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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 10-09328
)
Applicant for Security Clearance )
Appearances
For Government: David Hayes, Esq., Department Counsel
For Applicant: Alan Edmunds, Esq.
                                                                            
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Decision
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LYNCH, Noreen A, Administrative Judge:
On June 6, 2011, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) enumerating security concerns arising under Guideline H
(Drug Involvement) and Guideline G (Alcohol Consumption). The action was taken
under Executive Order 10865, Safeguarding Classified Information within Industry
(February 20, 1960), as amended; Department of Defense (DoD) Directive 5220.6,
Defense Industrial Personnel Security Clearance Review Program (January 2, 1992),
as amended (Directive); and the adjudicative guidelines (AG), implemented in
September 2006. 
Applicant timely answered the SOR and requested a hearing. DOHA assigned
the case to me on July 25, 2011. A notice of hearing was issued on August 12, 2011,
and the case was heard on September 15, 2011. Department Counsel offered four
exhibits, which were admitted without objection as Government Exhibits (GE) 1-4.
Applicant testified and submitted exhibits AE A through P at the hearing, which were
admitted. He presented the testimony of two witnesses. Based on a review of the
pleadings, submissions, testimony, and exhibits, I find Applicant met his burden
regarding the security concerns raised. Security clearance is granted.
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Findings of Fact
Applicant is a 27-year-old employee of a defense contractor. He graduated from
high school in 2003. He obtained his undergraduate degree in 2007 and his graduate
degree in 2010. (GE 1) Applicant is single and has no children. Applicant seeks his first
security clearance. He has worked for his current employer since May 2009.
Applicant used marijuana in high school in 1999. He continued to use marijuana
on an intermittent basis from 1999 until March 2009. He acknowledged that he used
marijuana in social settings for recreational use. (GE 1) Applicant believes he used
marijuana approximately once every two years except for the period of 2005. (Tr. 60) In
2005, he estimates that he used it on multiple occasions during a week of vacation. (Tr.
40)
  
Applicant used Adderall once or twice a semester during final examinations. (Tr.
70; GE 3) In 2003, he obtained the drug during finals to stay awake. He did not have a
prescription for the drug. The Adderall belonged to his sister. (Tr. 74) He estimates that
he used it about ten to twenty times from approximately 2003 until 2009. (Tr.43 ) 
In October 2009, Applicant and his girlfriend had an altercation. They had been
out drinking in a bar. Applicant’s girlfriend “drank heavily.” Applicant was also drinking
but he recalls only having a few drinks. (Tr. 49) After they returned to her campus room
they retired for the evening. Applicant’s girlfriend started arguing with Applicant in the
early morning hours. She hit him and he pushed her back. As a result, the resident
assistant called the campus police. Applicant was arrested for Assault and Battery. He
took a Breathalyzer test and registered a .06% BAC. His girlfriend registered a .19%
BAC. The charge was nolle prossed and subsequently expunged in 2011. (GE 4)
Applicant has no prior criminal record. 
After the incident with his girlfriend, Applicant sought counseling. He met with a
psychologist from the university counseling service. (AE H) He attended two sessions in
November 2009. It was not deemed necessary for Applicant to continue with sessions.
Applicant ended the relationship with this woman. (GE 2) Applicant had an evaluation
for anger management but no issue presented. He does take responsibility for his role
in the incident. 
Applicant voluntarily disclosed the illegal use of marijuana, and Adderall  in his
May 25, 2010 security clearance application. He was candid and forthright and wrote a
very detailed description in the comments section about the Assault and Battery in
2009. He stated that the most significant marijuana use consisted of recreational use,
He made the unwise decision to use marijuana at the encouragement of his peers.
Applicant is embarrassed about his marijuana use. (GE 2) He admitted that he drinks
and sometimes to intoxication but that alcohol is not a problem in his life. With the
exception of the October 2009 incident with his girlfriend, alcohol has not had any
negative impact on his life.
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Applicant signed a notarized statement of intent to abstain from using illegal
substances, including marijuana in the future and under any circumstances. He agrees
to an immediate revocation of his clearance if he is in violation of his agreement. (AE I)
He also submitted a recent drug screening. (AE P) When Applicant was hired in 2009
for his current employment, he passed a drug test. (Tr. 47)
At the hearing, Applicant was sincere that the illegal drug use was out of
character and based on immaturity and that it will not occur in the future. He knows that
he made poor choices and has learned his lesson. He recognizes the concerns that
DoD has with any use of illegal drugs. He takes his job seriously. He enjoys the work
that he has done for the Government during the past years. He is dedicated to his
position and wants to continue his work. His last use of any illegal substance was in
2009. (Tr. 43) Applicant does not want to damage his good reputation at work. He
emphasized that he is now more mature and recognizes that everything action has a
consequence. (Tr. 95) He is clear that the Government needs to trust one to make
sound judgments. These judgments include decisions made outside of work.
Applicant was candid that his current roommate used marijuana. However,
Applicant has explained that he does not wish to be in the presence of anyone when
they are using marijuana. He denied the allegation that he associates with persons who
use illegal substances. Applicant’s last exposure to marijuana was more than two years
ago. (Tr. 81)
Applicant drinks socially. He does not drive after an evening of drinking. He does
not drink more than two or three drinks in one night. He goes out socially with friends on
the weekend. When he drinks, he drinks beer. Once in a while, he has a vodka tonic.
He does not drink at work. He does not have any diagnosis of alcohol abuse or
dependence. 
Applicant’s cousin testified that he has  noticed a behavioral change in Applicant
during the past two years. He is familiar with the SOR and the reasons for the
investigation. Applicant’s cousin knew about the incident in October 2009 with
Applicant’s girlfriend. He describes Applicant as career oriented and caring about his
work. He socializes with Applicant on weekends. He has not seen him use marijuana
for several years. He visits Applicant in his home and has not seen any indication that
there is an issue with illegal drugs or alcohol. (Tr. 24)
Applicant’s college friend testified that she is familiar with the SOR allegations.
She has seen Applicant mature in the five years that they have known each other. She
has never seen him intoxicated. She knew about Applicant’s former girlfriend and
describes her as a person with an anger and drinking problem.  Applicant has been a
good friend and advisor to her. She describes him as reliable and responsible.
Applicant submitted several employment appraisals. His 2011 appraisal notes
that his work is outstanding, and he far exceeds expectations. (AE O) He has
demonstrated an ability to deliver outstanding work product, exceeding expectations in
both quantity and quality.
 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995).      1
 Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).      2
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).      3
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Applicant submitted eight references and letters of appreciation. His technical
manager describes Applicant as having a strong work ethic and enthusiasm for his
work. He is an exceptionally diligent and responsible employee. Applicant is motivated
by a sincere desire to serve the public interest. (AE A-G) Applicant received an
excellence award from his employer in May 2010.
Policies
When evaluating an applicant’s suitability for a security clearance, an
administrative judge must consider the adjudicative guidelines (AG). 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, they are applied
in conjunction with the factors listed in the adjudicative process. An administrative
judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision.
Under AG ¶ 2(c), this process is a conscientious scrutiny of a number of variables
known as the “whole-person concept.” An 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. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
The U. S. Government must present evidence to establish controverted facts
alleged in the SOR. An 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 burden of proof is something less than a1
preponderance of evidence.  The ultimate burden of persuasion is on the applicant.  2 3
A person seeking access to classified information enters into a fiduciary
relationship with the Government based on 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 of potential, rather
than actual, risk of compromise of classified information.
 See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive      4
information), and EO 10865 § 7.
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).      5
 Id.      6
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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.”  “The clearly consistent standard indicates that security clearance4
determinations should err, if they must, on the side of denials.”  Any reasonable doubt5
about whether an applicant should be allowed access to sensitive information must be
resolved in favor of protecting such information.  The decision to deny an individual a6
security clearance does not necessarily reflect badly on an applicant’s character. It is
merely an indication that the applicant has not met the strict guidelines the President
and the Secretary of Defense established for issuing a clearance.
Analysis
Guideline H, Drug Involvement
AG ¶ 24 expresses the security concern pertaining to Drug Involvement:
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.
(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), and
(2) inhalants and other similar substances;
(b) drug abuse is 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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AG ¶ 25 describes conditions that could raise a security concern and may be
disqualifying:
(a) any drug abuse (see above definition); 
(b) testing positive for illegal drug use;
(c) illegal drug possession, including cultivation, processing,
manufacture, purchase, sale, or distribution; or possession
of drug paraphernalia;
(d) diagnosis by a duly qualified medical professional (e.g.,
physician, clinical psychologist, or psychiatrist) of drug abuse
or drug dependence;
(e) evaluation of drug abuse or drug dependence by a
licensed clinical social worker who, is a staff member of a
recognized drug treatment program;
(f) failure to successfully complete a drug treatment program
prescribed by a duly qualified medical professional;
(g) any illegal drug use after being granted a security clearance; and
(h) expressed intent to continue illegal drug use, or failure to
clearly and convincingly commit to discontinue drug use.
Applicant admitted using marijuana and Adderal on various occasions from 1999
until 2009. He first used marijuana in high school in 1999. In 2005, he used marijuana
almost daily on a vacation.  ¶ 25(a) and (c) apply.
AG ¶ 26 provides conditions that could mitigate security concerns:
(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;
(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; and,
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(4) a signed statement of intent with automatic
revocation of clearance for any violation;
(c) abuse of prescription drugs was after a severe or
prolonged illness during which these drugs were prescribed,
and abuse has since ended; and,
(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’s last use of any illegal drug was in 2009. He signed a notarized
statement of intent to abstain from drugs and accept an automatic revocation of
clearance for any violation in August 2011. Applicant’s use of marijuana and other
drugs occurred before he completed a security clearance application. He volunteered
all the information on his security clearance application. It is more than two years since
his last illegal drug use. Applicant presented as sincere and mature. He is working
successfully in a position. He accepts responsibility for his actions but attributes his
poor choices to the relationship with his former girlfriend. He has no criminal record.  He
has been open and honest with the Government. I found him to be credible at the
hearing. He recognizes the privilege of having a security clearance. His letters of
recommendation speak to his character. He has mitigated the concerns under the drug
involvement guideline.
Guideline G, Alcohol Consumption
AG ¶ 21 expresses the security concern pertaining to alcohol consumption,
“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.”
AG ¶ 22 describes conditions that could raise a security concern and may be
disqualifying, “(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,” and “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.”
In this case, Applicant acknowledges drinking on the evening of October 2009.
He was arrested for Assault and Battery with involvement of alcohol after he and his
girlfriend had an altercation. He obtained counseling. He was not diagnosed with any
alcohol abuse or dependence. He drinks in social settings. He acknowledged that he
has drunk to intoxication approximately two or three times a month.  AG ¶¶ 22 (a) and
(c) apply.
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AG ¶ 23 provides conditions that could mitigate security concerns:
(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;
(b) the individual acknowledges his or her alcoholism or issues of alcohol
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);
(c) the individual is a current employee who is participating in a counseling
or treatment program, has no history of previous treatment and relapse,
and is making satisfactory progress; and
(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 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.
After his 2009 arrest, Applicant obtained counseling. He ended the relationship
with his girlfriend.  Applicant has not been diagnosed with an alcohol problem. He has
had alcohol counseling. In those classes, the counselor did not believe that Applicant
had a problem with alcohol.  He underwent and successfully completed his sessions
without any need for a structured aftercare. Applicant drinks in moderation in social
settings. Applicant has taken full responsibility for the 2009 incident. He disclosed in
detail the event on his security clearance application. Now his work is his focus.
Applicant has mitigated the alcohol consumption concerns under AG ¶¶ 23(a), (b), and
(d). 
 
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. 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
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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 surrounding this case. Applicant is a credible and forthright
27-year-old employee of a contractor. He is a respected employee. He has many letters
of recommendation. He is motivated to succeed. He has shown insight into his previous
behavior. Given these facts, and in light of a thorough consideration of the whole-
person factors, I have no concern that Applicant will use illegal drugs. Applicant drinks
in social settings. He has taken the issue of alcohol and how it can negatively impact
his life seriously.
In sum, Applicant is not the same as he was before the 2009 incident. He has
matured. He is resolute and responsible. He wants to succeed in his profession. He has
learned a lesson. Applicant has matured since 2009.  
Overall, the record evidence leaves me without questions and doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant has mitigated the security concerns arising from his alcohol
consumption.
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: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Paragraph 2, Guideline G: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: For Applicant
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Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
                                              
NOREEN A. LYNCH
Administrative Judge