DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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---------------------- )       ISCR Case No. 07-01810
SSN: ----------- )
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Department Counsel
For Applicant: Pro Se
November 18, 2008
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Decision
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TESTAN, Joseph, Administrative Judge:
On July 12, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) to applicant detailing the security concerns under
Guidelines H, E and 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 answered the SOR in writing on July 25, 2008, and requested an
Administrative Determination by an Administrative Judge (AJ). Department Counsel
issued a File of Relevant Material (FORM) on August 26, 2008. Applicant did not file a
response to the FORM. The case was assigned to me on October 21, 2008. Based
upon a review of the case file, pleadings, and exhibits, eligibility for access to classified
information is denied.
The last time he used Ecstacy he was holding a security clearance.
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Findings of Fact
Applicant is a 30 year old employee of a defense contractor.
In a November 2006 signed statement he gave to an OPM investigator, applicant
admitted that he had used marijuana in August 1999 and had used Ecstacy with varying
frequency from October 2000 to March 2002.  He then stated, “I don’t intend on using1
any drug again because I believe it could become addictive and I’ve known people who
use it every day and I don’t want that.”
Applicant gave OPM another signed statement in February 2008. In this
statement, he admitted that he (1) used marijuana in 2007, (2) purchased and used
Ecstacy in January 2008, and (3) “may have acted as a middle man” in the exchange of
money and drugs. He also discussed his intentions regarding further drug use. He
stated: “My intent on further use is not to use any illegal drugs a regular thing. I do not
think I would be apt to use ecstasy again and I believe it is kind of passed me. It was
nice experience but I don’t think it is necessary to use in the future. I do not plan on
seeking out to use drugs but if marijuana was available in a social setting I might use it
again . . . .”
Applicant falsified material facts on a security clearance application (SCA)
executed by him in July 2000 when he deliberately failed to disclose his 1999 marijuana
use.
 
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.)
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
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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 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 . . . 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. Under
Paragraph 25.c., “illegal drug possession, including cultivation, processing,
manufacture, purchase, sale, or distribution . . .” may be disqualifying. Under Paragraph
25.h., an “expressed intent to continue illegal drug use, or failure to clearly and
convincingly commit to discontinue drug use,” may be disqualifying. Applicant’s use of
marijuana, purchase and use of Ecstacy,  and his February 2008 statement in which he
equivocated about his intentions for future drug use, raise these three disqualifying
conditions.
Paragraph 32 of the AG sets forth conditions that could mitigate security
concerns. I considered each of them and conclude none apply.
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.
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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 2000 SCA.
Paragraph 17 sets forth conditions that could mitigate security concerns. I
considered each of them and conclude none apply.
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 intentional misrepresentation
of material facts on the 2000 SCA (a felony under 18 U.S.C. 1001) raises 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.
“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.       
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I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Applicant is a mature man who has
a history of illegal drug use and of being less than candid about it. His use of marijuana
and ecstacy after he told the DoD in 2006 he did not intend to use it again, and his
failure to offer an unequivocal statement forswearing future illegal drug use when he
had the opportunity to do so in 2008, makes it impossible to conclude he is unlikely to
use illegal drugs in the future. For these reasons, I conclude applicant failed to mitigate
the security concerns arising from Guidelines H, E and J.
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
Paragraph 2, Guideline E: AGAINST APPLICANT
Paragraph 3, Guideline J: 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.
                                              
JOSEPH TESTAN
Administrative Judge