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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
-------------------------- )       ISCR Case No. 11-03055
)
Applicant for Security Clearance )
Appearances
For Government: Julie R. Mendez, Esquire, Department Counsel
For Applicant: Pro se
April 27, 2012
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DECISION
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ROSS, Wilford H., Administrative Judge:
Applicant submitted his Electronic Questionnaire for Investigation Processing (e-
QIP) on November 4, 2010. (Item 4.) On September 16, 2011, the Defense Office of
Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the
security concerns under Guidelines H (Drug Involvement), G (Alcohol Consumption), F
(Financial Considerations), and E (Personal Conduct) concerning 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 for SORs issued after September 1, 2006. 
 
Applicant acknowledged receipt of the SOR on October 25, 2011. (Item 2.) He
subsequently submitted an undated Answer to the SOR, and requested a decision be
made without a hearing.  (Item 3.) Department Counsel submitted a File of Relevant
Material (FORM) to Applicant on November 23, 2011. Applicant received the FORM on
November 29, 2011, and was given 30 days to submit any additional information.
Applicant elected not to submit any additional information. The case was assigned to
Items 5, 6 and 7.1
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me on January 24, 2012. Based upon a review of the pleadings and exhibits, eligibility
for access to classified information is denied.
Findings of Fact
Applicant is 42, and divorced. However, he continues to live with his former
spouse. He is employed by a defense contractor and seeks to obtain a security
clearance in connection with his employment. Applicant admitted all of the allegations in
the SOR. Those admissions are findings of fact. Applicant’s admissions, including those
made in response to DOHA interrogatories,  are incorporated into the following findings1
of fact.
Paragraph 1 (Guideline H, Drug Involvement)
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he used illegal drugs.
Applicant has used cocaine with varying frequency from at least October 1999
until April 2010. He admitted that in 2005, 2009, and 2010 he would drink in bars and
use cocaine after drinking. As a condition of employment, he has been subject to drug
tests with various employers since 1999. Applicant tested positive for cocaine in 1999,
twice in 2006 and most recently in 2010. He was terminated from jobs in 1999 and 2010
because of his cocaine use. As a result of his drug use Applicant voluntarily attended
treatment in approximately 2005, which was also for alcohol use. He used cocaine at
least twice after that treatment. Applicant states that he had a security clearance from
1996 through 2005. In an interrogatory dated August 10, 2011, Applicant indicates that
he has been drug free since April 2010. (Item 7 at page 6.)
In addition to his more recent cocaine use, Applicant used marijuana in the
1980s and 1990s. He also used and sold LSD in the 1980s, when he was in high
school. He was arrested for selling LSD at that time. (Item 7 at pages 4-5, and Item 10
at page 3.)
Paragraph 2 (Guideline G, Alcohol Consumption)
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he has use intoxicants to excess.
Applicant has a long history of alcohol use, which resulted in five alcohol related
arrests for Driving While Intoxicated between 1988 and 1990. This was when Applicant
was 18 to 20 years old. (Item 6 at pages 6-7, and Item 10.) 
Applicant received treatment for his alcohol use in 1990 and 2005. The treatment
in 1990 was court ordered after his last alcohol-related arrest. Applicant indicated after
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each treatment that they were successful in educating him about the risks of alcohol
abuse. (Item 6 at page 8, and Item 10 at pages 2-3.) Both times Applicant eventually
began using drugs and alcohol again.  As of November 2010 Applicant continues to
drink alcohol “socially.” An investigator from the Office of Personnel Management stated
that Applicant, “has not attempted to stop or reduce consumption, he has had no
problems with alcohol since the DUI.” (Item 6 at page 6.) 
Paragraph 3 (Guideline F, Financial Considerations)
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he failed to meet legal and financial obligations regarding his taxes,
and is financially overextended and therefore at risk of having to engage in illegal acts
to generate funds.
Applicant admits that he has failed to file his Federal and state tax returns for the
tax years 2005 through 2009. An investigator from the Office of Personnel Management
stated that Applicant, “felt that his taxes were always taken out and he did not have to
file because he did not owe.” (Item 6 at page 9.) No information was submitted by
Applicant as to whether any of the tax returns have been filed since issuance of the
SOR.
The Government also alleges that Applicant owes approximately $30,000 on a
second mortgage for a house that was foreclosed on in approximately 2005. (Item 8.)
This was a time Applicant was between jobs and unable to make payments. He believes
that the foreclosure by the first trust deed holder wiped out the interest of the second
mortgage lender. (Item 6 at 3.) However, he did not submit any information to me
showing that this belief is a correct reading of the law. I find that this debt is still due and
owing.
Paragraph 4 (Guideline E, Personal Conduct)
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he falsified material facts during the clearance screening process;
that he engaged in misdemeanor criminal conduct in 2011; and that the conduct, set
forth under Paragraphs 1, 2, and 3, above, shows poor judgment, unreliability and
untrustworthiness under this Paragraph.
Applicant filled out an e-QIP on November 4, 2010. (Item 4.) Section 26.c. asks
Applicant, “Have you failed to pay Federal, state, or other taxes, or to file a tax return,
when required by law or ordinance?” He answered, “No.” This was a false statement to
a relevant question concerning his income tax status. Applicant admitted this allegation
without explanation.
The same e-QIP at Section 22.e. asks Applicant, “Have you EVER been charged
with any offense(s) related to alcohol or drugs.” (Emphasis in original.) (Item 4.) He
An arrest of that date is not alleged in the SOR. Based on all of the available evidence, it is probably the2
arrest set forth in SOR 2.g.
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answered, “Yes,” and listed an alcohol-related arrest in January 1990.  Applicant did not2
set out his four other alcohol-related arrests during that time, or his 1987 arrest for
selling LSD. However, in March 1998, Applicant had been interviewed by a Special
Agent of the Defense Investigative Service. In a sworn statement, Applicant freely
admitted all of his alcohol arrests and that for LSD sales. (Item 10.) The Government
had a contemporaneous statement from Applicant concerning those incidents, which
provided sufficient notice of their existence. Accordingly, I find Applicant did not have an
intent to deceive the Government concerning these incidents. SOR 4.b. is found for
Applicant.
Applicant admits to pleading No Contest to charges of Criminal Nuisance and
Failure to Appear in April 2011. As a result of his plea he received a fine. (Item 9.) From
the available evidence, this appears to be a minor incident, which has minimal security
significance. (Item 5.)
Applicant provided no evidence concerning the quality of his professional
performance, the level of responsibility his duties entail, or his track record with respect
to handling sensitive information and observation of security procedures. He submitted
no character references or other evidence tending to establish good judgment,
trustworthiness, or reliability. I was unable to evaluate his credibility, demeanor, or
character in person since he elected to have his case decided without a hearing. 
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.
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.
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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).  
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
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drug or use of a legal drug in a manner that deviates from approved
medical direction.
I have considered the disqualifying conditions under AG ¶ 25 and especially
considered the following:  
(a) any drug abuse; 
(b) testing positive for drug use; and
(c) illegal drug possession, including cultivation, processing, manufacture,
purchase, sale or distribution; or possession of drug paraphernalia.
 Applicant used marijuana and LSD in the 1980s, while a teenager. He also sold
LSD at that time. Of more concern is his use of cocaine from at least October 1999
through April 2010. For at least part of that time he held a security clearance. He has
been tested multiple times for drug use, which is a requirement of his employment, and
has been found positive four times. He was terminated from at least two jobs because
of this action. Applicant states that he has not abused any drugs since 2010 and will not
use them in the future. However, he submitted no evidence that he is currently in a drug
treatment program
I have studied all of the mitigating conditions under 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 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; (4) a signed statement of intent with automatic
revocation of clearance for any violation. 
Applicant offered no evidence that would support mitigation under AG ¶¶ 26(c) or
(d). The evidence is clear that the Applicant’s abuse of cocaine was the voluntary action
of a mature person. He states that he has been drug free over a year and a half as of
the time the record closed. However, given the fact that he has repeatedly used cocaine
when he knew he was subject to random urinalysis as a requirement of his job, this
statement does not carry much weight. Enough time has not passed for me to say with
any degree of confidence that he will not use cocaine in the future. Paragraph 1 is found
against Applicant.
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Paragraph 2 (Guideline G - Alcohol Consumption)
The security concern relating to the guideline for Alcohol Consumption is set out
in AG & 21:      
Excessive alcohol consumption often leads to the exercise of
questionable judgment or the failure to control impulses, and can raise
questions about an individual’s reliability and trustworthiness.
Applicant admitted that he used alcohol, occasionally to excess, from 1988 until
at least November 2010.  He had several alcohol related arrests from 1988 to 1990. He
also had alcohol and drug treatment in 2005. Applicant continues to use alcohol, despite
the fact that he would usually use drugs while under the influence of alcohol.
The following disqualifying conditions apply to this case under AG ¶ 22:
(a) alcohol-related incidents away from work, such as driving while under
the influence, child or spouse abuse, disturbing the peace, or other
incidents of concern, regardless of whether the individual is diagnosed as
an alcohol abuser or alcohol dependent;
(c) habitual or binge consumption of alcohol to the point of impaired
judgment, regardless of whether the individual is diagnosed as an alcohol
abuser or alcohol dependent; and
(f) relapse after diagnosis of alcohol abuse or dependence and completion
of an alcohol rehabilitation program. 
I have examined the potential mitigating conditions under this paragraph and find
none of them apply. AG ¶ 23(a) states that it can be mitigating when, “so much time has
passed, or the behavior was so infrequent, or it happened under such unusual
circumstances that it is unlikely to recur or does not cast doubt on the individual’s
current reliability, trustworthiness or good judgment.” In addition, AG ¶ 23(b) states that
is mitigating where, “the individual acknowledges his or her alcoholism or issues of
alcohol abuse, provides evidence of actions taken to overcome this problem, and has
established a pattern of abstinence (if alcohol dependent) or responsible use (if an
alcohol abuser).” Finally, AG ¶ 23(c) states that it can be mitigating where, “the
individual is a current employee who is participating in a counseling or treatment
program, has no history of previous treatment and relapse, and is making satisfactory
progress.” 
In this case Applicant has used alcohol to excess for many years. While his
alcohol related arrests are in the far past, over 20 years ago, he continues to use
alcohol. In addition, and most disturbingly, he admits that alcohol reduces his
inhibitions, and that is when he would use cocaine. It is Applicant’s burden to show that
his long-standing and serious alcohol abuse was a thing of the past. He did not do so.
Paragraph 2 is found against Applicant.
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Paragraph 3 (Guideline F, Financial Considerations)
The security concern relating to the guideline for Financial Considerations is set
out in AG & 18:      
Failure or inability to live within one=s means, satisfy debts, and
meet financial obligations may indicate poor self-control, lack of judgment,
or unwillingness to abide by rules and regulations, all of which can raise
questions about an individual=s reliability, trustworthiness and ability to
protect classified information. An individual who is financially overextended
is at risk of having to engage in illegal acts to generate funds. 
The guideline notes several conditions that could raise security concerns. Three
apply under AG ¶ 19:
(a) inability or unwillingness to satisfy debts; 
(c) a history of not meeting financial obligations; and
(g) failure to file annual Federal, state, or local income tax returns as
required or the fraudulent filing of the same. 
Applicant, by his own admission, has a $30,000 in past-due mortgage debt,
which has been due and owing for several years. In addition, he has failed to file five
years of Federal and state tax returns. The evidence is sufficient to raise these
potentially disqualifying conditions.
The guideline also includes examples of conditions that could mitigate security
concerns arising from financial difficulties. Under AG ¶ 20(a), the disqualifying condition
may be mitigated where Athe behavior happened so long ago, was so infrequent, or
occurred under such circumstances that it is unlikely to recur and does not cast doubt
on the individual=s current reliability, trustworthiness, or good judgment.@ Applicant’s
financial difficulties are of a longstanding nature. As stated above, he has not filed any
of the delinquent tax returns discussed in the SOR. He submitted no information about
the status of the past due mortgage. It is Applicant’s burden to submit evidence showing
that his financial situation has improved. He has not done so. This mitigating condition is
not applicable to this case.  
AG ¶ 20(b) states that the disqualifying conditions may be mitigated where “the
conditions that resulted in the financial problem were largely beyond the person’s
control (e.g., loss of employment, a business downturn, unexpected medical
emergency, or a death, divorce or separation), and the individual acted responsibly
under the circumstances.”  Applicant stated that a lack of employment may have
contributed to his foreclosure, and this mortgage debt. He submitted no information
about how he intends to resolve it. This mitigating condition is not applicable to this
case.
As stated, subparagraphs 4.b., and 4.f. are found for Applicant.3
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Applicant has not initiated a good-faith effort to pay off his creditors, or otherwise
resolve his major debt. Accordingly, AG ¶ 20(d) is not applicable.  Finally, given the fact
that he is at least $30,000 in debt, and has not filed any of the subject tax returns, I
cannot find that “there are clear indications that the problem is being resolved or is
under control,” as required by AG ¶ 20(c). Paragraph 3 is found against Applicant.
Paragraph 4 (Guideline E - Personal Conduct)
The security concern relating to Personal Conduct is set out in AG ¶ 15:
Conduct involving questionable judgment, lack of candor,
dishonesty or unwillingness to comply with rules or regulations can raise
questions about an individual’s reliability, trustworthiness and ability to
protect classified information.
I have considered the disqualifying conditions under AG ¶ 16 and especially
considered the following:  
(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. . . .
Applicant knowingly and purposely falsified his security clearance application on
November 4, 2010. He admitted this falsification on his Answer. His drug and alcohol
abuse, and is failure to comply with tax laws, if known, would affect his professional and
community standing. Accordingly, 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. 
I have reviewed the other mitigating conditions and find none of them apply to the
facts of this case. In particular, I have examined the span of time, less than two years,
since the falsification. In addition, there is his continued use of alcohol, his continuing
failure to file tax returns, and the fact that his last cocaine use was less than two years
ago. There is insufficient evidence that Applicant currently shows good judgment or is
reliable. Paragraph 4 is found against Applicant.3
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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 applicant’s
conduct and all the circumstances. 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. 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.      
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Applicant is a drug user, abuser of
alcohol, under a financial strain, and falsified a questionnaire. None of these situations
appear to be under control. Under AG ¶ 2(a)(3), Applicant’s conduct is recent.  Based
on the state of the record, I cannot find that there have been permanent behavioral
changes under AG ¶ 2(a)(6). Accordingly, at the present time, I find that there is the
potential for pressure, coercion, exploitation, or duress (AG ¶ 2(a)(8)), and that there is
a high likelihood of recurrence (AG ¶ 2(a)(9)). 
Overall, the record evidence leaves me with questions or doubts as to Applicant’s
eligibility and suitability for a security clearance. For all these reasons, I conclude
Applicant has not mitigated the security concerns arising from his drug use, alcohol
consumption, financial situation, and personal conduct at this time
On balance, it is concluded that Applicant has not successfully overcome the
Government's case opposing his request for a DoD security clearance.  Accordingly, the
evidence supports a finding against Applicant as to the factual and conclusionary
allegations expressed in Paragraphs 1, 2, 3, and 4 of the Government's Statement of
Reasons.
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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. through 1.g.: Against Applicant
Paragraph 2, Guideline G: AGAINST APPLICANT
Subparagraphs 2.a. through 2.g.: Against Applicant
Paragraph 3, Guideline F: AGAINST APPLICANT
Subparagraphs 3.a. through 3.c.: Against Applicant
Paragraph 4, Guideline E: AGAINST APPLICANT
Subparagraph 4.a.: Against Applicant
Subparagraph 4.b.: For Applicant
Subparagraph 4.c.: Against Applicant
Subparagraph 4.d.: Against Applicant
Subparagraph 4.e.: Against Applicant
Subparagraph 4.f.: For 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.
                                              
WILFORD H. ROSS
Administrative Judge