DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 09-04284 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Eric Borgstrom, Esquire, Department Counsel 
For Applicant: Pro Se 
 
 
 
______________ 
 
Decision 
______________ 
 
 
RICCIARDELLO, Carol G., Administrative Judge: 
 
Applicant failed to mitigate the Government’s security concerns under Guideline 
H, Drug Involvement, and Guideline E, Personal Conduct. Applicant’s eligibility for a 
security clearance is denied. 
 
On December 14, 2009, the Defense Office of Hearings and Appeals (DOHA) 
issued to Applicant a Statement of Reasons (SOR) detailing the security concerns 
under Guidelines H and E. 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) effective within the Department of Defense for SORs 
issued after September 1, 2006.  
  
 Applicant answered the SOR in writing on December 14, 2009, and again on 
January 11, 2010. He requested a hearing before an administrative judge. The case 
was assigned to me on April 5, 2010. DOHA issued a Notice of Hearing on April 9, 
 
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2010. I convened the hearing as scheduled on May 26, 2010. The Government offered 
Exhibits (GE) 1 through 6. Applicant did not object and they were admitted. Applicant 
testified and did not offer any exhibits. DOHA received the hearing transcript (Tr.) on 
June 3, 2010.  
 
Procedural Matters 
 
 Department Counsel moved to amend the SOR, deleting in ¶¶ 2.a and 2.b, the 
date “February 23, 2009,” and substituting the date, “August 14, 2008.” Applicant did not 
object and was afforded an opportunity to delay the case 15 days so he would have 
proper notice. He elected to waive the 15-day notice requirement and proceed with the 
hearing as scheduled. Department Counsel’s motion was granted.1  
 
Findings of Fact 
 
 Applicant admitted all of the allegations in the SOR except ¶¶ 2.a and 2.b. After a 
thorough and careful review of the pleadings, exhibits, and testimony, I make the 
following findings of fact. 
 
 Applicant is 56 years old. He graduated from high school in 1973. He has worked 
for the same federal contractor since 1977. He married in 1990. Applicant was unclear 
whether he held a security clearance while working for his employer. Evidence shows 
that he was granted an interim Secret clearance in December 2007, and was granted a 
Secret clearance on August 15, 2008. He was aware that he received a special access 
badge that permitted him to enter certain areas that he was previously unable to 
access. He did not know what level of access he was permitted. He stated he was 
unaware that he had a Secret security clearance that was granted in 2008. He believed 
his level of access was Confidential. He was aware that by being given a red badge his 
level of access was higher than it had been.2  
 
 After the terrorist attacks of September 11, 2001, Applicant was very scared. He 
was told by company officials to be vigilant in observing if any packages received by the 
company were suspicious. Because he was scared, Applicant used marijuana after 
September 11, 2001, until around October 13, 2001. He estimated he used marijuana 
about twice a week for approximately three weeks. He was aware his use violated his 
employer’s drug policy. He purchased the marijuana from friends he knew on the street. 
He would pay about $20. Sometimes he smoked it with his cousins, sometimes by 
himself. He had to hide it from his wife because she would get angry if she found him 
using marijuana. He never sold marijuana. He was given a drug test in October 2001, 
and his results confirmed he used marijuana. Applicant admitted his use. He was 
1 Tr. 11-17. 
 
2 Tr. 30. 
 
 
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suspended from work for six to seven weeks. He attended a drug rehabilitation 
program. He stated he did not use marijuana again for five or six years.3  
 
 Applicant’s daughter became very ill and he and his wife had to care for their 
grandchildren. He had difficulty handling the stress of taking care of his grandchildren 
with his wife. Due to this pressure and the added financial burden because he could not 
obtain public assistance for them, he began using marijuana again. He began smoking 
marijuana in October or November 2007 on the weekends, when he was watching 
football. He stopped using it in approximately December 2007, and resumed using it 
again around April 2008, during baseball season. He would use it with his cousins who 
would come to his house on the weekends. Sometimes he would use marijuana by 
himself. He used marijuana on and off throughout 2008. He knew it was against 
company policy and he was concerned about being tested again, so he placed a cup of 
his urine that did not have marijuana in it, in the office refrigerator. When he was 
contacted on October 2008 to submit a sample, he took the clean sample and heated it 
in the microwave. When it was tested, it was not the correct temperature and the 
sample would not be accepted. He was required to provide another sample. This 
sampled was not altered and marijuana was found in his urine. He was purchasing 
marijuana from the street drug dealers. Applicant admitted he used marijuana one more 
time on October 27, 2010, after he took his employer’s drug test. He stated the reason 
he used it again was because he felt guilty and had to tell his wife.4  
 
 Applicant attended a substance abuse program for treatment from November 7, 
2008 to March 5, 2009. He was suspended from his employment while he attended the 
program. He was diagnosed with cannabis abuse.5 He does not intend to use marijuana 
in the future. Applicant was to be terminated by his employer, but signed a “last chance 
agreement” holding his termination in abeyance if he agreed to the conditions of the 
letter, which among other things included that he attend an alcohol/drug program and 
cooperate with random drug tests.6 
 
 Applicant completed a Questionnaire for Investigative Processing (E-QIP) form 
on August 14, 2008. He did not disclose his drug use during the previous seven years. 
He also did not disclose his drug use while holding a Confidential security clearance. 
Applicant explained the reason he did not disclose his drug use was because he was 
confused about the dates. I did not find Applicant believable in that he was so confused 
that he did not know he was required to disclose his most recent illegal drug use on his 
E-QIP. Applicant did not know he had been granted an interim Secret security 
clearance, but admitted that he knew he had a Confidential security clearance. He was 
also aware he was granted a special access red badge. I find Applicant was aware he 
3 Tr.22-25, 36-37. 
 
4 Tr. 25-28, 38-46. 
 
5 GE 3. 
 
6 Tr. 29-30. 
 
 
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held a security clearance, albeit a Confidential, when he completed his E-QIP. I find he 
intentionally failed to disclose his past drug use on his E-QIP.7 
  
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 considered 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. 
 
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 and has the 
ultimate burden of persuasion to obtain 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 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 
7 Tr. 28-29, 32-35, 46-57, 64-76. 
 
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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 
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 
impair judgment and because it raises questions about a person's ability 
or willingness to comply with laws, rules, and regulations. 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; Drug abuse is the illegal use of a 
drug or use of a legal drug in a manner that deviates from approved 
medical direction.” 
I have considered the disqualifying conditions under drug involvement AG ¶ 25 
and conclude the following have been raised: 
 
(a) any drug abuse; 
 
(b) testing positive for illegal drug use;  
 
(c) illegal drug possession, including cultivation, processing, manufacture, 
purchase, sale, or distribution; or possession of drug paraphernalia; and 
 
(g) any illegal drug use after being granted a security clearance. 
 
Applicant used marijuana in 2001 for several weeks, and again in 2007 and 2008 
with varying frequency. He purchased the marijuana and therefore also possessed it. 
He tested positive for marijuana use in 2001 and again in 2008. Applicant was not 
aware he had been granted a Secret security clearance, but there is sufficient evidence 
to conclude Applicant was aware he had a Confidential security clearance and had 
been granted a special access badge, when he used marijuana. I find all of the above 
disqualifying conditions apply. 
 
I have considered all of the mitigating conditions under drug involvement AG ¶ 
26. The following three are potentially applicable: 
 
(a) the behavior happened so long ago, was so infrequent or happened 
under circumstances that it is unlikely to recur or does not cast doubt on 
the individual’s reliability, trustworthiness, or good judgment;  
 
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(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 are used; (3) an appropriate period 
of abstinence; (4) a signed statement of intent with automatic revocation of 
clearance for any violation; and 
 
(d) satisfactory completion of a prescribed drug treatment program, 
including but not limited to rehabilitation and aftercare requirements, 
without recurrence of abuse, and a favorable prognosis by a duly qualified 
medical professional. 
 
 Applicant used marijuana for several weeks in 2001. He failed a drug test given 
by his employer and attended a drug rehabilitation program. He was reinstated by his 
employer. He again used marijuana in 2007 and 2008 with varying frequency. This time, 
in anticipation of a drug test, he tampered with his urine sample. He was required to 
provide another sample and failed the test. Applicant’s repeated actions cast doubt on 
his trustworthiness and good judgment. I find AG ¶ 26(a) does not apply. Applicant does 
not intend to use marijuana in the future. He signed a last-chance agreement with his 
employer acknowledging that he may be terminated if he does not comply with it. 
Applicant was aware of his employer’s drug policy. He violated it in 2001 and was given 
another chance to return to work and redeem himself. Instead, he began using 
marijuana again. He was deceptive in tampering with his sample and attempting to 
thwart the company’s drug detection program. Although Applicant professes he will not 
use marijuana in the future, his past actions raise serious doubts about his reliability, 
trustworthiness, and good judgment. He abstained for six years and then resumed use. 
Despite attending a drug rehabilitation program in 2001, knowing his employer gave 
random drug tests and the consequences if he used marijuana again, he took the risk. 
Not enough time has passed to find Applicant will not use marijuana again. I find there 
is insufficient evidence to conclude AG ¶ 26(b) applies. Applicant relapsed after 
attending a drug program in 2001. He completed another drug program in 2009. He did 
not provide sufficient evidence to conclude AG ¶ 26(d) applies.  
 
Guideline E, Personal Conduct 
AG ¶ 15 expresses the security concern pertaining to personal conduct:  
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.  
I considered the disqualifying conditions under personal conduct AG ¶ 16 that 
could raise a security concern and conclude the following have been raised: 
 
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(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. 
Applicant deliberately failed to disclose on his E-QIP his past marijuana use. I 
find the above disqualifying condition applies. There is sufficient evidence to conclude 
that Applicant knew he had a Confidential security clearance when he was using 
marijuana. He stated he did not know he had been granted a Secret security clearance. 
I find Applicant intentionally falsified his E-QIP when responding to the question whether 
he used marijuana while holding a security clearance.  
The guideline also includes conditions that could mitigate security concerns 
arising from personal conduct. I have considered the following mitigating conditions 
under AG ¶ 17: 
(a) the individual made prompt, good-faith efforts to correct the omission, 
concealment, or falsification before being confronted with the facts, and 
 
(c) the offense is so minor, or so much time has passed, or the behavior is 
so infrequent, or it happened under such unique circumstances that it is 
unlikely to recur and does not cast doubt on the individual’s reliability, 
trustworthiness, or good judgment. 
 
 Applicant was aware of his past drug use and his responsibility to disclose it 
when he completed his E-QIP. He did not promptly correct his falsification. He knew he 
had a Confidential security clearance and a special access badge when he answered 
questions on his E-QIP. His falsifications are not minor. His actions cast doubt on his 
reliability, trustworthiness and good judgment. I find the above mitigating conditions do 
not 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 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 
 
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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.        
 
I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case. Applicant is a mature person who 
began using marijuana because he was under stress. He was given a second chance 
by his employer, went to a drug program, and continued to work. Six years later he 
resumed his marijuana use because he was again under stress. He tampered with his 
urine sample and falsified his E-QIP about his drug use. 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 failed to mitigate the security 
concerns arising under the Drug Involvement and Personal Conduct guidelines.  
 
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 
 
  Subparagraphs 1.a-1.d:   Against Applicant 
 
 Paragraph 2, Guideline E:    AGAINST APPLICANT 
 
  Subparagraphs 2.a-2.b:   Against Applicant 
     
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with national interest to grant Applicant a security clearance. Eligibility 
for access to classified information is denied. 
 
 
                                                     
_____________________________ 
Carol G. Ricciardello 
Administrative Judge