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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 07-05613
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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CREAN, Thomas M., Administrative Judge:
Applicant submitted his Electronic Questionnaire for Investigations Processing
(e-QIP), on June 26, 2006. (Gov X 4)  On June 29, 2007, the Defense Office of
Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing security
concerns under Guidelines H (Drug Involvement), Guideline J (Criminal Conduct), and
Guideline E (Personal Conduct). (Gov X 1)  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 answered the SOR in writing on July 25, 2007.  He admitted all the
allegations.  He elected to have the matter decided on the written record in lieu of a
hearing. (Gov X 3)
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Department Counsel submitted the Government’s written case on August 8,
2007.  Applicant received a complete file of relevant material (FORM), and was
provided the opportunity to file objections and submit material to refute, extenuate, or
mitigate the disqualifying conditions.  He provided additional information on April 2,
2008.  Department Counsel noted no objection to consideration of the additional
material on April 4, 2008.  The case was assigned to me on April 17, 2008.  Based upon
a review of the case file and the pleadings, eligibility for access to classified information
is denied.
Findings of Fact
Applicant admitted the factual allegations under Guidelines H, J, and E.  I
thoroughly and carefully reviewed the case file and the pleadings.  I make the following
findings of fact.
Applicant is a 28 year-old technician for a defense contractor.  Applicant has
worked for that company for over five years.  He is not married.  He served in the
Marine Corps from September 1997 until August 2002.  He received an Other than
Honorable Discharge. (Gov X 4)
Applicant admitted in an affidavit to security investigators that he used two tablets
of Ecstasy 13 to 15 times from December 2001 to August 2002 while on active duty in
the Marine Corps.  He admitted he used marijuana by smoking it about 50 times from
December 2001 until August 2002 while in the Marine Corps.  He also admitted that
during this same time frame, he experimented with LSD one time, twice used cocaine,
used Ketamine once or twice, and GHB once.   He did not purchase the drugs but
received them from friends.  He also admitted to using marijuana about 15 times from
October 2002 until December 2006. (Gov X 5, at 4-5)
Applicant noted that he started using illegal drugs after receiving punishment for
driving while under the influence of alcohol.  He thought the punishment was unfair and
he was tired of being told what to do by his command and he thought the chores given
him were a silly form of punishment.  He was at a low point in his life from all of his
troubles, and wanted to escape from reality. (Gov X 5, at 4)
Applicant initially represented to security investigators that he could continue to
use marijuana. He explained that he meant that he did not plan to continue to use
marijuana but would be around friends who did use the drug.  Since November or
December 2006, he no longer associates with friends who smoke marijuana.  Applicant
stated he has not sold or cultivated or trafficked in drugs.  He has no financial concerns
raised by drug use.  He does not feel that his use of drugs would adversely affect his
life. (Gov X 5, at 5) 
Applicant admits that while in the Marine Corps he received non-judicial
punishment in December 2001 for driving under the influence of alcohol.  He was found
guilty and sentenced to 45 days restriction, 45 days of extra duty, reduced one pay
grade, and forfeited $900.  He also admitted he used illegal drugs in violation of the
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Uniform Code of Military Justice from December 2001 until August 2002.  He was court-
martialed for violating Article 112(a) of the Uniform Code of Military Justice for using
controlled substances while on active duty with the Marine Corps.  He received
restriction, and a reduction in rank.  In August 2002, he was administratively discharged
from the Marine Corps with an Other than Honorable Discharge. (Gov Xs 4 and 5)
Applicant notes that since his discharge from the Marine Corps, he has worked
for his employer delivering services to the Marine Corps.  He has over ten years
experience with Marine Corps Air Traffic Control systems, and has been entrusted with
sensitive material and documentation.  He works hard and is an honest and reliable
employee.  He looks back on the incidents in the Marine Corps as things he wishes he
never did.  
Three of his fellow workers or supervisors provided letters attesting to his
honesty and reliability.  The lead electronic technician stated Applicant performs a
variety of duties in electronics and electromechanical areas.  He can be relied on to
accomplish assigned tasks in a competent manner without supervision.   A fellow
technician notes that he has worked with Applicant for over five years.  Applicant is
entrusted with confidential information and documentation and he handles his
responsibilities effectively.  He considers Applicant as an outstanding gentleman and a
pleasure to work with.  His immediate supervisor notes Applicant is a very competent
technician who has traveled to Department of Defense sites to provide technical
assistance to military units.  He has proven he can accomplish all assigned tasks with a
high degree of proficiency and he highly recommends him. (Response to FORM, dated
April 3, 2008)
Policies
When evaluating an Applicant’s suitability for a security clearance, the
Administrative Judge must consider the revised Administrative Guidelines. 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
madjudicative 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
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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.
Analysis
Guideline H, Drug Involvement
The use of an illegal drug or misuse of a prescription drug can raise questions
about an individual’s reliability and trustworthiness, both because it may impair
judgment and because it raises questions about a person’s ability or willingness to
comply with laws, rules, and regulations.  Drugs are mood and behavior altering
substances, and include those listed on the Controlled Substances Act of 1970.  All of
the drugs Applicant used are listed in the Act.  Drug abuse is the illegal use of a drug or
the use of a legal drug in a manner that deviates from approved medical direction. (AG
¶ 24) 
Applicant’s admitted to using six different controlled substances from December
2001 until August 2002 while he served on active duty in the Marine Corps.  He also
admitted to continued use of marijuana from October 2002 until December 2006.  His
drug use raises Drug Involvement Disqualifying Conditions AG ¶ 25(a) (any drug use),
and AG ¶ 25(c) (illegal drug possession, including cultivation, processing, manufacture,
purchase, sale, or distribution).  
I have considered the Drug Involvement Mitigating Conditions and find none
apply.  Applicant admitted using a variety of drugs and his last admitted use of an illegal
drug was about 18 months ago which makes his use recent and frequent, therefore AG
¶ 26(a) (the behavior happened so long ago, was so infrequent, or 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) does not apply.
Applicant notes that since November or December 2006, he has not used illegal drugs
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and no longer associates with those that use drugs.  He is a reliable worker for his
employer and his supervisors and fellow workers have trust in his judgment.  This
clearly shows his demonstrated intent to stop using marijuana.  However, this stated
intent is only recent as opposed to his many years of drug use.  AG ¶ 26(b) (a
demonstrated intent not to abuse drugs in the future, such as; (1) disassociation from
drug-using associates and contacts; (2) changing or avoiding the environment where
drugs were used; (3) an appropriate period of abstinence; (4) a signed statement of
intent with automatic revocation of clearance for any violation) applies in part since he
has demonstrated an intent not to use drugs but the intent is only recent.  He has not
presented sufficient information to overcome the security concern for his use of illegal
drugs.  Guideline H is decided against Applicant
Guideline J, Criminal Conduct
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. (AG ¶ 30)    Applicant received non-judicial
punishment while on active duty with the Marine Corps.  He also admitted to using
illegal drugs while on active duty, as well as a number of years until December 2006.
His use of illegal drugs violated both military and civilian criminal law.  His conduct
raises Criminal Conduct Disqualifying Conditions (CC DC) ¶ 31(a) (a single serious
crime or multiple lesser offenses), and CD DC ¶ 31(c) (allegation or admission of
criminal conduct, regardless of whether the person was formally charged, formally
prosecuted or convicted).
Applicant raised Criminal Conduct Mitigating Conditions (CC MC) ¶ 32 (a) (so
much time has elapsed since the criminal behavior happened, or it happened under
such unusual circumstances that it is unlikely to recur and does not cast doubt on the
individual’s reliability, trustworthiness, or good judgment); and CC MC ¶ 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).  Initially,
Applicant’s criminal conduct occurred while he was on active duty with the Marine
Corps.  However, he continued to use illegal drugs so he continued to violate criminal
law.  His last admitted use was about 18 months ago.  He willingly used drugs, so his
use was not under unusual circumstances.  His recent willing use of illegal drugs casts
doubt on his reliability, trustworthiness, and good judgment.   There is some evidence of
successful rehabilitation in that Applicant has worked for his employer for about five
years and has been a successful employee.  He voiced his desire not to use illegal
drugs again.  However, since his criminal conduct was recent and willing, Applicant has
not presented sufficient information to mitigate security concerns for his criminal
conduct.
Guideline E, Personal Conduct
A security concern is raised because conduct involving questionable judgment,
untrustworthiness, unreliability, or unwillingness to comply with rules and regulations
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can raise questions about an individual’s reliability, trustworthiness, and ability to protect
classified information.  (AG ¶ 15)  Personal conduct is always a security concern
because it asks the central question does the person’s past conduct justify confidence
the person can be entrusted to properly safeguard classified information.  
Applicant was court-martialed while on active duty with the Marine Corps for use
of illegal drugs.  He was administratively separated from the Marine Corps with an Other
than Honorable Discharge, the lowest administrative discharge that can be given.  His
security clearance was revoked when it was alleged he used illegal drugs.  This
information raises Personal Conduct Disqualifying Condition ¶ 16(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. . .)  
Applicant raised by his responses to the SOR and the FORM Personal Conduct
Mitigating Conditions (PC MC) ¶ 17(e) (the individual has taken positive steps to reduce
or eliminate vulnerability to exploitation, manipulation, or duress.)  Applicant has
stopped using illegal drugs.  His employer and his fellow workers know of his past
troubles and poor conduct in the Marine Corps and his use of drugs.  They know that
his security clearance has been revoked in the past for drug use.  Since Appellant has
acknowledged his past poor conduct and activities, he has taken steps to reduce and
eliminate the negative impact of the activities.  I find for Applicant as to Personal
Conduct.  
“Whole Person” Analysis 
Under the whole person concept, the Administrative Judge must evaluate an
applicant’s security eligibility by considering the totality of the applicant’s conduct and all
the circumstances. An 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 a security clearance must be an overall
commons sense judgment based upon careful consideration of the guidelines and the
whole person concept.  
I considered Applicant’s over five years of good service with his employer and his
contribution to the mission of his employer.  I considered his candor in providing
adverse information concerning his own misconduct.  I considered his criminal conduct
during his active duty tour with the Marine Corps and that he has not had any criminal
conduct since December 2006.  I also considered his actions in driving while intoxicated
and using illegal drugs.  I considered that his tour with the Marine Corps was terminated
under Other than Honorable Conditions.  Applicant has not established that he is
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trustworthy, reliable, and exercises good judgment.  Overall, the record evidence leaves
me with questions about Applicant’s eligibility and suitability for a security clearance.
For all these reasons, I conclude Applicant has not mitigated the security concerns
arising from his drug involvement, criminal conduct. 
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
Subparagraphs 1.a to 1.g: Against Applicant
Paragraph 2, Guideline J: AGAINST APPLICANT
Subparagraphs 2.a to 2.b: Against Applicant
Paragraph 3 Guideline E: FOR APPLICANT
Subparagraphs 3.a to 3.c: For Applicant
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.
_________________
THOMAS M. CREAN
Administrative Judge