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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
----------------,   ------------------- )       ISCR Case No. 10-01168
)
)
Applicant for Security Clearance )
Appearances
 For Government: David F. Hayes, Esquire, Department Counsel
For Applicant: Pro se
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Decision
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CURRY, Marc E., Administrative Judge:
Applicant’s history of drug involvement, in addition to his falsification of his
security clearance application, generate security concerns that he failed to mitigate.
Clearance is denied.
Statement of the Case
On August 17, 2010, the Defense Office of Hearings and Appeals (DOHA) issued
a Statement of Reasons (SOR) to Applicant detailing security concerns under
Guidelines H, Drug Involvement, and E, Personal Conduct. The action was taken under
Executive Order 10865, Safeguarding Classified Information within Industry (February
20, 1960), as amended; of Defense Directive 5220.6, Defense Industrial Personnel
Security Clearance Review Program (January 2, 1992), as amended (Directive), and the
adjudicative guidelines (AG) effective within the Department of Defense for SORs
issued after September 1, 2006. 
Applicant answered the SOR on September 29, 2009, admitting all of the
allegations except SOR subparagraph 2.l, and requesting a hearing. The case was
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assigned to me on October 6, 2010. On October 12, 2010, a notice of hearing was
issued, scheduling the case for October 28, 2010. The hearing was held as scheduled.
At the hearing, I received four government exhibits, sixteen Applicant exhibits, and
Applicant’s testimony. The transcript (Tr.) was received on November 4, 2010.
Findings of Fact
Applicant is a 26-year-old single man with no children. He graduated from college
in May 2009, double majoring in electrical engineering and electronics technology. (AE
D) Since graduating, Applicant has worked for a defense contractor in the field of
logistics analysis. (AE L) His duties include “supporting a government acquisition
shipbuilding program with logistic data analysis including contractual documents,
technical data, customer data, customer maintenance practices, customer operation
characteristics, and related reports to determine requirements.” (Id.)
Applicant’s supervisor characterizes him as “an above average employee and
team member,” with a “‘can do’ attitude.” (AE G) According to Applicant’s company
mentor, his approach to work is enthusiastic, and he has a solid perspective of his
career goals. (AE F) In July 2010, Applicant was promoted to the position of assistant
project manager. (AE L)
Through most of Applicant’s life, he has suffered from a severe speech
impediment that caused him to stutter uncontrollably. (Answer at 2) Throughout his
childhood, he received counseling from multiple speech therapists to no avail. The
problem worsened as Applicant reached adolescence as he increasingly became the
subject of his classmates’ ridicule.
After graduating from high school, Applicant “considered it a ‘fresh start’” and did
not want to experience the derision experienced in high school. (Id.) Consequently, he
“chose self-medication of marijuana to try and aid [him]self with a new set of people [he]
was introduced to.” The marijuana seemed to help him control the anxiety that
accompanied his stuttering. (Id.) 
Beginning in 2004, Applicant used marijuana approximately twice per week. As
Applicant “got closer and closer to graduating from college, [he] came to the realization
that marijuana was not a legal nor healthy way to fix his speech and anxiety problem[s].”
Consequently, in March 2009, he began treating with a physician, board certified in
internal medicine, to address his anxiety problem. (AE A) 
The physician diagnosed him with “anxiety-related stuttering in speech . . . ,”  and
prescribed Applicant Xanax, an anti-anxiety medication. (Ex. A) This medicine has
successfully controlled Applicant’s anxiety, and has enabled him to minimize his
stuttering. (Tr. 41) Applicant continues to see his physician to monitor his treatment
regime. (Id.)
During the years Applicant was abusing marijuana, he was arrested three times
for marijuana-related charges. In June 2006, Applicant was arrested and charged with
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possession of marijuana after the police, while executing a routine traffic stop,
discovered marijuana in his car. (GE 2 at 3) The state delayed prosecution and agreed
to dismiss the case if Applicant completed a six-week drug diversion program. (GE 2 at
4) Applicant completed the drug diversion program and the state dropped the charge.
In June 2007, Applicant was cited for possession of marijuana and drug
paraphernalia after a policeman stopped him for speeding, approached his car, and saw
a bag of marijuana in the center console of the vehicle. (GE 2 at 4) Applicant was not
arrested. At the court hearing, the state deferred prosecution for one year provided
Applicant did not commit any additional offenses in its jurisdiction for a year. One year
later, the state dropped the charges. (Id.)
In August 2007, Applicant was arrested and charged with possession of
marijuana after police discovered marijuana in his vehicle during a routine traffic stop.
(Id.) The court later dismissed the charge.
In October 2009, the police stopped Applicant after observing a liquor bottle in
his car. As the officer reached into the back seat of Applicant’s vehicle to retrieve the
liquor bottle, he noticed marijuana seeds on the car’s floor. (Id. at 5) He then arrested
Applicant and charged him with possession of an open container of alcohol and
possession of marijuana. The court later dismissed the charge. Applicant contends that
he had not smoked marijuana since late 2008, and that the residue was left over from
the period when he smoked marijuana regularly. (Id. at 5)
Between 2002 and 2008, Applicant has received multiple citations for traffic
related offenses, including speeding and/or driving without a seatbelt, (SOR
subparagraphs 2.a - 2.c, 2.e, 2.i), and driving with defective equipment (SOR
subparagraphs 2.g - 2.h) In each instance, he was fined.
Applicant completed a security application on November 10, 2009. In response to
Section 22b: Police Record (Have you been arrested by any police officer, sheriff,
marshal, or any law enforcement officer?), Applicant answered “yes.” (GE 1 at 29) He
listed the arrests in 2005 and 2007, but not the 2009 arrest. Applicant contends he did
not list the arrest because the court had dismissed the charge. (Tr. 74) Section 22 of the
security clearance application requires applicants to list arrests, “regardless of whether
the record in [the] case has been sealed, expunged, or otherwise stricken from the
record, or the charge was dismissed.” (GE 1 at 29)
In response to Section 23a: Illegal Use of Drugs or Drug Activity (In the last 7
year, have you illegally used any controlled substance . . . ?), Applicant answered,
“yes,” and listed marijuana use from May 2005 to June 2005. (Id. at 31) Also, he
characterized the frequency of the use as rare. Applicant contends he under-reported
his marijuana use because when he completed the application, he “was not able to
clearly pinpoint to the time frame of his marijuana use.” (Answer at  6)
Applicant is active in the community, participating in walkathons to raise money
for cancer research, and working with a charity that builds homes in underprivileged
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communities. He continues to avail himself of training opportunities that his employer
offers. (AE P)
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the revised adjudicative guidelines. In addition to
brief introductory explanations for each guideline, the adjudicative guidelines 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. According to AG ¶ 2(c),
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.” 
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 for obtaining a favorable security
decision.
Analysis
Guideline H, Drug Involvement
Under this guideline, “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” (AG ¶ 24). Applicant’s history of illegal drug
use triggers the application of AG ¶¶ 25(a), “any drug abuse,” and 25(c), “illegal drug
possession, including cultivation, processing, manufacture, purchase, sale, or
distribution; or possession of drug paraphernalia.”
The following mitigating conditions are applicable:
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
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cast doubt on the individual’s reliability, trustworthiness, or good judgment;
and
AG ¶ 26(b)  a demonstrated intent not to abuse any drugs in the future, such as:
(1) disassociation from drug-using associates and contacts;
(2) changing or avoiding the environment where drugs were used;
(3) an appropriate period of abstinence;
(4) a signed statement of intent with automatic revocation of clearance for
any violation.
The record is inconclusive as to the length of time Applicant abused marijuana.
Since consulting his physician about his anxiety problem and his marijuana abuse,
Applicant has graduated from college, obtained a job, and earned a promotion. He
continues treatment with his physician, who concluded that Applicant’s anxiety, the
problem that compelled Appellant to abuse marijuana, is under control. Applicant
spends his spare time attending voluntary professional trainings and working in the
community. These facts support Applicant’s contention that he has not used marijuana
since late 2008.
Conversely, the credibility of Applicant’s testimony regarding when he stopped
using marijuana was undermined by his falsification of his security clearance
application. (see Personal Conduct section of Decision, infra.) Moreover, he was
arrested and charged with possession of marijuana in October 2009, five months after
graduating from college. In light of Applicant’s failure to establish definitively when he
stopped using marijuana, I cannot conclude there has been an appropriate period of
abstinence. AG ¶ 26(b)(3) is inapplicable. Similarly, AG ¶ 26(a), is inapplicable.
Although the favorable evidence is insufficient to establish that Applicant has
been marijuana-free for as long as he contends, it is sufficient to infer that he currently
is not using marijuana, and is no longer immersed in the marijuana-abusing culture. AG
¶¶ 26(b)(1) and 26(b)(2) apply. 
Personal Conduct
Under this guideline, “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.” (AG ¶ 15) Also, “of special interest is any failure to provide truthful and
candid answers during the security clearance process . . . .” (Id.)
Applicant’s multiple traffic-related citations trigger the application of AG ¶
16(d)(3), “a pattern of dishonesty or rule violations.” Applicant’s omission of an arrest
from his security clearance application and his minimization of the frequency and length
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of his marijuana abuse raises the issue of whether AG ¶ 16(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,” applies.
Applicant has not received a traffic citation for more than a year. This passage of
time combined with his maturity, demonstrated by his solid work ethic and civic
volunteerism, lead me to conclude that AG ¶¶ 17(c ), “the offense is so minor, or so
much time has passed . . . that it is unlikely to recur and does not cast doubt on the
individual’s reliability, trustworthiness, or good judgment,” and 17(e), “the individual has
taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or
duress,” apply.
Applicant’s testimony regarding the erroneous information he provided on his
security clearance application was not credible. I conclude that he falsified his security
clearance application. AG ¶ 16(a) applies without mitigation to his security clearance
omissions.
Whole-Person Concept
Under the whole-person concept, the administrative judge should consider the
nine adjudicative process factors listed at AG ¶ 2(a): 
(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.
The seriousness of Applicant’s past  marijuana use is mitigated somewhat by his
immaturity during the years he was abusing it, and his misguided attempts, as
documented by his physician, to self-medicate his anxiety problem with it. There is also
compelling evidence of rehabilitation. However, Applicant falsified his security clearance
application by intentionally omitting an arrest, and intentionally providing inaccurate
information about the extent and frequency of his marijuana use. Under these
circumstances, I cannot conclude when he stopped using marijuana, and cannot assess
whether enough time has elapsed to mitigate the security concerns. Upon considering
this case in the context of the whole-person concept, I conclude Applicant has failed to
carry the burden.
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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: AGAINST APPLICANT
Subparagraphs 1.a-1.e: Against Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraph 2.a - 2.c: For Applicant
Subparagraph 2.d: Against Applicant
Subparagraph 2.e: For Applicant
Subparagraph 2.f : Against Applicant
Subparagraphs 2.g - 2.i: For Applicant
Subparagraph 2.j - 2.m: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance. Eligibility for access to classified information is denied.
                                             
MARC E. CURRY
Administrative Judge