1
                                                             
                           
                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
----------------------- )       ISCR Case No. 09-07472
SSN: ----------- )
)
Applicant for Security Clearance )
Appearances
For Government: Alison O’Connell, Esquire, Department Counsel
For Applicant: Josiah Black, Esquire
                                                                            
______________
Decision
______________
MARSHALL, Jr., Arthur E., Administrative Judge:
On June 14, 2010, the Defense Office of Hearings and Appeals (DOHA) issued
a Statement of Reasons (SOR) enumerating security concerns arising under Guideline
H (Drug Involvement) and Guideline E (Personal Conduct). The action was taken under
Executive Order 10865, Safeguarding Classified Information within Industry (February
20, 1960), as amended; Department of Defense (DOD) Directive 5220.6, Defense
Industrial Personnel Security Clearance Review Program (January 2, 1992), as
amended (Directive); and the adjudicative guidelines (AG) effective within the DOD on
September 1, 2006. 
In a June 24, 2010, response, Applicant admitted all allegations raised under
Guideline H and one of the two allegations raised under Guideline E. He also requested
a hearing. DOHA assigned the case to me on September 1, 2010. The parties
proposed a hearing date of October 6, 2010. A notice setting that date for the hearing
was issued on September 8, 2010. I convened the hearing as scheduled. Applicant
gave testimony, introduced two witnesses, and presented one document, which was
admitted without objection as exhibit (Ex.) A. Department Counsel offered four
documents, which were admitted as exhibits (Exs.) 1-4 without objection. Applicant was
given until October 13, 2010, to submit any additional documents. The transcript (Tr.) of
 Tr. 26.      1
 Tr. 25.      2
 Tr. 26, 35.  In completing his security clearance application, Applicant “inadvertently made a mistake [and]      3
put down 2004. . . .” Tr. 26-27. In addition, the SOR indicates that Applicant was granted a security clearance
in August 2001.  The evidence indicates that Applicant held some level of security clearance since 1986. See
Tr. 53-54.
 Tr. 22.      4
 Tr. 58.      5
 Tr. 28.      6
 Tr. 28-29, 35, 53-57. Applicant admitted that he “made a serious judgmental error at the time.”      7
 Tr. 29.      8
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the proceeding was received on October 12, 2010. On October 14, 2010, Department
Counsel forwarded a packet of materials related to Applicant’s work performance and
career. Noting no objection to its inclusion in the record, I accepted the materials as Ex.
B. The record was then closed. Based on a thorough review of the testimony,
submissions, and exhibits, I find Applicant failed to meet his burden of mitigating
security concerns related to personal conduct. Clearance denied.
Findings of Fact
Applicant is a 49-year-old associate staff member working for a defense
contractor. He has received multiple promotions since starting with the entity in 1986.
He is creative and has been granted multiple patents. Applicant has a bachelor’s
degree. He is amicably divorced and currently engaged. He is the devoted father of two
children, ages 12 and 14.
In high school, Applicant used marijuana infrequently, usually at parties and on
special occasions. He found that it relaxed him. He graduated from high school in the
spring of 1980.  In college, he focused on his studies and “kind of dropped [marijuana1
use].”  He did not use it again until he attended his 25  high school reunion in the2 th
spring of 2005, after he was granted a security clearance.  At the time, Applicant was3
highly distressed about  the deterioration of his marriage.  He accepted an offer to use4
marijuana. Remembering how it relaxed him, he asked the man who had the marijuana,
who Applicant did not know, if he could have some seeds from his bag of the drug.5
Being a  gardener, Applicant thought, “I’ll throw them in the garden and see if I can get
them to grow.”  At the time, he knew that possession of marijuana was illegal, but he6
did not think about his security clearance at that time.  7
Applicant planted the marijuana seeds in his garden. Once they started to grow,
he moved the marijuana plants from his property to nearby woods, where he “might
have checked on them once every week or two.”  By September 2005, they had grown8
quite large. He moved them to his basement to dry. His former wife did not approve of
 Id.      9
 Tr. 29-30. As well, Applicant noted that, at the time, he only had one acquaintance who used marijuana.      10
 Tr. 64.      11
 Ex. 4 (Police Dep’t Record, dated Oct. 12, 2005, printed, Aug. 4, 2010).      12
 Applicant also noted that he did not know there was a distinction between marijuana possession and its      13
cultivation. He stated, “if I had known that one was more severe than the other. . . I certainly would have. . .
rather taken the easier path and just bought some off somebody, rather than trying to grow it.” Tr. 67-68.
  Tr. 33.      14
 Tr. 34.      15
 Tr. 34-35. Applicant, who was granted a security clearance in August 2001, stated that at the time, he was      16
unaware that his conduct was inconsistent with his obligations as a holder of a security clearance. Tr. 36-37.
 Tr. 37-38, 71-72.      17
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this move and his children were unaware that marijuana was in the home. In cultivating
and reaping the plants, he wished to perform a “curiosity experiment.”  He planned to9
use the marijuana for personal consumption, but not sell it or give any of it away.  10
In October 2005, Applicant’s wife returned home. She saw her garage door open
and worried a robber was in the house. She summoned the police to check if her house
was safe. The police entered the home to investigate. In the basement, they discovered
the dried marijuana. Applicant concedes that some plants were hanging in lockers,
while some were in a box.  The police report noted that marijuana was “hanging upside11
down drying from the ceiling,” and that dried plants were found in a postal box on the
floor, hanging upside down in a blue locker, and in film canisters inside a dresser
drawer.  12
When Applicant arrived at his house, he saw police cruisers in the driveway. In
the house, he found his children crying and his wife upset. Applicant was taken to the
basement and asked about the marijuana. The police told him that they were going to
charge him with marijuana possession, not cultivation.  He was also told that “it’s a six13
month probation, you go to court, you plead, whatever, no contest. . . . [I]t will be gone
in six months. . . .”  Applicant was charged with Possession of Class D Controlled14
Substance. Other than a Driving While Intoxicated conviction in 1980, he had never had
any problems with the law.  He pled guilty to the possession charge and was15
sentenced to six months probation, which he ultimately completed. Applicant has not
consumed marijuana since October 2005. He now recognizes “that the Government
and the Department of Defense take very seriously any drug abuse whatsoever.”16
After his probation period ended, Applicant became scared. He was not sure if
he should report the incident or his conviction, which was a misdemeanor, to his
employer.  Some time later, in late 2007 or 2008, he attended a security debriefing,17
 Tr. 38.      18
 Tr. 40-41; Ex. 2 (Interrogatories, Subject Interview, dated Oct. 22, 2008-Oct. 28, 2008).      19
 Tr. 41-42.      20
 Tr. 42.      21
 Ex. 2, supra, note 19, at 6.      22
 Id.      23
 Tr. 49-50. Applicant demonstrated a poor memory for dates throughout the hearing. See, e.g., Tr. 20      24
(regarding date of marriage), Tr. 39-41 (regarding chronology between drug possession conviction, disclosure,
and interview), Tr. 51, 64 (regarding high school graduation year and year of starting college), Tr. 106-109
(regarding high school graduation year), and note 3, supra.
 Ex. 1 (SCA, dated Aug. 8, 2008).      25
 Tr. 45-46; Ex. A (Letter of Intent, dated Oct. 5, 2010).       26
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where it was mentioned that “adverse incidents need to be reported.”  The next day he18
reported the facts to security personnel. In October 2008, he was interviewed about the
incident.  The investigator took notes, but did not ask Applicant to review or verify19
them.  He later read the investigator’s report and said “99.9 percent of it is true, but I20
object to one sentence in here.”  He objected to a sentence that read: “Subject’s21
marijuana use has been part of a pattern throughout his life.”  That sentence is found22
in a paragraph after the comment that “Subject did not use marijuana from the time he
graduated high school until approximately 2004. Exact dates not recalled.”  Applicant23
credibly testified that the 2004 date is incorrect, noting that any reference to 2004, not
2005, was mistaken or inadvertent.   24
On August 8, 2008, Applicant certified a completed security clearance
application (SCA). On that form, in response to “Section 24. Your Illegal Use of Illegal
Drugs and Drug Activity,” Applicant noted that he used marijuana in September 2005,
that he had then used it “approx. dozen times,” and referenced a previous answer
disclosing his conviction for marijuana possession.  Applicant was never addicted to25
marijuana, nor was he ever referred for drug treatment or counseling. He has no
intention of using marijuana in the future. He has signed a letter stating that should he
ever again use marijuana or any other illegal substance, DOD may automatically revoke
his security clearance, and he agrees he will not be eligible for a security clearance
again.  26
Applicant was divorced in June 2008. He subsequently met his fiancée, who was
highly credible and very supportive at the hearing. They were engaged in 2009. She
finds him to be highly honest, trustworthy, and contrite about the marijuana incidents.
Personally opposed to illegal drug use, she confirmed that he has not used marijuana
since she has known him. His fiancée is adamantly opposed to his using drugs or
 Tr. 89-91.      27
 Tr. 76-78; Ex B (W ork-related appraisals and honors).      28
 Tr. 56-57, 83-84. It is noted that Applicant’s level of clearance does not generally require the  rigorous      29
security refresher-training required of some of Applicant’s peers. See, e.g., Tr. 82-84. 
 Tr. 57-58. There is no evidence Applicant ever received or signed a drug policy statement of any form.      30
 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995).      31
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).      32
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immoderately using alcohol, making their continued relationship contingent on
respecting her concerns.27
At work, Applicant is a trusted and well-regarded employee.  Having held a28
secret clearance in the past, he had previously only received security training about
once every decade.  Applicant’s employer has an anti-drug policy.29 30
Policies
When evaluating an applicant’s suitability for a security clearance, an
administrative judge must consider the AG. In addition to brief introductory explanations
for each guideline, the AG list potentially disqualifying conditions and mitigating
conditions. 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. Under AG ¶ 2(c), this
process is a conscientious scrutiny of a number of variables known as the “whole-
person concept.” The administrative judge must consider all 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.
The Government must present evidence to establish controverted facts alleged
in the SOR. 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. . . .”  The burden of proof is something less than a31
preponderance of evidence. The ultimate burden of persuasion is on the applicant.  32
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
 Id.      33
 Id.      34
 AG  ¶ 24.      35
 Id. at ¶ 24(a)(1-2).      36
 Id. at  ¶ 24(b).      37
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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 safeguard
classified information. Such decisions entail a certain degree of legally permissible
extrapolation about 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). “The clearly consistent standard
indicates that security clearance determinations should err, if they must, on the side of
denials.”  Any reasonable doubt about whether an applicant should be allowed access33
to sensitive information must be resolved in favor of protecting such sensitive
information.34
Based upon consideration of the evidence, Guideline H (Drug Involvement) and
Guideline E (Personal Conduct) are the most pertinent to this case. Conditions
pertaining to these AGs that could raise a security concern and may be disqualifying, as
well as those which would mitigate such concerns, are set forth and discussed below.
Analysis
Guideline H - 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,35
and include 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 inhalants and other
substances.  “Drug abuse” is the illegal use of a drug or use of a legal drug in a36
manner that deviates from approved medical direction.  37
Applicant admitted he used marijuana, a controlled substance, at his Spring
2005 reunion and about a dozen more times before his cache was found in his
basement in October 2005. He also admitted that he solicited marijuana seeds that
 AG ¶ 15.      38
 Id.      39
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Spring, planted them successfully in his garden, hid the plants in the woods, then again
moved them at some point before his crop was discovered drying in his basement in
October 2005. All these actions occurred after Applicant was granted the privilege of a
security clearance. Such facts are sufficient to raise Drug Involvement Disqualifying
Condition AG ¶ 25 (a) (any drug abuse); AG ¶ 25 (25 (g) (any illegal drug use after
being granted a security clearance) and AG ¶ 25 (c) (illegal drug possession, including
cultivation, processing, manufacture, purchase, sale, or distribution; or possession of
drug paraphernalia). With disqualifying conditions raised, the burden shifts to Applicant
to mitigate related security concerns.
The above-cited incidents occurred in 2005. His probation ended in early 2006.
His drug use was limited to about a dozen incidents. He has been drug-free since that
time. Since 2007 or 2008, he has been forthcoming about his drug use and drug
cultivation. Such facts obviate application of Drug Involvement Mitigating Condition AG
¶ 26 (a) (the 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). 
Applicant’s drug use was mostly non-social. At the time of his arrest, apart from
those former high school peers he encountered at the 2005 reunion, he had only one
acquaintance who used marijuana. He still does not know the man who gave him the
marijuana and seeds at the reunion. There is no evidence Applicant currently
associates with drug abusers and he has not used marijuana since October 2005. AG ¶
26 (b)(1) (disassociation from drug-using associates and contacts), AG ¶ 26 (b)(2)
(changing or avoiding the environment where drugs were used) and AG ¶ 16 (b) (3) (an
appropriate period of abstinence) apply. Further, he expressed his intent not to use
illegal drugs in the future and signed a statement of intent sufficient to raise AG ¶ 26 (b)
(4) (a signed statement of intent with automatic revocation of clearance for any
violation). Applicant’s marijuana use and cultivation occurred over five years ago. Since
then, he has not used or been involved with illegal drugs. Applicant understands his
continued abstinence is a condition of his relationship with his fiancèe and his
continued employment. He is committed to remaining drug free. Drug Involvement
security concerns are mitigated.
Guideline E – Personal Conduct
Security concerns arise from matters of personal conduct because “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.“  In addition, “any failure to38
provide truthful and candid answers during the security clearance process or any other
failure to cooperate with the security clearance process” is of special interest.  Here,39
two categories of facts raised personal conduct security concerns. First, Applicant was
maintaining a security clearance when he used and cultivated marijuana, and when he
 Had a PC DC applied, there is strong evidence to raise PC Mitigating Condition AG ¶ 17(f) (the      40
information was unsubstantiated or from a source of questionable reliability).
 At the time, Applicant’s  employer had an anti-drug policy, but there is no evidence that he signed a      41
written or recorded document committing to that policy as a condition of employment. Consequently, PC DC
AG ¶ 16(f) (violation of a written or recorded commitment made by the individual to the employer as a
condition of employment) does not apply.
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pled guilty of possession of a controlled substance (SOR allegations ¶ 1.a and ¶ 1.c).
Second, he did not note marijuana use in 2004 on his SCA (SOR allegation ¶ 1.b). 
As a preliminary matter, there is insufficient evidence to demonstrate that
Applicant deliberately intended to mislead or falsify facts when he limited his SCA
comments to marijuana use in 2005 (SOR allegation ¶ 2.b). First, as noted at footnote
24, supra, Applicant is poor with dates. Second, the basis of the allegation that his
marijuana use started in 2004, rather than 2005, is suspect. The investigator’s report
comments that, “Subject’s marijuana use has been part of a pattern throughout his life.”
It then incongruously states, “Subject did not use marijuana from the time he graduated
high school until approximately 2004. Exact dates not recalled.” Intermittent marijuana
use in high school that was briefly resumed 25 years later does not demonstrate a
lifelong pattern of marijuana use. Third, the investigator clearly noted that Applicant’s
teenage marijuana use ceased until “approximately 2004. Exact dates not recalled.”
Such language does not set 2004 as a specific time frame. Fourth, Applicant was not
given the opportunity to review the investigator’s notes or to sign them as an accurate
summary. Consequently, he was unable to contemporaneously confirm or object to the
notes’ accuracy. In sum, the record has multiple inaccuracies with regard to dates.
Applicant has credibly and consistently explained that any reference to 2004, if one was
made, was in error. The facts reveal no other evidence that he used marijuana as an
adult before his 2005 reunion. In light of these considerations, I find no Personal
Conduct Disqualifying Condition (PC DC) applies for SOR allegation ¶ 2.b.40
Applicant has admitted, however, the facts alleged regarding his drug
involvement (SOR allegation ¶ 2.a). He admits that he maintained a security clearance
during his period of adult marijuana use and cultivation.  Such facts are sufficient to41
raise PC DC AG ¶ 16(c) (credible adverse information in several adjudicative areas that
is not sufficient for an adverse determination under any other single guideline, but
which, when considered as a whole, supports a whole-person assessment of
questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to
comply with rules and regulations, or other characteristics indicating that the person
may not properly safeguard protected information). With a PC DC raised, the burden
shifts to Applicant to mitigate the security concerns.
While maintaining a security clearance, Applicant used, planted, cultivated, and
harvested marijuana, a controlled substance, from about April 2005 until October 2005.
This constitutes a serious breach of the trust bestowed on one granted a security
clearance. While Applicant did not think about his security clearance responsibilities at
the time, a factor that independently raises grave issues regarding his judgment and
reliability, he knew that marijuana use and possession were proscribed. After his
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activities were discovered, he pled guilty to the charge of possession of a controlled
substance and completed his probationary period. He then tarried in reporting the
incidents to security personnel. At least two years passed before the facts and
circumstances, which were neither highly technical nor unique, were disclosed.
Applicant’s rationalization that he was unsure if he should disclose them, until after he
was reminded of his obligation to report adverse incidents during a security debriefing,
is self-serving and fails to demonstrate the requisite judgment and reliability expected of
one maintaining a security clearance. Appropriate judgment, if not common sense,
should have dictated that if he thought he had an issue worth reporting, that issue
should have been reported. As a result, the incidents were not discussed with
investigators until late October 2008. Applicant’s actions, their active concealment, and
the poor judgment displayed obviate application of  PC Mitigating Condition (PC MC)
AG ¶ 17(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). 
At least two years after Applicant entered his guilty plea for his illegal acts, he
reported the incidents to security personnel. Although his delay and his reasons for
delay are highly questionable, that fact gives only some limited applicability to AG ¶
17(e) (the individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress). None of the other PC MCs apply. Under this
guideline, and as discussed further under the whole-person analysis below, such facts
leave personal conduct security concerns related to SOR allegation ¶ 2.a unmitigated. 
Whole-Person Concept
Under the whole-person concept, an administrative judge must evaluate an
applicant’s eligibility for a security clearance by considering the totality of an applicant’s
conduct and all the circumstances. An administrative judge should consider the nine
adjudicative process factors listed at AG ¶ 2 (a). Under AG ¶ 2(c), the ultimate
determination of whether to grant a security clearance must be an overall
commonsense judgment based on 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, as well as the “whole-person”
factors. Applicant is a mature, talented, and creative man who excels in his profession.
He is a devoted father who is committed to his fiancée. He has many talents and has
progressed up the ranks at work through merit. At the same time, he knowingly chose
to use marijuana in 2005 after he was granted a security clearance, then failed to
inform appropriate contacts about his lapse for at least two years. He similarly chose to
solicit the acquisition of seeds to grow a controlled substance, concealed his nurturing
of the marijuana plants, and reaped his harvest a few months later. But for his ex-wife’s
concerns of a thief in their domicile, which they shared with two small children, his
illegal efforts may never have come to light.   
10
Had Applicant simply attended his reunion in 2005, used marijuana, and, on
reflection, reported his lapse, security concerns could well be mitigated under AG ¶ 26
(a)-(b) and AG ¶ 17(c). Instead, he used the illegal drug, obtained seeds to grow
marijuana, planted them in his garden, cared for them, transplanted the plants into the
woods, harvested them, concealed them in his basement, dried them for consumption,
and prepared them for personal use, despite his ex-wife’s objections and despite the
dictates of common sense. Then, he failed to report his activities to security personnel
for two to three years. Such is not the conduct expected of one granted a security
clearance. Despite his present contrition, his behavior, at best, portrays questionable
judgment; at worst, it reflects a lack of candor, trustworthiness, reliability, an
unwillingness to comply with rules and regulations, and poor judgment. 
Moreover, Applicant’s explanation that he failed to remember or appreciate that
his illegal activities would be of concern to security personnel is unpersuasive. He knew
from the beginning that marijuana was a controlled substance and its possession
proscribed. Good judgment should have led him to conclude that using, acquiring,
cultivating, reaping, and being sentenced for possession of the illegal drug would be of
significant interest to his employer, security personnel, the DOD, and the government
that had entrusted him with a security clearance. Despite his contrition and the passage
of five years, the significantly protracted cover-up of his offense still remains a
significant issue. Also of concern are his attempts to minimize his actions and to
perpetuate a rationale incompatible with the record evidence, which strongly portrays
Applicant to be an insightful and intelligent adult. 
While Applicant’s inaccuracy with dates mitigates personal conduct security
concerns about the duration of his drug use, it does not mitigate personal conduct
security  concerns related to his 2005 drug activity or his delay in disclosing his actions.
Given the circumstances, the significant concerns remaining under Guideline E and the
whole-person analysis, personal conduct security concerns are unmitigated. Clearance
is denied.   
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: FOR APPLICANT
Subparagraphs 1.a-1.d: For Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: For Applicant
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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.
Clearance denied.
ARTHUR E. MARSHALL, JR.
Administrative Judge