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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)         ISCR Case No. 07-01400
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Emelio Jaksetic, Esquire, Department Counsel
For Applicant: William F. Savarino, Esq.
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Decision
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MASON, Paul J., Administrative Judge:
Applicant submitted his Security Clearance Application (SCA), on September 29
2005. On June 20, 2007, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) detailing security concerns under drug use (Guideline H),
personal conduct (Guideline E), and criminal conduct (Guideline J). The 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 made effective within the Department of Defense
for SORs issued on or after September 1, 2006. 
 
Applicant submitted his answer to the SOR on July 6, 2007. DOHA issued a
notice of hearing on April 4, 2008, and the hearing was held on May 15, 2008. At the
hearing, five exhibits (GE 1 through 3) were admitted in evidence without objection to
support the government’s case. Applicant’s ten exhibits (AE A through and AE J) were
received in evidence without objection. Five witnesses testified in Applicant’s behalf.
Applicant testified. DOHA obtained a copy of the hearing transcript on May 27, 2008.
 On May 12, 2008, Applicant recalled using marijuana in another country during his March 2004 European1
trip. 
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Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility for
access to classified information is denied. 
Findings of Fact
The SOR contains one allegation under the drug involvement guideline, three
allegations under the personal conduct guideline, and one allegation under the criminal
conduct guideline. Applicant denied all allegations. 
Applicant is 29 years old and married. He achieved his Bachelor of Science
degree in May 1999, and Masters of Science degree (computer science) in May 2005.
He has been working as Senior Member of the Professional Staff for his current
employer since October 2006. In that position, he is a software engineer developing
code. He seeks a security clearance. 
Drug Involvement
Applicant admitted using marijuana one time in the United States (U.S.) in
approximately February 2004, before an eight-day trip to Europe in March 2004,  where1
he used marijuana two times in a coffee house of a European city in March 2004, four
times in a coffee house in the same European city in May 2005, once in another
European city in May 2005, and at least one time in the U.S. in July 2005. (GE 4)
Applicant is certain he has used no drugs since July 2005.
Personal Conduct
After using marijuana on one occasion in July 2005, Applicant signed a security
clearance application (SCA) (SOR 2.a.) on September 29, 2005, certifying on page 34
of 35 that, “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
response to question 24.a. (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?), Applicant answered “No”
thereby denying any illegal use since the age of 16 or in the last 7 years. His claim is
that he realizes now the “No” entry was untruthful. However, in September 2005 (when
he certified the security form), he knew marijuana use was legal in the overseas
location, and he contended he did not remember his July 2005 marijuana use at the
U.S. location. I find he deliberately falsified his answer to question 24.a. of the security
form by not revealing his U.S. marijuana use. 
 The year “2003" referenced in GE 3 is incorrect. (Tr. 118-120)2
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While disclosing his overseas drug use in 2004  in his July 5, 2006 (SOR 2.b.)2
interview with a government investigator, he did not disclose his overseas drug use in
2005 because he was ashamed/disappointed to admit it, and he did not want to
jeopardize his security clearance. (Tr. 94-96) For a second time, he did not disclose his
marijuana use in the U.S. in 2004 or 2005 because he contends did not remember it. I
find he intentionally provided false information about his drug use in July 2006. 
On August 30, 2006, Applicant was interviewed and polygraphed by a
government investigator in connection with a second defense contractor position he was
applying for. During the interview, he acknowledged his overseas drug use in 2004 and
2005. After further discussion, he also admitted his marijuana use in the U.S. in 2004
and 2005. 
On October 12, 2006, Applicant was interviewed/polygraphed a second time. He
provided one additional drug use in May 2005 in a European country, and brief
experimentation of marijuana as a youngster. Following a second government
interview/polygraph on October 6, 2006, for the second defense contractor position,
Applicant indicates he passed the polygraph. (Tr. 107) In November 2006, he submitted
an updated SCA (AE F) reflecting his U.S. drug use to the second defense contractor.
Applicant believes the position is still pending, but the specifications/characteristics of
the offer have changed in some fashion. 
On December 4, 2006 (SOR 3.c.), Applicant was again interviewed by an
investigator for his current position. While disclosing his overseas use of marijuana in
2004 and 2005, he did not disclose his U.S. marijuana use. He stated:
I - - I was afraid of what the - - the - - of the inconsistency with my previous
statements. And my second interview with DOD, I - - I put everything on
the table and now there were these other - - you know - -instances. And I
was just afraid of how it would look. I wasn’t sure of how it would go over.
So I - - I know it wasn’t the right thing to do. And I decided not to disclose
it. (Tr. 112) 
Even though he remembered his August 2006 disclosures of his U.S. marijuana
use, he did not disclose his U.S. use in his December 2006 interview. I find he
deliberately falsified his December 4, 2006 interview. 
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In his responses to interrogatories dated June 1, 2007, Applicant affirmed the
December 4, 2006 interview. He also added in the June 1 response the two instances of
drug use in the U.S. in 2004 and 2005. He knew his responses would be inconsistent
with the other information he had provided to the government about his drug use. In
emphasizing the truth mattered to him, he stated:
Yes it did. I knew that I - - I wasn’t forthcoming with the - - with the agents.
And I just - - I wanted to clear it up. I didn’t  - - feel good about it. I - - you
know - - it’s just - - it’s not - - it’s not me. I don’t - - I’m - - I don’t lie. I’m not
a liar. I just wanted to - - I made a mistake and I - - I wanted to clear it up.
(Tr. 115)
Character Evidence
Witness 1, the task order manager, has known Applicant for eight months, and
was his supervisor for five months. Witness 1 believes Applicant has produced good
work. According to Witness 1, the discrepancies in Applicant’s drug use occurred
because he had trouble remembering when he used marijuana, and with more
interviews, Applicant recalled more instances of marijuana use. (Tr. 29) 
Witness 2, also an employee of Applicant’s employer since July 2000, has known
Applicant for 12 ½ years, and is a personal friend. Applicant talked to Witness 2 about
the SOR, and Witness 2 interpreted the omissions of information as resulting from not
remembering certain things. According to Witness 2, the missing information resulted
more from forgetfulness as opposed to an intent to conceal. (Tr. 40) 
Witness 3, Applicant’s wife met Applicant in 2004 and married him in May 2008.
He talked with her about the SOR and using marijuana in 2004 and 2005. He told her
he did not remember some drug use, but there were times he felt ashamed and did not
want to reveal some drug use. She believes he has shown remorse and accepted
responsibility for omitting the drug information. His wife knows that Applicant currently
shares her position against drug use. 
Witness 4, worked with Applicant until August 2007, and knows his wife. She
believes he is very honest and reliable. She was surprised to learn he used marijuana in
the past because of his organic diet. Witness 4 believes Applicant was nervous during
the early interviews and did not recollect when he used marijuana; as he remembered
more drug use, he disclosed it. 
Witness 5, the project manager for Applicant’s employer, stated that Applicant
has not been with the company long enough for a written performance evaluation.
However, through the manager’s interaction with Applicant on a weekly basis, the
manager has seen a very reliable employee produce a good work product. Applicant’s
explanations of forgetfulness, nervousness, and deception, during the interviews were
explained to the manager’s satisfaction. Based on his 23 years of military experience,
where he has witnessed individuals in similar situations where they omit information, the
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manager does not believe these omissions should preclude Applicant from receiving a
security clearance. 
Eight coworkers/friends provided character statements about Applicant. Witness
6, a self-employed computer consultant, has known Applicant for 13 years, and
considers him trustworthy and dependable. Witness 7 is a senior director of a company.
She met Applicant four years ago when they worked for the same company on different
projects. Through professional and social interaction, witness 7 found Applicant to be
competent, and with much integrity. Witness 8 is a project manager for Applicant’s
employer. Through daily contact as members at the same health club, witness 8
considers Applicant a team player. 
Witness 9 is employed at another company as a senior consultant. He met
Applicant on a project (2004). Witness 9 has socialized with him occasionally, and
recalled that Applicant attended his wedding in 2007. Witness 9 believes Applicant is a
good communicator who follows directions. Witness 10, a senior software engineer, met
Applicant in December 2007. He is Applicant’s coworker and also his supervisor.
Witness 10's observations indicate that Applicant is a real team player who has 10
years of experience in full cycle-development of software systems. 
Witness 11 is an associate athletic director of community relations for a college
where Applicant’s wife attended. He met Applicant in January 2008. Witness 11 has had
conversations with Applicant, and attended his wedding. Applicant has helped witness
11 with his home repair. Based on this interaction, witness 11 believes Applicant is
honest and a team player. Witness 12 is a senior member at Applicant’s employer, and
is Applicant’s coworker. He believes Applicant is honest, and conscientious, requiring
little supervision.
Witness 13 is an intellectual property associate for a law firm, and has known
Applicant for 13 years when they were in school together. Witness 13 considers
Applicant a close friend. Recently, Applicant helped renovate witness 13's basement.
She believes Applicant is dependable and consistently faithful to his friends. 
None of the witnesses who testified have ever seen Applicant use any drugs. All
witnesses vouch for Applicant’s honesty. 
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 flexible rules of law. Recognizing the complexities of human
behavior, these guidelines are applied in conjunction with the factors listed in the
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adjudicative process. The Administrative Judge’s ultimate adjudicative goal is a fair,
impartial and common sense decision. According to the AG, the entire process is a
careful, thorough evaluation 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 ¶ 2b.
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
is not restricted to normal duty hours. Rather, the relationship is an-around-the-clock
responsibility between an applicant and the federal government. 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.
Drug Involvement (DI)
Drug Involvement casts doubt on a person’s willingness to comply with security
rules and regulations. 
Personal Conduct (PC) 
Providing dishonest or incomplete information during a security investigation
demonstrates poor judgment. 
Criminal Conduct (CC) 
Violating the law demonstrates poor judgment and generating legitimate
questions about a person’s willingness to comply with security rules and regulations. 
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Analysis
Drug Involvement (DI) 
24. The Concern. “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 or regulations.”
Applicant’s drug involvement falls within the scope of DI disqualifying condition
(DC) 25.a. (any drug abuse) While Applicant’s intentional falsifications about his drug
use weaken his overall credibility, there is no evidence of marijuana use after July 2005.
The passage of almost three years and the infrequency of use affords a sufficient basis
to apply DI mitigating condition (MC) 26.a. (the 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) in his
favor. Guideline H is found in Applicant’s favor. 
Personal Conduct (PC)
15. The Concern. “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.”
Deliberate as opposed to unintentional omissions of material information are
cognizable under the PC guideline. Examples of unintentional omissions are those that
occur through haste, oversight or misunderstanding the question. 
Applicant’s deliberate falsification of his SCA in September 2005, falls within the
ambit of PC DC 16.a. (deliberate omission or falsification of relevant facts from any
personnel security questionnaire to determine security clearance eligibility or
trustworthiness) Applicant’s deliberate falsifications of his interviews in July and
December 2006 fall within PC DC 16.b. (deliberately providing false or misleading
information concerning relevant facts to an investigator or other official government
representative).
There are four mitigating conditions (MC) that are potentially applicable to the
circumstances in this case. Those conditions are: PC MC 17.a. (the individual made
prompt, good-faith efforts to correct the omission, concealment or falsification, before
being confronted with the facts); PC MC 17.c. (the offense was 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); and, PC MC 17.d. (the individual has
 Even though I have resolved the drug involvement guideline in Applicant’s favor, materiality is not limited only3
to information that would affect a final agency decision, but also information (falsifications) relevant to the
security clearance investigation. See, ISCR 01-06870 (September 13, 2002) at pp. 5-6. 
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acknowledged the behavior and obtained counseling to change the behavior or taken
other positive steps to alleviate stressors, circumstances, or factors that caused
untrustworthy, unreliable or other inappropriate behavior, and such behavior is unlikely
to recur). PC MC 17.a. is not applicable as Applicant did not make efforts to provide the
full scope of his drug history until he was confronted with the polygraph. PC MC 17.b. is
inapplicable because Applicant’s deliberate falsifications were not isolated, Rather, they
constituted a pattern of dishonesty that cannot be credibly reconciled as minor. The
second element of the condition cannot be applied as the most recent falsification
occurred less than 18 months before the hearing.
Rehabilitation from dishonest behavior begins with accepting full responsibility for
one’s conduct. Given Applicant’s struggles during the hearing to take full responsibility
for falsifying a government form and two interviews, residual concerns remain about his
judgment and reliability that are not completely assuaged by his remedial behavior in
submitting an undated security form in November 2006. Hence, the favorable mitigation
Applicant receives under the first element of PC MC 17.d. in acknowledging the
behavior must be weighed against Applicant’s persistence in trying to rationalize his
dishonest conduct. His favorable character evidence from the witnesses provides a
commendable picture of Applicant’s job performance and his conduct away from the
job. However, his favorable attributes do not overcome his deliberate efforts to conceal
his U.S. drug use. 
Criminal Conduct (CC)
30. The Concern. “Criminal activity raises 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.” 
Applicant’s deliberate falsifications under the PC guideline also constitute a
violation of Title 18 United States Code (U.S.C.) Section 1001, a felony. Applicant’s U.S.
drug history was material  to the government investigation into his security clearance3
suitability. CC DC 31.c. (allegation or admission of criminal conduct, regardless of
whether the person was formally charged, formally prosecuted or convicted) applies.
I have considered all the mitigating conditions under the CC guideline. 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) does not apply. Applicant’s
initial falsification of his SCA in September 2005 was more than 2 ½ years ago.
However, his criminal conduct continued in July 2006 with his incomplete responses
about his drug use to an investigator. After he claims he disclosed all drug use in
August and October 2006, he deliberately provided false information in December 2006.
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Applicant receives limited mitigation under 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) His demonstration of
remorse, his good employment record, and positive character attributes in non-work
situations, have been carefully evaluated. But, given the recency of his falsifications and
their frequency, Applicant has not met his ultimate burden of persuasion under the CC
guideline. 
Whole Person Concept (WPC)
The AG indicates the ultimate determination of whether to grant a security
clearance must be an overall common sense judgment based upon careful
consideration of the whole person concept. Nine general policy factors define the WPC.
They are: (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 the participation is voluntary; (6) the presence or absence of
rehabilitation; (7) the motivation for the conduct; (8) the potential for pressure, coercion,
exploitation, or duress; and, (9) the likelihood of continuation or recurrence.
Applicant’s intentional falsifications of his U.S. drug use in September 2005
(SCA), July 2006 (interview), and December 2006 (interview) were serious. Each time
Applicant falsified the SCA and the interviews, I believe he knew what he was doing.
The falsifications are aggravated by their repetitive nature. Applicant committed the
dishonest behavior between ages 26 and 27. Two months before Applicant certified his
SCA in September 2005, he used marijuana, even though the amount may have been
small. In July 2006, Applicant disclosed an incomplete account of his overseas drug
use, but not his drug use in the U.S. Even after he purportedly provided the full history
of his drug use in August and October 2006, he decided in December 2006 to withhold
his U.S. drug use that he had disclosed in August 2006. Applicant’s character evidence
weighs heavily in his favor, but does not overcome the adverse evidence under the PC
and CC guidelines. 
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 (Drug Involvement, Guideline H): FOR APPLICANT
Subparagraph 1.a. For Applicant
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Paragraph 2 (Personal Conduct, Guideline E): AGAINST APPLICANT
Subparagraph 2.a. Against Applicant
Subparagraph 2.b. Against Applicant
Subparagraph 2.c. Against Applicant
Paragraph 3 (Criminal conduct, Guideline J): AGAINST APPLICANT
Subparagraph 3.a. 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. 
                       
Paul J. Mason
Administrative Judge