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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 09-01463
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Julie R. Mendez, Esquire, Department Counsel
For Applicant: Pro se  
______________
Decision
______________
HENRY, Mary E., Administrative Judge:
Based upon a review of the case file, pleadings, exhibits, and testimony,
Applicant’s eligibility for access to classified information is denied.
Applicant executed and signed his Security Clearance Application (SF 86) on
October 9, 2007. The Defense Office of Hearings and Appeals (DOHA) issued Applicant
a Statement of Reasons (SOR) detailing security concerns under Guidelines J and H on
October 6, 2009. 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) implemented on September 1, 2006. 
 
Applicant acknowledged receipt of the SOR on October 14, 2009. He submitted a
notarized, written response to the SOR allegations on November 19, 2009, and
requested a decision on the written record in lieu of a hearing. 
Item 3, attachments.1
Item 4.2
2
Department Counsel prepared a File of Relevant Material (FORM) and mailed
Applicant a complete copy on December 15, 2009. Applicant received the FORM on
December 28, 2009. He had 30 days from receipt to file objections and submit material
in refutation, extenuation, or mitigation. He did not submit a response or additional
evidence. DOHA assigned this case to me on March 22, 2010. The government
submitted seven exhibits, which have been marked as Item 1-7 and admitted into the
record. Applicant’s response to the SOR has been marked and admitted as Item 3, and
the SOR has been marked as Item 1.
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a,
2.a, and 2.b of the SOR, with explanations. His admissions are incorporated herein as
findings of fact. He also provided additional information to support his request for
eligibility for a security clearance. After a complete and thorough review of the evidence
of record, I make the following additional findings of fact.  
Applicant, who is 21 years old, works as a technician on the information
technology (IT) helpdesk for a Department of Defense contractor. Applicant began
working for his employer in October 2007 on the helpdesk. His first supervisor described
him as intelligent, hard-working, reliable, and conscientious. She opined that he was
one of her valuable employees, who never lost his “cool” with customers, and could be
counted on to “go above and beyond for a customer.” When she accepted a  manager
position in another office, she requested that the office hire Applicant and it did. A
coworker at Applicant’s new office, describes him as a valued employee with great
customer service skills. Applicant works well with his team members and his supervisor
believes Applicant has good potential.1
Applicant graduated from high school in May 2007. He is single and lives with his
mother, whom he helps to support.2
Over New Year’s 2008, Applicant attended a party with a friend and another
casual friend. At this party, Applicant experimented with marijuana by taking two hits
from a marijuana cigarette. He did not purchase the marijuana and did not know who
provided the marijuana for the party. At another party in January 2008 with the same
two friends, Applicant again experimented with marijuana. The marijuana made him
more talkative, relaxed, and hungry, as well as dizzy and nauseous. He has not used
marijuana since this time. He does not have any contact with these individuals and has
not seen the casual friend since January 2008. He signed a statement of intent not to
Item 3, with attachments; Item 6.3
Id.4
Id.5
Id.6
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use any illegal drugs, including marijuana, and agreed to the revocation of his clearance
for any violation.3
On March 14, 2008, Applicant completed his work for the day and started his
drive home. His normal travel time to home took about 90 minutes. On this date, traffic
congestion extended his commuting time an additional 30 to 60 minutes. Before he
arrived home, Applicant stopped at a gas station. He pulled his car near the only
available gasoline pump. Because the driver of the car behind him had parked his car in
a manner which limited Applicant’s access to the gasoline pump, Applicant signaled the
driver twice to move his car back. The driver did not. When Applicant approached the
driver in his car, he realized that the driver was talking on his cell phone. Applicant
again asked the driver to move his car and the driver responded: “You can ask me
nicely.”4
Applicant’s attitude towards the driver changed with this comment. Applicant
again asked the driver to move his car since his was not purchasing gasoline and
commented that the driver should watch how he was acting. Both became defensive
and the incident escalated when the driver took off his seat belt. Applicant felt
threatened by this behavior and returned to his car. He retrieved a small knife from his
car’s emergency kit and displayed it as he stood by his car, but made no oral threat to
the driver. He denies an intent to use it; rather, he displayed it as a deterrent. Both he
and the driver remained at their cars. He then realized he was not behaving any better
than the driver and put his knife away. He completed his gasoline purchase and left.5
Shortly after leaving the gas station, the local police stopped Applicant. The
police asked him about the incident with the driver and he provided his explanation of
the events. The police arrested him and charged him with first degree assault, second
degree assault, reckless endangerment because he displayed his knife in public,
dangerous weapon - concealed (because he had a knife in his car), dangerous weapon
with intent to injure, and possession of marijuana. The police searched his car after he
gave consent and found marijuana. He denies the marijuana was his. Because he
viewed the incident as an argument, he did not believe he would be arrested and was
surprised when the police arrested him.6
The police took Applicant to the police station and detained him for several
hours. He appeared before a judge, who released him without requiring that he post
bail. Applicant hired an attorney to represent him. Applicant reported his arrest to his
Item 5; Item 6.7
Item 3; Item 5; Item 6.8
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facility security officer the same day. The facility security officer filed an incident report
on March 18, 2008.7
In April 2008, one month after Applicant’s arrest and before Applicant’s trial, the
prosecutor notified the court that the first degree assault charge was “nolle prosequied.”
Based on the recommendation of his attorney, Applicant voluntarily attended an anger
management class and drug awareness class. At his trial in July 2008, Applicant pled
guilty to reckless endangerment, a misdemeanor. The court placed the remaining four
charges, second degree assault, dangerous weapon with intent to injure, dangerous
weapon - conceal, and possession of marijuana, on the “STET” docket for 90 days. The
court sentenced Applicant to 91 days in jail, suspending 90 days and crediting Applicant
with 1 day served; fined him $1,000 plus costs of $57.50, then suspended $750;
directed 48 hours of community service; and placed him on 12 months probation. The
trial summary indicated that Applicant would get probation before judgment (PBJ) after
paying his fines and ACS (although undefined, this is probably community service).
Applicant completed his community service between July 2008 and October 2008. He
believes his case has been expunged, but has not provided proof nor has he provided
proof that he completed his probation. Applicant states that he has learned from this
incident and that his behavior on this occasion is out of character.8
Applicant does not have any other arrests. Applicant denies smoking marijuana
while holding a security clearance. Based on the information in the record, it is unlikely
that Applicant has been granted a security clearance. The record contains no evidence
that Applicant has been diagnosed with a substance abuse problem related to his
marijuana use.
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the adjudicative guidelines (AG). In addition to brief
introductory explanations for each guideline, the adjudicative guidelines list potentially
disqualifying conditions and mitigating conditions, which are used 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.
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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. . . .” An
applicant has the ultimate burden of persuasion for obtaining a favorable security
decision.
A person who seeks access to classified information enters into a fiduciary
relationship with the government predicated upon trust and confidence. This relationship
transcends normal duty hours and endures throughout off-duty hours. The government
reposes a high degree of trust and confidence in individuals to whom it grants access to
classified information. Decisions include, by necessity, consideration of the possible risk
an 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 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 conditions that could raise a security concern, and the
following may be disqualifying in this case:
(a) a single serious crime or multiple lesser offenses;
(c) allegation or admission of criminal conduct, regardless of whether the
person was formally charged, formally prosecuted or convicted;
(d) individual is currently on parole or probation; and
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(e) violation of parole or probation, or failure to complete a court-mandated
rehabilitation program.
The police arrested and charged Applicant with multiple offenses related to an
argument with another individual at a gas station and with possession of marijuana after
finding marijuana in his car. Applicant also admitted using marijuana in early January
2008. AG ¶¶ 31(a) and 31(c) apply. While Applicant has not provided documentation
that his probation has ended, the court sentenced him to 12 months beginning in July
2008. Given the record does not contain any evidence that he violated the terms of his
probation, I find that he is not currently on probation.
AG ¶ 32 provides conditions that could mitigate security concerns, and the
following may apply in this case:
(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;
(b) the person was pressured or coerced into committing the act and those
pressures are no longer present in the person's life;
(c) evidence that the person did not commit the offense; and
(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 police arrested Applicant two years ago. Since then he has not been
involved in any other criminal incidents. The circumstances surrounding his arrest could
occur again given that the incident with the driver occurred at the end of a long work day
and after being stuck in rush hour, which resulted in frayed nerves and impatience.
Applicant was not pressured into his actions; rather he reacted to a perceived threat.
There is some evidence of rehabilitation as he indicates that he has learned a valuable
lesson from this incident. In addition, his supervisor and now manager praises his work
ethic and customer service skills. AG ¶¶ 32(a) and 32(d) have partial applicability in this
case.
Guideline H, Drug Involvement
AG ¶ 24 expresses the security concern pertaining to drug involvement:
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
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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:
(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 conditions that could raise a security concern and the
following may be disqualifying in this case:
(a) any drug abuse (see above definition); and 
(c) illegal drug possession, including cultivation, processing, manufacture,
purchase, sale, or distribution; or possession of drug paraphernalia.
Applicant smoked a marijuana cigarette on two occasions in January 2008 while
attending parties with friends. Because he held the marijuana cigarette to smoke it, he
possessed marijuana. The police found marijuana in his car after a search. Applicant
has not been diagnosed with a substance abuse problem  AG ¶¶ 25(a) and 25(c) apply
in this case.
Applicant’s use of marijuana is limited. He has not smoked marijuana in two
years nor has he seen one friend with whom he smoked the marijuana since January
2008, and he no longer associates with the other friend involved in his marijuana use.
He signed a statement of intent not to use illegal drugs and agreed to the automatic
revocation of his security clearance if he did. Through these actions, Applicant has
demonstrated an intent not to use any drugs in the future. He has mitigated the security
concerns about his past drug use under AG ¶ 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) and AG ¶ 26(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; (3) an appropriate period
of abstinence; and, (4) a signed statement of intent with automatic revocation of
clearance for any violation).
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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 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. 
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security
clearance must be an overall commonsense judgment based upon careful consideration
of the guidelines and the whole person concept. The decision to grant or deny a security
clearance requires a careful weighing of all relevant factors, both favorable and
unfavorable. In so doing, an administrative judge must review all the evidence of record,
not a single item in isolation, to determine if a security concern is established and then
whether it is mitigated. A determination of an applicant’s eligibility for a security
clearance should not be made as punishment for specific past conduct, but on a
reasonable and careful evaluation of all the evidence of record to decide if a nexus
exists between established facts and a legitimate security concern. 
In reaching a conclusion, I considered the potentially disqualifying and mitigating
conditions in light of all the facts and circumstances surrounding this case. Applicant
smoked marijuana on two social occasions, but has not used marijuana since. He
recognizes that drug use is inappropriate and has agreed not to use illegal drugs in the
future. He does not associate with the friends with whom he smoked marijuana and
does not intend to do so in the future. His agreement to the automatic revocation of his
security clearance should he use illegal drugs in the future shows his understanding of
the consequences of any future drug use.  
After a long workday and a long-time in rush hour traffic, Applicant became
involved in a incident with a man at a gas station. Applicant perceived the removal of
the seatbelt by the driver as a threat and reacted to his perception by taking a small
knife from his car and displaying it. He used poor judgment and showed his lack of
maturity when he made this decision. He realized that he was acting improperly and put
the knife away. Nonetheless the police arrested him and charged him with five criminal
acts related to his conduct, which he immediately reported to his security officer. He did
not resist arrest and pled guilty to the misdemeanor offense of reckless endangerment.
He completed his probation and has not been involved in any other criminal activity.
Pulling a knife during the course of an argument raises serious questions about
Of course, my recommendation to approve Applicant’s clearance in the future is not binding on the9
government. If Applicant’s company sponsors him for a clearance one year after the date of this decision,
approval of a clearance at that time will be based on all the facts and circumstances at that point in time. An
administrative judge does not have authority to commit the government to approval of a clearance at some
future date. See generally ISCR Case No. 08-07540 at 2 (App. Bd. Jan. 8, 2010); ISCR Case No. 04-03907
at 2 (App. Bd. Sep. 18, 2006) (stating, “The Board has no authority to grant [a]pplicant a conditional or
probationary security clearance to allow [him or] her the opportunity to have a security clearance while [he or
she] works on [his or] her financial problems.” and citing ISCR Case No. 03-07418 at 3 (App. Bd. Oct. 13,
2004)).
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Applicant’s judgment. He was only 19 years old at the time, and thus, he lacked
appropriate insight into the negative consequences of his conduct. His age and
immaturity contributed to this bad decision. Applicant is now two years older and seems
to have learned from this incident. I did not have the opportunity to assess his sincerity
and credibly at a hearing, and am unable, at this time, to conclude that he has matured
enough to not react in a similar manner under similar circumstances. I believe he needs
more time to show his ability to make mature and reasoned decisions, as well as
demonstrate that he has learned from this incident.  For these reasons, I find that9
Applicant has not mitigated the government’s security concerns about his criminal
conduct. 
Overall, the record evidence leaves me with questions and 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 his past drug use, but
has not mitigated the government’s security concerns about his criminal conduct.
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by section E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline J: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Paragraph 2 Guideline H: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: For Applicant
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Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                                              
MARY E. HENRY
Administrative Judge