DATE: August 7, 2002

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

Applicant for Security Clearance

DECISION OF ADMINISTRATIVE JUDGE

JOHN R. ERCK

APPEARANCES

FOR GOVERNMENT

Erin C. Hogan, Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

After using marijuana regularly from 1973 until September 2000, and after being arrested for marijuana possession in 1977, 1978, and 1995, Applicant denied all marijuana use except one or two times experimental use and denied the marijuana-related arrests on three SF 86s and in two signed, sworn statements (completed between September 1997 and December 2001). Clearance is denied.

On February 17, 2002, 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 finding under the Directive that it is clearly consistent with the national interest to grant Applicant's security clearance and recommended referral to an Administrative Judge to determine whether he should be granted a security clearance.

Applicant answered the SOR in writing on March 9, 2002, and asked that his case be decided without a hearing. Applicant received the File of Relevant Material (FORM) consisting of 12 items on April 24, 2002. He filed a response on May 23, 2002. The case was assigned to this Administrative Judge on June 4, 2002.

The SOR alleges that a security concern is raised by Applicant's personal conduct, criminal conduct and drug involvement. In his answer, Applicant admitted all allegations set forth in the SOR. I accept his admissions and after a complete and thorough review of the evidence of record, and upon due consideration of the same, I make the following additional findings of fact:

Applicant is a 43-year-old computer technician, who has been employed by the same DoD contractor since August 1997. After working at various other professional pursuits, Applicant received the necessary training to work as a computer technician and began working in that career field in September 1996. He had not previously held a security clearance and was very reluctant to share information about his prior marijuana abuse and arrests with the United States Government during his background investigation.

Applicant began using marijuana in approximately 1973, and used it weekly from that time until approximately October 2000. Applicant has been arrested and charged with marijuana possession; and he has also been arrested and charged with other incidents of misconduct:

- He was arrested in September 1977 and charged with possession of cannabis and possession of narcotic paraphernalia. He pleaded guilty and adjudication was withheld; he was sentenced to six months probation, ordered to attend a drug rehabilitation program and finish high school, and he was ordered not to associate with anyone having, using, or selling illegal drugs.

- He was arrested again in April 1978 and charged with possession of marijuana and possession of narcotic equipment. These charges were dismissed.

- He was arrested in March 1994 and charged with carrying a concealed weapon. No disposition of the charges is noted in the record.

- He was arrested in April 1995 and charged with: domestic violence battery (a felony under state law), battery (a felony violation under state law), fleeing and attempting to elude, battery on a law enforcement officer (a felony violation of state law), resisting arrest with violence (a felony violation of state law), reckless driving and assault (a felony violation of state law). Applicant pleaded nolo contendere to fleeing and attempting to elude and to resisting arrest with violence.

- He was arrested again in June 1995 and charged with violating a court order injunction for protection, possession of less than 20 grams of marijuana, possession of drug paraphernalia. Applicant pleaded nolo contendere to violating the court order for protection, adjudication of guilt was withheld, and he was sentenced to one year probation, one year in the county jail (11 months and 29 days suspended), given credit for time served, order to pay cost of supervision ($480.00), ordered to attend stop harmful and abusive relationships thru education (SHARE). The other charges were dismissed.

In September 1997, Applicant was asked (for the first time) to complete an SF 86 (Security Clearance Application) This questionnaire, and each of the succeeding questionnaires Applicant completed, included the following language immediately above Applicant's signature:

My statements on this form, and any attachments to it, are true, complete, and correct to the best of my knowledge and belief and are made in good faith. I understand that a knowing and willful false statement on this form can be punished by fine or imprison or both.

Notwithstanding this assurance, Applicant's answers on this form, and on succeeding SF 86s, were not true, complete or correct. He answered "no" to the question of whether he had ever been charged or convicted of any offenses related to alcohol or drugs. In response to the question which asked if he had used marijuana since the age of 16 or in the last 7 years, Applicant answered "yes" and admitted one-time use in January 1997 (Item 5).

Applicant provided the same answers to these questions on an SF 86 he completed in June 1999 (Item 6). ⁽¹⁾

In September 2000, Applicant was questioned by a Defense Security Service (DSS) special agent. While he admitted he had been arrested under the circumstances described above, he did not admit to his more than 25 years of regular marijuana use (Item 10). Instead, he admitted he had "experimented" with marijuana "two times" while at beach gatherings with some classmates. He specifically stated:

I have never possessed, purchased, trafficked, sold, cultivated, nor manufactured any illegal drug/substance to include marijuana, and have no intention to do so in the future.

I do not know why I was charged with possession of marijuana and possession of drug paraphernalia/equipment in the above criminal inc incidents as I have never been in possession these items.

In a second DSS interview with another special agent in October 2000 (Item 9), Applicant admitted in a very brief signed, sworn statement that he first smoked marijuana in 1973, and that he smoked it weekly from 1973 to the first weekend of October 2000.

However, even after admitting more than 25 years of regular marijuana use in his October 2000 signed, sworn statement, Applicant answered "no" to the question of whether he had ever been charged or convicted of any offense related to alcohol or drugs and admitted only one-time use of marijuana (in response to the question which asked if he had used marijuana since the age of 16 or in the last 7 years) on an SF 86 in completed in October 2001 (Item.7). He affirmed this information in a November 2001 signed, sworn statement:

I have not used any illegal Drug/Substance except as reported during my 19 SEP 00 DSS interview which was two times experimental use of Marijuana approximately 1975/1976 (Item 8)

In his answer to the SOR, Applicant admitted using marijuana weekly from 1973 until October 2000, and he admitted providing "wrong answers" to questions on the SF 86 (Item 4). He also stated he had stopped using marijuana "on a social basis" after the September 2000 interview. Applicant does not explain why he denied the full extent of his marijuana use in the October 2001 SF 86 and the November 2001 signed, sworn statement-after having admitted to this misconduct in his October 2000 signed, sworn statement.

Applicant has submitted a letter and a handwritten note attesting to his excellent work ethic and technical abilities. Applicant professes to be a proud American "who would never sell out (his) country to anyone for any amount of money or any type of material objects."

The Adjudicative Guidelines of the Directive are not a set of inflexible rules of procedure. Instead, they are to be applied by Administrative Judges on a case by case basis with an eye toward making decision with reasonable consistency which are clearly consistent with the interests of national security. In making these overall common sense determinations. Administrative Judges must consider, assess, and analyze evidence of record, both favorable and unfavorable, not only with respect to the relevant Adjudicative Guidelines, but also in the context of the factors set forth in Section 6.3 of the Directive. In that vein, the Government not only has the burden of proving any controverted fact(s) alleged in the SOR, it must also demonstrate the facts proven have a nexus to Applicant's lack of security worthiness.

The following Adjudicative Guidelines are deemed applicable to the instant matter:

PERSONAL CONDUCT

The Concern: Conduct involving questionable judgement, 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.

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

E2.A5.1.2.2. 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;

E2.A5.1.2.3. 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 personal security or trustworthiness determination.

Conditions that could mitigate security concerns include:

None Applicable

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

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

E2.A10.1.2.2. A single serious crime or multiple lesser offenses.

Conditions that could mitigate security concerns include:

None Applicable

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.

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

E2.A8.1.2.1. Any drug abuse;

E2.A8.1.2.1. Illegal drug possession, including cultivation, processing, manufacture, purchase, sale or distribution;

Conditions that could mitigate security concerns include:

None Applicable

The Government has the burden of proving any controverted facts alleged in the Statement of Reasons. If the Government established its case, the burden of persuasion shifts to Applicant to establish his security suitability through evidence which refutes, mitigates, or extenuates the disqualifying conduct and demonstrates it is clearly consistent with the national interest to grant or continue his security clearance.

A person who seeks access to classified information enters a fiduciary relationship with the Government predicated upon trust and confidence. Where the facts proven by the Government raise doubt about Applicant's judgment, reliability, or trustworthiness, Applicant has a heavy burden of persuasion to demonstrate he is nonetheless security worthy. As noted by the United States Supreme Court in Department of Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates security clearance determinations should err, if they must, on the side of denials." As this Administrative Judge understands the Court's rational, doubts are to be resolved against an Applicant.

Having considered the record evidence in accordance with the appropriate legal precepts and factors, this Administrative Judge concludes the Government has established its case with regard to Guidelines E, J, and H. In reaching my decision, I have considered the evidence as a whole, including each of the factors enumerated in Section 6.3, as well as those referred to in Section E2.2. dealing with Adjudicative process, both in the Directive.

A security concern is raised by Applicant's failure to provide truthful answers on the SF 86s he completed in September 1997, June, 1999 and October 2001, and in his signed, sworn statements dated September 2000 and November 2001. His failure to provide honest and truthful answers and information to the questions on the security questionnaires and in his signed, sworn statements suggests questionable judgment, untrustworthiness, unreliability, or unwillingness to comply with rules and regulations. Such conduct could indicate he may not properly safeguard classified information.

In mitigation, Applicant now admits he provided "wrong answers," and takes full responsibility for his actions. He assures that he is "proud American" who would never sell out his country.

What Applicant offers in mitigation is too little, and it is too late. None of the mitigating conditions under Guideline E apply. Applicant repeatedly lied about his 25 years of marijuana abuse-information that was clearly relevant and material to a determination of his judgment, trustworthiness and reliability. There is no evidence he lied because he had been given inadequate or improper advice by authorized personnel, and there is no evidence he made a prompt good-faith effort to tell the truth before he was confronted with the facts. Guideline E is concluded against Applicant.

A security concern is also raised by Applicant's regular use of marijuana for more than 25 years and by his arrests for possession of marijuana. 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.

In mitigation, Applicant claims he stopped using marijuana after his September 2000 interview with a DSS special agent and does not intend to use marijuana in the future. He further asserts that since he began working on a military installation in 1997, he has "never been high at work."

The mitigating benefit of Applicant's 22-month period of abstinence and his assurances he will not use marijuana in the future, is diluted somewhat by the fact he continued to use marijuana regularly for almost three years after this illegal habit required him to lie on the first SF 86 he completed in September 1997. He was 38-years old at the time, and knew or should have known that breaking the law by using an illegal substance was incompatible with having a security clearance. He should have realized the necessity of giving up a habit that he had to lie about on a government form. Not only did Applicant continue to use marijuana regularly until September 2000, he continued to lie about it, up to and including the signed, sworn statement he completed in November 2001. Against this background of falsification, his recent assertions that he stopped using marijuana in September 2000 and does not intend to use it in the future, are not credible. Guideline H is concluded against Applicant.

Finally, a security concern is raised by Applicant's arrests for marijuana possession and for other act of criminal misconduct. A history or pattern of criminal activity creates doubt about a person's judgement, reliability and trustworthiness.

Were it not for the pattern of falsification which continued throughout Applicant's background investigation, the acts of criminal conduct identified in the SOR could be mitigated by the passage of time. His most recent arrest occurred in 1995 and the disposition of the original charges (on each occasion) in exchange for Applicant's plea to less serious offenses suggests Applicant's criminal conduct was not as serious as the original charges indicate. However, Applicant's deliberate omission, concealment and falsification of relevant and material facts during his background investigation deny him the mitigating benefit of any claim the earlier arrests were isolated events and of any claim he has been successfully rehabilitated. Guideline J is concluded against Applicant.

Formal findings as required by Section 3, paragraph 7, of enclosure 1 of the Directive, are hereby rendered as follows:

Paragraph 1 (Guideline E) AGAINST THE APPLICANT

Subparagraph 1.a. Against the Applicant

Subparagraph 1.b. Against the Applicant

Subparagraph 1.c. Against the Applicant

Subparagraph 1.d. Against the Applicant

Subparagraph 1.e. Against the Applicant

Subparagraph 1.f. Against the Applicant

Subparagraph 1.g Against the Applicant

Paragraph 2 (Guideline J) AGAINST THE APPLICANT

Subparagraph 2.a. Against the Applicant

Subparagraph 2.b. Against the Applicant

Subparagraph 2.c. Against the Applicant

Subparagraph 2.d. Against the Applicant

Subparagraph 2.e. Against the Applicant

Subparagraph 2.f. Against the Applicant

Paragraph 3 (Guideline H) AGAINST THE APPLICANT

Subparagraph 3.a. Against the 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 Applicant's security clearance.