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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 06-22451
SSN: --------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Esquire, Department Counsel
For Applicant: Pro se
December 19, 2008
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DECISION
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ROSS, Wilford H., Administrative Judge:
Applicant submitted his Security Clearance Application (eQIP), on December 2,
2005 (Government Exhibit 1).  On March 28, 2008, the Defense Office of Hearings and
Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns
under Guideline E concerning the 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 President Bush on December 29,
2005, and effective within the Department of Defense for SORs issued after September
1, 2006. 
 
Applicant submitted an Answer to the SOR on April 17, 2008, and requested a
hearing before an Administrative Judge.  I received the case assignment on July 9,
2008.  DOHA issued a notice of hearing on July 9, 2008, and I convened the hearing as
scheduled on July 23, 2008. The Government offered Government Exhibits 1 through 6,
which were received without objection. Applicant testified on his own behalf and
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submitted Applicant’s Exhibits A and B, without objection. DOHA received the transcript
of the hearing on July 30, 2008.  The record closed on August 8, 2008. Based upon a
review of the case file, pleadings, exhibits, and testimony, eligibility for access to
classified information is granted.
Findings of Fact
The Applicant is 46 and married.  He is employed by a defense contractor and
seeks to obtain a security clearance in connection with his employment. 
Guideline E - Personal Conduct 
The Government alleges in this paragraph that the Applicant is ineligible for
clearance because he has made false statements during the clearance screening
process.  The Applicant denied the allegations in the SOR.
The Applicant was a member of the United States Armed Forces for eight years,
until 1992.  In 1992 he was tried by a General Court-Martial for various drug offenses.
The specifications included one count of Use of Methamphetamine, one count of the
Use of Hashish, and two counts of the Use of Marijuana, all under Article 112a of the
Uniform Code of Military Justice.  The Applicant plead guilty to all four charges, and
received a sentence that included prison time and a Bad Conduct Discharge.  The
Applicant’s wife was also implicated in his misconduct.  (Government Exhibits 5 and 6;
Applicant’s Exhibit B.)
With regards to his court-martial, the Applicant has consistently maintained that
he did not use methamphetamine and hashish as alleged.  Rather, he states that he
received poor legal advice, and that in the military being in the presence of illegal
substances is the same as using it.  He furthermore states that a military investigation
report, which has other service members implicating him in the use of
methamphetamine and hashish, is not correct.  He testified, “I still stand by what I said.
No, I did not use it and have not used it.  However, I am guilty by association.  So, you
know, that makes me guilty.  I have no problems with being guilty by that association,
but I am not guilty by use.”  (Transcript at 39-40.)
In 1999, the Applicant and his wife were charged with Possession of Marijuana
and/or Disturbing the Peace.  According to the Applicant’s account, he and his wife
were walking on a beach when they spotted a bag which had marijuana inside it.  His
wife picked up the bag and they continued to walk.  A policeman approached, asked
them if they picked up anything, they admitted having the bag, and they were cited.  At
court, the Applicant plead guilty to Disturbing the Peace, and was sentenced to a fine
and one year’s probation.  The actual citation was not entered into evidence, nor is
there any other evidence stating what offense the Applicant was charged with.
(Government Exhibit 3; Transcript at 32-36.)
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The Applicant signed an eQIP (Government Exhibit 1) on December 2, 2005.  He
testified that he failed to proof read this copy of the questionnaire before signing it.  He
further stated that the failure is solely his responsibility, and not his company’s.
(Transcript at 30-32, 35-38.)
That questionnaire asks the following as question 19, “Have you ever received
other than an honorable discharge from the military?”  The Applicant answered, “Yes,”
and admitted he had received a Bad Conduct Discharge in 1993 (actually 1992).  He did
not set forth the charges for which he was court-martialed.  
1.a.  The questionnaire asks the following as question 23.d., “Have you ever
been charged with or convicted of any offense(s) related to alcohol or drugs?”  The
Applicant answered, “Yes,” and related a 2002 Driving Under the Influence arrest.  He
did not discuss his 1992 Court-Martial or the 1999 citation.  This answer was, therefore,
incomplete.  
The Applicant testified at great length, and under cross-examination, about how
he completed the questionnaire concerning this question.  He stated that he had
prepared a hand written record for his company and that in that record he had
completely set forth the Court-Martial and the 1999 citation.  (Transcript at 30-31, 35-
36.)  In addition, because he had previously admitted the Court-Martial on the same
questionnaire, there is some question of intent, which will be discussed below.
1.b.  Question 24.b. of the questionnaire asks, “Have you ever illegally used a
controlled substance while employed as a law enforcement officer, prosecutor, or
courtroom official; while possessing a security clearance; or while in a position directly
and immediately affecting the public safety?” (Emphasis in original.)  The Applicant
answered, “Yes,” and stated that he had used marijuana a couple of times from 1989 to
1990.
The Government alleges that the Applicant actually used marijuana until 1993
while holding a security clearance and, therefore, his statement was false.  The support
for this is an unsworn declaration of an interview of the Applicant taken on June 21,
2006.  That declaration states, “Subject [the Applicant] has not used marijuana in the
last ten years however, he admitted to using marijuana on seven or eight occasions
prior to 1993.”  (Government Exhibit 3 at 8.) 
The Applicant testified concerning this point, “I thought that showing my Court
Martial would have been entered - - so, there was no reason for me to say it there.  It
was specifically under Air Force.  And I did check it that yes, I did use it while I had a
Security Clearance before.”  (Transcript at 38.)
The Applicant’s answers are not inherently contradictory, or at odds with the
facts.  While the Applicant was actually discharged from the military in 1993, he had
been in confinement or preparing for a court-martial since 1991.  He therefore did not
have a security clearance during that time.
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1.c.  The Applicant made another unsworn declaration to a Department of
Defense investigator on June 7, 2007.  The investigator reported:
Subject answered the question of why he did not disclose his use of
hashish and methamphetamine (possible cocaine) in the SI [subject
interview] dated 6/21/06.  Subject does not recall the answers in the
6/21/06 paperwork but he would not disclose this because he has not
used methamphetamine, cocaine or hashish.  Subject had been in the
presence of others who were using, but the [Applicant] has not used those
drugs and the only drug he has used is marijuana.  The military code of
justice considers being in the presence of and failing to report, the same
as use of the drug.  (Government Exhibit 3 at 5.)
The Government alleges that this statement is false.  This is based on the
Applicant’s conviction after a guilty plea of the use of methamphetamine, his own
statement to military investigators, and the statements of other service members that he
did use the drugs.  Contradicting this is the Applicant’s consistent, and adamant,
statements that he did not use methamphetamine.  He freely admits his use of
marijuana.  (See Applicant’s Answer; Transcript at 27-30, 39-40.)
Mitigation
The Applicant submitted documentary evidence showing that he is a highly
respected employee.  His supervisor states, “[The Applicant] has performed admirably
since he began employment . . . and continues to do so.”  (Applicant’s Exhibit A.)  
Policies
Security clearance decisions are not made in a vacuum.  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.  In addition, the Administrative Judge may also rely on his own
common sense, as well as his knowledge of the law, human nature, and the ways of the
world, in making a reasoned decision.
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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. Security clearance decisions include, by
necessity, consideration of the possible risk that 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.
 
Finally, as emphasized by President Eisenhower in Section 7 of Executive Order
10865, “Any determination under this order . . . 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.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).  
Analysis
Guideline E, Personal Conduct
The security concern relating to the guideline for Personal Conduct is set out in
AG & 15:      
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.
The guideline notes several conditions that could raise security concerns. Under
AG & 16(a), the “deliberate omission, concealment, or falsification of relevant facts from
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any personnel security questionnaire,” is potentially disqualifying.  Similarly under AG &
16(b), Adeliberately providing false or misleading information concerning relevant facts
to an . . . investigator@ may also raise security concerns. Based on the facts of this case,
I find that these Disqualifying Conditions do not apply for the following reasons.  
The Applicant put the Government on notice in Government Exhibit 1 that he had
been Court-Martialed and received a Bad Conduct Discharge as a result of that Court-
Martial.  In addition, he put the Government on notice that he had been involved with
illegal drugs during his time in the Air Force.  He plead guilty to using
methamphetamine, but has consistently denied its use since that time.  
I have considered the Applicant’s explanations for why his questionnaire does not
contain information on the 1999 marijuana incident and find them to be plausible.  In
particular, without documentary evidence, I cannot find to a reasonable degree of
certainty that the Applicant was charged with Possession of Marijuana as opposed to
Disturbing the Peace.
Finally, the Applicant has consistently stated that he did not use
methamphetamine, but that the military puts use in the same category as being present
where the drug is used.  The Applicant’s understanding may, or may not, be legally
correct.  What is important, however, is that he believes it to be the case.  Once again, I
cannot find with a reasonable degree of certainty that he lied to a Department of
Defense investigator in 2007.
The Applicant attempted to put the Government on notice about his years old
drug history.  In doing so, some of his answers were incomplete, and others were
wrong.  Certainly, he could have done a better job proof reading his questionnaire.
However, looked at in a manner most favorable to the Government, all of these acts, or
failures to act, merely show that the Applicant is human and can make mistakes, not
that he intended to falsify statements to the Government.  Since I find that the Applicant
did not intentionally falsify his questionnaire or statement to a Department of Defense
investigator, none of the Mitigating Conditions are applicable.  Paragraph 1 is found for
the Applicant.
 
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) 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
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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.  The Applicant is a hard-working,
respected, professional person who has overcome his earlier drug use.  In viewing all
the facts of this case, I find that the Applicant has mitigated any security significance of
his prior conduct.  As set forth at length above, I find that the Applicant did not intend to
deceive the Government (AG ¶2(a)(1) and (2).  In addition, I find that there is little to no
potential for pressure, coercion, exploitation, or duress (AG ¶2(a)(8)), and that the
likelihood of recurrence is close to nil (AG ¶2(a)(9)). 
Overall, the record evidence leaves me without questions and/or doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude the Applicant has mitigated the security concerns arising from his alleged
personal conduct.  
On balance, it is concluded that the Applicant has successfully overcome the
Government's case opposing his request for a DoD security clearance.  Accordingly, the
evidence supports a finding for the Applicant as to the factual and conclusionary
allegations expressed in Paragraph 1 of the Government's Statement of Reasons. 
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 E: FOR THE APPLICANT
Subparagraph 1.a: For the Applicant
Subparagraph 1.b: For the Applicant 
Subparagraph 1.c.: For the Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
                                              
WILFORD H. ROSS
Administrative Judge