DEPARTMENT OF DEFENSE 
            DEFENSE OFFICE OF HEARINGS AND APPEALS 
          
             
 
 
 
In the matter of: ) 
) 
-------------------------- )       ISCR Case No. 11-00446 
 ) 
) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Julie R. Mendez, Esquire, Department Counsel 
For Applicant: Pro Se 
 
 
 
______________ 
 
Decision 
______________ 
 
 
HOWE, Philip S., Administrative Judge: 
 
On October 31, 2007, Applicant submitted his electronic version of the Security 
Clearance Application (SF 86) (e-QIP). On December 5, 2011, the Defense Office of 
Hearings and Appeals (DOHA) issued to Applicant a Statement of Reasons (SOR) 
detailing 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 December 15, 2011. Applicant 
requested his case be decided on the written record in lieu of a hearing.  
 
On January 9, 2012, Department Counsel submitted the Department s written 
case. A complete copy of the file of relevant material (FORM) was provided to the 
Applicant on January 11, 2012. He was given the opportunity to file objections and 
submit material in refutation, extenuation, or mitigation. Applicant received the file on 
January 23, 2012. Applicant filed a Response to the FORM on January 30, 2012, within 
the 30 day time allowed that would have expired on February 22, 2012. I received the 
case assignment on February 14, 2012. Based upon a review of the pleadings and 
exhibits, eligibility for access to classified information is denied 
 
Findings of Fact 
 
Applicant admitted the allegations in Paragraph 1 of the SOR. He neither 
admitted nor denied the allegations in Paragraph 2. In his January 30, 2012 Response 
to the FORM Applicant acknowledged he erred in not making an answer to Paragraph 
2. He admitted the allegations in Paragraph 2.  
 
Applicant is 27 years old and not married. He has an associate’s degree earned 
in 2005. A government contractor has employed him since June 2006. During this time 
he was promoted twice and received several merit pay increases. (Item 3 and 
Response Attachment) 
 
Applicant used marijuana from June 2002 to September 2009. Applicant 
described his marijuana use as one or twice a month at parties until June 2004. From 
then until September 2009 his marijuana use decreased to one or two times a year with 
friends, according to Applicant’s admissions. (Items 3-7, Answer, Response) 
 
Applicant was arrested in April 2006 for driving while intoxicated. His blood 
alcohol content (BAC) was .14%. Applicant drove at 91 miles per hour when arrested by 
the police. He was ordered to pay a $1,300 fine, court costs, issued a restricted driving 
permit, and sent to a substance abuse counseling course from August 2006 to February 
2007. Next, he was ordered to participate in an alcohol safety program from the 
completion of the first program until May 2007. (Items 4, 5) 
 
Applicant received a security clearance in February 2008. His previous e-QIP is 
dated October 2007. On that form Applicant admitted only using marijuana five times 
between June 2002 and June 2004. Applicant continued to use marijuana while holding 
this security clearance until at least September 2009. (Items 4-7) 
 
On August 24, 2009, Applicant was arrested by the local police in his apartment 
for using and possessing marijuana. Applicant was at his apartment with his girlfriend 
when the police knocked on his door seeking the identity of the person who parked 
illegally in or near a handicapped parking space. Applicant’s girlfriend was that person. 
The police detected the odor of marijuana from inside Applicant’s apartment and 
arrested him. Applicant admitted he bought the marijuana several months earlier and 
smoked it several times since then. This admission contradicts Applicant’s other 
admissions that he only used marijuana once or twice a year from 2004 to 2009. (Items 
3-7) 
 
Applicant pled “no contest” to the marijuana charge. He received probation and 
community service, along with paying a fine. (Items 3-7) 
 
Applicant submitted a character statement from the president of his company. 
That person states in his letter that Applicant is a trustworthy and honest employee. The 
letter author further characterizes Applicant as a person who has grown personally and 
professionally. He has a strong work ethic evidenced by his work product. (Response 
Attachment) 
 
Applicant’s personal conduct security concern, according to the SOR, includes 
the marijuana use alleged in Paragraph 1 of the SOR and his failure to answer Section 
24(a) of his application truthfully by fully disclosing his marijuana use. Applicant 
answered this question about his illegal drug use in the past seven years by stating he 
used marijuana only on five occasions between June 2002 and June 2004. Applicant 
failed to disclose he used marijuana on the average of once a year between June 2004 
and October 2007. (Items 3-7, Answer, Response) 
 
Applicant stated he has left behind his illegal drug use in his response to DOHA 
interrogatories in October 2011. In the same interrogatory Applicant stated his 
marijuana use created conflict with his job and he no longer wished to risk his job and 
home. He also stated in the interrogatory that he leaves any situation in which other 
people use drugs. (Item 5) 
 
Applicant did not submit any objective drug evaluation or results of his 2006 and 
2007 courses on drug and alcohol use. I was unable to evaluate his credibility, 
demeanor, or character in person since he elected to have his case decided without a 
hearing. 
 
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, the administrative judge applies the guidelines 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. 
 
 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.  
 
According to Directive ¶ E3.1.14, the Government must present evidence to 
establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an 
“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. 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 
permissible extrapolation as to 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 information).  
 
Analysis 
 
Guideline H, Drug Involvement 
 
AG ¶ 24 expresses the security concern pertaining to illegal drugs: 
 
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 eight conditions that could raise a security concern and may 
be disqualifying. Four disqualifying conditions apply in this case: 
 
(a) any drug abuse (see above definition);  
 
(c) illegal drug possession, including cultivation, processing, manufacture, 
purchase, sale, or distribution; or possession of drug paraphernalia;  
 
(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 admits his marijuana drug use from June 2002 to September 2009 (AG 
¶ 25 (a)). He admitted possessing marijuana which he used during that time period (AG 
¶ 25 (c)). Applicant admitted using marijuana after February 2008 when he received his 
interim security clearance (AG ¶ 25 (g)). Finally, Applicant failed to clearly and 
convincingly commit to discontinue illegal drug use. He claims he ceased his marijuana 
use in September 2009 after seven years of use without any objective proof of that 
alleged cessation (AG ¶ 25 (h)).   
 
AG ¶ 26 provides four conditions that could mitigate security concerns. Two 
conditions might apply in this case: 
 
(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; 
and 
 
(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; 
  
None of these mitigating conditions applies. Applicant has a long history of 
marijuana use. His asserted abstinence is only two years in duration, a short time in 
comparison to the duration of marijuana use, including after Applicant obtained a 
security clearance. Applicant claims he ceased his use because it imperiled his job and 
his home. Yet, he does not provide any objective professional information confirming 
those assertions.   
 
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. 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. 
 
The following will normally result in an unfavorable clearance action 
or administrative termination of further processing for clearance eligibility: 
 
(a) refusal, or failure without reasonable cause, to undergo or 
cooperate with security processing, including but not limited to meeting 
with a security investigator for subject interview, completing security forms 
or releases, and cooperation with medical or psychological evaluation; 
and, 
 
(b) refusal to provide full, frank and truthful answers to lawful 
questions of investigators, security officials, or other official 
representatives in connection with a personnel security or trustworthiness 
determination. 
 
AG ¶ 16 describes conditions that could raise a security concern and may be 
disqualifying in this case: 
 
(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, or (2) while in another 
country, engaging in any activity that is illegal in that country or that is 
legal in that country but illegal in the United States and may serve as a 
basis for exploitation or pressure by the foreign security or intelligence 
service or other group. 
 
Applicant did not disclose the extent of his marijuana use in the past seven years 
as requested in Section 24 (a) of the e-QIP he signed on October 31, 2007. This 
deliberate omission is alleged in SOR Paragraph 2. Applicant’s personal conduct 
security concern includes his repeated marijuana use from 2002 to 2009. AG ¶ 16 (a) 
applies.  
 
 Applicant’s personal conduct involving marijuana creates a vulnerability to 
exploitation, manipulation, or duress because his activities may affect his personal, 
professional, or community standing. AG ¶ 16 (e) applies. 
  
AG ¶ 17 provides seven conditions that could mitigate security concerns: 
 
(a) the individual made prompt, good-faith efforts to correct the omission, 
concealment, or falsification before being confronted with the facts; 
 
(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; 
 
(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; 
 
(e) the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress; 
 
(f) the information was unsubstantiated or from a source of questionable 
reliability; and, 
 
(g) association with persons involved in criminal activity 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. 
 
None of these mitigating conditions apply. Applicant did not make prompt good-
faith efforts to correct his omissions on his security clearance application. His actions 
are serious and continuous over a seven-year period. Applicant has not obtained 
substance abuse counseling to change his behavior or taken other positive steps to 
alleviate his problems or reasons underlying the illegal conduct. The behavior is likely to 
continue without professional assistance. Finally, Applicant has not taken positive steps 
to reduce or eliminate vulnerability to exploitation, except allegedly stopping his 
marijuana use.  
  
AG ¶¶ 17 (f) and (g) are not applicable in this case.  
 
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 relevant 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.      
 
I considered the potentially disqualifying and mitigating conditions in light of all 
facts and circumstances surrounding this case. Applicant was an adult when he used 
marijuana. He used it after receiving a security clearance in 2008. He knew such drug 
use was illegal. Applicant claims he ceased his drug use to protect his job and home, 
but did not submit any objective drug evaluation information or evidence of 
rehabilitation. He voluntarily used marijuana frequently from 2002 to 2009. Because of 
his past marijuana use there is potential for coercion, pressure, exploitation, or duress. 
There is also a likelihood of a recurrence of Applicant’s illegal drug use.  
 
Overall, the record evidence leaves me with questions or substantial doubts as to 
Applicant s eligibility and suitability for a security clearance. For all these reasons, I 
conclude Applicant did not mitigate the security concerns arising under the guidelines 
for Drug Involvement or Personal Conduct. I conclude the “whole-person” concept 
against Applicant.  
 
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 
 
          Subparagraph 1.a to 1.c:   Against Applicant 
 
 Paragraph 2, Guideline E:    AGAINST APPLICANT 
 
 Subparagraphs 2.a and 2.b:  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 eligibility for a security 
clearance. Eligibility for access to classified information is denied. 
 
 
 
 
                                                   
_________________ 
PHILIP S. HOWE 
Administrative Judge