DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 06-23323
SSN: ----------- )
)
Applicant for Security Clearance )
Appearances
For Government: Paul M. DeLaney, Department Counsel
For Applicant: Pro Se
September 18, 2008
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Decision
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TESTAN, Joseph, Administrative Judge:
On March 24, 2008, the Defense Office of Hearings and Appeals (DOHA) issued
a Statement of Reasons (SOR) to applicant detailing the security concerns under
Guidelines J, H and E. 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 April 8, 2008, and requested an
Administrative Determination by an Administrative Judge (AJ). Department Counsel
issued a File of Relevant Material (FORM) on May 9, 2008. Applicant filed a response to
the FORM on June 23, 2008. The case was assigned to me on July 2, 2008. Based
upon a review of the case file, pleadings, and exhibits, eligibility for access to classified
information is denied.
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Findings of Fact
Applicant is a 32 year old employee of a defense contractor.
In 1997, applicant was cited for a noise violation. He was found guilty and fined
$60.00. In his response to the SOR, applicant stated he was the social chair of a
fraternity, and “part of the duties of the acting social chair were to accept the charges for
any noise violation at a fraternity held function and [he] did so without question.”
In 1998, applicant was arrested and charged with Assault and Battery. He was
convicted of the charge, fined, placed on probation, and ordered to pay his victim’s
medical expenses. In his response to the SOR, applicant stated this incident was the
result of him going to the aid of one of his fraternity brothers when he saw him “on the
ground on his back being beaten up by three unnamed men.” 
In November 1998, applicant received non-judicial punishment under Article 15 of
the UCMJ for assault on a superior officer. As a result, he was reduced in rank. In his
response to the SOR, applicant stated this charge was the result of him accidentally
splashing hot coffee on the chest and face of his superior.
In November 1998, applicant was arrested and charged with Breaking and
Entering with the Intent to Commit Assault and Battery. The Court placed him in a
diversion program and ordered him to serve 100 hours of community service. After
applicant completed the community service, the charge was dismissed. In his response
to the SOR, applicant admitted that he participated in a brawl with 16-20 fraternity
brothers and their associates, but believes he was “singled out” because he looked like
one of the other brawlers.
In October 1999, applicant was charged with Assault and Battery on his former
girlfriend. He was found not guilty of the charge.
In November 2000, applicant was arrested and charged with Shooting or
Throwing Missiles at Occupied Vehicles, a felony. He pleaded guilty to the
misdemeanor charge of Property Damage and was fined $500.00. In his response to
the SOR, applicant stated this incident started with him throwing an empty soda can out
of his car and ended with him colliding with a van. According to the driver of the van, the
soda can hit the van, causing him to lose control and collide with applicant’s vehicle.
Applicant has a different theory. He believes that the driver of the van became enraged
after being hit by the soda can and then sped up and rammed applicant’s vehicle. 
In November 2002, applicant was arrested for Driving While Intoxicated. He was
found guilty of the charge.
Applicant used illegal steroids in 1997 and 1998, cocaine once in either 2001 or
2002 and twice in 2004, and marijuana approximately ten times in 1999 and at least
seven times between 2003-2006.
Applicant completed an Electronic Questionnaire for Investigations Processing
(e-QIP) on September 27, 2006. In response to Question 24, applicant indicated his
The SOR alleges applicant falsified material facts on a 2000 e-QIP when he failed to disclose his cocaine
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use. However, as Department Counsel concedes in the FORM, there is no evidence that applicant used
cocaine prior to 2001. This allegation is therefore found for applicant.
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illegal drug use had consisted of using marijuana ten times in 1999. This response was
false because, as noted above, he had used marijuana between 2003 and 2006.1
Applicant denies that he tried to mislead the DoD with his answer. In Exhibit 5, he stated
his omission was due to an “unintentional oversight.” In his response to the SOR, he
appeared to be stating that his mistake was due to him simply copying the information
he provided on his 2000 e-QIP onto his 2006 e-QIP without updating it. He stated the
following:
In my effort to fill out the appropriate form in a timely manner I had pulled
my previous file from my first application, SF86, for Security Clearance.
This form did not have the new data on it as it was filled out in 2000. Once
I realized my omission and mistake I immediately contacted my security
officer at the time who instructed me to simply make the statements during
my personal interview with my OPM Security Officer. I did so, initiating the
dialogue proactively making all forthright statements about my previous
drug use during that face to face interview.
When the information on applicant’s 2000 e-QIP is compared to the information
on his 2006 e-QIP, this explanation is not credible. In response to a question about drug
use on his 2000 e-QIP, applicant stated he used marijuana 10 times from 1/1999 to
3/1999. When he responded to the drug use question on his 2006 e-QIP, he stated he
used marijuana 10 times from 2/1999 to 5/1999. In addition, he provided an explanation
about his marijuana use with his 2006 answer, something he did not do with his 2000
answer. The difference in dates and the added explanation belie applicant’s explanation
that he simply copied the information from one e-QIP onto the other e-QIP. He clearly
read the question and provided fresh information. Based on the foregoing, I find that
applicant intentionally provided the false information. I further find his uncorroborated
statements (1) that he talked with his security officer about his “omission and mistake”
and was told to “simply make the statements during [his] personal interview with [the]
OPM Security Officer” and (2) implying that he voluntarily disclosed his 2001-2003
marijuana use to the OPM investigator before being questioned about it, to be
incredible.
Policies
The President has “the authority to . . . control access to information bearing on
national security and to determine whether an individual is sufficiently trustworthy to
occupy a position that will give that person access to such information.” (Department of
the Navy v. Egan, 484 U.S. 518,527 (1988).) In Executive Order 10865, Safeguarding
Classified Information Within Industry (February 20, 1960), the President set out
guidelines and procedures for safeguarding classified information within the executive
branch. The President authorized the Secretary of Defense or his designee to grant
applicants eligibility for access to classified information “only upon a finding that it is
clearly consistent with the national interest to do so.” (Exec. Ord. 10865, Section 2.)
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To be eligible for a security clearance, an applicant must meet the security
guidelines contained in the Directive. Enclosure 2 of the Directive sets forth personnel
security guidelines, as well as the disqualifying conditions and mitigating conditions
under each guideline.
Initially, the Government must present evidence to establish controverted facts in
the SOR that disqualify or may disqualify the applicant from being eligible for access to
classified information. (Directive, Paragraph E3.1.14.) Thereafter, the applicant is
responsible for presenting evidence to rebut, explain, extenuate, or mitigate the facts.
(Directive, Paragraph E3. 1.15.) An applicant “has the ultimate burden of demonstrating
that it is clearly consistent with the national interest to grant or continue his security
clearance.” (ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002).) “Any doubt as to
whether access to classified information is clearly consistent with national security will
be resolved in favor of the national security.” (Directive, Paragraph E2.2.2.)
A person granted access to classified information enters into a special
relationship with the government. The government must be able to repose a high
degree of trust and confidence in those individuals to whom it grants access to
classified information. The decision to deny an individual a security clearance is not a
determination as to the loyalty of the applicant. (Exec. Ord. 10865, Section 7.) It is
merely an indication that the applicant has not met the strict guidelines the President
has established for issuing a clearance.
Analysis
Guideline J, Criminal Conduct
The security concern for criminal conduct is set forth in Paragraph 30 of the AG,
and is as follows:
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.
Paragraph 31 describes conditions that could raise a security concern and may
be disqualifying: Under Paragraph 31.a., “a single serious crime or multiple lesser
offenses” may be disqualifying. And, under Paragraph 31.c., an “allegation or admission
of criminal conduct, regardless of whether the person was formally charged, formally
prosecuted or convicted,” may be disqualifying. Applicant’s multiple convictions and his
intentional misrepresentation of material facts on the 2006 e-QIP (a felony under 18
U.S.C. 1001) raise these two disqualifying conditions.
Paragraph 32 of the AG sets forth conditions that could mitigate security
concerns. I have considered each of them and conclude none apply.
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Guideline H:  Drug Involvement
The security concern for drug involvement is set forth in Paragraph 24 of the
AG, and is as follows:
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.
Paragraph 25 describes conditions that could raise a security concern and may
be disqualifying. Under Paragraph 25.a., “any drug abuse” may be disqualifying. This
disqualifying condition is applicable.
Paragraph 26 of the AG sets forth conditions that could mitigate security
concerns. Under Paragraph 26.a., it may be mitigating if “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.” Under Paragraph 26.b., it may be mitigating if there is “a demonstrated
intent not to abuse any drugs in the future,” such as “disassociation from drug-using
associates and contacts,” and “an appropriate period of abstinence.” Applicant used last
used an illegal drug, marijuana, in 2006. According to applicant, he had stopped using
marijuana in 1999, only to resume his use of it in 2003, long after he graduated from
college, and after he had applied for a security clearance. The evidence does not
support a finding that he is unlikely to use it again. I conclude that neither of these
mitigating conditions is applicable. 
Guideline E, Personal Conduct
The security concern relating to the guideline for Personal Conduct is set forth in
Paragraph 15 of the AG, and is as follows:
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.
Paragraph16 describes conditions that could raise a security concern and may be
disqualifying. Under Paragraph 16.a., 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,” may be disqualifying. This
disqualifying condition is applicable because applicant intentionally provided false
material information on the e-QIP.
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Paragraph 17 sets forth conditions that could mitigate security concerns. I
considered each of them and conclude none apply.
“Whole Person” Analysis 
Under the whole person concept, the AJ must evaluate an applicant’s security
eligibility by considering the totality of the applicant’s conduct and all the circumstances.
An AJ should consider the nine adjudicative process factors listed at AG Paragraph
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 Paragraph 2c, the ultimate
determination of whether to grant a security clearance must be an overall common
sense 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 is a mature man with a
history of numerous arrests and convictions, illegal drug use, and dishonesty. Although
he appears to have started to straighten out his life, the various statements and
explanations he provided for most his criminal conduct, statements and explanations
that consistently and incredibly downplay his culpability and attempt to make him look
like an innocent victim of circumstances, together with his relatively recent intentional
falsification of material facts about his drug use on the e-QIP, and his relatively recent
illegal drug use, indicate that he still has some work to do before he can be deemed
sufficiently reliable and trustworthy to hold a security clearance. Applicant failed to
mitigate the security concerns arising from Guidelines J, H and E.
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 J: AGAINST APPLICANT
Paragraph 2, Guideline H: AGAINST APPLICANT
Paragraph 3, Guideline E: 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 national security to grant applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                              
_________________
JOSEPH TESTAN
Administrative Judge