DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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)       ISCR Case No. 09-06841
)
)
Applicant for Security Clearance )
Appearances
For Government: Daniel F. Crowley, Esquire, Department Counsel
For Applicant: Pro se
April 1, 2011
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Decision
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CEFOLA, Richard A., Administrative Judge:
The Applicant submitted his Security Clearance Application (SF 86), on May 15,
2009.  On September 2, 2010, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under Guideline F
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 for cases after
September 1, 2006. 
 
The Applicant acknowledged receipt of the SOR on September 7, 2010.  He
answered the SOR in writing on September 20, 2010, and requested an Administrative
Determination by an Administrative Judge.  Department Counsel issued a File of
Relevant Material (FORM) on January 28, 2011.  The Applicant did not respond to the
FORM.  Based upon a review of the case file, pleadings, and exhibits, eligibility for
access to classified information is denied.
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Findings of Fact
In his Answer to the SOR, dated September 20, 2010, the Applicant admitted all
of the factual allegations of the SOR, with some explanation.  He qualified his admission
to subparagraph 2.b. averring that he “forgot” about being charged with Possession of
Marijuana, when he answered Section 22d on his May 2009 SCA.
Guideline H - Drug Involvement
1.a.~1.d.  In an affidavit executed by the Applicant on April 2, 2010, he describes
his Drug Involvement in the following terms:
I began using marijuana in cigarette form around the age of 17 or 18
[about 1989].  I usually smoked it with friends . . . either at parties or while
riding around with them.  I usually purchased it from friends or
acquaintances.  I never sold or distributed drugs.  Marijuana is the only
illegal substance I have ever used.  I smoked marijuana to relax.  It
typically made me feel mellow, relaxed and sometimes silly.  I had
purchased the marijuana the night of my arrest [and charge in 1989] from
an acquaintance prior to the party.  From high school until I was around 26
years old, I smoked marijuana three to four times per week.  I usually
smoked about a quarter of an ounce per week.  From the age of 26 until
the age of 30, I quit smoking marijuana.  At the age of 30 I started
smoking marijuana again but only once or twice per month.  I last smoked
marijuana in August or September of 2009.  (FORM, Item 7 at page 2.)
In March of 2005, the Appellant tested positive for marijuana.  (FORM, Item 7 at
page 3.)  He also used marijuana subsequent to being granted a security clearance in
May of 2009.
Guideline E - Personal Conduct
2.a.  The Applicant answered “No” to Section 23a on his May 2009 SCA.  The
posited question asks if the Applicant “In the last 7 years . . . illegally used any
controlled substance” to include “marijuana.”  (FORM, Item 4 at page 33; Emphasis in
original.)  This is a wilful falsification as the 39-year-old Applicant smoked marijuana
“once or twice a month,” in the last 7 years prior to him executing his SCA.  (FORM,
Item 2 at page 4.)
2.b.  The Applicant answered “Yes” to Section 22d on his May 2009 SCA.  The
posited question asks if the Applicant has “ever been charged with . . . any offense(s)
related to alcohol or drugs.”  (FORM, Item 4 at page 32.)  This is a willful falsification as,
although the Applicant listed a 1994 Driving Under the Influence of alcohol arrest; he
failed to list his 1989 marijuana possession charge, noted above.  This is also a wilful
falsification, despite the claim of having “forgot” about it.
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Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the revised adjudicative guidelines (AG).  In addition
to brief introductory explanations for each guideline, the adjudicative guidelines list
potentially disqualifying conditions and mitigating conditions, which are useful 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 over-arching
adjudicative goal is a fair, impartial and commonsense decision.  According to AG
Paragraph 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
Paragraph 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 Paragraph E3.1.14, the Government must present evidence to
establish controverted facts alleged in the SOR.  Under Directive Paragraph E3.1.15,
the Applicant is responsible “to rebut, explain, extenuate, or mitigate facts admitted by
applicant or proven by Department Counsel. . . .”  The Applicant has the ultimate burden
of persuasion as to obtaining 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 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).
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Analysis
Guideline H - Drug Involvement
The security concern relating to the guideline for Drug Involvement is set out in
Paragraph 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.
The guideline also notes several conditions that could raise security concerns.
Under Subparagraph 25(a), “any drug abuse” may be disqualifying.  In addition, “any
illegal drug use after being granted a security clearance” under Subparagraph 25(g)
may be disqualifying.  Here, the Applicant illegally used marijuana over a period of 20
years from about 1989 until about August or September of 2009.  I find no
countervailing mitigating conditions that are applicable here, as his usage stopped only
about a year and a half ago.
Guideline E - Personal Conduct
The security concern relating to the guideline for Personal Conduct is set out in
Paragraph 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.
The guideline notes several conditions that could raise security concerns.  Under
Subparagraph 16(a), “deliberate omission, concealment, or falsification of relevant facts
from any personnel security questionnaire . . . or similar form . . .” may be disqualifying.
Here, the Applicant falsified his answers to Sections 22 and 23 on his May 2009 SCA.  I
can find no countervailing Mitigating Condition that is applicable, as there is no showing
of “prompt, good-faith efforts to correct the . . . falsification” as required by the first
mitigating condition.
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.  Under AG Subparagraph 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.
The Administrative Judge should also consider the nine adjudicative process
factors listed at AG Subparagraph 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.
I considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  The Applicant has offered nothing further
for my consideration in response to the Government’s FORM.  Thus, the record
evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability
for a security clearance.  He was clearly less than candid with the Government as to his
long term past drug abuse.  For all these reasons, I conclude Applicant has not
mitigated the security concerns arising from his Drug Involvement and related 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 H: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: Against Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against Applicant
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.
Richard A. Cefola
Administrative Judge
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