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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )     ISCR Case No. 07-08765
SSN: ----------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Paul M. DeLaney, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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MATCHINSKI, Elizabeth M., Administrative Judge:
Applicant submitted his security clearance application (SF 86) on December 7,
2004. On November 19, 2007, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) to Applicant detailing the security concerns
under Guideline E and Guideline J. 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 November 27, 2007. He
answered the SOR in writing on December 5, 2007, and requested a decision based on
the record without a hearing. On December 21, 2007, the government submitted a File
of Relevant Material (FORM) consisting of six exhibits (Items 1-6). DOHA forwarded a
copy of the FORM to Applicant and instructed him to respond within 30 days of receipt.
On January 14, 2008, Applicant submitted his rebuttal to the FORM consisting of his
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statement (Ex. A) and two character references (Ex. B, Ex. C). On January 22, 2008,
Department Counsel indicated no objections to the documents being admitted into
evidence. On January 28, 2008, the case was assigned to me to consider whether it is
clearly consistent with the national interest to grant or continue a security clearance for
Applicant. Based upon a review of the Government’s FORM and Applicant’s response,
eligibility for access to classified information is denied.
Procedural and Evidentiary Rulings
DOHA alleged under Guideline E that Applicant deliberately falsified a December
7, 2007, security clearance application. In the FORM, Department Counsel correctly
indicated that Applicant submitted his SF 86 on December 7, 2004. The Government
did not move to amend the SOR to correct the obvious typographical error in the date,
but there is no dispute between the parties about the date of the SF 86 at issue. SOR ¶
1.a is hereby amended to change the date of the SF 86 to December 7, 2004, to
conform to the evidence in the record.
Findings of Fact
DOHA submits under Guideline E, Personal Conduct, that Applicant used
marijuana with varying frequency from high school to at least 2003 (SOR ¶ 1.a) and that
he deliberately falsified his December 2004 SF 86 by denying any illegal drug use since
age 16 or in the last seven years (SOR ¶ 1.b, as amended). DOHA also alleged under
Guideline J, Criminal Conduct, that Applicant committed a felony violation of 18 U.S.C.
§ 1001 by falsifying his response to the drug inquiry on his SF 86 (SOR ¶ 2.a). In his
Answer to the SOR, Applicant admitted “experimenting” with marijuana in high school.
He denied intentional falsification, and attributed his negative response to question 27 to
the fact that he had not used drugs since 2003 (“The timeframe [sic] was an oversight
on my part.” Item 4). After consideration of the evidence of record, I make the following
findings of fact.
Applicant is a 24-year-old warehouse specialist for a defense contractor. He
requires a security clearance for his job duties on a U.S. military installation (Item 5, Ex.
C).
Applicant began using marijuana in his early teens, initially to cope with stress
and depression. He smoked it in rolled joints approximately every other day. After he
turned 18 in 2001, his use of marijuana varied. Some months he used it more
frequently, up to ten times, other months only about twice. Applicant purchased the
marijuana himself and/or went in with a friend to buy it. The drug induced feelings of
confidence and peace. Applicant stopped using marijuana completely in 2003 when he
realized he could not continue to live his life as he had been, and marijuana had turned
him into a person he did want to be. Applicant had difficulty giving up the drug but dealt
with cravings through prayer. He sought no professional help to deal with what he
considered to be a psychological addiction. Applicant no longer has any cravings or
Applicant indicated on his December 2004 SF 86 (Item 5) that he earned his high school diploma from an1
academy in Florida in September 2002. Neither his address nor work history show any other connection to
Florida. 
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desires to smoke marijuana and he does not associate with those friends with whom he
used marijuana in the past. He does not intend to use marijuana in the future.
At age 18, Applicant went to work as a sales associate at a toy store. He stayed
in that job for only a few months. From January 2002 to May 2002, he worked as a cook
at a restaurant, but was unemployed for two years thereafter.  In June 2004, he got a1
job as a porter at a car dealership but he did not report back to work in July 2004 after
some time off for a family funeral. In November 2004, he was hired by his current
employer as a light truck driver on a military installation.
Needing a security clearance for his duties, Applicant completed a security
clearance application on December 7, 2004. He indicated he had been fired from his
employment with the car dealership in July 2004, but responded “NO” to question 27
[“Since the age of 16 or in the last 7 years, whichever is shorter, have you illegally used
any controlled substance, for example, marijuana, cocaine, crack cocaine, hashish,
narcotics (opium, morphine, codeine, heroin, etc.), amphetamines, depressants
(barbiturates, methaqualone, tranquilizers, etc.), hallucinogenics (LSD, PCP, etc.), or
prescription drugs?”] (Item 5).
On May 17, 2007, Applicant was interviewed by an Office of Personnel
Management (OPM) investigator about his use of marijuana and possible falsification of
his security clearance application. Applicant admitted that he smoked marijuana in rolled
joints, approximately every other day from his early teens until he was 18. He described
his use as sporadic thereafter. Applicant indicated it would be difficult to gauge the
average frequency of his use, as he “might use it ten times one month and twice
another month.” Applicant could not recall the month of his last use, but averred he
stopped using marijuana in 2003. Applicant denied any intent to use marijuana or other
illegal drug in the future. Applicant also denied any ongoing contact with his former
friends who had witnessed his marijuana use. As for his failure to disclose his marijuana
use on his SF 86, Applicant told the investigator that he did not list his marijuana use
because he really needed work and also he was not thinking as clearly as he now does.
Also asked about the loss of his job at the car dealership, Applicant related he assumed
he had been fired after he failed to return to work following his cousin’s funeral, although
he never was notified directly. Applicant did not provide a written statement during his
interview, but the investigator codified Applicant’s personal testimony in a written report
transmitted May 30, 2007 (Item 6).
In August 2007, DOHA furnished Applicant with a copy of the OPM investigator’s
report of the subject interview and asked him to authenticate it. On August 17, 2007,
Applicant responded “Yes” to whether the report of investigation accurately reflects the
information he had provided to the authorized investigator on the day he was
interviewed (Item 6).
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On November 19, 2007, DOHA issued an SOR, notifying Applicant of security
concerns because of his marijuana use to 2003 and his failure to disclose that
involvement on his security clearance application (Item 1). On December 7, 2007,
Applicant admitted “to experimenting with [the] drug in high school but not to using it on
a frequent basis.” Applicant denied any intentional concealment, stating in part:
I would not intentionally withhold any information that would prevent me in
receiving a security clearance or jeopardize my employment. I answered
No because I haven’t used drugs since 2003. The timeframe [sic] was an
oversight on my part.
Item 4.
In rebuttal to the Government’s FORM, Applicant acknowledged he had not
provided accurate information regarding his past drug use on his SF 86, but denied it
was deliberate (“I did not intentionally conceal my past drug use as I understand in so
doing it would preclude any employment that requires a security clearance.” Ex. A).
Applicant averred he was no longer the same person that he was when he had used
marijuana:
When I experimented with illegal drugs I was young, easily persuaded and
a very confused individual. However, I no longer use illegal drugs nor do I
associate with individuals who participate in that type of activities. Also, I
no longer suffer from depression and my quality of life and living
conditions and environment has improved for the best. I currently reside in
[city and state omitted] in an apartment of my own. I am a Christian and
regularly attend [church name and location omitted]. I also attend bible
study and other Christian events.
Applicant denied any intent to return to his former lifestyle and indicated he did not want
“past indiscretions” to negatively impact his career or future (Ex. A).
As a warehouse specialist for a defense contractor, Applicant issues mandatory
supplies and equipment to military personnel deploying overseas. Applicant has
demonstrated honesty, reliability, and dependability over the past three years. In the
opinion of a unit security manager familiar with Applicant’s work, Applicant has “great
integrity” and is extremely dedicated to his family and work. She has observed nothing
over her three years’ association with him that causes her security concerns (Ex. C).
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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(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 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. 
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).  
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Analysis
Guideline E, Personal Conduct
The security concern related to the guideline for Personal Conduct is set out in
AG ¶ 15:
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.
Applicant smoked marijuana in high school, as frequently as every other day at
times. After he turned 18, his use of marijuana became more sporadic, but it continued
until sometime in 2003. Applicant exercised unquestionably poor judgment in using
marijuana during his adolescence and as a young adult. It falls within the overall
security concern underlying AG ¶ 15. AG ¶ 16(g) (association with persons involved in
criminal activity) is also implicated. Applicant purchased marijuana, and those
acquaintances who provided him with the drug committed criminal conduct.
However, the Government’s evidence does not support its reliance on AG ¶
16(c). Under AG ¶ 16(c) there must be “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.” Applicant’s lack of
candor about his drug use warrants an adverse determination (see Guidelines E and J,
infra), so AG ¶ 16(c) does not apply on its face.
The Government had the evidence to allege drug-related judgment concerns
under Guideline H AG ¶ 25 (a) (any drug abuse) and AG ¶ 25(c) (illegal drug
possession, including cultivation, processing, manufacture, purchase, sale, or
distribution; or possession of drug paraphernalia). An assessment that Applicant’s drug
abuse was not sufficient for an adverse determination under Guideline H—a threshold
finding for AG ¶ 16(c) to apply to his drug use—would mean that Applicant met one or
more of the mitigating conditions under AG ¶ 26. Apparently the Government was
satisfied that Applicant’s drug abuse either happened so long ago (see AG ¶ 26(a)), or
Applicant demonstrated intent not to abuse any drugs in the future by dissociating
himself from drug-using contacts (see AG ¶ 26(b)(1)), changing his environment (see
AG ¶ 26(b)(2)), abstaining for an appropriate period (see AG ¶ 26(b)(3)), or executing a
signed statement of intent (see AG ¶ 26(b)(4)). Lifestyle changes sufficient to mitigate
the judgment concerns under Guideline H (see AG ¶ 24, “Use of an illegal drug . . .
raises questions about a person’s ability or willingness to comply with laws, rules, and
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regulations”), should be sufficient to mitigate the drug-related judgment issues
underlying Guideline E (see AG ¶ 15, “conduct involving questionable judgment . . . or
unwillingness to comply with rules and regulations can raise questions about an
individual’s reliability, trustworthiness and ability to protect classified information.”). The
Government has not explained its seemingly inconsistent position. Applicant has
exercised good judgment in maintaining a drug-free lifestyle for the past four years (see
AG ¶ 17(d) (the individual has acknowledged the behavior and obtained counseling to
change the behavior or taken positive steps to alleviate the stressors, circumstances, or
factors that caused untrustworthy behavior, and such behavior is unlikely to recur),
dissociating himself from known drug users (see AG ¶ 17(g) (association with persons
involved in criminal activity has ceased), and forswearing any future drug involvement to
overcome any residual concerns for his judgment caused by his past drug use.  
However, the Government established its case for disqualification under AG ¶
16(a). Personal conduct concerns are raised by the “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.” Applicant’s abuse of marijuana to as
recently as 2003 fell within the scope of question 27 (since age 16 or in the last seven
years) of the SF 86 he completed in December 2004. Applicant does not contest that he
answered “No” to the drug inquiry, but submits he did not intentionally falsify his SF 86.
When he answered the SOR, Applicant indicated he failed to note the time frame in the
question (Item 4). In rebuttal to the FORM, he admitted he “neglected” to provide
accurate information about his drug use on his SF 86, but persisted in denial of
intentional falsification (“I did not intentionally conceal my past drug use as I understand
in doing so it would preclude any employment that requires a clearance.” Ex. A). The
record evidence instead shows that Applicant deliberately concealed his drug abuse.
When first questioned about the possible falsification of his SF 86, Applicant told the
OPM investigator in May 2007 that he did not list his marijuana use on his SF 86
because he needed the work (Item 6). His false answer to question 27 was knowing and
wilful.
Applicant is credited with acknowledging his marijuana use and providing some
details about his drug involvement during his May 2007 interview, although he was
unable to recall the month of his last use of marijuana or to estimate the frequency of
his abuse after age 18. It also does not appear that Applicant disclosed his drug
involvement before being confronted, which is required under AG ¶ 17(a) (“the individual
made prompt, good-faith efforts to correct the omission, concealment, or falsification
before being confronted with the facts”). Moreover, after becoming aware that his false
response to the drug inquiry could cost him a clearance, Applicant compounded the
doubts about his judgment in refusing to take responsibility for his false statement on his
SF 86 and in minimizing the extent of his marijuana abuse in high school. Marijuana use
on the order of every other day or up to ten times per month cannot reasonably be
characterized as experimental. None of the mitigating conditions apply to his deliberate
false statements.
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Guideline J, Criminal Conduct
The security concern related to the guideline for Criminal Conduct is set out in
AG ¶ 30:
Criminal activity creates doubt about a person’s judgment, reliability, and
trustworthiness. By its very nature, it calls into question a person’s ability
or willingness to comply with laws, rules and regulations.
When Applicant signed his security clearance application in December 2004, he
certified that his statements on the form and any attachments were “true, complete and
correct to the best of [his] knowledge and belief and [were] made in good faith,” and that
he understood that a knowing and willful false statement could be punished by a fine or
imprisonment or both. By deliberately falsifying his response to question 27, Applicant
violated 18 U.S.C. § 1001, which provides in pertinent part:
a) Except as otherwise provided in this section, whoever, in any matter
within the jurisdiction of the executive, legislative, or judicial branch of the
Government of the United States, knowing and willfully: (1) falsifies,
conceals, or covers up by any trick, scheme, or device a material fact: (2)
makes any materially false, fictitious, or fraudulent statement or
representation; or (3) makes or uses any false writing or document
knowing the same to contain any materially false, fictitious, or fraudulent
statement or entry; shall be fined under this title or imprisoned not more
than 5 years, or both.
Disqualifying conditions AG ¶ 31(a) (a single serious crime or multiple lesser
offenses) and AG ¶ 31(c) (allegation or admission of criminal conduct, regardless of
whether the person was formally charged, formally prosecuted or convicted) are
pertinent in evaluating Applicant’s current security suitability. 
Although Applicant’s SF 86 falsification occurred more than three years ago, his
recent denials of intentional concealment and fabricated excuses preclude me from
considering AG ¶ 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, trustworthiness, or good
judgment). Applicant’s favorable work reference is not enough to satisfy AG ¶ 32(d)
(“there is 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”).
As noted above, Applicant presented inconsistent explanations in 2007 for his failure to
disclose his illegal drug involvement on his SF 86. Applicant has not yet demonstrated
that his representations can be relied on.
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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 drug abuse was serious,
but it ceased before he turned 21 (see AG ¶ 2(4)). Applicant was only 21 when he lied
about his drug use on his SF 86. Applicant could have gone a long way toward
demonstrating the maturity and judgment that must be demanded of those with a
clearance had he acknowledged his falsification and expressed appropriate remorse in
his Answer or even in his rebuttal to the FORM. Instead he put his self-interest before
his obligation of candor. Based on the record before me, I am unable to conclude that it
is clearly consistent with the national interest to grant him access.
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: AGAINST APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: Against Applicant
Paragraph 2, Guideline J: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
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Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                              
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ELIZABETH M. MATCHINSKI
Administrative Judge