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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 08-11937
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Gregg Cervi, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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LYNCH, Noreen, Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86) on July 1, 2008.
On April 23, 2009, the Defense Office of Hearings and Appeals (DOHA) issued to
Applicant a Statement of Reasons (SOR)  detailing the security concerns under1
Guideline H. 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 the President on December 29, 2005, and effective
within the Department of Defense for SORs issued after September 1, 2006. 
 
Applicant acknowledged receipt of the SOR, answered the allegations, and
requested a hearing before an administrative judge. I received the case assignment on
July 2, 2009. DOHA issued a notice of hearing on July 27, 2009, and I convened the
hearing as scheduled on August 26, 2009. The Government offered Exhibits (GE 1-3),
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which were received without objection. Applicant testified on his own behalf and
presented Exhibit (AE A) which was admitted into the record without objection. DOHA
received the transcript on September 3, 2009. Based upon a review of the record,
pleadings, exhibits, and testimony, eligibility for access to classified information is
denied.
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a
through 1.f of the SOR.  
Applicant is a 36-year-old employee of a defense contractor. He graduated from
high school in 1991, and has attended many college courses. He is single (Tr. 26).
Applicant worked in the music industry from approximately 1998 until 2006. He has
been with his current employer in a full-time capacity since August 8, 2006 (GE 1).
From 1991 until 1993, Applicant illegally used LSD while at home or in a friend’s
home (Tr. 48). He was arrested in July 1993, and charged with Possession of
Controlled Substance (LSD), a felony (GE 3). Applicant was placed on a six-year
probation but was released after three years. He attended a drug education class. He
resumed using illegal drugs after the probation was completed. 
Applicant illegally used marijuana, cocaine and ecstasy (MDMA) from
approximately 2001 until July 2008. He used the illegal drugs while working in his music
studio and in his home. He used marijuana approximately 2000 times (Tr. 30). Applicant
admitted that he was a daily user of marijuana. His cocaine use from 2001 until July
2008 occurred in the privacy of his home with his girlfriend (Tr. 31). He estimates that
he used it approximately 100 times (Tr. 30). During this period Applicant also used
ecstasy with his girlfriend in the privacy of his home. He gave different estimates of the
frequency of the use (Tr. 26).
Applicant usually purchased the illegal drugs from his friends. He stated that he
never sold any drugs. At the hearing, Applicant explained that he did not believe he was
hurting anyone by using illegal drugs in the privacy of his home (Tr. 22). He does not
believe that he needs drug counseling. He is still friends with the people with whom he
used drugs (Tr. 28). 
After Applicant completed his July 1, 2008, security clearance application (SF
86), he decided to use illegal drugs again as a last “hurrah”. He admits using
(psilocybin) “mushrooms” twice. Applicant used illegal drugs while he was working for
his current employer. He did not inform his employer about his drug use until his
security clearance investigation in 2008.
Applicant stopped using illegal drugs because of concerns with his current job.
He does not want to lose his current position. He believes he excels in the position. He
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wants to move forward with his life. He recognizes that a security clearance is needed
for this job so that he can advance financially (Tr. 53).
Applicant has many letters of recommendation from his friends and former
colleagues. Each one attests to his diligence, character and trustworthiness. He is
considerate of others, kind, and honest (AE A). Applicant’s supervisor recommends him
for a security clearance. Applicant is an indispensable member of the team.
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.
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 commonsense decision. According to AG ¶ 2(c),
the entire process is a conscientious scrutiny of a number of variables known as the
“whole person concept.” The administrative judge must consider all available, reliable
information about the person, past and present, favorable and unfavorable, in making a
decision.
The protection of the national security is the paramount consideration. AG ¶ 2(b)
requires that “[a]ny doubt concerning personnel being considered for access to
classified information will be resolved in favor of national security.” In reaching this
decision, I have drawn only those conclusions that are reasonable, logical and based on
the evidence contained in the record. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The
applicant has the ultimate burden of persuasion 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
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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 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. 
The guideline notes several conditions that could raise security concerns. Under
AG & 25(a), Aany drug abuse@ is potentially disqualifying. Under AG ¶ 25(c) “illegal drug
possession, including cultivation, processing, manufacture, purchase, sale, or
distribution; or possession of drug paraphernalia” is also potentially disqualifying.
Applicant admitted his use of marijuana, cocaine, ecstasy, and mushrooms in varying
amounts and frequency spanning a period from about 2001 to 2008. In 1993, he was
charged with possession of a controlled substance. These disqualifying conditions apply
in this case.
The guideline also includes examples of conditions that could mitigate security
concerns arising from drug involvement. Under AG ¶ 26(a), the disqualifying condition
may be mitigated where Athe behavior happened so long ago, was so infrequent, or
occurred under such circumstances that it is unlikely to recur and does not cast doubt
on the individual=s current reliability, trustworthiness, or good judgment.@ Applicant=s
pattern of illegal drug use continued from a young age to adult maturity. He was a
mature adult working for a company and violating the drug policy when he continued to
use illegal drugs. He used illegal drugs until July 2008. This shows poor judgment and
lack of trustworthiness, given the fact that he had applied for a security clearance during
that time. I do not find that this mitigating condition applies.  
Under AG ¶ 26(b), it may be mitigating where there is Aa 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.” This is not a factor for consideration in this
case for the reasons discussed above.
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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 relevant 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. 
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 and conclude that they are not
sufficient to overcome the government’s case. Applicant is a mature, well-educated
professional. His use of illegal drugs for many years and his casual attitude about the
use of drugs is cause for concern. He stopped using illegal drugs during a period of
probation but resumed the illegal use after the probation ended. He believes that the
use of illegal drugs in the privacy of his home is not an indicator of his trustworthiness or
character.
Overall, the record evidence leaves me with questions and doubts as to
Applicant’s eligibility, judgment, and suitability for a security clearance. For all the
reasons discussed above, I conclude Applicant has not mitigated the security concerns
arising from his 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 H: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: Against Applicant
Subparagraph 1.e: Against Applicant
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Subparagraph 1.f: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                              
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Noreen A. Lynch
Administrative Judge