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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )       ISCR Case No. 07-16050 
SSN: ----------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jennifer Goldstein, Esquire, Department Counsel
For Applicant: Pro Se
December 10, 2008
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Decision
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MOGUL, Martin H., Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86), on April 3, 2007.
On June 26, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) detailing the security concerns under Guidelines J, H, and
E 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 replied to the SOR (RSOR) in writing on July 29, 2008, with additional
documents and requested a hearing before an Administrative Judge. The case was
assigned to this Administrative Judge on September 4, 2008. DOHA issued a notice of
hearing on September 16, 2008, and the hearing was convened as scheduled on
October 28, 2008, in Santa Barbara, California.
The Government offered Exhibits 1 through 12, which were received without
objection. Applicant testified on his own behalf, and the documents submitted as part of
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Applicant’s RSOR were admitted without objection. DOHA received the transcript of the
hearing (Tr) on November 6, 2008. Based upon a review of the case file, pleadings,
exhibits, and testimony, eligibility for access to classified information is denied. 
Findings of Fact
In his RSOR, Applicant admitted the SOR allegations 1.a., through 1.f., under
Guideline J, 2.a. through 2.d., and 2.f., under Guideline H, and 3.b through 3.d. under
Guideline E. He denied allegations 2.e. and 3.a. The admitted allegations are
incorporated herein as findings of fact. 
After a complete and thorough review of the evidence in the record, including
Applicant's RSOR, the admitted documents, and the testimony of Applicant, and upon
due consideration of that evidence, I make the additional findings of fact: 
Applicant is 33 years old. He is unmarried and has no children. He served in the
Navy from 2000 to 2005, and received and Honorable Discharge. He is currently
employed by a defense contractor, and he seeks a DoD security clearance in
connection with his employment in the defense sector.
Paragraph 1 (Guideline J - Criminal Conduct) 
The Government alleges that Applicant has engaged in following criminal acts:
1.a. On July 4, 2007, Applicant was arrested and charged with Misdemeanor
Drunk Driving with Injury Enhancement, Felony DUI with .08% Alcohol Causing bodily
Injury with Enhancement, and Failure to Provide Proof of Insurance.  He pled no contest
to the charge of Driving Under the Influence of Alcohol, a misdemeanor. Applicant was
sentenced to serve 20 days in jail, which he did serve, perform community service,
attend a DUI First Offender program, and he was placed on three years probation.
Applicant testified that he believed he had about five drinks in the course of an
hour, after which he drove his vehicle and became involved in a vehicular accident. He
remains on probation for approximately two more years during which he must report to
a probation officer. He received a fine of $3,000, and he still owes $2,000 on this fine. 
1.b. On March 3, 2003, Applicant was arrested and charged with Disorderly
Conduct. He was sentenced to serve six months in jail; which was suspended, and fined
$217.
Applicant and an acquaintance in the Navy had a physical altercation as to who
would drive a vehicle. This was after they had both been out for the evening, during
which time they were both consuming alcohol. 
1.c. On July 29, 1998, Applicant was arrested and charged with Distribution of a
Look-A-Like Substance, a class three felony. Applicant was found Guilty, and he was
sentenced to two years probation, and ordered to pay fines and costs of $813.
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Applicant testified that he attempted to sell baking soda to a drug user and
charge him as if it were cocaine. The individual whom he believed to be a drug user was
an undercover police officer, which resulted in Applicant’s arrest. He testified that he
served two weeks in jail for this offense. 
1.d. On May 17, 1997, Applicant was arrested and charged with Unlawful Use of
a Weapon, a felony.  He was found guilty and sentenced to serve 12 months probation,
and pay fines and costs of $255. On September 16, 1998, his probation was extended
for two additional years and he was sentenced to serve 14 days in jail. 
Applicant testified that a friend of his had accidentally shot himself with a gun.
Applicant claimed that while the friend was in the hospital, Applicant took the gun from
his friend’s vehicle in order to keep the police from locating it, but the police had the
vehicle under surveillance, and Applicant was arrested and charged. As alleged in 3.d.
below, Applicant had a different explanations as to what actually occurred in this event. 
1.e. On March 24, 1997, Applicant was arrested and charged with Possession of
Cannabis (30 grams) and Possession of a Firearm without a Valid license, a
misdemeanor.  He was found guilty sentenced to serve 16 days in jail; and he was
given credit for 16 days time served. 
Applicant testified that he was driving when he was stopped by a police officer,
who found both marijuana and a shell casing in his vehicle. Applicant claimed that the
amount of marijuana was less that the 30 grams for which he was charged, but he had
been using it. He also testified that in a sworn statement that he provided to a
Government investigator, he claimed that the shell casing was from when he went
hunting with his uncle, although at the hearing he conceded that the casing was not
from hunting with his uncle.  
1.f. On January 23, 1993, Applicant was arrested and charged with Disorderly
Conduct.
This incident is the result of a physical altercation between Applicant and another
individual at a shopping mall. 
Paragraph 2 (Guideline H - Drug Involvement) 
The SOR lists 6 allegations regarding illegal drug involvement under Adjudicative
Guideline H. All of the allegations will be discussed in the same order as they were
listed in the SOR:
2.a. In September 2006, Applicant tested positive for marijuana as a result of a
drug test conducted by his employer. This resulted in his being terminated from this
employer. Applicant claimed that he tested positive for marijuana because of his one
time marijuana usage on July 4, 2006. 
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2.b. In August 2006, Applicant failed a drug test given by a prospective employer.
As a result of the failed drug test, he was not hired by this employer. Applicant also
claimed that he failed this drug test because of his one time usage on July 4, 2006. 
2.c.  Applicant used marijuana on at least July 4, 2006, when he was with friends
at a barbecue.  Applicant contends that was the only time since he left the Navy that he
used an illegal substance. 
2.d.  In a signed, sworn statement, dated October 23, 2001, Applicant stated that
he had no intension of using marijuana in the future (Exhibit 10). Clearly he used it at
least one time after stating that he would not use it again. 
2.e.  Applicant used marijuana on a daily basis for a period of time prior to his
entering the Navy in September 2000. In his RSOR, Applicant denied this allegation.
However, at the hearing, he testified that for approximately three years before he
entered the Navy, 1997 to 2000, he was using marijuana on a daily basis. 
Applicant testified that he had not been truthful in his RSOR because he was
ashamed that he had ever used marijuana and also to keep himself from looking even
worse than he already did (Tr at 54-55). 
2.f. On March 24, 1997, Applicant was arrested and charged with Possession of
Cannabis (30 grams), as alleged in 1.e., above. As discussed above, Applicant claimed
that the amount of Cannabis in his possession was less than the 30 grams that had
been alleged, but he did concede that he had been using the marijuana that he
possessed. 
Paragraph 3 (Guideline E - Personal Conduct)
3.a. Applicant executed a signed, sworn statement to a DoD investigator, dated
October 23, 2001, in which he admitted that he deliberately falsified material facts
before he entered the Navy when he claimed that he had only used cannabis on one
occasion, whereas he had been using it on a daily basis prior to his entering the Navy
(Exhibit 10). 
At the hearing, Applicant admitted that he believed that if he had been truthful
about his marijuana usage before he entered the Navy, he might not be allowed to enlist
in the Navy (Tr at 60).
3.b. During a personal subject interview with a DoD investigator on May 17,
2007, Applicant stated that he had only used marijuana on two occasions on July 2006
and February 2000, whereas he had been using it on a daily basis prior to his entering
the Navy. 
At the hearing, Applicant conceded that he lied about his marijuana usage in
2007, because he had forgotten that on Exhibit 10 made in 2001, he had told the truth
about his marijuana usage.  He also admitted that he had lied to help him get a
clearance.
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3.c. In March 28, 2008 Answers to Interrogatories (Exhibit 4), Applicant claimed
that he had only used cannabis on one occasion, whereas he had been using it on a
daily basis prior to his entering the Navy. 
3.d. Applicant gave two different versions of the circumstances concerning the
criminal activity that has been alleged on paragraph 1.d., above, one version on his
SCA dated April 3, 2007, in which he got the gun out of the car of his friend and a
different version in a signed, sworn statement made to a DoD investigator on October
23, 2001, in which he found the gun in an alley. 
Mitigation
In his RSOR, Applicant submitted a letter of recommendation from his current
supervisor, who spoke in very positive terms about Applicant. He also submitted a
Letter of Commendation from his Commanding Officer and a Citation, both of which he
received while in the Navy.
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. 
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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)
Analysis
Guideline J - Criminal Conduct
The Government has established that Applicant engaged in criminal conduct, as
he was arrested and convicted of six different criminal violations that spanned a period
from 1993 to the most recent DUI in 2007. Applicant has two more years remaining on
this latest criminal violation as well as $2,000 of his fine that has not yet been paid. 
In reviewing the Disqualifying Conditions (DC) under Guideline J, DC 31. (a), a
single serious crime or multiple lesser offenses, and (d), individual is currently on
probation, apply in this case. Under Mitigation Conditions, I find that no MC applies to
this Applicant, because of the seriousness and recency of the latest criminal conduct.
Applicant has not mitigated this allegation. Paragraph 1 is found against Applicant. 
Guideline H - Drug Involvement 
With respect to Guideline H, the Government has established its case.
Applicant's improper and illegal drug abuse, including the possession, and use of
marijuana, after stating that he would not use marijuana in the future is of concern,
especially in light of his desire to have access to the nation's secrets. Applicant's overall
conduct pertaining to his illegal substance abuse clearly falls within Drug Involvement
Disqualifying Condition (DC) 25. (a) (any drug abuse), and (c) (illegal drug possession,
including cultivation, processing, manufacture, purchase, sale, or distribution).
It appears that Applicant has had extremely limited use of any illegal substance
in the last few years, However, because the evidence shows multiple examples of
Applicant not being truthful about his previous drug usage, I can not conclude that his
current statements concerning his drug usage are credible or come within any of the
Mitigating Conditions. 
Accordingly, Paragraph 2 Guideline H of the SOR is concluded against Applicant.
Guideline E - Personal Conduct 
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With respect to Guideline E, the evidence establishes that Applicant has been
less than candid and truthful with information that he has provided to the Government
in many forms and as recently as when he denied his previous drug usage on his Reply
to the SOR.  
In reviewing the DCs under Guideline E, I conclude that DC (a), deliberate
omission, concealment or falsification of relevant facts from any personnel security
questionnaire, and (b), deliberately providing false or misleading information concerning
relevant facts to an employer or investigator, apply.  No Mitigating Condition is
applicable.
I resolve Paragraph 3, Guideline E, against 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
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. Based on all of the factors
discussed above, including the multiple false information provided by Applicant, and
multiple examples of criminal conduct, I find that the record evidence leaves me with
significant questions and doubts as to Applicant’s eligibility and suitability for a security
clearance under the whole person concept. For all these reasons, I conclude Applicant
has not mitigated the security concerns. 
Formal Findings
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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
Subparagraph 1.a. through 1.f.: Against Applicant
Paragraph 2, Guideline H AGAINST APPLICANT
Subparagraph 2.a. through 2.f.: Against Applicant
Paragraph 3, Guideline E AGAINST APPLICANT
Subparagraph 2.a. through 2.d.: 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.
                                             
Martin H. Mogul
Administrative Judge