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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 09-04040
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Caroline H. Jeffreys, Esquire, Department Counsel
For Applicant: Alan V. Edmunds, Esquire  
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Decision
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LYNCH, Noreen, Administrative Judge:
On December 23, 2009, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing security concerns under Guideline E
(Personal Conduct) and Guideline H (Drug Involvement) 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) effective within the
Department of Defense for SORs issued after September 1, 2006. 
 
Applicant acknowledged receipt of the SOR, answered the allegations, and
through Counsel, requested a hearing before an administrative judge. I received the
case assignment on March 30, 2010. DOHA issued a notice of hearing on May 13,
2010, and I convened the hearing as scheduled on June 22, 2010. The Government
offered Exhibits (GE) 1-4, which were received without objection and admitted into the
record. Applicant testified on his own behalf and presented the testimony of one
witness. At the hearing, he introduced eight Exhibits (AE) A-H, which were admitted into
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the record without objection. At Applicant’s request, I kept the record open for additional
documents. Applicant through Counsel submitted nine additional exhibits, which were
marked as AE I through O. DOHA received the transcript on June 29, 2010. Based
upon a review of the record, pleadings, exhibits, and testimony, eligibility for access to
classified information is denied.
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a,
1.c, 1,d, and 1.e. He also admitted the allegations in ¶¶ 2.a and 2.b. He denied the
allegation in ¶ 1.b of the SOR with explanation. 
Applicant is a 41-year-old employee of a defense contractor. He graduated from
high school in 1987, and earned an undergraduate degree in 1995 (GE 1). He attended
Master’s level classes in 2005. (AE C) He is married and has one infant son. Applicant
has been with his current employer since December 2008 (GE 1). He held a security
clearance in 1998 or 1999 for a short period (Tr. 45).
From approximately 1992 until 1995 and 2001 until summer 2008, Applicant
used marijuana. He purchased and used marijuana in social settings about 12 to 24
times when he was a senior in high school in 1986 or 1987. (Tr. 48) He recalled that he
also used marijuana a few times in college. (Tr. 95) 
Applicant also experimented with Ecstasy in 2000 until about 2006. When he first
used Ecstasy, he was at night clubs or at home. He believed the last times were at his
home with friends. (GE 3) He stopped because “he grew out of it.”
Applicant completed a security clearance application on May 1, 2003 (GE 2). He
responded “No” to question 27 concerning use of illegal drugs and drug activity. He did
not report the use of any illegal drugs. (Tr. 65 ) He knew this was a false answer and
claims that it was a mistake of character and judgment (Tr. 66).
In 2005, Applicant was denied a security clearance based on the 2003
investigation. (GE 4) At the time, he was employed by a defense contractor. During the
background investigation, he was given a polygraph test. (Tr. 68) Applicant testified
credibly that he did not like the way the polygraph was being conducted. He explained
that he left in the middle of the test. At that point, he decided he did not want to work in
a “classified field” any longer. He decided to work in an area that was non-classified.
(Tr. 68) Applicant also went into business on his own.
Applicant completed a security clearance application on December 12, 2008.
(GE 1) He answered “No” to question 26(a) concerning his investigation record. He also
answered “No” to question 26(b) concerning a previous suspension or revocation of a
security clearance. He was not aware at the time if he was denied a clearance in 2005.
(Tr. 68)
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In March 2009, Applicant was interviewed by an Office of Personnel
Management (OPM) investigator (GE 3). During the interview, he disclosed his use of
marijuana and the other illegal drugs. However, the dates of use for Ecstasy were from
2000 to 2001. (GE 3) Also, he told the investigator that his use of marijuana was also
2000 until 2001. (GE 3) He explained during the interview that he has not had any drug
related treatment or counseling and did not have any drug related incidents or arrests.
He noted that his use of illegal drugs did not affect his job or finances.
In Applicant’s response to interrogatories, dated September 14, 2009, he
appended a list of the dates and circumstances of his last use of marijuana or any illegal
drug. He noted that he used marijuana a “couple times” a year from 2001 until 2008. He
noted that a puff or two was typical during the last decade. (GE 3) As to his use of
Ecstasy, Applicant explained that he used “on a couple times a month on weekends
from 2000 until 2001, and maybe four times after 2001.” He believed his last use of
Ecstasy was sometime in 2006 (one pill).
When questioned about his response to section 24 concerning illegal drug use on
his 2008 security clearance application, he explained that he made a mistake. (Tr. 36)
He went on to say that the answer should have been “Yes”. He explained, I said
something that wasn’t true and I shouldn’t have done that.” (Tr. 37)
At the hearing, Applicant stated that he was not aware that he was “denied” a
clearance because he just left the testing site (polygraph) and never followed up. So he
did not know a “ruling” was made. Thus, he answered “No” to the question concerning
the denial of a previous security clearance. (Tr. 39)
Applicant claimed at the hearing that during the 2009 OPM interview, he realized
that he had made a mistake and did not tell the truth previously in his answers, and he
thought he was now being more cautious with his answers. (Tr. 41)
At the hearing, Applicant explained that he made mistakes, but they are not part
of a personality or character flaw. He describes himself as a dedicated husband and
father who puts his family first (Tr. 43). He was candid by noting that he still associates
with some of the same people with whom he used illegal drugs. (Tr. 43)
Applicant changed his answers several times during the hearing when
questioned about his motivation for not disclosing any illegal drug use on any security
clearance applications. He said it was a mistake on several occasions and then later
said it was a “memory lapse.” (Tr. 72) 
Applicant submitted negative voluntary drug test results from April 22, 2010 and
May 18, 2010. (AE A) He also submitted a notarized statement of intent, dated May 13,
2010, to refrain from using illegal drugs in the future, and with the knowledge that any
violation with regard to illegal drug use would result in automatic revocation of any
security clearance. (AE B)
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On June 9, 2010, Applicant was evaluated by a licensed psychologist. The
clinical interview was comprised of a lengthy questionnaire and a three inventory
screening. The licensed psychologist opined in part that Applicant’s “judgment appears
uneven with occasional lapses in forethought and breakdown in impulse controls.”
However, she noted that his Substance Abuse Subtle Screening Inventory (SASSI)
indicated a low probability of a substance dependence disorder. She noted a
Personality Disorder (Histrionic/Sadistic/Narcisstic features). She noted in conclusion
that he tends to see others at fault, overlooking his part in difficulties. She also
explained that he appears to enjoy work and is motivated to improve himself. (AE D)    
At the hearing, Applicant emphasized that he was just trying to be as forthright as
possible about any illegal drug use. (Tr. 76). However, he claimed that it was not his
intent to mislead the United States government. He is terribly sorry and relies on the
excuse that he was confused. He acknowledged that his falsification of his security
clearance application is inexcusable.
Applicant’s former neighbor testified at the hearing that he has known Applicant
for almost seven years. (Tr. 23) He never saw Applicant abuse any drugs or alcohol. He
attested to Applicant’s good character and honesty. He also noted that Applicant is a
“frank” person who will give his opinion. 
Applicant’s direct manager since January 2009, describes Applicant as a team
lead for engineers in the company who faced a tough and challenging job. He is one of
the top performers. (AE E) He summarized that Applicant’s quality of work is
exceptional and he is rated as such in his performance review.
Applicant presented letters of reference. His friends and co-workers described
him as dependable. His engineering manager notes that Applicant is dedicated to his
work and to his family (AE E). He also described him as a highly motivated, dependable
engineer who takes responsibility for his mistakes. He further noted that Applicant is
respected by his peers and by management for his technical expertise and work ethic.
(AE F) 
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 required 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
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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, 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
AG & 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 notes several conditions that could raise security concerns. Under
AG & 25(a), Aany drug abuse@ is potentially disqualifying. Under AG ¶ 25(c) “illegal drug
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possession, including cultivation, processing, manufacture, purchase, sale, or
distribution; or possession of drug paraphernalia” is also potentially disqualifying.
Applicant admitted he purchased and used marijuana, in varying amounts and
frequency, from about 1992- 1995 and from 2001 until 2008. He also admitted using
Ecstasy, with varying frequency from 2001 until at least the summer of 2006. These
disqualifying conditions apply in this case.
Under AG ¶ 25(g) “any illegal drug use after being granted a security clearance”
is a disqualifying condition. Applicant held a security clearance for a short period of time
in 1998. He used marijuana again in later years when he was applying for another
clearance and had worked for a contract employer. 
The guideline also includes conditions that could mitigate security concerns
arising from drug involvement. Under AG ¶ 26(a), the disqualifying condition may be
mitigated where Athe behavior happened so long ago, was so infrequent, or occurred
under such circumstances that it is unlikely to recur and does not cast doubt on the
individual=s current reliability, trustworthiness, or good judgment.@ There are no bright
line rules for determining when conduct is recent. The determination must be based on
a careful evaluation of the totality of the record. If the evidence shows a significant
period has passed without evidence of misconduct, then the administrative judge
considers whether that period demonstrates changed circumstances or conduct
sufficient to warrant a finding of reform or rehabilitation.
Applicant=s history of illegal drug use (marijuana/ecstasy) spans from 1992 until
2008, with a reported break. He had a security clearance for a short period and then
applied again in 2003, He was a mature man and fully understood the adverse legal
consequences of using illegal drugs. This shows poor judgment and lack of
trustworthiness given the fact that he was trying to obtain a security clearance during
the time he was using illegal drugs.
Applicant’s last illegal drug use was in 2006 or 2008. At the time, he was a
married man and a father. He was a mature professional, applying for a security
clearance, working for a defense contractor. Considering the record as a whole, I find
that his questionable behavior did not happen under such circumstance that it is unlikely
to recur. He has not disassociated from his drug-using friends and that continues to cast
doubt on Applicant’s current reliability, trustworthiness, and judgment. He has never had
drug counseling. None of the above mitigating conditions apply.
Under AG ¶ 26(b), it may be mitigating where there is Aa 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 were used; (3) an
appropriate period of abstinence; and (4) a signed statement of intent with automatic
revocation of clearance for any violation.”  Applicant signed a statement of intent not to
use illegal drugs in May 2010. He noted that he still occasionally sees a person with
whom he had used illegal drugs in the past. The mitigating condition applies in part, but
does not fully mitigate the drug involvement concerns.
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Under all the circumstances, security concerns cannot be alleviated without the
passage of more time without any use of illegal drugs because doubts about Applicant’s
current reliability, trustworthiness, or good judgment are not sufficiently resolved.
Despite his “good intentions” to be overly cautious and fully report his drug use in 2009
on his interrogatories, he was then vague and somewhat inconsistent with his answers
at the hearing and during his OPM 2009 investigation. He understands the adverse
effects from drug use. However, he has not shown a sufficient track record of refraining
from illegal drug use to authorize his access to classified information.
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.
AG ¶ 16 describes conditions that could raise a security concern and may be
disqualifying. Under AG ¶ 16(a), a disqualifying condition exists when there is
“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 eligibility or trustworthiness, or award fiduciary responsibilities.”
Under AG ¶ 16(b) a disqualifying condition exists when “deliberately providing false or
misleading information concerning relevant facts to an employer, investigator, security
official, competent medical authority, or other official government representative.”
Applicant admitted that he deliberately falsified his 2003 and 2008 security
clearance application in his answers to the SOR. Applicant failed to disclose illegal drug
use on the security clearance applications. He did not disclose the truth about his drug
use until completing a 2009 DOHA interrogatory. He then retracted his admissions
about the extent of his drug use at the hearing. His behavior and personal conduct are
disqualifying as they raise questions about his judgment, reliability, truthfulness, and
willingness to comply with the law. 
I considered the mitigating conditions under AG ¶ 17. Under AG ¶ 17(a), “the
person made prompt, good-faith efforts to correct the omission, concealment, or
falsification before being confronted with the facts” is a possible mitigating condition.
Applicant is given credit for revealing in 2009 his prior illegal drug use. However, he
knew as early as 2003 that he omitted relevant information. He waited until 2009 to
rectify the problem. This mitigating condition applies in part.
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Under AG ¶ 17(c), “the offense was 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” is not applicable. The intentional omissions occurred in 2003 and
2008, and are too recent and serious to be mitigated Applicant presented vague and
somewhat inconsistent answers to questions at the hearing. I have serious doubts
about his good judgment and reliability. No mitigating conditions fully 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 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 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 and conclude that they are not
sufficient to overcome the Government’s case. Applicant is a well-educated, intelligent
professional. He is a married man and the father of a child. He has an excellent
employment record.  There is no proof that Applicant used illegal drugs at work. He was
credible in his statement that he intends to avoid use of illegal drugs in the future. He
was evaluated and there is a low probability of future substance dependence or drug
abuse. He is recommended for a security clearance by his manager. 
When Applicant completed his 2003 and 2008 security clearance applications, he
deliberately omitted information concerning his illegal drug use. He made no attempt to
correct his falsifications prior to 2009. He used marijuana around the time he applied for
a security clearance in 2003 and 2008. He admitted that as late as 2008, he was using
marijuana. His retraction at the hearing, as to an earlier date was not credible. 
Overall, the record evidence leaves me with questions and doubts as to
Applicant’s eligibility, judgment, and suitability for a security clearance. For all the
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reasons discussed above, I conclude Applicant has not mitigated the security concerns
arising from his drug involvement 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 E: AGAINST APPLICANT
Subparagraphs 1.a-b: Against Applicant
Subparagraph 1.c: ` For Applicant
Subparagraphs 1.d-e: Against Applicant
Paragraph 2, Guideline H: AGAINST APPLICANT
Subparagraphs 2.a-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 security to grant Applicant eligibility for a security
clearance. Eligibility for access to classified information is denied.
                                              
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Noreen A. Lynch
Administrative Judge