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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
---------------- )       ISCR Case No. 08-05015
SSN: ----------- )
)
Applicant for Security Clearance )
Appearances
For Government: Emilio Jaksetic, Esquire, Department Counsel
For Applicant: Pro Se
                                                                            
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Decision
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MARSHALL, Jr., Arthur E., Administrative Judge:
Applicant submitted Electronic Questionnaires for Investigations Processing (e-
QIP), dated January 11, 2008. On August 20, 2008, the Defense Office of Hearings and
Appeals (DOHA) issued a Statement of Reasons (SOR) detailing security concerns
under Guideline J (Criminal Activity) and Guideline E (Personal Conduct). The action
was taken under Executive Order 10865, Safeguarding Classified Information within
Industry (February 20, 1960), as amended, the 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. 
In Applicant’s response to the SOR, notarized on September 9, 2008, he
admitted two of the four allegations raised under Guideline J and admitted the two
allegations, with explanations, raised under Guideline E. He also requested a
determination based on the written record. 
 Item 5 (Case Search Inquiry, dated Jul. 24, 2008).1
 In his response to the SOR, Applicant sets forth his explanation that he took possession of his passenger’s2
cocaine in order to protect his passenger, who had a criminal record. Applicant states that he thought his clean
record would preclude his being charged for cocaine possession. Collateral estoppel applies, and Applicant
cannot contest the validity of his felony conviction in this forum. Moreover, possession of cocaine on behalf
of someone else does not constitute a defense to this crime.
 Item 7 (Courts Case Information, dated Jun. 26, 2008).3
2
In response to Applicant’s answer, Department Counsel prepared a File of
Relevant Material (FORM), dated November 6, 2008. Applicant received the FORM on
November 26, 2008. He declined the opportunity to submit a response to the FORM
within 30 days of receipt of the FORM.
The case was forwarded to DOHA for assignment to an Administrative Judge for
an administrative determination. The case was assigned to me on January 21, 2009.
Based upon a review of the case file, pleadings, and exhibits, I find it is not clearly
consistent with the national security to grant Applicant a security clearance. 
Findings of Fact
Applicant is a 37-year-old driver employed by a Defense contractor. Applicant
was married in 1994 and the couple has three minor children. Applicant also has two
older children from a previous relationship.
Because Applicant submitted a brief response to the allegations and declined a
hearing on the record, the facts of record are scant. In April 1997, Applicant was
arrested and charged with Disturbing the Peace, Profanity, Disorderly Conduct, and
Resisting Arrest. The case was never prosecuted. Applicant has no recollection of the
incident, remembering only an incident in which he was asked by security police to turn
down his music. In his materials, Applicant failed to provide any documentary evidence
refuting the Government’s submission of records regarding the charges from a county
district court.1
Applicant admits that in about September 1999, he was arrested and charged
with Driving Under The Influence (DUI). He was sentenced to pay a fine. Also,
Applicant’s driver’s license was suspended for one year. 
On or about August 26, 2006, Applicant was charged with Possession of
Cocaine, a felony, and Using Abusive Language.  Represented by counsel, Applicant2
pled guilty. On or about February 5, 2007, he was convicted of Possession of Cocaine
and sentenced to Unsupervised Probation for two years, to 100 hours of community
service, and to complete a drug awareness class.  3
On January 11, 2008, Applicant executed his security clearance application. That
form included “Section 23: Your Police Record-For this item, report information
regardless of whether the record has been ‘sealed’ or otherwise stricken from the court
 Item 2 (Answer to the SOR), at 4-6. Department Counsel argues that the differing explanations makes the4
suspect and not credible. FORM at 5-6.
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record. The single exception to this requirement is for certain convictions under the
Federal Controlled Substances Act for which the court issued an expungement order
under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607.” With regard to subsection a.
(“Have you ever been charged with or convicted of any felony offense?”) and
subsection d. (“Have you ever been charged with or convicted of any offense(s) related
to alcohol or drugs?”), he answered “No.” Applicant answered those questions in the
negative because it was his understanding that if he satisfied the court’s sentencing
requirements (two years probation, community service, and completion of a drug
awareness class) his case would be put in a hold status until February 9, 2009. As long
as no further issues were presented, it was his understanding that the charge would be
dismissed. Elsewhere, Applicant stated that he misunderstood the question and that,
had he known the conviction was on his record, he would have answered differently.4
In submitting his materials, Applicant limited his submissions to his response to
the SOR. No documentation was presented indicating his progress with regard to his
period of unsupervised probation, 100 hours of community service, or completed a drug
awareness class. No evidence was presented indicating the court has otherwise
dropped the charges or nullified the conviction.
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, they 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 process is a
conscientious scrutiny of a number of variables comprising 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.
The Government must present evidence to establish controverted facts alleged
in the SOR. An applicant is responsible for presenting “witnesses and other evidence to
 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995).5
 Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).6
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).7
 Id.8
 Id.9
 Executive Order 10865 § 7.10
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rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by
Department Counsel. . . .”  The burden of proof is something less than a5
preponderance of evidence.  The ultimate burden of persuasion to obtain a favorable6
clearance decision is on the applicant.  7
 
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). “The clearly consistent standard
indicates that security clearance determinations should err, if they must, on the side of
denials.”  Any reasonable doubt about whether an applicant should be allowed access8
to sensitive information must be resolved in favor of protecting such sensitive
information.   The decision to deny an individual a security clearance is not necessarily9
a determination as to the loyalty of an applicant.  It is merely an indication that the10
applicant has not met the strict guidelines the President and the Secretary of Defense
have established for issuing a clearance.
Based upon consideration of the evidence, I find the following adjudicative
guidelines to be the most pertinent to the evaluation of the facts in this case:
Guideline J – Criminal Conduct. The Concern: 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 ¶ 30.
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Guideline E – Personal Conduct. The Concern: 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
¶ 15.
Analysis
Guideline J, Criminal Conduct
With respect to Guideline J (Criminal Conduct), the Government has established
its case. Applicant admits that he was arrested, charged, and convicted of Possession
of Cocaine, a felony, in August 2006. As part of that disposition, on February 5, 2007,
he was sentenced to two years of unsupervised probation, 100 hours of community
service, and required to complete a drug awareness class. He also admits that he was
arrested, charged, and convicted of DUI in September 1999. Further, he failed to refute
evidence that he was charged in 1997 with Disturbing the Peace, Profanity, Disorderly
Conduct, and Resisting Arrest. Such admissions and conduct are sufficient to raise
security concerns, invoke Criminal Conduct Disqualifying Conditions (CC DC) AG ¶
31(a) (“a single serious crime or multiple lesser offenses”), CC DC AG ¶ 31(c)
(“allegation or admission of criminal conduct, regardless of whether the person was
formally charged, formally prosecuted, or convicted”), and CC DC AG ¶ 31(d)
(“individual is currently on parole or probation”) and initiate inquiry.
The 1997 incidents are remote in time and details are vague. Moreover, they are
not accompanied by charges or allegations related to drugs or alcohol which would
provide a nexus to the more recent convictions. Therefore, with regard to the 1997
charges, Criminal Conduct Mitigating Condition (CC MC) AG ¶ 32(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”) applies to a limited extent. 
Applicant presented no evidence that he was pressured or coerced into
excessively consuming alcohol in 1999 or possessing cocaine in 2006. Therefore, CC
MC AG ¶ 32(b) (“the person was pressured or coerced into committing the act and
those pressures are no longer present in the person’s life”) does not apply. Moreover,
Applicant admits to the DUI conviction and the cocaine possession charge, obviating
application of CC MC AG ¶ 32(c) (“evidence that the person did not commit the
offense”) as to the actual offense. However, this section mitigating condition does apply
with regard to SOR allegation 1.d (regarding the allegation discussed below that
Applicant falsified his security clearance application).. 
Neither alcohol abuse nor cocaine use are compatible with the professional
driving of vehicles utilizing the public roads and highways, nor are they compatible with
the maintenance of a security clearance. While nearly 10 years has passed since
Applicant was last cited for alcohol abuse, Applicant failed to introduce any efforts
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undertaken to rehabilitate himself following his conviction for DUI. Moreover, his
maintenance of a clean record following that conviction was interrupted by a cocaine
possession charge which occurred within the past two and a half years. Further, as part
of the adjudication of that charge, Applicant was ordered to successfully serve two
years of probation, complete 10 hours of community service, and complete a drug
awareness class. Applicant failed to present evidence that any of these requirements
have been successfully or substantially completed. Consequently, the available record
evidence is that the court retains jurisdiction over the matter and the matter remains
open. Given these facts, neither CC MC AG ¶ 32(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”) nor any remaining
mitigating condition fully applies.
Guideline E, Personal Conduct 
Under this guideline, examination is made of an Applicant’s reliability,
trustworthiness, and ability to protect classified information based on his past personal
conduct and actions. 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. Applicant is cited by the Government for failing to disclose
that he had been charged with Possession of Cocaine, a felony, in response to Section
23 a. and d. on his security clearance application. It alleges that Applicant’s failure to do
so was deliberate. Such facts, if true, give rise to Personal Conduct (PC) Disqualifying
Condition (DC) AG ¶ 16(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).
To his defense, Applicant’s explanation as to why he did not include this charge
and conviction is not implausible. He stated that it was his understanding that if he
satisfied the court’s sentencing requirements (two years probation, community service,
and completion of a drug awareness class) his case, and no doubt his conviction, would
be on hold through February 2009, providing him the opportunity to fulfill the court
ordered requirements. Such a tentative arrangement could be confusing to a non-
lawyer and its nuance difficult to absorb. Department Counsel is correct in noting that
Applicant’s diverse arguments on this matter make them suspect. That does not,
however, necessarily make them not credible. Nor is there any other indication or
evidence indicating deliberate falsity on the part of Applicant. Without an element of
falsity or deliberate concealment, the disqualifying condition cannot be sustained.
Applicant has presented sufficient argument to mitigate personal conduct security
concerns.
 AG ¶ 2(b).11
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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 public trust position 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 the
scant facts and circumstances introduced in this case, as well as the “whole person”
factors noted above. Applicant is a mature man with a wife and several children. A
professional driver by profession, he must be familiar with the dangers of alcohol abuse
and drug use, both on the road and off. Similarly, he must be aware of the stigma such
behavior carries when associated with the driving profession and with one seeking
access to classified information. Although two and a half years have passed since his
arrest for cocaine possession, he has failed to show successful completion of his two
years of probation, 100 hours of community service, and drug awareness course. Also,
he has failed to show that he has continued to distance himself from drugs and other
criminal conduct to the satisfaction of the court retaining jurisdiction of the cocaine
possession case, and to this tribunal’s satisfaction as well.
Any doubt concerning personnel being considered for access to classified
information must be resolved in favor of the national security.  Because Applicant’s11
status with regard to his drug possession conviction and court ordered requirements
remain unresolved, and not enough time has elapsed since his cocaine possession,
security concerns remain. Clearance is denied. 
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 J: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
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Subparagraph 1.c For Applicant
Subparagraph 1.d For Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a For Applicant
Subparagraph 2.b For 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. Clearance is denied.
ARTHUR E. MARSHALL, JR.
Administrative Judge