KEYWORD: Guideline E; Guideline J
DIGEST: The Judge’s application of Directive, Enclosure 2 ¶ 17(c) is not sustainable on this
record where Applicant engaged in extensive illegal drug use while holding a clearance and then
repeatedly and deliberately omitted the drug use on security clearance applications and from
interviews for more than two decades.  Favorable decision reversed.
CASENO: 07-14127.a1
DATE: 08/12/2010
DATE: August 12, 2010
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-14127
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Jeff A. Nagel, Esq., Department Counsel
FOR APPLICANT
Robert R. Bohn, Esq.
The Judge’s favorable findings under Guideline J are not at issue in this appeal.  1
Compare with Applicant’s testimony that he received his first security clearance in 1975 or 1976.  Tr. at 71.2
We note record evidence that Applicant used marijuana between 400 and 500 times from the mid-1970s to the3
early 1990s.  Applicant’s Response to SOR, March 20, 2009; Government Exhibit (GE) 5, Interrogatories, at 1; Tr. at
84.  There is also evidence that he spent between $25,000 and $50,000 on marijuana during this period.  GE 5 at 11.
See Tr. at 36 - 37: “Q: Did you know it was wrong to use marijuana while you held a Security Clearance, sir?  A: Yes,
sir, I did.  Q: And, so, why did you continue to use marijuana for a period of time during which you held a security
clearance?  A: I rationalized the fact that it wasn’t affecting my work.  It wasn’t affecting my school.  I knew I handled
classified information very carefully, and I didn’t see the connection between my marijuana use and holding a Security
Clearance.”  
Applicant stated that he used cocaine approximately 100 times.  GE 5 at 4.  4
2
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On February 27, 2009, DOHA issued a statement of reasons (SOR) advising Applicant
of the basis for that decision–security concerns raised under Guideline E (Personal Conduct) and
Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On April 14, 2010, after the hearing,
Administrative Judge Richard A. Cefola granted Applicant’s request for a security clearance.
Department Counsel appealed pursuant to Directive ¶¶  E3.1.28 and E3.1.30.
Department Counsel raised the following issues on appeal: whether the Judge erred in his
application of Directive, Enclosure 2 ¶17(c) and whether the Judge’s whole-person analysis was
erroneous.   Consistent with the following discussion, we reverse.1
Facts
The Judge made the following pertinent findings of fact: Applicant is the Chief Scientist for
a contractor.  He has held a security clearance since 1978.   2
Applicant purchased and used numerous illegal substances from about 1975 until 1992, when
he quit such use.  He smoked marijuana during the entire period, with the heaviest use occurring in
the mid-1980s.   He also used marijuana “once or twice” during lunch breaks during this period.3
Decision at 2.  
In addition, Applicant purchased and used cocaine approximately monthly from 1980 to
1990.   He used hallucinogenic mushrooms approximately three times in the early 1980s, and he4
used quaaludes and LSD one time each in the 1980s.  On one occasion, he took a double dose of a
prescription painkiller following surgery.
In July 1995, Applicant completed a security clearance application (SCA).  He knowingly
failed to disclose his past drug usage, drug purchases, and one-time misuse of a painkiller.  In a
See Tr. at 57 - 58: “Q: . . . So what happened after June 2006 with [your] Special Access clearance? A: The5
following month, in July, late July, I was called in and my access was revoked.  Q: For what reason was your access
revoked, sir.  A: That was for, essentially, lying on the, you know, on the forms, the previous forms.”      
3
follow-up interview with an investigator, Applicant stated that there were no omissions or errors in
the SCA. 
Applicant completed another SCA in 2001.  In this one, he failed to disclose his having used
illegal drugs while holding a security clearance.  In a subsequent interview, Applicant noted no
omissions or errors in his SCA.  
In 2005, Applicant, who held a special access clearance, was called in for a polygraph
examination.  In the pre-polygraph interview, he admitted his prior drug use.   5
In 2006, he completed a SCA.  On this one, he disclosed his drug use while holding a security
clearance.  Later that year, he submitted another SCA, this time electronically.  He also disclosed his
prior drug use on the electronic form.
 Discussion
Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong
presumption against the grant or maintenance of a security clearance.  See Dorfmont v. Brown, 913
F. 2d 1399, 1401 (9  Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After the Government presentsth
evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those
concerns.  See Directive ¶ E3.1.15.  In rendering a final decision, an “agency must examine the
relevant data and articulate a satisfactory explanation for” the decision, “including a ‘rational
connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United
States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines,
Inc. v. United States, 371 U.S. 156, 168 (1962)).  The standard applicable in security clearance
decisions “is that a clearance may be granted only when ‘clearly consistent with the interests of the
national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). 
In deciding whether the Judge's rulings or conclusions are erroneous, the Board will review
the Judge's decision to determine whether:  it does not examine relevant evidence; it fails to
articulate a satisfactory explanation for its conclusions, including a rational connection between the
facts found and the choice made; it does not consider relevant factors; it reflects a clear error of
judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision
that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere
difference of opinion.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2, 2006).
 In the Analysis portion of the Decision, the Judge properly concluded that Applicant’s
deliberate omissions constituted security concerns under Guideline E.  However, he extended
Directive, Enclosure 2 ¶ 17(c): “the offense is so minor, or so much time has passed, or the behavior is so6
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[.]”  
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favorable application to Directive, Enclosure 2 ¶ 17(c).   The Judge stated that Applicant’s last false6
statement was ten years prior to the hearing and that, since then, “Applicant has repeatedly and
willingly disclosed all of his past drug abuse[.]” Decision at 6.   
Department Counsel persuasively argues that the Judge’s application of this mitigating
condition is not consistent with the totality of the record evidence.  He points to record evidence that
Applicant’s falsifications began when he lied on his first security clearance application in 1975.
Applicant finally disclosed his drug use to the Government following a pre-polygraph examination
in 2005.  Department Counsel Brief at 5.  
Therefore, as Department Counsel argues, the Judge’s decision does not appear to consider
the full extent of Applicant’s false statements, which date back twenty years prior to the earliest one
alleged in the SOR.  Furthermore, evidence that Applicant admitted his drug use starting in 2005 is
not consistent with the Judge’s statement that he had been truthful about it since 2001.  This
evidence undermines the Judge’s conclusion as to the amount of time which had passed since the
last incident of security significant conduct.  
Additionally, the circumstances under which Applicant acknowledged his past behavior are
not totally consistent with the Judge’s favorable application of ¶ 17(c).  Applicant’s having made
disclosure in anticipation of a polygraph is inconsistent with the Judge’s finding that he did so sua
sponte.  A reasonable person might conclude that Applicant revealed his past drug use only because
he suspected that it would come out during the polygraph exam anyway.  The record provides no
reason to believe that, had the polygraph not occurred, Applicant would still have admitted his drug
history.  The burden is on Applicant to establish matters in mitigation.  The circumstances of
Applicant’s disclosure vitiate a favorable conclusion under the last clause of ¶17(c), insofar as they
cast doubt upon his reliability and good judgment.  
We have considered Department Counsel’s argument concerning the Judge’s whole-person
analysis.  The Judge listed the nine whole person factors contained in Directive, Enclosure 2 ¶ 2(a)
and stated that he had considered all of the evidence, which left him with no doubt as to Applicant’s
security worthiness.  While there is no explicit error in this analysis, at the same time it is merely
conclusory.  We note, for example, that the Judge did not address ¶ 2(a)(1-3), concerning the nature,
extent, and seriousness of the conduct; the circumstances surrounding the conduct; and the frequency
of the conduct.  As such, the whole-person analysis provides no additional basis for the Judge’s
favorable decision.  
To sum up, the record demonstrates that (1) Applicant engaged in the extensive use of illegal
drugs while holding a security clearance; (2) he deliberately and repeatedly omitted disclosing this
drug use in a series of SCAs and interviews from 1975 to 2001; and (3) he acknowledged his drug
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use only when confronted with a polygraph examination.  We conclude that the record does not
support application of ¶ 17(c) or any of the other Guideline E mitigating conditions, to the extent that
their application would overcome doubts about Applicant’s reliability, trustworthiness, and ability
to protect classified information.  In view of the Directive’s requirement that any doubt be resolved
in favor of national security (Directive, Enclosure 2, ¶ 2(b)), we conclude that the Judge’s favorable
decision is not sustainable.  
Order
The Judge’s favorable security clearance decision is REVERSED.    
Signed: Jeffrey D. Billett                
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: Jean E. Smallin                   
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: James E. Moody                    
James E. Moody
Administrative Judge
Member, Appeal Board