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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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------------ ------ ----------- )       ISCR Case No. 06-02925
SSN: ------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Emilio Jaksetic, Esq., Department Counsel
For Applicant: Sheldon I. Cohen, Esq.
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Decision
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CURRY, Marc E., Administrative Judge:
On November 7, 2008, the Defense Office of Hearings and Appeals (DOHA)
issued to Applicant a Statement of Reasons (SOR) detailing the security concern under
Guidelines G, H, and E. 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. 
On November 22, 2008, Applicant filed an answer to the SOR, denying all of the
allegations except SOR subparagraphs 2.a, and 3.a, and requesting a hearing. I
received the case assignment on January 5, 2009. DOHA issued a notice of hearing on
January 14, 2009, and I convened the hearing as scheduled on February 17, 2009.
During the hearing, I received seven government exhibits (Ex. 1-7), 17 Applicant
exhibits (Ex. A-Q), and the testimony of five Applicant witnesses. I received the
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transcript on February 25, 2009. Based upon a review of the case file, pleadings,
exhibits, and testimony, eligibility for access to classified information is denied.
Rulings of Evidence
Exhibit 4 is Applicant’s Response to Written Interrogatories, notarized August 5,
2008. It includes excerpts from an Office of Personnel Management (OPM) Report of
Investigation (ROI) that contain the OPM agent’s written summary of three personal
subject interviews with Applicant conducted on March 19, 2008, July 23, 2007, and
November 14, 2005, respectively. Interrogatory Question 2 asked Applicant to review
the subject interviews, and “verify the report on the last page of [the] interrogatories”
(Exhibit 4 at 2). Under Interrogatory Question 3, Applicant was asked if the ROI
accurately reflected the information that he provided to the investigator on the days he
was interviewed. Applicant answered “no” (Exhibit 4 at 3). Also, he provided a two-page
explanation, comprehensively discussing each personal subject interview, and
identifying what he believed to be inaccuracies in the investigator’s written record of
them.
On February 12, 2009, Applicant’s counsel filed a Motion in Limine seeking to
exclude Exhibit 4, arguing that DoD Directive 5220.6 ¶ E 3.1.20 prohibits the admission
of ROIs without authenticating witnesses, and that the government cannot circumvent
this requirement by including the ROI with Interrogatories to Applicant, and asking him
to authenticate it. Alternatively, he argued that the majority of the subject matter of the
ROI -  foreign contacts, foreign travel, risque internet chatroom discussions, were
irrelevant.
I overruled Applicant’s objection as to the admissibility of the ROI excerpts.
Applicant frequently cross-referenced the ROI in his Interrogatory Responses,
elaborating upon it, and identifying inaccuracies. Under these circumstances, the ROI
constitutes non-hearsay evidence that is admissible not for the truth of the matters
asserted within it, but to facilitate my understanding of Applicant’s Interrogatory
Responses.
I sustained Applicant’s objection as to the inadmissibility of the information within
the ROI about foreign contacts, foreign travel, and risque internet chatroom discussions.
Similarly, I did not consider information about these subjects contained within Exhibit 4.
None of this information is listed in the SOR. Although SORs are not criminal
indictments, they must be drafted, at minimum, with enough specificity to put applicants
on notice of the nature of the allegations. The government alleged no security concerns
under the Foreign Influence or Sexual Behavior guidelines, therefore, I considered none
of the information in the ROI covering these subjects.
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Findings of Fact
Applicant is a 48-year-old married man with two teenage children. He earned a
Bachelor of Science degree in computer science in 1983 and a Master of Science in
computer engineering in 1985 (Tr. 152). He has spent his career developing
cryptograph standards for financial institutions, and developing network security
systems (Tr. 77 - Supervisor’s Testimony). Currently, he is a senior-level supervisor for
a defense contractor who supervises “about 30 individuals doing security research in
computer security . . .” (Id.). He is an excellent employee who deftly balances multiple
roles at his company, and delivers high quality products to clients in a timely manner
(Tr. 43 - Testimony of Former Supervisor). He has held a security clearance for nearly
20 years (Tr. 187).
Applicant has a drinking problem. For the majority of his life, his alcohol
consumption was “fairly normal” (Tr. 156). In 2000, his desire to drink gradually began
to increase. By approximately 2001, he was drinking alcohol daily, socializing less, and
isolating himself from his family to conceal the extent of his alcohol consumption (Tr.
158; see also, Exhibit 5 at 11). 
As Applicant’s drinking problem worsened, his health deteriorated. Also, it began
to affect his work, as he increasingly awoke with hangovers, arrived to work late, or took
sick leave (Tr. 159). He never drank at work (Tr. 159). 
On July 12, 2006, Applicant checked into an alcohol-rehabilitation clinic, and took
a leave of absence form his job (Tr. 161, 165). By then, he had been consuming a half
of a fifth of liquor every evening (Tr. 164). A psychiatrist at the clinic diagnosed him with
alcohol dependence (Exhibit 5 at 17).  
On July 21, 2006, Applicant transferred to another inpatient alcohol-rehabilitation
clinic where he attended through August 18, 2006 (Answer). The program consisted of
individual and group counseling, in addition to educational activities (Exhibit F).
Applicant completed all aspects of the program successfully (Exhibit F). Upon
discharge, he received a good prognosis to remain sober (Exhibit G). His counselor
recommended that he attend Alcoholic’s Anonymous (AA) meetings daily for three
months, obtain a sponsor, and work with the sponsor “on a regular basis” (Exhibit 6 at
9).
Currently, Applicant remains involved with AA. He is active in AA outreach,
expanding groups to other areas in his community (Tr. 173). He chairs one group and is
the treasurer of another (Tr. 102-103 - Testimony of AA Sponsor). He has not drunk any
alcohol since he entered the in-patient treatment center in July 2006. His health,
emotional well-being, and relationship with his family have improved since he stopped
drinking.
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Applicant has continued to meet with his counselor since his discharge from the
alcohol treatment center. His counselor reiterated that his prognosis for continued
sobriety remains good (Exhibit G).
Applicant smoked marijuana monthly for approximately 25 years. He began at
age 14, smoking it once or twice per week (Tr. 182). By college, his use had increased
to several times per week (Tr. 183). After graduating, he continued to smoke marijuana
“consistently, several times a week, throughout [his] young and middle adult life” (Tr.
184). He used it primarily at home, but “on some occasions at parties or when visiting
with friends” (Tr. 209). 
By the time he entered his 40s, Applicant’s use had declined to “maybe several
times a month” (Tr. 184). He gradually quit smoking marijuana entirely in 2004 (Id.). He
decided to quit because he grew increasingly wary of the bad example he would be
setting for his children if they were to discover his marijuana use. He continues to
socialize with some of the people with whom he used marijuana in the past (Tr. 209).
Applicant did not disclose his marijuana use, as required, on a security clearance
application completed in January 2005 (Tr. 190). Although he had stopped smoking by
then, he “still had the illusion that [he] could continue the lie that [he] had been
perpetuating” since 1989, when he was untruthful about the extent of his use on his
original security clearance application (Tr. 192, see also, Tr. 203-204). 
In late 2005, Applicant met with an investigator from the U.S. Office of Personnel
Management (Tr. 207). He then disclosed his marijuana use in response to a question
from the investigator (Id.). 
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 overarching
adjudicative goal is a fair, impartial and common sense decision. According to AG ¶
2(c), the entire process is a 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.
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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. 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. . . .” Applicant has the ultimate burden of
persuasion as to obtaining a favorable security decision.
Analysis
Alcohol Consumption
Under this guideline, “excessive alcohol consumption often leads to the exercise
of questionable judgment or failure to control impulses, and can raise questions about
an individual’s reliability and trustworthiness” (AG ¶ 21). Here, Applicant’s lost control of
his alcohol consumption prompting him to seek in-patient treatment. Upon beginning the
treatment, a psychiatrist diagnosed him with alcohol dependence. AG ¶ 22(c), “habitual
or binge consumption of alcohol to the point of impaired judgment, regardless of
whether the individual is diagnosed as an alcohol abuser or alcohol dependent, and AG
¶ 22(d), “diagnosis by a duly qualified medical professional (e.g., physician, clinical
psychologist, or psychiatrist) of alcohol abuse or alcohol dependence,” apply.
Applicant successfully completed inpatient treatment, and successfully followed
the discharge plan. He remains active in AA, chairing meetings, and participating in
outreach projects. He has not drunk any alcohol since completing inpatient treatment in
2006, and received a favorable prognosis upon his discharge. In 2009, his counselor
reiterated his favorable prognosis. AG ¶ 23(b), “the individual acknowledges his or her
alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome
this problem, and has established a pattern of abstinence (if alcohol dependent), or
responsible use (if an alcohol abuser), and AG ¶ 23 (d), “the individual has successfully
completed inpatient or outpatient counseling or rehabilitation along with any required
aftercare, has demonstrated a clear and established pattern of modified consumption or
abstinence in accordance with treatment recommendations, such as participation in
meeting of AA or a similar organization, and has received a favorable prognosis by a
staff member of a recognized alcohol treatment program” apply.
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 ¶ 24). Applicant’s 25 years of marijuana use, much of which
occurred while possessing a security clearance, triggers the application of AG ¶ 25(a),
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“any drug abuse,” and AG ¶ 25(g), “any illegal drug use after being granted a security
clearance.”
Applicant has not smoked marijuana in five years. Given the length of time he
smoked it, the frequency of his use, and the fact that he still socializes with some of the
people with whom he had used marijuana, it is too soon to conclude that either AG ¶
26(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,” AG ¶ 26(b)1), “disassociation
from drug-using associates and contacts,” or AG ¶ 26(b)(3), “an appropriate period of
abstinence,” apply.
Personal Conduct
Under this guideline, “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 particular interest is any failure to provide truthful answers during the
security clearance process (Id.). 
Applicant admits to deliberately failing to disclose his marijuana use on a 2005
security clearance application. 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” applies. 
I have considered all of the mitigating conditions and conclude none apply.
Applicant did not disclose the falsification until approximately nine months later, in
response to a question from an investigative agent who had contacted him to arrange
an interview. Moreover, this was not the first time he falsified a security clearance
application. 
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 his 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.
Applicant testified insightfully about the link between his on-the-job stress and his
abuse of marijuana and alcohol. Having completed alcohol counseling, he appears to
have learned the dangers of using alcohol to reduce stress. He also recognizes that
using marijuana in this manner is similarly harmful. He appears to sincerely appreciate
the beneficial effects to his family relationships and health that have accompanied his
abstinence from marijuana and alcohol.
I conclude that Applicant’s alcohol dependence no longer poses a security
concern. I am not prepared to conclude, however, that his marijuana abuse no longer
poses a security concern. Unlike alcohol use, marijuana use is illegal. Applicant used
marijuana regularly for more than 20 years. This included approximately 15 years of
uninterrupted use after he was granted a security clearance in 1990.
Also, Applicant falsified two security clearance applications regarding his
marijuana use, and did not disclose it until an investigative agent asked him about it
during an interview. Consequently, although the presence of rehabilitation is evident, it
is outweighed by the recency, severity, and extent of the conduct. Evaluating this case
in the context of the whole person, I conclude it is not clearly consistent with the national
interest to grant Applicant a security clearance. 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 G: FOR APPLICANT
Subparagraphs 1.a - 1.b: For Applicant
Paragraph 2, Guideline H: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Paragraph 3, Guideline E: AGAINST APPLICANT
Subparagraphs 3.a - 3.b: Against Applicant
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Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance. Eligibility for access to classified information is denied.
                                             
MARC E. CURRY
Administrative Judge