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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 06-20892
)
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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ANTHONY, Joan Caton, Administrative Judge:
After a thorough review of the case file, pleadings, and exhibits, I conclude that
Applicant has failed to rebut or mitigate the Government’s security concerns under the
Criminal Conduct, Alcohol Consumption, and Drug Involvement adjudicative guidelines.
His eligibility for a security clearance is denied.
Applicant submitted his Security Clearance Application (SF 86), on June 13,
2005. On March 29, 2007, the Defense Office of Hearings and Appeals (DOHA) issued
Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline J
(Criminal Conduct), Guideline G (Alcohol Consumption), and Guideline H (Drug
Involvement). DOHA’s action was taken pursuant to Executive Order 10865,
Safeguarding Classified Information within Industry (February 20, 1960), 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 June 13, 2007 and July 11, 2007. In
his answer, Applicant requested that his case be determined on the record in lieu of a
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hearing.  The Government compiled its File of Relevant Material (FORM) on October
24, 2007.  The FORM contained documents identified as Items 1 through 10.  A copy of
the FORM was provided to Applicant on October 29, 2007, with instructions to submit
any additional information and/or objections within 30 days of receipt.  Applicant
received the file on November 7, 2007.  He did not file any additional information within
the required time period.  On January 15, 2007, the case was assigned to me for a
decision. 
Findings of Fact
The SOR contains three allegations of disqualifying conduct under Guideline J,
Criminal Conduct, two allegations of disqualifying conduct under Guideline G, Alcohol
Consumption, and three allegations under Guideline H, Drug Involvement. (Item 1.)
Applicant admitted all allegations in the SOR, with explanations. He also provided
additional information to support his request for a security clearance. (Items 3 and 4.)
His admissions are incorporated herein as findings of fact.
Applicant is 30 years old, single, and employed as an applications engineer by a
Federal contractor.  He served on active duty in the U.S. Marine Corps from 1996 to
2000.  He received an honorable discharge.  From January 2000 to February 2003, he
served in the Marine Corps Reserve.  He has worked for the same employer since
February 2001.
Applicant completed a security clearance application (SF-86) on June 13, 2005.
In response to Question 31 on the SF-86, Applicant stated he was granted a secret
level security clearance in April 2001. In response to Question 27 on the SF-86,
Applicant admitted illegal use of marijuana approximately four times between January 1,
2001 and January 1, 2004. The record does not specify whether Applicant held an
active security clearance at the time he completed his SF-86 in June 2005.  Applicant
used marijuana approximately two times in March 2006 to relieve pain from knee
surgery.  Although a physician had prescribed pain medication, he elected not to use it
and to self-medicate with marijuana instead.  (Items 5 and 7; SOR ¶¶ 3.a., 3.b., and
3.c.)
On about December 11, 2003, Applicant was arrested and charged with (1) DUI
of Alcohol and/or Drugs with Allegation of Willfully Refusing Police Officer’s Request to
Submit to a Chemical Test to determine Alcohol Content, (2) Driving While Having 0.08
Percent or More of Alcohol in Blood with Allegation of Willfully Refusing A Police
Officer’s Request to Submit to a Chemical Test to Determine Alcohol Content, and (3)
Possession of less than 10 ounces of marijuana.  On April 24, 2004, Applicant pled
guilty to DUI of Alcohol and/or Drugs with Allegation of Willfully Refusing Police Officer’s
Request to Submit to a Chemical Test to Determine Alcohol Content.  The other
charges were dismissed.  Applicant was sentenced to serve 180 days in custody,
suspended for five years, required to pay a fine of $1,760, to abstain from driving with
any measurable amount of alcohol in his system, and to submit to any alcohol/drug test
request of a police officer. He was also required to attend a three-month first conviction
alcohol counseling program and to attend a Mothers Against Drunk Driving program.
His driver’s license was restricted.  (Items 6, 7, 8; SOR ¶¶ 1.c. and 2.a.)
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On about June 18, 2005, Applicant was arrested and charged with Disorderly
Conduct; Drunk in Public.  (Item 7; SOR ¶ ¶ 1.b. and 2.a.)
On about January 15, 2006, Applicant was arrested and charged with Driving
Under the Influence (DUI) of Alcohol. He stated he was sick on or about January 15,
2006 and had consumed NyQuil before the arrest. He was found guilty and sentenced
to four days in jail, a fine of $2,400, and a  Mothers Against Drunk Driving session.  He
was also ordered by the court to attend a three-month alcohol counseling program,
which he completed.  (Items 8 and 9;  SOR ¶¶ 1.a., 2.a., 2.b.)
In notarized responses to interrogatories from DOHA, Applicant stated, in
December 2006, that he drank alcohol, but not to intoxication.  He stated he intended to
drink alcohol in the future.  He stated he had stopped using illegal drugs. He also stated:
“I never took illegal drugs enough to affect my lifestyle.”  (Item 7 at 9.)
Applicant sought mental health counseling from a licensed clinical social worker
for anxiety and stress in about June 2006.  His counselor sent him to a physician for a
diagnosis. The physician determined that Applicant suffered from depression, and he
prescribed an anti-depressant.  Applicant met with the physician and the counselor from
July to December 2006.  In January 2007, the counselor provided a letter for the record
in which he reported that Applicant had resolved the issues for which he sought
treatment.  The counselor concluded: “I do not believe [Applicant] is currently suffering
from any condition known by me at this time which is impairing his judgment or
reliability.”  (Items 3, 7, 8.)  Applicant’s treatment did not include diagnoses for alcohol
or drug dependence or abuse.
In response to the SOR, Applicant stated that in March 2007 he had voluntarily
enrolled in an 18-month alcohol/drug counseling program that included weekly
attendance at Alcoholics Anonymous meetings. (Item 3, Item 4.)
Applicant provided a copy of his performance evaluation for the review period
beginning in February 2006 and ending in February 2007. Applicant’s supervisor
praised his technical expertise and stated: “When focused, [Applicant] consistently
achieves high standards for himself and members of his team. [Applicant] is a valuable
member of [the company’s] team.”  (Item 3 at 9.)
Policies
When evaluating an Applicant’s suitability for a security clearance, the
Administrative Judge must consider the revised adjudicative guidelines (AG). In addition
to brief introductory explanations for each guideline, the adjudicative guidelines list
potentially disqualifying conditions and mitigating conditions which are useful in
evaluating an Applicant’s eligibility for access to classified information.
These guidelines are not inflexible rules of law. Instead, recognizing the
complexities of human behavior, these guidelines are applied in conjunction with the
factors listed in the adjudicative process. The Administrative Judge’s over-arching
adjudicative goal is a fair, impartial and common sense decision. According to AG ¶
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2(c), the entire process is a conscientious scrutiny of a number of variables known as
the “whole person concept.” The Administrative Judge must consider all available,
reliable information about the person, past and present, favorable and unfavorable, in
making a decision.
The protection of national security is the paramount consideration. AG ¶ 2(b)
requires that “[a]ny doubt concerning personnel being considered for access to
classified information will be resolved in favor of national security.” In reaching this
decision, I have drawn only those conclusions that are reasonable, logical and based on
the evidence contained in the record. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the Applicant is
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The
Applicant has the ultimate burden of persuasion as to obtaining a favorable security
decision. 
A person who seeks access to classified information enters into a fiduciary
relationship with the Government predicated upon trust and confidence. This
relationship transcends normal duty hours and endures throughout off-duty hours. The
Government reposes a high degree of trust and confidence in individuals to whom it
grants access to classified information. Decisions include, by necessity, consideration of
the possible risk the Applicant may deliberately or inadvertently fail to protect or
safeguard classified information. Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
 
Section 7 of Executive Order 10865 provides that decisions shall be “in terms of
the national interest and shall in no sense be a determination as to the loyalty of the
applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).  
Analysis
Guideline J, Criminal Conduct
The Government’s concern under the Criminal Conduct revised adjudicative
guideline is that a history or pattern of criminal activity creates doubt about an
individual’s judgment, reliability, and trustworthiness. Criminal conduct also raises
doubts about a person’s ability or willingness to comply with laws, rules, and
regulations.  Guideline J, ¶ 30.
Two conditions could raise a security concern and may be disqualifying:
Disqualifying Condition (DC) 31(a): a single serious crime or multiple lesser offenses
and DC 31(c): allegation or admission of criminal conduct, regardless of whether the
person was formally charged, formally prosecuted or convicted.  The record in this case
DC 31(a) reads: “a single serious crime or multiple lesser offenses.”  DC 31(d) reads: “individual is currently1
on parole or probation.” 
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shows that Applicant was arrested in 2003, 2005, and 2006 for alcohol-related offenses.
In 2003, he was arrested and charged with DUI.  He received a sentence of four days in
jail and a fine of $2,400.  He was also required to attend a Mothers Against Drunk
Driving session, and he was ordered to attend a three-month alcohol counseling
program.  In 2005, he was arrested and charged with Disorderly Conduct; Drunk in
Public.  In December 2006, he was again arrested and charged with DUI and again
ordered to attend a three-month alcohol counseling program. Applicant’s admitted
criminal activity raises security concerns under Disqualifying Conditions (DC) 31(a) and
31(d)  of Guideline J.1
Two mitigating conditions under Guideline J might apply to the facts of
Applicant’s case.  Applicant’s admitted criminal conduct might be mitigated under
Mitigating Condition (MC) 32(a) if he provided credible evidence to show that 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, trustworthiness, or good judgment.  Applicant’s admitted criminal
activity, however, is recent and raises concerns about his reliability, trustworthiness, and
good judgment. He provided no credible evidence to substantiate a conclusion that the
conduct is unlikely to recur.  Accordingly, I conclude MC 32(a) is inapplicable. 
 
Applicant’s admitted criminal conduct might be mitigated under MC 32(d) if he
provided evidence of 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.
Applicant failed, however, to show that  sufficient time had passed to reasonably
conclude his criminal activity had ceased and would not be repeated in the future. While
he presented a good performance evaluation for the period beginning in February 2006
and ending in February 2007, he also admitted illegal use of marijuana and during that
time.  Accordingly, I conclude the evidence fails to show successful rehabilitation and
MC 32(d) does not apply.
Guideline G, Alcohol Consumption
Excessive alcohol consumption raises security concerns because it often leads to
the exercise of questionable judgment or the failure to control impulses, thus raising
questions about an individual’s reliability and trustworthiness.  Guideline G, ¶ 21. 
The record evidence and Applicant’s admissions show he was arrested three
times between 2003 and 2006 and charged with alcohol-related offenses.  After his
2003 and 2006 arrests, he was directed by the court to enroll in three-month alcohol
counseling programs.  He provided evidence he had completed the 2006 program, and
he claimed he no longer consumed alcohol to excess. He provided evidence he had
enrolled in March 2007 in an 18-month alcohol and drug counseling program.  However,
he provided no credible evidence to corroborate his claim of temperate consumption of
alcohol. 
DC 22(a) reads: “alcohol-related incidents away from work, such as driving while under the influence, child2
or spouse abuse, disturbing the peace, or other incidents of concern, regardless of whether the individual is
diagnosed as an alcohol abuser or alcohol dependent.”  DC 22(c) reads: “habitual or binge consumption of
alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed as an alcohol
abuser or alcohol dependent.”  
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The alcohol-related conduct alleged in the SOR and admitted by Applicant raises
concerns under Disqualifying Condition (DC) 22(a) and (DC) 22(c).   His three alcohol2
arrests away from work raise concerns under DC 22(a).  His admitted consumption of
alcohol to excess and sometimes to the point of intoxication raises concerns under  DC
22(c). 
Under Guideline G, there are four mitigating conditions that could apply to
Applicant’s disqualifying conduct. An applicant might mitigate disqualifying conduct
under Mitigating Condition (MC)  23(a) of Guideline G if he provided credible evidence
to show that so much time has passed, or the behavior was so infrequent, or it
happened under such unusual circumstances that it is unlikely to recur or does not cast
doubt on the individual’s current reliability, trustworthiness, or good judgment.  An
applicant might also mitigate disqualifying conduct under MC 23(b) by acknowledging
his or her alcoholism or issues of alcohol abuse, provid[ing] evidence of actions taken to
overcome this problem, and. . . establish[ing] a pattern of abstinence (if alcohol
dependent) or responsible use (if an alcohol abuser).
If an applicant is a current employee who is participating in a counseling or
treatment program, has no history of previous treatment and relapse, and is making
satisfactory progress, he might be able to provide evidence of mitigation under MC 23
(c).  Finally, MC 23(d) might apply if  the individual has successfully completed inpatient
or outpatient counseling or rehabilitation along with any required aftercare, has
demonstrated a clear and established pattern of modified consumption or abstinence in
accordance with treatment recommendations, such as participation in meetings of
Alcoholics Anonymous or a similar organization and has received a favorable prognosis
by a duly qualified medical professional or a licensed clinical social worker who is a staff
member of a recognized alcohol treatment program.
Applicant’s admitted excessive use of alcohol resulted in three alcohol-related
arrests: in 2003, 2005, and 2006.  Thus, his disqualifying behavior was not infrequent,
and his most recent arrest occurred approximately two years ago.  Applicant failed to
provide credible evidence that the conduct was not habitual, unlikely to recur, and does
not lead to concerns about his current reliability, trustworthiness, and good judgment.
While he provided evidence he had completed a three-month alcohol counseling
program, as ordered by the court, and he had voluntarily enrolled in an 18-month
alcohol/drug counseling program in March 2007, he failed to provide credible evidence
of an established pattern of abstinence (if alcohol dependent) or responsible use (if an
alcohol abuser).  Accordingly, I conclude that MC 23(a) and MC 23(b) are inapplicable.
Additionally, while Applicant is currently participating in an alcohol/drug counseling
program, he failed to provide evidence to show he had no previous treatment for alcohol
dependence or abuse and had no history of relapse.  While he provided evidence he
Specific examples of demonstrated intent that might apply under MC26(b) are as follows: (1) disassociation3
from drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used;
(3) an appropriate period of abstinence; and (4) a signed statement of intent with automatic revocation of
clearance for any violation. 
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had successfully completed a court-ordered alcohol counseling program, he failed to
provide evidence of a demonstrated pattern of modified consumption or abstinence in
accord with treatment recommendations.  Additionally, he failed to show participation in
a recommended program of aftercare or to provide evidence of a favorable prognosis.
Accordingly, I conclude MC 23(c) and MC 23(d) are inapplicable. No other MCs apply. 
Guideline H,  Drug Involvement
An individual’s use of an illegal drug or misuse of a prescription drug raises
questions of reliability and trustworthiness because drug use or misuse can impair
judgment and raise questions about the person’s ability or willingness to comply with
laws, rules, and regulations.  Guideline H, ¶ 24.  Guideline H defines drugs as mood
and behavior altering substances. . . . Drugs include: (1) 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), and (2) inhalants and other similar substances.  Guideline H, ¶ 24(a)(1)
and ¶ 24(a)(2).  The Guideline further defines drug abuse as the illegal use of drug or
use of a legal drug in an manner that deviates from approved medical direction.
Guideline H, ¶ 24(b).
Applicant admitted using marijuana, an illegal drug, with varying frequency, from
about January 2001 to about January 2004, and in 2006.  He was charged with
possession of marijuana in 2003, and he used marijuana after being granted a security
clearance in 2001 and after submitting his application for a security clearance in 2005. 
Applicant’s conduct raises security concerns under Disqualifying Condition (DC)
25(a), (DC) 25(c), and (DC) 25(g) of Guideline H.   
Several Mitigating Conditions (MC) under Guideline H might be applicable to
Applicant’s case.  If the drug abuse 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, then MC 26(a)
might apply.  If Applicant intended not to abuse drugs in the future and demonstrated
that intent in one of the four ways specified in the Guideline, then MC 26 (b) might
apply.   Additionally, drug abuse that is of security concern can be mitigated under MC3
26(d) by satisfactory completion of a prescribed drug treatment program, including but
not limited to rehabilitation and aftercare requirements, without recurrence of abuse,
and a favorable prognosis by a duly qualified medical professional.
The record shows that Applicant’s marijuana abuse began in about 2001 and
continued intermittently to 2006. Thus, his drug abuse is recent, and Applicant provided
no credible evidence to corroborate his assertion that he no longer uses drugs and has
Applicant provided credible evidence from his therapist that he no longer suffered from stress anxiety and4
depression.
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no intent to use them in the future.  Applicant failed to provide evidence he had4
satisfactorily completed a prescribed drug treatment program.  None of the Guideline H
MCs apply to Applicant’s use of marijuana. 
Whole Person Concept
Under the whole person concept, the Administrative Judge must evaluate an
Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s
conduct and all the circumstances. The Administrative Judge should consider the nine
adjudicative process factors listed at AG ¶ 2(a): “(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
individual’s age and maturity at the time of the conduct; (5) 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.”
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security
clearance must be an overall commonsense judgment based upon careful consideration
of the guidelines and the whole person concept.       
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. 
Applicant’s admissions and the record evidence establish recent criminal activity,
excessive use of alcohol, and illegal drug involvement. While he presented a positive
performance evaluation for the period of 2006 and 2007, the record shows he was also
using marijuana during part of that time. Applicant’s use of marijuana in 2006 occurred
when he elected not to use medication prescribed by his physician and decided to self-
medicate with marijuana instead.  When he was sick in January 2006, he had elected to
consume NyQuil, which he stated led to his arrest for DUI.
Applicant’s tendency to self-medicate raises unresolved security concerns about
his ability to avoid illegal drugs and to use alcohol responsibly. It also raises concerns
about his judgment, reliability, and trustworthiness.
Applicant’s abuse of alcohol and illegal drugs is recent. Insufficient time has
passed for him to demonstrate credible rehabilitation and resolve to avoid excessive
use of alcohol and avoidance of illegal drugs.  However, he is to be commended for
voluntarily undertaking an 18-month DUIP program, which began in March 2007 and will
be completed in September 2008. With the passage of time and consistent good faith
rehabilitative efforts, he might establish in the future that he is reliable, trustworthy, and
merits a security clearance.  At the present time, however, Applicant has failed to
demonstrate that he is not a security risk.
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In ISCR Case No. 98-0761 at 3 (Dec.27, 1999), DOHA’s Appeal Board states
that an administrative judge, in deciding an Applicant’s security worthiness, “must
consider the record as a whole (Directive Section F.3.) and decide whether the
favorable evidence outweighs the unfavorable evidence, or vice versa.” I have
considered the record as a whole and have evaluated Applicant’s conduct under the
whole person concept of the Directive.  I conclude that he has failed to demonstrate that
it is clearly consistent with the national interest to grant him a security clearance.
 
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by section E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline J: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c.: Against Applicant
Paragraph 2, Guideline G AGAINST APPLICANT
Subparagraph 2.a.: Against Applicant
Subparagraph 2.b.: Against Applicant
Paragraph 3, Guideline H AGAINST APPLICANT
Subparagraph 3.a.: Against Applicant
Subparagraph 3.b.: Against Applicant
Subparagraph 3.c.: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                              
____________________________
JOAN CATON ANTHONY
Administrative Judge