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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 07-03270
)
)
Applicant for Security Clearance )
Appearances
For Government: Rita C. O’Brien, 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
Drug Involvement, Personal Conduct, and Criminal Conduct adjudicative guidelines.
Applicant submitted his Security Clearance Application (SF 86), on August 11,
2006. On November 26, 2007, the Defense Office of Hearings and Appeals (DOHA)
issued Applicant a Statement of Reasons (SOR) detailing security concerns under
Guideline H (Drug Involvement), Guideline E (Personal Conduct), and Guideline J,
(Criminal Conduct). 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 December 18, 2007. In his answer,
Applicant requested that his case be determined on the record in lieu of a hearing.  The
Government compiled its File of Relevant Material (FORM) on January 31, 2008.  The
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FORM contained documents identified as Items 1 through 10.  A copy of the FORM was
provided to Applicant on January 31, 2008, with instructions to submit any additional
information and/or objections within 30 days of receipt.  Applicant received the file on
February 5, 2008. He filed additional information within the required time period.  On
March 5, 2008, the case was assigned to me for a decision.
 
Findings of Fact
The SOR contains five allegations of disqualifying conduct under Guideline H,
Drug Involvement, four allegations of disqualifying conduct under Guideline E, Personal
Conduct, and six allegations of disqualifying conduct under Guideline J, Criminal
Conduct. (Item 1.) Applicant admitted, with explanations, three allegations under
Guideline H. He admitted in part, with explanation, one Guideline H allegation, and he
denied one Guideline H allegation, with explanation.  He admitted, with explanation,
three allegations under Guideline E, and he denied in part, with explanation, one
allegation under Guideline E.  He admitted all six allegations under Guideline J, with
explanations. (Item 3.)  His admissions are incorporated herein as findings of fact.
Applicant is 45 years old, married, and employed by a defense contractor. He
has held a security clearance since 1997.  (Item 4.)
The SOR alleged disqualifying conduct under Guideline H, Drug Involvement. On
about November 25, 2003, when he was 41 years old, Applicant was charged with
Possession of Marijuana.  On about May 10, 2004, he was convicted of Possession of
Marijuana and sentenced to 30 days (suspended), fined $50.00, and assessed $140.00
in court costs.  His driver’s license was also suspended.  (Item 7 at 6; Item 10.)
On about September 2, 1986, Applicant was charged with the felony offense of
Possession of Marijuana With Intent to Distribute after police seized a marijuana plant
he was growing in his backyard. He was convicted of a misdemeanor charge of
Possession of Marijuana, sentenced to 30 days (suspended), and fined $100.  (Item 6
at 3-4; Item 9 at 2.)
In about 1985 or 1986, Applicant was charged with Possession of Marijuana.
The Possession of Marijuana charge was dismissed because the evidence was lost.
(Item 6 at 3.)
In signed, sworn statement to an authorized investigator in April 1996, Applicant
reported he purchased and used marijuana from about 1979, when he was a freshman
in high school, until about 1990.  He reported using marijuana two to three times
weekly.  He also reported that during the five year period from 1985 to 1990, he used
cocaine about twice a year when he was at parties and it was offered to him.  (Item 6 at
2-3.)
Applicant voluntarily reported his use of marijuana and cocaine in the signed,
sworn statement made to an authorized investigator on April 25, 1996.  In his answer to
the SOR, he denied using cocaine and characterized the SOR allegation of his cocaine
use as “false information.” In his answer to the SOR, he also stated he had stopped
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using marijuana in 1986.  In his response to DOHA interrogatories, dated June 25,
2007, Applicant stated he had used cocaine only once in the early 1980s.  (Item 3; Item
6; Item 8 at 2.) 
The SOR also alleged additional disqualifying conduct under Guideline J,
Criminal Conduct. On or about November 22, 1980, Applicant was charged and
convicted of Larceny when he was caught stealing gasoline.  He was fined $100 and
received a period of unsupervised probation.  (Item 6 at 4.)
In October 1981, Applicant was charged with Assault. He was convicted,
required to pay his victim’s medical bills, and placed on supervised probation for one
year.  (Item 5 at 3; Item 6 at 4.)
In about August 1992, Applicant was arrested and charged with a “hit and run”
following a traffic accident. In January 1993, the charge was reduced to Reckless
Driving.  Applicant was sentenced to pay a fine, and his driver’s license was restricted
for 90 days.  (Item 7 at 6.)
In about 1985 or 1986, at the time he was charged with Possession of Marijuana,
Applicant was also charged and convicted of Drinking in Public.  He was sentenced to
pay a fine. (Item 6 at 3.)
Applicant completed a security clearance application (SF-86) on August 11,
2006. Question 23 a on the SF-86 reads as follows: “Your Police Record a.  Have you
ever been charged with or convicted of any felony offense?” Applicant responded
“no” to Question 23 a and failed to disclose that he had been charged with Possession
of Marijuana With Intent to Distribute, a felony offense.  (Item 4; Item 6; Item 9.)
Question 23 d on the SF-86 reads: Your Police Record d. Have you ever been
charged with or convicted of any offense(s) related to alcohol or drugs?”
Applicant responded “no” to Question 23 d and failed to disclose that he had been
charged with or convicted of Possession of Marijuana on three occasions and with
Drinking in Public on one occasion. (Item 4; Item 6; Item 7.)
When he completed his SF-86, Applicant signed and dated a statement certifying
the truthfulness of his answers.  The statement that Applicant signed and certified reads
as follows:
My statements on this form, and any attachments to it, are
true, complete, and correct to the best of my knowledge and
belief and are made in good faith. I understand that a
knowing and willful false statement on this form can be
punished by fine or imprisonment or both.  (See section
1001 of title 18, United States Code.)
In his answer to the SOR, Applicant stated he thought he was obligated to report
on his SF-86 only criminal activity or drug and alcohol charges and convictions
occurring in the last ten years. (Answer to SOR.)  
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Applicant was sent a series of Interrogatories Concerning Drugs by an authorized
representative of the U.S. Government. Applicant was asked to respond to the following
question: “1. Have you used any narcotic, depressant, stimulant, hallucinogen (to
include LSD or PCP) and/or any Cannabis (to include marijuana and hashish),
except prescribed by a licensed physician?” Applicant responded to the
Interrogatories with sworn and notarized statements dated May 3, 2007 and June 25,
2007. He answered “yes” to the question about illegal drug use. However, he listed only
marijuana use and listed his frequency of use as “a few times” from “1982 to 1985.”  He
stated that the quantity of his use was “a couple of drags off a joint each time.”  He
failed to list the marijuana use he reported in a signed sworn statement in April 1996 as
occurring from 1979 to 1990, sometimes as frequently as two to three times weekly.  He
also failed to list cocaine use from 1985 to 1990 as reported to an authorized
investigator in April 1996.  (Item 6; Item 7.)
The Interrogatories Concerning Drugs also asked Applicant to identify when he
stopped using illegal substances.  In response, Applicant answered: “1985 (only used
marijuana).” This statement was not consistent with his earlier sworn statement that he
had used marijuana from 1979 to 1990 and had used cocaine twice yearly from 1985 to
1990. (Item 6; Item 7.)
Applicant signed and notarized his answers to the interrogatories, stating that
they were true and correct to his best knowledge and belief. (Item 7; Item 8.)
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 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.
DC 25(a) reads:”any drug use.”  DC 25(c) reads: “illegal drug possession, including cultivation, processing,1
manufacture, purchase, sale, or distribution; or possession of drug paraphernalia.”
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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 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 and cocaine, illegal drugs, with varying
frequency, from about 1979 to 1990.  His most recent conviction of possession of
marijuana occurred in 2004. 
Applicant’s conduct raises security concerns under Disqualifying Condition (DC)
25(a) and  (DC) 25(c) of Guideline H.    1
Specific examples of demonstrated intent that might apply under MC26(b) are as follows: (1) disassociation2
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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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 MC2
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 admitted to cocaine use from 1985 to 1990,
although he later denied cocaine use. His denial contradicted his sworn testimony to an
authorized investigator and lacked credibility. He admitted his marijuana use began in
about 1979 and continued intermittently to 2003. Thus, while much of his marijuana and
cocaine use occurred in the past, his 2004 conviction for marijuana possession is
recent, and Applicant provided no credible evidence to corroborate his assertion that he
no longer uses either drug and has no intent to use them in the future. Applicant failed
to provide evidence he had satisfactorily completed a prescribed drug treatment
program. His recent conviction for marijuana possession raises concerns about his
current reliability, trustworthiness and good judgment. None of the Guideline H MCs
apply to Applicant’s drug use.
Guideline E - Personal Conduct
Personal 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.
Guideline E, ¶ 15.   
Applicant completed and signed a SF-86 on August 11, 2006. In response to
Question 23 a,  he denied ever being charged with or convicted of any felony offense.
In response to Question 23 d, he denied  he had ever been charged with offenses
related to alcohol or drugs.  In a signed sworn statement to an authorized investigator in
1996, Applicant had admitted a felony offense and provided additional evidence of drug
and alcohol offenses. Through Applicant’s admissions and the record evidence, the
Government established a prima facie case that Applicant deliberately falsified his
answers to Question 23 a and 23 d on the SF-86. The burden of proof thus shifted to
Applicant to rebut or mitigate the Government’s allegations.  
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In his answer to the SOR, Applicant stated he though he was obliged to report
only felonies and drug and alcohol offenses that had occurred in the ten years prior to
the time he completed his August 11, 2006 SF-86. The relevant questions ask if an
applicant had ever been charged or convicted of a felony or ever charged or convicted
of offenses related to alcohol and drugs.  At the time he completed his SF-86, Applicant
had held a security clearance for at least 10 years. His assertions that he
misunderstood the questions lack credibility.    
Applicant was asked to respond to Interrogatories Concerning Drugs.  While, in
his responses, he admitted illegal drug use, he listed only his marijuana use, and further
stated that he used marijuana only a few times from 1982 to 1985. He stated that he
stopped using illegal substances in 1985, and further stated he had only used
marijuana. He failed to list the marijuana use he had reported in a signed, sworn
statement to an authorized investigator in April 1996 as occurring from 1979 to 1990,
sometimes as frequently as two to three times a week.  He also failed to list cocaine use
from 1985 to 1990 as reported to the authorized investigator in April 1996. 
Under Guideline E, a security concern is raised by an individual’s 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. Guideline E, ¶ 16(a).  Applicant’s admitted conduct also raises security
concerns under Guideline E Disqualifying Conditions (DC) 16(b), and 16 (e)(1).  DC
16(b) reads as follows: deliberately providing false or misleading information concerning
relevant facts to an employer, investigator, security official, competent medical authority,
or other official government representative. DC 16(e)(1) reads as follows: 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.  
Two Guideline E mitigating conditions (MC) might be applicable to Applicant’s
conduct.  Pursuant to MC 17(a),  personal conduct security concerns might be mitigated
if the individual made prompt, good-faith efforts to correct the omission, concealment, or
falsification before being confronted with the facts.  Pursuant to MC 17(e), personal
conduct security concerns might be mitigated if the individual has taken positive steps to
reduce or eliminate vulnerability to exploitation, manipulation, or duress.
Applicant provided no credible evidence to mitigate his failure to disclose his
felony charge and his offenses related to drug and alcohol. Applicant was a mature
adult when he failed to disclose his felony charge, his drug and alcohol charges,  the
kinds of drugs he used, and the duration and frequency of his use. Although he knew, or
should have known, the importance of telling the truth to the Government, he had
reason to attempt to conceal this derogatory information about his trustworthiness.  His
assertions that his falsifications occurred by mistake because he did not read the
questions carefully were not credible. He did not make good-faith efforts to correct his
omissions, concealment, or falsifications before being confronted with the facts, and he
did not take positive steps to reduce or eliminate the vulnerability to exploitation,
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manipulation, or duress caused by his concealment of this derogatory information
relating to his lack of trustworthiness.  I conclude that MC 17(a) and MC 17(e) do not
apply to the facts of Applicant’s case.
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 shows that Applicant was charged with felony Possession
of Marijuana With Intent to Distribute in 1986.  In 1985 or 1986 and in 2003, he was
charged with possession of marijuana.  He admitted purchasing and using marijuana
from 1979 to 1990.  He also admitted using cocaine about twice a year from 1985 to
1990.  His deliberate falsifications in his answers to Questions 23 a and 23 d on his SF-
86 and his deliberate falsifications in response to Interrogatories Concerning Drugs also
constitute criminal activity under 18 U.S.C. § 1001.  In addition to his drug-related
criminal conduct, Applicant was charged with larceny (1980), assault (1981), hit and run
(1992), and drinking in public (1985). Applicant’s admitted criminal activity raises
security concerns under Disqualifying Conditions (DC) 31(a) and 31(c) of Guideline J.
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 criminal activity 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 to show that  sufficient time had passed to reasonably conclude his
criminal activity had ceased and would not be repeated in the future.  Accordingly, I
conclude the evidence fails to show successful rehabilitation and  MC 32(d) does not
apply.
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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) the extent to which
participation is voluntary; (6) the presence or absence of rehabilitation and other
permanent behavioral changes; (7) the motivation for the conduct; (8) the potential for
pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or
recurrence.” 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 drug use and
criminal activity. The record evidence also supports a conclusion that Applicant’s
falsifications on his SF-86, dated August 11, 2006, and his falsification of his responses
to interrogatories were deliberate, raising serious concerns about his judgment,
reliability, and trustworthiness. Applicant has failed to demonstrate that he is not a
security risk.
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 H: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: Against Applicant
Subparagraph 1.e: Against Applicant
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Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against Applicant
Subparagraph 2.c: Against Applicant
Subparagraph 2.d: Against Applicant
Paragraph 3, Guideline J: AGAINST APPLICANT
Subparagraph 3.a: Against Applicant
Subparagraph 3.b: Against Applicant
Subparagraph 3.c: Against Applicant
Subparagraph 3.d: Against Applicant
Subparagraph 3.e: Against Applicant
Subparagraph 3.f: 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