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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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---------------- )       ISCR Case No. 08-05586
SSN: ----------- )
)
Applicant for Security Clearance )
Appearances
For Government: Candace Le’i, Esquire, Department Counsel
For Applicant: Pro se
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Decision
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CURRY, Marc E., Administrative Judge:
Applicant’s multiple criminal charges over the past 20 years, his failure to list the
alcohol-related ones, as required, on a 2007 security clearance application, and his
history of illegal drug use generate security concerns that he failed to mitigate.
Clearance is denied.
On April 28, 2009, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines
E, Personal Conduct and H, Drug Involvement. 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) as 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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Applicant answered the SOR on May 26, 2009, admitting all of the allegations
except subparagraph 1.j. He requested a hearing, and the case was assigned to me on
June 11, 2009. On June 24, 2009, a notice of hearing was issued scheduling the case
for July 28, 2009. On July 27, 2009, I continued the case on my own motion, and
rescheduled it with the agreement of the parties for August 3, 2009. The hearing was
conducted as rescheduled. I received 11 government exhibits, four Applicant exhibits,
and Applicant’s testimony. The transcript was received on August 7, 2009.
Findings of Fact
Applicant is a 44-year-old single man. A prior marriage ended in divorce in 1989.
Applicant has no children. He has a high school education, and has taken some
technical courses over the years (Tr. 24).
For the past two years, Applicant has worked as an electrician for a defense
contractor. Specifically, Applicant focuses on quality control and safety issues (Exhibit
A). According to his supervisor, he has strong work habits, and his performance level is
high (Exhibit C). According to the company’s manager for safety and quality assurance,
Applicant is highly observant of potential quality control problems, and has a dynamic
personality that prompts others to “pick up their standards a notch higher” (Exhibit A).
Applicant served in the U.S. Navy from 1983 to 1987. In November 1986,
Applicant’s roommate, a fellow sailor, borrowed his car without permission (Answer at
1). Applicant then left his duty station without authority, located his roommate, and
attacked him, “grabbing him around the throat and hitting his head against the bulkhead
several times” (Exhibit 4). Subsequently, Applicant was charged under Article 15 of the
United States Code of Military Justice (UCMJ) for assaulting and threatening a fellow
sailor. He received 45 days restriction, 45 days extra duty, and two weeks forfeiture of
pay (Exhibit 4; Tr. 26). 
In April 1987, a disagreement among fellow sailors, including Applicant, which
occurred during an off-duty softball game, degenerated into a brawl (Tr. 27). During the
melee, Applicant struck a seaman several times “about the face and body with his
hands and feet” (Exhibit 5). Subsequently, Applicant received a general discharge
under other than honorable conditions (Exhibit 6).
On or about June 1994, Applicant went to a gas station. After pumping gas into
his car, he realized that he did not have any cash (Tr. 28). Applicant offered to pay with
a check, but the clerk refused to accept a check without any identification (Id.). Because
Applicant needed his identification to cash the check at a bank, he left his license tag
with the clerk, and drove away, headed to the bank. The clerk called the police, who
arrested and charged Applicant with theft under $300. Applicant spent the night in jail.
The following morning, he was released, and issued a ticket (Tr. 30). At a court hearing
the following month, he pleaded guilty and paid the fine (Id.). The amount of the fine is
unknown from the record.
Applicant’s recollection of this incident constitutes the only record evidence. He did not specifically recall1
the date of the incident.
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In August 2000, during a concert at the beach, Applicant “got into some verbal
confrontations” with some people who were “raising a ruckus” (Tr. 32). The police
arrived and arrested everyone, including Applicant, charging them with being drunk in
public (Id.). Applicant and the others were then taken to an overnight holding cell (Tr.
33). Applicant was released the next day, and issued a $25 ticket, which he paid (Tr. 33,
36). 
A few months after the arrest, Applicant was stopped by the police at a sobriety
checkpoint.  Although he was sober, he did not have his operator’s license in his1
possession. He was then issued a traffic ticket for driving without an operator’s license
(Tr. 32-33). Applicant paid the ticket.
Late one evening in March 2004, Applicant was charged with public intoxication
after police observed him staggering down the street (Tr. 38, 87). Applicant was
arrested and charged with being drunk in public (Tr. 37). After spending the night in jail,
he was issued a $25 ticket, which he paid in lieu of appearing in court (Tr. 37, 87).
In approximately June 1997, when Applicant was 32 years old, he began
experimenting with marijuana (Answer at 2). Over the course of the following year, he
smoked it approximately once per week (Tr. 53). During this period, he purchased it
approximately four times, spending $200 per purchase (Exhibit 3 at 7). He never
smoked the drug with other people. Instead, he would smoke it alone while working on
his vehicle (Id. at 18). During an interview with an investigative agent, Applicant stated
that the marijuana made him feel relaxed and focused (Id.). At the hearing, Applicant
testified that he did not enjoy smoking marijuana because it made him feel paranoid (Tr.
52-53).
Applicant contends he has not smoked marijuana since 1998 (Tr. 87). In 2007,
he tested positive for marijuana in a pre-employment urinalysis screening for the job he
held immediately before he began working at his current job (Answer at 3). He contends
that he had not been smoking marijuana before he took the urinalysis, and questioned
the accuracy of the urinalysis (Tr. 54). He informed his then-employer who told him to
undergo another urinalysis (Tr. 56). The following week, Applicant underwent another
urinalysis and passed (Tr. 56). He worked for this employer for one month before
leaving to work for his current employer (Id.). His decision to leave was unrelated to his
initial failure of the urinalysis (Tr. 59). Applicant voluntarily disclosed this information to
an investigative agent (Exhibit 3 at 13).
On July 20, 2009, Applicant executed a statement of intent not to use any illegal
drugs in the future (Exhibit D). He has relocated to a new town and does not socialize at
places where there is heavy drinking or illegal activity (Tr. 96).
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Applicant completed a security clearance application in December 2007. He did
not disclose his alcohol-related charges or arrests in response to Section 23d. (Have
you ever been charged with or convicted of any offenses related to alcohol or drugs?).
He testified that he had “forgotten all about them” (Tr. 40).
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 required to be
considered 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. 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.” 
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.
Analysis
Guideline E, Personal Conduct
The security concern under this guideline is as follows:
[c]onduct 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 (AG ¶ 15). 
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SOR subparagraph 1.g, “[o]n or about November 10, 2001, you failed to appear
in [municipality X] on a misdemeanor charge” does not identify the specific charge, and
is therefore overbroad. Nevertheless, Applicant admitted this allegation, and identified
the charge as a traffic infraction which he paid, obviating the need to appear in court. I
resolve SOR subparagraph 1.g in Applicant’s favor.
Applicant’s omission of his alcohol-related arrests from his 2007 security
clearance application, as alleged in SOR subparagraph 1.j, raises the issue of whether
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. Applicant contends that he did not include his alcohol-related
arrests on his security clearance application because he forgot about them. On both
occasions, however, the police jailed him overnight. Under these circumstances, it is not
credible that Applicant would forget these arrests. His credibility is further undermined
by the contradictory statements he provided throughout the investigatory process
regarding whether he enjoyed smoking marijuana. AG ¶ 16(a) applies without
mitigation.
Applicant’s 2009 falsification of his security clearance, together with the episodes
of misconduct while in the military, his multiple arrests, and his abuse of marijuana
trigger the 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.”
The relevant, potentially mitigating condition is 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.” Much of Applicant’s
misconduct was either minor, or remote in time. However, the security significance of
Applicant’s misconduct is elevated by its varied, repetitive nature, and its frequency.
Moreover, Applicant’s falsification of his security clearance application occurred less
than six months ago. Upon viewing Applicant’s personal conduct in its totality, I
conclude that AG ¶ 17(c) does not apply.
Guideline H, Drug Involvement
Under this guideline, “use of an illegal drug or misuse of a prescription drug can
raise questions about an individual’s reliability and trustworthiness, both because it may
impair judgment, and because it raises questions about a person’s ability or willingness
to comply with laws, rules, and regulations,” (AG ¶ 24). Applicant’s abuse of marijuana
from 1997 through 1998, and his 2007 failure of a urinalysis, testing positive for
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marijuana, trigger the application of AG ¶ 25(a), “any drug abuse,” and AG ¶ 25(b),
“testing positive for illegal drug use.”
The relevant mitigating conditions are as follows:
AG ¶ 26(a) - the behavior happened so long ago was so infrequent, or
happened under such circumstances that it is unlikely to recur or does not
cast doubt on the individual’s current reliability, trustworthiness, or good
judgment; and,
AG ¶ 26(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 recent positive urinalysis undercuts his contention that he has not
used marijuana since 1998. His contention that the urinalysis was inaccurate is not
credible given the falsification of his security clearance application, as described earlier.
I conclude AG ¶ 26(a) does not apply.
AG ¶¶ 26(b)(1) and 26(b)(2) are not relevant because Applicant always used
marijuana while home alone. The failed 2007 urinalysis casts doubt on Applicant’s
contention that he has not used marijuana since 1998. Consequently, he has failed to
establish that AG ¶ 26(b)(3) applies. He did, however, submit a signed statement of
intent not to use any marijuana in the future. AG ¶ 26(b)(4) applies.
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) 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.
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Between 1997 and 2004, Applicant engaged in a variety of misconduct including
fighting with fellow sailors while in the Navy, drinking in public, and smoking marijuana.
The minor nature of most of these offenses is offset by their repetitive nature. Moreover,
immaturity does not mitigate the behavior because Applicant was 32 years old when he
chose to smoke marijuana, and 39 when he committed his most recent alcohol-related
offense. Most importantly, he failed to be fully forthcoming about his alcohol-related
offenses when he completed his security clearance application in 2009. Applicant
deserves credit for his solid work performance. However, this is insufficient to outweigh
the security concerns generated by his history of adverse personal conduct and drug
involvement.
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 E: AGAINST APPLICANT
Subparagraphs 1.a - 1.f: Against Applicant
Subparagraph 1.g: For Applicant
Subparagraphs 1.h - 1.j: Against Applicant
Paragraph 2, Guideline H: AGAINST Applicant
Subparagraph 2.a: 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.
                                             
MARC E. CURRY
Administrative Judge