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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
--------------------------- )       ISCR Case No. 08-06543
SSN: ----------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Pro se
March 30, 2009
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DECISION
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ROSS, Wilford H., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP), on December 31, 2007 (Government Exhibit 2).  On November 21, 2008, the
Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR)
detailing the security concerns under Guidelines H and E concerning the 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 President Bush on December 29, 2005, and effective within the
Department of Defense for SORs issued after September 1, 2006. 
 
Applicant submitted an Answer to the SOR on December 5, 2008, and requested
a hearing before an Administrative Judge.  Department Counsel was prepared to
proceed on December 17, 2008.  I received the case assignment on December 22,
2008.  DOHA issued a notice of hearing on January 8, 2009, and I convened the
hearing as scheduled on February 5, 2009.  The Government offered Government
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Exhibits 1 through 3, which were received without objection. Applicant testified on his
own behalf and submitted Applicant’s Exhibits A through D, without objection.  DOHA
received the transcript of the hearing on February 11, 2009.  The Applicant had asked
for the record to remain open and, on February 20, 2009, offered Applicant’s Exhibit E,
which was also received without objection.  The record closed on February 20, 2009.
Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility for
access to classified information is granted.
Findings of Fact
The Applicant is 44, married with two children, and has a Bachelor of Arts
degree.  He is employed by a defense contractor and seeks to retain a security
clearance previously granted in connection with his employment.
Guideline H - Drug Involvement
Guideline E - Personal Conduct
The Government alleges under Guideline H that the Applicant is ineligible for
clearance because he has used illegal drugs.  Under Guideline E., the Government
further alleges that the Applicant’s conduct set forth under Guideline H has independent
validity under this Guideline.  Specifically, that his conduct shows questionable
judgement, dishonesty and/or an unwillingness to comply with rules and regulations that
raises questions about the Applicant’s reliability, trustworthiness and ability to protect
classified information. 
The Applicant used marijuana on a single occasion in October 2007.  This was
the Applicants first, and last, use of marijuana since 1988.  He was on an annual
camping trip with some childhood friends.  One of them had some marijuana and
offered it to the group.  This was the first time such an event had happened.  When the
marijuana was offered to the Applicant he had some of it.
The Applicant freely admits that this was a very foolish decision on his part, but
states he has consistently been up front about it.  (Transcript at 36.)  In fact, he testified
that he realized he had put his security clearance in danger as soon as he took some
marijuana.  (Transcript at 21-22.)  The Applicant admitted this use without confrontation
in December 2007 and March 2008.  (Government Exhibits 2 and 3.)  In addition, he
stated, “I have had to approach people that I respect and trust and let them know about
what I have done.”  (Transcript at 34.)  (See, “Mitigation,” below.)
Realizing the possible consequences of using marijuana this one time, the
Applicant is very remorseful stating:
I’m not happy about what I’ve done.  I believe that in order to be
responsible for it, whatever comes from this hearing, whether it be I lose
my clearance and all the things that go along with that, or whether it be I’m
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found that mitigating circumstances are enough that I would be able to
proceed with my job, at least I would have told the truth and I would have
– well, at least I would have told the truth about it.  (Transcript at 23.)
The people on the camping trip with the Applicant have been his friends for over
30 years.  His friends know the implications of what happened in 2007, are also
remorseful for putting him in this predicament, and the Applicant is confident that the
situation will not occur again.  (Transcript at 25-29, 38-39, 42-45.)
The Applicant submitted a written statement.  That statement says:
In October 2007 I inappropriately used marijuana while being
trusted with a security clearance.  I am deeply shamed by my action and
have not indulged in any illegal substance since that time.  With this letter I
formally declare my intention to never again indulge in any illegal
substances.  I also declare my acceptance of automatic revocation of any
future clearance I may be provided in the event that I violate this sworn
statement.  (Applicant’s Exhibit A.)
Mitigation
The Applicant submitted documentary evidence showing that he is a highly
respected person and employee.  Applicant’s Exhibits B, C and D are from his current
supervisor, the facility security officer, and a past supervisor, respectively.  All three of
these people have knowledge of the incident which resulted in the issuance of the SOR.
(Transcript at 39-40, 47.)  All three of the correspondents recommend that the Applicant
retain his security clearance stating he is “serious about security,” a person to be trusted
“implicitly” and that he is “dedicated.”
Applicant’s Exhibit E contains letters from people the Applicant knows outside of
work, connected to Scouting and to a martial arts activity that his children are involved
with.  They describe the Applicant as an “upstanding” and “trustworthy” person.
Policies
Security clearance decisions are not made in a vacuum.  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 ¶
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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.  In addition, the Administrative Judge may also rely on his own
common sense, as well as his knowledge of the law, human nature, and the ways of the
world, in making a reasoned 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. Security clearance decisions include, by
necessity, consideration of the possible risk that 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.
 
Finally, as emphasized by President Eisenhower in Section 7 of Executive Order
10865, “Any determination under this order . . . shall be a determination 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
Guideline H - Drug Involvement
Guideline E - Personal Conduct
The security concern relating to the guideline for Drug Involvement is set out in
AG & 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.
Drugs are defined as mood and behavior altering substances, and include:
(1) Drugs, materials, and other chemical compounds identified and listed
in the Controlled Substances Act of 1970, as amended (e.g., marijuana or
cannabis, depressants, narcotics, stimulants, and hallucinogens), and (2)
inhalants and other similar substances; Drug abuse is the illegal use of a
drug or use of a legal drug in a manner that deviates from approved
medical direction.
I have considered the disqualifying conditions under Drug Involvement AG ¶ 25 
and especially considered the following:  
(a) any drug abuse; and
(g) any illegal drug use after being granted a security clearance. 
The Applicant used marijuana on a single occasion in October 2007. He held a
security clearance at the time he used the marijuana. I find that both of the above
disqualifying conditions apply. 
I have considered all of the mitigating conditions under Drug Involvement AG ¶
26 and especially considered the following: 
(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
reliability, trustworthiness, or good judgment, and 
(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 are used; (3) an appropriate period of abstinence; (4) a
signed statement of intent with automatic revocation of clearance for any violation. 
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The security concern relating to the guideline for Personal Conduct is set out in
AG & 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.  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.
The guideline notes several conditions that could raise security concerns.  I find
that one is arguably applicable here under AG ¶ 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,
untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and
regulations, or other characteristics indicating that the person may not properly
safeguard protected information.
As stated above, the Applicant used marijuana on a single occasion in 2007 after
being granted a security clearance.  The evidence is sufficient to raise this potentially
disqualifying condition, requiring a closer examination.
The guideline also includes examples of conditions that could mitigate security
concerns arising from personal conduct involving questionable judgment under ¶ 17.  I
especially considered the following:
(c) The offense is so minor, 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, and 
(d) The individual has acknowledged the behavior and obtained counseling to change
the behavior or taken other positive steps to alleviate the stressors, circumstances, or
factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such
behavior is unlikely to recur.
The evidence is clear that the Applicant’s use of marijuana on a single occasion
in October 2007 was an aberration and will not be repeated.  The Applicant’s credible
testimonial evidence shows that he is extremely remorseful about this event, has been
truthful about the incident on repeated occasions with the Government and his
employers, and has taken steps to alleviate any possibility of recurrence.  I have
considered the fact that the Applicant has not dropped his lifelong friends, but under the
particular circumstances of this case I find that such a drastic action is not necessary.  
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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 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.  The Applicant is a hard-working,
respected, professional person who engaged in a single act of poor judgment after
many years in the Defense industry.  In viewing all the facts of this case, I find that the
Applicant has mitigated the security significance of his prior conduct.  As set forth at
length above, I find that there have been permanent behavioral changes under AG ¶
2(a)(6).  In addition, I find that there is little to no potential for pressure, coercion,
exploitation, or duress (AG ¶2(a)(8)), and that the likelihood of recurrence is close to nil
(AG ¶2(a)(9)). 
Overall, the record evidence leaves me without questions and/or doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude the Applicant has mitigated the security concerns arising from his drug
involvement and related personal conduct.  
On balance, it is concluded that the Applicant has successfully overcome the
Government's case opposing his request for a DoD security clearance.  Accordingly, the
evidence supports a finding for the Applicant as to the factual and conclusionary
allegations expressed in Paragraphs 1 and 2 of the Government's Statement of
Reasons. 
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 THE APPLICANT
Subparagraph 1.a: For the Applicant
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Paragraph 2, Guideline E: FOR THE APPLICANT
Subparagraph 2.a: For the Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
                                              
WILFORD H. ROSS
Administrative Judge