DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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---------------------------   )       ISCR Case No. 09-07046
--------------------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Ray T. Blank, Jr., Department Counsel
For Applicant: Pro se
December 30, 2010
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Decision
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LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted his Electronic Questionnaire for Investigations Processing
(e-QIP) on July 14, 2009. (Government Exhibit 4.) On July 16, 2010, the Defense Office
of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the
security concerns under Guidelines H, E and L 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) promulgated by the President
on December 29, 2005, and effective within the Department of Defense for SORs
issued after September 1, 2006.
The Applicant responded to the SOR in writing on August 5, 2010, in which he
elected to have the case determined on a written record in lieu of a hearing.
Department Counsel submitted the Government s File of Relevant Material (FORM) to
the Applicant on September 10, 2010. The Applicant was instructed to submit
information in rebuttal, extenuation or mitigation within 30 days of receipt. Applicant
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received the FORM on September 17, 2010, and he submitted a reply dated September
30, 2010.  The case was assigned to the Administrative Judge for resolution on October
28, 2010. The Government, through Department Counsel, moved to amend the SOR
under subparagraph 3(d) to reflect the following allegation: From December 2006 to at
least July 16, 2010, you were employed by Kell Systems, Inc. A U.S. subsidiary for Kell
Systems, Ltd., a British based company.  The Government also moved to amend
subparagraph 3(e) to reflect the following allegation: You own approximately $115K in
stock shares with Kell Systems, Inc., a U.S. subsidiary for Kell Systems, Ltd., a British-
based company.  The Applicant had notice of the proposed amendments and submitted
no objection.  Accordingly, the proposed amendments were allowed.  Based upon a
review of the case file, pleadings and exhibits, eligibility for access to classified
information is denied.
FINDINGS OF FACT
The Applicant is 51 years old.  He is employed by a defense contractor and is
applying for a security clearance in connection with his employment.
Paragraph 1 (Guideline H - Drug Involvement). The Government alleges that the
Applicant is ineligible for clearance because he abuses illegal drugs.
Paragraph 2 (Guideline E - Personal Conduct). The Government alleges that the
Applicant is ineligible for clearance because he has engaged in conduct involving
questionable judgment, lack of candor, dishonesty, or an unwillingness to comply with
rules and regulations.
The Applicant admitted allegations 1(a), 1(b), and 2(c), as set forth in the SOR.
He denied allegations 2(a), 2(b), 3(a), 3(b), and 3(c).  (Applicant s Answer to the SOR.)
The Applicant used marijuana over a thirty-four year period, from about 1974 to at least
September 2008.  (Government Exhibit 4).  He used marijuana on perhaps eight
occasions while traveling overseas during ten to twelve business trips between 1991
and 2008.  (Government Exhibit 2).  He smoked marijuana in a foreign country on at
least three of the trips between 2001 and 2008.  On those three occasions, he states
that he may have taken perhaps eight puffs of marijuana.  The Applicant states that he
is not a habitual user of marijuana, that he is not a current user, and that he has not
used marijuana in the past two years. He claims that the only uses of marijuana in the
past seventeen years occurred where it was not illegal.  During an interview with a DoD
investigator on August 25, 2009, the Applicant indicated that he may use marijuana in
the future under certain circumstances, if he did not have a security clearance.
(Government Exhibit 6).  He now states that he has no intentions of using marijuana in
the future.  (Government Exhibit 2). 
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Paragraph 3 (Guideline L - Outside Activities). The Government alleges that the
Applicant is ineligible for clearance because he has engaged in certain types of
outside-employment or activities that pose a conflict with an individual’s security
responsibilities.
The Applicant is currently employed with a United States defense contractor.  He
has also worked for a company that is the American subsidiary of a British-based
company from December 2006 to at least July 16, 2010.  He is now a minority
shareholder in the British-based company.  His shares are valued at approximately
$115,000.00 with the potential to be worth about $500,000.00 if bought out by another
American company.  (Government Exhibit 6).  The Applicant is also the President of the
United States subsidiary of this British-based company.  (Government Exhibit 4).  The
company sells equipment to the United States Government directly or through
authorized resellers of the units, which include other companies with significant
Department of Defense contracts.  (Government Exhibit 2).  Applicant has a substantial
financial stake with his company by virtue of stock ownership. The Applicant states that
the company is going through the due diligence process of being acquired. The
completion of the sale of the company stock is expected by November 2010. There is
no evidence in the record to support this transaction.
A Canadian based company was a customer of the Applicant’s company from
December 2004 to April 2005.  A Swiss-based company was a customer of the
Applicant’s company from June 2005 to May 2006.  A German-based company was a
client from February 2005 to July 2007.
POLICIES
Enclosure 2 and Section E.2.2. of the Directive sets forth adjudication policies
divided into "Disqualifying Factors" and "Mitigating Factors." The following Disqualifying
Factors and Mitigating Factors are found to be applicable in this case:
Guideline H (Drug Involvement)
24. The Concern.  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.
Conditions that could raise a security concern:
25.(a) any drug abuse;
25.(c) illegal drug possession, including cultivation, processing, manufacture,
purchase, sale or distribution; or possession of drug paraphernalia. 
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Conditions that could mitigate security concerns:
None.
Guideline E (Personal Conduct)
15. The Concern. 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.
Conditions that could raise a security concern:
16. (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
judgement, 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;
16.(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:
(3)  a pattern of dishonesty or rules violation. 
16.(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.
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Conditions that could mitigate security concerns:
None.
Guideline L (Outside Activities)
36. The Concern. Involvement in certain types of outside employment or activities is of
security concern if it posses a conflict of interest with an individual’s security
responsibilities and could create an increased risk of unauthorized disclosure of
classified information.
Conditions that could raise a security concern:
37.(a) any employment or service, whether compensated or volunteer, with;
(2) any foreign national, organization, or other entity;
(3)  a representative of any foreign interest. 
Conditions that could mitigate security concerns:
None.
In addition, as set forth in Enclosure 2 of the Directive at pages 18-19, in
evaluating the relevance of an individual’s conduct, the Administrative Judge should
consider the following general factors:
a.  The nature, extent, and seriousness of the conduct;
b.  The circumstances surrounding the conduct, to include knowledgeable
participation;
c.  The frequency and recency of the conduct;
d.  The individual’s age and maturity at the time of the conduct;
e.  The extent to which participation is voluntary;
f.  The presence or absence of rehabilitation and other permanent behavioral
changes;
g.  The motivation for the conduct;
h.  The potential for pressure, coercion, exploitation or duress; and
i.  The likelihood of continuation or recurrence.
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The eligibility criteria established in the DoD Directive identify personal
characteristics and conduct which are reasonably related to the ultimate question,
posed in Section 2 of Executive Order 10865, of whether it is "clearly consistent with the
national interest" to grant an Applicant’s request for access to classified information.
The DoD Directive states, "The adjudicative process is an examination of a
sufficient period of a person’s life to make an affirmative determination that the person is
an acceptable security risk. Eligibility for access to classified information is predicated
upon the individual meeting these personnel security guidelines. The adjudicative
process is the careful weighing of a number of variables known as the whole-person
concept. Available, reliable information about the person, past and present, favorable
and unfavorable should be considered in reaching a determination." The Administrative
Judge can draw only those inferences or conclusions that have reasonable and logical
basis in the evidence of record. The Judge cannot draw inferences or conclusions
based on evidence which is speculative or conjectural in nature. Finally, as emphasized
by President Eisenhower in Executive Order 10865, "Any determination under this order
shall be a determination in terms of the national interest and shall in no sense be a
determination as to the loyalty of the Applicant concerned.”
CONCLUSIONS 
In the defense industry, the security of classified industrial secrets is entrusted to
civilian workers who must be counted upon to safeguard such sensitive information
twenty-four hours per day, seven days per week. The Government is therefore
appropriately concerned when available information indicates that an Applicant for
clearance may be involved in drug abuse, personal conduct and outside activities that
demonstrates poor judgment or unreliability.
It is the Government’s responsibility to present substantial evidence to support
the finding of a nexus, or rational connection, between the Applicant’s conduct and the
continued holding of a security clearance. If such a case has been established, the
burden then shifts to the Applicant to go forward with evidence in rebuttal, explanation
or mitigation, which is sufficient to overcome or outweigh the Government’s case. The
Applicant bears the ultimate burden of persuasion in proving that it is clearly consistent
with the national interest to grant him a security clearance.
In this case the Government has met its initial burden of proving that the
Applicant has engaged in drug involvement (Guideline H), personal conduct (Guideline
E) and outside activities (Guideline L). The totality of this evidence indicates poor
judgment, unreliability and untrustworthiness on the part of the Applicant. Because of
the scope and nature of the Applicant’s conduct, I conclude there is a nexus or
connection with his security clearance eligibility. Considering all of the evidence, the
Applicant has not introduced persuasive evidence in rebuttal, explanation or mitigation
that is sufficient to overcome the Government’s case under Guidelines H, E and L of the
SOR.
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The evidence shows that the Applicant used marijuana for thirty-four years, from
1974 to at least September 2008. There is also evidence that just last year, in August
2009, at forty-nine years of age, the Applicant discussed the matter with an investigator
from DoD, and was unable to rule out the future use of marijuana under certain
circumstances.  He now states that he does not intend to use illegal drugs in the future.
Given his long history of marijuana use, more time without drug use is required to
demonstrate to the Government that he will not return to his old habits.  Under Guideline
H, Drug Involvement, Disqualifying Conditions 25.(a) any drug abuse, 25.(c) illegal drug
possession, including cultivation, processing, manufacture, purchase, sale or
distribution; or possession of drug paraphernalia and apply. None of the mitigating
conditions are applicable.  Accordingly, I find against the Applicant under Guideline H,
Drug Involvement.
Applicant’s repeated use of marijuana demonstrates unreliability and
untrustworthiness.  Under the particular facts of this case, his poor personal conduct is
considered a significant security risk, which prohibits a favorable determination in this
case.  Under Guideline E, Personal Conduct, the following Disqualifying Conditions
apply:
16.(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 judgement, 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, 16.(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:
(3) a pattern of dishonesty or rules violations, and 16.(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.
None of the mitigating conditions are applicable. Consequently, I find against the
Applicant under Guideline E, Personal Conduct.
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In regard to his outside activities the record shows that the Applicant is a minority
shareholder, owning shares valued at $115,000.00 with the potential to be worth about
$500,000.00 if bought out by another American company.  He is President of the United
States subsidiary of a British-based company.  This company does business with the
Department of Defense.  Applicant has a substantial financial stake with the company
by virtue of his stock. Under Guideline L, Outside Activities, Disqualifying Conditions
37(a) any employment or service, whether compensated or volunteer, with; (2) any
foreign national, organization, or other entity; and (3) a representative of any foreign
interest apply. None of the mitigating conditions are applicable.  Accordingly, I find
against him under Guideline L, Outside Activities.
I have also considered the "whole-person concept" in evaluating the Applicant’s
eligibility for access to classified information. Under the particular facts of this case, the
totality of the conduct set forth under all of the guidelines viewed as a whole, support a
whole-person assessment of poor judgment, untrustworthiness, unreliability, a lack of
candor, an unwillingness to comply with rules and regulations, and/or other
characteristics indicating that the person may not properly safeguard classified
information.
This Applicant’s long history of marijuana use and his outside involvement with a
British-based company demonstrate that he is not sufficiently trustworthy at this time,
and he clearly does not meet the eligibility requirements for access to classified
information. Accordingly, I find against the Applicant under Guideline H (Drug
Involvement), Guideline E (Personal Conduct) and Guideline L (Outside Activities).
On balance, it is concluded that the Applicant has failed to overcome the
Government’s case opposing his request for a security clearance. Accordingly, the
evidence supports a finding against the Applicant as to the factual and conclusionary
allegations expressed in Paragraphs 1, 2 and 3 of the SOR.
FORMAL FINDINGS
Formal findings For or Against the Applicant on the allegations in the SOR, as
required by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: Against the Applicant.
Subpara. l.a.: Against the Applicant.
Subpara. I.b.: Against the Applicant.
Paragraph 2: Against the Applicant.
Subpara. 2.a.: Against the Applicant.
Subpara. 2.b.: Against the Applicant.
Subpara. 2.c.: Against the Applicant.
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Paragraph 3: Against the Applicant.
Subpara. 3.a.: For the Applicant.
Subpara. 3.b.: For the Applicant.
Subpara. 3.c.: For the Applicant.
Subpara. 3.d.: Against the Applicant.
Subpara. 3.e.: Against the Applicant.
DECISION
In light of all the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant or continue a security clearance for
the Applicant.
Darlene Lokey Anderson
Administrative Judge