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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 11-00001
)
Applicant for Security Clearance )
Appearances
For Government: 
Melvin A. Howry, Esquire, Department Counsel
For Applicant: 
Darin M. Groteboer, Esquire
Claery & Green LLP
March 14, 2012
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DECISION
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ROSS, Wilford H., Administrative Judge:
Applicant submitted his most recent Electronic Questionnaire for Investigations
Processing (e-QIP) on August 5, 2010. (Government Exhibit 6.) On April 14, 2011, the
Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR)
to Applicant, which detailed security concerns under Guidelines H (Drug Involvement)
and E (Personal Conduct). 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 on September
1, 2006. 
 
Applicant answered the SOR in writing on May 20, 2011, and requested a
hearing before an administrative judge (Answer). Department Counsel was prepared to
proceed on June 30, 2011. This case was assigned to me on July 8, 2011. DOHA
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issued a notice of hearing on July 26, 2011. I convened the hearing as scheduled on
August 31, 2011. The Government offered Government Exhibits 1 through 7, which
were received without objection. Applicant testified on his own behalf, and submitted
Applicant Exhibits A through G, which were also received without objection. Applicant
requested the record remain open until September 16, 2011, for submission of
additional documents. Applicant Exhibits H through BB were submitted on September
16, 2011, and admitted without objection. DOHA received the transcript (Tr) of the
hearing on September 15, 2011. The record closed on September 16, 2011. Based
upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified
information is granted.
Findings of Fact
Applicant is 45, divorced with three children, and has an Associate of Arts
degree. He is employed by a defense contractor and seeks to obtain a security
clearance in connection with his employment.
Paragraph 1 (Guideline H - Drug Involvement)
The Government alleges under Guideline H that Applicant is ineligible for
clearance because he has used illegal drugs. He admitted all the allegations in the SOR
under this paragraph. (1.a through 1.j.) Those admissions are findings of fact.
Applicant used illegal drugs from about 1981 until August 2004. He used various
forms of methamphetamines, including speed, crank and cocaine, from 1981 through
1984. During that time he was in high school. (Tr at 29-31.) 
Applicant’s primary drug of choice was marijuana, which he used and purchased
from 1981 until August 2004. He also sold small amounts of marijuana in the early years
of his use. Applicant stopped all drug use in August 2004, and has not used any illegal
drugs since that time. Applicant states that he does not currently use drugs and has no
desire or intent to use drugs in the future. (Government Exhibit 7; Tr at 41-42.) In order
to show that he will not use marijuana, or any other illegal drugs, in the future, Applicant
submitted a signed statement of intent, which states that if there is a violation with
regards to drug use, any clearance Applicant holds may be automatically revoked.
(Applicant Exhibit C; Tr at 50-51.)
Applicant freely admitted that his marijuana use had a major impact on his ability
to make good decisions during those years. He believed that his marijuana use effected
his relationships, including his marriage, which ended in divorce. Eventually, Applicant
became romantically involved with the wife of a friend. In August 2004 that friend
attacked Applicant in front of Applicant’s children. (Tr at 32-33, 58, 78-80.)
After he was confronted and attacked by his friend, Applicant was ready to take
the major steps necessary to combat his addiction. He voluntarily went to a counselor at
his employer’s Employee Assistance Program (EAP).  (Applicant Exhibit A; Tr at 37-38,
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81-82.) This counselor referred Applicant to an outpatient treatment facility, which
Applicant attended from September 2004 through February 2005. He successfully
completed the program of care at the facility. (Applicant Exhibit B; Tr at 39-41, 86-88.)
As part of his post-treatment actions, Applicant has made amends to his family and
friends, and he admitted his use to two co-workers. (Applicant Exhibits D and G; Tr at
88-89, 92-93, 96-98.) He also informed his current supervisor of his past drug use after
the hearing. (Applicant Exhibit I.)
Applicant began working in the defense industry in 1984, when he was 18 years
old. He received a security clearance shortly thereafter. As stated, he used marijuana
for approximately 20 years while holding a security clearance. Applicant knew that
marijuana use was not allowed by his employers, or by a person holding a security
clearance. Applicant thought that his use of marijuana while holding a security clearance
was a mistake, stating, “Yes, it has weighed on me for quite awhile.” (Tr at 48-50.)
Paragraph 2 (Guideline E - Personal Conduct)
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he has made false statements during the clearance screening
process; and that his conduct under Paragraph 1, above, shows untrustworthiness,
questionable judgment, unreliability, or other characteristics indicating that Applicant
may not properly safeguard classified information. Applicant admitted all the allegations
in the SOR regarding this paragraph. (2.a through 2.j.) Those admissions are findings of
fact.
Applicant has worked for the defense industry since 1984. He has held a security
clearance for most of that time. Accordingly, he has had to fill out personnel security
questionnaires on a periodic basis. He actively falsified facts about his drug use on
questionnaires dated August 16, 1984; July 25, 1989; April 8, 1995; and September 23,
2001. (Government Exhibits 1, 2, 3 and 4.) His falsifications included facts concerning
his use, purchase, and sale of marijuana. Beginning with the 1989 questionnaire, his
falsifications also included the fact that he used marijuana after receiving a security
clearance. Applicant believes his continued drug use led him to use bad judgment and
falsify the questionnaires. (Government Exhibit 7; Tr at 53-56, 69-73.) He testified, “At
each signing [of a questionnaire], I felt regret, knowing that it was wrong and being two-
faced.” (Tr at 57.)
As stated above, in 2004 Applicant went to his EAP for help with his marijuana
use. Other than the counselor, he did not discuss his drug use with his employer until
February 26, 2008, when he next filled out a questionnaire. (Government Exhibit 5.) In
Section 24 of that questionnaire Applicant sets out all the facts concerning his marijuana
use. He does the same thing in a questionnaire dated August 5, 2010. (Government
Exhibit 6.) He also discusses his drug use in a set of interrogatories dated January 25,
2011. (Government Exhibit 7.)
Applicant has informed his current manager of his drug use, drug treatment, and
the fact of this current proceeding. (Applicant Exhibit I.) During his testimony, Applicant
Evaluations were not submitted for years 1993, 1994, 1995, 2000 and 2001.1
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had originally indicated a reluctance to do this. However, after  examination by his
attorney, Department Counsel, and myself, he showed a much greater awareness of
the implications of not being forthcoming. (Tr at 99-112.) Applicant stated, “I think that’s
a part of making amends is to let my Manager know. If it’s fully disclosed, I have nothing
to worry about.” (Tr at 110.)
Mitigation
Applicant submitted documentary evidence showing that he is a highly respected
person and employee. Applicant’s current supervisor submitted a letter. He has worked
with Applicant for about one year and eight months. He states that Applicant “has
displayed professionalism, enthusiasm, integrity and competence in every task that has
been assigned to him.” (Applicant Exhibit I.)
Letters were also submitted from two co-workers. Applicant has discussed his
drug problems with them. The person who submitted Applicant Exhibit D has known
Applicant for 20 years. His letter shows that Applicant has freely told him the facts of his
marijuana usage and the problems it caused him. The other person, a manager, states
he brought Applicant over to another program. He further states that he trusts the
Applicant to make good decisions as a security clearance holder. (Applicant Exhibit G.)
Applicant submitted several work-related letters of commendation or
recommendation. They are from superiors as well as from a Defense Department
employee. (Applicant Exhibits J, K, L and M.)
He submitted performance evaluations covering most of the years between 1992
and 2010. (Applicant Exhibits N through BB.)  During that time he worked with three1
different employers. These evaluations show an employee who was consistently getting
high marks for his ability and work performance, which was usually either commendable
or outstanding.
Applicant’s parents and his long-time girlfriend also submitted letters on
Applicant’s behalf. (Applicant Exhibits E and F.)
Policies
Security clearance decisions are not made in a vacuum. When evaluating an
applicant’s suitability for a security clearance, the administrative judge must consider
the adjudicative guidelines. In addition to brief introductory explanations for each
guideline, the adjudicative guidelines list potentially disqualifying conditions and
mitigating conditions, which are to be used as appropriate in evaluating an applicant’s
eligibility for access to classified information.
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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 overarching
adjudicative goal is a 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. In addition, the administrative judge may also rely on his or her own
common sense, as well as knowledge of the law, human nature, and the ways of the
world, in making a reasoned decision.
The protection of the national security is the paramount consideration. AG ¶ 2(b)
requires that, “Any 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 ¶ 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 the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance 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. Security clearance decisions include, by
necessity, consideration of the possible risk that the applicant may deliberately or
inadvertently fail to protect or safeguard classified information. Such decisions entail a
certain degree of legally permissible extrapolation as to potential, rather than actual, risk
of compromise of classified information.
 
Finally, as emphasized in Section 7 of Executive Order 10865, “Any
determination under this order adverse to an applicant shall be a determination 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).  
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Analysis
Paragraph 1 (Guideline H - Drug Involvement)
The security concern relating to the guideline for Drug Involvement is set out in
AG & 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.
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; Drug abuse is the illegal use of a
drug or use of a legal drug in a manner that deviates from approved
medical direction.
I have considered the disqualifying conditions under Drug Involvement AG ¶ 25 
and especially considered the following:  
(a) any drug abuse;
(c) illegal drug possession, including cultivation, processing, manufacture,
purchase, sale, or distribution; or possession of drug paraphernalia;
(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; and
(g) any illegal drug use after being granted a security clearance.
Applicant used marijuana on a regular basis from 1984 to August 2004. He sold
and purchased marijuana during the entire period and he also held a security clearance
during the majority of that time. He attended drug treatment in 2004. While there is no
written diagnosis or evaluation in evidence, Applicant testified that he was found to be
drug dependent in order to enter the program. I find that all of the above disqualifying
conditions apply. 
I have considered all of the mitigating conditions under Drug Involvement AG ¶
26 and especially considered the following: 
(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 reliability, trustworthiness, or good judgment; and 
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(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 are used; (3) an appropriate period
of abstinence; (4) a signed statement of intent with automatic revocation of
clearance for any violation; 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 abuse of marijuana occurred seven years ago. In August 2004, of his
own volition after a shattering event in his personal life, he decided to get help from his
employer’s EAP. The counselor recommended treatment, which Applicant attended. He
was successful, as is shown by the “good” prognosis he received and his seven years
of sobriety. The evidence in the record, including his extensive and credible testimony,
shows Applicant has matured, that he has a credible and sustainable long-term
commitment not to use drugs in the future. Paragraph 1 is found for Applicant.
Paragraph 2 (Guideline E - Personal Conduct)
The security concern for Personal Conduct is set out in AG & 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. Of special interest in any failure to provide
truthful and candid answers during the security clearance process or any
other failure to cooperate with the security clearance process.
The following Disqualifying Conditions are applicable under 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; and
(e) personal conduct, or concealment of information about one’s conduct,
that creates a vulnerability to exploitation, manipulation, or duress, such
as (1) engaging in activities which, if known, may affect the person’s
personal, professional, or community standing . . .
The record shows, and Applicant admits, falsifying information concerning his
drug use on four questionnaires. These questionnaires were filled out over 18 years
from 1984 through 2002. In addition, Applicant also testified that he would like to avoid
admitting his drug use to his current supervisor, because that person may look down
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upon Applicant. Finally, as set forth above, Applicant had a 20 year history of drug
abuse, which ended in 2004. Both of the Disqualifying Conditions apply. 
Based on all the available evidence, the following Mitigating Conditions apply
under 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;
(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, unreliable,
or other inappropriate behavior, and such behavior is unlikely to recur; and
(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress.
Applicant compellingly showed that all three of these Mitigating Conditions apply
in this case.  It has been ten years since Applicant last falsified a questionnaire. He
came forward voluntarily to his EAP counselor in 2004, and in 2008, 2010, and 2011
was completely forthcoming to the Government about his drug use. He submitted
evidence showing that his current supervisor, and other co-workers, know of his drug
use and the extent of it. Beginning in 2004 Applicant took responsibility for his conduct,
and has worked hard to make amends to his family, friends, and co-workers since that
time. Paragraph 2 is found for Applicant.
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
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.
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I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. My Guidelines H and E discussion
applies here as well. Applicant engaged in drug use that ended about seven years ago,
when he engaged in an extensive bout of treatment after admitting to himself that he
could no longer use drugs. He is respected at his place of employment, credibly states
he will not use drugs in the future, and has mitigated the falsifications of prior
questionnaires. In particular, he has matured and both understands and accepts DoD
policy concerning use of illegal drugs and the essential requirement that he be
completely truthful in all of his dealings with the Government. The record shows that he
has matured, understands the nature of his conduct, and credibly shows that such
conduct will not happen in the future.
Applicant’s conduct was serious, but there is considerable evidence of
rehabilitation. Based on the state of the record, I find that there have been permanent
behavioral changes under AG ¶ 2(a)(6). Accordingly, at the present time, I find that
there is little to no potential for pressure, coercion, exploitation, or duress (AG ¶ 2(a)(8));
and that there is also little to no likelihood of recurrence (AG ¶ 2(a)(9)). 
Overall, the record evidence leaves me without questions and doubts about
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant has mitigated the security concerns arising from his Drug
Involvement and Personal Conduct. He is currently eligible 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: FOR APPLICANT
Subparagraphs 1.a through 1.e: For Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraphs 2.a through 2.j: 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.
            
                                
WILFORD H. ROSS
Administrative Judge