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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 07-07991
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Francisco Mendez, Esquire, Department Counsel
For Applicant: David P. Price, Esquire
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Decision
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LYNCH, Noreen A., Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86), on June 12,
2006. On September 24, 2007, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under Guideline
E for Applicant. The action was taken under 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 acknowledged receipt of the SOR on October 7, 2007. He answered
the SOR in writing through counsel on November 13, 2007, and requested a hearing
before an Administrative Judge. DOHA received the request on December 16, 2007,
and I received the case assignment on the same day. I granted Applicant’s request for a
delay until late January 2008, in order for his counsel to be available. DOHA issued a
notice of hearing on December 26, 2007, and I convened the hearing as scheduled on
GE 3 (Applicant’s Security Application Form, dated June 12, 2006).1
AE A (Attachments 1-28).2
Tr. 85; 88.3
AE B (Letters of Reference).4
2
January 31, 2008. The government offered Exhibits (Ex.) 1 through 5 which were
received without objection. Applicant testified on his own behalf and submitted Exhibits
A through E, without objection. Applicant also presented the testimony of six witnesses.
DOHA received the transcript of the hearing (Tr.) on February 7, 2008. Based upon a
review of the case file, pleadings, exhibits, and testimony, eligibility for access to
classified information is granted.
Findings of Fact
In his Answer to the SOR, dated October 7, 2007, Applicant admitted the factual
allegations in ¶¶ 1.a- 1.e, and 1.g of the SOR, with explanations. He denied the factual
allegations in ¶¶ 1.f and 1.h of the SOR. He also provided additional information to
support his request for eligibility for a security clearance.
Applicant is a 46-year-old employee of a defense contractor. After graduating
from high school in 1979, he started working at a marina. Shortly after that, he joined
the U.S. Navy. While in the military, his career progressed from his position as a diesel
mechanic to Chief Engineer. However, after ten years, he was discharged with an-
other than honorable (OTH) in May 1989. Applicant used marijuana and tested positive
for marijuana in 1983 and in March 1989. The discharge was based on Applicant’s use
of marijuana and the positive urinalysis tests while in the U.S. Navy.1
While in the Navy, he received numerous awards, recognition and certificates.
He was an outstanding operator and mechanic. He earned the respect of junior and
senior leadership. He was highly recommended for any position of leadership. His
officer-in-charge noted in 1989 that Applicant has diverse skills and a disciplined work
ethic. He was reliable and professional.2
Applicant married in 1985. He and his wife have one son. His wife has problems
with alcohol and depression. His son has been arrested and charged with possession of
marijuana. He is currently attending a drug rehabilitative program. His son is now 21
years old.  3
In 1994, Applicant started his employment with a contractor. He has maintained a
security clearance since 1996. His employment record is outstanding. In 1995, he
received the employee of the year award. Applicant has received cash awards. Again in
2007, Applicant received the employee of the year award. His record is replete with
praise and comments on his extraordinary performance. He is in charge of a mobile
launch platform. He also has his Coast Guard Masters’ License.4
GE 1 (Security Application dated 1996).5
Tr. 106.6
Tr. 136.7
3
On February 14, 1996, Applicant completed a security clearance application
form. In response to Question 24, Applicant listed his marijuana use as April 1989. He
reported his OTH discharge for the marijuana use on the form under Question 23
(Police Record).  He did not disclose marijuana use subsequent to 1989.5
In May 2004, Applicant and his son drove to Florida for a vacation. Applicant was
speeding and was stopped by the police. When his son saw the police vehicle, he
immediately told Applicant that he had some marijuana in his possession. Applicant told
his son to give him the baggie of marijuana. He wanted to protect his son and did not
want to get his son in any trouble. The police smelled the marijuana in the car. Applicant
told the police officer that he had the marijuana. As a result, Applicant received a
citation and was charged with a misdemeanor, and possession of marijuana. After the
incident, Applicant called an attorney because of potential difficulties with his security
clearance. Applicant was told to make a $500 contribution to charity and after that the
charge was dismissed. The attorney advised Applicant it was taken care of and that he
had nothing to worry about.  Applicant understood that everything was dismissed and6
that there was nothing on his record, showing a conviction. 
On June 12, 2006, Applicant completed his security clearance application form
for a top secret clearance. In response to Section 23 - Your Police Record, he answered
“no”, that he had never been charged with or convicted of any offenses related to
alcohol or drugs. He did not disclose the charge for the misdemeanor (marijuana
possession) incident of May 2004.  He believed there was no obligation to disclose it
because his attorney told him the charge was dismissed. His attorney did not advise
him about disclosure on his security clearance application. In fact, Applicant never
appeared in court. On that same application form, Applicant made other errors
unrelated to drug use. These errors were identified and corrected during the interview in
2006.7
During November and December 2006, Applicant spoke to investigators as part
of his security investigation. He told the investigators that he did not have any
alcohol/drug charges. He also expanded upon his admitted drug use, and told
investigators in April 2007 that he smoked marijuana and last used it approximately
1992.
In April 2007, Applicant again spoke with investigators about his admitted use of
marijuana in the past. Applicant disclosed that he recalls smoking randomly from 1979
to 1992 but the exact date was not recalled as discussed above. On August 22, 2007,
Applicant completed interrogatories concerning his previous drug use. He reported his
last use of marijuana was weekly in 1992. He stopped using marijuana due to his job
GE 4 (Applicant’s Response to Interrogatory, dated August 22, 2007).8
Testimony of W itnesses at Tr. 24; 40; 56; 65; 78; and 86.9
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responsibility. He does not associate with anyone who uses drugs. He has no intention
of using marijuana . Applicant marked a “?” Mark on the interrogatory, question 6,
concerning an arrest or charge and then explained the 2004 incident in Florida with his
son. 8
Applicant’s current position is a challenging and demanding one. His colleagues
and supervisors applaud him for his leadership and his integrity. He is open, honest,
and loves his job. Applicant is subject to random drug tests from his employer and the
Coast Guard.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 ¶ 2©,
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 the 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. 
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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 E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
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.
The following will normally result in an unfavorable clearance action or
administrative termination of further processing for clearance eligibility:
(a) refusal, or failure without reasonable cause, to undergo or cooperate
with security processing, including but not limited to meeting with a
security investigator for subject interview, completing security forms or
releases, and cooperation with medical or psychological evaluation; and
(b) refusal to provide full, frank and truthful answers to lawful questions of
investigators, security officials, or other official representatives in
connection with a personnel security or trustworthiness determination.
AG ¶ 16 describes conditions that could raise a security concern and may be
disqualifying:
(a) 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
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qualifications, award benefits or status, determine security clearance
eligibility or trustworthiness, or award fiduciary responsibilities;
(b) deliberately providing false or misleading information concerning
relevant facts to an employer, investigator, security official, competent
medical authority, or other official government representative;
(c) credible adverse information in several adjudicative issue areas that is
not sufficient for an adverse determination under any other single
guideline, but which, when considered as a whole, supports a whole-
person assessment of questionable judgment, untrustworthiness,
unreliability, lack of candor, unwillingness to comply with rules and
regulations, or other characteristics indicating that the person may not
properly safeguard protected information;
(d) credible adverse information that is not explicitly covered under any
other guideline and may not be sufficient by itself for an adverse
determination, but which, when combined with all available information
supports a whole-person assessment of questionable judgment,
untrustworthiness, unreliability, lack of candor, unwillingness to comply
with rules and regulations, or other characteristics indicating that the
person may not properly safeguard protected information. This includes
but is not limited to consideration of: . . . (3) a pattern of dishonesty or rule
violations; and
(e) personal conduct, or concealment of information about one’s conduct
that creates a vulnerability to exploitation, manipulation, or duress, such
as (1) engaging in activities which, if known, may affect the person’s
personal, professional, or community standing. 
The Government established security concerns over Applicant’s use of marijuana
from 1979 to 1992. He admitted using marijuana  from 1979 to 1989, while in the U.S.
Navy. He tested positive for marijuana in 1983 and again in 1989. He received an OTH
characterization of his service in 1989 due to his marijuana use. In 1996, he falsely
failed to disclose his marijuana use on his SF 86, which was as recent as four years
earlier. On November 1, 2004, he possessed marijuana that he received from his son,
and provided to the police. There is substantial evidence that he failed to disclose the
2004 marijuana possession on his 2006 SF 86. Such conduct, if known, adversely
affects one’s personal, professional and community standing. There is substantial
evidence, establishing all the SOR allegations.
AG ¶ 17 provides conditions that could mitigate security concerns:
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
The Appeal Board has cogently explained the process for analyzing falsification cases, stating:10
(a) when a falsification allegation is controverted, Department Counsel has the burden of
proving falsification; (b) proof of an omission, standing alone, does not establish or prove an
applicant’s intent or state of mind when the omission occurred; and (c) a Judge must consider
the record evidence as a whole to determine whether there is direct or circumstantial
evidence concerning the applicant’s intent or state of m ind at the time the omission occurred.
[Moreover], it was legally permissible for the Judge to conclude Department Counsel had
established a prima facie case under Guideline E and the burden of persuasion had shifted
to the applicant to present evidence to explain the omission.  
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(b) the refusal or failure to cooperate, omission, or concealment was
caused or significantly contributed to by 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.
(c) the offense is so minor, or so much time has passed, or the behavior is
so infrequent, or it happened under such unique circumstances that it is
unlikely to recur and does not cast doubt on the individual's reliability,
trustworthiness, or good judgment;
(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 untrustworthy, unreliable,
or other inappropriate behavior, and such behavior is unlikely to recur;
(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress;
(f) the information was unsubstantiated or from a source of questionable
reliability; and,
(g) association with persons involved in criminal activity has ceased or
occurs under circumstances that do not cast doubt upon the individual's
reliability, trustworthiness, judgment, or willingness to comply with rules
and regulations.
Applicant provided sufficient evidence to rebut the allegation that he deliberately
falsified his 2006 security clearance application.   When he responded to question 2310
of his SF 86, concerning his police record, he believed that he was not required to
report the 2004 marijuana possession. His attorney advised him that the case was
dismissed, and he was told that everything was resolved. He concluded erroneously
that he did not have to disclose the marijuana possession charge. I found him credible
in his testimony about his honest, but mistaken belief. He was open and candid during
In ISCR Case No. 02-08032 at 8 (App. Bd. May 14, 2004), the Appeal Board reversed an unfavorable11
security clearance decision because the Administrative Judge failed to explain why drug use was not
mitigated after the passage of more than six years from the previous drug abuse. In ISCR Case No. 04-
09239 at 5 (App. Bd. Dec. 20, 2006), the Appeal Board explained:
[W ]here an applicant had extensive marijuana use and renewed marijuana use after periods
of abstinence, a Judge may articulate a rational basis for doubts about whether the most
recent period of abstinence was sufficient to conclude the applicant had put marijuana use
behind them. See e.g. ISCR Case No. 02-08032 at 8 (App. Bd. May 14, 2004).
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his 2006 interview. In response to questions about drugs, Applicant was forthright and
mentioned the 2004 incident with his son. He also was candid that he does not
remember the specific date he last smoked marijuana, but believed it was in the 1990 to
1992 time frame. His 2007 interrogatories report using marijuana weekly in 1992.
Applicant has not used marijuana after 1992. I do not believe that he deliberately
falsified his 2006 SF 86.  Thus, the 2006 allegation of falsification of his SF 86 in SOR
paragraph 1.g. is unsubstantiated under AG ¶ 17(f).
He answered the 1996 SF 86 question about drug use in the last seven years by
listing the 1989 incident that caused his discharge from the Navy. He falsely failed to
disclose more recent marijuana use (up to around 1992). When he spoke to
investigators in 2006, he was honest that he may have used after that time once or
twice. I found his testimony at the hearing credible.
AG ¶ 17(a) partially applies to mitigation the allegations of falsification of his SF
86 concerning marijuana use.  He disclosed marijuana use that was much more
extensive than could be proven.  He showed his good-faith in his disclosures of
marijuana use.  
        AG ¶ 17(b) partially applies to the omission of his 2004 marijuana possession
charge from his 2006 SF 86. The omission or concealment was caused or significantly
contributed to by advice of his legal counsel, who advised or instructed Applicant about
his offense. His lawyer did not advise him  specifically concerning the security clearance
process, but he did tell him the charge was dismissed, and Applicant incorrectly
assumed thereafter that he did not have to disclose it on his SF 86. Upon being made
aware of the requirement to cooperate or provide the information, Applicant cooperated
fully and truthfully and disclosed the 2004 marijuana possession charge.
AG ¶ 17(c) applies to his marijuana use because his use of marijuana is a
misdemeanor, but more importantly the 1996 falsification of his SF 86, and his
marijuana use in 1992 and previously, is not recent.  So much time has passed that it
has little relevance to his current suitability for a security clearance.  Moreover, his11
circumstances have changed since his last marijuana use in 1992. I conclude marijuana
use and falsification of his SF 86 is unlikely to recur and does not cast doubt on the
individual's reliability, trustworthiness, or good judgment.
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AG ¶ 17(e) applies because he has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress through disclosure of his marijuana
use to security officials and to the Government.  Accordingly, he is no longer vulnerable
to coercion, exploitation or manipulation. 
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 served in the military for
ten years. During that time he received a commendation for outstanding service. He
was commended for his leadership, technical expertise and “can do” spirit. His officer-
in-charge in April 1989 recommended him for any position in operation, maintenance or
management of an engineering system. He received commendations for his leadership
and outstanding efforts as an exceptional performer. However he used marijuana and
tested positive in 1983 and 1989. He was separated from the Navy for using marijuana
with an OTH characterization of his service.
Applicant stopped using marijuana around 1992. He does not have any
association with persons who use drugs. He is a hardworking individual who is married
with one son. His wife has problems with depression and alcohol. His son uses
marijuana and is now receiving court-ordered treatment in a rehabilitative unit.
Applicant is very protective of his wife and son. He is often away for work, but he takes
his family responsibilities very seriously.
Applicant’s use of marijuana ended in 1992. He falsified his 1996 security
clearance application. He briefly possessed marijuana in 2004, when he accepted
marijuana from his son and passed it to the police, who has pulled them over for
speeding. He acknowledges and recognizes the security and employment impact of
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such conduct. They do not cast doubt on his reliability, trustworthiness, or good
judgment because his marijuana use and possession, and the falsification of his 1996
SF 86 are unlikely to recur. Applicant has “acknowledged” his misbehavior and
recognizes the negative consequences of such conduct. Based primarily on the lack of
misconduct after 1996 (the 2004 marijuana possession was not to use the marijuana or
distribute it to others), he has reduced “vulnerability to exploitation, manipulation, or
duress” through disclosure of his misconduct to security officials.
In 2004, Applicant took his son on a driving vacation to Florida. Applicant was
stopped for speeding. His son, 18 years old, suddenly informed him that he had “weed”
on him. The Applicant did not want his son to get into any other trouble. So he told his
son to give him the marijuana to protect his son. He provided the marijuana to the
police. Applicant was charged with marijuana possession. The charge was never
prosecuted, and was dismissed without a court appearance. Based on the advice of an
attorney, he believed the charge was non-existent and erroneously failed to disclose it
on his 2006 SF 86. 
Applicant’s current employment has provided him with many opportunities for
advancement. He is well regarded by his supervisor and his colleagues. He has
received numerous awards for his achievements. 
Overall, the record evidence leaves me without questions or doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant mitigated the security concerns arising from his financial
considerations. 
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 E: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Subparagraph 1.e: For Applicant
Subparagraph 1.f: For Applicant
Subparagraph 1.g: For Applicant
Subparagraph 1.h: For Applicant
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Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
                                              
_________________
NOREEN A. LYNCH
Administrative Judge