DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------- )       ISCR Case No. 09-00629
SSN: ----------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Department Counsel
For Applicant: Pro Se
______________
 Decision
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WESLEY, Roger C., Administrative Judge:
Statement of Case
On July 7, 2009, the Defense Office of Hearings and Appeals (DOHA), pursuant
to Department of Defense Directive 5220.6 (Directive), dated January 2, 1992,  issued a
Statement of Reasons (SOR) to Applicant, which detailed reasons why DOHA could not
make the preliminary affirmative determination of eligibility for granting a security
clearance, and recommended referral to an administrative judge to determine whether a
security  clearance should be granted, continued, denied or revoked.
Applicant responded to the SOR on August 5, 2009, and requested a hearing.
The case was assigned to me on September 1, 2009, and was scheduled for hearing on
October 6, 2009.  A hearing was held on the scheduled date for the purpose of
considering whether it would be clearly consistent with the national interest to grant,
continue, or deny Applicant’s application for a security clearance.  At hearing, the
Government's case consisted of three exhibits.  Applicant, in turn, relied on one witness
(himself) and no exhibits. The transcript (Tr.) was received on November 9, 2009.
2
Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility for
access to classified information is denied. 
Procedural Issues and Rulings
Prior to the close of the hearing, Applicant requested leave to supplement the
record with documented court records pertaining to the status of his drug possession
case, which is pending final disposition.  For good cause shown, Applicant was granted
seven days to October 14, 2009, to provide supplemental documentation. Applicant did
not elect to supplement the record. 
Summary of Pleadings
Under Guideline H, Applicant is alleged to have (a) been arrested in March 2008
for possession of a controlled substance (psilocybin), a felony, and possession of
marijuana by driver; to which he pleaded guilty and received a deferred entry of
judgment for count I (with count II dismissed) and was placed on three years probation
and ordered to complete drug counseling, attend four 12-step meetings weekly, and pay
a fine; (b) used psilocybin on at least one occasion in approximately May 2005; (c)
purchased psilocybin on at least one occasion in approximately 2005; and (d) used
marijuana at least three times from January 2004 to about August 2005. The same
allegations were incorporated under Guideline J.
Under Guideline E, Applicant is alleged to (a) to have falsified material facts in
his interrogatory answers, signed and notarized in April 2009, by answering no to a
question inquiring about any prior purchases of illegal drugs and (b) be indebted to a
local municipality for $2,200 in accumulated parking tickets.   
In his answer to the SOR, Applicant admitted to his drug-related allegations and
his accumulated parking tickets, but denied any intention to falsify his interrogatory
answers. In explanation, he claimed he did not fully understand the question and
interpreted it to be questioning him about any drug sale or distribution.
Findings of Fact
Applicant is a 25-year-old engineer for a defense contractor who seeks a security
clearance. The allegations covered in the SOR and admitted by Applicant are
incorporated herein and adopted as relevant and material findings.  Additional findings
follow.
Between 2004 and 2005 (while in college), Applicant used marijuana on three
separate occasions after he had consumed excessive amounts of alcohol.   He did not
feel any affects from the marijuana he used (Tr. 53). He was valedictorian of his high
school class and matriculated to a respected university after high school (see ex. 1).  He
was awarded a bachelors of science degree in engineering in 2007 (ex. 1; Tr. 43).
Besides his use of marijuana in college, Applicant tried psilocybin mushrooms on one
1
  Mushrooms are the street name for psilocybin or psilocin, which is a Schedule (Sch.) 1 Controlled Substance
under the Controlled Substances Act contained in 21 U.S.C. § 812(c).   See United States v. Hussein, 351
F.3d 9, 16 (1st Cir. 2003) (mushrooms are a plant which may contain the Schedule 1(c)(15) and 1(c)16
controlled substance psilocybin or psilocyn).  
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occasion (see ex. 2; Tr.48).   He purchased the mushrooms from a woman he met in1
college. They made the exchange in a local park and used the mushrooms together in
the park (Tr. 45-46).  Applicant was aware at the time that the drugs he purchased and
used were illegal (Tr. 47-48).  
In March 2008, Applicant was arrested for (1) possession of psilocybin
mushrooms and (2) possession of marijuana by driver. He pleaded guilty to the
psilocybin possession charge in April 2008 and received a deferred entry of judgment
on the charge, subject to his being placed on three years probation and ordered to
complete drug counseling, attend four 12-step meetings, and pay a fine. The court
dismissed  the count I charge (see ex. 2).   
Whether Applicant has completed the terms of his probation is unclear.  Afforded
an opportunity to supplement the record with updated probation documentation, he
failed to do so. He assured he enrolled in an educational counseling program (including
drug urinalyses) and a narcotics anonymous (NA) program. His documented treatment
status report credits him with successfully completing the program’s requirements in
August 2008 (see ex. 2; Tr. 26-27). His completed requirements included 24 education
classes and six outside NA meetings (ex. 2). Twice, he was tested for drugs while in the
program, and the results were negative on each test (ex. 2). He indicated no awareness
of awarded chips commemorating periods of assured abstinence, though, and provided
no documentation of any awarded chips from his NA attendance (Tr. 34). 
Since completing his required drug counseling program, Applicant has continued
to attend 12-step classes weekly: two with his NA chapter and two with his alcoholics
anonymous (AA) chapter (see ex. 2; Tr. 26-29).  He does not have a sponsor, but he
assures he will continue to attend these meetings in the future (Tr. ).  He insists he last
used illegal drugs in August 2005 and expresses remorse for his past drug activity (Tr.
32-33).  And he assures he has no intention of using illegal drugs in the future (see ex.
2; Tr. 68-69). Applicant’s assurances are credible, and are accepted.  Still, his court
records indicate he was placed on three years of court-supervised probation, which still
has over a year to run (see ex. 2). Afforded additional time to provide clarifying
documentation about his probation status, Applicant failed to take advantage of the
opportunity.
After using psilocybin mushrooms for the last time (May 2005), Applicant
continued to carry a package of the drugs in his backpack for two additional years (Tr.
48-49).  Applicant could not provide any clear reasons why he carried these drugs in his
backpack for such an extended period of time (Tr. 49).
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Asked to respond to written interrogatories from DOHA, Applicant answered “no”
to questions inquiring about his purchase of psilocybin mushrooms in April 2009 (ex. 2).
He attributes his omission to a mistaken understanding about the meaning of the term
“purchase” (Tr. 57, 63-68).  Since he only intended to share the mushrooms with his
girlfriend, he did not think the question applied to him (Tr. 64). 
After admitting to his accumulated parking violations, Applicant has recently
inquired of the court about them (Tr. 54-56).  He must resolve them before he can
register his vehicle, and he assures he will pay his outstanding tickets (Tr. 68).  He
provides no time lines for resolving his parking tickets, though, and no documentation of
any efforts to date in addressing them.
Applicant has not provided any documentation from the court regarding his
March 2008 deferred adjudication status. He continues to be on probation, absent court-
approved relaxation of probation terms. Nor has Applicant provided any documented
chips commemorating any sustained periods of abstinence.  Whether he is entitled to
any sobriety chips from NA or AA is unclear at this time.  
Applicant did not provide any character references or evidence of performance
evaluations from his employer.  At this point, it is not clear how Applicant is regarded by
his supervisors and coworkers and members of his community.  
Policies
The revised Adjudicative Guidelines (AGs) list guidelines to be used by
administrative judges in the decision-making process covering DOHA cases. These
guidelines take into account factors that could create a potential conflict of interest for
the individual applicant, as well as considerations that could affect the individual’s
reliability, trustworthiness, and ability to protect classified information. These guidelines
include "[c]onditions that could raise a security concern and may be disqualifying”
(disqualifying conditions), if any, and many of the "[c]onditions that could mitigate
security concerns.” These guidelines must be considered before deciding whether or
not a security clearance should be granted, continued, or denied. The guidelines do not
require administrative judges to place exclusive reliance on the enumerated
disqualifying and mitigating conditions in the guidelines in arriving at a decision. Each of
the guidelines is to be evaluated in the context of the whole person in accordance with
AG ¶ 2(c).
In addition to the relevant AGs, administrative judges must take into account the
pertinent considerations for assessing extenuation and mitigation set forth in AG ¶ 2(a)
of the revised AGs, which are intended to assist the judges in reaching a fair and
impartial commonsense decision based upon a careful consideration of the pertinent
guidelines within the context of the whole person. The adjudicative process is designed
to examine a sufficient period of an applicant’s life to enable predictive judgments to be
made about whether the applicant is an acceptable security risk. 
5
Viewing the issues raised and evidence as a whole, the following adjudication
policy factors are pertinent herein:
 Drug Involvement
The Concern: 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.
Criminal Conduct
The Concern: 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.  AG ¶ 30.
Personal Conduct
The Concern: Conduct involving questionable judgment, untrustworthiness,
unreliability, 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.
Burden of Proof
By virtue of the precepts framed by the revised Adjudicative Guidelines, a
decision to grant or continue an applicant's security clearance may be made only upon a
threshold finding that to do so is clearly consistent with the national interest.  Because
the Directive requires administrative judges to make a commonsense appraisal of the
evidence accumulated in the record, the ultimate determination of an applicant's eligibility
for a security clearance depends, in large part, on the relevance and materiality of that
evidence.  As with all adversary proceedings, the judge may draw only those inferences
which have a reasonable and logical basis from the evidence of record.  Conversely, the
judge cannot draw factual inferences that are grounded on speculation or conjecture.
The Government's initial burden is twofold: (1) It must prove any controverted
fact[s] alleged in the Statement of Reasons; and (2) it must demonstrate that the facts
proven have a material bearing to the applicant's eligibility to obtain or maintain a
security clearance.  The required showing of material bearing, however, does not require
the Government to affirmatively demonstrate that the applicant has actually mishandled
or abused classified information before it can deny or revoke a security clearance.
Rather, consideration must take account of cognizable risks that an applicant may
deliberately or inadvertently fail to safeguard classified information.
6
Once the Government meets its initial burden of proof of establishing admitted or
controverted facts, the burden of persuasion shifts to the applicant for the purpose of
establishing his or her security worthiness through evidence of refutation, extenuation, or
mitigation of the Government's case.  Because Executive Order 10865 requires that all
security clearances be clearly consistent with the national interest, “security-clearance
determinations should err, if they must, on the side of denials.”  See Department of the
Navy v. Egan, 484 U.S. 518, 531 (1988).
Analysis  
  Over a two-year period (between 2004 and 2005), Applicant used marijuana and
psilocybin mushrooms intermittently (at least on three occasions) in social situations with
friends and made at least one purchase of psilocybin in 2005 for sharing with his friends.
More recently (in March 2008), he was arrested for possession of psilocybin, and he
subsequently pleaded guilty to the charge.  The presiding court accepted his guilty plea
and entered an order of deferred judgment, conditioned on Applicant’s satisfying court-
imposed conditions (completion of drug counseling, attendance of four 12-step meetings,
and payment of a fine) during a three-year period of probation.  Whether Applicant has
been credited by the court with satisfying all of its imposed conditions is unclear. 
 Based on the developed record to date, Applicant remains on probation, and
security concerns over his past drug involvement persist under both Guidelines H and J.
Security concerns are also raised initially under Guideline E over his omitting his
psilocybin purchase from his responses to DOHA interrogatories and his prior
accumulation of unpaid parking tickets. 
  Drug Involvement and criminal conduct concerns
 Applicant’s past involvement with illegal drugs raises initial security concerns over
risks of recurrence, as well as  judgment issues. On the strength of the evidence
presented, several disqualifying conditions of the Adjudicative Guidelines for drug abuse
are applicable: DC ¶ 25(a), “any drug abuse,” and DC ¶ 25(c), “illegal possession,
including cultivation, processing, manufacture, purchase, sale, or distribution; or
possession of drug paraphernalia.”
Judgment concerns exist over Applicant’s past use of illegal drugs, his drug-
related possession arrest and ensuing guilty plea and his still uncertain satisfaction of
court-imposed probation conditions. Applicant’s actions are expressly covered by
Guidelines H and J. Besides the disqualifying conditions covered by the drug
involvement guideline, Applicant’s drug activities are covered by the criminal conduct
guideline as well.  DC ¶ 31(a), “a single serious crime or multiple lesser offense,’” and
DC ¶ 31(c), “allegation or admission of criminal conduct, regardless of whether the
person was formally charged, formally prosecuted or convicted,” apply to Applicant’s
situation.
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While Applicant has made some noticeable gains in avoiding illegal drugs this
past year, his efforts are for the most part lacking in specificity and documentation.
Whether he has complied with all of the court’s probation conditions is unclear, and he
remains on probation for the foreseeable future.  MC ¶ 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,” is disjunctive and can be partially applied to Applicant’s situation.
Applicant’s stated  intent not to abuse drugs in the future has some application as well.
Available considerations under ¶ 26(b) include “(3) an appropriate period of abstinence,”
and “(4) a signed statement of intent with automatic revocation of clearance for any
violation.”  
Because of Applicant’s lack of any endorsements from colleagues and friends
familiar with his current lifestyle, current probation situation, and absence of any
documented assurances he no longer is involved with illegal drugs, mitigation is difficult
to establish. MC ¶ 26(b)(1), “disassociation from drug-using associates and contacts,”
and MC ¶ 26(b)(2), “changing or avoiding the environment where drugs were used,”
have only limited application without supporting documentation.  In fairness to Applicant,
he exhibited candor at his hearing about his past drug use and purchase and his
associations with persons who have used the substance.
At the closing of the record, Applicant continues to be on probation from his 2008
plea arrangement and has provided no documentation of his completion of any drug
education or treatment program. Too much is unknown about Applicant’s abstention
efforts to warrant safe predictions he will not resume his involvement with illegal
substances in the foreseeable future.  So, while Applicant’s assurances that he has no
intention of ever resuming his use of marijuana, or any illegal substance, in the future,
are entitled to some weight, they cannot be totally separated from the recurrence risks
that face Applicant for so long as he continues to be on probation without any
documented dismissal of the deferred charges or evidence of his continuing participation
in his NA/AA meetings. 
From a whole person perspective, Applicant has established some probative
evidence of his overall honesty, trustworthiness, and understanding of DoD policy
constraints on the use of illegal substances. Still of some concern, though, are
Applicant’s recent drug possession plea and his current probation status.  Without any
endorsements from persons familiar with his work and community activities, or continued
participation in NA/AA meetings, he is not able to surmount justified concerns associated
with his past drug activities.  In Applicant’s case, more documentation of his abstention
efforts is required before he can be credited with mitigating security risks associated with
his past drug and criminal involvement.   
Considering the record as a whole, at this time there is too little seasoning of
Applicant’s mitigation efforts to avert foreseeable risks of recurrent illegal drug use.
Taking into account all of the facts and circumstances surrounding Applicant’s drug use
and associated judgment lapses, Applicant fails to mitigate security concerns related to
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his drug use and associated criminal conduct.  Unfavorable conclusions warrant with
respect to the allegations covered by Guidelines H and J.
Personal Conduct concerns
Trust concerns over Applicant’s judgment, reliability and trustworthiness are
raised under Guideline E as the result of his answering in the negative to an
interrogatory question inquiring about his past drug purchases.   Applicant attributed his
negative answer to his misunderstanding of the meaning of the term “purchase.” By
claiming he never purchased illegal drugs, he meant only that he had never bought
drugs for profit or distributed drugs.  He did not consider his sharing the expense of
psilocybin with his girlfriend to be a purchase. Applicant’s explanation, considering the
circumstances surrounding the furnished information at the time, is a plausible
interpretation and credible enough to avert inferences of falsification. 
However, Applicant’s failure to address $2,200 worth of accumulated parking
tickets raises security concerns about his judgment, reliability, and trustworthiness that
cannot be mitigated without some documented showing on his part that he has
addressed his parking tickets.  Applicant has not provided any evidentiary proof in the
hearing or after the hearing that he has paid the tickets or otherwise resolved any of
them with the courts or parking enforcement officials. 
Appraised by themselves, Applicant’s accumulation of unpaid parking tickets is
not sufficiently security-significant to warrant the denial of a security clearance.  When
considered contextually with his use of illegal drugs, his unpaid tickets become more
security-significant.  Considered together, they reflect a continuing pattern of disregard of
published rules and policies that bear on his demonstrated willingness to adhere to rules
and guidelines designed to protect classified information. 
So, under Guideline E, core judgment and trustworthiness concerns covered by
D.C. ¶ 16(d), “credible adverse information that is not explicitly covered under any other
guideline and may not be sufficient by itself for an adverse determination, but which,
when combined with all available information 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,” have some applicability to this case.
These concerns cannot be isolated from his past use of illegal drugs.
For his candid acknowledgment of his parking tickets and expressed commitment
to address them, Applicant is entitled to take some advantage of MC ¶ 17(d), “the
individual has acknowledged the behavior and obtained counseling to change the
behavior or taken other positive steps to alleviate the stressors, circumstances, or factors
that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior
is unlikely to recur,” of the mitigating conditions in the personal conduct guideline.
Without some evidence of addressing his tickets, though, he may not take full advantage
of this mitigating condition. 
9
Whole-person assessment does not enable Applicant to surmount related
concerns about his judgment and trustworthiness attributable to his past failures to
address the large number of parking tickets he accumulated. While he established  some
probative evidence of his overall judgment and trustworthiness, his education and
professional achievements are not enough to overcome concerns raised by his parking
ticket accumulations when considered, not independently, but in concert with his prior
abuse of illegal drugs.
To be sure, Applicant’s reasons for not addressing his parking tickets sooner with
his available resources are not fully apparent. And because motivation is never easy to
objectively establish, the placement of reasonable time lines on clearance applicants to
test and absolve them of recurrence risks makes safe and  practical sense when
balancing the interests of protecting national security with the interests of  those who
seek access to the nation’s secrets.  This balance has been carefully weighed and must
be resolved against Applicant on the strength of the evidence developed in this record.
Taking into account all of the facts and circumstances surrounding Applicant’s
accumulation of unpaid parking tickets, Applicant fails to mitigate Guideline E security
concerns related to his demonstrated judgment lapses associated with his failure to
address these tickets. Favorable conclusions warrant with respect to his drug purchase
omission in his interrogatory response.
In reaching my decision, I have considered the evidence as a whole, including
each of the E2(a) factors enumerated in the Adjudicative Guidelines of the Directive.
Formal Findings
In reviewing the allegations of the SOR and ensuing conclusions reached in the
context of the findings of fact, conclusions, conditions, and the factors listed above, I
make the following formal findings:
GUIDELINE H: (DRUG INVOLVEMENT):          AGAINST APPLICANT
   
Subparas. 1.a through 1.d: Against Applicant
GUIDELINE J: (CRIMINAL CONDUCT): AGAINST APPLICANT
Subpara. 2.a: AGAINST APPLICANT
GUIDELINE E: (PERSONAL CONDUCT):         AGAINST  APPLICANT    
Subpara. 3.a: For Applicant
Subpara. 3 .b: Against Applicant
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Conclusions
In light of all the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant or continue Applicant’s security
clearance.  Clearance is denied.
                                          
Roger C. Wesley
Administrative Judge 
                                        
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