DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------------- )       ISCR Case No. 09-00524
SSN: ----------------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Julie R. Mendez, Department Counsel
For Applicant: Pro se
April 23, 2010
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Decision
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LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted his Electronic Questionnaire for Investigations Processing
(e-QIP) on March 29, 2007.  (Government 4.)  On August 10, 2009, the Defense Office
of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the
security concerns under Guidelines H, G and E 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 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. 
 
The Applicant responded to the SOR in writing on September 8, 2009, in which
he elected to have the case determined on a written record in lieu of a hearing.
Department Counsel submitted  the Government’s File of Relevant Material (FORM) to
the Applicant on October 14, 2009.  The Applicant was instructed to submit information
in rebuttal, extenuation or mitigation within 30 days of receipt.  Applicant received the
FORM on October 22, 2009, and he submitted no reply.  The case was assigned to the
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undersigned for resolution on January 11, 2010.  Based upon a review of the case file,
pleadings and exhibits, eligibility for access to classified information is denied.
FINDINGS OF FACT
The Applicant is 29 years old.  He is employed by a defense contractor as a
Graphics Specialist, and is applying for a security clearance in connection with his
employment.
Department Counsel, pursuant to Paragraph E.3.1.13. of DoD Directive 5220.6,
moved to amend the Statement of Reasons by striking portions of the original SOR.
Specifically, to strike subparagraph 2.d in its entirety, and in subparagraph 3a, to strike
the language “and 2d”.  Applicant made no objection.  Said amendments were so
ordered.  
Paragraph 1 (Guideline E - Personal Conduct).  The Government alleges that the
Applicant is ineligible for clearance because he intentionally falsified material aspects of
his personal background during the clearance screening process.  
The Applicant admitted each of the allegations set forth in the SOR under this
guideline.  The Applicant completed an Electronic Questionnaire for National Security
Positions (e-QIP) on March 29, 2007.  Question 24(a), asked him if since the age of
sixteen or in the last seven years which is shorter, had he used any illegal substance?
The Applicant answered, “NO.”  (Government Exhibit 4.) This was a false answer.  The
Applicant failed to list that he used marijuana from about 1999 to about 2006.
(Government Exhibits 3 and 5.)  
Question 24(c), asked him if in the last seven years, had he been involved in the
illegal purchase, manufacture, trafficking, production, transfer, shipping, receiving, or
sale of any narcotic depressant, stimulant, hallucinogen, or cannabis for his own
intended profit or that of another?  The Applicant answered, “NO.”  (Government Exhibit
4.)  This was a false answer.  The Applicant failed to list that he had purchased and sold
marijuana from about 2001 through about 2006, as set forth below.  (Government
Exhibits 3 and 5.)      
The Applicant completed the security clearance application in March 2007, less
than a year since his last admitted drug use.  He told the government investigator that
he failed to disclose his drug sales history because he was never charged or arrested.
(Government Exhibit 5.)  The question does not ask about arrests or convictions, merely
if an Applicant has been involved in the illegal purchase or sale.  (Government Exhibit
4.)      
Paragraph 2 (Guideline H - Drug Involvement). The Government alleges that the
Applicant is ineligible for clearance because he abuses illegal drugs.
The Applicant admitted each of the allegations set forth in the SOR under this
guideline.  The Applicant used marijuana twice in high school in 1999.  His marijuana
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use increased in college to about two to three times per month.  He states that he
limited his marijuana use to the weekends, and continued using it until at least April
2006, after leaving college.  During this period, the Applicant purchased the marijuana
for his own use, or obtained it from his roommate.  He states that he used marijuana out
of boredom and it was just something to do before going out and partying with friends.
(Government Exhibit 5.)
From 2001 to 2006, the Applicant became involved in the sale and distribution of
marijuana.  In 2001, while attending college, he met an individual (A) who sold him 5
pound increments of marijuana.  Applicant would in turn break it up into smaller
amounts, usually 1/4 ounce to sell at the university and in the surrounding areas.
Applicant estimates that he sold marijuana to three to five persons per weekend from
his apartment.  Applicant used the proceeds of his drug sales for general entertainment
activities and to buy marijuana for his own use.  (Government Exhibit 5.)  
In April 2006, Applicant’s friend (A), was arrested and charged with Conspiracy to
Distribute and Possess With Intent to Distribute Cocaine and Possession with Intent to
Distribute Cocaine resulting in significant prison time and forfeiture of significant assets.
(Government Exhibit 6.)  As a result of (A)’s arrest, the Applicant was admittedly
brought in for questioning by the FBI in late 2006, and questioned regarding his
involvement in the buying and selling of drugs.  Applicant has not admitted any cocaine
drug sales and states that he did not know the details of A’s drug operation.  Applicant
states that his last contact with A was in April 2006 and has had no further contact with
him since then.         
Paragraph 3 (Guideline J - Criminal Conduct).  The Government alleges that the
Applicant is ineligible for clearance because he has engaged in criminal activities. 
The Applicant admitted each of the allegations set forth in the SOR under this
guideline.  The Applicant deliberately sought to conceal his marijuana use from 1999 to
2006, and his purchase and sale of marijuana from 2001 to 2006.  By intentionally
concealing this information from the Government on his security clearance application
of March 2007, he violated federal law, Title 18, United States Code, Section 1001, a
felony.   
The Applicant admits that he has made a series of poor decisions in the past.  He
regrets his actions and is now trying to move forward with his life in a positive direction.
He is going back to school, and redirecting his life and has no desire to ever engage in
the criminal activities of the past.  He states that he is trying to reconcile his former
transgressions.  (Government Exhibit 3.)  
POLICIES
Enclosure 2 and Section E.2.2. of the Directive sets forth adjudication policies
divided into "Disqualifying Factors" and "Mitigating Factors."  The following Disqualifying
Factors and Mitigating Factors are found to be applicable in this case:
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Guideline E (Personal Conduct)
15.  The Concern.  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.
Conditions that could raise a security concern:
16. (a) 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 clearance eligibility or trustworthiness, or award fiduciary
responsibilities.
Conditions that could mitigate security concerns:
None.
Guideline H (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.
Conditions that could raise a security concern:
25.(a) any drug abuse;
25.(c) illegal drug possession, including cultivation, processing, manufacture,
purchase, sale or distribution; or possession of drug paraphernalia;
25.(g) any illegal drug use after being granted a security clearance.
Conditions that could mitigate security concerns:
None.
Guideline J (Criminal Conduct)
30.  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.
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Conditions that could raise a security concern:
31.(a) a single serious crime or multiple lesser offenses; 
31.(c) allegation or admission of criminal conduct, regardless of whether the
person was formally charged, formally prosecuted or convicted. 
Condition that could mitigate security concerns:
None.
In addition, as set forth in Enclosure 2 of the Directive at pages 18-19, in
evaluating the relevance of an individual’s conduct, the Administrative Judge should
consider the following general factors:
a.  The nature, extent, and seriousness of the conduct;
b. The circumstances surrounding the conduct, to include knowledgeable
participation;
c.  The frequency and recency of the conduct;
d.  The individual’s age and maturity at the time of the conduct;
e.  The extent to which participation is voluntary;
f.  The presence or absence of rehabilitation and other permanent behavioral
changes;
g.  The motivation for the conduct; 
h. The potential for pressure, coercion, exploitation or duress; and 
i.  The likelihood of continuation or recurrence.
The eligibility criteria established in the DoD Directive identify personal
characteristics and conduct which are reasonably related to the ultimate question,
posed in Section 2 of Executive Order 10865, of whether it is “clearly consistent with the
national interest” to grant an Applicant’s request for access to classified information.
The DoD Directive states, “The adjudicative process is an examination of a
sufficient period of a person’s life to make an affirmative determination that the person is
an acceptable security risk.  Eligibility for access to classified information is predicated
upon the individual meeting these personnel security guidelines.  The adjudicative
process is the careful weighing of a number of variables known as the whole-person
concept.  Available, reliable information about the person, past and present, favorable
and unfavorable should be considered in reaching a determination.”  The Administrative
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Judge can draw only those inferences or conclusions that have reasonable and logical
basis in the evidence of record.  The Judge cannot draw inferences or conclusions
based on evidence which is speculative or conjectural in nature.  Finally, as emphasized
by President Eisenhower in Executive Order 10865, “Any determination under this order
. . . shall be a determination in terms of the national interest and shall in no sense be a
determination as to the loyalty of the Applicant concerned.
CONCLUSIONS
In the defense industry, the security of classified industrial secrets is entrusted to
civilian workers who must be counted upon to safeguard such sensitive information
twenty-four hours per day, seven days per week.  The Government is therefore
appropriately concerned when available information indicates that an Applicant for
clearance may be involved in drug abuse, alcohol abuse and poor personal conduct that
demonstrates poor judgment or unreliability.
It is the Government’s responsibility to present substantial evidence to support
the finding of a nexus, or rational connection, between the Applicant’s conduct and the
continued holding of a security clearance.  If such a case has been established, the
burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation
or mitigation, which is sufficient to overcome or outweigh the Government’s case.  The
Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent
with the national interest to grant him a security clearance.
In this case the Government has met its initial burden of proving that the
Applicant has falsified his security clearance application, (Guideline E), has a history of
drug involvement (Guideline H), and criminal conduct (Guideline J).  The totality of this
evidence indicates poor judgment, unreliability and untrustworthiness on the part of the
Applicant.  Because of the scope and nature of the Applicant's conduct, I conclude there
is a nexus or connection with his security clearance eligibility.
Considering all of the evidence, the Applicant has not introduced persuasive
evidence in rebuttal, explanation or mitigation that is sufficient to overcome the
Government's case under Guidelines E, H and J of the SOR.  
The Applicant intentionally failed to disclose his marijuana use, and his purchase
and sale, in response to questions 24.(a) and 24.(d) of his security clearance application
of March 2007.  Under Guideline E, Personal Conduct, Disqualifying Condition 16.(a)
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 clearance eligibility or trustworthiness, or award fiduciary
responsibilities applies.  None of the mitigating conditions are applicable.
Consequently, I find against the Applicant under Guideline E, Personal Conduct.  
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The evidence also shows that the Applicant used, purchased and sold marijuana
for profit as recently as 2006, and was questioned by the FBI regarding this illegal
conduct.  Under Guideline H, Drug Involvement, Disqualifying Conditions 25.(a) any
drug abuse, 25.(c) illegal drug possession, including cultivation, processing,
manufacture, purchase, sale or distribution, or possession of drug paraphernalia, and
25.(g) any illegal drug use after being granted a security clearance apply.  None of the
mitigating conditions are applicable.  Accordingly, I find against the Applicant under
Guideline H, Drug Involvement. 
The Applicant’s use, purchase and sale of marijuana is criminal and dangerous.
By falsifying his security clearance application, the Applicant violated federal law, Title
18, United States Code, Section 1001, a felony.  Under Guideline J (Criminal Conduct),
Disqualifying Conditions 31.(a) a single serious crime or multiple lesser offenses, and
31.(c) allegation or admission of criminal conduct, regardless of whether the person was
formally charged, formally prosecuted or convicted apply.  None of the mitigating
conditions are applicable.  Accordingly, I find against the Applicant under Guideline J,
Criminal Conduct.   
I have also considered the “whole-person concept” in evaluating the Applicant’s
eligibility for access to classified information.  Under the particular facts of this case, the
totality of the conduct set forth under all of the guidelines viewed as a whole, support a
whole-person assessment of poor judgment, untrustworthiness, unreliability, a lack of
candor, an unwillingness to comply with rules and regulations, and/or other
characteristics indicating that the person may not properly safeguard classified
information.  
This Applicant has demonstrated that he is not trustworthy, and does not meet
the eligibility requirements for access to classified information.  Accordingly, I find
against the Applicant under Guideline E (Personal Conduct), Guideline H (Drug
Involvement), and Guideline J (Criminal Conduct).     
On balance, it is concluded that the Applicant has failed to overcome the
Government's case opposing his request for a  security clearance.  Accordingly, the
evidence supports a finding against the Applicant as to the factual and conclusionary
allegations expressed in Paragraphs 1, 2 and 3 of the SOR.
FORMAL FINDINGS
Formal findings For or Against the Applicant on the allegations in the SOR, as
required by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: Against the Applicant.
    Subpara.  1.a.: Against the Applicant.
    Subpara.  1.b.: Against the Applicant.
   
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Paragraph 2: Against the Applicant.
    Subpara.  2.a.: Against the Applicant.
    Subpara.  2.b.: Against the Applicant.
    Subpara.  2.c.: Against the Applicant.
Paragraph 3: Against the Applicant.
    Subpara.  3.a.: Against the Applicant.
    Subpara.  3.b.: Against the Applicant.
DECISION
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 a security clearance for
the Applicant.
Darlene Lokey Anderson
Administrative Judge