DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 ------------------------- )  ISCR Case No. 08-11992 
 SSN: ----------------- ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Pamela C. Benson, Esquire, Department Counsel 
For Applicant: Pro Se 
 
 
 
______________ 
 
Decision 
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HOWE, Philip S., Administrative Judge: 
 
On September 5, 2008, Applicant submitted her electronic Security Clearance 
Application (SF 86)(e-QIP). On June 19, 2009, the Defense Office of Hearings and 
Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing security 
concerns under Guidelines J (Criminal 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) 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 August 10, 2009. She originally 
answered the SOR in writing on July 20, 2009, and requested a hearing before an 
administrative judge. However, she failed to respond to the allegations in Paragraph 2, 
Guideline H, and she resubmitted a complete Answer on August 10, 2009, with her 
receipt. DOHA received the original request on July 23, 2009. It received the 
 
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resubmitted request on August 14, 2009. Department Counsel was prepared to proceed 
on September 30, 2009, and I received the case assignment on October 6, 2009. 
DOHA issued a Notice of Hearing on October 29, 2009, and I convened the hearing as 
scheduled on November 17, 2009. The Government offered Exhibits 1 through 4, which 
were received without objection. Applicant testified and submitted Exhibit A without 
objection. DOHA received the transcript of the hearing (Tr.) on November 25, 2009. 
Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility for 
access to classified information is granted. 
 
Findings of Fact 
 
 In her Answer to the SOR, dated July 20, 2009, Applicant admitted the factual 
allegations in the SOR. She also provided additional information to support her request 
for eligibility for a security clearance.   
 
 Applicant is 31 years old and has a six-year-old son. She works for a defense 
contractor in the logistic business as a customer service representative. She has been 
so employed for four years. She graduated from college in 2002. (Tr. 19, 20, 23, 24, 25) 
 
 Applicant took a weekend vacation in August 2008 with three female friends. She 
drank too much alcohol the evening of August 1, 2008. She met a man at a bar and 
they returned to the hotel room where the four women were staying. No one else was 
there. Applicant and her male companion engaged in sexual activity. Applicant fell 
asleep as a result of consuming the alcohol. The man departed later, leaving his 
marijuana in the room. She did not use any marijuana. The next day, August 2, 2008, 
the marijuana was discovered in the room by the cleaning staff. The police were called, 
and permission was given by the four women to have the room searched. The police 
found marijuana in the nightstand, a marijuana cigarette on a bench, and a cigarette 
paper on the floor beside a bed. After changing out of their bathing suits as the police 
allowed them to do, the four women were arrested. (Tr. 21, 26-33, 44; Exhibits 2-4) 
 
 Applicant and her three friends were charged with possession of marijuana under 
100 grams and possession of drug paraphernalia. Applicant pled no contest to the 
charges, paid a fine of $130, and received three days in jail, which was suspended. She 
did not receive probation. She had her driving license suspended for six months. She is 
currently pursuing a petition in the state court to have her record expunged, based on 
the advice given her by the sentencing judge. Two of the other women hired attorneys 
and the charges against them were dismissed. Applicant could not afford to hire an 
attorney at that time. The fourth woman pled no contest and received the same 
sentence as Applicant. (Tr. 22, 33-35; Exhibits 2-4) 
 
 Applicant denies using drugs because of her responsibilities as a working single 
mother. She has not participated in any drug program, nor was she ordered to do so. 
She has not participated in any alcohol treatment program, nor was she ordered to do 
so. Applicant continues to drink alcohol several times a year. She used marijuana twice 
in high school in 1994, which was given to her by a boyfriend. Applicant has not 
 
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engaged in such weekend trips or risky behavior since this one-time incident. 
Applicant’s testimony about the events was direct, persuasive, and credible. (Tr. 19-22, 
35, 39) 
 
 Applicant’s employer submitted a statement on her behalf. The employer’s vice 
president stated Applicant was hired in June 2005 and has been given greater 
responsibilities within the company since 2005. The company regards Applicant as a 
“valuable asset” and she “does not pose a risk for the Government.” (Exhibit A) 
 
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 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, an “applicant is 
responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or 
mitigate facts admitted by applicant or proven by Department Counsel, and has the 
ultimate burden of persuasion as to obtaining a favorable clearance 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 J, Criminal Conduct 
 
 AG ¶ 30 expresses the security concern pertaining 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. 
 
 AG ¶ 31 describes five conditions that could raise a security concern and may be 
disqualifying. Two conditions are applicable: 
 
(a) a single serious crime or multiple lesser offenses; and 
 
(c) allegation or admission of criminal conduct, regardless of whether the 
person was formally charged, formally prosecuted or convicted. 
 
 Applicant was charged in 2008 with possession of less than 100 grams of 
marijuana and possession of drug paraphernalia. Her three friends on that weekend trip 
were also charged with the same offenses. The marijuana was found in the hotel room 
where the four of them stayed over a weekend. There was also a male visitor of 
Applicant’s acquaintance in the room for several hours the night before the marijuana 
was found by the cleaning staff. Applicant pled no contest to the charges and received a 
minimal sentence. One of her friends followed the same procedure and received the 
same sentence. The other two women hired attorneys who extricated them from the 
charges, which were eventually dismissed. 
 
 AG ¶ 32 provides four conditions that could mitigate security concerns. Three of 
these conditions are applicable: 
 
(a) so much time has elapsed since the criminal behavior happened, or it 
happened under such unusual circumstances that it is unlikely to recur 
and does not cast doubt on the individual's reliability, trustworthiness, or 
good judgment; 
 
(c) evidence that the person did not commit the offense; and 
 
 
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(d) there is evidence of successful rehabilitation; including but not limited 
to the passage of time without recurrence of criminal activity, remorse or 
restitution, job training or higher education, good employment record, or 
constructive community involvement. 
 
 The circumstances of Applicant’s marijuana charges in 2008 occurred in unusual 
and unique circumstances. After drinking too much at a bar the night of August 1, 2008, 
she brought a stranger back to her hotel room for sexual activity on her weekend out 
with some female friends. She has not engaged in such weekend trips since then. She 
takes her responsibility for her son very seriously, and does not want to endanger 
herself or him with risky behavior as she did in 2008. It is unlikely to recur. That incident 
does not cast doubt on her reliability, trustworthiness, or good judgment as shown by 
her employer’s very favorable comments about her work performance and 
advancements since 2005, and particularly after that event. AG ¶ 32 (a) applies. 
 
 There is evidence that five people had access to the hotel room where the 
marijuana was found in August 2008: Applicant, her three friends, and the stranger 
Applicant brought to the room. The marijuana and paraphernalia were found in three 
locations within the room. Applicant credibly testified that she did not use marijuana, 
taking her parental responsibilities seriously. There is doubt that Applicant knew what 
was happening because she was intoxicated that night and she fell asleep rapidly. It 
strains belief that Applicant would place marijuana around the hotel room where it could 
be found so easily by the cleaning staff. The other four people, who were in the room at 
various times, had an equal opportunity to place the marijuana in the room. Applicant 
and one of her friends pled no contest to the charges, so the culpability is divided at 
least two ways. AG ¶ 32 (c) applies because there is credible evidence Applicant may 
not have brought the marijuana into the room. 
 
 Applicant has not committed the same type of offense or any other criminal 
offense since August 2008. She seemed contrite and admitted her mistake at the 
hearing. She has a good employment record as shown by the character statement from 
her employer. AG ¶ 32 (d) applies. 
  
Guideline H, Drug Involvement 
 
 AG ¶ 24 expresses the security concern pertaining to illegal drugs: 
 
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. 
 
 (a) Drugs are defined as mood and behavior altering substances, and include: 
 
 
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(1) Drugs, materials, and other chemical compounds identified and listed 
in the Controlled Substances Act of 1970, as amended (e.g., marijuana or 
cannabis, depressants, narcotics, stimulants, and hallucinogens), and 
 
(2) inhalants and other similar substances; 
 
(b) drug abuse is the illegal use of a drug or use of a legal drug in a 
manner that deviates from approved medical direction. 
 
 AG ¶ 25 describes eight conditions that could raise a security concern and may 
be disqualifying. Only one condition applies: 
 
(c) illegal drug possession, including cultivation, processing, manufacture, 
purchase, sale, or distribution; or possession of drug paraphernalia; 
 
 Applicant was charged with possession of less than 100 grams of marijuana and 
paraphernalia. She pled no contest to the charges because she could not afford an 
attorney.  
 
 AG ¶ 26 provides four conditions that could mitigate security concerns. Two 
conditions apply: 
 
(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 
 
(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; and, 
 
(3) an appropriate period of abstinence. 
 
 AG ¶ 26 (a) applies for the same reasons stated under the Guideline J, AG ¶ 32 
(a) analysis, above. This was a one-time incident in Applicant’s life, and has not been 
repeated. The fact that she was one of four persons registered in a hotel room where 
marijuana was found, after she and her friends were out swimming all day, does not 
cast doubt on Applicant’s reliability, trustworthiness, or good judgment.  
 
 AG ¶ 26 (b) applies because Applicant has demonstrated an intent not to be 
placed in this type of situation again by not associating with these three other women 
again, not taking such weekend trips and associating with strange men she meets in 
bars on these weekends, and dedicating herself to her son and her job. She admitted 
that she needs to devote her time and energies to these tasks as a single mother. There 
 
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is also no evidence that she ever used marijuana in August 2008 or afterwards. No tests 
were conducted then or later. Applicant was in the vicinity of marijuana along with four 
other people who could have possessed it without Applicant knowing about it.  
 
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 an 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.  
 
AG ¶ 2 requires each case must be judged on its own merits.  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. Applicant was about 29 years old 
when this incident occurred. She made the decision to return to her hotel room with a 
stranger who had an equal chance with Applicant’s three roommates to put marijuana in 
the hotel room. It was a one-time occurrence by Applicant. She has not repeated the 
conduct. Her employer knows about the incident so the potential for pressure, coercion, 
exploitation, or duress is very slight. There is no likelihood of continuation or recurrence 
based on the totality of Applicant’s life and work history. 
 
Overall, the record evidence leaves me without questions or doubts as to 
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I 
conclude Applicant mitigated the security concerns arising from her criminal conduct 
and drug involvement. I conclude the “whole-person” concept for Applicant.  
 
 
 
 
 
 
 
 
 
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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 J:   FOR APPLICANT 
 
  Subparagraph 1.a:   For Applicant 
 
 Paragraph 2, Guideline H:   FOR APPLICANT  
 
  Subparagraph 2.a:   For Applicant 
  
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is 
clearly consistent with the national interest to grant Applicant eligibility for a security 
clearance.  Eligibility for access to classified information is granted. 
 
 
                                                     
_________________ 
PHILIP S. HOWE 
Administrative Judge