1
                                                             
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 07-05069
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Eric Borgstrom, Esquire, Department Counsel
For Applicant: Pro Se
                            
______________
Decision
______________
HENRY, Mary E., Administrative Judge:
       
Based upon a review of the case file, pleadings, exhibits, and testimony,  I
conclude that Applicant’s eligibility for access to classified information is denied.
Applicant submitted his Security Clearance Application (SF 86), on August 10,
2006. On June 30, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) detailing the security concerns under Guidelines H, E and
J for Applicant. 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 21, 2008, and requested a
hearing before an administrative judge. DOHA received the request on July 24, 2008.
GE 6 consists of an unsworn personal interview statement of Applicant, titled as “testimonies”. The Directive1
prohibits the use of this document unless it is received with an authenticating witness. See Directive ¶ E3.1.20.
The government did not authenticate this exhibit and Applicant objected to its admission. GE 7 and GE 8 are
“testimonies” which the government authenticated. Tr. 31-41. 
Response to SOR, dated July 21, 2008.2
GE 1 (Security clearance application) at 1, 7, 13, 19-20; AE C (Discharge papers); AE D (Awards); AE F3
(Training certificates); Tr. 45, 52-54, 65, 81.
2
Department Counsel was prepared to proceed on August 22, 2008, and I received the
case assignment on September 4, 2008. DOHA issued a notice of hearing on
September 29, 2008, and I convened the hearing as scheduled on October 15, 2008.
The government offered eight exhibits (GE) 1 through 8, which were received and
marked. Applicant objected to the admission of GE 6. All exhibits were admitted into
evidence without objection, except GE 6, which was not admitted into evidence.1
Applicant testified on his own behalf. DOHA received the transcript of the hearing (Tr.)
on October 23, 2008. I held the record open until October 24, 2008, for Applicant to
submit additional matters.  On October 24, 2008, he submitted additional documents
which have been marked as AE A through H and admitted into evidence, without
objection. The record closed on October 24, 2008.
Procedural and Evidentiary Rulings
Notice
Applicant received the hearing notice on October 3, 2008. (Tr. 9) I advised
Applicant of his right under ¶ E3.1.8 of the Directive to receive the hearing notice 15
days notice before the hearing date. Applicant affirmatively waived his right to 15 days
notice. (Tr. 9-10) 
Findings of Fact
In his Answer to the SOR, dated June 30, 2008, Applicant admitted all the factual
allegations in the SOR.   2
Applicant, who is 57 years old, enlisted in the United States Navy in June 1970
and received an honorable discharge in July 1977. He immediately began working for
the Navy in a civilian capacity. During his years of civilian service, he completed many
training programs and received awards and honors. In 1985, the Navy granted him a
security clearance, which he continues to hold. The record contains no evidence he
failed to follow security procedures while working. He retired from federal civilian
employment in 2005, after 27 years of service.   3
In November 2005, he began working as a staff logistics engineer for a
Department of Defense contractor. He has worked in Kuwait on behalf of his employer.
His employer rated him “far exceeds”, the highest rating, in March 2008. His employer
AE B (2008 performance evaluation); AE D, supra note 3; Tr. 76. 4
AE H (paper written by Applicant on philosophy of life); Tr. 44-53.5
GE 2 (Interrogatories with attachments) at 5-6; GE 3 (Interrogatories with attachments) at 5); GE 5 6
(Court record) at 5; Tr. 55-62.
GE 4 (United States Department of Justice, Federal Bureau of Investigation, Criminal Justice Information7
Services Division, date of request August 25, 2006) at 4; GE 2, supra note 6, at 4; GE 3, supra note 5-6; Tr.
68-70.
GE 2, supra note 6, at 4; GE 3, supra note 6, at 7-8; Tr. 63-65, 67. 8
3
describes Applicant as an excellent employee with a very good work ethic. He works
well with co-workers and customers.4
Applicant was married for 15 years and has been divorced for sometime. His
former wife died a few years ago. They had two children, a daughter, age 36, and a son,
age 31. He also has a granddaughter, age 19, two grandsons, ages 17 and 13, and a
great-grandchild. At the time of the hearing, his son, his father, and two grandsons were
living with him. He provides some support for these family members. Over the years, he
has worked in his community, on a variety of committees or projects. He works with the
youth in his neighborhood, trying to provide guidance to them.5
In the late 1970s, Applicant started smoking marijuana occasionally with
Vietnam veterans. When he married, he stopped his recreational use of marijuana for a
period of time. He started smoking marijuana again when he divorced and continued to
use it occasionally until 2007. He smokes marijuana to relax and to celebrate events,
such as his birthday. He sometimes purchased marijuana, but never sold, manufactured
or distributed marijuana. In February 2003, the police arrested him and charged him
with the purchase and possession of marijuana. He pled guilty. The court fined him,
required him to attend a drug class, and placed him on probation without verdict for 12
months.6
In July 2003, while visiting his mother in the south, the police arrested him for
driving while under the influence of alcohol (DUI). He spent the night in jail. His family
bailed him out of jail the next day. He never appeared in court or pled to the charges
against him. After paying his bail, which he characterized as a fine, he never heard
anymore from the authorities in this state about his arrest.  7
On his birthday in October 2003, the police arrested and charged him with
possession of cocaine and marijuana. Prior to his arrest, he used cocaine on a few
occasions over several years. He has not used cocaine since his arrest. He pled guilty
to the charges. The court sentenced him as a first offender and required him to attend a
first offender’s class, which he did. The record contains no information on this arrest,
except for Applicant’s testimony and information provided to the investigator.  8
GE 1, supra note 6, at 16-18; Tr. 70-71, 87.9
GE 4, supra note 7, at 3; GE 8 (Testimonies of personal subject interview on March 16, 2006) at 3-5; Tr. 34.10
GE 2, supra note 6, at 5-7.11
Tr. 55-59, 64-65, 71-79, 82, 93-98.12
4
When he completed his SF-86 on August 10, 2006, Applicant answered “yes” to
Question 23d, indicating that he had been arrested in October 2001 for possession of
marijuana and to Question 24a, listing two occasions in 2001 for his marijuana use. He
did not list his other two arrests or acknowledge his extensive and more recent use of
marijuana. Applicant used the wrong date for the arrest he listed. At the hearing, he did
not provide a reason for his failure to provide more details about his past drug use or his
failure to list his arrest in February 2003. He did not believe his DUI arrest in July 2003
was relevant, so he did not list it.9
In March 2006, Applicant met with an investigator to discuss issues raised by his
answers in his SF-86. During this interview, he told the investigator he had been
arrested in February 2003 for purchasing and possessing marijuana, in July 2003 for
DUI, and in October 2003 for drug and alcohol use. He provided the investigator with
detailed information about the facts surrounding these arrests and about his use of
marijuana and cocaine. Based on this information provided by Applicant during the
interview, the investigator prepared a report. She did not request nor did she have his
criminal arrest record when she interviewed him. His criminal arrest record was
requested more than five months after this interview.10
Applicant also provided information regarding his arrests in his interview in
August 2007. In this interview, he provided limited information about his use of
marijuana, stating that he used it in the 1970s and twice later, in October 2001 and for
the last time in later 2003 or early 2004. He also acknowledged using cocaine on two
occasions, October 2003 and March 2004 for the last time. Although he attended a
court mandated drug class after his February 2003 arrest and a court mandated first
offenders class after his October 2003 arrest, he is not dependent on drugs and has not
received drug counseling or treatment. The interviewer concluded her report by noting
that Applicant was not able to remember the particulars of all the incidents.11
 At the hearing, Applicant acknowledged his drug use. He started with marijuana
in the 1970s, stopped during his marriage, and resumed smoking marijuana after his
divorce. He also admitted that he used cocaine maybe two or three times a year with a
girlfriend. He no longer dates this women, and has not used cocaine since 2004. He last
used marijuana in 2007 to celebrate his birthday. He testified that although he knew
marijuana and cocaine were illegal, he did not realize he could did not use drugs while
holding a clearance or that he could be fired if he tested positive for drugs.  12
5
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(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
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.
 
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).  
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Analysis
Guideline H, Drug Involvement
AG ¶ 24 expresses the security concern pertaining to drug involvement:
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.
(a) Drugs are defined as mood and behavior altering substances, and 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;
(b) drug abuse is the illegal use of a drug or use of a legal drug in a
manner that deviates from approved medical direction.
AG ¶ 25 describes conditions that could raise a security concern and may be
disqualifying:
(a) any drug abuse (see above definition); 
(c) illegal drug possession, including cultivation, processing, manufacture,
purchase, sale, or distribution; or possession of drug paraphernalia;
(g) any illegal drug use after being granted a security clearance; and,
(h) expressed intent to continue illegal drug use, or failure to clearly and
convincingly commit to discontinue drug use.
Applicant used marijuana in the 1970s and for many years since his divorce. For
a number of years he also used cocaine occasionally. He possessed both drugs and
sometimes purchased marijuana. He knows both drugs are illegal. Even with this
knowledge, he still used both while holding a security clearance. He last used cocaine in
2004 and marijuana in October 2007. He has not clearly and convincingly established a
commitment not to use marijuana again.  He enjoys the effects of marijuana, which is
the reason for his continued use of it on occasion. The above disqualifying conditions
AG ¶ 26 provides conditions that could mitigate security concerns:13
(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;
(b) a demonstrated intent not to abuse any 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; and,
(4) a signed statement of intent with automatic revocation of clearance for
any violation;
(c) abuse of prescription drugs was after a severe or prolonged illness during which these
drugs were prescribed, and abuse has since ended; and,
(d) 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.
The SOR does not allege that Applicant is a current drug user and the evidence of record does not establish14
that he is a current user of marijuana. See 50 U.S.C. ¶ 435c(b).
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are established.  I have considered the mitigating conditions and conclude that none13
apply. Guideline H, drug involvement is found against Applicant.14
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct::
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.
AG ¶ 16(a) describes conditions that could raise a security concern and may be
disqualifying:
(a) 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.
See ISCR Case No. 03-09483 at 4 (App. Bd. Nov.17, 2004)(explaining holding in ISCR Case No. 02-2313315
at 5 (App. Bd. Jun. 9, 2004)).
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The government established that Applicant omitted material facts from his SF-86
when he answered “yes” to Questions 23d and 24a, but failed to provide complete
information about his arrests and drug use. This information is material to the evaluation
of Applicant’s trustworthiness to hold a security clearance and to his honesty. He
denies, however, that he deliberately falsified his answer to these questions. When a
falsification allegation is controverted, the government has the burden of proving it.
Proof of an omission, standing alone, does not establish or prove an applicant’s intent
or state of mind when the omission occurred. An administrative judge must consider the
record evidence as a whole to determine whether there is direct or circumstantial
evidence concerning an applicant’s intent or state of mind at the time the omission
occurred.  For DC ¶ 16 (a) to apply, the government must establish that Applicant’s15
omission, concealment or falsification in his answers to these questions was deliberate.
Applicant admits that he did not consider his DUI arrest relevant and thus, did not
provide the information about this arrest. He could not provide any reason for not listing
all his arrests, which he knew had occurred. He intentionally failed to provide full and
accurate answers to Question 23d and 24a. The above disqualifying conditions apply in
this case. 
I have reviewed the mitigating conditions under AG ¶ 17. Although he failed to
provide full and complete information in his SF-86 about his arrests and drug use,
Applicant voluntarily provided information about his three arrests and extensive drug
use to the investigator during his March 16, 2006 interview without being confronted
with evidence of his arrests or drug use. The investigator acknowledged that she did not
request his criminal records prior to this interview and that the information in her report
came from Applicant. Thus, AG ¶ (a) “the individual made prompt, good-faith efforts to
correct the omission, concealment, or falsification before being confronted with the
facts” applies. Applicant has mitigated the government’s security concerns as to SOR
allegations 2.a, 2.a(1) and 2.b.
Concerning his inconsistent statements regarding his drug use, Applicant has
consistently stated that he last used cocaine in 2004. He has also provided consistent
information about when he actually used marijuana. He has not provided accurate and
consistent information about the number of times and frequency of his cocaine and
marijuana use. When he initially met with the investigator in March 2006, he provided
information about his long use of marijuana and cocaine which coincides with his
hearing testimony.  The interviewer noted his lack of memory about many details on the
issues discussed. In his later interview, he provided less information about his drug use.
Given that the government already had better information about his drug use from the
prior interview, his statements in his 2007 interview are not a deliberate intent to hide
information from the government, but the result of poor recall and miscommunication.
SOR allegation 2.c is found in favor of Applicant.
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Guideline J, Criminal Conduct
In light of my findings under Guideline E, Guideline J is found against Applicant.
Being honest later is not a defense to an 18 U.S.C. ¶ 1001 violation.
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 common sense judgment based upon careful
consideration of the guidelines and the whole person concept.       
In reaching a conclusion, I considered the potentially disqualifying and mitigating
conditions in light of all the facts and circumstances surrounding this case. Applicant
worked for the Navy and the federal government for more than 27 years without any
disciplinary actions taken against him. He was a reliable employee and continued with
his excellent work ethic in his private sector job. His current employer praises his work.
He has worked in his community for many years to help the youth. He takes of his father
and grandchildren. He is responsible towards his family, his finances and his
community. His efforts to provide guidance to the youth of his community is
commendable.
When he used the illegal drugs marijuana and cocaine while holding a security
clearance, Applicant breached a special trust . He used these drugs not once, but
multiple times between 1985, when he was granted his security clearance, and 2004.
Each time he used marijuana or cocaine, he knew he was breaking the law. I do not find
his statement that he did not know he could not use illegal drugs while holding a
security clearance credible. Common sense would tell him that illegal drug use would
not be acceptable behavior while holding a security clearance. Applicant’s decision to
use marijuana and cocaine showed poor judgment and sets a poor example for the
youth he is trying to help. His decision shows a disregard for the rules and laws of
society and for holding a security clearance. Furthermore, given his long history of
recreational marijuana use, I am not convinced he will not use it in the future. Applicant
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has not mitigated the government’s concerns about his security worthiness and
trustworthiness.
Overall, the record evidence leaves me with questions or doubts as to 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 and
criminal conduct. He has mitigated the security concerns about his personal 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
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
Subparagraph 1.f: Against Applicant
Subparagraph 1.g: Against Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.a (1) For Applicant
Subparagraph 2.b: For Applicant
Subparagraph 2.c: For Applicant
Paragraph 3, 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 the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                                              
MARY E. HENRY
Administrative Judge