1 
 
                                                              
                        DEPARTMENT OF DEFENSE    
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
) 
   )    ISCR Case No. 08-06697 
 ) 
) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Candace L. Garcia, Esquire, Department Counsel 
For Applicant: Pro se 
 
 
 
______________ 
 
Decision 
______________ 
 
 
MATCHINSKI, Elizabeth M., Administrative Judge: 
 
Applicant abused marijuana, LSD, and methamphetamines during his late teens and 
early twenties. He ceased his illegal drug use in 1981 only to resume smoking marijuana 
around 1999 or 2000. In 2003, he began abusing Xanax without a prescription. He abused 
both drugs, for the most part weekly and while he held a security clearance, until his arrest 
on felony and misdemeanor drug charges in January 2007. He abused marijuana in 
September 2007 pending his sentencing on those drug charges. Applicant also abused 
alcohol, but he limited his drinking after an August 2003 drunk driving offense. He denied 
any illegal drug use on his initial application for a security clearance, and concealed his 
latest abuse when he reapplied for his clearance. Drug Involvement and Personal Conduct 
are not mitigated. Clearance denied. 
 
 Statement of the Case  
 
On June 9, 2009, the Defense Office of Hearings and Appeals (DOHA) issued a 
Statement of Reasons (SOR) to Applicant detailing the security concerns under Guideline 
H (Drug Involvement), Guideline G (Alcohol Consumption), and Guideline E (Personal 
 
 
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Conduct), which provided the basis for its preliminary decision to revoke his security 
clearance. 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) effective 
within the Department of Defense on September 1, 2006. 
 
Applicant responded to the SOR allegations on July 17, 2009. On August 31, 2009, 
he indicated that he did not want a hearing. In September 2009, the Government 
requested a hearing, and on May 11, 2010, the case was assigned to me to consider 
whether it is clearly consistent with the national interest to grant or continue a security 
clearance for Applicant. On September 30, 2010, I scheduled a hearing for November 3, 
2010.
1
 
 
I convened the hearing as scheduled. Nine Government exhibits (Ex. 1-9) and six 
Applicant exhibits (Ex. A-F) were entered into evidence. Applicant testified, as reflected in a 
transcript (Tr.) received on November 12, 2010. The SOR was also amended at the 
Government‟s motion. 
 
Procedural Rulings 
 
 At the hearing, before the introduction of any evidence, the Government moved to 
amend the SOR to allege under Guideline H in a new subparagraph 1.h that Applicant 
received court-ordered substance abuse treatment from February 2008 to December 2008 
as set forth in SOR 2.c of Guideline G. Since Applicant had prior notice of the alleged 
security concern, albeit under Guideline G only, and he did not object, I granted the 
amendment. 
 
 Then, after the evidence had been submitted, the Government moved to amend the 
SOR to add a new allegation 3.e under Guideline E, Personal Conduct, based on 
Applicant‟s admission that he did not list his marijuana use on his September 2001 security 
clearance application because he did not want to jeopardize his job. Applicant did not 
object. Accordingly, the SOR was amended to include a new allegation as follows: 
 
3.e. You falsified your September 25, 2001, security clearance application in 
response to question 27, “Since the age of 16 or in the last 7 years, 
whichever is shorter, have you illegally used any controlled substance, for 
example, marijuana, cocaine, crack cocaine, hashish, narcotics (opium, 
morphine, codeine, heroin, etc.), amphetamines, barbiturates, 
methaqualone, tranquilizers, etc.), hallucinogenics (LSD, PCP, etc.), or 
prescription drugs?,” by failing to disclose that you had used marijuana in 
approximately 1999 and 2000. 
                                                 
1
 It is unclear what delayed assignment of the case for a hearing. The hearing was scheduled to maximize 
the Government‟s travel to this region. 
 
 3 
Summary of SOR Allegations 
 
The amended SOR alleged under Guideline H, Drug Involvement, that Applicant 
used marijuana with varying frequency from his late teens to at least September 2007 
(SOR 1.a), non-prescribed Xanax (SOR 1.b) and Oxycontin (SOR 1.c) from about 1970 to 
at least January 2007, LSD (SOR 1.d), and methamphetamine (SOR 1.e). Applicant was 
also alleged to have used the marijuana, Xanax, and Oxycontin after he had been granted 
a security clearance in about November 2001 (SOR 1.f); to have been arrested and 
convicted of January 2007 drug possession and driving under the influence of alcohol or 
drugs charges (SOR 1.g); and to have received court-ordered substance abuse treatment 
from February 2008 to December 2008 (SOR 1.h). 
 
The January 2007 driving under the influence of alcohol or drugs offense and 
substance abuse treatment were also alleged under Guideline G, Alcohol Consumption 
(SOR 2.b and 2.c). Also under Guideline G, Applicant was allegedly arrested and convicted 
of an August 2003 driving while intoxicated charge (SOR 2.a). 
 
Applicant‟s use of marijuana, Xanax, and Oxycontin after he had been granted a 
security clearance was cross-alleged under Guideline E, Personal Conduct (SOR 3.a). 
Furthermore, he was alleged under Guideline E to have deliberately falsified his January 
2008 Questionnaire for National Security Positions (QNSP) by omitting his August 2003 
DWI in response to question 23 concerning his police record (SOR 3.b) and by 
misrepresenting the extent of his drug use in response to question 24 concerning any 
illegal drug use in the last seven years (SOR 3.d). Applicant also allegedly falsified material 
facts during his March 2008 interview with an authorized investigator by denying that he 
had used any illegal drugs after January 2007 when he had used marijuana in September 
2007 (SOR 3.c). Furthermore, Applicant was alleged to have falsified his September 2001 
(SF 86) security clearance application by denying any illegal drug use within the preceding 
seven years (SOR 3.e). 
 
Findings of Fact 
 
In his Answer, Applicant admitted that he had used marijuana from his late teens to 
at least September 2007, and LSD and methamphetamine in the early 1970s. He also 
admitted that he had used marijuana, Xanax, and Oxycontin after he had been granted a 
security clearance, although he denied that he had used Xanax or Oxycontin to the extent 
alleged. Applicant acknowledged his arrests for drug and drunken driving offenses, as well 
as his court-ordered substance abuse treatment. He denied that he had deliberately 
falsified his QNSP or his subject interview. In response to the recent amendment, Applicant 
admitted that he had lied about his drug use on his initial SF 86. His admissions are 
incorporated as findings of fact. After considering the pleadings, exhibits, and transcript, I 
make the following additional findings of fact. 
 
Applicant is 57 years old, and he has been employed as an assembler by a defense 
contractor since November 1982, but for around a year following a layoff in 2002. (Tr. 29.) 
Applicant has been married to his spouse since September 1982. They have two 
 
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daughters, who are in their late twenties, unmarried, and have five children between them. 
The daughters and grandchildren live with Applicant and his spouse. (Ex. 1; 5; A.) 
Applicant‟s spouse is disabled and has a disability benefit. (Tr. 30.) 
 
Applicant began smoking marijuana around age 16. He smoked it once weekly and 
purchased it from street dealers until about May 1981, when his first daughter was born. 
(Tr. 27-28.)  During his late teens and early twenties, he used and purchased LSD on five 
occasions that he can specifically recall. For about a year in his early twenties, he ingested 
$5 worth of crystal methamphetamine once a week, which he purchased. He apparently 
also used cocaine.
2
 (Tr. 38-39.) 
 
Applicant used no illegal drugs from about May 1981 to 1999 or 2000, when he 
resumed smoking marijuana about once a week, to deal with the stress of a potential job 
layoff. (Tr. 28-29.) On January 12, 2001, Applicant‟s father died in an accident. (Tr. 41.) On 
September 25, 2001, Applicant applied for a Confidential security clearance for his job. He 
completed a security clearance application (SF 86) on which he responded “No” to 
question 27 concerning any illegal drug use in the last seven years. (Ex. 2.) Applicant did 
not indicate on his SF 86 that he had resumed his marijuana use because he was not 
proud of it and thought it would jeopardize his job. (Tr. 79.) He was apparently granted a 
Confidential security clearance around November 2001
3
 (Ex. 1; 2.), but was laid off around 
2002 for a little over a year. During his layoff, he supported his family with his 
unemployment compensation. (Tr. 29.) He enjoyed marijuana‟s relaxing effects, and 
continued to smoke the illegal drug occasionally, up to once weekly at times. He bought the 
marijuana from street dealers. (Tr. 30.) Applicant, who had been a weekend drinker, began 
consuming alcohol during the week as well, and “it snowballed from there.” (Tr. 73.) 
 
In June 2002, Applicant left the scene of an accident involving property damage 
without notifying the police or property owner. Three days after the accident, he was 
questioned by police. He led the officer to believe that another driver had been involved. 
On July 16, 2002, he appeared in court on charges of leaving the scene of an accident and 
filing a false report to law enforcement. He pleaded guilty to both charges and was 
sentenced to fines and assessments totaling $600 for leaving the scene and $1,250 ($250 
suspended) for filing a false report. (Ex. 8.) There is no indication that Applicant was under 
the influence of a controlled substance or alcohol before the incident, although he was 
drinking alcohol and smoking marijuana at that time of his life. He drank beer, vodka, or 
tequila, usually at home, in quantities varying from two to ten drinks per occasion. (Ex. 3; 
Tr. 72.)  
                                                 
2
 During his February 2008 evaluation for court-ordered counseling, Applicant apparently admitted to a history 
of substance use which included cocaine. (Ex. 5. ) Applicant was not asked about any cocaine use, and it was 
not raised as an issue in the SOR. 
 
3
Applicant indicated on his January 2008 QNSP (pages 6 through 27 of his Electronic Questionnaire for 
Investigations Processing (e-QIP)), that his background was investigated for a Confidential security clearance 
around November 2000. (Ex. 1.)  Applicant‟s employer certified a request for a Confidential security clearance 
for him in conjunction with a security clearance application signed on September 25, 2001. (Ex. 2.) So it would 
appear that Applicant‟s background was investigated in 2001 rather than 2000. 
 
 
 5 
 
In August 2003, Applicant was charged with operating under the influence of alcohol 
(OUI), first offense.
4
 He had consumed six alcohol drinks (“Smirnoff Ices”) over a three-
hour period and had smoked marijuana at a card game before his arrest. (Tr. 50-51.) In 
October 2003, he appeared in court without counsel and pleaded guilty. Applicant was 
sentenced to fines and assessments totaling $420 and he lost his license for 90 days. (Ex. 
7.) He also completed a mandatory driving while intoxicated course and three follow-up 
counseling sessions. (Ex. 5.) 
 
For the most part, Applicant stopped drinking alcohol after the OUI
5
 (Tr. 34.), but he 
continued to smoke marijuana up to once a week. (Tr. 30.) He also began to take an anti-
depressant (Xanax) without a prescription to relieve “the pressures of the job and the 
pressures of life” (Tr. 33.), including depression over his father‟s death. (Tr. 42.) He abused 
Xanax three days a week; on Fridays, Saturdays, and Sundays. (Tr. 34.) Applicant 
obtained the Xanax from his cousin, who himself did not have a prescription for the drug. 
(Tr. 35.) Applicant continued to abuse marijuana and Xanax, for the most part weekly, until 
January 2007. (Tr. 30, 35.) 
 
On January 11, 2007, Applicant took some non-prescribed Oxycontin offered to him 
by his cousin. They were playing cards and Applicant complained of neck pain. (Tr. 36.) 
The next day, Applicant drank an ounce of vodka at his father‟s gravesite as he did every 
year on the anniversary of his father‟s death. Applicant then went to friend‟s home to play 
cards, where he smoked marijuana that he had purchased from a street dealer and he also 
ingested four Xanax. (Tr. 43-44.) En route home, Applicant fell asleep and crashed his 
vehicle. He tested positive for controlled substances (marijuana, Xanax, and Oxycontin) at 
the hospital (Ex. 3.), and he had in his possession 85 Xanax pills and 1.5 ounces of 
marijuana. (Tr. 44.) Applicant was arrested for driving under the influence of alcohol or a 
controlled drug (DUI/drug), possession of a controlled drug, and felony possession of a 
narcotic. On January 13, 2007, he was released on $800 personal recognizance bail 
conditioned on refraining from alcohol abuse, any use of a narcotic or controlled drug, and 
not operating a motor vehicle until his license was restored. (Ex. 3; 6.) 
 
On September 4, 2007, Applicant smoked a marijuana cigarette to deal with the 
pressure of his court appearance scheduled for the next day. (Tr. 31.) Applicant bought the 
drug from a street dealer. (Tr. 82.) Applicant denies he was ordered to refrain from illegal 
                                                 
4
 The SOR alleges that Applicant was charged with driving while intoxicated. Available court records indicate 
that the charge was operating under the influence, first offense. 
 
5 
When discussing his January 12, 2007, arrest with an Office of Personnel Management (OPM) investigator 
on March 11, 2008, Applicant indicated that as he did every year on the anniversary of his father‟s death, he 
brought two nips containing one ounce of vodka. He dumped one on his father‟s grave and drank the other. 
(Ex. 3.) At his hearing, he testified that he had not consumed any alcohol from his 2003 OUI until January 12, 
2007. When asked whether he brought vodka with him to his father‟s gravesite before 2007, Applicant 
responded, “No. Well, yeah, I did. I did bring vodka and I poured it on his grave.” He denied he took a drink on 
those other occasions, but he had no explanation for what then prompted him to drink the vodka in January 
2007.  (Tr. 43.) His admission during his interview is considered more credible. 
 
 
 
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drug involvement before his sentencing (Tr. 53.), although court records show a condition 
of his release on bail was that he not abuse any controlled substance. (Ex. 6.) On 
September 5, 2007, Applicant pleaded guilty to all charges. For the felony drug possession, 
he was sentenced to 12 months in the house of corrections (suspended), two years 
probation, $350 fine and assessments, evaluation by a licensed alcohol and drug 
counselor (LADC), and completion of any counseling or treatment as directed by 
correctional or probation authority. He was sentenced on the misdemeanor marijuana 
possession charge to a six-month concurrent jail term (suspended), and $350 fine and 
penalty assessment (suspended for two years). For the DUI/drug offense, he was given a 
consecutive sentence of 12 months in jail, all but 60 days suspended to commence 
November 23, 2007; seven days in a multiple DWI offender intervention detention center 
immediately on release from the house of corrections; two years probation; three years 
loss of license; a $750 fine and penalty assessment; and a substance abuse evaluation 
with completion of any treatment or counseling directed by the department of corrections. 
(Ex. 6.) 
 
Applicant completed the multiple offender program on December 13, 2007. (Ex. 5; 
F.) He was referred to outpatient counseling for a minimum of 12 months, to commence 
immediately. (Ex. 5.) Applicant was credited with good time served and released early from 
confinement on January 9, 2008. (Ex. 6.) 
 
 On January 15, 2008, Applicant signed a QNSP incorporated within an e-QIP. He 
disclosed his January 2007 drug possession, marijuana possession, and DUI/drug 
charges, in response to the police record inquiries. He also responded affirmatively to the 
illegal drug and drug activity inquiries under section 24, including whether he had used a 
controlled substance while possessing a security clearance. Applicant indicated that he 
used marijuana and “zannex” [sic] from March 2005 to January 2007 “100 occasional” 
times.  He made his “best guess” about the extent of his marijuana use in the preceding 
seven years. (Tr. 69.) Applicant did not disclose his August 2003 OUI offense on his 
QNSP, but he listed counseling from October 2003 to November 2003 in response to 
question 25, “In the last 7 years, has your use of alcoholic beverages (such as liquor, beer, 
wine) resulted in any alcohol-related treatment or counseling (such as for alcohol abuse or 
alcoholism)?” (Ex. 1.) When asked at his November 2010 hearing on his security clearance 
eligibility about his failure to list his 2003 OUI, Applicant responded, “The only thing I can 
come up with is that I was depressed at the time. I thought that what I put on the report was 
enough to have my security clearance pulled and I didn‟t think it would go any further than 
that.” (Tr. 65-66.) He also attributed the omission to a right to privacy, although then 
admitted that he did not want to lose his job. (Tr. 66-67.) He had no explanation for listing 
the program he attended because of the OUI but not the OUI offense itself (Tr. 67.), but he 
denied any intentional concealment. (Tr. 71-72.)  
 
 Around February 21, 2008, Applicant had an intake evaluation for his court-ordered 
12 months of outpatient counseling. Applicant reported a last use of Xanax and Oxycontin 
“after his accident,” and a last use of cannabis in September 2007. He denied any triggers, 
cravings, or withdrawal symptoms, and was considered to be open to counseling. From 
March 2008 through January 2009, Applicant attended monthly outpatient individual 
 
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counseling sessions with a licensed alcohol and drug counselor (LADC), who is a licensed 
social worker, for diagnosed sedative, hypnotic, or anxiolytic abuse. (Ex. 5; A.) Applicant 
had thoughts of taking Xanax while coping with the stress of his stepfather‟s Alzheimer‟s 
disease and his mother moving in with his family in mid-2008, but there is no evidence that 
he turned to alcohol or drugs. (Ex. 5; Tr. 80-81.)  
 
  On March 11, 2008, Applicant told an OPM investigator that he had smoked 
marijuana and taken a Xanax pill before his arrest in January 2007. He indicated that the 
Xanax was given to him by a cousin, but he had purchased the marijuana from an 
unknown dealer. Applicant acknowledged that he had 85 Xanax pills and 1.5 ounces of 
marijuana in his possession when he was arrested. Applicant indicated that he had been 
completely abstinent from alcohol and drugs since his arrest in January 2007 and he had 
no intent to use alcohol or any drug illegally again. (Ex. 3.) At his hearing, he admitted that 
he had not disclosed his September 2007 use of marijuana to the investigator, but he 
indicated it was because he had forgotten about it and was very nervous during the 
interview. (Tr. 63.) 
 
 Applicant was released from his probation on July 15, 2009, after completing 21 
months of a 24-month sentence. He had completed all requirements of his probation, 
including testing negative for substance abuse in the three or four drug screens that were 
administered (Tr. 74.), remaining gainfully employed, paying all fines, and completing the 
multiple offender program. (Ex. F.)  
  
Applicant became eligible to regain his driver‟s license in early September 2010, but 
he needed an evaluation showing he was at low risk to reoffend. (Tr. 43, 46-47.) On 
October 5, 2010, he returned to the counseling center for a substance use evaluation. 
Applicant reported that he had experienced some stressors since he completed his 
counseling in January 2009, most notably serious health issues involving his wife, mother, 
and his stepfather. He denied any legal history since his 2007 DUI/drug arrest, but also 
denied that he had ever been on probation. Applicant informed the LADC that he was now 
taking prescribed Wellbutrin to manage symptoms of depression and anxiety with good 
effect. He reported no substance abuse since January 2007 and no cravings or thoughts of 
using illegal drugs. The LADC found Applicant to be at low risk to reoffend, and he 
recommended no further treatment. In his opinion, Applicant had identified “a supportive 
family, stable employment, and a wide variety of coping skills that have helped him to 
maintain abstinence.” He gave Applicant a diagnosis of anxiolytic dependence without 
physiological dependence in sustained full remission by history, cannabis abuse by history, 
and alcohol abuse by history. (Ex. A.) The LADC‟s evaluation was pending review by the 
multiple offender program as of Applicant‟s hearing on his security clearance eligibility. (Tr. 
47.) 
 
When confronted at his November 2010 security clearance hearing about his 
reported denials in October 2010 of any substance abuse since January 2007 and of ever 
having been on probation, Applicant acknowledged that the reference to no probation was 
“a mistake” that he did not know was in the LADC‟s report. He asserted that he had 
discussed his probation with the LADC during his year-long counseling with him. (Tr. 56-
 
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57.) Available records of Applicant‟s previous counseling sessions (Ex. 5.) do not confirm 
any discussion about his probationary status, although they reveal that Applicant had 
discussed his jail stay with the LADC. Applicant also testified that he informed the LADC in 
October 2010 about his marijuana use in September 2007, but when then asked what he 
told the LADC, Applicant responded, “I don‟t think I said—it didn‟t even come up.” (Tr. 60.) 
 
Applicant denies that he has socialized with the friends or his cousin since the 
incident in January 2007 (Tr. 43, 85.), and there is no evidence in the record to the 
contrary. He learned through his counseling to “take things as they come.” (Tr. 48.) His 
biggest fear is the loss of his clearance eligibility. (Tr. 49.) Applicant does not intend to 
drink alcohol or to abuse any drug in the future. He has been taking Wellbutrin for about a 
year to deal with his anxiety and depression. (Tr. 75.) There is no indication that he took 
the drug other than prescribed. 
 
The three coworkers who submitted references on his behalf have known Applicant 
for some time. Applicant has shown himself to be a hard worker, reliable, and trustworthy. 
(Ex. B; C; D.) Applicant testified that these coworkers and his supervisors are aware of his 
past drug abuse (Tr. 75.), although none of the coworkers commented about his drug 
abuse. A friend of Applicant‟s for the last 30 years believes that Applicant has accepted 
responsibility “for his past errors in judgment.” (Ex. E.)  
 
Policies 
 
The U.S. Supreme Court has recognized the substantial discretion the Executive 
Branch has in regulating access to information pertaining to national security,  emphasizing 
that “no one has a „right‟ to a security clearance.” Department of the Navy v. Egan, 484 
U.S. 518, 528 (1988). When evaluating an applicant‟s suitability for a security clearance, 
the administrative judge must consider the adjudicative guidelines. In addition to brief 
introductory explanations for each guideline, the adjudicative guidelines list potentially 
disqualifying conditions and mitigating conditions, which are required to 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(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.” In reaching this decision, I have 
drawn only those conclusions that are reasonable, logical, and based on the evidence 
contained in the record. 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 
 
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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 
that the applicant may deliberately or inadvertently fail to protect or 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 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 
 
Drug Involvement 
 
The security concern for drug involvement is set out in AG ¶ 24: “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.” 
 
Under AG ¶ 24(a), drugs are defined as “mood and behavior altering substances,” 
and include: 
 
(1) 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),
6
 and 
 
(2) inhalants and other similar substances. 
 
Under AG ¶ 24(b), drug abuse is defined as “the illegal use of a drug or use of a 
legal drug in a manner that deviates from approved medical direction.” Several 
disqualifying conditions under AG ¶ 25 are implicated. 
 
AG ¶ 25(a), “any drug abuse,” applies because of Applicant‟s abuse during his late 
teens and early twenties of marijuana, LSD, crystal methamphetamines, and perhaps even 
cocaine; his abuse of marijuana, for the most part weekly, from 1999 or 2000 through 
January 12, 2007, and on September 4, 2007; his abuse of Xanax without a prescription on 
the weekends from 2003 through January 12, 2007; and his abuse of non-prescribed 
                                                 
6
Schedules I, II, III, IV, and V, as referred to in the Controlled Substances Act, are contained in 21 U.S.C. § 
812(c). Marijuana is a Schedule I controlled substance. 
 
 10 
Oxycontin on January 11, 2007. AG ¶ 25(b), “testing positive for illegal drug use,” has 
limited applicability in that Applicant apparently tested positive for Xanax and marijuana in 
the hospital following his January 12, 2007 accident. AG ¶ 25(c), “illegal drug possession, 
including cultivation, processing, manufacture, purchase, sale, or distribution; or 
possession of drug paraphernalia,” is established by Applicant‟s years of purchase of 
marijuana from street dealers. He also bought the LSD and methamphetamine that he 
used as a youth. Applicant had possession of Oxycontin when he used it on January 11, 
2007, although it is unclear whether he paid his cousin for the drug. Applicant paid his 
cousin for the Xanax, apparently including the 85 pills that he had in his possession on 
January 12, 2007. 
 
AG ¶ 25(e), “evaluation of drug abuse or drug dependence by a licensed clinical 
social worker who is a staff member of a recognized treatment program,” is also pertinent. 
The licensed social worker/LADC, with whom Applicant completed his court-ordered 
counseling, diagnosed Applicant with sedative, hypnotic, or anxiolytic abuse in February 
2008. Applicant was recently reevaluated by the LADC in October 2010, and diagnosed in 
part with anxiolytic dependence without physiological dependence in sustained full 
remission by history and with cannabis abuse by history. 
 
The Government‟s case for AG ¶ 25(g), “any illegal drug use after being granted a 
security clearance,” is based on Applicant‟s admission that he abused marijuana, Xanax, 
and Oxycontin after he had been granted a Confidential security clearance. The 
Government presented no independent evidence to confirm the date the clearance was 
granted, although JPAS entry shows Applicant‟s background was investigated from 
September 27, 2001 to November 20, 2001. So presumably sometime around November 
2001, Applicant was granted his security clearance. Applicant abused marijuana and 
Xanax frequently, if not regularly, thereafter, and he abused Oxycontin at least once. 
 
Applicant satisfies several components of the relevant mitigating conditions AG ¶¶ 
26(a), 26(b), and 26(d). He has not abused LSD, methamphetamine, or any cocaine for 
over 30 years, so his abuse of those drugs would fall within 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.” The evidence is sufficient to establish only the one-
time use of Oxycontin, which he abused on January 11, 2007. It cannot be inferred from 
Applicant‟s admission to the LADC of “a history of substance use including alcohol, 
marijuana, LSD, crystal meth, cocaine, Oxycontin, and Xanex [sic],” that he used Oxycontin 
more frequently, or from 1970 to January 2007 as alleged in the SOR. However, 
Applicant‟s dated drug abuse as a youth, and his more recent but infrequent use of 
Oxycontin, cannot be evaluated in isolation from his frequent, if not regular, abuse of 
marijuana and Xanax. Although more than three years have passed since his last uses of 
marijuana and Xanax, his illegal drug abuse was not “so long ago,” especially in light of his 
relapse into weekly marijuana use after 18 years of abstinence, and his resort to Xanax to 
deal with the pressures of life. 
 
 
 11 
AG ¶ 26(b), “a demonstrated intent not to abuse any drugs in the future,” applies in 
part in that Applicant‟s unrebutted testimony is that he has not associated since January 
2007 with the friends with whom he abused drugs while playing cards. He also denies that 
he has seen the cousin who supplied him the Xanax. But Applicant‟s marijuana use was 
not dependent on his friends or a relative. Applicant purchased marijuana from street 
dealers and he used the drug alone at his home, including in September 2007. So while 
AG ¶ 26(b)(1), “disassociation from drug-using associates and contacts,” applies, it does 
not mitigate fully the concerns where Applicant sought out marijuana himself time and time 
again from persons unknown to him. For that same reason, AG ¶ 26(b)(2), “changing or 
avoiding the environment where drugs were used,” is not applicable. As for whether 
Applicant has shown “an appropriate period of abstinence” required under AG ¶ 26(b)(3), 
his present three years of abstinence is alone insufficient to mitigate the drug concerns in 
light of his relapse history. 
 
Some consideration must be afforded AG ¶ 26(d), “satisfactory completion of a 
prescribed drug treatment program, including but not limited to rehabilitation and aftercare 
requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified 
medical professional.” Applicant completed a court-mandated multiple offender program in 
December 2007 and attended required aftercare counseling with the LADC from March 
2008 to January 2009. These programs were sufficient for the court to release Applicant 
from probation early. On October 5, 2010, Applicant had another substance abuse 
evaluation by the LADC, who determined Applicant was at low risk to reoffend; that his 
anxiolytic dependence was in sustained, full remission. This LADC is not a duly qualified 
medical professional, which is defined in AG 25(d) as a “physician, clinical psychologist, or 
psychiatrist.” That said, the LADC is recognized by the court to provide substance abuse 
counseling, presumably because of his experience and expertise in that area. But his 
recent evaluation report has been shown to be inaccurate in some important aspects 
(“[Applicant] reports that his last DWI charge resulted in serving some jail time; however, 
he has never been on probation or parole;” “[Applicant] denies any problems with 
substance use since that incident and reports that he has maintained abstinence since his 
arrest. His last reported use of any substance was in January 2007 and he reports no 
cravings or thoughts of using. . . .”).  The evidence shows that Applicant had acknowledged 
to the LADC during their February 2008 session that his last use of cannabis was in 
September 2007. However, nowhere in his October 2010 evaluation does the LADC 
address this significant discrepancy concerning Applicant‟s last reported abuse of a 
controlled substance. 
 
The weight to be afforded the LADC‟s recent assessment is undermined to the 
extent it may be based on inaccurate reports from Applicant in October 2010 about his 
drug abuse, or on the clinician‟s failure to fully review his previous counseling records. 
Applicant testified at his hearing that he did not recall what he told the LADC about his last 
use of marijuana, even though the evaluation was only the month before his hearing. He 
claimed to not recall if the subject was broached, although the matter was clearly 
discussed, as Applicant told the LADC that he had been abstinent since his arrest. Not 
knowing whether the LADC‟s assessment would change if he knew Applicant had not been 
fully candid with him, I cannot give controlling weight to the LADC‟s favorable prognosis or 
 
 12 
fully apply AG ¶ 26(d). Moreover, Applicant‟s reform is undermined to the extent that he 
justifies his use of marijuana in September 2007 on the basis that he had not been ordered 
to stay away from the drug until his hearing on September 5, 2007. His release on bail was 
conditioned on avoiding all use of illegal drugs. The Drug Involvement concerns are not 
sufficiently mitigated. 
 
Alcohol Consumption 
 
The concern for alcohol consumption is set out in AG ¶ 21: “Excessive alcohol 
consumption often leads to the exercise of questionable judgment or the failure to control 
impulses, and can raise questions about an individual‟s reliability and trustworthiness.” 
 
Applicant abused alcohol at times until his arrest for drunk driving in August 2003. 
He drank from two to ten alcohol drinks (beer, vodka, or tequila) per occasion, initially on 
weekends and then during the week. Three disqualifying conditions under AG ¶ 22 are 
established. His August 2003 OUI implicates AG ¶ 22(a), “alcohol-related incidents away 
from work, such as driving while under the influence, fighting, child or spouse abuse, 
disturbing the peace, or other incidents of concern, regardless of whether the individual is 
diagnosed as an alcohol abuser or alcohol dependent.” AG ¶ 22(c), “habitual or binge 
consumption of alcohol to the point of impaired judgment, regardless of whether the 
individual is diagnosed as an alcohol abuser or alcohol dependent,” applies to those 
occasions (albeit the dates and frequency are not clearly delineated in the record other 
than the August 2003 OUI) where he drank five or more alcohol drinks at a sitting. AG ¶ 
22(e), “evaluation of alcohol abuse or alcohol dependence by a licensed clinical social 
worker who is a staff member of a recognized alcohol treatment program,” is implicated 
because the LADC diagnosed Applicant with alcohol abuse, by history, in October 2010. 
 
At his hearing, Applicant denied consuming any alcohol between his August 2003 
OUI and January 2007, when he drank an ounce of vodka at his father‟s gravesite. There is 
other evidence to substantiate that he drank vodka on each anniversary of his father‟s 
death. (Ex. 3.) Even so, his drinking was limited and not to abusive levels after his August 
2003 OUI. The January 2007 incident involved illegal drug use, not alcohol abuse. AG ¶ 
23(a), “so much time has passed, or the behavior was so infrequent, or it happened under 
such unusual circumstances that it is unlikely to recur or does not cast doubt on the 
individual‟s current reliability, trustworthiness, or good judgment,” is established by no 
evidence of alcohol abuse since August 2003. His counseling for substance abuse from 
March 2008 to January 2009 was not voluntary, but Applicant has committed himself to an 
alcohol-free lifestyle. AG ¶ 23(b), “the individual acknowledges his or her alcoholism or 
issues of abuse, provides evidence of actions taken to overcome this problem, and has 
established a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol 
abuser),” applies. While he has not been involved in Alcoholics Anonymous or similar 
organization that could support him in his efforts to abstain completely from alcohol, he did 
complete a court-mandated alcohol education program after his OUI. AG ¶ 23(d) (“the 
individual has successfully completed inpatient or outpatient counseling or rehabilitation 
along with any required aftercare, has demonstrated a clear and established pattern of 
modified consumption or abstinence in accordance with treatment recommendations, such 
 
 13 
as participation in meetings of Alcoholics Anonymous or a similar organization and has 
received a favorable prognosis by a duly qualified medical professional or a licensed 
clinical social worker who is a staff member of a recognized alcohol treatment program”) is 
satisfied only in part, but the Alcohol Consumption concerns are mitigated by his 
commitment to sobriety for a sustained period sufficient to guarantee against relapse. 
 
Personal Conduct 
 
The security concern for personal conduct is set out in Guideline E, AG ¶ 15: 
 
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. 
 
Applicant‟s frequent abuse of marijuana and Xanax, and on one occasion 
Oxycontin, after he had been granted a security clearance (SOR 3.a), raises the Personal 
Conduct security concerns identified in AG ¶ 15. Even if he was unaware that illicit drug 
involvement was prohibited for those persons holding positions of trust, he knew that his 
conduct was illegal. Furthermore, Applicant responded “No” to question 27 concerning any 
illegal drug use in the last seven years when he completed his September 2001 SF 86 
(SOR 3.e) because he feared the loss of his job if his ongoing marijuana use was known. 
Applicant‟s false response to the drug inquiry on his SF 86 implicates 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.” 
 
On his January 2008 QNSP, Applicant revealed his felony drug conviction in 
response to the police record inquiries. Yet, he omitted his August 2003 OUI (SOR 3.a) 
while reporting in the alcohol use section that he had received alcohol counseling from 
October 2003 to November 2003. Concerning his failure to list the OUI, Applicant initially 
testified, “The only thing I can come up with is that I was depressed at the time. I thought 
that what I put on the report was enough to have my security clearance pulled and I didn‟t 
think it would go any further than that.” (Tr. 65-66.) He subsequently acknowledged that he 
did not disclose the offense out of concern for his job (Tr. 66-67.), albeit he continues to 
deny intentional concealment. (Tr. 71-72.) Applicant had an obligation to disclose a known 
offense, even if the Government would likely have found out about the OUI through the 
listed counseling.  AG ¶ 16(a) also applies to the omission of the August 2003 OUI from his 
QNSP. 
 
Concerning his response to the QNSP‟s drug questions, Applicant indicates he 
signed releases, completed forms as required, and did not intend to conceal any 
 
 14 
information. As for his disclosure only of “occasional” Xanax and marijuana use 100 times 
from March 2005 to January 2007, Applicant maintains it was only an estimate, that he 
didn‟t think much about his use of marijuana before 2005, and that he did not remember 
things (“I‟m not a lawyer. I have a 12
th
 grade education. I get very nervous talking around 
people. If I didn‟t remember things, that‟s me”). (Tr. 71.) Even if I accept that Applicant was 
uncertain about when he started abusing Xanax, it is difficult to believe that he did not 
recall in January 2008 that he smoked marijuana in September 2007 to deal with the stress 
of his imminent sentencing in part for a felony drug offense. He had no trouble recalling his 
use of marijuana in September 2007 when he was evaluated by the LADC in February 
2008. (Ex. 5.) Yet, when he was interviewed in March 2008, he denied any substance 
abuse after his January 2007 arrest. Not only was his marijuana use in September 2007 
too recent to be easily forgotten, but the omission of that abuse from his security clearance 
application and then his interview show a pattern of intentional concealment, especially 
when he was able to recall that abuse in the interim in a context unrelated to his 
background investigation for his clearance. AG ¶ 16(a) applies to his QNSP omissions. AG 
¶ 16(d), “deliberately providing false or misleading information concerning relevant facts to 
an employer, investigator, security official, competent medical authority, or other official 
government representative,” applies to his failure to disclose his September 2007 
marijuana use during his subject interview (SOR 3.c). 
 
 Applicant presented no evidence of any effort by him to correct his September 2001 
SF 86 falsification until January 2008, when he made a partial disclosure of his drug 
involvement on his QNSP. His misrepresentation on his SF 86 is not mitigated by AG ¶ 
17(a), “the individual made prompt, good-faith efforts to correct the omission, concealment, 
or falsification before being confronted with the facts.” Furthermore, given Applicant‟s 
omission of his August 2003 OUI charge and his September 2007 marijuana abuse from 
his January 2008 QNSP, and his false statement during his subject interview about when 
he last used a controlled substance, AG ¶ 17(a) and 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,” are not mitigating of the Personal Conduct 
concerns. 
 
 Reform considerations addressed in AG ¶ 17(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,” are not firmly 
established. Applicant has a track record of concealing his September 2007 marijuana use, 
and that conduct likely extends to his October 2010 evaluation. The LADC indicated in his 
report that Applicant had not used any illegal drug since January 2007, and that Applicant 
had never been on probation. In the absence of credible evidence showing Applicant was 
not the source of the false information, I remain concerned about Applicant‟s candor and 
whether he can be counted on to fulfill the fiduciary obligations of a security clearance. 
 
 15 
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 his conduct and 
all relevant circumstances in light of 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. 
 
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.  
 
A coworker described Applicant as “a very good family man” (Ex. D.), and that is 
borne out in part. He put his drug abuse behind him for about 18 years while he and his 
spouse raised their daughters. Applicant opened his home to his two daughters and their 
children. It was concern over a possible layoff, and the loss of income needed to support 
his family, that led him to resume marijuana use in 1999 or 2000. But concerns about his 
job do not justify his years of drug abuse or his concealment of his drug involvement from 
the Government. His enjoyment of marijuana took precedence over his good judgment and 
his fiduciary obligations as a cleared employee. He sought out marijuana from street 
dealers, even while facing serious drug charges. He abused Xanax, which he obtained 
from a cousin, until his arrest for felony narcotic possession. He hid his illegal drug abuse 
from the Government in September 2001, and was not fully candid on a reapplication for 
his clearance in January 2008, or during his subject interview in March 2008. Applicant 
does not intend to abuse any illegal drug or alcohol in the future, and he has been a good 
worker for his employer. But he has not fully mitigated the judgment, reliability, and 
trustworthiness concerns raised by his serious drug abuse history and his lack of full 
candor during the investigation and adjudication of his security clearance eligibility. 
 
Formal Findings 
 
Formal findings for or against Applicant on the allegations set forth in the amended 
SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are: 
 
Paragraph 1, Guideline H:  AGAINST APPLICANT 
 
Subparagraph 1.a:  Against Applicant 
Subparagraph 1.b:  Against Applicant 
 
 16 
Subparagraph 1.c:  Against Applicant 
Subparagraph 1.d:  Against Applicant 
 Subparagraph 1.e:  Against Applicant 
 Subparagraph 1.f:  Against Applicant 
 Subparagraph 1.g:  Against Applicant 
 Subparagraph 1.h:  Against Applicant 
 
Paragraph 2, Guideline G:  FOR APPLICANT 
 
Subparagraph 2.a:  For Applicant 
Subparagraph 2.b:  For Applicant 
Subparagraph 2.c:  For Applicant 
   
Paragraph 3, Guideline E:  AGAINST APPLICANT 
 
Subparagraph 3.a:  Against Applicant 
Subparagraph 3.b:  Against Applicant 
  Subparagraph 3.c:  Against Applicant 
  Subparagraph 3.d:  Against Applicant 
  Subparagraph 3.e:  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. 
 
 
________________________ 
Elizabeth M. Matchinski 
Administrative Judge