DATE:  December 11, 2007
In Re:
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SSN: -----------
Applicant for Security Clearance
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ISCR Case No. 07-04530
DECISION OF ADMINISTRATIVE JUDGE
MATTHEW E. MALONE
APPEARANCES
FOR GOVERNMENT
D. Michael Lyles, Esquire, Department Counsel
FOR APPLICANT
Michael Coleman, Esquire
SYNOPSIS
Applicant failed to mitigate the security concerns raised by his use of marijuana, at times
while he held a security clearance, and a February 2006 drug-related arrest. He also failed to mitigate
the security concerns raised by his failure to disclose his drug use and arrest during a July 2006
interview with a government investigator, and his failure to report his arrest to his employer as
required. Clearance is denied.
 Required by Executive Order 10865, as amended, and by DoD Directive 5220.6 (Directive), as amended.1
 Adjudication of this case is controlled by the Revised Adjudicative Guidelines, approved by the President on2
December 29, 2005,which were implemented by the Department of Defense on September 1, 2006. Pending official
revision of the Directive, the Revised Adjudicative Guidelines supercede the guidelines listed in Enclosure 2 to the
Directive, and they apply to all adjudications or trustworthiness determinations in which an SOR was issued on or after
September 1, 2006.
2
STATEMENT OF THE CASE
After reviewing the results of Applicant’s most recent background investigation, adjudicators
for the Defense Office of Hearings and Appeals (DOHA) were unable to make a preliminary
affirmative finding  that it is clearly consistent with the national interest to give Applicant a security1
clearance. On August 13, 2007, DOHA issued to Applicant a Statement of Reasons (SOR) alleging
facts that raise security concerns addressed in the Revised Adjudicative Guidelines under Guideline
H (illegal drugs) and Guideline E (personal conduct).2
Applicant timely responded to the SOR and requested a hearing. The case was assigned to
me on October 22, 2007, and I convened a hearing on November 15, 2007, at which the parties
appeared as scheduled. I admitted four exhibits proffered by the government (Gx. 1- 4). Applicant
testified, presented one witness, and offered one exhibit, which was admitted as Applicant’s Exhibit
(Ax.) A . On November 29, 2007, DOHA received the transcript (Tr.).
FINDINGS OF FACT
The government alleged under Guideline H (illegal drugs) Applicant used marijuana from
“in at least about 1986 and October 2006” (SOR ¶ 1.a); that he was arrested on February 17, 2006,
and charged with possession of marijuana and drug paraphernalia, for which he performed 50 hours
of community service and completed 10 weeks of pre-trial intervention drug counseling (SOR ¶ 1.b);
that he attended said pre-trial intervention drug counseling between September 2006 and December
2006 (SOR ¶ 1.c); that in October 2006, he tested positive for drugs during a urinalysis administered
during his pre-trial intervention counseling (SOR ¶ 1.d); and that he used marijuana while holding
a security clearance he received in April 1999 (SOR ¶ 1.e). 
The government further alleged under Guideline E (personal conduct) the Applicant failed
to report  his February 2006 arrest as required by his employer (SOR ¶ 2.a); that he intentionally
failed to disclose his arrest when he was interviewed by a government investigator in July 2006, and
only disclosed his arrest during a second such interview in December 2006 when the government
investigator confronted Applicant with the information about Applicant’s arrest (SOR ¶ 2.b); and
that Applicant’s use of marijuana while holding a security clearance is also disqualifying under
Guideline E (SOR ¶ 2.c).
In response to the SOR, Applicant admitted without explanation all of the allegations. His
admissions are incorporated herein as facts. After a thorough review of the pleadings, transcript, and
exhibits, I make the following additional findings of fact.
Applicant is 38 years old and employed by a defense contractor as a production electronics
technician, which involves assembly and installation of communications and data processing
 Gx. 1; Tr., 6 - 7, 44 - 45.3
 Gx. 4.4
 Tr., 44 - 45.5
 Gx. 3.6
 Gx. 2.7
 Tr., 33, lines 3 - 13.8
 Gx. 4.9
3
equipment racks aboard submarines and at shore facilities. Applicant served in the U.S. Air Force
from 1989 until receiving a general discharge under honorable conditions as a senior airman
(paygrade E-4) in 1995. In the Air Force, he performed similar duties (cable and equipment
installation) in missile launch facilities. Applicant was granted a secret security clearance while he
was in the Air Force. He has held that clearance without interruption since January 1998.  It was3
most recently renewed in December 2005, most likely on an interim basis pending the outcome of
a background investigation that commenced when he submitted his Electronic Questionnaire for
Investigations Processing (e-QIP) on December 21, 2005.  4
After leaving the military, Applicant worked for two other defense contractors while holding
a security clearance performing similar work until late 2001. His clearance did not lapse while he
was either unemployed or worked in retail sales from November 2001 until he was hired by his
current employer in November 2002. He testified that he went to work immediately upon being hired
by his current employer because his clearance was still active.5
On June 14, 2006, Applicant’s employer submitted an Adverse Information Report, which
informed the Defense Security Service that Applicant had been arrested on February 6, 2006, and
charged with possession of marijuana and possession of drug paraphernalia. He claims he reported
the arrest to his immediate supervisor a day or two after it happened; however, as of June 2006, he
had not yet reported the incident to the security office as required by company policy. Applicant
signed a copy of that policy when he was hired.6
In July 2006, Applicant was interviewed by a government investigator as part of his
background investigation. The interview covered issues related to Applicant’s finances, and he did
not disclose his arrest because the investigator did not ask him about it and because his attorney, who
also represented him at this hearing, advised him not to talk about the arrest.  His attorney, while7
questioning the Applicant in this matter, acknowledged he was not giving advice to Applicant about
security procedures.8
A copy of the police report of the arrest revealed police found a bag of marijuana and several
marijuana cigarettes in Applicant’s vehicle.  In December 2006, during a subsequent interview with9
a government investigator, Applicant discussed the arrest after the investigator asked him about the
 Gx. 2.10
 Gx. 2; Tr., 41 - 42.11
 Tr., 44.12
 Tr., 35 - 36.13
 Tr., 47 - 52.14
 Gx. 2; Tr., 28- 29; Ax. A.15
 Directive. 6.3.16
 Commonly referred to as the “whole person” concept, these factor are:(1) The nature, extent, and seriousness17
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 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.
4
incident. In describing the arrest, Applicant stated that all the police found was the remains of a
marijuana cigarette and a pipe with marijuana residue in it.10
In the December 2006 interview, Applicant stated he used marijuana a few times in high
school, but had not used marijuana in more than 20 years. As a result of his arrest, he was assigned
to pre-trial intervention, which required him to attend weekly drug counseling sessions from
September 2006 until December 2006. In October 2006, Applicant came up positive for marijuana
after a urinalysis test. During his interview and in his testimony, Applicant offered a “second hand
smoke” theory to explain the test results, asserting he inhaled marijuana by hanging out with friends
who used it in his presence.  However, Applicant also testified he used marijuana the night he was11
arrested.  Applicant no longer associates with his friends who use marijuana.12 13
Applicant is a reliable worker. His former supervisor, who has worked closely with him for
most of the past five years, regards him as trustworthy and, despite knowledge of Applicant’s arrest
and drug use, recommends his security clearance should be renewed.  Applicant completed14
satisfactorily all of the terms of his pre-trial intervention. He performed 50 hours of community
service working at a local animal shelter, and he still does volunteer work there with his daughter.15
POLICIES AND BURDEN OF PROOF
Each security clearance decision must be a fair, impartial, and commonsense determination
based on examination of all available relevant and material information, and consideration of the
pertinent criteria and adjudication policy in the Revised Adjudicative Guidelines.  Decisions must16
also reflect consideration of the factors listed in the ¶ 2(a) of the new guidelines.  The presence or17
absence of a disqualifying or mitigating condition is not determinative of a conclusion for or against
an applicant. However, specific applicable guidelines should be followed whenever a case can be
measured against them as they represent policy guidance governing the grant or denial of access to
 See Department of the Navy v. Egan, 484 U.S. 518 (1988).18
 See Egan, 484 U.S. at 528, 531.19
 See Egan; Revised Adjudicative Guidelines, ¶ 2(b).20
 Revised Adjudicative Guidelines, ¶ 15.21
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classified information. In this case, the pleadings and the information presented by the parties at
hearing require that Revised Adjudicative Guideline E (personal conduct) and Guideline H (drug
involvement) be applied.
A security clearance decision is intended to resolve whether it is clearly consistent with the
national interest  for an applicant to either receive or continue to have access to classified18
information. The government bears the initial burden of producing admissible information on which
it based the preliminary decision to deny or revoke a security clearance for an applicant.
Additionally, the government must be able to prove controverted facts alleged in the SOR. If the
government meets its burden, it then falls to the applicant to refute, extenuate or mitigate the
government’s case. Because no one has a “right” to a security clearance, an applicant bears a heavy
burden of persuasion.  A person who has access to classified information enters into a fiduciary19
relationship with the government based on trust and confidence. The government, therefore, has a
compelling interest in ensuring each applicant possesses the requisite judgement, reliability and
trustworthiness of one who will protect the national interests as his or her own. The “clearly
consistent with the national interest” standard compels resolution of any reasonable doubt about an
applicant’s suitability for access in favor of the government.20
CONCLUSIONS
Personal Conduct. Under Guideline E, “[c]onduct 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.”  In addition to21
Applicant’s admissions to the SOR allegations, the government submitted sufficient information to
show that Applicant did not report his February 2006 arrest to his company’s security office as
required by the security disclosure policy he signed when he was hired in 2002 (SOR ¶ 2.a). He also
did not disclose his arrest during his first interview with a government investigator (SOR ¶ 2.b).
While holding a security clearance, he admitted to using marijuana in February 2006 (SOR ¶ 2.c),
but denies any use since then, despite testing positive while in drug counseling in October 2006.
In response to SOR ¶ 2.b, Applicant admitted the allegation, but asserted in his second
(December 2006) interview that he did not volunteer information about his drug arrest or his drug
use on advice of his attorney. However, all of the information about this claim demonstrates his
attorney was not giving advice about whether to comply with company procedures or other
requirements to disclose such adverse information. Additionally, Applicant’s response to SOR ¶ 2.b
(as well as his “second hand smoke” explanation for his October 2006 failed drug test) is not credible
 “any illegal drug use after being granted a security clearance;”22
 “deliberately providing false or misleading information concerning relevant facts to an employer, investigator,23
security official, competent medical authority, or other official government representative;”
 “violation of a written or recorded commitment made by the individual to the employer as a condition of24
employment;”
 “ the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before25
being confronted with the facts;”
 “the refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by26
improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically
concerning the security clearance process. Upon being made aware of the requirement to cooperate or provide the
information, the individual cooperated fully and truthfully;”
 Revised Adjudicative Guidelines, ¶ 24.27
6
because he lied to a government investigator in December 2006 about the details of his arrest and
about the full extent of his use of marijuana.
Applicant may not be disqualified under Guideline E for the SOR ¶ 2.c allegation. While it
was proven that he used drugs while holding a clearance, such conduct is covered under Guideline
H (drug involvement) and must be addressed according to ¶ 25(g).  As to SOR ¶¶ 2.a and 2.b,22
available information requires consideration of the disqualifying conditions listed in ¶¶ 16(b)  and23
16(f)  of the Revised Adjudicative Guidelines. 24
I also have considered possible application of the mitigating conditions listed at ¶¶ 17(a)25
and 17(b),  but neither is supported by this record. Applicant did not make a prompt, good-faith26
effort to correct his omission in his first interview because he did not disclose his arrest until nearly
five months later, when he was confronted with that information in a second interview. His claim
regarding ¶ 17(b) fails because his attorney advised him only about the disposition of the criminal
charges, not about company or government disclosure requirements. Even if Applicant had received
qualified advice not to disclose his arrest, he was not subsequently truthful. He lied about what was
found in his car and he lied about his drug use. Applicant has failed to carry his burden of persuasion
in response to the government’s information. Accordingly, the Guideline E security concerns are not
mitigated.
Drug Involvement. Under Guideline H, “[u]se 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.”  In addition to Applicant’s admissions to the SOR allegations and27
his testimony about his drug use, the government presented sufficient information to show he used
marijuana in 1986 and 2006 (SOR ¶ 1.a); that he was arrested and charged with marijuana possession
in February 2006 (SOR ¶ 1.b); that he attended drug counseling between September and December
2006 (SOR 1.c); that he tested positive for illegal drugs during that counseling (SOR ¶ 1.d); and that
he used marijuana while holding a security clearance (SOR ¶ 1.e).
 “Any drug abuse (see above definition);”28
 “testing positive for illegal drug use;”29
 “illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or30
possession of drug paraphernalia;”
 See footnote 20, supra.31
 “(b) a demonstrated intent not to abuse any drugs in the future, such as: (1) dissociation from drug-using32
associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an appropriate period of
abstinence; (4) a signed statement of intent with automatic revocation of clearance for any violation;”
 “the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is33
unlikely to recur or does not cast doubt on the individual's current reliability, trustworthiness, or good judgment;”
 See footnote 15, supra.34
 See footnote 14, supra.35
7
The allegation in SOR ¶ 1.c is not disqualifying. It merely presents additional information
related to SOR ¶¶ 1.b and 1.d. As to SOR ¶¶ 1.a, 1.b, 1.d, and 1.e, available information requires
consideration of the disqualifying conditions listed in ¶¶ 25(a),  25(b),  25(c),  and, as noted above,28 29 30
25(g)  of the Revised Adjudicative Guidelines. Further, of the Guideline H mitigating conditions,31
I have considered ¶¶ 26(b)(1) - (4)  and have concluded Applicant may not benefit from any of those32
factors. While he no longer associates with friends who still use marijuana, his lack of candor about
his drug use precludes a definitive finding that he has abstained from marijuana use for any
meaningful length of time. Until his hearing, he denied any use in the past 20 years, and lied to a
government investigator about the drugs that were found in his car when he was arrested in February
2006. 
I have also considered ¶ 26(a),  and I decline to apply it here for many of the same reasons.33
Applicant’s lack of credibility precludes a finding his drug use was remote in time, was infrequent,
or that it is unlikely to recur. Because he lied about using marijuana since 1986, and lied about the
details of his arrests in February 2006, and tested positive for drugs in October 2006, I conclude he
probably used marijuana at or after the time he started drug counseling in September 2006. Most
important, his reluctance to take responsibility for his actions by fully and truthfully disclosing
information about his drug use casts unmitigated doubt on his current reliability. Applicant has failed
to carry his burden of persuasion in response to the government’s information. Accordingly, the
Guideline H security concerns are not mitigated.
Whole Person. I have evaluated the facts presented in this record and have applied the
appropriate adjudicative factors, pro and con, under Guidelines E and H. I have also reviewed the
record before me in the context of the whole person factors listed in section 2(a) of the Revised
Adjudicative Guidelines.  At 38 years of age, Applicant has yet to demonstrate the level of maturity34
and trustworthiness expected of one in whom the government puts its trust. Applicant’s response to
the adverse information in his background only reinforced the government’s concerns about his
judgment and trustworthiness. A fair and commonsense assessment  of the information before me35
shows that the Applicant has not overcome the security concerns about his drug use and lack of
 See footnote 18, supra.36
8
candor. As a result, doubts persist about his ability to protect classified information and to exercise
the requisite good judgment and discretion expected of one who holds a security clearance. Such
doubts must be resolved in favor of the national security.  36
FORMAL FINDINGS
Formal findings regarding each SOR allegation are as follows:
Paragraph 1, Guideline H (Drug Involvement): AGAINST THE APPLICANT
Subparagraph 1.a : Against the Applicant
Subparagraph 1.b : Against the Applicant
Subparagraph 1.c : For the Applicant
Subparagraph 1.d : Against the Applicant
Subparagraph 1.e: Against the Applicant
Paragraph 2, Guideline E (Personal Conduct): AGAINST THE APPLICANT
Subparagraph 2.a: Against the Applicant
Subparagraph 2.b: Against the Applicant
Subparagraph 2.c: For the Applicant
DECISION
In light of all the circumstances presented by the record in this case, it is not clearly consistent
with the national interest to grant or continue a security clearance for the Applicant. Clearance is
denied.
Matthew E. Malone
Administrative Judge