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                            DEPARTMENT OF DEFENSE
             DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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--------, ----------- -------- )       ISCR Case No. 07-12539
SSN: ------ ---- -------- )
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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WHITE, David M., Administrative Judge:
Applicant used marijuana and cocaine regularly from 1997 to 2006. He also sold
both drugs, experimented with others, and was convicted of drug possession twice
during that period. He has abstained from drug use since entering inpatient
rehabilitation in February 2006. He has changed his lifestyle, has an excellent work
record for 30 months, and is committed to continued abstinence. Applicant is making
significant progress but, given his long history of criminal substance abuse, insufficient
time has passed to demonstrate permanent behavioral change. Based upon a review of
the case file, pleadings, exhibits, and testimony, eligibility for access to classified
information is denied. 
Applicant submitted his Electronic Questionnaires for Investigation Processing
(e-QIP), on March 27, 2007. On May 30, 2008, the Defense Office of Hearings and
Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing security
concerns under Guidelines H, 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
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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 acknowledged receipt of the SOR on August 8, 2008. He answered the
SOR in writing on August 11, 2008. On August 25, 2008, Applicant indicated that he
desired to have a hearing during a telephone conversation with Department Counsel,
and that he would send a fax to document that request. The next day, Department
Counsel indicated that he also desired a hearing and would so request pursuant to
Directive ¶ E3.1.7. On August 27, 2008, Applicant submitted the fax requesting a
hearing before an administrative judge. (Hearing Exhibits (HE) I and II.) Department
Counsel was prepared to proceed on September 2, 2008, and the case was assigned to
me on the following day. DOHA issued a notice of hearing on September 3, 2008, and I
convened the hearing as scheduled on September 25, 2008. The Government offered
exhibits (GE) 1 through 4, which were admitted without objection. The Government also
offered HE IV, comprising two sections of the Controlled Substances Act of 1970 and
one section of Title 21 of the Code of Federal Regulations, to support a request that I
take administrative notice of the facts that marijuana, cocaine, ecstasy (MDMA), and
methamphetamine are controlled substances. Applicant had no objection, and
administrative notice was taken of these facts. Applicant testified on his own behalf, and
submitted exhibits (AE) A through I, which were admitted without objection. Applicant’s
supervisor also testified for him. I granted Applicant’s request to leave the record open
until October 17, 2008, to permit him to obtain and submit additional evidence. DOHA
received the transcript of the hearing (Tr.) on October 2, 2008. On October 13, 2008,
Applicant submitted the additional evidence to Department Counsel, who forwarded it
without objection to its consideration on October 15, 2008. This evidence was admitted,
marked AE J, and the record was closed. 
Findings of Fact
In his Answer to the SOR, Applicant admitted all of the factual allegations
concerning drug involvement, and criminal conduct. Applicant’s admissions, including
those contained in his responses to DOHA Interrogatories (GE 3 and 4), are
incorporated in the following findings.
Applicant is a 42-year-old blaster/painter employed by a defense contractor. He
has worked for his present employer since April 2006. He has rapidly qualified to
perform many certified technical functions, and has been a “stellar employee,”
according to his project manager and supervisor. (AE A through J; Tr. at 73-75.) He has
never held a security clearance.
On his e-QIP, Applicant admitted to using marijuana and crack cocaine more
than 50 times each between January 1997 and February 2006. (GE 1 at § 24.) He later
described his use as twice per month, using both drugs together during this period. (GE
3 at 2; Tr. at 49.) This computes to be more than 200 uses over that nine year period. In
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July 2005, Applicant was diagnosed to be Cannabis dependent, in remission. (GE 4 at
5.) 
Applicant was arrested for possession of marijuana on February 17, 2001, was
convicted after pleading guilty, and was sentenced to serve one day in jail, pay a fine,
and undergo a drug evaluation. He failed to undergo that drug evaluation before being
arrested again and charged with felony methamphetamine possession, contempt of
court, and driving without a license on June 6, 2005. He then obtained a drug
evaluation, so the contempt of court charge was dropped. He pled guilty to
methamphetamine possession and was sentenced to 14 days in jail, a fine, and 12
months probation including drug treatment. (GE 1 at § 23; GE 2 at 2-3.) He stated
during the hearing that the methamphetamine belonged to his cousin, but he pled guilty
because he did not want to turn his cousin in. (Tr. at 57-58, 88-89.)
Applicant admitted in his answer to the SOR and during his hearing that he used
ecstasy (MDMA) twice, and used methamphetamine once, all prior to February 2006.
During the same 1997 to 2006 period, he admitted to selling marijuana and cocaine on
multiple occasions to obtain funds to pay bills and support his drug habit. He also
admitted testing positive for marijuana and cocaine in January 2006 in connection with
admission to the court-ordered drug treatment program. (Answer to SOR; Tr. at 54-57.)
I took administrative notice that marijuana, cocaine, MDMA and methamphetamine are
all controlled substances under the Controlled Substances Act.
Applicant successfully completed a 28-day intensive inpatient detoxification and
drug treatment program on March 20, 2006. (GE 4 at 4; Tr. at 49-52, 56.) He then
successfully completed his outpatient aftercare program on October 13, 2008. (AE K at
4; Tr. at 51-52.) He signed a statement of intent not to abuse any drugs in the future
with automatic revocation of clearance for any violation. (AE K at 5.) He is subject to
random drug testing at least once a year, and anytime based on suspicion of
impairment or during an incident investigation by his employer. (Tr. at 73, 75.) He has
ended all contact with former drug-involved associates, and dedicated himself to
providing a good example for his children and involvement in his church. (Tr. at 59-60,
62, 69-71.) Applicant testified openly and honestly about his past drug abuse, and
convincingly declared his intent never to abuse drugs in the future. His supervisor, the
regional project manager, was a no-nonsense and highly credible witness, who knows
about his past, monitors him closely, will tolerate no relapses, and vouched strongly for
his rehabilitation, present trustworthiness and reliability.   
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.
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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(a) and 2(c), the entire process is a conscientious scrutiny of applicable guidelines in
the context 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 “Any doubt concerning personnel being considered for access to classified
information will be resolved in favor of the 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 the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7
of Executive Order 10865 provides that “Any determination under this order adverse to
an applicant shall be a determination in terms of the national interest and shall in no
sense be a determination as to the loyalty of the applicant concerned.” 
A person applying for access to classified information seeks to enter 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
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.” AG ¶ 25 describes conditions that could raise a security concern and may
be disqualifying. Disqualifying conditions raised by the SOR allegations and asserted by
Department Counsel are: “(a) any drug abuse;” “(b) testing positive for illegal drug use;”
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and “(c) illegal drug possession, including cultivation, processing, manufacture,
purchase, sale, or distribution; or possession of drug paraphernalia.”
Applicant admitted long-term regular use of marijuana and crack cocaine over a
nine-year period ending in February 2006. He tested positive for both substances in
January 2006. He also admitted experimental use of MDMA and methamphetamine. He
was arrested for, and convicted of, criminal possession of drugs in 2001 and 2005, and
admitted selling drugs that he possessed on multiple other occasions during this period.
This conduct squarely raises substantial security concerns under the foregoing AG
provisions. 
AG ¶ 26 provides conditions that could mitigate security concerns. Mitigating
conditions raised by this record include: “(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;” 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 medical professional.” 
Applicant’s drug possession and use occurred over at least nine years, and as
recently as February 2006. While he has abstained for two and a half years, he was
diagnosed with Cannabis dependence in remission. His efforts to date are highly
commendable, but balanced against the length and frequency of his drug abuse, it is
premature to conclude that it is unlikely to recur and no longer casts doubt on his
judgment and reliability (¶ 26(a)). Applicant provided substantial evidence of intent not
to abuse drugs in the future, including his statement that he has disassociated from
drug-using contacts, his abstinence since his inpatient treatment, and his signed
statement of intent with automatic revocation (¶ 16(b)). As noted above, however, the
period of abstinence is insufficient at this point to fully mitigate security concerns.
Finally, he provided proof of successful completion of inpatient intensive treatment and
outpatient aftercare programs, but provided no prognosis by a duly qualified medical
professional (¶ 26(d)). 
Guideline J, Criminal Conduct
AG ¶ 30 expresses the security concern pertaining to 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 ¶ 31 describes conditions that could raise a security concern
and may be disqualifying. Disqualifying conditions asserted by the Government were:
“(a) a single serious crime or multiple lesser offenses;” and “(c) allegation or admission
of criminal conduct, regardless of whether the person was formally charged, formally
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prosecuted or convicted.” The crimes alleged in the SOR include Applicant’s arrests for,
and convictions of drug possession in 2001 and 2005, the latter of which was charged
as a felony. Applicant pled guilty to and admitted to commission of both offenses.
AG ¶ 32 provides conditions that could mitigate security concerns. Applicant’s
recent abstinence, completion of inpatient and outpatient treatment programs, good
work performance, and lifestyle changes create some mitigation under two of them.
These are: “(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, “(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.”
For mitigation analysis, Applicant’s SOR-listed criminal conduct and his criminal
history must be evaluated as a whole, not piece by piece. In addition to his two
convictions, Applicant admitted to multiple drug sales and regular illegal use of drugs
between 1997 and 2006. All of these crimes involved illegal substance abuse, and were
indicative of poor judgment and a lack of  self-control, as well as a willingness to flaunt
rules and regulations. Given the length and frequency of this conduct up until February
2006, Applicant did not establish strong mitigation of the concerns arising from his
criminal history. His recent outstanding employment record, job training, treatment
program successes, and period of abstinence from drug involvement are evidence that
support successful rehabilitation. The length and frequency of his former criminal
activity, however, lead to the conclusion that on balance it is still too soon to be
confident that such behavior is unlikely to recur, and no longer casts doubt on his
reliability, trustworthiness and judgment. 
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 established by the record evidence. 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.
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Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security
clearance must be an overall commonsense 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’s conduct of security
concern involved a pattern of recurring drug-abuse related offenses. He successfully
completed inpatient and outpatient drug treatment programs. All offenses and drug
abuse of concern occurred when he was mature and fully responsible for his choices.
He voluntarily participated in drug abuse on a regular basis for over nine years. At this
point, he has abstained for two and a half years, which is a good start toward
demonstrating that such conduct will not recur.
There is no evidence that Applicant was pressured to commit any offense by
anything beyond normal life pressures to which he remains subject. He has made
positive lifestyle changes, and gained a positive influence in his recent employment by a
very supportive supervisor. His behavior and good work performance since February
2006 create an excellent beginning in establishing a record of more responsible and
trustworthy conduct, and provide a sound basis on which to build eligibility for a security
clearance in the near future. The quantity and recency of drug abuse and criminal acts,
however, preclude a present judgment that Applicant has met his burden of mitigating
the security concerns raised by the undisputed evidence in this record. 
Overall, the record evidence leaves me with sufficient doubts as to Applicant’s
present eligibility and suitability for a security clearance that I must conclude he has not
met his burden to mitigate the security concerns arising from drug involvement and
criminal conduct considerations. His successful continuation of abstinence from drug
abuse or other criminal activity and outstanding work performance should support a
more favorable conclusion in the relatively near future.
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
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Paragraph 2, Guideline J: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the interests of national security to grant Applicant eligibility for a
security clearance. Eligibility for access to classified information is denied.
                                             
DAVID M. WHITE
Administrative Judge