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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )     ISCR Case No. 08-04403
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Paul M. DeLaney, Esquire, Department Counsel
For Applicant: Pro Se
______________
Decision
______________
MATCHINSKI, Elizabeth M., Administrative Judge:
       Applicant used marijuana from 1985 to 1995 and in 2006/07. He was convicted
of drunk driving offenses committed in 1991 and August 2007. He did not report his
illegal drug abuse when he applied for a security clearance in October 2007. Drug
involvement, personal conduct, and criminal conduct concerns are not mitigated.
Clearance is denied.
Statement of the Case 
Applicant submitted an Electronic Questionnaires for Investigations Processing
(e-QIP) on October 17, 2007. On October 31, 2008, the Defense Office of Hearings and
Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant detailing the
security concerns under Guideline H, Guideline J, and Guideline E that provided the
basis for its decision to deny him a security clearance. 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
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(Directive); and the revised adjudicative guidelines (AG) promulgated by the President
on December 29, 2005, and effective within the Department of Defense as of
September 1, 2006. 
 
Applicant answered the SOR in writing on December 16, 2008, and requested a
decision without a hearing. On January 21, 2009, the government submitted a FORM
consisting of eight exhibits (Items 1-8). DOHA forwarded a copy of the FORM to
Applicant and instructed him to respond within 30 days of receipt. No response was
received by the March 4, 2009, due date. On April 15, 2009, the case was assigned to
me to consider whether it is clearly consistent with the national interest to grant or
continue a security clearance for him. Based upon a review of the government’s FORM,
including Applicant’s Answer to the SOR allegations (Item 4), eligibility for access to
classified information is denied.
Procedural and Evidentiary Rulings
Motion to Amend SOR
In the FORM, Department Counsel moved to amend SOR ¶ 1.c of the SOR to
reflect that Applicant had stated in an interview to a government investigator on
February 20, 2008, that he might (vice would) use marijuana in the future if the
opportunity arose. Department Counsel also moved to add a new allegation, ¶ 2.e under
Guideline J, to indicate that Applicant’s deliberate failure to disclose his marijuana use
on his October 17, 2007, security clearance application, conduct alleged in SOR ¶ 3.a,
constituted felonious criminal activity under Guideline J. Applicant was directed to file
any objections and/or to respond within 30 days of receipt of the FORM.
There is nothing in Department of Defense Directive 5220.6 that prohibits the
government from amending the SOR before a hearing or a decision based on the
written record provided the proposed allegations have a reasonable basis, are not
confusing, and are relevant to a determination of the applicant’s suitability for access.
Fundamental fairness requires that Applicant be given notice of any proposed
amendment and an adequate opportunity to respond so that he can adequately prepare
a defense (see, e.g., ISCR Case No. 02-17219 App. Bd. Jan. 7, 2005).
Department Counsel informed Applicant in the FORM of the motion and of his
opportunity to respond. The FORM was forwarded to Applicant on January 22, 2009,
with clear instructions to file any objections within 30 days of receipt. Applicant received
the FORM on February 2, 2009. No response was received by the March 4, 2009, due
date. Given Applicant had been placed on notice and had an adequate opportunity to
respond, I notified the parties by Order of May 6, 2009, that the SOR was amended per
the government’s request, and that findings would be made on all allegations in the
SOR, as amended, based on the Items in the FORM.
Applicant indicated on his October 17, 2007, e-QIP that he had been the subject of a background1
investigation in August 2005 but was unaware of any final action on his clearance (Item 5). Available
information does not confirm or deny the grant of a clearance.
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Findings of Fact
In the amended SOR, DOHA alleged under Guideline H (drug involvement) that
Applicant used marijuana in 2006 and 2007 (SOR ¶ 1.a), and with varying frequency
from 1985 to 1995 (SOR ¶ 1.b), and that he told a government investigator in February
2008 that he might use the drug in the future if the opportunity arose (SOR ¶ 1.c). Under
Guideline J (criminal conduct), Applicant was alleged to have been convicted of drunk
driving offenses committed in August 2007 (SOR ¶ 2.a) and 1991 (SOR ¶ 2.b), and of
an open container violation in 1992 (SOR ¶ 2.c). DOHA also alleged under the criminal
conduct guideline that Applicant’s falsification of his e-QIP violated 18 U.S.C. § 1001
(SOR ¶ 2.e). Under Guideline E (personal conduct), DOHA alleged that Applicant
falsified his October 2007 e-QIP by falsely denying any illegal drug involvement (SOR ¶
3.a), and by expressing a belief that marijuana use in moderation was “not a bad thing”
and that smoking marijuana was “not a big deal” (SOR ¶ 1.c). The government also
alleged generally that the conduct under guidelines H and J raised Guideline E
concerns as well (SOR ¶ 3.d). Applicant admitted the drug abuse, and that he had told a
government investigator that he might use marijuana in the future. However, he added
that he would not use marijuana after he was married, that he wished he never started
it, and that it would not be part of his future. His fiancée had never used marijuana, and
drug use was not part of the life they wanted to impart to their children. Applicant also
admitted his alcohol-related criminal conduct, but averred that he had attended a
substance abuse program and stopped the abusive behavior. Applicant explained he
had not listed his drug use on his e-QIP because he was embarrassed. Applicant
offered in mitigation his “impeccable work record” as a contractor for a Department of
Defense agency since 1996.
DOHA had alleged under Guideline E that Applicant falsified a May 15, 1998,
Questionnaire for Public Trust (SF 85P) by not disclosing his marijuana use that had
occurred within seven years of the application (SOR ¶ 3.b). While Applicant admitted he
had not disclosed his marijuana use from his first clearance submission, DOHA
conceded in the FORM that the question Applicant was alleged to have falsified on the
SF 85P only had a one-year scope, and the available evidence did not support the
allegation.
After review and consideration of the FORM, including Applicant’s SOR response
(Item 4), I make the following findings of fact.
Applicant is a 39-year-old senior operations security engineer, who under the
employ of a succession of defense contractors, has directly serviced a DoD agency
since 1996 (Items 4, 5). Applicant has been a key member of the DoD agency’s
computer network security team since 1999 (Item 4), and he seeks a security
clearance.1
The pertinent state punishes operating while under the influence of alcohol or drugs (abbreviated OVI2
in the statute) under the state's motor vehicle statutes, but it is punishable as a crim inal offense. See Ohio
Rev. Code Ann. § 4511.19.
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Applicant began to smoke marijuana at age 15. He continued to use marijuana
over the next ten years with varying frequency, including while he was in college from
August 1988 to March 1994 (Items 5, 6, 7). There were times of heavy use for two
months followed by abstinence for six months or so. Applicant purchased at least some
of the marijuana from one of his brother's friends (Item 6). In about 1991, Applicant
pleaded no contest to a driving under the influence (DUI) charge (Items 4, 7). In 1992,
he was cited for having an open container in his motor vehicle (Item 4).
Two months after he was awarded his B.S. degree, Applicant started working as
a computer network engineer (Item 5). Placed at a defense contractor agency starting in
about October 1996, Applicant completed a SF 85P on May 15, 1998. He listed his DUI
offense in response to the police record inquiries. He answered "No" to the illegal drug
inquiries, including 21.a. "In the last year, have  you illegally used any controlled
substance, for example, marijuana, cocaine, crack cocaine, hashish, narcotics (opium,
morphine, codeine, heroin, tec.), amphetamines, depressants (barbiturates,
methaqualone, tranquilizers, etc.), hallucinogenics (LSD, PCP, etc.) or prescription
drugs?" (Item 7).
Applicant was passed some marijuana at a friend's halloween party in the fall of
2006. Intoxicated at the time, Applicant believes he smoked the drug with the person
who provided it. As of the summer of 2007, Applicant played volleyball on a weekly
basis. He drank and partied with teammates after the games. On one occasion that
summer, he smoked marijuana given to him by a teammate. Applicant was drunk at the
time (Item 6).
In mid-August 2007, Applicant was giving a volleyball teammate a ride home
when he was pulled over for speeding. Applicant, who indicates he had consumed "a
few beers," after his game, was charged with operating vehicle under the influence of
alcohol or drugs (OVI), a first degree misdemeanor.  He pleaded no contest to the OVI2
charge in court in early September 2007, was found guilty, and sentenced to a $750
fine, $305 in costs, 180 days in jail (173 suspended), and his license was ordered
suspended for six months with special conditions:  limited driving privileges, five days in
a work program in lieu of four days jail time, a driving awareness class, a prohibition of
alcohol use, and 12-month probation.  The speeding charge was dismissed. (Items 5, 6,
8)
On October 17, 2007, Applicant completed an e-QIP for a security clearance for
his duties at the defense agency. He responded "Yes" to questions 23c. "Are there
currently any charges pending against you for any criminal offense?" and 23d. "Have
you ever been charged with or convicted of any offense(s) related to alcohol or drugs?."
He disclosed his recent OVI in August 2007 and indicated that he had pleaded no
contest, paid fines, was attending a driver intervention program, making a donation to a
It is not apparent in the available record how the investigator came to learn of Applicant's more recent3
marijuana use.
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public library, and attending a MADD (Mothers Against Drunk Driving) meeting.
Applicant responded "No" to question 24a. "Since the age of 16 or in the last 7 years,
whichever is shorter, have you illegally used any controlled substance, for example,
marijuana, cocaine, crack cocaine, hashish, narcotics (opium), morphine, codeine,
heroin, etc.), amphetamines, depressants (barbiturates, methaqualone, tranquilizers,
etc.), hallucinogenics (LSD, PCP, etc.), or prescription drugs?" (Item 5).
On January 3, 2008, Applicant was interviewed by a government investigator in
part about his drinking and the recent drunk driving offense. He admitted the OVI and
that his parents and his employer were unaware of the offense, although his girlfriend
knew about it. He did not want to burden his parents, including his father, who was very
ill. Applicant explained his current drinking pattern as two or three beers once or twice
per week when out with friends. Applicant denied using any illegal drugs in the last
seven years or while holding a security clearance (Item 6).
Applicant was reinterviewed on February 20, 2008, to discuss his previously
undisclosed marijuana use. After Applicant was placed under oath, he was again asked
whether he had used any illegal drugs in the last seven years and whether he used any
illegal drugs while possessing a security clearance. After reportedly some hesitation,
Applicant related that he had used marijuana from ages 15 to 25. He was not specific
about the frequency other than to indicate that he would use it heavily for two months
and then not use for six months. Applicant acknowledged that the marijuana was
purchased from a friend of his brother. After being confronted about possible use of
marijuana in the fall of 2006,  Applicant indicated he might have used it, but he did not3
remember. He then expressed his belief that he may have smoked it while drunk at a
friend's halloween party in fall 2006. Asked about any other occasions, Applicant
responded that he smoked marijuana one other time in the summer of 2007 while
socializing with teammates after their weekly volleyball game. A teammate who is
always at the bar had some marijuana, and Applicant explained that he was drunk and
decided to smoke it. He told the investigator that he did not think smoking marijuana
was a big deal, and that while he does not seek out marijuana, he would sometimes use
it if he is drunk at a party.  Applicant added that he might use marijuana again at a party
if the opportunity arose, and that he did not consider marijuana use in moderation to be
a bad thing. He acknowledged knowing that marijuana use was against the law, and
that his employer was unaware of his drug use. Applicant denied any intent to use
marijuana to the extent he did when he was younger because he would lose his
girlfriend if he did so. Applicant attributed the omission of his marijuana use from his
security clearance application to embarrassment (Item 6).
Applicant and his fiancée are planning to wed in 2010. Applicant does not see
marijuana playing a part in his future. His fiancée does not use marijuana and they
intend to have children together. Applicant attributes his alcohol abuse to the mental
strain of having to care for his 78-year-old father who has had Parkinson's disease since
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2000. Applicant completed a county substance abuse program that led him to realize he
had been drinking too much and he had since stopped the behavior.  As of mid-
December 2008, Applicant was helping care for his father two to three nights per week
(Item 4).
Applicant has not allowed his off-duty abuse of alcohol and marijuana to
negatively affect his work performance. Since 1999, he has been a key member of the
defense agency's network security team responsible for firewalls, encryption devices,
and security enclaves to protect its computer system from hackers. He is recognized by
his defense agency customer as its top expert in operations security. Applicant has
been responsible for several high profile projects during the 13 years and he has earned
the trust of the division's operations manager. Applicant was recognized by the defense
agency's technology services organization for his "outstanding and commendable
performance" during a security accreditation of the defense agency's computer network
in fall 2008 (Item 4).
Policies
The U.S. Supreme Court has recognized the substantial discretion of the
Executive Branch in regulating access to information pertaining to national security,
emphasizing “no one has a ‘right’ to a security clearance.” Department of the Navy v.
Egan, 484 U.S. 518, 528 (1988). 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 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
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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 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 about 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.” Applicant began using marijuana at age 15. Over the next ten years, he
smoked the drug with varying frequency, to include months of heavy use. After more
than ten years of no apparent involvement, he smoked marijuana at a halloween party
in fall 2006 and then again in summer 2007 when socializing with volleyball teammates
at a local bar. AG ¶ 25(a), “any drug abuse,” applies. Applicant purchased the drug for
his own consumption back when he was using it with some frequency, so AG ¶ 25(c),
“illegal drug possession, including cultivation, processing, manufacture, purchase, sale,
or distribution; or possession of drug paraphernalia,” is also implicated.
During his February 2008 subject interview, Applicant told a government
investigator that he might use marijuana in the future at a party if the opportunity arose.
Security concerns are raised by an "expressed intent to continue illegal drug use, or
failure to clearly and convincingly commit to discontinue drug use" (see AG ¶ 25(h)).
Applicant was not willing to commit himself to a drug-free lifestyle at that time. In
response to the SOR, Applicant claimed he told the investigator that he would not use
marijuana after he was married, although the investigator's report does not reflect any
expression of intent on his part to discontinue use. However, Applicant added in his
Answer, "My marijuana use is something I wish I would never have started and will not
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be part of my future." (Item 4).  His recent disavowal of any intent to use marijuana in
the future is accepted as credible, so AG ¶ 25(h) no longer applies.
Concerning potential factors in mitigation under Guideline H, Applicant’s recent
involvement with marijuana was "so infrequent” to fall within AG ¶ 26(a), “the behavior
happened so long ago, was so infrequent, or happened under such circumstances that
it is likely to recur or does not cast doubt on the individual’s current reliability,
trustworthiness, or good judgment.” However, AG ¶ 26(a) cannot reasonably be applied,
given his more extensive marijuana involvement from 1985 to 1995. It is especially
troubling that Applicant used marijuana at least twice over the 2006/07 time frame after
no apparent involvement for more than 10 years.
AG 26(b), "a demonstrated intent not to abuse any drugs in the future," applies
only in very limited part (see AG ¶ 26(b)(4), "a signed statement of intent with automatic
revocation of clearance for any violation"). His decision to forego future drug
involvement is sincere but very recent. Applicant has not shown that he no longer
associates with drug users (see AG ¶ 26(b)(1), "disassociation from drug-using
associates and contacts"), or that he is avoiding the social activities that led him to
abuse marijuana in 2006 and 2007 (see AG ¶ 26(b)(3), ""changing or avoiding the
environments where drugs were used"). His present abstinence (see AG ¶ 26(b)(3), "an
appropriate period of abstinence") since summer 2007 is insufficient to guarantee
against recurrence, given his history of relapses in 2006/07 after no use since 1995. He
has not overcome the risk that he will again use marijuana with friends, especially if he
is intoxicated as he was in 2006 and 2007.
Guideline J, Criminal Conduct
The security concern about criminal conduct is set out in AG ¶ 30: “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.” The government did not present any evidence to show that the
open container offense was other than a minor violation. However, his drunk driving
convictions, although misdemeanors, clearly implicate AG ¶ 31(a), "a single serious
crime or multiple lesser offenses." Applicant also used marijuana knowing that it was
against the law to do so. Furthermore, by signing his October 2007 e-QIP, Applicant
certified his statements on the form were “true, complete, and correct to the best of [his]
knowledge and belief and [were] made in good faith.” He was on notice that a knowing
and willful false statement was punishable as a crime. His deliberate omission of his
marijuana use from his e-QIP constituted a felony violation of federal law under 18
U.S.C. §1001. Disqualifying condition AG ¶ 31(c), “allegation or admission of criminal
conduct, regardless of whether the person was formally charged, formally prosecuted,
or convicted,” also applies. 
AG ¶ 32(a), "so much times 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," cannot
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reasonably be applied in this case. It has been less than two years since he last used
marijuana, was caught driving while under the influence of alcohol, and falsified his e-
QIP.
In Applicant's favor, he has a record of significant contributions to a defense
agency (see 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"). Yet, he clearly was not thinking of his obligations to the
government when he abused marijuana, operated a motor vehicle while under the
influence, and lied on his e-QIP.  In response to the SOR, he indicated that after his
recent OVI offense, he completed a substance abuse program offered by the county
and had stopped his abusive behavior. He excused his behavior in part, attributing it to
the mental strain of caring for his ill father. However, the evidence implicates instead his
partying and socializing with volleyball teammates, and Applicant has not demonstrated
a sufficient change in those activities. Furthermore, municipal court records show that
one condition of his sentence for the OVI was “no alcohol.” He was still on probation for
the OVI when he was interviewed in January 2008 about his alcohol consumption, and
he detailed drinking two or three beers once or twice a week when out with friends. His
apparent failure to abide by an order of the court undermines his claimed reform as to
his drunk driving. As for his falsification, Applicant did not correct the record during his
January 2008 interview. Instead, he denied any illegal drug use in the last seven years.
During his February 2008 interview, he was not forthcoming initially about his recent
marijuana use. While there is no indication of any ongoing alcohol or marijuana abuse,
or that he is still concealing relevant and material drug abuse from the government,
reform is not fully demonstrated where Applicant had to be confronted.
Guideline E, Personal Conduct
The security concern about 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.
Applicant's falsification of his October 2007 e-QIP raises personal conduct
concerns as well as criminal conduct concerns. 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. However, as
conceded by the government, the evidence does not establish that Applicant falsified
his SF 85P completed in May 1998. While Applicant responded "No" to any illegal drug
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use, the specific question at issue had only a one-year scope, and there is no evidence
that Applicant smoked marijuana (or used any other illegal drug) after 1995 until 2006.
Although Applicant indicates that those persons who really know him, including
his fiancée, are knowledgeable of his past drug involvement, his defense contractor
employer is unaware. Furthermore, there is nothing in the operations manager's
reference letter (Item 4) to indicate that he or anyone else from the defense agency  is
cognizant of the fact that Applicant used marijuana (albeit off-duty) while a member of
the agency's network security team. AG ¶ 16(e), ”personal conduct, or concealment of
information about one’s conduct, that creates a vulnerability to exploitation,
manipulation, or duress, such as (1) engaging in activities which, if known, may affect
the person’s personal, professional, or community standing,” is also implicated despite
his denials of susceptibility to blackmail.
DOHA alleged separately under SOR ¶ 3.c that Applicant exercised poor
judgment within the context of Guideline E by expressing to a government investigator
in February 2008 that use of marijuana in moderation was not a bad thing, and that
smoking marijuana was not a big deal. Applicant explained his comments as follows:  "I
was candidly speaking from experience on the effects of marijuana use and how if used
once is not detrimental but prolonged use will cause problems." Whether or not he was
speaking of the effects of marijuana, it would be reasonable to infer that he condoned
the use of marijuana despite knowing of its illegality. While it raises general personal
conduct concerns under AG ¶ 15, the conduct is more appropriately addressed under
Guideline H.
Similarly, Applicant unquestionably exercised poor judgment by driving drunk and
using marijuana in violation of the law. Since his substance abuse is already covered
under Guideline J (and in the case of drug use Guideline H as well), the government
failed to establish its case for application of 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."
For the reasons set forth under Guideline J, supra, none of the mitigating
conditions under Guideline E fully apply. He made no effort to rectify his falsification at
his first opportunity when he was interviewed in January 2008. Instead, he apparently
again denied any illegal drug involvement in the preceding seven years. That conduct
could have been alleged in its own right under AG ¶ 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."  AG ¶ 17(a), "the individual made prompt, good-faith efforts to correct
the omission, concealment, or falsification before being confronted with the facts" does
not apply to these facts. His record of security significant misconduct in three distinct
areas (drugs, drunk driving, felony false statement) is too recent and repeated to qualify
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for mitigation under AG ¶ 17(c), "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." AG ¶ 17(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," cannot be completely
dismissed because Applicant has resolved not to repeat his mistakes. But Applicant has
yet to establish a sufficient track record of reform to overcome all the personal conduct
concerns in this case. As recently as February 2008, he exhibited an attitude toward
marijuana use that is inconsistent with the law and the sensitive position he held at
work. He admitted prior drug use only reluctantly after repeated inquiries, and
addressed his reform of his drunk driving only in the most general terms. Finally, he has
done little to reduce or eliminate the risk of exploitation, manipulation, or duress that
exists because his employer remains unaware of the conduct that calls into question
Applicant's judgment, reliability, and trustworthiness. AG ¶ 17(e), "the individual has
taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or
duress," does 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 in light of 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) 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 common sense judgment based upon careful
consideration of the guidelines and the whole person concept. I have incorporated my
comments under Guideline H, Guideline J, and Guideline E in my whole-person
analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but
some warrant additional comment.
Applicant knew when he used marijuana that it was illegal. He put his personal
interest ahead of his obligation of candor. He deliberately falsified his e-QIP, which he
now regrets, but compounded the concerns about his judgment and trustworthiness by
not candidly disclosing his drug abuse when he was first interviewed in January 2008. In
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February 2008, he displayed an attitude toward marijuana use that is unacceptable in
someone his age and holding a sensitive position. Now knowing that it could cost him
his clearance, he maintains that marijuana will no longer play a part in his future, but
that is not sufficient to overcome the credible adverse information in this case.
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the
amended SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline H: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: For Applicant
Paragraph 2, Guideline J: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against Applicant
Subparagraph 2.c: For Applicant
Subparagraph 2.d: Against Applicant
Subparagraph 2.e: Against Applicant
Paragraph 3, Guideline E: AGAINST APPLICANT
Subparagraph 3.a: Against Applicant
Subparagraph 3.b: For Applicant
Subparagraph 3.c: Against Applicant
Subparagraph 3.d: 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.
ELIZABETH M. MATCHINSKI
Administrative Judge