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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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------------------ )       ISCR Case No. 06-17745
SSN: ----------- )
)
Applicant for Security Clearance )
Appearances
For Government: Stephanie C. Hess, Esquire, Department Counsel
For Applicant: Pro se
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Decision
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MASON, Paul J., Administrative Judge:
Applicant submitted his Security Clearance Application (SCA), on August 25,
2005. On November 27, 2006, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under the criminal
conduct, drug involvement, and personal conduct guidelines. The action was taken
under Executive Order 10865, Safeguarding Classified Information within Industry
(February 20, 1990), as amended; Department of Defense Directive 5220.6, Defense
Industrial Personnel Security Clearance Review Program (January 2, 1992), as
amended (Directive), and the revised adjudicative guidelines (AG) promulgated by the
President on December 29, 2005, and effective within the Department of Defense for
SORs issued after September 1, 2006. 
Applicant answered the SOR in writing on January 4, 2007, and requested that a
decision be made on the record in lieu of a hearing. A copy of the Government’s file of
Relevant Material (FORM, the Government evidence in support of the allegations of the
SOR) was sent to Applicant on September 12, 2007. Applicant received the FORM on
October 2, 2007. Applicant’s response was submitted on November 27, 2007, and
 The charges were carrying a concealed weapon (CCW), a felony, and possession of marijuana , a misdemeanor.1
 Presumably, Applicant is referring to his SCA (Item 4) he signed on August 25, 2005. However, the SCA reflects2
he answered “YES” to question 23.a. (Have you ever been charged with or convicted of any felony offense?).
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received on December 5, 2007. Department Counsel was notified on December 6, 2007
by the DOHA administrative staff that the response was received, and officially
acknowledged there would be no objection to Applicant’s response. The case was
assigned to me for decision on December 17, 2007.
Findings of Fact
Applicant is 36 years old and has worked for his employer since 1991. He began
as a production lead and was promoted in January 2005 to supply chain
manager/logistics specialist. He seeks a security clearance. 
Criminal Conduct. Applicant admitted both charges  in subparagraph 1.a. of the1
SOR. Plea negotiations resulted in the CCW charge being reduced to a misdemeanor
while the marijuana charge was dropped. The weapon was discovered in the driver’s
door compartment after he was stopped for speeding on September 1, 1995. The
marijuana was found during a search of the car. 
Applicant had the gun in his car for protection. Four years later, he obtained a
state gun license. He does not carry a gun currently because he has children. In
explaining the ultimate disposition of the charges, Applicant stated, “I was told by my
lawyer at the time that the marijuana charges were dropped and the felony of the
weapons charge was reduced to a misdemeanor and all I had to do was mail in a fine
and forfeit the gun to the state of [Y]”(Item 3). Applicant noted that he answered the
felony question “NO”  on his security clearance application (SCA) because he did not2
know a charge is not canceled or voided with the disposition of the case. 
Drug Involvement. Applicant denied he used marijuana until 2005 as alleged
under subparagraph 2.a. In his responses to interrogatories (Item 5) dated September
25, 2006, he claims he made a mistake in responding to question 5 of the
interrogatories by stating that his last use of marijuana was September 1, 2005. He
attributes the mistake to haste and not properly checking the answers before submitting
them. He meant to place the “1995" year in place of the “2005" year, because the earlier
date indicates when he was charged with the two crimes alleged in subparagraph 1.a.
of the SOR. Furthermore, Applicant stated he took several drug tests since 1995, and
had to quit using marijuana to maintain his job. Also, Applicant requested in a cover
letter (January 4, 2007) in his answer to the SOR that he had not been sent the
information that supported the government’s claim of his marijuana use after September
1, 1995. 
Even though several of Applicant’s responses in Item 5 (responses to
interrogatories) appear to be entered in the appropriate spaces, then traced over a
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second time, there is no way for me to determine why he employed this procedure with
some of his responses and not others. Tracing his responses a second time could mean
he was trying to emphasize the accuracy of the entry, and that September 1, 2005 was
actually the last time he used marijuana. An equally credible explanation is that his first
pen failed temporarily and he used a second pen to complete his interrogatory
responses. Having weighed Applicant’s explanations, I find that he intended to write in
the date when he was originally charged with the two offenses. He negligently entered
the wrong year. Accordingly, I find Applicant’s last marijuana use was in 1995.
Subparagraph 2.a. and 2.b. are found in Applicant’s favor. Subparagraph 2.c. was
admitted by Applicant, but mitigated by the passage of more than 12 years. 
Personal Conduct. I find Applicant intentionally falsified his SCA on August 25,
2005 (subparagraph 2.a.) by denying he had ever been charged with an offense related
to alcohol or drugs. I do not accept Applicant’s first explanation that he did not know the
charges stay with you whether reduced or dropped. Based on my findings under
paragraph 2, subparagraph 3.b. is found in Applicant’s favor. His drug use falls outside
the purview of question 24 (a) of his August 25, 2005 SCA because it was not within the
last seven years.
Applicant was interviewed on January 27, 2006, and contacted by telephone
between January 5, 2006 and May 1, 2006 (subparagraph 3.c.) and he did not disclose
the possession of marijuana charge resulting from his arrest in September 1995. He
stated in explanation the reason he did not disclose the marijuana offense during the
interviews was, “the possession of marijuana was dropped along with the concealed
weapons charges. With them being dropped, I thought that there was never formal
charges.” (Item 5, response to question 3) I find he intentionally concealed the drug
offense during the two interviews.
Applicant attributed the undisclosed information to haste and/or not being aware
of the permanence of a criminal record. 
Applicant has been employed by his employer for 16 years. His job consists of
completing subassemblies for aircraft and managing personnel/suppliers in the
manufacturing and maintenance process. He is currently enrolled at an online university
where he recently received an associate’s degree in business. 
Policies
Enclosure 2 of the Directive sets forth guidelines containing disqualifying
conditions (DC) and mitigating conditions (MC) that should be given binding
consideration in making security clearance determinations. These conditions must be
considered in every case along with the general factors of the whole person concept.
However, the conditions are not automatically determinative of the decision in any case
nor can they supersede the Administrative Judge's reliance on his own common sense. 
 A misdemeanor is generally defined as a minor crime less serious than a felony, and where the sentence is one year3
or less, a fine, or both. A felony is a serious crime for which the sentence of one year or more may be imposed. 
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Burden of Proof
Initially, the government must establish, by substantial evidence, that conditions
exist in the personal or professional history of the applicant which disqualifies, or may
disqualify, the applicant from being eligible for access to classified information. See
Department of the Navy v. Egan, 484 U.S. 518, 531 (1988) “[T]he Directive presumes
there is a nexus or rational connection between proven conduct under any of the criteria
listed therein and an applicant’s security suitability.” ISCR Case No. 95-0611 at 2 (App.
Bd. May 2, 1996) (quoting DISCR Case No. 92-1106 (App. Bd. Oct. 7, 1993)). 
Once the government establishes a disqualifying condition, the burden shifts to
the applicant to rebut, explain, extenuate, or mitigate the facts. “[S]ecurity clearance
determinations should err, if they must, on the side of denials.” See Egan, 481 U.S. at
531; see Directive E2.2.2.
Criminal Conduct (CC)
Criminal behavior creates doubt about a person’s judgment and willingness to
comply with laws. 
Drug Involvement (DI)
Use of illegal drugs invites questions about an individual’s reliability and
trustworthiness.
Personal Conduct (PC)
Conduct involving questionable judgment, dishonesty, or unwillingness to comply
with rules and regulations can raise questions about an individual’s reliability and
trustworthiness. 
Analysis
Criminal Conduct (CC)
Applicant’s conviction of the misdemeanor  of carrying a concealed weapon3
offense and possession of marijuana (subparagraph 1.a.) falls within (DC) 31.a. (a
single serious crime or multiple lesser offenses). However, the conduct is mitigated by
the passage of time. Therefore, CC mitigating condition (MC) 32.a. (so much time has
elapsed since the criminal behavior happened, or it happened under such unusual
circumstances that it is unlikely to recur and does not cast doubt on the individual’s
reliability, or good judgment) is applicable to find subparagraph 1.a. in Applicant’s favor.
 As discussed below, my favorable finding under subparagraph 2.b. warrants a finding for Applicant under4
subparagraph 3.b. because he there has been no drug use since September 1995. 
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Subparagraph 1.b. alleges Applicant violated 18 U.S.C. 1001 by intentionally
falsifying questions 23(d) and 24(a)  of his August 25, 2005 SCA, and by failing to4
disclose the marijuana charge during an interview on January 27, 2006, and during a
telephone interview between January 5, 2006 and May 1, 2006. In order to establish a
violation of 18 U.S.C. 1001, the falsifications must be material or capable of influencing
an agency decision. Due to the passage of time, I conclude that the deliberate
falsifications are no longer material. Subparagraph 1.b. is found for Applicant. 
Assuming the falsifications are found to be material, then CC MC 32.a. provides
substantial mitigation. CC MC 32.d. (there is successful rehabilitation; including but not
limited to the passage of time without recurrence of criminal activity, remorse or
restitution, job training or higher education, good employment record, or constructive
community involvement) applies in part due to the positive character evidence supplied
by Applicant. His academic record and good job performance weigh in his favor, even
though the two items of character evidence provide little insight into his pattern of
dishonesty during the security investigation. Subparagraph 1.b. is resolved in
Applicant’s favor. 
Drug Involvement (DI)
Applicant’s drug involvement fits the definition of DI DC 25.a. (any drug use) and
25.c. (illegal drug possession, including cultivation, processing, manufacture, purchase,
sale, or distribution; or possession of drug paraphernalia). The infrequent drug use is
mitigated by the passage of about 12 years and DI MC 26.a. (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). Subparagraphs 2.a., 2.b., and 2.c. are resolved in Applicant’s favor.
Personal Conduct (PC)
Applicant’s deliberate falsification of his SCA on August 25, 2005 falls within PC
DC 16.a. (the deliberate omission or falsification of relevant facts from any personnel
security questionnaire to determine security clearance eligibility). Applicant’s deliberate
omission of his marijuana charge during an interview on January 27, 2006 and an
interview conducted between January 5 and May 1, 2006 invoke the application of PC
DC 16.b. (deliberately providing false or misleading information concerning relevant
facts to an investigator). The three elements of PC DC 16.a. are satisfied based on
Applicant’s deliberate omission of his drug charge from his SCA, an application form
utilized by the government to determine security clearance eligibility. Applicant’s
deliberate omissions did not stop in August 2005. Between January and May 2006,
Applicant continued to deny the marijuana charge. The three elements of PC DC 16.b.
are satisfied based on the deliberate omission of relevant facts to an investigator. 
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I have carefully weighed the mitigating conditions under the PC guideline and
have concluded none apply. PC DC 17.a. (the individual made prompt, good-faith
efforts to correct the omission or falsification before being confronted with the facts) is
inapplicable because Applicant did not disclose the marijuana charge even after he
knew or should have known his drug record was a security concern. Applicant did not
admit to the drug charge until September 2006 when he was specifically asked why he
omitted the drug information. PC MC 17.c. (the offense was minor, or so much time has
passed, or the behavior is so infrequent, or it happened under such circumstances that
it is unlikely to recur and does not cast doubt on the individual’s reliability,
trustworthiness, or good judgment) is not applicable due to the seriousness and recency
of Applicant’s falsifications. PC MC 17.d. (the individual has acknowledged the behavior
and obtained counseling to change the behavior or taken other positive steps to
alleviate the stressors, circumstances, or factors that caused the untrustworthy,
unreliable, or other inappropriate behavior, and such behavior is unlikely to recur) does
not apply either. Applicant only acknowledged his drug charge after trying
unsuccessfully several times to conceal the information, and he has not received
counseling. Subparagraphs 3.a. and 3.c., and the PC guideline are found against
Applicant. 
Whole Person Concept (WPC)
In rendering my decision under the specific guidelines, I have considered this
case under the general concepts of the whole person. When Applicant committed the
criminal conduct in 1995, he may not have been aware about the nature and
permanence of criminal records. Ten years later he may not have been aware of the
importance of full disclosure on an SCA. However, when he was contacted by the
investigator between January and May 2006, he should have realized (at age 34) that
his drug record was a security concern. Rather than simply disclosing the marijuana
charge however, he chose to continue concealment of the information. Due to the
recency of his falsifications, insufficient time has passed to conclude he warrants
access to a security clearance. Applicant has mitigated the drug involvement concerns
with the passage of time. The passage of time and the lack of materiality of the
underlying criminal behavior has mitigated the criminal behavior. Applicant’s academic
record and job performance are insufficient to overcome the pattern of falsifications
under the personal conduct guideline.
Formal Findings 
Paragraph 1 (Criminal Conduct, Guideline J): FOR THE APPLICANT
Subparagraph 1.a. For the Applicant.
Subparagraph 1.b. For the Applicant.
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Paragraph 2 (Drug Involvement, Guideline H): FOR THE APPLICANT.
Subparagraph 2.a. For the Applicant.
Subparagraph 2.b. For the Applicant.
Subparagraph 2.c. For the Applicant.
Paragraph 3 (Personal Conduct, Guideline E): AGAINST THE APPLICANT.
Subparagraph 3.a. Against the Applicant.
Subparagraph 3.b. For the Applicant.
Subparagraph 3.c. Against the Applicant.
Conclusion
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
Applicant. Clearance is denied. 
                      
Paul J. Mason
Administrative Judge