The Government submitted nine items in support of its case.      1
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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
 )       ISCR Case No. 10-09402
)
)
Applicant for Security Clearance )
Appearances
For Government: Julie R. Mendez, Esq., Department Counsel
For Applicant: Pro se
                                                                            
______________
Decision
______________
LYNCH, Noreen A., Administrative Judge:
On October 27, 2011, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) listing security concerns arising under Guideline
H (Drug Involvement), and Guideline E (Personal Conduct). 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 an administrative
determination. Department Counsel submitted a File of Relevant Material (FORM),
dated February 2, 2012.  Applicant received the FORM on February 7, 2012, and1
submitted a response to the FORM, which is admitted into the record without objection
as AE A. On March 9, 2012, the Director, DOHA, forwarded the case for assignment to
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an administrative judge. I received the case assignment on March 9, 2012. Based on a
review of the case file, submissions, and exhibits, I find Applicant failed to meet his
burden regarding the security concerns raised. Security clearance is denied.
Findings of Fact
In his answer to the SOR, Applicant admitted the factual allegations under
Guideline H (Drug Involvement), and Guideline E (Personal Conduct).
Applicant is a 31-year-old employee of a defense contractor. He graduated from
high school and received his undergraduate degree in 2008. Applicant is married and
has one child. Applicant served in the United States Navy from November 2001 through
August 2007. He received an honorable discharge. He earned the good conduct medal
and the global war on terrorism medal during his military service. He has worked for his
current employer since January 2010. (Item 4) Applicant has held a security clearance
since approximately January 2000.  (Item 1) 
Applicant states that he is proud of his current employment and believes that it is
a great personal accomplishment. He wants to continue his work, and does not intend
to do anything to jeopardize his position. 
Applicant apologizes to the Government and states that he is an honest person
and is humbled with the prospect of losing his eligibility for access to classified
information, as his career depends on it.  He regrets any wrong decisions that he has
made. He regrets not being “clearer” in his responses to the SOR. He is sorry that he
did not seek advice from his company Facility Security Officer (FSO). (Letter dated,
February 29, 2012)
Applicant submitted letters of recommendation from his wife, facility security
officer, supervisor, former supervisor, and colleague. He is described as professional,
prompt, dependable, and trustworthy. Applicant has gained the respect of his peers.
(AE A) He is a valued member of the team. Applicant also submitted his 2011 annual
performance review, which notes that he met or exceeded expectations in most areas.  
Drug Involvement
In March 2001, Applicant was charged with Possession of Marijuana. He
believes he was in the wrong place at the wrong time. He was in an apartment with
another friend when police arrived with a search warrant. (Item 8) According to
Applicant, marijuana was found in the apartment, but not on his person. Despite that
fact, he was charged with possession of marijuana. After appearing in court regarding
the charge, the charge was nolle prossed. (Item 7) In his Answer to Statement of
Reasons, he admitted the March 2001 charge.
Applicant tested positive for marijuana on June 11, 2009, during a pre-
employment screening. (Items 3, 6, and 9) Applicant maintains that he could provide no
reason why his test was positive for marijuana, and initially claimed the test was a false
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positive. He also stated that he never used any illegal drugs. (Item 4) He did not provide
another sample, and he also did not request that the same sample be retested. (Item 6)
Applicant’s Response to the FORM contained a signed Statement of Intent not to
use any illegal substance in the future with revocation of his security clearance should
he use illegal drugs. He emphasized that he has never used drugs nor had any desire
to use drugs. In his Answer to the Statement of Reasons, Applicant admitted that he
tested positive for marijuana in 2009, but he did not provide any reason why the test
was positive.
Personal Conduct
In Applicant’s Answer to the Statement of Reasons, he admitted that he
deliberately falsified material facts by failing to disclose his 2001 drug charge on his
February 2010 SF-86 and in response to 2011 DOHA interrogatories. (Item 5) He also
admitted that he falsified material facts during an OPM interview in 2010. (Item 3)
Applicant completed his security clearance application (SF-86) on February 3,
2010. In response to Section 23. Illegal Use of Drugs or Drug Activity, he answered
“No”, and did not disclose the June 2009 positive test result for marijuana. He claims he
did not use it.
In that same SF-86, in response to Section 22: Police Record, he answered “No”
and did not list the charge of Possession of Marijuana in 2001. Also, in his May 2010,
OPM interview, he stated that he had never used any illegal substance, despite the
positive test result for marijuana in June 2009.
It is troubling that Applicant’s Answer to the SOR admits to all alleged
falsifications. However, his OPM subject interview, and DOHA interrogatories, and SF-
86 provide denials of any charges or use of marijuana.  
Applicant’s Response to the FORM states that he did just use “admit” because
he did not realize he could refute allegations in his own words. He has held a security
clearance in the past and is familiar with the form. I do not find this a reasonable
response. He provides another apology to the Government, and does not provide any
information to refute the allegations. 
Applicant’s Response to the FORM contains the following statement: “I realize
that by being honest about not using drugs is harder to do in my circumstance than to
just go ahead and untruthfully say I experimented with drugs once or twice, especially
with a positive drug test on my record.” He also explains that he did not mention his
2001 marijuana charge because it was nolle prossed. 
Policies
When evaluating an applicant’s suitability for a security clearance, an
administrative judge must consider the adjudicative guidelines (AG). In addition to brief
 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995).      2
 Department of the Navy v. Egan, 484 U.S. 518, 531 (1988).      3
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).      4
 See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive      5
information), and EO 10865 § 7.
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).      6
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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 United States 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 a2
preponderance of evidence.  The ultimate burden of persuasion is on the applicant.  3 4
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.
 
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 clearance5
determinations should err, if they must, on the side of denials.”  Any reasonable doubt6
about whether an applicant should be allowed access to sensitive information must be
 Id.      7
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resolved in favor of protecting such information.  The decision to deny an individual a7
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.
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;
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(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 tested positive for marijuana in June 2009 on a pre-screening
employment drug test. He had a 2001 marijuana charge that was nolle prossed. AG¶¶
25(a), 25(b) and 25(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
(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 positive test result for marijuana was in June 2009. He signed a
Statement of Intent letter in 2012. He states that he has not used any illegal drugs.
However, he did not obtain a current evaluation from a licensed professional which
provides some collaboration of his non-drug use. He has not been forthright about his
illegal drug use and this prevents mitigation of the security concern under the guideline. 
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Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
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.
AG ¶ 16 describes conditions that could raise a security concern and may be
disqualifying. Under AG ¶ 16(a), a disqualifying conditions exists when there is
“deliberate omission, concealment, or falsification of relevant facts from any personnel
questionnaire, personal history statement, or similar form used to conduct
investigations, determine employment qualifications, award benefits or status,
determine security eligibility or trustworthiness, or award fiduciary responsibilities.”
Under AG ¶ 16(b) a disqualifying condition exists when “deliberately providing false or
misleading information concerning relevant facts to an employer, investigator, security
official, competent medical authority, or other official government representative.”
Applicant’s multiple recent admissions are sufficient to raise the disqualifying
conditions. He deliberately misled the government by not including any information
about his 2001 marijuana charge or 2009 positive drug test on his 2010 SF-86, his
2010 OPM interview, and his 2011 interrogatories. He did not provide prompt or good
faith efforts to correct his falsifications, rather he continued to deny illegal drug use until
his Answer to SOR. There is no record evidence supporting the application of any
mitigating conditions. His behavior and personal conduct are disqualifying as they raise
questions about his judgment, reliability, truthfulness, and willingness to comply with the
law. I do not find his response to the FORM to be credible. I believe he used marijuana
before his 2009 urinalysis test and he intentionally failed to disclose his 2001 marijuana
charge.
After considering the mitigating conditions outlined in AG ¶ 17, I conclude that
none of them apply. Applicant did not make prompt or good-faith efforts to correct his
falsification or concealment. He provided no information that indicates he was ill-
advised. The intentional omissions occurred in 2010, and are too recent and serious to
be mitigated by the passage of time. I have serious doubts about his good judgment
and reliability. He has not provided information in this record to show that he has met
his burden of proof to mitigate the personal conduct concern.
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 an applicant’s
conduct and all the circumstances. The administrative judge should consider the nine
adjudicative process factors listed at AG ¶ 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. 
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. As noted above, the
ultimate burden of persuasion is on the applicant seeking a security clearance. 
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case, as well as the whole-person factors.
Applicant is 31 years old. He has letters of recommendation from his employer and
others. He has done a good job in his position since 2010. He is married and has two
children. He is proud of his work accomplishments and apologized to the Government.
He claims he has not used any illegal drugs despite the 2009 positive test result for
marijuana and the 2001 marijuana charge.
Applicant admitted deliberate falsifications in his Answer to the SOR. He then
stated in his FORM response that he has never used illegal drugs. He now recants his
admissions because he states he did not know that he could refute the allegations in
his own words. Because of his dishonesty, his drug use history remains unclear.
Without full, candid, and forthright  information from Appellant, no valid evaluation can
be done to determine the applicability of any mitigating conditions. He has not provided
any prompt or good-faith efforts to correct his falsification. He just continues to deny
any illegal drug use and states he is baffled by the positive test. Applicant shows a lack
of candor and questionable judgment. I have doubts about his reliability. 
Applicant failed to submit sufficient information or evidence to mitigate the
security concerns raised in his case. He failed to offer any evidence that the test was a
false positive. He admitted that he intentionally falsified his 2010 security clearance
application. His retraction in his Response to FORM, leaves me with doubts, given the
record. Accordingly, Applicant has not mitigated the security concerns.  Clearance is
denied. 
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
Subparagraphs 1.a- 1b: Against Applicant
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Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraphs 2.a through 2.e: 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 a security clearance.
Clearance is denied.
                                                     
NOREEN A. LYNCH.
Administrative Judge