KEYWORD: Guideline H; Guideline E
DIGEST:  The Guideline E allegations in this case pertained to Applicant’s drug use, not
falsification.  Nevertheless, the Judge erroneously limited her analysis of the Guideline E
mitigating conditions to those that pertain to falsification.  However, in light of the Judge’s
sustainable formal findings under Guideline H, this error is harmless.  Adverse decision
affirmed.  
CASE NO: 08-11596.a1
DATE: 09/20/2010
DATE: September 20, 2010
In Re:
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Applicant for Security Clearance
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ISCR Case No. 08-11596
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On June 19, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the
basis for that decision—security concerns raised under Guideline H (Drug Involvement) and
Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On June 21, 2010, after the hearing,
Administrative Judge Darlene D. Lokey Anderson denied Applicant’s request for a security
clearance.  Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal: (1) whether the Judge erred in making two
findings; (2) whether the Judge erred in her treatment of pertinent mitigating conditions; and (3)
whether the Judge’s decision is arbitrary or capricious.  For the reasons that follow, the Board
affirms the Judge’s adverse security clearance decision. 
The Judge made the following pertinent findings of fact: Applicant used marijuana about ten
times between July 2001 to at least May 2003.  He began using it in college, continued to use it
during an internship in Europe, and last used it on Memorial Day 2003.  On that day he was at a
party with friends and smoked it in a Turkish pipe.  Applicant also used psilocybin mushrooms on
four separate occasions, twice in February 2002, and twice in December 2006.  In 2004, Applicant
applied for a security clearance that was granted sometime in 2005 with the understanding that he
was no longer using illegal drugs.  He knew that the use of illegal drugs was against the law and
prohibited by his company.  On New Year’s Eve 2006, he used psilocybin mushrooms while holding
a DoD security clearance.  In May 2004, Applicant provided a statement to the Department of
Defense indicating that he had no intent of ever using illegal drugs in the future.  Applicant repeated
this statement of intent at the hearing.  He states that he has made a lifestyle change and made a
deliberate attempt to reduce the frequency of contact with his friends that use illegal drugs.  He also
submitted a notarized letter of intent where he states that he will not repeat his past illegal drug use
and states his understanding that if he does use drugs, his security clearance would be subject to
automatic revocation.  Applicant was asked by his company to apply for an SCI clearance.  Instead
of telling the truth about his use of illegal drugs, he submitted a falsified security clearance
application in June or July 2006 and intentionally omitted his most recent use of psilocybin
mushrooms.  Prior to going into a polygraph exam, Applicant confessed to the examiner that he had
not been truthful on the application.  In June 2007, Applicant was denied program access due in part
to his illegal drug use.  Applicant has undergone drug tests that have all come back with negative
results.  Applicant underwent a psychological examination on January 22, 2010 administered by a
practitioner of his choice.  The results of the examination indicate that Applicant tests with a low
probability of substance abuse and substance dependence.  
The Judge reached the following conclusions in the case: The Government had met its initial
burden of proving that Applicant had a history of illegal drug use (Guideline H) and dishonesty
(Guideline E).  The totality of this evidence indicated poor judgment, unreliability and
untrustworthiness on the part of the Applicant.  Applicant knew at the time of his drug use that it
was illegal and against company policy.  Although his most recent use of any controlled substance
occurred in 2006, over four years ago, he told the Government in 2004 that he had no intent of future
drug use and then broke his word.  Given his past history, there was no guarantee that he would
remain drug free in the future or that his word could be relied upon.  None of the Guideline H
mitigating conditions were applicable.  Furthermore, Applicant deliberately provided false
information to the Government in 2006 concerning his illegal drug use in the past.  He only
confessed his drug use when faced with a polygraph.  This conduct displayed dishonesty and an
unwillingness to comply with rules and regulations and showed a pattern of unreliability and
untrustworthiness.  None of the Guideline E mitigating conditions were applicable.  Under a whole-
person analysis, despite letters of recommendation and a high performance appraisal, Applicant
disregarded the law, company policy and DoD regulation, revealing a defect in judgment that could
not be ignored.  Applicant failed to overcome the Government’s case opposing his request for a
security clearance.   
1The same document also contains a single reference to the last mushroom use being in December 2005.  The
multiple references to December 2006 mushroom use appear to be initialized corrections to original references to a
December 2005 date.  There is no evidence in the file to explain the internal inconsistencies in this document.  It is
possible that the lone reference to December 2005 was not corrected as a matter of oversight.  In any event, despite the
internal inconsistencies, the document provides ample support for the Judge’s finding.
Applicant asserts that the Judge erred by making a finding that he intentionally used
marijuana on Memorial Day 2003.  Applicant states that his use on that occasion was unintentional
as he was at a party and a Turkish pipe was being used to consume a mixture of tobacco and
marijuana.  Applicant claims that inasmuch as the Turkish pipe was normally used to smoke
tobacco, he was unaware that the pipe contained marijuana until he smoked it.  Applicant also
asserts that the Judge erred by finding that his last use of psilocybin mushrooms was in 2006 instead
of 2005.  The Board will not disturb a Judge’s findings of fact unless there has been a showing that
the Judge weighed the evidence in a manner that is arbitrary, capricious, or contrary to law.  See,
e.g., ISCR Case No. 98-0592 at 4 (App. Bd. May 4, 1999); ISCR Case No. 97-0630 at 2 (App. Bd.
May 28, 1998).  Applicant has failed to establish error on the part of the Judge.
The Judge’s decision does not contain a discussion of record evidence where Applicant
stated that his use of marijuana in May 2003 was unintentional (Government Exhibits 3 and 4).
However, the record contains Applicant’s admission in his answer to the SOR that he used
marijuana in 2003 and his answer to a question on his security clearance questionnaire wherein he
admitted to marijuana use in May 2003.  In neither of these instances did Applicant qualify his
answer by indicating that his May 2003 use was inadvertent.  The Judge was free to evaluate
Applicant’s explanation concerning the circumstances surrounding his May 2003 marijuana use, but
she was not compelled to accept Applicant’s explanation.  Although not commented upon by the
Judge, the fact that the marijuana was being consumed in a Turkish pipe at a party supports, rather
than detracts from, the Judge’s finding that Applicant’s May 2003 marijuana use was knowing and
intentional.  The Judge’s finding is supported by substantial evidence.
Applicant challenges the Judge’s finding that his last use of psilocybin mushrooms took
place at the end of 2005 and not at the end of 2006 as the Judge found.  Applicant points to the
Judge’s finding that he falsified a security clearance application in June or July 2006 in support of
his assertion that the last use must have occurred at the end of 2005 rather than at the end of 2006,
otherwise it would have been impossible for him to lie about it in mid-year 2006.  A review of the
record evidence convinces the Board that the Judge’s finding that Applicant last used psilocybin
mushrooms in December 2006 is sustainable.
The record evidence indicates that Applicant falsified a security clearance application dated
January 4, 2007.  This falsification is referenced in Govt. Exhibit 2.  Thus, the Judge’s finding of
a falsification in June or July 2006 that Applicant relies on is in error. Also, there is ample support
for the Judge’s finding that Applicant’s last use of psilocybin mushrooms took place in December
2006.  Applicant admitted without qualification an SOR allegation that alleged he used psilocybin
mushrooms until at least December 2006.  In his response to a question about drug use on a security
clearance application completed in June 2007, Applicant indicated his mushroom use as ending in
December 2006 (Govt. Exhibit 1).  In a written statement dated May 23, 2008, Applicant made three
references to mushroom use in December 2006 (Govt. Exhibit 3).1 Applicant has failed to establish
2“[T]he behavior happened so long ago, was so infrequent, or happened under such circumstances that it is
unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment.”
3In this case, the Guideline E allegations in the SOR merely incorporate the drug use allegations found under
Guideline H, with the addition of an allegation stating that Applicant was denied program access through another agency
in part due to his illegal drug use.
error on the part of the Judge with regard to this finding.    
 
Applicant objects to the manner in which the Judge handled the Guideline H and Guideline
E mitigating conditions.  He notes that the Judge’s decision contains no discussion of the individual
mitigating conditions and does not go point by point through each mitigating condition to explain
why that particular mitigating condition was not applicable to the case.  Applicant states that the
Judge’s lack of explanation about the applicability of the mitigating conditions coupled with the lack
of any other explanation, “makes the ruling feel arbitrary.”
Regarding Guideline H, the Board notes that the Judge’s treatment of the mitigating
conditions is cursory.  While DOHA administrative judges have broad latitude concerning the
manner in which they write decisions, such cursory treatment of applicable mitigating conditions
would constitute harmful error absent some suitable explanation (not necessarily tied to specific
provisions of the mitigating conditions) as to why the Government’s security concerns had not been
overcome.  In this case, contrary to Applicant’s argument, the Judge did provide a detailed
explanation as to why she did not conclude that the Guideline H concerns had been mitigated.  She
cited the facts that Applicant used illegal drugs while working for his current employer, while
holding a security clearance, and with the specific knowledge that the use was illegal and against
company policy.  The Judge also noted that, although his most recent use of any controlled
substance occurred over four years ago, Applicant told the Government in 2004 that he had no intent
to use illegal drugs in the future and then broke his word.  From these facts the Judge ultimately
concluded that, given Applicant’s past history, his word cannot be relied upon and the possibility
of his returning to drugs is high enough to constitute an unacceptable security risk.  The Judge’s
explanation is adequate and her conclusions are sustainable.  Indeed, although her decision does not
specifically mention Guideline H Mitigating Condition ¶ 26 (a),2 her conclusions track essentially
the same considerations that appear in that mitigating guideline, principal among them being an
explanation as to why the drug use was not mitigated after the passage of a considerable length of
time (four years).
Applicant’s claim of error under Guideline E presents an unusual problem.  Applicant’s
complaints about the Judge’s treatment of the Guideline E mitigating conditions concern those
mitigating conditions that relate to falsification since the Judge based her adverse conclusions under
Guideline E squarely on falsification and then failed to discuss any applicable mitigating conditions.
Here, the Judge’s failure to discuss the applicability of any of the mitigating conditions is of a
greater magnitude than under Guideline H since she provided very little in the way of an
independent discussion as to why the security concerns were not mitigated.  There is a more
fundamental problem with the Judge’s analysis under Guideline E, however, that creates a problem
for the Board because it is not specifically alleged as an error by Applicant.  Although the SOR
contained allegations under Guideline E, those allegations did not include falsification.3  
4One could also make allowances for Applicant’s pro se status on appeal, although this point is complicated
by the fact that Applicant was represented by counsel below, and no objection was raised nor motion in limine offered
by Applicant’s counsel when the evidentiary portion of the hearing and closing arguments became focused on the issue
of Applicant’s falsification.  Of course, regardless of the course of the hearing, neither party can know beforehand how
a Judge will write his or her decision in a case. 
5Of course, the evidence of Applicant’s falsification could have been used legitimately for limited purposes.
See ISCR Case No. 02-07218 at 3 (App. Bd. Mar. 15, 2004).  An overall reading of the Judge’s decision in this case,
however, makes clear that the Judge’s reliance on the falsification evidence far exceeded this limited use.
The scope of review by the Board is limited to a consideration of the material issues raised
by the parties. Directive ¶ E3.1.32.  By objecting to the Judge’s treatment (or lack thereof) of the
Guideline E mitigating conditions without objecting to the fact that falsification was not alleged in
the SOR, Applicant arguably placed this procedural anomaly beyond the scope of the Board’s
review.  Nevertheless, it could also be argued that, in the broadest sense, Applicant is taking issue
with the Judge’s overall analysis under Guideline E.4  Regardless of the merits of these arguments,
it would be untenable for the Board to address Applicant’s stated objections to the Judge’s  treatment
of the mitigating conditions while ignoring the larger, related problem of the Judge basing her
Guideline E analysis exclusively on falsification when there was no basis for doing so under the
parameters set forth in the SOR5.  An applicant is entitled to receive reasonable notice of the
allegations being made against him, and which will ultimately determine the resolution of his case,
so that the applicant can have a meaningful opportunity to respond to the allegations.  See, e.g.,
ISCR Case No. 99-0710 at 2 (App. Bd. Mar. 19, 2001); Directive ¶¶ 4.3., 4.3.1., and 4.3.2.
Regardless of how well Applicant asserted a defense against the Government’s case of falsification
brought forth at the hearing, it would be unreasonable to assume that the lack of falsification
allegations in the SOR had no effect upon Applicant’s presentation of his case.  Thus, the Judge’s
use of the falsification evidence as the gravamen of her adverse decision under Guideline E affected
Applicant’s due process rights under the Directive and was error.
However, the Board concludes the errors contained in the Judge’s analysis under Guideline
E do not warrant remand.  Upon consideration of the entirety of the record evidence and the Judge’s
decision, the Board concludes that the Judge’s overall adverse security clearance decision is
sustainable based on her analysis of Applicant’s drug use under Guideline H.           
Order    
The Judge’s adverse security clearance decision is affirmed.
Signed: Michael Y. Ra’anan       
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
Signed: Jeffrey D. Billett            
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: William S. Fields          
William S. Fields
Administrative Judge
Member, Appeal Board