DOHA acted under Executive Order 10865, Safeguarding Classified Information within Industry (February1
20, 1990), as amended; Department of Defense Directive (DoD) 5220.6, Defense Industrial Personnel Security
Clearance Review Program  (January 2, 1992), as amended (Directive), and the adjudicative guidelines (AG)
effective within DoD on September 1, 2006. 
1
                                                             
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 08-05385
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Julie R. Mendez, Esquire, Department Counsel
For Applicant: Pro se
______________
Decision
______________
METZ, John Grattan, Jr., Administrative Judge:
On 5 June 2009 the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) to Applicant detailing security concerns under Guidelines
H, Drug Involvement and E, Personal Conduct.  Applicant answered the SOR 30 June1
2009, and requested a hearing. DOHA assigned the case to me 3 September 2009, and
I convened a hearing 22 September 2009. DOHA received the transcript (Tr.) 30
September 2009.
However, while Applicant admitted using marijuana (SOR 1.a) she specified that she did not use marijuana2
after 2000. And while she also admitted (SOR 2.b) that she did not disclose an agency denial of special
access in June 2005 on her July 2007 clearance application, she asserted the affirmative defense that she
was not aware of the denial until her subject interview in November 2007 (Answer, GE 4)
2
Findings of Fact
Applicant admitted the SOR allegations, except for SOR 1.d and 2.a.  She is a2
37-year-old sales manager employed by a defense contractor since May 2007. She
does not currently hold a clearance, but appears to have held one 2001–June 2005.
Applicant first applied for a clearance in about June 1999 (GE 6). Her initial
clearance application is not in the record, but she was interviewed by a government
investigator in August 1999. During the interview, which was reduced to a sworn
statement (GE 3), she disclosed that she had used marijuana, LSD, and cocaine during
her college years and for about a year thereafter. The sworn statement supports a
reasonable inference that she reported her drug abuse on the clearance application,
because she amended her estimate of marijuana use.
Applicant used marijuana once or twice per month between 1989 and June 1994.
She estimates she used it 50-55 times during that 4-5 years, in social settings (concerts,
parties) with classmates and roommates. She never purchased marijuana, although she
contributed $5-10 to the purchase once or twice while in college. She did not use
marijuana while she was home during summer breaks. 
Applicant used LSD eight times between fall 1989 and spring 1993. The LSD was
provided by college friends. She recalls using LSD in October 1989 at a rock concert,
March 1990 at a rock concert, and late-summer 1990 at a fraternity party. She used
occasionally at rock concerts the last few times she used it, the last time in March 1993.
Applicant used cocaine six times between December 1992 and April 1993 at
parties with her boyfriend, who was a cocaine user and provided her the drug. She
ended the relationship with this boyfriend because she realized that it was not the kind
of lifestyle she wanted.
Applicant foreswore any future drug use during her August 1999 interview,
stating that it was inconsistent with her personal and professional goals. Nevertheless,
she later reported using marijuana twice between 1994 and January 2000. During an
interview conducted by unsworn declaration in November 2007 (GE 4), she recalled
using marijuana once after 1994 at a party, and once at a New Year’s Eve party in
December 1999. On both occasions, she took a puff on a marijuana cigarette as it was
passed around the group. Her ex-husband, a marijuana user, was one of the group. At
the time, Applicant did not think about the potential consequences of her marijuana use,
but later regretted the use, and no longer associates with any of the people she used to
party with.
The government did not allege this omission as a falsification in the SOR.3
GE 5 is the intra-agency decision document. It is not addressed to Applicant and does not contain the4
examiner’s notes or any of the materials generated during the polygraph examination.
3
As a result of the June 1999 background investigation that closed in July 2001,
Applicant obtained her clearance from DOHA in April 2002 (GE 6). She apparently held
this clearance without incident until June 2004, when she changed employers. Her new
employer required a different level of access, and while her June 1999 investigation was
adequate for her interim clearance, the special access she needed required her to
complete a new clearance application in June 2004 (GE 2) and undergo a polygraph
examination by the government agency supported by her employer. GE 2 did not reflect
any drug use by Applicant within the last seven years.  She testified credibly (Tr. 53-54)3
that she relied on the advice of friends who had clearances in denying any drug use, but
later realized that choice was “stupid.”
The polygraph examination was conducted in November 2004. The areas of
inquiry were her failure to disclose any drug use on her June 2004 clearance
application, and discussion of her drug use since 1994.
Applicant has consistently stated (GE 4, Answer, Tr. 30) that she has not used
marijuana since the night in December 1999. She testified credibly that she told the
examiner this during the polygraph. However, she was nervous because she knew she
had falsified her clearance application, and during further questioning by the examiner
she disclosed that she had continued to associate with her ex-husband and attend
social events where marijuana was used, until May 2004. She did not believe there
were any unresolved issues when the examination was over.
In April 2005, the contract Applicant was working on expired, and she went to
work for a different company, one that did not require her to have a clearance (GE 1). In
March 2005, the government agency’s security division issued its clearance decision,
denying Applicant’s request for special access (GE 5).  According to GE 6, the4
government agency issued a denial letter in June 2005 that was received by DOHA
later that month. In July 2005, DOHA terminated Applicant’s clearances because of loss
of jurisdiction. The entry noted that Applicant had terminated employment, and the
adjudicative issue had not been resolved.
When Applicant completed her clearance application for her current job in July
2007 (GE 1), she said she had not used drugs in the last seven years (§24) and had
never had a clearance denied or revoked (§26). The SOR alleges that Applicant’s
answers were deliberately false, based on her purported disclosures recorded in GE 5,
that she continued to use marijuana sporadically until May 2004. Applicant denies
falsifying her application, credibly asserting that her last drug use was more than seven
years ago, and that she never received any notification of the denial of her request for
special access in June 2005. Nothing in GE 5 or 6 establishes that Applicant received
notice of the agency decision. Indeed, reasonable inferences from GE 5 and 6 support
GE 6 provides additional support for this conclusion. DOHA records the agency denial of special access in5
April 2005, reported by the mid-June 2005 denial letter. However, DOHA also records loss of jurisdiction
(which would occur when Applicant terminated employment) in July 2005. Allowing for reasonable
administrative delay by the employer, Applicant’s departure from the job in June 2005 may be inferred to have
not been reported until July 2005. In addition, DOHA did not reestablish jurisdiction until July 2007, when
Applicant submitted her most recent clearance application. Applicant’s interim clearance was denied by DOHA
in August 2007 based on the 2005 agency action, but an October 2007 entry that may be internally
inconsistent (and may be a data entry error) reports a final agency appeal decision dated mid-June 2007 (vice
2005) based on Applicant choosing to not appeal the 2005 denial decision. As there is no evidence Applicant
ever got notice of that decision, this may reflect nothing more than that the time for appeal expired without
communication from Applicant—which would be consistent with her not receiving notice of the original
decision.
4
her contention that she did not receive notice of the agency decision. The agency
decision document was dated late March 2005. The letter to DOHA was dated mid-June
2005, not received by DOHA until late-June 2005, and not entered into the clearance
database until July 2007. It unlikely that any denial letter sent to Applicant or her
employer was dated any earlier than mid-June 2005. Neither GE 5 nor 6 establish that
the denial letter was sent to Applicant or her employer, and any letter sent to her
employer would have been received after she left employment there, and moved to a
position where she did not require a clearance.5
Policies
The adjudicative guidelines (AG) list factors to be considered in evaluating an
applicant’s suitability for access to classified information. Administrative judges must
assess both disqualifying and mitigating conditions under each issue fairly raised by the
facts and circumstances presented. Each decision must also reflect a fair and impartial
commonsense consideration of the factors listed in AG ¶ 2(a). The presence or absence
of a disqualifying or mitigating condition is not determinative for or against an applicant.
However, specific adjudicative guidelines should be followed where a case can be
measured against them, as they represent policy guidance governing the grant or denial
of access to classified information. Considering the SOR allegations and the evidence
as a whole, the relevant adjudicative guidelines are Guideline H (Drug Involvement) and
Guideline E (Personal Conduct).
.
Security clearance decisions resolve whether it is clearly consistent with the
national interest to grant or continue an applicant’s security clearance. The government
must prove, by something less than a preponderance of the evidence, controverted
facts alleged in the SOR. If it does, it establishes a baseline case against access to
classified information. Applicant must then refute, extenuate, or mitigate the
government’s case. Because no one has a right to a security clearance, an applicant
bears a heavy burden of persuasion.
Persons with access to classified information enter into a fiduciary relationship
with the government based on trust and confidence. Therefore, the government has a
compelling interest in ensuring each Applicant possesses the requisite judgement,
See, Department of the Navy v. Egan, 484 U.S. 518 (1988).6
¶25.(a) any drug abuse ; (c) illegal drug possession, including cultivation, processing, manufacture, purchase,7
sale, or distribution; or possession of drug paraphernalia;
¶ 26.(a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that8
it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good
judgment [Emphasis supplied];
¶ 26.(b) a demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug9
using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an
appropriate period of abstinence;
5
reliability, and trustworthiness of those who must protect national interests as their own.
The “clearly consistent with the national interest” standard compels resolution of any
reasonable doubt about an Applicant’s suitability for access in favor of the government.6
Analysis
The government established a case for disqualification under Guideline H, by
demonstrating Applicant’s sporadic marijuana use between 1989 and December 1999.7
However, Applicant mitigated the security concerns. The issue in this case boils down to
which is a more credible statement of Applicant’s drug abuse history: her multiple
statements [sworn in August 1999 (GE 3), in her June 2009 Answer, and at hearing (Tr.
30); unsworn in November 2007 (GE 4)] or her purported statements made during a
November 2004 polygraph examination (GE 5). Either she last used marijuana in
December 1999, or she continued to use it until May 2004. I find her statements that
she last used marijuana in December 1999 more credible. She has consistently stated
since her interview in November 2007 that her last marijuana use was in December
1999. Those statements have now been subject to cross-examination at hearing, during
which I found her testimony credible. Her purported statements during her November
2004 polygraph examination were recorded by the agency adjudicator, one step
removed from the examination and its supporting documentation. Further, neither the
polygraph examiner nor the adjudicator have been cross-examined, and Applicant did
not have the opportunity to challenge the agency decision or the adjudicator’s or
examiner’s documentation. Finally, Applicant’s statement that she reported being in the
company of marijuana users and use until May 2004 provides a reasonable and
plausible explanation for the contents of GE 5.
Having accepted Applicant’s statements of her last marijuana use, I find use
mitigated by the age and infrequency of her marijuana use, the unlikelihood that the
circumstances of her marijuana use will recur, and the fact that her use approximately
10 years ago does not cast doubt on her judgment, reliability, or trustworthiness.  She8
has demonstrated intent to not abuse drugs in the future by her abstinence, her change
in associates, and her change of social environments.  Applicant is unlikely to use drugs9
in the future. Accordingly, I resolve Guideline H for Applicant.
6
The government failed to establish a case for disqualification under Guideline E.
Applicant denied using any illegal drugs after New Year’s Eve 1999 [and thus more than
the seven years called for on the July 2007 clearance application (GE 1)], and denied
any knowledge of the denial of her request for special access (thus truthfully stating that
to her knowledge she had never had a clearance or access denied or revoked). The
government had the burden to establish that Applicant used marijuana after December
1999 and was aware of the agency decision on her request for special access in June
2005. Applicant credibly denied receiving any notice of the agency decision, and not
only do the government exhibits fail to prove otherwise, they tend to confirm her
statements. GE 5 is not addressed to Applicant, and while GE 6 indicates the existence
of a June 2005 denial letter, the government has not produced that letter, so its contents
and addressees (aside from DOHA) are unknown. GE 1 reflects, and GE 6, tends to
corroborate, that Applicant first applied for a clearance in about June 1999. Her August
1999 sworn statement (GE 3) shows that she was investigated, that she  disclosed her
drug use on her clearance application, and thoroughly discussed her drug use. GE 6
shows the completion of her initial background investigation, and subsequent clearance.
GE 1 and 2 show that she moved to a different job in June 2004, that required a
polygraph examination, and GE 5 confirms Applicant’s claim that the polygraph
occurred. However, GE 1 shows, and GE 6 confirms, that Applicant left that job in about
April 2005, before the results of GE 5 were sent to DOHA in June 2005. GE 6 confirms
that DOHA lost jurisdiction over Applicant’s clearance when she terminated the
employment that required the clearance. That July 2005 entry reflects that the security
issue was not resolved, and neither GE 5 nor 6 establish that Applicant was advised of
the agency’s denial of her request for special access. GE 6 also shows that DOHA did
not reestablish jurisdiction over Applicant’s clearance until her July 2007 application. GE
4, Applicant’s answer, and her testimony (Tr. 30) establish that she first learned of the
agency decision to deny her request for special access during her interview in
November 2007. Neither GE 5 nor 6 contain any evidence to contradict that claim.
Regarding the extent and dates of Applicant’s marijuana use, she has
consistently and directly stated that her last use was December 1999. I found her
testimony on this issue credible. The contrary evidence in GE 5 I find unpersuasive for
several reasons. First, GE 5 is the intra-agency decisional document, and reflects the
author’s conclusions about what the polygraph examiner recorded as Applicant’s
disclosures. The supporting notes and materials are not in the record. Second, the
record suggests that not only was Applicant not aware of any access decision made
based on GE 5, she never had an opportunity to challenge the “fact” recorded by the
examiner or contest the denial decision. Assuming all good-faith by the examiner and
the absence of any motive to report Applicant’s disclosures inaccurately, the fact
remains that Applicant’s suggestion that her admissions to attending social events when
marijuana was used as late as May 2004 were misinterpreted by the examiner as
indicating continued drug use by Applicant is reasonable. And without any opportunity to
correct or contest the examiner’s records, I will not find GE 5 conclusive evidence of
drug use after December 1999 in the face of Applicant’s consistent representations to
the contrary. Having found that Applicant’s answers to §§ 24 and 26 were truthful (as
known to her at the time regarding §26), no case for disqualification because of
7
falsification has been made. The allegation (SOR 2.c) that Applicant used marijuana in
December 1999 after submitting a clearance application in June 1999 is insufficient
standing alone to establish poor judgment requiring denial of her clearance. I resolve
Guideline E for Applicant. Nothing in the whole-person factors of AG &2(a) requires a
different result.
Formal Findings
Paragraph 1. Guideline H: FOR APPLICANT
Subparagraph a-e: For Applicant
Paragraph 2. Guideline E: FOR APPLICANT
Subparagraph a-c: For Applicant
Conclusion
In light of all the circumstances presented by the record in this case, it is clearly
consistent with the national interest to grant or continue a security clearance for
Applicant. Clearance granted.  
                                              
                                             
JOHN GRATTAN METZ, JR
Administrative Judge