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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 ------------------------ )  ISCR Case No. 08-11586 
 SSN: ----------- ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Francisco Mendez, Esq., Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves security concerns raised under Guidelines H (Drug 
Involvement) and E (Personal Conduct). Security concerns raised by Applicant’s drug 
involvement are mitigated, but security concerns raised by his falsification of his security 
clearance application are not mitigated. Eligibility for access to classified information is 
denied. 
 
Statement of the Case 
 
Applicant submitted a security clearance application on April 12, 2008. On April 
24, 2009, the Defense Office of Hearings and Appeals (DOHA) sent him a Statement of 
Reasons (SOR) detailing the basis for its preliminary decision to deny his application, 
citing 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 adjudicative guidelines (AG) promulgated by the President on 
December 29, 2005.  
 
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 Applicant received the SOR on May 6, 2009; answered it on May 26, 2009; and 
requested a hearing before an administrative judge. DOHA received the request on 
June 1, 2009. Department Counsel was ready to proceed on July 24, 2009, and the 
case was assigned to an administrative judge on July 28, 2009. It was reassigned to me 
on July 31, 2009, to consolidate the docket. DOHA issued a notice of hearing on August 
6, 2009, scheduling the hearing for September 3, 2009. I convened the hearing as 
scheduled. Government Exhibits (GX) 1, 2, and 4 were admitted in evidence without 
objection. Applicant testified, presented the testimony of one witness, and submitted 
Applicant’s Exhibit (AX) A, which was admitted without objection. The record closed 
upon adjournment of the hearing. DOHA received the transcript (Tr.) on September 15, 
2009. 
 
Amendment of SOR 
 
On July 13, 2009, Department Counsel amended the SOR by amending SOR ¶¶ 
1.e, 2.a and 2.b. Applicant testified he received the amendments in mid-July 2009, but 
he misplaced the document and did not acknowledge receipt in writing (Tr. 17). He 
responded to the amended allegations at the hearing (Tr. 18). He did not object to the 
amendments (Tr. 19). 
 
At the hearing, Department Counsel moved to amend SOR ¶ 1.a by deleting the 
allegation that he tested positive for cocaine in January 2004. I granted the motion to 
amend, without objection from Applicant (Tr. 23-24). 
 
Evidentiary Ruling 
 
 Department Counsel offered GX 3, a report of investigation. He did not 
authenticate the report as required by Directive ¶ E3.1.20, and Applicant declined to 
waive the authentication requirement (Tr. 32). GX 3 was not admitted.  
 
Findings of Fact 
 
 In his answer to the SOR, Applicant admitted all the allegations in the original 
SOR, as well as the additional allegations. His admissions in his answer and at the 
hearing are incorporated in my findings of fact.  
 
 Applicant is a 39-year-old employee of a federal contractor. He has worked for 
his current employer since January 2008. He does not hold an active clearance. He was 
employed in the private sector from April 2006 until he began his current employment.   
 
 Applicant was first introduced to illegal drugs by his mother, who supplied him 
with marijuana when he was 16 years old. He smoked it at home once every three 
months. (GX 2 at 6). 
 
 Applicant was arrested and charged with drug-related offenses in 1990, 1991, 
and 1993. The charges were dismissed on all three occasions because of illegal 
 
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searches (GX 2 at 5-6). In May 2008, Applicant told a security investigator that he did 
not possess drugs on any of these occasions, but he was in the area when drug users 
ran away and dropped their drugs on the ground near him (GX 2 at 6). Notwithstanding 
his assertion that he did not possess drugs on any of these occasions, he also told the 
investigator that the 1991 arrest occurred when the police searched him and found 
approximately two grams of crack cocaine (GX 2 at 5). 
 
 Applicant sold cocaine during 1995 and 1996, and he earned about $1,500 a 
day, three days a week. In an interview with a security investigator, he denied using 
cocaine during this time, except for tasting it to make sure that it was cocaine (GX 2 at 
6). In 1996, he tested positive for cocaine during a urinalysis administered by an 
employer as a condition of employment (GX 2 at 6). 
 
Applicant testified he enlisted in the Army National Guard in 1990. He was 
unable to report for active duty because of his arrest for possession of cocaine in 1991 
(Tr. 47). He enlisted in the Regular Army in November 1997, and he received a security 
clearance shortly after his enlistment. He deployed twice to Iraq. In January 2005, he 
tested positive for cocaine during a random urinalysis just before his second 
deployment. He learned while in Iraq that he had tested positive for cocaine. He 
received nonjudicial punishment for wrongful use of cocaine. In December 2005, he 
received a general discharge under honorable conditions (GX 2 at 7). 
 
At the hearing, Applicant denied intentionally using cocaine in 2005. He testified 
he believed that someone put cocaine in his drink without his knowledge while he and a 
group of soldiers were at a club. He testified that “about five” other soldiers who were at 
the club also tested positive for cocaine (Tr. 43). He considered contesting the charges 
by obtaining evidence from the club. He claimed his appointed lawyer was not able to 
help him and so he accepted the nonjudicial punishment and the discharge from the 
Army (Tr. 40). 
 
 Applicant has been married since August 1997 and has five children, two by his 
present wife. He has one child from a previous relationship for whom he pays child 
support, and his wife has two children from a previous relationship (Tr. 51-52). 
 
Applicant’s wife testified that she encouraged him to contest the cocaine charges 
arising from the 2005 urinalysis, but he did not have the time or resources and he was 
afraid of going to jail (Tr. 57). She testified that Applicant was a sergeant at the time of 
the urinalysis, was involved in the collection of the urine samples, and could have 
switched his sample with someone else’s if he had known he had ingested cocaine (Tr. 
58).  
 
Applicant’s wife also testified that Applicant was raising his three-year-old 
daughter by himself when she first met him. She encouraged him to “get off the street” 
and start being a father to his child. Since then, he has become a responsible father (Tr. 
58-60). 
 
 
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Applicant testified his last drug involvement was in 1995 and 1996, when he was 
selling and tasting cocaine. He no longer associates with drug users (Tr. 50). 
 
When Applicant submitted his security clearance application in April 2008, he 
answered “no” to question 23d, asking if he had ever been “charged with or convicted 
of” any offenses related to alcohol or drugs.” In his explanatory comments, he disclosed 
that he tested positive for cocaine in a urinalysis in 2005, received nonjudicial 
punishment, and was discharged from the Army for drug use. However, he denied using 
cocaine in 2005, and he claimed that he was unable to contest the positive urinalysis 
because he was in Iraq (GX 1 at 30-31). He did not disclose that he had been arrested 
and charged with drug-related offenses in 1990, 1991, and 1993. 
 
In an interview with a security investigator in May 2008, he told the investigator 
that he did not disclose the drug-related charges because he was not required to do so 
when he enlisted in the Army, and he did not want to incriminate himself (GX 2 at 7). At 
the hearing, he testified he thought he was not required to disclose the charges 
because the charges were dismissed (Tr. 41). He also testified he did not disclose the 
drug-related charges when he enlisted because he was scared and did not know what 
would happen if he disclosed them (Tr. 48-50). He submitted a copy of his local arrest 
record (AX A). It reflects misdemeanor convictions in 1990-1991 for drinking in public, 
three failures to appear, an assault and battery, and carrying a concealed weapon. It 
does not list any drug-related charges.  
 
Policies 
 
 “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 
484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to 
“control access to information bearing on national security and to determine whether an 
individual is sufficiently trustworthy to have access to such information.” Id. at 527. The 
President has authorized the Secretary of Defense or his designee to grant applicants 
eligibility for access to classified information “only upon a finding that it is clearly 
consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified 
Information within Industry § 2 (Feb. 20, 1960), as amended and modified.   
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the revised adjudicative guidelines (AG). These guidelines are not 
inflexible rules of law. Instead, recognizing the complexities of human behavior, these 
guidelines are applied in conjunction with an evaluation of the whole person. An 
administrative judge’s overarching adjudicative goal is a fair, impartial, and 
commonsense decision. An administrative judge must consider all available, reliable 
information about the person, past and present, favorable and unfavorable. 
 
 The government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. Decisions include, by necessity, consideration of the 
possible risk the applicant may deliberately or inadvertently fail to protect or safeguard 
 
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classified information. Such decisions entail a certain degree of legally permissible 
extrapolation as to potential, rather than actual, risk of compromise of classified 
information. 
 
Clearance decisions must be made “in terms of the national interest and shall in 
no sense be a determination as to the loyalty of the applicant concerned.”  See Exec. 
Or. 10865 § 7. Thus, a decision to deny a security clearance is not necessarily a 
determination as to the loyalty of the applicant.  It is merely an indication the applicant 
has not met the strict guidelines the President and the Secretary of Defense have 
established for issuing a clearance. 
 
 Initially, the government must establish, by substantial evidence, conditions in the 
personal or professional history of the applicant that may disqualify the applicant from 
being eligible for access to classified information. The government has the burden of 
establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531.  
“Substantial evidence” is “more than a scintilla but less than a preponderance.”  See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the 
criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 
at 2 (App. Bd. May 2, 1996).   
 
 Once the government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it 
is clearly consistent with the national interest to grant or continue his security 
clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity 
clearance determinations should err, if they must, on the side of denials.” Egan, 484 
U.S. at 531; see AG ¶ 2(b).  
 
Analysis 
 
Guideline H, Drug Involvement 
 
 The SOR alleges Applicant tested positive for cocaine during a urinalysis in 
January 2005 (SOR ¶ 1.a, as amended); tested positive for cocaine during a urinalysis 
in 1996 (SOR ¶ 1.b); was arrested for possession of drugs with intent to distribute in 
March 1993 (SOR ¶ 1.c); was arrested for possession of cocaine with intent to distribute 
in March 1991 (SOR ¶ 1.d); and sold illegal drugs in 1995 and 1996 (SOR ¶ 1.e, as 
amended). 
 
The concern under this guideline is as follows: AUse 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. Guideline H encompasses Adrugs, materials, and other chemical compounds 
identified and listed in the Controlled Substances Act of 1970, as amended (e.g., 
 
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marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens).” AG ¶ 
24(a)(1).  
 
The following disqualifying conditions under this guideline are relevant: 
 
AG ¶ 25(a): any drug abuse (defined in AG ¶ 24(b) as ‘the illegal use of a 
drug or use of a legal drug in a manner that deviates from approved 
medical direction”);  
 
AG ¶ 25(b): testing positive for illegal drug use;  
 
AG ¶ 25(c): illegal drug possession, including cultivation, processing, 
manufacture, purchase, sale, or distribution; or possession of drug 
paraphernalia; 
 
AG ¶ 25(g): any illegal drug use after being granted a security clearance; 
and  
 
AG ¶ 25(h): expressed intent to continue illegal drug use, or failure to 
clearly and convincingly commit to discontinue drug use. 
 
 The evidence is sufficient to raise AG ¶¶ 25(a), (b), (c), and (g). I find that AG ¶ 
25(h) is not raised, because Applicant has “clearly and convincingly” committed to 
discontinuing his drug involvement. He has been gainfully employed since May 2006, 
and he has focused on carrying out his family duties. There is no evidence of any drug 
involvement or other criminal conduct since his positive urinalysis in January 2005, 
almost five years ago. 
 
 Since the government produced substantial evidence to raise the disqualifying 
conditions in AG ¶¶ 25(a), (b), (c), and (g), the burden shifted to Applicant to produce 
evidence to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An 
applicant has the burden of proving a mitigating condition, and the burden of disproving 
it never shifts to the government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 
2005).  
 
 Security concerns under this guideline may be mitigated if “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.” AG ¶ 26(a). The first prong of AG ¶ 26(a) 
(Ahappened so long ago@) focuses on whether the drug involvement was recent. There 
are no Abright line@ rules for determining when conduct is Arecent.@ The determination 
must be based on a careful evaluation of the totality of the evidence. If the evidence 
shows Aa significant period of time has passed without any evidence of misconduct,@ 
then an administrative judge must determine whether that period of time demonstrates 
Achanged circumstances or conduct sufficient to warrant a finding of reform or 
rehabilitation.@ ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). I conclude that 
 
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AG ¶ 26(a) is established, because Applicant’s drug involvement is not recent and does 
not cast doubt on his current reliability, trustworthiness, or good judgment.  
 
Security concerns also may be mitigated by “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; [or] (4) a signed statement of intent with automatic 
revocation of clearance for any violation.” AG ¶ 26(b). I conclude that AG ¶ 26(b)(1), (2), 
and (3) are established. 
 
Guideline E, Personal Conduct 
 
 SOR ¶ 2.a cross-alleges Applicant’s drug involvement alleged in SOR ¶ 1.a-1.e. 
SOR ¶ 2.b alleges that he falsified his security clearance application by not disclosing 
his drug-related arrests in 1991 and 19931. 
 The concern under this guideline is set out in AG ¶ 15 as follows:  
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.   
 The relevant disqualifying condition arising from Applicant’s failure to disclose his 
arrest record is “deliberate omission, concealment, or falsification of relevant facts from 
any personnel security questionnaire . . . .” AG ¶ 16(a). When a falsification allegation is 
controverted, as in this case, the government has the burden of proving it. An omission, 
standing alone, does not prove falsification. An administrative judge must consider the 
record evidence as a whole to determine whether an applicant’s state of mind at the 
time of the omission. See ISCR Case No. 03-09483 at 4 (App. Bd. Nov. 17, 2004).  
 
 Applicant was not a security neophyte when he submitted his April 2008 
application, because he held a clearance during most of his Army service. He disclosed 
the January 2005 positive urinalysis, for which he believed he had a plausible 
explanation, but he did not disclose his three drug-related arrests and charges. He gave 
multiple explanations for omitting this information. He claimed he did not think he 
needed to disclose it because the charges were dismissed, but he also admitted at the 
hearing that he did not disclose his drug-related arrests when he enlisted in the Army 
because he was afraid of the consequences of disclosure. He told a security 
investigator he did not disclose his arrests on his security clearance application because 
                                                          
1 Question 23d on the security clearance application asks whether the person had ever been “charged 
with or convicted of” any offenses related to alcohol or drugs. It does not ask about arrests. All three of 
Applicant’s arrests resulted in drug-related charges. Thus, he was required to disclose them. 
 
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he did not want to incriminate himself. On consideration of all the circumstances 
surrounding Applicant’s security clearance application, I conclude AG ¶ 16(a) is raised. 
 
 The relevant disqualifying conditions arising from Applicant’s personal conduct 
are: 
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;  
AG ¶ 16(e): personal conduct, or concealment of information about one's 
conduct, that creates a vulnerability to exploitation, manipulation, or 
duress, such as . . . engaging in activities which, if known, may affect the 
person's personal, professional, or community standing; and  
AG ¶ 16(g): association with persons involved in criminal activity.  
Applicant’s history of drug possession, use, and trafficking raises all three of these 
disqualifying conditions. 
 
 Security concerns raised by false or misleading answers on a security clearance 
application may be mitigated by showing that “the individual made prompt, good-faith 
efforts to correct the omission, concealment, or falsification before being confronted with 
the facts.” AG ¶ 17(a). This mitigating condition is not established, because Applicant 
did not disclose his drug-related arrests and charges until more than a year later, when 
he was confronted with his criminal record. 
 
 Security concerns arising from personal conduct may be mitigated if “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(c). 
Applicant’s drug involvement and his falsification of his security clearance application 
were not “minor” offenses. His falsification was recent and did not occur under unique 
circumstances. His personal conduct casts doubt on his current reliability, 
trustworthiness, and good judgment. I conclude AG ¶ 17(c) is not established. 
Security concerns based on personal conduct may be mitigated if “the individual 
has taken positive steps to reduce or eliminate vulnerability to exploitation, 
manipulation, or duress.” AG ¶ 17(e). This mitigating condition is established for his 
drug-related conduct, because Applicant has finally made full disclosure of his drug 
involvement, thereby reducing his vulnerability to exploitation, manipulation, or duress. 
 
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However, this mitigating condition does not apply to his falsification of his security 
clearance application. 
Finally, security concerns under this guideline may be mitigated if “association 
with persons involved in criminal activity has ceased . . . .” AG ¶ 17(g). This mitigating 
condition is established because Applicant no longer associates with drug users, 
dealers, or purchasers, but it does not apply to his falsification of his security clearance 
application. 
Whole-Person Concept 
 
 Under the whole-person concept, an administrative judge must evaluate an 
applicant’s eligibility for a security clearance by considering the totality of the applicant’s 
conduct and all the relevant circumstances. An 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 have incorporated my 
comments under Guidelines H and 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 grew up in a dysfunctional family and has a long history of drug-related 
incidents. With the help of a strong and supportive spouse, he appears to have left his 
drug involvement behind him. On the other hand, his implausible and unconvincing 
explanation for his positive urinalysis in January 2005 and his lack of candor on his 
security clearance application raise doubts about his current reliability, trustworthiness, 
and good judgment. After weighing the disqualifying and mitigating conditions under 
Guidelines H and E, and evaluating all the evidence in the context of the whole person, I 
conclude Applicant has mitigated the security concerns based on drug involvement, but 
he has not mitigated the security concerns arising from his personal conduct. 
Accordingly, I conclude he has not carried his burden of showing that it is clearly 
consistent with the national interest to grant him eligibility for access to classified 
information. 
 
 
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Formal Findings 
 
 I make the following formal findings on the allegations in the SOR: 
 
 Paragraph 1, Guideline H (Drug Involvement):  FOR APPLICANT 
 
  Subparagraphs 1.a-1.e (as amended):  For Applicant 
 
 Paragraph 2, Guideline E (Personal Conduct):  AGAINST APPLICANT 
 
  Subparagraph 2.a (as amended):   For Applicant 
 
  Subparagraph 2.b:     Against Applicant 
    
Conclusion 
 
 In light of all of the circumstances, 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. 
 
 
 
 
LeRoy F. Foreman 
Administrative Judge