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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 08-11600
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Pro se
May 4, 2010
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Decision
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CEFOLA, Richard A., Administrative Judge:
The Applicant submitted his Electronic Questionnaires for Investigations
Processing (e-QIP), on June 27, 2008.  On October 29, 2009, the Defense Office of
Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the
security concerns under Guidelines H, J and E for the 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 acknowledged receipt of the SOR on November 2, 2009.  He
answered the SOR in writing on November 15, 2009, and requested a hearing before
an Administrative Judge.  DOHA received the request on November 20, 2009, and I
received the case assignment on January 12, 2010.  DOHA issued a notice of hearing
that same day, and I convened the hearing as scheduled on January 28, 2010.  The
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Government offered Exhibits (GXs) 1 through 4, which were received without objection.
The Applicant testified on his own behalf.  DOHA received the transcript of the hearing
(TR) on February 4, 2010.  I granted the Applicant’s request to keep the record open
until March 1, 2010, to submit additional matters.  On February 26, 2010, and again on
March 1, 2010, he submitted Exhibits (AppXs) A and B, which were received without
objection.  The record closed on March 1, 2010.  Based upon a review of the case file,
pleadings, exhibits, and testimony, eligibility for access to classified information is
denied.
Findings of Fact
In his Answer to the SOR, the Applicant admitted all of the factual allegations of
the SOR, with explanations.  He also provided additional information to support his
request for eligibility for a security clearance.
Drug Involvement
1.a.~1.d.  The Applicant was involved with crack cocaine, and to a lesser extent
marijuana, from about 1989 until his last usage of cocaine in December of 2007. (TR at
page 20 line 2 to page 24 line 4, and at page 42 line 10 to page 43 line 17.)  He was
also involved in the sale of cocaine.  (TR at page 25 line 25 to page 26 line 15.)  The
Applicant’s involvement was periodic, and his older brother, a drug abuser, was a great
influence on the Applicant.  (TR at page 20 line 2 to page 24 line 4.)  In 2004, he was
depressed as his sister was diagnosed with cancer.  (GX 2 at page 5.)  “During a 3-4
week period,” he used “‘crack cocaine’ on 3-4 occasions.”  (Id.)  In 2004, he also tested
positive for cocaine.  (TR at page 24 line 23 to page 25 line 20.)
1.e.  As a result of his drug involvement, the Applicant was arrested twice, once
in December of 1986, and again in April of 1988.  (TR at page 28 line 9 to page 30 line
18.)  Both arrests are cross referenced as Criminal Conduct; and as such, will be
discussed at length under Paragraph 2 of the SOR.
Criminal Conduct
2.a.  In 1977, the Applicant was arrested for, and subsequently found guilty of,
two counts of Robbery.  (GX 4 at page 3.)  He drove the getaway car for his brother,
who unbeknownst to the Applicant, had “robbed a store.”  (TR at page 27 line 3 to page
28 line 8.)  As a result of his involvement, the Applicant was sentenced to six months in
jail, and was placed on probation for three years.  (TR at page 27 line 3 to page 28 line
8, and GX 4 at page 3.)
2.b.  In December of 1986, the Applicant was arrested and subsequently charged
with Possession of a Controlled Substance.  (GX 4 at page 3.).  He was in a park with a
couple of friends, one of whom was in the possession of drugs.  (TR at page 28 line 9 to
page 30 line 1.)  The Applicant was unaware of this possession, but all were arrested.
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(Id.)  The charge against the Applicant was ultimately dismissed.  (TR at page 28 line 9
to page 30 line 1, and GX 4 at page 3.)
2.c.  In April of 1988, the Applicant was arrested for, and subsequently found
guilty of two felonies, Possession of Rock Cocaine and Possession/Purchase of
Cocaine Base for Sale.  (GX 4 at page 3.).  He was very much influenced by his older
brother; and as a result, although he was found guilty, he was only sentenced to attend
Narcotics Anonymous meetings, to community service, and was placed on probation for
three years.  (TR at page 30 lines 2~18.)
2.d.  In July of 1990, the Applicant was arrested and subsequently charged with
being a Felon in Possession of a Gun/Firearm, and Battery on a Person.  (GX 4 at page
3.)  The Applicant’s bother, who had a key to the Applicant’s apartment, secreted a
firearm on the premises.  (TR at page 31 lines 13~25, and at page 32 line 21 to page 34
line 14.)  The police were called to the apartment in response to a domestic disturbance
involving the Applicant and his girl friend, and found the gun.  (Id.)  The charges against
the Applicant were ultimately dismissed.  (TR at page 31 lines 13~25, and at page 32
line 21 to page 34 line 14, and GX 4 at page 3.)
2.e.  In June of 1999, the Applicant was arrested and subsequently pled guilty to
Driving Under the Influence.  (GX 3 at page 4.)  He had consumed “a few beers” prior to
this arrest.  (TR at page 34 line 15 to page 35 line 11.)  The Applicant, in part, was
placed on probation for five years, fined and ordered to attend Alcoholics Anonymous
meetings.  (TR at page 34 line 15 to page 35 line 11 and GX 3 at page.)
2.f.  In October of 2003, the Applicant was arrested and charged with of Driving
Under the Influence (DUI).  He had consumed “a couple beers . . . three to four hours”
prior to this arrest.  (TR at page 35 line 14 to page 38 line 10.)  As he was not over the
legal blood/alcohol limit when driving, this case was nolle prossed.  (Id.)
Personal Conduct
3.a.  On Applicant’s June 2008 e-QIP, Section 24a asks about “Use of Illegal
Drugs or Drug Activity . . . Since the age of 16 or in the last 7 years,” to which the
Applicant answered, “No.”  (GX 1 at page 30.)  He answered, “No,” as “it was an
embarrassment.”  (TR at page 38 line 13 to page 39 line 20.)  This is a wilful
falsification.
3.b.  On Applicant’s June 2008 e-QIP, Section 23a asks about “Your Police
Record . . . Have you ever been charged with or convicted of any felony offense,” to
which the Applicant answered, “No.”  (GX 1 at page 29, emphasis supplied.)  He
answered, “No,” as he “was under the impression that anything under three to seven
years, . . . [he] didn’t have to list.”  (TR at page 38 line 13 to page 39 line 20.)  In 1977,
he was charged and convicted of two counts of Robbery.  In 1988, he was charged and
convicted of two drug charges, both felonies.  Finally, in July of 1990, he was charged
with being a Felon in Possession of a Gun/Firearm.  His explanation is not believable,
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as the language in the question is in plain English and there is no reference to a 3~7
year window of disclosure.  This is a wilful falsification.
3.c.  On Applicant’s June 2008 e-QIP, Section 23b asks about “Your Police
Record . . . Have you ever been charged with or convicted of a firearms or explosives
offense,” to which the Applicant answered, “No.”  (GX 1 at page 29, emphasis supplied.)
Again, he answered, “No,” as he “was under the impression that anything under three to
seven years, . . . [he] didn’t have to list.”  (TR at page 38 line 13 to page 39 line 20.  In
July of 1990, he was charged with being a Felon in Possession of a Gun/Firearm.  His
explanation is not believable, as the language of the question is in plain English and
there is no reference to a 3~7 year window of disclosure.  This is a wilful falsification.
3.d.  On Applicant’s June 2008 e-QIP, Section 23d asks about “Your Police
Record . . . Have you ever been charged with or convicted of any offense(s) related to
alcohol or drugs,” to which the Applicant answered, “No.”  (GX 1 at page 30, emphasis
supplied.)  He answered, “No,” as he “was under the impression that anything under
three to seven years, . . . [he] didn’t have to list.”  (TR at page 38 line 13 to page 39 line
20.  In December of 1986, he was charged with Possession of a Controlled Substance.
In 1988, he was charged and convicted of two drug charges.  Finally, in June of 1999
and again in October of 2003, he was charged with DUIs.  His explanation is not
believable, as the language of the question is in plain English and there is no reference
to a 3~7 year window of disclosure.  This is a wilful falsification.
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 over-arching
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.
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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 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
Paragraph 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 also notes several conditions that could raise security concerns.
Under Subparagraph 25(a), “any drug abuse” may be disqualifying.  In addition, ”illegal
drug possession, including . . . sale” under Subparagraph 25(c) may also be
disqualifying.  Here, the Applicant used crack cocaine, and to a lesser extent marijuana,
from about 1989 until his last usage of cocaine in December of 2007.  I find no
countervailing mitigating condition that is applicable, as the Applicant last used cocaine
only two years prior to his hearing.
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Guideline J - Criminal Conduct
Paragraph 30 of the new adjudicative guidelines sets out the security concern
relating 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.
The adjudicative guidelines set out certain conditions that could raise security
concerns.  Paragraph 31(a) provides that “a single serious crime or multiple lesser
offenses,@ may raise security concerns.  As the Government does not allege the drug
involvement or the wilful falsifications as Criminal Conduct, the Applicant’s last culpable
act of Criminal Conduct was in June of 1999, when he was charged with and convicted
of a DUI, more than 10 years ago.  However, the first countervailing mitigation is not
applicable, for although “much time has elapsed since the criminal behavior,” it is likely
“to recur,” and does “cast doubt on the individual’s reliability, trustworthiness, or good
judgment.”  Since 1999, the Applicant has abused drugs, and has repeatedly falsified
his June 2008 e-QIP.
Guideline E - Personal Conduct
The security concern relating to the guideline for Personal Conduct is set out in
AG Paragraph 15:
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.
The guideline notes several conditions that could raise security concerns.  Under
Subparagraph 16(a), “deliberate omission, concealment, or falsification of relevant facts
from an personnel security questionnaire . . . or similar form . . . .”  Here, the Applicant
falsified his answers to Sections 23 and 24 on his June 2008 e-QIP.  No mitigating
conditions 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 the circumstances.  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.
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The Administrative Judge should also 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.
I considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  The Applicant has the unqualified support
of his colleagues, his sister, and his pastor.  (AppXs A and B.)  However, the record
evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability
for a security clearance.  He was clearly less than candid with the Government on his e-
QIP.  Furthermore, his past Drug Involvement and Criminal Conduct is fairly extensive.
For all these reasons, I conclude Applicant has not mitigated the security concerns
arising from his Drug Involvement, Criminal Conduct 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
Paragraph 2, Guideline J: AGAINST APPLICANT
Paragraph 3, Guideline E: AGAINST APPLICANT
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.
Richard A. Cefola
Administrative Judge