KEYWORD: Drugs; Personal Conduct
DIGEST: Applicant used marijuana with varying frequency from 1972 to 1982 and 1984 to 1990.
He used it three times between December 2004 and July 2005.  He disclosed only two of his five
arrests on his security clearance application in 1990, and he failed to disclose a felony arrest on his
application in 2005. He has not mitigated the security concerns raised by his drug involvement and
the falsifications of his two security clearance applications.  Clearance is denied.
CASENO: 06-15424.h1
DATE: 05/22/2007
DATE:  May 22, 2007
In re:
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SSN:  -----------
Applicant for Security Clearance
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ISCR Case No. 06-15424
DECISION OF ADMINISTRATIVE JUDGE
LEROY F. FOREMAN
APPEARANCES
FOR GOVERNMENT
Stephanie C. Hess, Esq., Department Counsel
FOR APPLICANT
Pro se
SYNOPSIS
2
Applicant used marijuana with varying frequency from 1972 to 1982 and 1984 to 1990.  He
used it three times between December 2004 and July 2005.  He disclosed only two of his five arrests
on his security clearance application in 1990, and he failed to disclose a felony arrest on his
application in 2005. He has not mitigated the security concerns raised by his drug involvement and
the falsifications of his two security clearance applications.  Clearance is denied.
3
STATEMENT OF THE CASE
On October 25, 2006, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) detailing the basis for its preliminary decision to deny Applicant a
security clearance.  This action was taken under Executive Order 10865, Safeguarding Classified
Information within Industry (Feb. 20, 1960), as amended and modified, Department of Defense
Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992),
as amended and modified (Directive), and the revised adjudicative guidelines approved by the
President on December 29, 2005, and implemented effective September 1, 2006 (Guidelines).  The
SOR alleged security concerns raised under Guideline H (Drug Involvement) and Guideline E
(Personal Conduct).
Applicant answered the SOR in writing on November 10, 2006, and elected to have a hearing
before an administrative judge. The case was assigned to me on January 26, 2007, and heard on April
19, 2007, as scheduled.  DOHA received the hearing transcript (Tr.) on May 2, 2007.
FINDINGS OF FACT
Applicant’s admissions in his answer to the SOR and at the hearing are incorporated into my
findings of fact.  I make the following findings:
Applicant is a 49-year-old electrical engineer employed by a federal contractor.  He is
married and has two children, one of whom was born in the People’s Republic of China and adopted
by Applicant and his wife.  He holds an associate’s degree in electrical engineering.  He does not
have a clearance at this time (Tr. 7).
Applicant’s supervisor from August 2005 until April 2007, a colonel in the U.S. Marine
Corps Reserve, testified that Applicant’s character and loyalty are beyond reproach (Tr. 41-42).  A
coworker and friend from Applicant’s previous private-sector employment testified Applicant was
very responsible, extremely intelligent, and a person of impeccable character (Tr. 48).  Applicant’s
supervisor in his most recent job, a lieutenant colonel in the U.S. Marine Corps Reserve, recruited
Applicant to follow him to another company because  of his confidence in his ability and character.
He was aware of Applicant’s most recent drug use (Tr. 55-56).
Applicant was previously employed by a federal contractor from 1982 to 1984 and held a
clearance.  In a statement executed on May 11, 1983, he admitted to a security investigator that he
was arrested and charged with disorderly conduct for failing to disperse during a college campus
disturbance (Government Exhibit (GX) 2).  In another statement to the same investigator on May 12,
1983, Applicant admitted he started using marijuana in 1972, when he was in junior high school.
He stated he used it about once a week, taking two to four puffs of a marijuana cigarette.  He also
admitted being detained by the police for possession of marijuana that he had purchased.  The police
discovered the marijuana when they arrested Applicant and his companions for trespassing in a
college gymnasium.  Applicant stated he never purchased marijuana again after that incident.  He
stated that after high school he used marijuana three or four times a year until he stopped using it in
1981 (GX 3).
The offense was alleged as “failure to disburse” in the SOR.  On my own motion, I corrected the SOR to allege1
a “failure to disperse.” (Tr. 96.)
4
On December 10, 1990, Applicant executed a National Agency Questionnaire.  In response
to question 18, asking if he had ever been arrested, charged, cited, held, or detained by federal, state,
or other law enforcement or juvenile authorities, he disclosed two arrests for assault and battery in
1986 and 1988.  He did not disclose his arrest for possession of marijuana in 1972, but he did
disclose he had used marijuana in “party situations” while in college, in response to question 20.  He
also failed to disclose an arrest for speeding in 1974, his arrest for failing to disperse in 1979 , and1
an arrest for an unpaid moving violation in 1983.  
In a statement to a security investigator on April 11, 1991, Applicant again addressed his
possession of marijuana in 1972. He admitted he was charged with a misdemeanor and held at the
police station until he was released to his father’s custody.  He contradicted his May 1983 statement
that he had purchased the marijuana, saying instead that it was given to him (GX 4 at 1-2).  He
repudiated his earlier admission of using marijuana weekly in junior high school, and insisted he
used it only three times in junior high school (GX 4 at 14, 16).  He stated his last use of marijuana
was in Amsterdam, where he purchased and smoked it.  It happened while he was on a business trip
for the federal contractor for whom he had worked since July 1984 (GX 4 at 13-14; GX 8 at 2).  He
stated his purchase in Amsterdam was the only time he ever purchased marijuana (GX 4 at 14),
contradicting his earlier admission that he purchased it in junior high school. 
In his April 1991 statement, Applicant also admitted being arrested for speeding on his
motorcycle in the summer of 1974, taken to the police station in handcuffs, and being fined $50 (GX
4 at 2-3).  He admitted being arrested for assault and battery arising from a fight at a house party in
the summer of 1984 (GX 4 at 5-6).  He also admitted the arrest for an unpaid moving violation in
June 1983.  This arrest occurred when Applicant went to the police station to bail out a friend, and
was arrested, photographed, fingerprinted, and jailed because of the unpaid violation (GX 4 at 7).
Finally, he admitted the felony charge of assault and battery with a dangerous weapon in June 1987,
and admitted he knew he was charged with a felony (GX 4 at 8)  His admission is corroborated by
court records (GX 5; GX 6; GX 7). 
During the April 1991 interview, Applicant told the investigator he did not disclose all his
arrests because he did not think enough about his answer to the question, and he only listed the
offenses on his local arrest record (GX 4 at 10-11).  At the hearing, he testified he did not disclose
all his arrests on his 1990 application because he believed the government was only interested in
“serious stuff” and not minor infractions (Tr. 69-70).  He testified he did not disclose the arrest for
possession of marijuana because he thought it had been expunged (Tr. 92).  He admitted his May
1983 statement and April 1991 statement were inconsistent, and he admitted his April 1991
statement was incorrect (Tr. 87-91).  He testified he was not sure why he did not disclose the arrest
for failing to disperse (Tr. 95).
Applicant stopped using marijuana while working for a federal contractor between 1982 and
1984 because his employer had a random drug testing program.  From 1984 to 1990, he used
marijuana about six times at social events.  He told a security investigator he used marijuana because
he enjoyed the taste.  He also told the investigator that he could not absolutely rule out the possibility
he would use marijuana again (GX 4 at 15).
5
In September 2000, Applicant disclosed to U.S. immigration authorities that he was arrested
for assault and battery in September 1986, and for felony assault and battery in April 1988.  He made
the disclosures in connection with his adoption of his infant daughter (Applicant’s Exhibit (AX) A).
On August 22, 2005, Applicant executed an Electronic Questionnaire for Investigations
Processing (e-QIP).  In Section 23, he responded “no” to the question whether he had ever been
charged with a felony.  He did not disclose that he was arrested and charged with assault and battery
with a dangerous weapon, a felony, in April 1988.  At the hearing, he testified he answered “no” to
the question about felony arrests on his 2005 application because he thought it covered only the last
seven years (Tr. 73-74).
In Section 24 of his August 2005 e-QIP, Applicant disclosed smoking marijuana three times
in July 2005, just before beginning his employment by a federal contractor.  At the hearing, he
admitted smoking marijuana with his brother-in-law during a family vacation in July 2005.  He also
admitted smoking marijuana with family members during the Christmas season in December 2004
(Tr. 64).
POLICIES
“[N]o one has a ‘right’ to a security clearance.”  Department of the Navy v. Egan, 484 U.S.
518, 528 (1988).  As Commander in Chief, the President has “the authority to . . . control access to
information bearing on national security and to determine whether an individual is sufficiently
trustworthy to occupy a position . . . that will give that person access to such information.”  Id. at
527.  The President has authorized the Secretary of Defense or his designee to grant applicants
eligibility for access to classified information “only upon a finding that it is clearly consistent with
the national interest to do so.”  Exec. Or. 10865, Safeguarding Classified Information within
Industry § 2 (Feb. 20, 1960), as amended and modified.  Eligibility for a security clearance is
predicated upon the applicant meeting the criteria contained in the Guidelines.  Each clearance
decision must be a fair, impartial, and commonsense decision based on the relevant and material
facts and circumstances, the whole person concept, the disqualifying conditions and mitigating
conditions under each specific guideline, and the factors listed in the Guidelines ¶¶ 2(a)(1)-(9).
A person granted access to classified information enters into a special relationship with the
government.  The government must be able to have a high degree of trust and confidence in persons
with access to classified information.  However, the decision to deny an individual a security
clearance is not necessarily a determination as to the loyalty of the applicant.  See Exec. Or. 10865
§ 7.  It is merely an indication the applicant has not met the strict guidelines the President and the
Secretary of Defense have established for issuing a clearance.
Initially, the government must establish, by substantial evidence, conditions in the personal
or professional history of the applicant which disqualify, or may disqualify, the applicant from being
eligible for access to classified information.  See Egan, 484 U.S. at 531.  “Substantial evidence” is
“more than a scintilla but less than a preponderance.”  See v. Washington Metro. Area Transit Auth.,
36 F.3d 375, 380 (4th Cir. 1994).  The Guidelines presume a nexus or rational connection between
proven conduct under any of the criteria listed therein and an applicant’s security suitability.  See
ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).  
6
Once the government establishes a disqualifying condition by substantial evidence, the
burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts.  See Directive ¶
E3.1.15.  An applicant “has the ultimate burden of demonstrating that it is clearly consistent with
the national interest to grant or continue his security clearance.”  ISCR Case No. 01-20700 at 3 (App.
Bd. Dec. 19, 2002).  “[S]ecurity clearance determinations should err, if they must, on the side of
denials.”  Egan, 484 U.S. at 531; see Guidelines ¶ 2(b). 
CONCLUSIONS
Guideline H (Drug Involvement)
The concern under this guideline is as follows: “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.”  Guidelines ¶ 24.  “Drugs” include “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).”  Guidelines ¶ 24(a)(1).  Drug abuse is “the illegal use of a drug or use of a legal
drug in a manner that deviates from approved medical direction.”  Guidelines ¶ 24(b).
Disqualifying conditions under this guideline include “any drug abuse,” and “illegal drug
possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or
possession of drug paraphernalia.”  Guidelines ¶ 25(a) and (c).  The evidence in this case establishes
these two disqualifying conditions.
Since the government produced substantial evidence to raise ¶¶ 25(a) and (c), the burden
shifted to Applicant to produce evidence to rebut, explain, extenuate, or mitigate the facts.  Directive
¶ E3.1.15.  An applicant has the burden of proving a mitigating condition, and the burden of
disproving it is never shifted to the government.  See ISCR Case No. 02-31154 at 5 (App. Bd. Sep.
22, 2005).  
Security concerns raised by drug involvement may be mitigated by showing that “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.”  Guidelines ¶ 26(a).  The first clause of ¶ 26(a) (“happened so long ago”) focuses
on the recency of drug involvement.  There are no “bright line” rules for determining when conduct
is “recent.”  The determination must be based on a careful evaluation of the totality of the evidence.
ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004).  If the evidence shows “a significant period
of time has passed without any evidence of misconduct,” then an administrative judge must
determine whether that period of time demonstrates “changed circumstances or conduct sufficient
to warrant a finding of reform or rehabilitation.”  Id.  
Applicant has used marijuana with varying degrees of frequency for most of his life, starting
in junior high school.  The most recent use was shortly before he submitted his e-QIP and less than
two years ago.  When he has abstained from marijuana in the past, his motivation has not been
7
respect for the law or concern for his health, but to avoid losing his job.  His motivation for
abstinence since July 2005 has been his pending security clearance application.  I conclude that the
mitigating condition in Guidelines ¶ 26(a) is not established.
Security concerns arising from drug involvement also may be mitigated by evidence of “a
demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug-using
associates and contacts; (2) changing or avoiding the environment where drugs were used; [or] (3)
an appropriate period of abstinence.”  Guidelines ¶ 26(b)(1)-(3).  Applicant has not demonstrated
intent not to abuse drugs in the future.  To the contrary, he has admitted to security investigators that
he enjoys marijuana and may use it again.  His drug-using associates in December 2004 and July
2005 were family members, with whom he continues to associate.  As noted above, his period of
abstinence has been relatively short and motivated by his pending security clearance application.
I conclude that the mitigating condition in Guidelines ¶ 26(b) is not established.
Guideline E (Personal Conduct)
The concern under this guideline is as follows: “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.”  Guidelines ¶ 15.  The
relevant disqualifying condition in this case is “deliberate omission, concealment, or falsification of
relevant 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.”
Guidelines ¶ 16(a).
When a falsification allegation is controverted, as in this case, the government has the burden
of proving it.  An omission, standing alone, does not prove an applicant’s 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 state of mind
at the time of the omission.  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)).
Applicant has given contradictory accounts of the frequency, nature, and duration of his drug
involvement and multiple explanations for his failures to fully disclose his criminal record.  In his
security interviews, he attempted to minimize his early purchases and use of marijuana.  While his
contradictory responses to security investigators are not alleged in the SOR, conduct not alleged in
the SOR may be considered: “(a) to assess an applicant’s credibility; (b) to evaluate an applicant’s
evidence of extenuation, mitigation, or changed circumstances; (c) to consider whether an applicant
has demonstrated successful rehabilitation; (d) to decide whether a particular provision of the
Adjudicative Guidelines is applicable; or (e) to provide evidence for whole person analysis under
Directive Section 6.3.”  ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006) (citations omitted).
Applicant’s contradictory statements are relevant to determining the credibility of his explanations
for omitting information from his two security clearance applications, determining whether any
mitigating conditions apply, and making a whole-person analysis.  I have considered them for those
limited purposes.  
8
Applicant listed only the two assault and battery arrests on his 1990 application, explaining
to a security investigator that he did not think enough about his answer and listed only the offenses
on his arrest record.  At the hearing, he testified he listed only the “serious stuff.”  When questioned
at the hearing, he was able to recall each of his arrests in detail.  When asked why he did not list his
arrest for possession of marijuana, which he knew from previous security investigations was “serious
stuff,” he testified he did not disclose it because he thought it was expunged.  The evidence suggests
a pattern of minimizing adverse information, falling short of the candor required by the Guidelines.
Even Applicant’s disclosure of marijuana use on the 2005 application tended to minimize it,
disclosing only the July 2005 use but not the December 2004 use.  I conclude he intentionally
omitted his full arrest record on his 1990 application.
Applicant’s explanation for not disclosing his felony arrest on his 2005 application was
equally implausible and unpersuasive.  Section 23 asks the “have you ever” questions first and then
follows with two questions limited to the last seven years.  Applicant is obviously very intelligent
and articulate.  He has previously applied for clearances and knew from his previous experience that
his criminal record was a serious concern.  He knew the importance of full disclosure, because he
had been questioned during his previous security investigations about his failures to fully disclose
his criminal record.  I find Applicant’s explanation that he misread the question unconvincing.  I
conclude he intentionally omitted his felony conviction on his 2005 application.
Based on the intentional omissions of relevant and material facts from his two applications,
I conclude the disqualifying condition in Guidelines ¶ 16(a) is raised, shifting the burden to
Applicant to rebut, explain, extenuate, or mitigate the facts.  Security concerns raised by false or
misleading answers on a security clearance application may be mitigated by showing that “the
individual made prompt, good-faith efforts to correct the omission, concealment, or falsification
before being confronted with the facts.”  Guidelines ¶ 17(a).  
Applicant’s efforts to correct his omissions were neither prompt nor in good faith.  He
executed the first application alleged in the SOR in December 1990, and he did not provide the
omitted information or offer an explanation for the omission of his three arrests until he was
questioned about them in April 1991.  He offered different explanations for the omissions at the
hearing, undercutting any claim of good faith.
He executed his second application in August 2005.  He did not admit his felony arrest or
offer an explanation for omitting it from his application until the hearing.  I conclude the mitigating
condition in Guidelines ¶ 17(a) is not established.
9
Whole Person Analysis
In addition to considering the specific disqualifying and mitigating conditions under each
guideline, I have also considered: (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 applicant’s age and maturity at the time of the conduct; (5) the
extent to which participation is voluntary; (6) the presence or absence of rehabilitation and other
permanent 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.  Guidelines
¶¶ 2(a)(1)-(9).  Some of these factors are discussed above, but some merit additional comment.
Applicant’s lifelong use of marijuana demonstrated a lifelong disregard for the law.  He is
now a mature adult, a talented engineer, and a devoted husband and father.  However, his lack of
candor negates a finding of rehabilitation and may put him in future situations where he will be
vulnerable to pressure, coercion, exploitation, or duress.  His lifelong marijuana use and his attitude
about it makes recurrence likely.
After weighing the disqualifying and mitigating conditions under Guidelines H and E, and
evaluating all the evidence in the context of the whole person, I conclude Applicant has not mitigated
the security concerns based on drug involvement and personal conduct.  Accordingly, I conclude
he has not carried his burden of showing that it is clearly consistent with the national interest to grant
him a security clearance.
FORMAL FINDINGS
The following are my conclusions as to each allegation in the SOR:
Paragraph 1. Guideline H: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Paragraph 2. Guideline E: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against Applicant
Subparagraph 2.c: Against Applicant
10
DECISION
In light of all of the circumstances in this case, it is not clearly consistent with the national
interest to grant Applicant a security clearance.  Clearance is denied.
LeRoy F. Foreman
Administrative Judge