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                            DEPARTMENT OF DEFENSE
             DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
----------, ------ ------- )       ISCR Case No. 08-00912
SSN: ------ ---- -------- )
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: J. Byron Holcomb, Esquire
______________
Decision
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WHITE, David M., Administrative Judge:
Applicant used cannabis with an older boyfriend during her late teenage years.
When completing her security clearance application, her father, a career military
intelligence professional, advised her to deny drug use based on her statement to him
that she had tried marijuana a few times years earlier. She thereafter honestly admitted
her use during the security clearance investigation, and there was no other evidence of
it. She persuasively established her intent not to abuse any drugs in the future, and to
honestly report security-related matters. Based upon a review of the case file,
pleadings, exhibits, and testimony, eligibility for access to classified information is
granted. 
Applicant submitted her Electronic Questionnaires for Investigation Processing
(e-QIP), on June 20, 2007. On December 16, 2008, the Defense Office of Hearings and
Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing security
concerns under Guidelines 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
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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. 
Applicant answered the SOR in writing (AR) on January 7, 2009, and requested
a determination be made without a hearing. After receiving the resulting File of Relevant
Materials for review and comment, she retained her above-listed counsel, who entered
an appearance and requested a hearing before an administrative judge on her behalf on
February 26, 2009. Department Counsel was ready to proceed on March 12, 2009, and
the case was assigned to me on March 24, 2009. DOHA issued a Notice of Hearing on
that same date setting the hearing for April 8, 2009. On March 27, 2009, I granted
Applicant’s continuance request, which Department Counsel did not oppose, due to
operational commitments and travel issues. DOHA issued an Amended Notice of
Hearing on March 30, 2009, and I convened the hearing as rescheduled on April 22,
2009. The Government offered exhibits (GE) 1 and 2, which were admitted without
objection. The Government also requested that I take administrative notice of the facts
that marijuana and hashish are controlled substances, providing hearing exhibits (HE)
II, III, and IV in support. Applicant had no objection, except to the relevance of AE IV,
and administrative notice was taken of those facts. Applicant and her father testified on
her behalf, and she submitted exhibits (AE) A through G, which were admitted without
objection. I granted Applicant’s request to leave the record open until April 29, 2009, to
permit submission of additional evidence. On April 28, 2009, Applicant and her counsel
submitted the additional evidence, which was forwarded to me on April 30, 2009, by
Department Counsel without objection to its consideration. The evidence was marked
AE H, admitted, and the record was closed. DOHA received the transcript of the hearing
(Tr.) on May 1, 2009.
Findings of Fact
In her answer to the SOR, Applicant admitted to the truth of SOR ¶¶ 1.a and 2.a,
with some clarifications, and denied SOR ¶¶ 1.b and 2.b. Applicant’s admissions,
including those contained in her response to DOHA Interrogatories (GE 2), are
incorporated in the following findings.
Applicant is a 24-year-old human resource representative and analyst assistant
for a defense contractor supporting a major command staff overseas. She has worked
for her present employer for about a year and a half, and worked as an administrative
assistant for another contractor supporting a different part of that command staff for two
years preceding that. While working for her former company in 2006, she applied for
and was granted a Secret clearance, which is also required for her present duties. She
later submitted the e-QIP currently pending adjudication when her former employer
sought to upgrade her clearance to Top Secret so she could assume additional duties. It
is not clear from the record whether her new position requires the higher clearance, but
the information resulting in the present SOR was generated in connection with the
second Office of Personnel Management (OPM) background investigation. (GE 1, GE 2,
AE C.)
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Applicant was born in the United States, but shortly thereafter moved with her
parents, in connection with her father’s military service, to the country where she
presently lives. He is a military intelligence professional, who was stationed in that
country throughout most of his active duty career and his subsequent Civil Service
employment performing related functions. She attended DoD schools there through high
school, and also took some college classes after graduating. Due to a series of
circumstances beyond her control, she was taunted and teased by a number of her high
school contemporaries and had a difficult social life. During the summer of 2002, when
she was 17, she became involved with her first boyfriend, an older son of a senior
officer on the base where she lived when he came home from college. Unknown to
either of their parents, he was a regular cannabis user, either marijuana or hashish or
both. Applicant smoked cannabis with him a few times during that summer, before he
returned to the U.S. for college. She had previously taken one “hit” from a cigarette
offered by a friend who told her it was “hash” in 2000. Applicant insists that she did not,
and still does not know the difference between hashish and marijuana, and used the
terms interchangeably. I use the term cannabis to describe her use of one or both
substances, which I administratively notice are identified and listed in the Controlled
Substances Act of 1970. She only smoked cannabis when she was with this boyfriend.
She smoked cannabis with him from 6 to 12 times during a two-week trip they took
together in the U.S. in May and June 2003. The following summer, 2004, the two of
them traveled around a four-state area together for about two months after she went to
see him for what was supposed to be a ten-day visit to his family. During that trip, they
both smoked cannabis between three to seven days a week, multiple times a day.
When she returned home from this trip, she had broken up with this boyfriend and never
saw him again. (GE 2 at 13-14; AE E; AE F; Tr. at 119-123, 154-156, 158-165, 178-
184.)
In June 2007, shortly after she submitted her most recent e-QIP, Applicant saw a
friend who she had not seen in a while in a bar. He went outside to the deck and was
smoking what appeared to be a tobacco cigarette when she approached him. She
asked him for a “drag” and he gave her the cigarette. When she took the “drag,” she
realized that is was not tobacco, and became upset because she had determined never
to use drugs again after her experience in the summer of 2004. She reported her anger
to another friend, who took her home. She suspected that the cigarette contained
cannabis, but was not positive. (GE 2 at 14; AR at 1; AE B; Tr. at 93-103.)
Applicant asked her father to assist her with completing her e-QIP due to his
many years of experience with security matters and senior position. When they came to
the question about drug use, she did not tell him about the extent of her prior cannabis
use because she did not want to disappoint him or further irritate him about her
relationship with her first boyfriend that had ended with her father angry about the
extended visit. She merely told him she had experimented with marijuana a few times.
He told her that because she was not a drug user and was not addicted to anything she
should just put “No” as her answer concerning past drug use, which she did. (AR at 1;
GE 2 at 14; Tr. at 83, 157-158.)
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Applicant was interviewed by an OPM investigator on September 26, 2007.
When asked about drugs, she “volunteered” all of the foregoing information about her
prior drug use because “she had matured since 2004,” “wanted to do the right thing and
she realized that not revealing the whole truth would have been wrong.” She further said
that she “did not completely understand the process and now wanted to take the
opportunity to be completely honest.” The investigator had no prior knowledge about
any of this drug use, and there is no evidence of it except for Applicant’s initial
admissions to the investigator and subsequent confirmations of those admissions. (GE
2 at 11-15; Tr. at 90-92.) 
Applicant has ended her association with anyone involved with marijuana use or
any other illegal drugs. Except for the use described above, she has never possessed
cannabis, nor has she ever purchased or manufactured any drug. She recently married
a non-commissioned officer on active duty who holds a Top Secret security clearance.
He attested that she has no recent drug involvement whatsoever, and exhibits no desire
to do so. Applicant’s supervisor stated that she received a sterling recommendation
from her former boss, and had performed excellent work for him. He said, “she is
diligent and totally reliable. She has a no-nonsense, by-the-book approach to her work
and her handling of classified material. She has earned my complete trust and
confidence.” He further said she “has made every effort to ‘come clean’ about her past.
She has learned a lot from her mistakes and has done a phenomenal job turning her life
around. I have no reservations whatsoever concerning her trustworthiness in matters of
national security or personal integrity.” (GE 2 at 14-15; AE A; AE B; AE C; AE D; AR at
2.)
Applicant submitted a sworn written declaration of her intent never to abuse any
controlled substance in the future, with an agreement to automatic revocation of her
clearance for any violation. She also underwent an unanticipated urinalysis screening
shortly before the hearing at her attorney’s request, with fully negative results. She has
foresworn any future use of controlled substances, and learned hard lessons from her
youthful bad judgement. Her father also testified to her great maturation and responsible
behavior ever since 2004. (AE G; AE H; AR at 2; Tr. at 168-177.) 
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(a) and 2(c), the entire process is a conscientious scrutiny of applicable guidelines in
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the context 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 “Any doubt concerning personnel being considered for access to classified
information will be resolved in favor of the 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 the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7
of Executive Order 10865 provides that “Any determination under this order adverse to
an applicant 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.” 
A person applying for access to classified information seeks to enter 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.
Analysis
Guideline H, 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. Three disqualifying conditions that are potentially raised by the
evidence in this case are: “(a) any drug abuse;” “(c) illegal drug possession, including
cultivation, processing, manufacture, purchase, sale, or distribution; or possession of
drug paraphernalia;” and “(g) any illegal drug use after being granted a security
clearance.” Applicant  abused cannabis one time in 2000, several times in 2002 and
2003, and regularly over a two-month period in 2004 with her then-boyfriend who
provided the drugs and encouraged her participation. This establishes security concerns
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under AG ¶ 25(a). Her only possession was that necessarily required to use the drugs,
so no additional security concerns are supported under AG ¶ 25(c). Finally, her 2007
“drag” on a cigarette she suspected contained cannabis was entirely unintentional since
she believed it to be a tobacco cigarette and ceased using it as soon as she suspected
otherwise. This would fall under the criminal defense of innocent ingestion, and
therefore was not “illegal” drug use while she held a security clearance. Accordingly, AG
¶ 25(g) does not apply.   
AG ¶ 26 provides conditions that an applicant could establish in order to mitigate
security concerns. Mitigating conditions raised by this record include: “(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;” 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 were used; (3) an appropriate
period of abstinence; and, (4) a signed statement of intent with automatic revocation of
clearance for any violation.”
Applicant’s drug possession and use during 2000 to 2004 took place while she
was young and a student, and most recently occurred almost 5 years ago. She stopped
after breaking up with her first boyfriend, who pressured her to use the cannabis, and
she successfully held a security clearance and responsible positions for more than three
years thereafter. She is now married to an active duty service member with a top-level
security clearance and neither of them have any interest in drug abuse. She has
disassociated from any drug users, and signed a statement of intent with automatic
revocation of clearance for any violation. Applicant met her burden of establishing that
her drug use occurred under such circumstances that it is unlikely to recur and does not
cast doubt on her current reliability, trustworthiness or good judgment (AG ¶ 26(a)).
Applicant provided substantial evidence of her intent not to abuse drugs in the future,
including her disassociation from drug-using contacts, her abstinence for almost five
years, a recent negative urine screening, and her signed statement of intent with
automatic revocation (AG ¶ 26(b)). This case did not involve abuse of prescription
drugs, nor has any drug treatment program ever been prescribed for her, so neither AG
¶¶ 26 (c) nor (d) apply.
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
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.
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The following will normally result in an unfavorable clearance action or
administrative termination of further processing for clearance eligibility:
(a) refusal, or failure without reasonable cause, to undergo or
cooperate with security processing, including but not limited to
meeting with a security investigator for subject interview,
completing security forms or releases, and cooperation with
medical or psychological evaluation; and,
(b) refusal to provide full, frank and truthful answers to lawful
questions of investigators, security officials, or other official
representatives in connection with a personnel security or
trustworthiness determination.
AG ¶ 16 describes conditions that could raise a security concern and may be
disqualifying. The condition raised by the evidence in this case is:
(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.
Applicant admittedly falsified her answer concerning prior drug use when completing her
June 20, 2007, e-QIP. 
AG ¶ 17 provides conditions that could mitigate security concerns raised under
AG ¶ 16(a). Those conditions supported by the evidence in this case are:
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
(b) the refusal or failure to cooperate, omission, or concealment was
caused or significantly contributed to by improper or inadequate advice of
authorized personnel or legal counsel advising or instructing the individual
specifically concerning the security clearance process. Upon being made
aware of the requirement to cooperate or provide the information, the
individual cooperated fully and truthfully;
(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;
(d) the individual has acknowledged the behavior and obtained counseling
to change the behavior or taken other positive steps to alleviate the
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stressors, circumstances, or factors that caused untrustworthy, unreliable,
or other inappropriate behavior, and such behavior is unlikely to recur; and
(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress.
Applicant was never confronted with any facts about drug abuse, because the
OPM investigator had no information concerning her past use. Applicant minimized, but
did not entirely conceal, her past use of cannabis when discussing the e-QIP with her
father. He is a high ranking, career military intelligence officer who advised her to falsify
her answer by responding “No.” Her admitted use was not so substantially greater than
what she admitted to her father at that time to render this advice more her fault than his.
She certainly and reasonably considered him to be an authorized person to advise her
concerning the security clearance process. When the OPM investigator made her aware
of the requirement to provide full and truthful information, she did cooperate fully and
truthfully. Accordingly, Applicant established mitigation under AG ¶¶ 17(a) and (b). She
also convincingly testified that she now understands the importance of full disclosure
and honesty in security-related matters, and of honesty with her father, so such
falsification is unlikely to recur and no longer casts doubt on her reliability or judgment.
This establishes further mitigation under AG ¶¶ 17 (c), (d), and (e). 
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 established by the record evidence. 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) 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’s conduct of security
concern involved relatively minor cannabis abuse with and initiated by a former
boyfriend about five to seven years ago, and denying it on her e-QIP. She broke off the
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relationship in the summer of 2004, and has never knowingly used drugs since. She is
now married to an active duty service member, who holds a top-level security
clearance. She is highly regarded by her supervisor and senior officials of the major
command staff for whom she has been providing administrative support since February
2006. She was age 15 to 19 when her drug use occurred, and is now 24 and
significantly more mature. Her e-QIP falsification was more recent, but significantly
influenced by her father’s improper, albeit well-meaning, advice not to report her
youthful cannabis use. Her parents, husband, supervisor, and security personnel are
now fully informed of her past drug use due to her volunteering of this information in
connection with her security clearance investigation, thereby eliminating any
vulnerability to coercion or duress. There is a minimal likelihood of recurrence of either
drug abuse or falsification of security-related information.  
Overall, the record evidence leaves me with no doubt as to Applicant’s present
eligibility and suitability for a security clearance. She has fully met her burden to mitigate
the security concerns arising from her drug involvement and personal conduct.
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 APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with the interests of national security to grant Applicant eligibility for a
security clearance. Eligibility for access to classified information is granted.
                                             
DAVID M. WHITE
Administrative Judge