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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 08-02421
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Jennifer Goldstein, Esquire, Department Counsel
For Applicant: Alan V. Edmunds, Esquire
December 10, 2009
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Decision
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CEFOLA, Richard A., Administrative Judge:
Applicant submitted her Electronic Questionnaires for Investigations Processing
(e-QIP), on February 12, 2007.  On May 29, 2009, the Defense Office of Hearings and
Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the security concerns
under Guidelines H, E and J for 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 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 on June 2, 2009.  She answered the
SOR in writing through counsel on June 16, 2009, and requested a hearing before an
Administrative Judge.  DOHA received the request on July 30, 2009, and I received the
case assignment the same day.  I granted Applicant’s request for a delay until
September of 2009, in order for her counsel to be available.  DOHA issued a notice of
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hearing on August 4, 2009, and I convened the hearing as scheduled on September 16,
2009.  The Government offered Exhibits (GXs) 1 through 5, which were received
without objection.  Applicant testified on her own behalf, as did five witnesses, and
submitted Exhibits (AppXs) A through P, and R and S, without objection.  DOHA
received the transcript of the hearing (TR) on September 23, 2009.  The record closed
on September 23, 2009.  Based upon a review of the case file, pleadings, exhibits, and
testimony, eligibility for access to classified information is denied.
Findings of Fact
In her Answer to the SOR, Applicant made a general denial of all of the
allegations.
Guideline H - Drug Involvement
1.a.~1.e.  The Applicant used methamphetamine, with varying frequency and to
the point of addiction, from about 1999 until her last usage in February of 2006 (TR at
page 83 lines 4~16).  Her initial usage was very infrequent, but “it increased to a daily
habit at the tail end of 2002 and [the] beginning of 2003" (TR at page 99 line 23 to page
101 line 15).  Just before she went into rehabilitation treatment in December of 2003,
the Applicant “was using every day . . . a gram and a half a day at that point” (TR at
page 102 lines 3~12).
From December of 2003 until January of 2004, the Applicant received inpatient
treatment for her addiction (TR at page 83 line 17 to page 84 line 9, and at page 103
line 4 to page 104 line 9).  After her inpatient treatment, she was in an after care
program for about two months (TR at page 107 line 9 to page 108 line 9).  However,
about three months later, the Applicant again began to use methamphetamine (TR at
page 110 line 16 to page 111 line 1).  This usage continued until her arrest in February
of 2006, in part, for Possession of a Controlled Substance - Methamphetamine (GX 5).
Although this charge was ultimately dismissed, the Applicant admits possessing the
drug (TR at page 111 line 2 to page 113 line 5).  During the period of her usage, the
Applicant also purchased methamphetamine on numerous occasions, at times spending
about $150 a week on the drug (TR at page 101 line 16 to page 102 line 2).
1.f.~1.i.  During the period of her drug usage, the Applicant also used cocaine,
marijuana, Ecstasy (MDMA), and Psilocybin mushrooms, each drug on at least three
separate occasions (TR at page 91 line 18 to page 92 line 5, at page 97 line 12 to page
98 line 14, at page 99 line 6 to page 102 line 2).
Most recently, in June of 2009, the Applicant submitted a Statement of Intent
(AppX S).  In that Statement, the Applicant averred the following:
I.  I am submitting that statement as intent never to never use illegal drugs
again.
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2.  Should there be any violation with regard to illegal drug use, I hereby
consent to automatic revocation of my security clearance (Id).
Guideline E - Personal Conduct
2.a.  Section 23 of Applicant’s February 12, 2007, e-QIP, styled Your Police
Record, has the following introductory instructions:
For this item, report information regardless of whether the record in your
case has been “sealed” or otherwise stricken from the court record.  The
single exception to this requirement is for certain convictions under the
Federal Controlled Substances Act for which the court issued an
expungement order . . . (GX 1 at page 36).
Question 23.f. asks “[i]n the last 7 years have you been arrested for, charged
with, or convicted of any offense(s) not listed in response to a, b, c, or e above?” (GX 1
at page 37).  The Applicant responded “Yes” and listed that she had been arrested for
“resisting the arrest of a felon” (Id).  She did not list that she was also arrested for
“Possession of a Controlled Substance - Methamphetamine,” in February of 2007,
because she avers in her subsequent inquiries with the court, where the charge was
dismissed, she thought her dismissal was a form of expungement (TR at page 92 line
11 to page 93 line 24, and at page 115 line 13 to page 118 line 6).  This explanation is
believable; and as such, I find no wilful falsification here.
2.b. and 3.a.  Section 24 of Applicant’s February 12, 2007, e-QIP, styled Your
Use of Illegal Drugs and Drug Activity, posits the following question under
subparagraph a.:
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? (GX 1 at
page 38).
To which the Applicant checked “Yes”, from “02/2001 (Estimated)” to “12/2003
(Estimated) . . . Methamphetamine,” an “Unknown” number of times, with these
additional comments: “I was using a long time and didn’t stop until receiving help in a
rehabilitation center . . . .” (Id).  I find this to be a wilful falsification, a violation of 18
U.S.C. Section 1001 (TR at page 131 at line 23 to page 132 line 25).  The Applicant
used methamphetamine, extensively, after her inpatient treatment in January of 2004,
until her arrest in February of 2006.
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Guideline J - Criminal Conduct
3.b.  The Applicant, admittedly, possessed methamphetamine, when she was
arrested in February of 2006 (TR at page 111 line 2 to page 113 line 5).  This
constitutes criminal conduct.
3.c.  In October of 1998, the Applicant was cited for being a Minor in Possession
of Alcohol (TR at page 94 line 25 to page 95 line 11, and at page 127 line 7 to page 128
line 7).  She was 19 years of age, and was fined as a result of this incident (Id).
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 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
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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 relating to the guideline for Drug Involvement is set out in
Paragraph 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 also notes several conditions that could raise security concerns.
Under Subparagraph 25(a), “any drug abuse” may be disqualifying.  In
addition,”diagnosis by a duly qualified medical professional . . . of drug abuse or drug
dependence ” under Subparagraph 25(d) may be disqualifying.  Here the Applicant
used the Applicant used methamphetamine from about 1999 to her arrest in February of
2006.  Her usage was to the point of addiction, which required inpatient treatment  from
December of 2003 until January of 2004  This is countered, however, by the mitigating
conditions found in Subparagraphs 26(b)(3) and 26(b)(4).  The Applicant has shown “a
demonstrated intent not to abuse any drugs in the future, such as: (3) an appropriate
period of abstinence;” and “(4) a signed statement of intent with automatic revocation of
clearance for any violation.”  The Applicant was last involved with methamphetamine in
February of 2006, nearly four years ago.  She has also signed a letter of intent not to
abuse any drugs in the future.  I find her statement of intent to be credible and sincere.
Guideline E - Personal Conduct
The security concern relating to the guideline for Personal Conduct is set out in
AG Paragraph 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.
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The guideline notes several conditions that could raise security concerns.  Under
Subparagraph 16(a), “deliberate omission, concealment, or falsification of relevant facts
from an personnel security questionnaire . . . or similar form . . . .”  Here, the Applicant
falsified her answer to question 24.a. on her February 2007, e-QIP.  She was involved
with and used methamphetamine more than two years after her admitted usage.
Guideline J - Criminal Conduct
Paragraph 30 of the new adjudicative guidelines sets out the security concern
relating to Criminal Conduct:
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 adjudicative guidelines set out certain conditions that could raise security
concerns.  Paragraph 31(c) provides that an “allegation or admission of criminal
conduct, regardless of whether the person was formally charged, formally prosecuted or
convicted,@ may raise security concerns.  The Applicant was arrested for possessing
methamphetamine in February of 2006, and her falsification in answer to question 24.a.
on her e-QIP is also a violation of 18 U.S.C. 1001.  I find no countervailing Mitigating
Conditions that are applicable.
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.  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.
The Administrative Judge should also 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.
I considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  The Applicant has the unqualified support
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of her father, and of those who know her in the work place (Tr at page 38 line 11 to
page 74 line 2, and AppXs C, D, H~J, and M~S).  However, the record evidence leaves
me with questions and doubts as to Applicant’s eligibility and suitability for a security
clearance.  She was clearly less than candid with the Government as to the recency of
her drug abuse.  For all these reasons, I conclude Applicant has not mitigated the
security concerns arising from her Personal Conduct and Criminal 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
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Subparagraph 1.e: For Applicant
Subparagraph 1.f: For Applicant
Subparagraph 1.g: For Applicant
Subparagraph 1.h: For Applicant
Subparagraph 1.i: For Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: Against Applicant
Paragraph 3, Guideline J: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against Applicant
Subparagraph 2.c: For Applicant
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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.
Richard A. Cefola
Administrative Judge