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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
-------------------------- )       ISCR Case No. 09-02312
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Candace Le’i-Garcia, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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LYNCH, Noreen, Administrative Judge:
On October 2, 2009, the Defense Office of Hearings and Appeals (DOHA) issued
a Statement of Reasons (SOR)  detailing security concerns under Guideline H (Drug1
Involvement) and Guideline E (Personal Conduct) 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, answered the allegations, and
requested a decision on the record. When the government amended the SOR on
January 22, 2009, Applicant requested a hearing before an administrative judge. I
received the case assignment on December 17, 2009. DOHA issued a notice of hearing
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on January 11, 2009, and I convened the hearing as scheduled on January 26, 2009.
The Government offered Exhibits (GE) 1-4, which were received without objection and
admitted into the record. Applicant testified on his own behalf and presented Exhibits
(AE) A-F, which were admitted into the record without objection. DOHA received the
transcript on February 2, 2010. Based upon a review of the record, pleadings, exhibits,
and testimony, eligibility for access to classified information is denied.
Procedural and Evidentiary Rulings
Department Counsel made a motion to amend the SOR at the hearing. The
amendment changed Guideline E, SOR ¶ 2.a. to read: “You used marijuana after you
had been granted a Department of Defense Industrial Security clearance in about June
2003."  The motion was granted without objection. 
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a
through 1.i. He also admitted the allegations in ¶¶ 2.b and 2.c. He denied SOR ¶ 2.a of
the original SOR. In his answer to the amended SOR, Applicant admitted the allegation
in ¶ 2.a, as amended. 
Applicant is a 29-year-old employee of a defense contractor. He graduated from
high school in 1998, and earned an undergraduate degree in May 2002 (GE 1). He
obtained his graduate degree in applied physics in 2007 (AE E). He is married and has
two children. He has been with his current employer since August 2002 (GE 1). He has
held a security clearance since 2003 (GE 4).
From 1998 until July 2007, Applicant used marijuana. He purchased and used
marijuana in social settings in college from 1998 until 2002 (Tr. 27). Applicant believed
his use in his second year of college was about once a week. He did not use marijuana
as frequently in his last two years of college (maybe once a month) because he was not
living with his fraternity brothers. He also decided it was not good for his memory, and
his finances Tr. 30).
Applicant also experimented with cocaine, haullucinogenic mushrooms, LSD, and
Ecstasy. He used Ritalin, and Percocet in 2000, which were not prescribed to him (Tr.
33). He used mushrooms on two occasions between 1999 and 2001. He recalls that
trying the mushrooms was a fun experience. Applicant used and purchased cocaine in
2000 until at least 2001 (Tr. 35). He estimates that he used the cocaine about five
times. His last use was not pleasant. He did not feel well and became scared. He went
to the hospital for fear that something was wrong. Applicant stopped using cocaine
because it was a “horrifying experience” (Tr. 37). Applicant used Ecstasy in 2000 on a
trip with some college friends (Tr. 39). He used LSD from 1999 until at least 2000 (Tr.
39). 
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Applicant completed his first security clearance application in August 2002 (GE
2). He responded “No” to question 27 concerning use of illegal drugs and drug activity.
He did not report the use of any illegal drugs .
At the hearing, Applicant explained that he did not fully understand the process
or the SF 86 (Tr. 59). He already had the offer of employment with the defense
contractor and had undergone a background check. He did not believe that his use of
drugs in college had any bearing on his employment (Tr. 60). However, he
acknowledged that if the employer knew about the illegal drug use, perhaps they would
not view him as desirable a candidate. This is precisely why his parents advised him not
to disclose the use of the drugs (AE B). He was angry and disappointed in himself for
not disclosing the information in 2002 (Tr. 63). 
Applicant admits using marijuana on two occasions while working for his current
defense contractor and holding a security clearance. He described an incident in July
2005, when he purchased a small bag of marijuana for $10 (Tr. 30). He smoked the
marijuana cigarettes on the beach with his college buddy. In July 2007, he was at a
concert with friends and was offered a marijuana cigarette. He “put it to his lips” and
inhaled a very small amount. He claims he immediately removed himself from the
situation. He describes these two incidents as “spontaneous” and not a “part of a larger
pattern of behavior” (Tr. 52)
Applicant completed another security clearance application in October 2008 (GE
1). In response to Section 24 concerning use of illegal drugs and drug activity, he
responded “Yes” and disclosed his use of marijuana in July 2007 (one time) and July
2005 (one time). He also disclosed his use of marijuana, mushrooms, cocaine, Ecstasy,
Ritalin, Percocet, and LSD during his college years.
On the 2008 security clearance application, Applicant explained the reasons why
he did not disclose the illegal drug use on his 2002 security clearance application. He
explained that “not until I reached section 24 and read question b, did it ever occur to
me that using illegal substances while possessing a security clearance was a huge
offense” (GE 1). He did not report the experimentation with drugs during college
because he was afraid his employment offer would be rescinded. He claims he was
naive about the security clearance process. He elaborated that he “rationalized” that his
employer did not need to know of his previous experimentation because he might be
viewed as a less attractive candidate. He believed that because he experimented and
did not use drugs habitually, it was fine to omit the marijuana use in college. He also
relied on poor advice from his parents. His parents told him that it would not be a good
idea to disclose the information (Tr.88).
At the hearing, Applicant explained that he knew as early as 2003, from a
colleague at work, using illegal drugs could be a security concern (Tr. 67). He recalls
that he knew he had to set the record straight because “he really screwed it up big” (Tr.
67). He claimed that the next time he had an opportunity or that he had to go through a
security clearance procedure, he would set the record straight (Tr. 83). Applicant also
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recalled that a special agent contacted him right after he started working for his
employer in 2002. He was questioned about something else, but he did not disclose his
past illegal drug use.
In December 2008, Applicant was interviewed by an Office of Personnel
Management (OPM) investigator (GE 3). During the interview, he disclosed his use of
marijuana and the other illegal drugs in detail. He explained that none of the prior use
was disclosed on the first 2002 security clearance application because “he lacked the
understanding of background check procedures; he did no realize the severity of his
actions; and he did not want to “expose this to an employer who had already offered
him a job” (GE 3).
At the hearing, Applicant explained that he made mistakes, but they are not part
of a personality or character flaw. He describes himself as a dedicated husband and
father who puts his family first (Tr. 15). He also submitted evidence that he was an
excellent student in undergraduate and graduate school (AE E). He did not believe he
was ever addicted to any of the above referenced illegal drugs. He emphasized that the
drugs were always used in a social setting and never alone (Tr. 43). 
Applicant distanced himself from the fraternity brothers and friends with whom he
used the illegal drugs after graduating from college. Now, he may see some of them at
weddings. He signed a statement in October 2009, promising that he would not abuse
any illegal or legal drugs in the future (AE A).
At the hearing, Applicant emphasized that ignorance and fear were the basis of
his intentional omissions in 2002. However, he claimed that it was not his intent to
mislead the United States government. He is terribly sorry and relies on the excuse that
he was a naive college student who feared losing a great employment opportunity. He
also believed he took bad advice from his parents. He acknowledged that his
falsification of the security clearance application is inexcusable.
At the hearing, Applicant testified that it was not until 2008, when completing his
SF 86, that a “light bulb went off” (Tr. 108). He maintained that now he has fully come
forward and disclosed everything.
Applicant’s performance appraisals (AE D) show he was rated as “exceeds
requirements” on all evaluations from 2006 until 2009. He is noted as having strong
technical abilities and leadership traits.
Applicant presented 12 letters of reference. His friends and co-workers described
him as dependable.  His engineering manager notes that Applicant is dedicated to his
work and to his family (AE C). He also described him as a highly motivated, dependable
engineer who takes responsibility for his mistakes. He further noted that Applicant is
respected by his peers and by management for his technical expertise and work ethic. 
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Another senior engineer considered Applicant to be trustworthy. He gives the
highest recommendation to Applicant. He has worked with Applicant for many years and
believes that Applicant demonstrates integrity. 
Applicant’s co-workers described him as responsible, consistent, honest, and
moral. Applicant’s knowledge and performance is excellent.
Applicant’s mentor describes him as an expert design engineer. He is calm,
resourceful, honest and hardworking. He has earned the trust and respect of his
colleagues. Applicant is a valuable team player who is bright and dedicated. 
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 required 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, 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
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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 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 he purchased and used marijuana, in varying amounts and
frequency, from about 1998 until February 2007. He purchased cocaine on various
occasions. He also admitted using cocaine, mushrooms, LSD, Ecstasy, Percocet and
Ritalin in 2000 and 2001. These disqualifying conditions apply in this case.
Under AG ¶ 25(g) “any illegal drug use after being granted a security clearance”
is a disqualifying condition. Applicant has held a security clearance since 2003. He used
marijuana in 2005 and in 2007. His use of marijuana while holding a security clearance
was not an isolated event but twice in two years. This use occurred after he was a
husband and father, and after he had been working for his employer for a number of
years. This mitigating condition applies.  
The guideline also includes 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.@ There are no bright
line rules for determining when conduct is recent. The determination must be based on
a careful evaluation of the totality of the record. If the evidence shows a significant
period has passed without evidence of misconduct, then the administrative judge
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considers whether that period demonstrates changed circumstances or conduct
sufficient to warrant a finding of reform or rehabilitation.
Applicant=s history of illegal drug use (marijuana) spans from 1999 until 2007. He
stopped using the other illegal drugs in 2001. He was yet again influenced by someone
to use an illegal substance in 2005 and 2007. This shows poor judgment and lack of
trustworthiness given the fact that he had a security clearance during that time.  
Applicant’s last illegal drug use was in 2007, when he was attending a concert
with friends. At the time, he was a married man and a father. He was a mature
professional, holding a security clearance, working for a defense contractor. None of
the above mitigating conditions apply.
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.”  Applicant signed a statement of intent in
October 2009. The mitigating condition applies in part, but does not mitigate the drug
involvement concerns.
Under all the circumstances, security concerns cannot be alleviated without the
passage of more time and because doubts about his current reliability, trustworthiness,
or good judgment are not sufficiently resolved. Despite his good intentions, Applicant
was easily influenced at the 2007 concert with friends. He understands the adverse
effects from drug use. However, he has not shown a sufficient track record of refraining
from marijuana use to authorize his access to classified information.
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
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.
AG ¶ 16 describes conditions that could raise a security concern and may be
disqualifying. Under AG ¶ 16(a), a disqualifying condition exists when there is
“deliberate omission, concealment, or falsification of relevant facts from any personnel
security questionnaire, personal history statement, or similar form used to conduct
investigations, determine employment qualifications, award benefits or status,
determine security eligibility or trustworthiness, or award fiduciary responsibilities.”
Under AG ¶ 16(b) a disqualifying condition exists when “deliberately providing false or
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misleading information concerning relevant facts to an employer, investigator, security
official, competent medical authority, or other official government representative.”
Applicant admitted that he deliberately falsified his 2002 security clearance
application because he wanted to gain a position and feared that he would not be as
desirable a candidate if he was truthful about his drug use. Applicant failed to disclose
illegal drug use while holding a security clearance for many years. He realized in 2003
that he made a huge mistake by not reporting the prior use of illegal drugs. He did not
do anything about this until completing a 2008 security clearance application. His
behavior and personal conduct are disqualifying as they raise questions about his
judgment, reliability, truthfulness, and willingness to comply with the law. 
I considered the mitigating conditions under AG ¶ 17. Under AG ¶ 17(a), “the
person made prompt, good-faith efforts to correct the omission, concealment, or
falsification before being confronted with the facts” is a possible mitigating condition.
Applicant is given credit for revealing in 2008 his prior illegal drug use in college and in
2005 and 2007. However, he knew as early as 2002 or 2003 that he omitted relevant
information out of fear of losing his employment. He waited until 2008 to rectify the
problem. This mitigating condition applies in part.
Under AG ¶ 17(c), “the offense was 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” is not applicable. Although the intentional omission occurred in 2002,
Applicant’s last use of marijuana was in 2007. He also believed that his employer did
not have a need to know about his prior drug use in college because it occurred before
his employment and does not affect his present performance. He has offered
inconsistent reasons and explanations as to why his personal conduct should be
mitigated. I have serious doubts about his good judgment and reliability. This mitigating
condition does not apply.
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. 
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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 well-educated
professional. He has served in a professional capacity holding a security clearance
since 2003 with no problems. He is a married man and the father of a child. He has an
excellent employment record. He is a bright young man. There is no proof that Applicant
used illegal drugs at work. He was credible in his statement that he intends to avoid use
of marijuana in the future. He is recommended for a security clearance by his
managers. 
When Applicant completed his 2002 security clearance application, he
deliberately omitted information concerning his illegal drug use because he feared he
would not be able to keep his employment. He made no attempt to correct his
falsifications prior to 2008. He used marijuana while holding a security clearance in
2005 and 2007. He does not understand what is required of him to be eligible for a
security clearance. 
Applicant receives some credit for disclosing his history of illegal drug use while
in college on his 2008 security clearance application. He also listed the two incidents of
marijuana use in 2005 and 2007. He has motivation to refrain from using illegal drugs. If
he continues to abstain from illegal drug use, and avoids any other conduct that raises a
security concern, a security clearance might be eventually approved for him.
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 and personal 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: AGAINST APPLICANT
Subparagraph 1.a:-1h: Against Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraphs 2.a-c: Against 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.
                                              
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Noreen A. Lynch
Administrative Judge