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                                                            DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
 
             
In the matter of: 
          ) 
  )  ISCR Case No. 10-02330 
                                                            )                      
Applicant for Security Clearance ) 
                       
                                                                        
  
Appearances 
 
For Government: Gregg A. Cervi, Esquire, Department Counsel 
For Applicant: Pro se 
 
 
 
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Decision 
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ANTHONY, Joan Caton, Administrative Judge: 
 
 After a thorough review of the written record in this case, I conclude that 
Applicant failed to rebut or mitigate the Government’s security concerns under Guideline 
H, Drug Involvement, and Guideline E, Personal Conduct. Her eligibility for a security 
clearance is denied. 
 
                                                    Statement of Case 
 
Applicant completed an Electronic Questionnaire for Investigations Processing 
(e-QIP) on September 9, 2009. On November 22, 2010, the Defense Office of Hearings 
and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing security 
concerns under Guideline H, Drug Involvement, and Guideline E, Personal Conduct. 
DOHA acted 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 for SORs issued after September 1, 2006.  
  
 
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 Applicant answered the SOR on December 27, 2010, and March 8, 2011. With 
her Answer, Applicant requested a decision on the record in lieu of a hearing. The 
Government compiled its File of Relevant Material (FORM) on May 31, 2011. The 
FORM contained documents identified as Items 1 through 9. On June 8, 2011, DOHA 
forwarded a copy of the FORM to Applicant, with instructions to submit any additional 
information or objections or both within 30 days of receipt. Applicant received the file on 
June 24, 2011. She did not submit any information or file any objections within the 
required time period. On August 17, 2011, the case was assigned to me for a decision.   
 
Procedural Matters 
 
The record establishes that DOHA sent Applicant two sets of interrogatories. The 
first set posed several questions about Applicant’s drug use history. Applicant 
responded to this set of interrogatories with a notarized signed statement dated May 31, 
2010 (Item 7). The second set forwarded to Applicant contained the OPM investigator’s 
report of her November 30, 2009, personal subject interview and asked her to review 
the report for accuracy. Applicant reviewed the report and responded to DOHA’s 
request with a notarized statement, dated August 23, 2010, which adopted the 
investigator’s summary as accurately reflecting her interview (Item 6). SOR ¶ 2.d. 
references Applicant’s response to questions about her drug use history. However, the 
allegation incorrectly identifies the date Applicant replied to the interrogatories as 
August 23, 2010, when, in fact, she replied to interrogatories about her drug use history 
on May 31, 2010. In the FORM, which was sent to Applicant, Department Counsel 
correctly identified Applicant’s responses about her drug use history as signed and 
notarized on May 31, 2010. See FORM at 4. Accordingly, I amend the allegation at 
SOR ¶ 2.d. to conform with the record evidence by striking the date “August 23, 2010” 
and substituting instead the date “May 31, 2010.”    
 
Findings of Fact 
 
 The SOR contains two allegations of disqualifying conduct under Guideline H, 
Drug Involvement (SOR ¶¶ 1.a. and 1.b.) and four allegations of disqualifying conduct 
under Guideline E, Personal Conduct (¶¶ 2.a. through 2.d.). In her Answer to the SOR, 
Applicant admitted the six allegations in the SOR. Applicant’s admissions are accepted 
as findings of fact.  (Item 1; Item 4.) 
 
 Applicant is 27 years old, divorced, and the mother of a six-year-old daughter. 
She enlisted in the U.S. military in December 2003. From May 2004 until May 2005, she 
was stationed in an Asian country. From February 2007 until February 2008, she was 
deployed overseas. She received an honorable discharge in 2008. Since April 2009, 
she has been employed as a senior field service technician by a federal contractor. She 
seeks renewal of her security clearance. (Item 5; Item 6; Item 7.) 
 
 In December 2005, during her active duty military service, Applicant was 
awarded a security clearance. In 2004, while her security eligibility was being 
investigated, Applicant provided a signed, sworn statement to a special agent of the 
 
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Defense Security Service. In this statement, Applicant admitted marijuana use from 
November 2000 until February 2003. In February and March 2008, after returning from 
her military deployment overseas, Applicant again used marijuana. The SOR alleges at 
¶ 1.a. that Applicant used marijuana, with varying frequency, from November 2000 to 
March 2008. SOR ¶ 1.b. alleges that Applicant used marijuana after she was granted a 
security clearance in December 2005. (Item 1; Item 5; Item 6; Item 8; Item 9.) 
 
 On September 9, 2009, Applicant completed an e-QIP. Section 23a on the e-QIP 
asks the following question: “In the last 7 years, have you illegally used any controlled 
substance, for example, cocaine, crack cocaine, THC (marijuana, hashish, etc.), 
narcotics (opium, morphine, codeine, heroin, etc.), stimulants (amphetamines, speed, 
crystal methamphetamine, Ecstasy, ketamine, etc.), depressants (barbiturates, 
methaqualone, tranquilizers, etc.), hallucinogenics (LSD, PCP, etc.), steroids, inhalants 
(toluene, amyl nitrate, etc.), or prescription drugs (including painkillers)? Use of a 
controlled substance includes injecting, snorting, inhaling, swallowing, experimenting 
with or otherwise consuming any controlled substance.” Applicant responded “No” to 
question 23a. The SOR alleges at ¶ 2.a. that Applicant deliberately failed to list her use 
of marijuana from February 2003 until March 2008. (Item 1; Item 5 at 40, italics in 
original omitted.) 
 
 Section 23b on the e-QIP that Applicant completed on September 9, 2009 asks: 
“Have you EVER illegally used a controlled substance while possessing a security 
clearance, while employed as a law enforcement officer, prosecutor, or courtroom 
official, or while in a position directly and immediately affecting the public safety?” 
Applicant responded “No” to Section 23b. The SOR alleges at ¶ 2.b. that Applicant 
deliberately failed to list that she used marijuana after she had been granted a security 
clearance in December 2005. (Item 1; Item 5 at 40; emphasis in original) 
 
 Applicant was interviewed about her illegal drug use by an authorized 
investigator from the U.S. Office of Personnel Management (OPM) in November 2009.1 
In the personal subject interview, as summarized by the investigator, Applicant stated 
that she had failed to list her illegal drug use in February and March 2008 on her e-QIP. 
She further stated that her 2008 use of marijuana was her first and only use of 
marijuana, and she had no intention of using illegal drugs in the future. The SOR 
alleges at ¶ 2.c. that Applicant deliberately failed to disclose to the investigator that she 
had used marijuana between 2000 and 2003. (Item 1; Item 6 at 4-5.) 
 
 In May 2010, in response to DOHA interrogatories about her past use of illegal 
drugs, Applicant provided a signed and notarized statement in which she asserted that 
she experimented with marijuana two times before she went to military boot camp in 
2003. She stated: “I have not used marijuana since the last time which was November 
2003 time frame. I do not use any type of drug.” DOHA asked the following question: 
 
1 On August 23, 2010, in response to DOHA interrogatories, Applicant confirmed the accuracy of the 
information in the investigator’s report.  (Item 6 at 8.) 
 
 
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“(8) On what date did you last use narcotics, dangerous drugs, psychoactive or 
controlled substances, to include marijuana or hashish?” Applicant responded: 
“November 2003 (end).” The SOR alleges at ¶ 2.d. that Applicant deliberately failed to 
list that she used marijuana through at least March 2008. (Item 1; Item 7.) 
 
 To her answer to the SOR, Applicant appended the following statement, 
addressed “to whom it may concern”: 
 
Yes, I do admit to the wrongful information that I had provided but I did 
clearly tell the investigator that I was very unsure about the time frame I 
provided her with. I do understand if you need to take my security 
clearance away from me. I am a very trustworthy person. I have not and 
will not ever put any DOD or government agency in harm’s way with 
knowing secured information. I do take my job seriously and I will protect 
any and all classified information I come in contact with. Thank you for 
your time. 
 
(Item 4 at 5.) 
 
                                                     Burden of Proof 
 
 The Government has the initial burden of proving controverted facts alleged in 
the SOR. The responsibility then shifts to the applicant to refute, extenuate, or mitigate 
the Government's case. Because no one has a right to a security clearance, the 
applicant then bears the burden of persuasion. The "clearly consistent with the national 
interest" standard compels resolution of any reasonable doubt about an applicant's 
suitability for access to classified information in favor of protecting national security. 
 
                          Policies 
 
The U.S. Supreme Court has recognized the substantial discretion of the 
Executive Branch in regulating access to information pertaining to national security, and 
it has emphasized that “no one has a ‘right’ to a security clearance.” Department of the 
Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the 
authority to control access to information bearing on national security and to determine 
whether an individual is sufficiently trustworthy to have access to such information. Id. at 
527. The President has authorized the Secretary of Defense or his designee to grant an 
applicant’s eligibility for access to classified information “only upon a finding that it is 
clearly consistent with the national interest to do so.”  Exec. Or. 10865, Safeguarding 
Classified Information within Industry § 2 (Feb. 20, 1960), as amended.    
 
 When evaluating an applicant’s suitability for a security clearance, an   
administrative judge must consider the adjudicative guidelines (AG). These guidelines 
are not inflexible rules of law. Instead, recognizing the complexities of human behavior, 
the administrative judge applies these guidelines in conjunction with the factors listed in 
the adjudicative process. The administrative judge’s overarching adjudicative goal is a 
 
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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 mitigate facts admitted by applicant or proven by Department Counsel. . . .” The 
applicant has the ultimate burden of persuasion in 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 classified 
information. Such decisions entail a certain degree of legally permissible extrapolation 
about 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 
 
Guideline H, Drug Involvement 
 
 Use of an illegal drug or misuse of a prescription drug can raise questions about 
an individual’s reliability and trustworthiness 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(a) defines drugs as “mood and behavior altering 
substances.” The definition of drugs includes “(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), 
and (2) inhalants and other similar substances.” AG  ¶ 24(b) defines drug abuse as “the 
illegal use of a drug or use of a legal drug in a manner that deviates from approved 
medical direction.” 
 
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Through Applicant’s admissions, the record establishes that she used marijuana, 
at various times, from 2000 until March 2008. Moreover, she used marijuana after being 
granted a security clearance in December 2005. This behavior casts doubt on her 
reliability, trustworthiness, and good judgment. It also raises security concerns about 
her ability or willingness to comply with laws, rules, and regulations. I conclude that 
Applicant’s illegal drug use and her use of marijuana after being granted a security 
clearance raise security concerns under AG ¶¶ 25(a) and 25(g). AG ¶ 25(a) reads: “any 
drug abuse [as defined at AG ¶ 24(b)].” AG ¶ 25(g) reads: “any illegal drug use after 
being granted a security clearance.” 
 
Two Guideline H mitigating conditions might apply to the facts of Applicant’s 
case. If Applicant’s drug use happened so long ago, was so infrequent, or happened 
under such circumstances that it is unlikely to recur or does not cast doubt on her 
current reliability, trustworthiness, or good judgment, then AG ¶ 26(a) might be 
applicable in mitigation. If Applicant demonstrated an intent not to abuse any drugs in 
the future by (1) disassociation from drug-using associates and contacts, (2) changing 
or avoiding the environment where drugs were used, (3) abstaining from drug use for 
an appropriate period, or (4) signing a statement of intent with the automatic revocation 
of her security clearance for any violation, then AG ¶ 26(b) might be applicable. 
 
Applicant’s last use of marijuana was in March 2008, approximately 3½ years 
ago, after she was granted a security clearance for duties she carried out as a member 
of the U.S. military. Applicant’s past illegal drug use continues to cast doubt on her 
current reliability, trustworthiness, and good judgment. Moreover, Applicant provided no 
information to demonstrate her intent not to abuse drugs in the future. She failed to 
provide documentation establishing that she had abstained from drug use for an 
appropriate period or that she had disassociated from those with whom she had used 
drugs in the past. She failed to demonstrate that she had changed her conduct to avoid 
environments where drugs are used. She did not provide a signed statement of her 
intent not to abuse drugs in the future, with automatic revocation of her security 
clearance for any violation. 
 
Applicant’s illegal drug use occurred periodically over a period of eight years, 
suggesting a lifestyle choice that went beyond curiosity and experimentation.  
Insufficient time has elapsed to demonstrate whether she will abstain from illegal drug 
use in the future. I conclude that AG ¶ 26(a) and AG ¶ 26(b) do not apply in mitigation 
to the facts of Applicant’s case. 
 
Personal Conduct 
 
AG ¶ 15 explains why personal conduct is a security 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 
 
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and candid answers during the security clearance process or any other 
failure to cooperate with the security clearance process. 
 
Applicant’s personal conduct raises security concerns under AG ¶¶ 16(a) and 
16(b). AG ¶ 16(a) reads: “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.” AG ¶ 16(b) reads: “deliberately providing false or misleading 
information concerning relevant facts to an employer, investigator, security official, 
competent medical authority, or other official government representative.”  
 
In her answer to the SOR, Applicant admitted deliberately falsifying her answers 
to Sections 23a and 23b on the e-QIP she executed in September 2009. She also 
admitted deliberately falsifying material facts when she told an authorized investigator in  
a November 2009 personal security interview that she had used marijuana only once in 
2008 and failed to disclose that she had used marijuana from 2000 to 2003. 
Additionally, Applicant admitted falsifying a DOHA interrogatory in May 2010 when she 
stated that she last used illegal drugs in November 2003 and deliberately failed to list 
her use of marijuana in March 2008. Applicant provided no credible explanation for her 
falsifications. I conclude that none of the Guideline E mitigating conditions applies to the 
facts of Applicant’s case. 
  
Whole-Person Concept 
 
 Under the whole-person concept, an administrative judge must evaluate an 
applicant’s eligibility for a security clearance by considering the totality of an applicant’s 
conduct and all relevant circumstances. 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. 
 
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security 
clearance must be an overall commonsense judgment based upon careful consideration 
of the guidelines and the whole-person concept.  
       
I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances raised by the written record in this case. When she 
executed her e-QIP in 2009, Applicant was not candid about her illegal drug use and 
 
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her marijuana use after being granted a security clearance. She was not candid about 
her illegal drug use when she was interviewed by an authorized investigator or when 
responding to DOHA interrogatories. Applicant’s lack of candor raises serious security 
concerns about her reliability, trustworthiness, and judgment. 
 
Applicant requested a decision on the written record. She did not file objections 
or provide additional information in response to the FORM. The written record is sparse. 
Moreover, Applicant failed to meet her burden of persuasion in mitigating the 
Government’s allegations under the drug involvement and personal conduct 
adjudicative guidelines. Overall, the record evidence in this case leaves me with 
questions and doubts about Applicant’s eligibility and suitability for a security clearance.  
 
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 
 
  Subparagraphs1.a. and 1.b.:      Against Applicant 
 
 Paragraph 2, Personal Conduct:             AGAINST APPLICANT   
 
  Subparagraphs 2.a. - 2.d.:  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. 
 
 
                                               
_____________________________ 
Joan Caton Anthony 
Administrative Judge