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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 08-02503
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Pro Se
February 10, 2009
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Decision
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CEFOLA, Richard A., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP), on January 24, 2006.  On October 17, 2008, the Defense Office of Hearings
and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security
concerns under Guidelines 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 acknowledged receipt of the SOR on October 28, 2008.  He answered
the SOR in writing on November 17, 2008, and requested a hearing before an
Administrative Judge.  DOHA received the request on November 21, 2008, and it was
assigned to another Administrative Judge on December 16, 2008.  I received the case
assignment on January 20, 2009.  DOHA had issued a notice of hearing on January 5,
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2009, and I convened the hearing as scheduled on January 21, 2009.  The Government
offered Exhibits (GXs) 1 and 2, which were received without objection.  Applicant
testified on his own behalf and submitted Exhibits (AppXs) A through D, without
objection.  DOHA received the transcript of the hearing (TR) on February 2, 2009.  I
granted Applicant’s request to keep the record open until February 4, 2009, to submit
additional matters.  On February 3, 2009, he submitted Exhibit E, without objection. The
record closed on February 4, 2009.  Based upon a review of the case file, pleadings,
exhibits, and testimony, eligibility for access to classified information is granted.
Findings of Fact
In his Answer to the SOR, Applicant admitted all of the factual allegations of the
SOR, with explanations.  He also provided additional information to support his request
for eligibility for a security clearance.
Guideline H - Drug Involvement & Guideline E - Personal Conduct
The Applicant is a 54 year Electrical Engineer, married with two grown children
(TR at page 15 line 23 to page 18 line 16).  He has worked in the defense industry for
about 28 years, and has held a security clearance for that period of time (TR at page 19
line 20 to page 20 line 10).
1.a.~1.c. and 2.a.  From January of 2001 until about January/February of 2006,
the Applicant used marijuana “[a]bout 15 times” (TR at page 22 line 1 to page 25 line
16).  His last usage was during the Super Bowl in 2006 (TR at page 58 line 20 to page
60 line 2).  His usage was always in a social setting, where the marijuana was passed
to the Applicant, and he would smoke the illegal substance (TR at page 22 line 1 to
page 25 line 16).  He smoked this marijuana while holding a security clearance, and his
last usage was after he submitted his e-QIP in January of 2006 (TR at page 25 line 22
to page 29 line 10).  The Applicant has disavowed any future drug abuse, and has
signed a written statement of intent to that end (TR at page 32 line 4 to page 34 line 14,
and AppX E at page 3).
Guideline E - Personal Conduct
2.b.  The Applicant failed to file his Federal and State income tax returns for tax
years 2002 and 2003, in a timely fashion (TR at page 35 line 5 to page 37 line 8).  The
Applicant asked his spouse to file their tax returns, but she refused to do it (Id).  This
was a “battle of stubborness,” which is corroborated by a statement from Applicant’s
wife (TR at page 35 line 5 to page 37 line 8, and AppX E at page 2).  They subsequently
paid their taxes, along with the penalties and interest their tardiness incurred (Id).
2.c.  In 2001, the Applicant went to a foreign country for 5~6 days to meet
potential investors for a private business proposition (TR at page 42 line 20 to page 52
line 18).  This trip was during Christmas break on short notice, and he verbally informed
his employer’s security office of his intended trip (TR at page 42 line 20 to page 52 line
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18, and at page 55 line 14 to page 56 line 3).  Prior to his trip, he did not know what
potential investors he would meet, but one of them turned out to be a retired General of
the foreign country (Id).  The Applicant did not discuss any sensitive information with
this General or with any other potential investor (TR at page 42 line 20 to page 52 line
18, and at page 55 line 14 to page 56 line 3).  [The trip attracted no meaningful foreign
investment.]  He reported his foreign national meetings “two or three months” after his
return from the trip (Id).  No disciplinary action was taken vis-a-vis the Applicant as a
result of this trip.
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
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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 H - Drug Involvement
The security concern relating to the guideline for Drug Involvement is set out in
Paragraph 24:
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.
The guideline also notes several conditions that could raise security concerns.
Under Subparagraph 25(a), “any drug abuse” may be disqualifying.  In addition, “any
illegal drug use after being granted a security clearance” under Subparagraph 25(g).
Here the Applicant used marijuana about 15 times, after being granted a security
clearance, with his last usage being in January/February of 2006.  This is countered,
however, by the mitigating condition found in Subparagraph 26(a).  The Applicant’s
Drug Involvement “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.”  Here, the Applicant last used
marijuana about three years ago.  Subparagraph 26(b) is also applicable, as Applicant
has shown “a demonstrated intent not to abuse any drugs in the future, such as: (4) a
signed statement of intent” to disassociate from those who use illegal substances, and
“not [to] knowingly partake in any illegal substance while holding any security
clearance.”
Guideline E - Personal Conduct
The security concern relating to the guideline for Personal Conduct is set out in
AG Paragraph 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.
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The guideline notes several conditions that could raise security concerns.  Under
Subparagraph 16(c), “credible adverse information in several adjudicative issue areas
that is not sufficient for an adverse determination under any other single guideline, but
which, when considered as a whole, supports a whole-person assessment of
questionable judgment . . . .”  Here, the Applicant used an illegal substance, marijuana,
about 15 times, used it once after executing his e-QIP, and failed to file 2002 and 2003
tax returns in a timely fashion.  He should have also reported his 2001 foreign contacts
in a more timely fashion.  However, this is countered by Subparagraph 17(c) as “so
much time has passed, or the behavior so infrequent, or it happened under such unique
circumstances that it is unlikely to recur or does not cast doubt on the individual’s
current reliability, trustworthiness, or good judgment.”  Again, the Applicant’s last
marijuana usage was about three years ago; and his other faux pas, the untimely tax
filings and tardy foreign contact report, occurred 4~8 years ago.  Furthermore, the
Applicant has formally and credibly eschewed any future drug involvement.
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 all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  The Applicant has the unqualified support
of his Senior Program Manager and of his Section Manager (AppX A).  Overall, the
record evidence leaves me without questions or doubts as to Applicant’s eligibility and
suitability for a security clearance.  For all these reasons, I conclude Applicant mitigated
the security concerns arising from his Drug Involvement and 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: FOR APPLICANT
Subparagraph 1.a: For Applicant
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Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: For Applicant
Subparagraph 2.c: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
Richard A. Cefola
Administrative Judge