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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 10-10606
)
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Steve Gardella, Esquire
January 17, 2012
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Decision
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CEFOLA, Richard A., Administrative Judge:
The Applicant submitted his Electronic Questionnaires for Investigations
Processing (e-QIP) on July 22, 2010.  On June 14, 2011, the Defense Office of
Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the
security concerns under Guidelines H, J and E for the 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), effective within the
Department of Defense after September 1, 2006. 
The Applicant acknowledged receipt of the SOR on June 22, 2011.  He
answered the SOR in writing through counsel on July 8, 2011, and requested a hearing
before an Administrative Judge.  DOHA received the request on July 11, 2011, and I
received the case assignment on September 26, 2011.  DOHA issued a notice of
hearing on September 21, 2011, and I convened the hearing as scheduled on October
26, 2011.  The Government offered Exhibits (GXs) 1 and 2, which were received without
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objection.  The Applicant testified on his own behalf and submitted Exhibits (AppXs) A
through N, which were received without objection.  DOHA received the transcript of the
hearing (TR) on November 2, 2011.  The record closed on that same date, November 2,
2011.  Based upon a review of the pleadings, exhibits, and testimony, eligibility for
access to classified information is granted.
Procedural and Evidentiary Rulings
Motion to Amend SOR
Department Counsel moved to amend the SOR by deleting the words “and 1.b.”
from Subparagraph 2.a.  The motion was granted.  (TR at page 45 line 20 to page 46
line 11.)
Request for Administrative Notice
Department Counsel submitted a formal request that I take administrative notice
of the Controlled Substance Act as it defines “marijuana,” and as it lists the drug on the
Schedules of Controlled Substances.  (Title 21, Chapter 13, Sub-Chapter 1, Part A,
Section 802(15); and Title 21, Chapter 13, Sub-Chapter 1, Part B, Section 812(C)
(C)(10).)  The request was granted.  The facts administratively noticed are set out in the
Findings of Fact, below. 
Findings of Fact
In his Answer to the SOR, the Applicant admitted the factual allegations in
Paragraph 1 of the SOR, with explanations.  He denied the factual allegations in
Paragraphs 2 and 3 of the SOR.
Paragraph 1 - Drug Involvement, Paragraph 2 - Criminal Conduct, & Paragraph 3 -
Personal Conduct.
The Applicant is a retired Master Sergeant from the Marine Corps.  (TR at page
21 lines 8~12, at page 38 lines 5~11, and AppX L.)  He has held a security clearance
since March of 2002.  (TR at page 35 line 25 to page 36 line 4.)
Upon his separation from the Marine Corps in September of 2005, his sister
picked him up at the airport.  (TR at page 19 line 7 to page 25 line 23.)  Wanting to bond
once again with her brother, she offered him a marijuana joint, from which he took a
puff.  (Id.)  He knew this was wrong, and has since asked his sister not to use marijuana
in his presence.  (TR at page 29 line 21 to page 30 line 6.)
In July of 2009, the Applicant, who has 30% retired disability due to injuries to his
back and shoulder, was offered medical marijuana by his next door neighbor, to see if
the drug would relieve his pain.  (TR at page 19 line 7 to page 25 line 23.)  The
neighbor, not the Applicant, had a prescription for the marijuana.  (Id.)  He took several
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puffs from a joint, but it did not reduce his pain.  (TR at page 19 line 7 to page 25 line
23.)  He has not used any marijuana since this July 2009 incident, and his neighbor has
since moved away.  (TR at page 29 line 21 to page 30 line 6.)
More recently, in July of 2011, the Applicant signed a “STATEMENT OF
INTENT” with “automatic revocation” for any involvement with “illegal drugs” in the
future.  (TR at page 28 lines 13~20, at page 44 line 18 to page 45 line 19, and AppX K.)
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
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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
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 twice, in September
of 2005 and again in July of 2009, after having been granted a security clearance in
2002.  However, these are countered by the mitigating conditions found in
Subparagraphs 26(a) as “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”; and 26(b) when
there is “a demonstrated intent not to abuse any drugs in the future, such as: (4) a
signed statement of intent with automatic revocation of clearance for any violation.”
Here, the Applicant last used marijuana more than two years ago; his total usage was
only twice, and the circumstance of the usage, first bonding with his sister upon
retirement and then treating his back pain, are unlikely to recur; and he has signed a
statement of intent with automatic revocation in the event of any future drug
involvement.
Guideline J - Criminal Conduct
Paragraph 30 of the adjudicative guidelines sets out the security concern relating
to Criminal Conduct:
Criminal activity creates doubt about a person=s judgment, reliability, and
trustworthiness.  By its very nature, it calls into question a person=s ability
or willingness to comply with laws, rules and regulations.
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The adjudicative guidelines set out certain conditions that could raise security
concerns.  Paragraph 31(a) provides that “a single serious crime or multiple lesser
offenses,” may raise security concerns.  He smoked marijuana on two separate
occasions.  Paragraph 31(c) provides that an “allegation or admission of criminal
conduct, regardless of whether the person was formally charged, formally prosecuted or
convicted,@ may also raise security concerns.  He knew his conduct was illegal.
However, these are clearly countered by the mitigating condition in Subparagraph 32(a)
as “so much time has elapsed since the criminal behavior happened, or it happened
under such unusual circumstances that it is unlikely to recur and does not cast doubt on
the individual’s reliability, trustworthiness, or good judgment.”  The Applicant’s limited
usage was more than two years ago, and the circumstances of that usage are unlikely
to recur.
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(d), “credible adverse information that . . . may not be sufficient by
itself for an adverse determination, but which, when combined with all available
information supports a whole-person assessment of questionable judgment . . .  This
includes but is not limited to consideration of: (3) a pattern of dishonestly or rule
violations,” may be disqualifying.  Again, the Applicant illegally smoked marijuana on
two occasions.  However, this is clearly countered by the mitigating condition in
Subparagraph 17(c) as “the offense is so minor, or so much time has passed, or the
behavior is so infrequent, or it happened under such unusual circumstances that it is
unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness,
or good judgment.”  Again, the Applicant’s limited usage was more than two years ago,
and the circumstances of that usage are unlikely to recur.
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.
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The Administrative Judge should also consider the nine adjudicative process
factors listed at AG Subparagraph 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.
I considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  Those who know the Applicant from the
Marine Corps and in the workplace speak most highly of the Applicant.  (AppX A~I.)
Thus, the record evidence leaves me with no questions or 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 admitted Drug
Involvement, Criminal Conduct and 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: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Paragraph 2, Guideline J: FOR APPLICANT
Subparagraph 2.a: For Applicant
Paragraph 3, Guideline E: FOR APPLICANT
Subparagraph 3.a: 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 the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
Richard A. Cefola
Administrative Judge