuation or mitigation within 30 days of receipt of the FORM. Applicant received her copy on November 24, 1997, and submitted nothing in reply. The case was received by the undersigned for resolution on February 11, 1998. The issue raised here is whether the Applicant's admitted drug usage militates against the granting of a security clearance.

FINDINGS OF FACT

The following Findings of Fact are based on Applicant's Answer to the SOR, and the File of Relevant Material. The Applicant is a 37 year old systems programer, and is employed by a defense contractor who seeks a security clearance on behalf of the Applicant.

Criterion H - Drug Involvement

1.a.~1.e. The Applicant used Lysergic Acid Diethylamide (LSD), also known as acid, "one to two times a year" from about 1993 until at least the date of her March 27, 1997, Security Clearance Application (Government Exhibit (GX) 5 at page 1). In her Application, she listed her use of acid as being from 1993 to present (GX 4 at page 7). More recently, in a sworn statement executed by the Applicant on May 22, 1997, she averred "I might continue using illegal drugs specifically acid . . . from time to time when I am with friends" (GX 5 at page 2).

The Applicant used the illegal drug Ecstasy, "in excess of the four times . . . [she] listed on . . . [her] paperwork [her Application]" from about 1993 until at least the date of her March 27, 1997, Security Clearance Application (GX 5 at page 1). Again, in her Application, she listed her use of Ecstacy as being from 1993 to present (GX 4 at page 7). Also, again in her May 22, 1997, sworn statement, she averred, "I might continue using illegal drugs specifically . . . ecstacy from time to time when I am with friends" (GX 5 at page 2).

The Applicant also used marijuana on two occasions from about 1993 until at least the date of her March 27, 1997, Security Clearance Application (GX 5 at page 1).

Mitigation

The Applicant offers little in the way of mitigation.

POLICIES

Enclosure 2 and Section F.3. of the 1992 Directive set forth both policy factors, and conditions that could raise or mitigate a security concern; which must be given binding consideration in making security clearance determinations. The conditions should be followed in every case according to the pertinent criterion, however, the conditions are neither automatically determinative of the decision in any case, nor can they supersede the Administrative Judge's reliance on his own common sense. Because each security clearance case presents its own unique facts and circumstances, it should not be assumed that these conditions exhaust the realm of human experience, or apply equally in every case. Conditions most pertinent to evaluation of this case are:

Drug Involvement

Condition that could raise a security concern:

(1) any drug abuse (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 mitigate security concerns:

none

As set forth in the Directive,"[each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria and adjudication policy in enclosure 2, including as appropriate:

a. Nature and seriousness of the conduct and surrounding circumstances.

b. Frequency and recency of the conduct.

c. Age of the applicant.

d. Motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequence involved.

e. Absence or presence of rehabilitation.

f. Probability that circumstances or conduct will continue or recur in the future.

The Administrative Judge, however, can only draw those inferences or conclusions that have a reasonable and logical basis in the evidence of record. The Judge cannot draw inferences or conclusions based on evidence which is speculative or conjectural in nature.

The Government must make out a prima facie case under Criterion H (drug involvement) which establishes doubt about a person's judgment, reliability and trustworthiness. While a rational connection, or nexus, must be shown between an applicant's adverse conduct and her ability to effectively safeguard classified information, with respect to sufficiency of proof of a rational connection, objective or direct evidence is not required.

Then, the Applicant must remove that doubt with substantial evidence in refutation, explanation, mitigation or extenuation, which demonstrates that the past adverse conduct, is unlikely to be repeated, and that the Applicant presently qualifies for a security clearance.

The improper or illegal involvement with drugs, raises questions regarding an individual's willingness or ability to protect classified information. The Government must be able to place a high degree of confidence in a security clearance holder to abide by all security rules and regulations at all times and in all places. If an applicant has demonstrated a lack of respect for the law in her private affairs, then there exists the possibility that an applicant may demonstrate the same attitude towards security rules and regulations.

CONCLUSIONS

The Applicant used LSD, the illegal drug Ecstasy, and marijuana from about 1993 until at least March of 1997 when she executed her Application. She thus last used illegal substances only a little more than seven months ago (the date of the Government's FORM ends the time line used for adjudication purposes in this case). In addition, in her May 22, 1997, sworn statement, she still avers that "might" use both LSD and Ecstasy in the future. Based on the foregoing, I must conclude that the Applicant's fairly recent and potential drug abuse is of present security significance.

Considering all the evidence, the Applicant has not rebutted the Government's prima facie case regarding her drug involvement. The Applicant has thus not met the mitigating conditions of Criterion H, and of Section F.3. of the Directive. Accordingly, she has not met her ultimate burden of persuasion under Criterion H.

FORMAL FINDINGS

Formal Findings required by paragraph 25 of Enclosure 3 of the Directive are:

Paragraph 1: AGAINST THE APPLICANT

a. Against the Applicant.

b. Against the Applicant.

c. Against the Applicant.

d. Against the Applicant.

e. Against the Applicant.

Factual support and reasons for the foregoing are set forth in FINDINGS OF FACT and CONCLUSIONS, supra.

DECISION

In light of the circumstances presented by the record in this case, it is not clearly consistent with the interests of national security to grant or continue a security clearance for the Applicant.

Richard A. Cefola

Administrative Judge