DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
-------------------------- )       ISCR Case No. 09-01070
SSN: ------------------ )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Department Counsel
For Applicant: Joseph A. Testan, Attorney At Law
June 21, 2010
______________
Decision
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LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted his Electronic Questionnaire for Investigations Processing
(e-QIP) on July 3, 2008.  (Government Exhibit 1.)  On October 23, 2009, the Defense
Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing
the security concerns under Guidelines H, E and B 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 (DoD) for SORs
issued after September 1, 2006. 
 
The Applicant responded to the SOR on November 9, 2009, wherein he
requested a hearing before a DOHA Administrative Judge.  This case was assigned to
the  Administrative Judge on December 8, 2009.  A notice of hearing was issued on
January 8, 2010, scheduling the hearing for March 9, 2010.  At the hearing the
Government presented three exhibits, referred to as Government Exhibits 1 to 3, which
were admitted without objection.  The Applicant presented two exhibits, referred to as
Applicant’s Exhibits A and B, and called two witnesses.  He also testified on his own
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behalf.  The official transcript (Tr.) was received on March 22, 2010.  Based upon a
review of the case file, pleadings, exhibits, and testimony, eligibility for access to
classified information is denied.
REQUEST FOR ADMINISTRATIVE NOTICE
Applicant’s Counsel requested that I take administrative notice of certain facts
concerning the current political condition in Colombia that were set forth in
Administrative Notice document 1, particularly page 7, paragraphs 3 and 4.  Department
Counsel had no objection.  The document was not admitted into evidence but was
included in the record.  The facts administratively noticed are set out in the Findings of
Fact, below. 
FINDINGS OF FACT
The Applicant is 26 years old and has a Bachelors Degree in Aerospace
Engineering.  He is employed by a defense contractor as an Engineer and is applying
for a security clearance in connection with his employment.  
Paragraph 1 (Guideline H - Drug Involvement). The Government alleges that the
Applicant is ineligible for clearance because he abuses illegal drugs.
The Applicant admitted allegations 1(a), 1(b), 1(c) and 1(e), and denies allegation
1(d) of the SOR set forth under this guideline.  (Applicant’s Answer to SOR.)  The
Applicant used marijuana in total about 100 times and cocaine at least once, between
the period from 1996 to June 2009.  
He started using marijuana at the young age of thirteen, and used it four or five
times through high school.  (Tr. p. 40.)  Beginning in his second year of college, he
started using marijuana on a weekly basis.  He continued to use it weekly until about
2005.  In 2007, he graduated from college, and has used it less than ten times since
then.  (Tr. p. 41.)  He states that he used marijuana once in February 2008, and once in
July 2008, while on trips to Canada, where he also purchased it.  He used marijuana
most recently about five times in June 2009, while on vacation in the Bahamas, where
he also purchased it.  (Tr. pp. 42-43 and 86.)  
In June 2008, the Applicant started working for his current employer.  He
completed a security clearance application in July 2008.  During an interview with the
Defense Department in August 2008, the Applicant indicated to the investigator that he
may use marijuana in the future.  (Tr. p. 45.)  Applicant testified that he Applicant knew
that his use of marijuana is illegal, against company policy and against DoD regulation.
(Tr. pp. 75-82 and 87.)  Despite this, he made the choice to use marijuana again in June
2009.  (Tr. p. 86.)  Applicant stated that when he received the interrogatories from the
DoD, and after speaking to a co-worker about his marijuana use, he decided to stop
using marijuana altogether.  (Tr. p. 43.)  Applicant presented an undated statement
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wherein he promises not to use marijuana or any other illegal drug ever again with the
understanding that if he violates his promise, his security clearance would be
automatically revoked.  (Applicant’s Exhibit B.)
     
The Applicant used cocaine on one occasion in March 2007, while on vacation in
Mexico.  The Applicant explained that he was at a bar when some locals offered him a
cocaine taste.  He took the taste, not wanting to offend the locals and put a dab on his
lips and gums, and they became numb.  (Tr. p. 53.)  He was then asked if he wanted to
purchase it, and he declined. 
Paragraph 2 (Guideline E - Personal Conduct).  The Government alleges that the
Applicant is ineligible for clearance because he has engaged in conduct involving
questionable judgment, lack of candor, dishonesty, or an unwillingness to comply with
rules and regulations.  
The Applicant admits allegation 2(a) and denies allegation 2(b) of the SOR set
forth under this guideline.  (Applicant’s Answer to SOR.)  The Applicant completed a
security clearance application dated July 3, 2008.  Question 24(a) asked him if since the
age of 16 or in the last 7 years, whichever is shorter, had he illegally used any
controlled substance.  The Applicant responded, “Yes,” and listed marijuana, and the
dates of September 2003 and February 2008.  The Applicant explained that his more
frequent use of marijuana started in September 2003, and his last date of use occurred
in February 2008.  
Applicant further explained that he did not list cocaine on his security clearance
application because he does not believe he has used it as described above.  (Tr. p. 55).
He does not believe that he was under the influence of the drug and therefore was not
deliberately lying in response to the question by not listing it. 
Paragraph 3 (Guideline B - Foreign Influence).  The Government alleges in this
paragraph that the Applicant is ineligible for clearance because he has foreign contacts
that could create the potential for foreign influence that could result in the compromise
of classified information.
The Applicant admits the allegation of the SOR set forth under this guideline.
(Applicant’s Answer to SOR.)  The Applicant was born in Colombia and has lived in the
United States since he was six years old.  All of his immediate family members from
Colombia, have moved to the United States and have become United States citizens.
He has an aunt and a cousin (his mother’s sister and her daughter), who are citizens of
Colombia and currently reside with the Applicant in his parents home.  They were
sponsored by the Applicant’s mother in 1998, and both currently have a green card.  His
aunt is a nanny, and his cousin is a full time student.  They have lived in the Applicant’s
mother’s home for the past ten years.  They petitioned for permanent residency in 2001,
and intend to become American citizens.  Neither of them have any affiliation with the
Colombian government.  The Applicant provides no financial support to either foreign
relative and feels no sense of obligation to them.  Applicant also has relatives in
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Colombia on both his mother and father’s side of the family, but has no contact with
them what so ever.    
I have taken official notice of the following facts concerning Colombia.  Colombia
is the third-most populous country in Latin America, after Brazil and Mexico.  In 1822,
the United States became one of the first countries to recognize the new republic and to
establish a resident diplomatic mission.  Over the years, the United States and
Colombia have signed many important agreements addressing the issues of
environment, civil aviation, chemical control, and maritime ship boarding to allow for
search of suspected drug running vessel.  Since 2007, nearly $570 million have been
invested only in socio-economic and humanitarian assistance to Colombia.  In
November 2009, a new multi-year Country Assistance Agreement with the Government
of Colombia was signed with first year funding of nearly $212 million.  The agreement
brings continuity to the socio-economic and humanitarian assistance that the United
States Government implements in the country.  The United States has continued close
cooperation with Colombia concerning terrorism and the illicit narcotics trade.  The
United States policy toward Colombia supports the Colombian Government’s efforts to
strengthen its democratic institutions, promote respect for human rights and the rule of
law, foster socio-economic development, address immediate humanitarian need, and
end the threats to democracy posed by narcotics trafficking and terrorism.  Promoting
security, stability, and prosperity in Colombia will continue as long term American
interests in the region.         
   
Two witnesses testified on behalf of the Applicant.  His girlfriend, who has known
him for two years, and who does not use any illegal drugs, testified that she believes the
Applicant to be reliable, trustworthy, and a man of his word.  She does not believe that
he will ever use any illegal drug again.  (Tr. pp. 22-24.) 
The Applicant’s uncle, who has known the Applicant for the past twenty years
testified that the Applicant is honest, trustworthy and a man of his word.  He believes he
will follow through with his commitment to refrain from illegal drug use.  (Tr. pp. 27-30). 
Twelve letters of recommendation from the Applicant’s supervisor, coworkers,
professional associates and friends, who have had daily contact with the Applicant at
work, consider him to be honest, reliable and trustworthy.  He is said to be bright,
articulate and eager to learn and perform.  He has always exercised good judgment and
is highly recommended for a position of trust.  (Applicant’s Exhibit A.)  
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 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.
Conditions that could mitigate security concerns:
None.
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.
Condition 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.
Foreign Influence
6.  The Concern.  Foreign contacts and interests may be a security concern if the
individual has divided loyalties or foreign financial interests, may be manipulated or
induced to help a foreign person, group, organization, or government in a way that is not
in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest.
Adjudication under this Guideline can and should consider the identity of the foreign
country in which the foreign contact or financial interest is located, including, but not
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limited to, such considerations as whether the foreign country is known to target United
States citizens to obtain protected information and/or is associated with a risk of
terrorism.
Conditions that could raise a security concern:
7.  (a) contact with a foreign family member, business or professional associate,
friend, or other person who is a citizen of or resident of a foreign country if that contact
creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or
coercion; 
7.  (d) sharing living quarters with a person or persons, regardless of citizenship
status, if that relationship creates a heightened risk of foreign inducement, manipulation,
pressure, or coercion;
Conditions that could mitigate security concerns:
8. (a) the nature of the relationships with foreign persons, the country in which
these persons are located, or the positions or activities of those persons in that country
are such that it is unlikely the individual will be placed in a position of having to choose
between the interests of a foreign individual, group, organization, or government and the
interests of the U.S;
8. (b) there is no conflict of interest, either because the individual’s sense of
loyalty or obligation to the foreign person, group, government, or country is so minimal,
or the individual has such deep and longstanding relationships and loyalties in the U.S.,
that the individual can be expected to resolve any conflict of interest in favor of the U.S.
interest.
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;
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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
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, personal conduct, and foreign contacts 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 a history of illegal drug use (Guideline H), the appearance of dishonesty
(Guideline E) and foreign influence (Guideline B).  The totality of this evidence indicates
poor judgment, unreliability and untrustworthiness on the part of the Applicant.  Because
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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.  
The Applicant has used marijuana while working for a defense contractor.  He
knew at the time that the use of marijuana is illegal, against company policy, and
against DoD regulation.  His most recent use of any controlled substance occurred in
June 2009, just last year.  Furthermore, during an interview with a DoD investigator in
August 2008, he stated that he may use illegal drugs in the future.  He later changed his
statement indicating that he will never use any illegal drug in the future, and consents to
having his security clearance automatically revoked if he does.  Given his past history,
there is no guarantee that he will remain drug free in the future or that his word can be
relied upon.  Although the probability is low that he will return to drug use, the possibility
exists, and poses a security risk that cannot be ignored.  Under Guideline H, Drug
Involvement, Disqualifying Conditions 25.(a) any drug abuse, and 25.(c) illegal drug
possession, including cultivation, processing, manufacture, purchase, sale or
distribution; or possession of drug paraphernalia apply.  None of the mitigating
conditions are applicable.  Accordingly, I find against the Applicant under Guideline H,
Drug Involvement. 
 Turning to Guideline E, I find that the Applicant was confused, but that he did not
deliberately falsify his security clearance application in regard to his illegal drug use.  He
clearly revealed the full extent of his marijuana use.  He also told the investigator during
his interview that he believed he did not use cocaine and that is why he did not reveal
its use on his security clearance application or in response to interrogatories.  The
Applicant does not believe that his taste of cocaine is considered, “use” as defined by
question 24(c) of the security clearance application and therefore he answered the
question in the negative.  Although his interpretation of the situation is wrong, I do not
find his falsification to be intentional.  I understand his confusion and do not believe he
intentionally lied in response to the question.  Accordingly, I find for the Applicant under
Guideline E, Personal Conduct.    
As to his foreign influence under Guideline B, I find that the Applicant’s aunt and
cousin from Colombia, who live with his parents, do not pose a security risk.  In fact, the
Applicant feels that they are taking advantage of his parents.  There is no close bond, or
strong and deep affection.  He has no legal, ethical or moral obligation to them.  The
Applicant identifies as an American with loyalty and responsibilities only to the United
States.
It is also noted that the current political situation in Colombia elevates the cause
for concern in this case.  However, the Applicant has no bond of affection with his
foreign relatives or with Colombia.  Under the particular circumstances of this case, the
relationship that he has his aunt and cousin could not potentially cause the Applicant to
become subject to foreign exploitation, inducement, manipulation, pressure, or coercion.
Therefore there is no possibility of foreign influence that could create the potential for
conduct resulting in the compromise of classified information.  I find that the Applicant is
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not vulnerable to foreign influence.  Accordingly, I find for the Applicant under Guideline
B (Foreign Influence).
I have also considered the “whole-person concept” in evaluating the Applicant’s
eligibility for access to classified information.  The Applicant is a young many who is still
naive and immature.  As recently as last year, he used marijuana in total disregard for
the law, company policy and DoD regulation.  By doing so, he reveals a defect in
judgment.  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.  
Considering all the evidence, the Applicant has not met the mitigating conditions
of Guideline H of the adjudicative guidelines set forth in Enclosure 2 of the Directive.
Accordingly, he has not met his ultimate burden of persuasion under Guideline H.  This
Applicant is not sufficiently trustworthy and does not meet the eligibility requirements for
access to classified information.  Accordingly, I find against the Applicant under
Guideline H (Drug Involvement).  Guidelines E (Personal Conduct) and Guideline B
(Foreign Influence) are found for the Applicant.     
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 Paragraph 1 of the SOR.  Paragraphs  2 and 3 of the SOR are
found for the Applicant.
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.
    Subpara.  1.c.: Against the Applicant.
    Subpara.  1.d.: Against the Applicant.
    Subpara.  1.e.: Against the Applicant.
   
Paragraph 2: For the Applicant.
    Subpara.  2.a.: For the Applicant.
    Subpara.  2.b.: For the Applicant.
Paragraph 3: For the Applicant.
    Subpara.  3.a.: For the Applicant.
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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