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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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[NAME REDACTED] )       ISCR Case No. 10-06619
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)
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Applicant for Security Clearance )
Appearances
For Government: Caroline H. Jeffreys, Esquire, Department Counsel
For Applicant: Greg D. McCormack, Esquire
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Decision
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MALONE, Matthew E., Administrative Judge:
Applicant was involved with illegal drugs between 1975 and 2007. Between 2006
and 2008, he also misused prescription pain medication at least three times. His illegal
drug involvement also occurred while he held a security clearance first obtained in
1979. Applicant deliberately failed to disclose the full scope of his illegal drug
involvement in security clearance applications submitted in 2008 and 2009. Applicant
failed to mitigate the security concerns raised by his drug involvement and personal
conduct. His request for a security clearance is denied.
Statement of the Case
On August 3, 2009, Applicant submitted an Electronic Questionnaire for
Investigations Processing (eQIP) to obtain a security clearance required for his job with
a defense contractor. After reviewing the results of the ensuing background
investigation, adjudicators for the Defense Office of Hearings and Appeals (DOHA)
 Authorized by DoD Directive 5220.6 (Directive), Section E3.1.2.2.1
 Required by Executive Order 10865, as amended, and by DoD Directive 5220.6 (Directive), as amended.2
 The adjudicative guidelines were implemented by the Department of Defense on September 1, 2006. These3
guidelines were published in the Federal Register and codified through 32 C.F.R. § 154, Appendix H (2006).
Pending official revision of the Directive, they take precedence over the guidelines listed in Enclosure 2 to the
Directive.
 Ax. C and D were admitted over Department Counsel’s objections. (Tr. 29 - 32)4
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issued to Applicant interrogatories  to clarify or augment information obtained by1
investigators. After reviewing the results of the background investigation and Applicant’s
responses to the interrogatories, DOHA adjudicators were unable to make a preliminary
affirmative finding  that it is clearly consistent with the national interest to grant2
Applicant’s request for access to classified information. On March 1, 2011, DOHA
issued to Applicant a Statement of Reasons (SOR) alleging facts which, if proven, raise
security concerns addressed in the adjudicative guideline (AG)  for drug involvement3
(Guideline H) and personal conduct (Guideline E).
Applicant timely answered the SOR and requested a decision without a hearing.
However, on July 19, 2011, after retaining legal counsel, Applicant requested a hearing.
On July 28, 2011, Department Counsel submitted to Applicant an Amendment to the
Statement of Reasons (Amendment). The case was assigned to me on August 10,
2011. Applicant replied to the Amendment on August 16, 2011. The Amendment and
Applicant’s response to it were provided to me on August 25, 2011.
Pursuant to a Notice of Hearing issued on August 15, 2011, I convened a hearing
in this matter on September 20, 2011. DOHA received a transcript (Tr.) of the hearing
on September 28, 2011. The parties appeared as scheduled. The Government
presented four exhibits, which were admitted without objection as Government’s
Exhibits (Gx.) 1 - 4. Applicant testified and presented four exhibits, identified as
Applicant’s Exhibits (Ax.) A - D, all of which were admitted.  I left the record open to4
receive additional relevant information from the Applicant, whose timely post-hearing
submission was admitted without objection as Ax. E.
Findings of Fact
Through the amended SOR, the Government alleged under Guideline H that
Applicant “illegally used Percocet without a prescription on two occasions and with a
prescription, but not for the prescribed purpose, on one occasion from about 2006 to at
least March 2008.” (SOR 1.a); that he used marijuana with varying frequency between
1975 and 2007 (SOR 1.b); that he used cocaine once in 2000 (SOR 1.c); and that his
use of illegal drugs and his illegal use of prescription medication occurred while he held
“Department of Defense  security clearances granted in 1979, 1984, 1989, 1992, 1995,
and 2003" (SOR 1.d). Applicant admitted all of the SOR allegations. His admissions to
SOR 1.b and 1.c also contained explanations provided in his response to the original
SOR.
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Through the amended SOR, the Government also cross-alleged, as disqualifying
personal conduct under Guideline E, the SOR 1.d allegation of drug use while holding a
security clearance (SOR 2.a). The Government also alleged that during a 2008
background investigation conducted by a different agency, Applicant deliberately
withheld his use of cocaine in 2000. (SOR 2.b) Finally, the Government alleged that
Applicant’s negative answer to eQIP question 23.b (Illegal Use of Drugs or Drug
Activity. 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 public
safety?) constituted a knowing and willful false statement to the Government, because
Applicant had used cocaine in 2000 while holding a security clearance (SOR 2.c).
Applicant admitted all of the Guideline E allegations.
Applicant’s admissions are incorporated in my findings of fact. Having reviewed
the response to the SOR, the transcript, and exhibits, I make the following additional
findings of fact.
Applicant is 55 years old and employed by a defense contractor in a position that
requires a security clearance. Applicant has worked for his current employer since
1981. He has worked on several different contracts and has held security clearances as
high as Top Secret with Special Compartmented Information (SCI) access since 1979.
Between 1995 and 2006, he also held a security clearance or a position of trust granted
by a foreign government while working on a contract in support of that country’s national
law enforcement agency. It does not appear that his U.S. security clearance has lapsed
at anytime since at least 1992. (Gx. 1; Gx. 4; Ax. A; Tr. 79 - 81)
Applicant and his wife have been married since April 1983. They have a 21-year-
old son and a 24-year-old daughter. (Gx. 1)
Applicant started using marijuana in about 1975. His use for the next several
years was frequent, at times daily. In the late 1970s, he also began growing marijuana,
some of which he sold in small amounts and some of which he used. Applicant’s
marijuana use abated and sometimes ceased when he moved to a new job or a new
residence. But his drug use would resume once he was comfortable with his new
associates and neighbors. (Tr. 85 - 86) Applicant last used marijuana in 2007. His most
recent uses of marijuana included use between 20 and 40 times while on vacation with
friends. (Gx. 1; Gx. 2; Tr. 83) Applicant has known at all times that using marijuana was
illegal and that it was prohibited by DoD policy. (Tr. 71)
Applicant used cocaine twice. The first time was before he was married. He used
cocaine again in 2000 while on vacation with friends. (Gx. 2; Tr. 59 - 60) He has also
misused Percocet, a prescription painkiller, on at least three occasions between 2003
and 2008. The first time, he used what was left over from his own prescription. The
second time, he took Percocet from a prescription his son had been given. The third
time, he used Percocet prescribed for his wife. Applicant used the painkiller only to relax
and for the “buzz” it gave him. His wife and son did not know about his use of their
prescription medications, and Applicant did not have a medical reason to use Percocet
 See Department of the Navy v. Egan, 484 U.S. 518 (1988).5
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on any of the three occasions. Applicant has a current prescription for Percocet that he
has not filled. (Answer to SOR Amendment; Gx. 1; Gx. 2; Tr. 48 - 49, 84)
On November 8, 2008, Applicant submitted a security clearance application (SF-
86) to obtain a Top Secret clearance with SCI access for contract work at another
government agency. For that access, he was required to take a full lifestyle polygraph
examination. When confronted with having to take that examination, Applicant admitted
he had deliberately falsified his SF-86. Specifically, Applicant had disclosed in his SF-86
only that he used marijuana five times in March 2005. He did not disclose that he
actually used marijuana 20 to 40 times in March 2005, or that he used marijuana until
2007. Applicant also deliberately omitted from his 2008 SF-86 his misuse of Percocet
and his use of cocaine. Applicant explained that he tried to minimize the extent of his
drug use because he did not want to give the impression that he was a drug abuser.
Applicant did not appeal the denial of his application, choosing instead to wait one year
and submit a new application. Concurrent with the adjudication of his application for a
DoD security clearance, his re-application to the other agency is still pending. In the
2009 eQIP he submitted for his DoD clearance, Applicant did not list his use of cocaine
in 2000. Again, he was afraid it would make him look bad. (Answer to SOR; Gx. 2; Gx.
3; Tr. 39, 45 - 46, 68 - 70)
Applicant stated, through a notarized statement and in his hearing testimony, that
he does not intend to again use illegal drugs or to abuse prescription drugs. He averred
that he has severed ties with the friends and associates with whom he used drugs in the
past. However, in 2008, he was offered, but declined, marijuana by other friends whom
he still sees at Christmas. Applicant has never been tested in the workplace for drugs.
In response to the SOR and on the recommendation of his attorney, Applicant obtained
his own urinalysis tests and was evaluated by a licensed clinical social worker and
substance abuse counselor. All of his drug tests in the past year have been negative
and the clinical evaluation found no reason to classify Applicant as either drug
dependent or a substance abuser. (Answer to SOR; Ax. B; Ax. C; Ax. E; Tr. 51, 71 -
72).
Applicant enjoys an excellent reputation in the workplace and the community for
his generosity, expertise, professionalism, and reliability. Multiple personal and
professional references laud him for his good character and trustworthiness. Applicant
is known to always be willing to help others, is an avid motorcyclist and outdoorsman,
and is dedicated to the missions he supports through his defense contractor work. (Ax.
D)
Policies
A security clearance decision is intended to resolve whether it is clearly
consistent with the national interest  for an applicant to either receive or continue to5
have access to classified information. Each decision must be a fair, impartial, and
commonsense determination based on examination of all available relevant and
 Directive. 6.3.6
 See Egan, 484 U.S. at 528, 531.7
 See Egan; Revised Adjudicative Guidelines, ¶ 2(b).8
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material information,  and consideration of the pertinent criteria and adjudication policies6
in the adjudicative guidelines. Decisions must also reflect consideration of the factors
listed in ¶ 2(a) of the new guidelines. Commonly referred to as the “whole-person”
concept, those factors are:
(1) The nature, extent, and seriousness of the conduct; (2) the
circumstances surrounding the conduct, to include knowledgeable
participation; (3) the frequency and recency of the conduct; (4) the
individual's age and maturity at the time of the conduct; (5) the extent to
which participation is voluntary; (6) the presence or absence of
rehabilitation and other permanent behavioral changes; (7) the motivation
for the conduct; (8) the potential for pressure, coercion, exploitation, or
duress; and (9) the likelihood of continuation or recurrence. 
The presence or absence of a disqualifying or mitigating condition is not, by itself,
conclusive. However, specific applicable guidelines should be followed whenever a case
can be measured against them as they represent policy guidance governing the grant or
denial of access to classified information. In this case, the pleadings and the information
presented by the parties require consideration of the security concerns and adjudicative
factors addressed under AG ¶ 24 (Drug Involvement).
The Government bears the initial burden of producing admissible information on
which it based the preliminary decision to deny or revoke a security clearance for an
applicant. Additionally, the Government must be able to prove controverted facts
alleged in the SOR. If the Government meets its burden, it then falls to the applicant to
refute, extenuate or mitigate the government’s case. Because no one has a “right” to a
security clearance, an applicant bears a heavy burden of persuasion.  A person who7
has access to classified information enters into a fiduciary relationship with the
Government based on trust and confidence. Thus, the Government has a compelling
interest in ensuring each applicant possesses the requisite judgment, reliability, and
trustworthiness of one who will protect the national interests as his or her own. The
“clearly consistent with the national interest” standard compels resolution of any
reasonable doubt about an applicant’s suitability for access in favor of the Government.8
Analysis
Personal Conduct
The Government presented sufficient information to show that Applicant
deliberately omitted information about his drug use from his last two security
questionnaires. In a 2008 SF-86, he tried to minimize the full scope of his marijuana use
and he omitted his abuse of Percocet and his use of cocaine. It was only through
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confrontation connected to a full lifestyle polygraph examination at another agency that
he disclosed all of his drug use. However, even after being denied a security clearance,
in part, for failing to disclose relevant information about his drug use, Applicant falsified
his 2009 eQIP by omitting his cocaine use because he did not want the Government to
think he was a drug abuser. Finally, the Government established that Applicant
knowingly and repeatedly used illegal drugs and abused prescription drugs while
holding a security clearance. The security concern about Applicant’s judgment, reliability
and trustworthiness is expressed at AG ¶ 15 as follows:
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.
More specifically, information about Applicant’s adverse personal conduct
supports application of the disqualifying condition at 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). Applicant knew his drug
use while holding a security clearance was an ongoing violation of rules pertaining to
persons with access to classified information. He did not willingly and fully disclose that
information when asked to do so on at least two security clearance applications. It is
also reasonable to assume that, until he was subjected to a recent polygraph
examination, he had never disclosed his illegal drug involvement when applying for
earlier clearances.
Available information does not support the pertinent mitigating conditions under
this guideline. The mitigating condition at AG ¶ 17(a) (the individual made prompt,
good-faith efforts to correct the omission, concealment, or falsification before being
confronted with the facts) does not apply because it was only when confronted through
the polygraph process that Applicant fully disclosed his drug use. Even then, he still
withheld his 2000 cocaine use from a subsequent clearance application. 
The mitigating condition at AG ¶ 17(b) (the refusal or failure to cooperate,
omission, or concealment was caused or significantly contributed to by improper or
inadequate advice of authorized personnel or legal counsel advising or instructing the
individual specifically concerning the security clearance process. Upon being made
aware of the requirement to cooperate or provide the information, the individual
cooperated fully and truthfully) does not apply because Applicant has not claimed that
he was improperly advised about what to list in response to the questions in both
applications. 
The mitigating conditions at 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,
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unreliable, or other inappropriate behavior, and such behavior is unlikely to recur), AG
17(e) (the individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress), and AG ¶ 17(f) (association with persons involved
in criminal activities has ceased or occurs under circumstances that do not cast doubt
upon the individual's reliability, trustworthiness, judgment, or willingness to comply with
rules and regulations) are not factually pertinent to the issue of Applicant’s deliberate
falsifications. As to their applicability to his underlying conduct, namely, his drug use, for
the reasons stated under Drug Involvement, below, the record does not support their
application.
Finally, the mitigating condition at 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) does not apply. Making false
statements to any agency of the United States concerning a matter within its jurisdiction
is a violation of federal criminal law. More important, it is a fundamental breach of a
basic tenet of the Government’s personnel security programs. This Applicant has held a
security clearance since 1979. He knew or should have known of his obligation to be
truthful at all times in his answers to reasonable Government inquiries into his
background. Available information presents the probability that Applicant has not, in the
more than 30 years he has held a security clearance, disclosed any relevant adverse
information when required to so. Thus, his conduct in this regard cannot be considered
infrequent or minor. Based on all of the foregoing, I conclude that Applicant did not
mitigate the security concerns raised by the Government’s information about his
personal conduct.
Drug Involvement
The Government presented sufficient information to show that Applicant used
marijuana extensively from about 1975 until 2007. At times, Applicant also grew and
sold for his own profit modest amounts of marijuana. The Government’s information
also established that Applicant twice used cocaine, most recently in 2000, and that on
three occasions between 2003 and 2008, he misused a prescription painkiller for non-
medicinal purposes. Finally, the Government’s information showed that Applicant’s use
of illegal drugs and his misuse of prescription medications after 1979 occurred while he
held a security clearance. These facts raise a security concern addressed in AG ¶ 24 as
follows:
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.,
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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. 
More specifically, available information requires application of the disqualifying
conditions listed at AG ¶ 25(a) (any drug abuse...); AG ¶ 25(c) (illegal drug possession,
including cultivation, processing, manufacture, purchase, sale, or distribution; or
possession of drug paraphernalia); and AG ¶ 25(g) (any illegal drug use after being
granted a security clearance).
Applicant presented information that supports consideration of  the mitigating
condition at AG ¶ 26(b) (a demonstrated intent not to abuse any drugs in the future,
such as: (1) dissociation from drug-using associates and contacts; (2) changing or
avoiding the environment where drugs were used; (3) an appropriate period of
abstinence; and (4) a signed statement of intent with automatic revocation of clearance
for any violation). Available information supports a finding that Applicant has broken off
contacts with the persons with whom he used drugs, that he avoids situations where he
might encounter drugs, and that he has committed in writing to abstaining from future
drug use. However, the record shows that Applicant, who is now 55 years old, started
using marijuana at age 19 and continued to use it for most of the past 35 years. He also
did so knowing that such conduct was illegal and prohibited by DoD policy regarding
access to classified information. There were also times when he stopped using drugs
for periods when he was transitioning from one job or residence locale to another until
he was comfortable that he could resume his use. In light of all of the available
information, Applicant’s abstinence from drug use over the past four years is not
sufficient to support application of AG ¶ 26(b).
Of the remaining mitigating conditions under this guideline, 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) does not apply. Again, the
passage of four years, in this case, is insufficient to show that Applicant’s drug use will
no longer occur. His drug use was not infrequent, and it reflects adversely on his
judgment because it occurred despite Applicant’s understanding of his responsibilities
as a holder of access to classified information and his knowledge of the criminality of his
drug use.
The mitigating condition at AG ¶ 26(c) (abuse of prescription drugs was after a
severe or prolonged illness during which these drugs were prescribed, and abuse has
since ended) does not apply because there is no indication that Applicant’s abuse of
even his own painkiller prescription was tied to an ongoing medical condition. Finally,
Applicant did not complete a drug rehabilitation program and the clinical evaluation he
received does not constitute a positive prognosis as there was no diagnosis of
substance abuse or dependence in the first place. Although it is positive information
about Applicant’s current sobriety, his clinical evaluation alone does not support
application of the mitigating condition at AG ¶ 26(d) (satisfactory completion of a
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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 has not used illegal drugs since 2007 and he has not abused
prescription medications since 2008. However, the value of his current abstinence is
undermined by his extensive history of drug use. It also is possible that his abstinence is
currently motivated by a pending clearance application with another agency and by his
response to the current DoD clearance adjudication. Also, because he has been willing
to lie about his drug use, there are ongoing concerns about his judgment and reliability,
which further undermine his stated intent to abstain from illegal drug use. On balance,
Applicant has not mitigated the security concerns about his drug involvement.
Whole-Person Concept
I have evaluated the facts presented and have applied the appropriate
adjudicative factors under Guidelines E and H. I have also reviewed the record before
me in the context of the whole-person factors listed in AG ¶ 2(a). Applicant is 55 years
old. He has been employed by the same company for 30 years and has been married to
the same person for 28 years. Together, he and his wife have raised two children and
appear to have had a stable, productive life together. Applicant has established a strong
professional and personal reputation through his work and community activities. All of
this information supports a presumption that he is a mature, responsible adult. However,
his behavior for the past 30 years also reflects serious defects in his judgment and
trustworthiness. The positive information about the Applicant’s work and community
accomplishments and reputation are not enough to overcome the willful and protracted
nature of his misconduct. A fair and commonsense assessment of all available
information bearing on Applicant’s past and current circumstances shows that doubts
remain about his ability to protect the Government’s interests as his own. Because
protection of the national interest is paramount in these determinations, such doubts
must be resolved for the Government.
Formal Findings
Formal findings on the allegations set forth in the SOR, as required by section
E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline H: AGAINST APPLICANT
Subparagraphs 1.a - 1.d: Against Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraphs 2.a - 2.c: Against Applicant
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Conclusion
In light of all of the foregoing, it is not clearly consistent with the national interest
to continue Applicant’s access to classified information. Request for security clearance
is denied.
                                         
MATTHEW E. MALONE
Administrative Judge