DEPARTMENT OF DEFENSE 
   DEFENSE OFFICE OF HEARINGS AND APPEALS 
    
    
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 07-18027 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Francisco Mendez, Department Counsel 
For Applicant: Pro Se 
 
 
 
 
______________ 
 
Decision 
______________ 
 
 
HEINY, Claude R., Administrative Judge: 
 
From 2000 to 2008, Applicant illegally used marijuana, and since 2004, used it 
while holding a security clearance. When completing various security clearance 
applications, he failed to disclose his full arrest record and history of marijuana usage. 
Applicant has failed to rebut or mitigate the government’s security concerns under drug 
involvement and personal conduct. Clearance is denied. 
 
Statement of the Case 
 
 Applicant contests the Defense Department’s intent to deny or revoke his 
eligibility for an industrial security clearance. Acting under the relevant Executive Order 
and DoD Directive,1 the Defense Office of Hearings and Appeals (DOHA) issued a 
                                                          
1 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. 
 
 
 
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Statement of Reasons (SOR) on October 30, 2008, detailing security concerns under 
drug involvement and personal conduct. 
  
 On October 30, 2008, Applicant answered the SOR, and requested a hearing. 
On December 15, 2008, I was assigned the case. On December 17, 2008, DOHA 
issued a notice of hearing scheduling the hearing which was held on January 8, 2009. 
At the hearing, the government offered Exhibits (Ex.) 1 through 9, which were admitted 
into evidence. Applicant testified on his own behalf and did not submit any exhibits. On 
January 26, 2009, the transcript (Tr.) was received. 
 
Findings of Fact 
 
 Department Counsel’s motion to withdraw the allegation set forth SOR ¶ 1.g was 
granted. In his Answer to the SOR, Applicant admits the remaining allegations. 
 
 Applicant is a 25-year-old administative assistant / general clerk who has worked 
for a defense contractor since November 2002, and is seeking to keep a secret security 
clearance granted in May 2004. Applicant’s supervisor states Applicant is in the top half 
of the eight contractors in his group. Applicant has provided invaluable service by 
restructuring the operational file system. (Tr. 48) His supervisor, after giving it long 
through, stated Applicant deserves a second chance.  
 
 In 2000, Applicant—then age 18—was found guilty of driving a vehicle while 
impaired by alcohol. (Ex. 2) His Blood Alcohol Content (BAC) was .11. Applicant 
pleaded guilty and was sentenced to probation before judgment and required to perform 
24 hours of community service and attend alcohol abuse classes for two hours a week 
for six weeks. (Ex. 4) 
 
Applicant used marijuana from 2000—when he was in the 10th grade—to May 
2008. His use was once or twice a month and he sometimes went two or three months 
without using. (Tr. 35) From October 2004 until June 2008, Applicant worked at his 
current job and smoked marijuana occasionally. (Ex. 9, page 2) He acknowledges 
smoking marijuana while holding a clearance. (Tr. 28) 
 
In August 2003 he was charged with possession of controlled dangerous 
substance (CDS) paraphernalia. He was in a park was with a group of four people 
passing around a cigarette. At the hearing, Applicant stated marijuana was not involved. 
He states the group was so poor that each person was unable to smoke their own 
regular cigarettes and had to pass the cigarette back and froth between them as they 
smoked it. (Tr. 42) When the police asked the men what they were doing, one said 
“smoking dope” and another stated he had some “weed” in his pocket. (Ex. 3, page 2) 
The charge was nolle prosequi.  
 
In 2004, Applicant obtained a security clearance and continued to use marijuana. 
Applicant’s company has a policy prohibiting illegal drug use. (Tr. 31) In March 2005, he 
was arrested and charged with possession of paraphernalia and possession of 
marijuana. He was stopped for doing 75 mph in a 55 mph zone. He passed a field 
sobriety test. Applicant told the officer he had smoked marijuana that morning. (Ex. 5, 
 
 
 
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page 2) A zip lock baggie containing marijuana was found under the passenger seat of 
the vehicle and a burnt marijuana cigarette in the glove box. (Ex. 5, page 3) The 
charges were placed on the Stet Docket and he was ordered to complete community 
service and complete a 12 hours substance abuse program. In March 2006, he 
completed the program. (Ex. 5)  
 
 On March 17, 2007, Applicant was arrested and charged with possession of a 
controlled dangerous substance and possession of drug paraphernalia. Applicant and a 
friend were sitting in a car parked in a handicap parking space without a handicap 
sticker. The car smelled of marijuana and Applicant stated to the officer that he had 
marijuana in his pocket. (Ex. 8, pages 3, 5 and Ex. 9, page 2) The possession of CDS 
charge was nolle prosequi. Applicant pleaded guilty to possession of paraphernalia and 
was granted probation before judgment with probation for three years.  
 
 In April 2003, Applicant completed a Security Clearance Application, Standard 
Form (SF) 86. (Ex 1) He answered “no” to question 24, which asked him if he had every 
been charged with or convicted of any offense related to alcohol or drugs even though 
he had been found guilty of driving a vehicle while impaired by alcohol. He answered 
“no” to question 27, which asked him if from the age of 16 or in the last seven years, he 
had illegally used any controlled substance to include marijuana.  
 
 In August 2006, Applicant completed an Electronic Questionnaires for 
Investigations Processing (e-QIP).(Ex. 6) In response to question 23, his police record, 
he listed a 2002 DUI, but not his August 2003 arrest for possession of CDS 
paraphernalia or his 2005 arrest for possession of paraphernalia and marijuana. At the 
hearing, Applicant stated it was an accident that he left out the 2003 arrest and the 
March 2005 arrest had skipped his mind when he completed the form. (Tr. 28) In 
response to question 24, his use of illegal drugs and drug activity, he listed marijuana 
use 10 times during July and August, 2000 and not thereafter.  
 
During February and March 2007, Applicant was interviewed by a DoD 
investigator, (Ex. 7) Applicant stated he had used marijuana from July 2000 to the 
summer of 2001, but failed to disclose his full history of marijuana use. He did so 
because he was worried about the effect the truth would have on his clearance. (Tr. 32) 
Applicant stated he used marijuana 10 times during the period. (Ex. 7, page 5) Applicant 
told the investigator he listed August 2000 as his stop date because he used in 
infrequently after that date. (Ex. 7, page 5) In March 2007, Applicant stated he had no 
intention of using illegal substances in the future.  
 
 Applicant last used marijuana Memorial Day weekend 2008. (Tr. 30) Applicant is 
willing to submit to random drug screening. In June 2008, he made a decision not to use 
marijuana again and to disassociate himself from his friends who use. In August or 
September 2008, he was offered marijuana and declined. Applicant acknowledges he 
has made bad decisions in the past to smoke marijuana while holding a clearance. At 
the hearing, (Tr. 19-20) he stated, 
 
Falsifying information in reference to my marijuana use was a terrible 
decision I chose to make because I was scared that it would affect my 
 
 
 
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clearance process in a negative way but I never considered what would 
happen if I was to get caught in the act. 
 
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 to obtain 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 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).  
 
 
 
 
 
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Analysis 
 
Drug Involvement 
 
AG ¶ 24 expresses the security concern pertaining to 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 ¶ 25 describes conditions that could raise a security concern and may be 
disqualifying: 
 
(a) any drug abuse;  
 
(b) testing positive for illegal drug use; 
 
(c) illegal drug possession, including cultivation, processing, manufacture, 
purchase, sale, or distribution; or possession of drug paraphernalia; 
 
(d) diagnosis by a duly qualified medical professional (e.g., physician, 
clinical psychologist, or psychiatrist) of drug abuse or drug dependence; 
 
(e) evaluation of drug abuse or drug dependence by a licensed clinical 
social worker who, is a staff member of a recognized drug treatment 
program; 
 
(f) failure to successfully complete a drug treatment program prescribed by 
a duly qualified medical professional; 
 
(g) any illegal drug use after being granted a security clearance; and, 
 
(h) expressed intent to continue illegal drug use, or failure to clearly and 
convincingly commit to discontinue drug use.  
 
Applicant used marijuana from 2000—when he was in the 10th grade—to June 
2008. His use was once or twice a month, although he sometimes went two or three 
months without using. From October 2004 until June 2008, Applicant held a clearance 
at his current job and smoked marijuana occasionally. He acknowledges smoking 
marijuana while holding a clearance. In 2003, Applicant was charged with possession of 
CDS paraphernalia. In 2005, he was charged with possession of paraphernalia and 
possession of marijuana. He told the police officer he had smoked marijuana that day. 
In 2007, he was arrested for possession of a CDS and possession of drug 
paraphernalia. At the time of arrest, Applicant informed the police officer he had 
marijuana in his pocket. (Tr. 28) AG ¶ 25a, 25c, and 25g apply.  
 
AG ¶ 26 provides conditions that could mitigate security concerns: 
 
 
 
 
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(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; 
 
(b) a demonstrated intent not to abuse any drugs in the future, such as:  
(1) disassociation from drug-using associates and contacts; 
(2) changing or avoiding the environment where drugs were used;  
(3) an appropriate period of abstinence; and, 
(4) a signed statement of intent with automatic revocation of 
clearance for any violation; 
 
(c) abuse of prescription drugs was after a severe or prolonged illness 
during which these drugs were prescribed, and abuse has since ended; 
and, 
 
(d) satisfactory completion of a prescribed drug treatment program, 
including but not limited to rehabilitation and aftercare requirements, 
without recurrence of abuse, and a favorable prognosis by a duly qualified 
medical professional. 
 
Applicant used marijuana when he held a security clearance. He held a 
clearance at the time of his 2005 and 2007 arrest. The 2007 arrest occurred the day 
after he completed an interview with a DoD investigator about his illegal drug usage. 
The disqualifying condition of using illegal drugs while holding a clearance makes no 
distinction between using at work or while off-duty. Illegal drug use is illegal drug use no 
matter where it occurs. 
  
 None of the mitigating factors apply to Applicant’s use of illegal drugs. AG ¶ 26a 
does not apply because the behavior did not happen long ago. His last use was less 
than one year ago. He used it over an eight year period, sometimes using it two or three 
times a month. His use was not infrequent. There is no evidence his use occurred under 
circumstances that are unlikely to recur or do not cast doubt on the individual's current 
reliability, trustworthiness, or good judgment.  
 
AG ¶ 26b does not apply because there is no demonstrated intent not to abuse 
drugs in the future. Applicant states he will not use marijuana in the future; however he 
made a similar statement during his DoD interview just before his 2007 arrest. He may 
refrain from marijuana usage in the future, he may not. It is too soon to tell. He states he 
has disassociated himself from those individuals that still use illegal drugs. The seven 
month period of abstinence is not appropriate period of abstinence when balanced 
against his use over an eight year period.  
 
AG ¶ 26c does not apply because use of prescription drugs was not an issue. AG 
¶ 26d does not apply because there was no satisfactory completion of a drug treatment 
program.  
 
Applicant used marijuana after obtaining a security clearance, after completing 
his 2003 SF 86, after completing his 2006 e-QIP, after three arrests, and after a DoD 
 
 
 
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interview about his illegal marijuana usage. Even though he held a clearance, he lacked 
the knowledge that his illegal use marijuana was inappropriate and incompatible with 
holding a clearance or the fortitude not to use. Either way, he fails to display the 
reliability and trustworthiness necessary to obtain access to our country’s secrets. His 
continued marijuana use over an eight year period raises questions about his ability or 
willingness to comply with laws, rules, and regulations.  
 
Under the National Defense Authorization Act for the Fiscal Year 2008, Public 
Law 110-181, codified in 50 U.S.C. § 435c, an unlawful user of marijuana may not be 
granted a security clearance. 50 U.S.C. § 435c (b) uses the present tense, making it 
applicable only if the person “is” an unlawful user or “is” an addict. See ISCR Case No. 
03-25009 (App. Bd. Jun. 28, 2005). Based on the evidence, I conclude Applicant is 
disqualified as an unlawful user of marijuana. He has used it for most of his adult life. 
He last used it seven months prior to the hearing. I am satisfied Applicant is a present 
user of marijuana within the meaning of 50 U.S.C. § 435c. Applicant is disqualified from 
being granted a clearance.  
 
Personal Conduct  
 
The Directive sets out various factors relevant to an applicant=s personal conduct 
that may be potentially disqualifying. Paragraph 15 of the Adjudicative Guidelines (AG) 
states a concern where there is 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.” 
 
Under 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” and & 16 (b) “deliberately providing false or misleading 
information concerning relevant facts to an employer, investigator, security official, 
competent medical authority, or other official government representative” 
 
Applicant=s false answer on his SF 86, e-QIP, and his response during his DoD 
interview concerning his history of marijuana use and arrest history tends to show 
questionable judgment, unreliability, and a lack of trustworthiness. I find && 16 (a) and 
16 (b) apply. 
 
On his 2003 security clearance application, Applicant deliberately failed to report 
his driving a vehicle while impaired by alcohol arrest in response to question 24 and his 
use of marijuana in response to question 27. On his 2006 security clearance 
application, he failed to list two arrests related to illegal drug usage in response to 
question 23 and provided false information concerning his marijuana usage in response 
to question 24 by stating he had used marijuana only ten times. In his 2007 DoD 
 
 
 
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interviews, he provided false information about his illegal drug usage stating his last use 
was in the summer of 2001.  
 
Applicant has offered no credible explanation for his failure to disclose his arrests 
and illegal drug usage on his SF 86, e-QIP, and interview. His assertion that he was not 
being deceptive is unpersuasive. Applicant had knowingly used an illegal drug on 
multiple occasions. Applicant should have been especially attuned to these questions 
because of his arrests and his company’s policy against illegal drug usage. I find 
Applicant deliberately falsified his answer on his the security clearance applications and 
during his DoD interview.  
 
Under the Directive, an applicant may mitigate the security concerns arising from 
questionable personal conduct under certain circumstances. AG ¶17 provides 
conditions that could mitigate personal conduct security concerns, including AG ¶ 17(a): 
“if a person “provides the individual made prompt, good-faith efforts to correct the 
omission, concealment, or falsification before being confronted with the facts.” I find this 
mitigating factor does not apply. Applicant has not met his burden of proving that he 
made good-faith efforts to correct the omissions in his security clearance application 
and interview, or that his efforts were prompt.  
 
AG ¶ 17 (f) provides mitigation where “the information was unsubstantiated or 
from a source of questionable reliability.” Applicant=s wrongful use of marijuana and 
arrests are substantiated by his admissions. The information was pertinent to a 
determination of his judgment, trustworthiness, and reliability. I find this mitigating factor 
does not apply.  
 
AG ¶ 17 (c) provides mitigation where “the offense is so minor, or so much time 
has passed, or the behavior is so infrequent, or it happened under such unique 
circumstances that it is unlikely to recur and does not cast doubt on the individual's 
reliability, trustworthiness, or good judgment.” The security clearance applications at 
issue were executed in 2003 and 2006, and his interview occurred in 2007, all of which 
are recent. The available evidence shows Applicant gave false answers on the security 
clearance application, gave false information three years later on another security 
clearance application, and gave false information a year thereafter during his DoD 
interview. This was not a single, isolated incident. I conclude this potentially mitigating 
condition does not apply. I also considered carefully the other potentially mitigating 
conditions and conclude they do not apply.  
 
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. An 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 
 
 
 
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participation; (3) the frequency and recency of the conduct; (4) the 
individual’s age and maturity at the time of the conduct; (5) the 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. Applicant is 25 years old and 
sufficiently mature to make prudent decisions when responding to questions about his 
illegal drug history and arrest record. When he completed his security clearance 
applications he was afraid the truth might adversely impact his job. The government 
expects and demands truthful responses to questions even when those responses 
might be adverse or detrimental to the individual seeking to obtain a clearance. 
 
 To conclude, Applicant did not present sufficient evidence to explain, extenuate, 
or mitigate the drug involvement or personal conduct security concern. Applicant did not 
meet his ultimate burden of persuasion to obtain a favorable clearance decision. In 
reaching this conclusion, the whole-person concept was given due consideration and 
that analysis does not support a favorable decision.  
 
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, Drug Involvement: AGAINST APPLICANT 
 
  Subparagraph 1.a-g: Against Applicant 
  
 Paragraph 2, Personal Conduct:  AGAINST APPLICANT 
 
  Subparagraph 2.a-f:  Against Applicant 
 
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.  
 
 
_________________ 
CLAUDE R. HEINY II 
Administrative Judge