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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 10-00526
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Melvin Howry, Esquire, Department Counsel
For Applicant: Alan V. Edmunds, Esquire
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Decision
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LYNCH, Noreen A., Administrative Judge:
On May 19, 2010, the Defense Office of Hearings and Appeals (DOHA) issued
Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline E
(Personal Conduct). DOHA acted 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). 
 
Applicant timely answered the SOR, admitted all allegations in the SOR with
explanation, and requested a hearing. DOHA assigned the case to me on July 28, 2010.
DOHA issued a Notice of Hearing on September 10, 2010, and I convened the hearing
as scheduled on October 6, 2010. Department Counsel and Applicant’s Counsel
stipulated to the admission of documents, which were admitted as Government Exhibits
(GE) 1-3 and Applicant Exhibits (AE) A-BB. Applicant testified and presented the
testimony of three witnesses. DOHA received the transcript (Tr.) on October 13, 2010.
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Based upon a review of the case file, pleadings, exhibits, and testimony, eligibility for
access to classified information is denied.
Findings of Fact
Applicant is a 44-year-old employee of a defense contractor. After graduating
from high school in 1984, he entered college and obtained his degree in 1988. He is
divorced and has two children. He has been with his current employer since January
1994. (GE 1) Applicant has held a security clearance since approximately 2001. (GE 2)
Applicant completed a security clearance application in March 2001. He falsified
his answers to question 27 concerning his use of illegal drugs by not listing his use of
marijuana from about 1994 until 2001. During the security clearance process, Applicant
did not report to investigators that he had used marijuana. Applicant continued to use
marijuana until about 2004. During this entire period, Applicant held a security
clearance.
Applicant completed a security clearance application in October 2009. He
answered Section 23 concerning illegal drug use in the affirmative. He listed his use of
marijuana from approximately 1982 until 2004 (estimated). He noted that it was
recreational use off-and-on and of varying frequency. He reports that he only used at
home or a friend’s house, and that he never used during work or any type of official
business. (GE 2)  
In a November 2009 interview, Applicant reported to DOHA that he held a
security clearance but intentionally failed to disclose the information about his past
marijuana use because “it would jeopardize his employment and he did not want to lose
his job.” (GE 3) He told the investigator that he has never failed a drug test and he has
had a successful working career. 
At the hearing, Applicant stated that he initially falsified his security clearance
application in 2001 because of a lack of judgment. He elaborated that he was in a
troublesome marriage. He married in 1991 and separated in 2005. Applicant and his
wife have two children. His wife abused alcohol throughout the marriage, and he
worried about the safety of the children. (Tr. 45) Applicant divorced in 2006 and has
custody of his two children. Applicant sought therapy in 2006 to address his divorce and
use of marijuana. (Tr. 68) 
Applicant believes his divorce changed him for the better. He is the sole
custodian of his children. He loves his work. He is praised for his diligent work and he
never considered himself a security risk. (Tr. 69)
Applicant submitted negative voluntary drug test results from October 1, 2010.
He also submitted a notarized statement of intent, dated June 12, 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 Z) 
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Applicant also submitted a hair-follicle test. (AE F) Applicant states that this type
of test can show drug usage up to a year prior. (Tr. 48) Applicant is emphatic that he
stopped his use of marijuana in 2004. He will never use the illegal substance again. (Tr.
49) Applicant regrets the initial omission. 
Applicant explained that he disclosed the information on his 2009 SCA because
he made a decision to change his life and he wanted to be truthful. He noted that he
had used marijuana at parties since about 1993. At the hearing, Applicant noted that he
was now given an opportunity in this 2009 investigation to be “fully truthful.” (Tr. 60)
Applicant’s vice-president, who has held a clearance for 30 years, describes
Applicant as a hard-working engineer and a trustworthy person. He has known
Applicant for 14 years. He now knows about Applicant’s use of marijuana. Applicant is a
family man. (Tr. 23)
A colleague considers Applicant an honest person. She knows that people make
mistakes. She would trust Applicant with her children. She noted that his divorce was
very difficult and he was in an abusive relationship. (Tr. 31) She recommends Applicant
for retention of a security clearance. He is described as a brilliant engineer and an asset
to the company. (AE C)
A program manager in the company, who is retired military, describes Applicant
as one of the lead engineers. Applicant’s reliability is impeccable. He sees Applicant
daily and has known him for approximately seven years. (Tr. 38) He is aware of the
government’s concerns but still recommends Applicant. He is totally dedicated to his
work. Applicant’s professionalism, knowledge, and experience have all been great
assets to our program. (AE D) 
Applicant submitted numerous letters of reference and commendations, including
program evaluations. (AE J-Y) He submitted a notarized statement of intent not to use
an illegal drug in the future. (AE Z) Applicant was consistently described as an
outstanding engineer.
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 must be 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,
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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, 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 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 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 (EO) 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 E, Personal Conduct
AG ¶ 15 expresses the security concern for 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.
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The following will normally result in an unfavorable clearance action or
administrative termination of further processing for clearance eligibility:
(a) refusal, or failure without reasonable cause, to undergo or cooperate
with security processing, including but not limited to meeting with a
security investigator for subject interview, completing security forms or
releases, and cooperation with medical or psychological evaluation; and,
(b) refusal to provide full, frank and truthful answers to lawful questions of
investigators, security officials, or other official representatives in
connection with a personnel security or trustworthiness determination.
AG ¶ 16 describes conditions that could raise a security concern and may be
disqualifying:
(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;
(b) deliberately providing false or misleading information concerning
relevant facts to an employer, investigator, security official, competent
medical authority, or other official government representative;
(c) credible adverse information in several adjudicative issue 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;
(d) credible adverse information that is not explicitly covered under any
other guideline and may not be sufficient by itself for an adverse
determination, but which, when combined with all available information
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. This includes
but is not limited to consideration of:
(1) untrustworthy or unreliable behavior to include breach of
client confidentiality, release of proprietary information,
unauthorized release of sensitive corporate or other
government protected information:
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(2) disruptive, violent, or other inappropriate behavior in the
workplace; 
(3) a pattern of dishonesty or rule violations; and,
(4) evidence of significant misuse of Government or other
employer's time or resources.
(e) personal conduct, or concealment of information about one's conduct,
that creates a vulnerability to exploitation, manipulation, or duress, such
as (1) engaging in activities which, if known, may affect the person's
personal, professional, or community standing, or (2) while in another
country, engaging in any activity that is illegal in that country or that is
legal in that country but illegal in the United States and may serve as a
basis for exploitation or pressure by the foreign security or intelligence
service or other group;
(f) violation of a written or recorded commitment made by the individual to
the employer as a condition of employment; and
(g) association with persons involved in criminal activity. 
In 2001, Applicant intentionally falsified his security clearance application by his
omission of his use of marijuana from approximately 1994-2001 by his own account. He
was granted a security clearance and continued to use marijuana until approximately
2004. Applicant admitted using poor judgment, but believed he was a different person at
the time. He claims that his abusive marriage had an impact on his ability to be totally
forthcoming about his marijuana use.
AG ¶ 17 provides conditions that could mitigate security concerns:
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
(b) the refusal or failure to cooperate, omission, or concealment was
caused or significantly contributed to by improper or inadequate advice of
authorized personnel or legal counsel advising or instructing the individual
specifically concerning the security clearance process. Upon being made
aware of the requirement to cooperate or provide the information, the
individual cooperated fully and truthfully;
(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;
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(d) the individual has acknowledged the behavior and obtained counseling
to change the behavior or taken other positive steps to alleviate the
stressors, circumstances, or factors that caused untrustworthy, unreliable,
or other inappropriate behavior, and such behavior is unlikely to recur;
(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress;
(f) the information was unsubstantiated or from a source of questionable
reliability; and
(g) association with persons involved in criminal activity has ceased or
occurs under circumstances that do not cast doubt upon the individual's
reliability, trustworthiness, judgment, or willingness to comply with rules
and regulations.
The intentional omission was in 2001. From 2001-2009, Applicant did not discuss
the use of marijuana with his employer. He waited until he completed his reinvestigative
security clearance in 2009. He now acknowledges that it was a poor decision and has
some regret. He acknowledged that he should have answered truthfully when
completing his security clearance application in March 2001.
Although not specifically alleged conduct, Applicant’s failure to tell his employer --
about his illegal drug use (including while holding a security clearance) on any security
clearance applications until last year is quite troubling. This lack of disclosure
undermines his credibility and judgment. 
Applicant acknowledged that throughout his career he never disclosed any
information about his early drug use to his managers. It was not until 2009 that
Applicant chose to disclose the instances of illegal drug use, including use while holding
a security clearance. 
Applicant’s stellar career and his character references weigh in his favor.
However, the witnesses and the references could not have known about Applicant’s
deliberate failure to disclose material information until recently. No one knew until 2009
about any of the above described incidents. I have considered that he has never been
arrested, charged, or disciplined in his lengthy career. He has not mitigated personal
conduct security concerns.
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 circumstances. The administrative judge should consider the nine
adjudicative process factors listed at AG ¶ 2(a): 
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(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 they are insufficient to
overcome the government’s case. 
Applicant is a well-educated professional with an excellent career record. He held
security clearances. He has favorable recommendations and reports. His colleagues
respect and trust him. His current civilian employer considers him an outstanding
employee. He has never been charged or convicted of a crime. He has changed his
habits since his divorce.
Applicant’s personal conduct and disregard of rules and regulations is troubling.
He admitted that it was a bad decision to choose not to disclose his early illegal drug
use (including while holding a security clearance) until 2009. 
Overall, the record evidence leaves me with questions and doubts about
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant has not mitigated the security concerns arising under 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
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against 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 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