DATE: January 5, 1999

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

RICHARD A. CEFOLA

APPEARANCES

FOR GOVERNMENT

Melvin A. Howry, Esquire, Department Counsel

FOR APPLICANT

Pro Se

STATEMENT OF THE CASE

On June 26, 1998, 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 the 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 the Applicant and recommended referral to an Administrative Judge to determine whether a clearance should be denied or revoked.

Applicant filed an Answer to the SOR on July 7, 1998.

The case was received by the undersigned on November 19, 1998. A notice of hearing was issued on November 20, 1998, and the case was heard on December 16, 1998. The Government submitted documentary evidence. Testimony was also taken from the Applicant. The transcript was received on December 24, 1998. The issues raised here are whether the Applicant's drug involvement, and related personal and criminal conduct militate against the granting of a security clearance.

FINDINGS OF FACT

The following Findings of Fact are based on Applicant's Answer to the SOR, the documents and the live testimony. The Applicant is 46 years of age, has the equivalent of a high school education, and is employed by a defense contractor, who seeks a secret security clearance on behalf of the Applicant.

Criterion H - Drug Involvement

1.a.~1.c., and 1.q. The Applicant used marijuana, with varying frequency, from about 1967 until his last usage in December of 1997 (Government Exhibit (GX) 2 at page 1). He used marijuana "sporadically" from 1967 to 1979 (Transcript (TR) at page 38 lines 9~12, and GX 2 at page 1). From 1979 to 1988, the Applicant did not use marijuana "at all" (TR at page 38 lines 11~15). In a July 21, 1982, sworn statement, the Applicant averred that he would not use drugs in the future (TR at page 43 line 22 to page 44 line 14, and GX 7). However, 12 years later in 1994, he used the drug twice, and next used it in December of 1997, his last usage, which was after having been granted a security clearance in March of 1996 (TR at page 38 lines 9~20). The Applicant also "purchased marijuana on three occasions. Once was in 1975 and the other two occasions were in 1994" (TR at page 38 lines 18~20).

1.d.~1.i. The Applicant used three prescription drugs without having a prescription: Tuinal, Nembutal, and Seconal (GX 4 at page 1). He used Tuinal twice, once in 1978 and again in 1979 (TR at page 39 lines 22~23). He also purchased the drug in 1979, without a prescription (TR at page 39 line 25 to page 40 line 2). He "used Nembutal twice in 1978" (TR at page 40 line 4), and "Seconal approximately six times from 1969 to 1977" (TR at page 40 lines 10~11). The Applicant also "purchased the drug Seconal about four times from 1974 to 1977," without having a prescription (TR at page 40 lines 13~14).

1.j.~1.p. The Applicant has seven drug related arrests from December of 1970 to March of 1979 (GXs 8 and 9). There were a total of four convictions: two convictions as a result of his improper possession and use of Seconal (TR at page 40 line 16 to page 41 line 19), and two other convictions as a result of his improper possession and use of Tuinal (TR at page 43 lines 2~21).

Criterion E - Personal Conduct & Criterion J - Criminal Conduct

2.a. In answering question 15.a on his February 1986 Personnel Security Questionnaire (PSQ), the Applicant admitted to illegal use of drugs "many years ago as a young adult" (GX 6 at page 2). This was a truthful response to the question, as he had last used drugs nine years ago when he was 27 years of age (TR at page 45 line 15 to page 46 line 11).

2.b. & 3.a. In answering question 24.a. on his April 1996 Questionnaire for National Security Positions (Standard Form 86), the Applicant knowingly and wilfully failed to disclose his marijuana use in 1994 (TR at page 46 line 12 to page 48 line 13, at page 53 line 25 to page 56 line 10, and GX 1 at page 10). This wilful falsification violated the provisions of 18 U.S.C. Section 1001.

2.c. In answering question 24.b. on his April 1996 Questionnaire for National Security Positions (Standard Form 86), the Applicant denied that he used a controlled substance while possessing a security clearance (GX 1 at page 10). This was a truthful response to the question, although he used marijuana twice in 1994, he was not employed by a defense contractor at the time (TR at page 49 lines 2~14, at page 53 line 25 to page 56 line 10, and GX 1 at page 4).

2.d. & 3.a. In a sworn statement executed by the Applicant on March 4, 1998, the Applicant knowingly and wilfully failed to disclose his marijuana use subsequent to 1979 as set forth in subparagraphs 1.a.~1.c., above (TR at page 49 to page 50 line 13, and GX 4 at page 1). This wilful falsification also violated the provisions of 18 U.S.C. Section 1001.

Criterion J - Criminal Conduct

3.b. The Applicant was arrested in July of 1995, and subsequently found guilty of Theft of Property (GX 5 at pages 2~3). He avers that he inadvertently walked out of a store without paying for "$3 worth of drill bits" (TR at page 50 line 23 to page 51 line 17).

3.c. The Applicant had also been arrested in August of 1994, and subsequently convicted of Indecent Exposure (GX 5 at pages 1~2). He avers "I didn't know that at the time my fly was open and I was exposed" (TR at page 51 line18 to page 52 line 18).

Mitigation

The Applicant offers extensive character references (Applicant's Exhibit (AppX) B), and avers credibly that he has no intention of future drug abuse (TR at page 74 lines 10~20).

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

Conditions 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);

(2) illegal drug possession. . .purchase . . . ;

Conditions that could mitigate security concerns:

(2) the drug involvement was an isolated or infrequent event;

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

Personal Conduct

Conditions that could raise a security concern:

(2) the deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire . . . or similar form used to conduct investigations . . . ;

(3) deliberately providing false or misleading information concerning relevant and material matters to an investigator . . . in connection with a personnel security or trustworthiness determination;

Conditions that could mitigate security concerns:

None.

Criminal Conduct

Conditions that could raise a security concern:

(1) any criminal conduct, regardless of whether the person was formally charged;

(2) a single serious crime or multiple lesser offenses.

Conditions that could mitigate security concerns:

None.

As set forth in the Directive,"[e]ach 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 case under Criteria H (drug involvement), E (personal conduct), and J (criminal conduct); 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 his 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. Personal conduct is conduct involving questionable judgment, untrustworthiness, unreliability, or unwillingness to comply with rules and regulations; and criminal conduct also creates doubt about a person's judgment, reliability and trustworthiness. 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 his private affairs, then there exists the possibility that an applicant may demonstrate the same attitude towards security rules and regulations.

CONCLUSIONS

Considering first the Applicant's drug involvement, in the 1990's, he has used marijuana only three times, twice in 1994 and once again in 1997. This sporadic drug involvement was infrequent at best. He has also convinced the undersigned that he does not intend any future drug involvement. He has thus mitigated the Government's security concerns as to this Criterion. I must therefore conclude that the Applicant's fairly isolated drug involvement during the last eight years is not of present security significance.

The same can not be said of the Applicant's wilful falsification that is alleged under personal conduct, and the related criminal conduct. I conclude that they are of present security significance. The Applicant was clearly less than candid with the Government about his past drug involvement on his April 1996 Questionnaire for National Security Positions, SOR subparagraphs 2.b. (GX 1 at page 10). Furthermore, he continued this falsehood in his March 4, 1998, sworn statement, SOR subparagraphs 2.d. (GX 4 at page 1). I also conclude that these repeated falsehoods violate 18 U.S.C. Section 1001.

Considering all the evidence, the Applicant has not rebutted the Government's case regarding his personal conduct and related criminal conduct. The Applicant has thus not met the mitigating conditions of Criteria E and J, and of Section F.3. of the Directive. Accordingly, he has not met his ultimate burden of persuasion under Criteria E and J.

FORMAL FINDINGS

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

Paragraph 1: FOR THE APPLICANT

a. For the Applicant.

b. For the Applicant.

c. For the Applicant.

d. For the Applicant.

e. For the Applicant.

f. For the Applicant.

g. For the Applicant.

h. For the Applicant.

i. For the Applicant.

j. For the Applicant.

d. For the Applicant.

k. For the Applicant.

l. For the Applicant.

m. For the Applicant.

n. For the Applicant.

o. For the Applicant.

p. For the Applicant.

q. For the Applicant.

Paragraph 2: AGAINST THE APPLICANT

a. For the Applicant.

b. Against the Applicant.

c. For the Applicant.

d. Against the Applicant.

Paragraph 3: AGAINST THE APPLICANT

a. Against the Applicant.

b. Against the Applicant.

c. 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