Applicant is applying for a security clearance, not a trustworthiness determination. The caption for this case1
has been changed from “ADP” to “ISCR.” (Transcript (Tr.) 31-33.)
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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
-------------------------- )       ISCR Case No. 10-101271
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Pro se
June 12, 2012
______________
DECISION
______________
ROSS, Wilford H., Administrative Judge:
Applicant submitted his Electronic Questionnaire for Investigations Processing
(e-QIP) on July 6, 2010. (Government Exhibit 1.) On July 26, 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 August 23, 2011, and requested a
decision without a hearing(Answer). He subsequently decided to have a hearing before
an administrative judge. Department Counsel was prepared to proceed on December
19, 2011. This case was assigned to me on January 20, 2012. DOHA issued a notice of
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hearing on January 24, 2012. I convened the hearing as scheduled on February 15,
2012. The Government offered Government Exhibits 1 through 4, which were received
without objection. Applicant testified on his own behalf, and submitted Applicant Exhibits
A through F, which were also received without objection. DOHA received the transcript
(Tr) of the hearing on February 23, 2012. The record closed on that day. Based upon a
review of the pleadings, exhibits, and testimony, eligibility for access to classified
information is denied.
Findings of Fact
Applicant is 37, married, has a Master of Science degree, and is currently in a
PhD program. 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 three allegations in the
SOR under this paragraph. (1.a through 1.c.) Those admissions are findings of fact.
Applicant used illegal drugs from about 1993 until September 2008. He was
granted a security clearance in November 2005, and eligibility for access to sensitive
compartmented information (SCI) in July 2008. Applicant’s primary drug of choice was
marijuana, which he used and purchased during this entire period. His usage ranged
from once or twice a week in high school, to once or twice a month in college, to once or
twice a year near the end. He also sold small amounts of marijuana. Applicant
maintains that he stopped all drug use in September 2008, 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. (Tr. 38-49.)
At the hearing, Applicant stated he had used marijuana three times since being
employed by his current company in 2005, and once or twice after receiving a security
clearance. (Tr. 54.) In the e-QIP Applicant filled out on July 6, 2010, he stated that he
used marijuana three times in 2005, three times in 2006, twice during 2007, and once in
2008, for a total of nine times. Applicant testified that figure was more accurate, stating,
“I put more thought and time into giving the right answer there.” (Government Exhibit 1
at Section 23; Tr at 74.)
Applicant was asked by Department Counsel, “So, the question I have for you,
sir, is that you know it’s illegal. You know it’s wrong. Now, you know its against . . .
company policy, and now you know it’s against Security Clearance policy, why would
you still do it?” He answered, “It was something that I had to come to terms with on my
own time. It was hard, but I did. I may have done - - if I did it wrong - - I admit that. But I
did it, and I haven’t touched it since.” (Tr. 52.) With regards to his stated last use of
marijuana in 2008 Applicant stated, “I was lost in the moment.” (Tr. 53.) Applicant also
stated that marijuana use was a cultural thing in the city where he grew up, which was
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part of the reason he was using marijuana with old friends after receiving a security
clearance. He further stated that as he has grown up, and moved out of that
environment, he no longer socializes with any of his drug using friends from the past.
(Tr. 75-77.)
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. In addition, it is alleged that Applicant used marijuana after being granted
Special Compartmented Information (SCI) access in July 2008, and that the SCI access
was denied in January 2010 because of drug involvement and personal conduct issues.
These acts are alleged to show untrustworthiness, questionable judgment, unreliability,
or other characteristics indicating that Applicant may not properly safeguard classified
information. Applicant admitted all four allegations in the SOR regarding this paragraph.
(2.a through 2.d.) Those admissions are findings of fact.
Applicant filled out a Security Clearance Application on February 3, 2005, when
he was applying for a job in the defense industry. (Government Exhibit 3.) Section 27 of
that application asks Applicant whether, since the age of 16 or in the last seven years,
whichever is shorter, he had illegally used any controlled substance, such as marijuana.
Applicant answered, “No.” This was a false statement to a relevant question about his
drug use, since Applicant had used marijuana from 1993.
Applicant filled out a second Security Clearance Application on May 15, 2008.
(Government Exhibit 2.) Section 27 of that application also asks Applicant whether,
since the age of 16 or in the last seven years, whichever is shorter, he had illegally used
any controlled substance, such as marijuana. Section 28 of that application asks
Applicant whether he had “EVER illegally used a controlled substance . . . while
possessing a security clearance?” Applicant answered both questions, “No.” These
were false statements to relevant questions about his drug use, particularly since
Applicant had used marijuana after he became employed in 2005, and granted a
security clearance at the same time.
Applicant was interviewed by an investigator from the Office of Personnel
Management in August 2009. (Government Exhibit 4.) Applicant prepared a signed
affidavit, wherein he discussed his “No” response to the questions about drug use:
The reason for my “no” response to the drug question is because I did not
want to be discriminated against or have any prejudices against me for my
past drug activity. I was also fearful of not getting the job which I hold
today. . . . In 7/2008 I met with a female investigator representing the
Office of Personnel Management and we reviewed my security
questionnaire. . . . I told her that I had answered each question truthfully,
even though at the time I was ready and willing to discuss my drug use.
Regrettably the opportunity did not present itself and I did not bring it up
as I was still concerned about losing my job. (See Tr. 60-62.)
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Regarding his falsification Applicant testified:
When I came to this crossroad, when I filled out that Application, I
wondered - - and I didn’t quite see it as much as lying as withholding the
truth and not being so forefront - - but allowing to be able to keep secrets.
That ‘s what we have to be able to do to keep our country safe, and that’s
what I was trying to do to keep my family safe. (Tr. 66.) 
Applicant then testified at length about his attitude on truthfulness and security.
As will be discussed below, Applicant is a very accomplished young man. Part of his
motivation for lying was so that people would not concentrate on the negative, and not
on the positive aspects of his life. He further testified that his attitude has changed and
he now recognizes the importance of being truthful with the government. (Tr. 66-71.)
Applicant subsequently told another government investigator of his drug use
when he was facing a polygraph examination. It was after that interview his SCI access
was revoked. (Tr. 54-59.)
Applicant testified that his manager at work knows what is happening with his
clearance. One or two colleagues also know his situation. However, he also stated that
no one at work has seen the SOR. (Tr. 62-63, 71-73; Applicant Exhibit A.)
Mitigation
Applicant submitted documentary evidence showing that he is a highly respected
person and employee. He submitted documents showing how he was a very
accomplished student, receiving scholarships for undergraduate and master’s studies,
as well as a fellowship for his PhD studies. (Applicant Exhibits B and D.)
He submitted performance evaluations concerning the entire period of his
employment, up to 2011. 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 Exhibit C.) 
Applicant has received recognition many times for his work. (Applicant Exhibit F.)
Of particular note is the fact that he received a “Technical Honors” peer rating. This
rating means that his peers view him as a role model. The letter notifying Applicant of
this award, dated December 10, 2010, is found on page 22 of Applicant Exhibit F.
Applicant’s wife submitted a letter on his behalf, where she talks about the kind of
person Applicant is. (Applicant Exhibit B at 1-2.) Finally, Applicant Exhibit E contains
certificates from throughout Applicant’s life showing that he is a person of drive,
perseverance and character.
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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.
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
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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
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; and
(g) any illegal drug use after being granted a security clearance.
Applicant used marijuana on a regular basis from 1993 to September 2008. He
sold and purchased marijuana during the entire period and he also held a security
clearance after November 2005, and SCI access after July 2008. 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 
(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
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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.
Applicant’s abuse of marijuana occurred over three years ago. He states that he
has turned his life around, no longer wants to use marijuana, and will not use it in the
future. The problem here is that Applicant is not a good, or necessarily trustworthy,
reporter about his own life. In addition, despite being pressed by Department Counsel,
he was unable to adequately explain his reasons for continuing to use marijuana after
being employed in the defense industry and receiving a security clearance, or his
reasons for stopping. Applicant has made dramatic changes in his life, he has not yet
convincingly demonstrated they are permanent. Paragraph 1 is found against 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, that he falsified information concerning
his drug use on two questionnaires within three years. These questionnaires were filled
out in 2005 and 2008. Applicant also concealed his drug use from a government
investigator during an interview in 2009, less than a year after his last use. Such an
action demonstrates that he knew that his conduct, if known, would affect his
professional and community standing.
In addition, Applicant testified that he did not like to inform people, including
some supervisors, of his drug use. Applicant used marijuana after being granted SCI
access, which was withdrawn because of his drug use and falsification. Finally, as set
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forth above, Applicant had a 15 year history of drug abuse, which ended in 2008. Both
of the Disqualifying Conditions apply. 
Based on all the available evidence, the following Mitigating Conditions may
apply under AG ¶ 17:
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
(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; 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.
Applicant did not make any attempt to come forward with the truth about his
marijuana use until confronted with a polygraph examination. AG ¶17(a) does not apply.
While Applicant last falsified an application in 2008, he withheld information from a
government investigator in 2009. Under the particular circumstances of this case, I
cannot find that enough time has passed to apply AG ¶17(c).  
Turning to AG ¶17(d), Applicant maintains he has changed his behavior.
However, as described above, Applicant failed to convincingly show that such behavior
is unlikely to recur. 
Applicant states that he no longer associates with his drug-using friends from the
past. He further states that as a father he no longer sees drugs as part of his life. ¶¶
17(e) and (g) have some application.
It is Applicant’s burden to show that he is trustworthy. Applicant has repeatedly
given the government false information about relevant portions of his life, so it is difficult
to find that Applicant is currently believable. Applicant is an obviously highly intelligent
and successful man, who is still young. Yet, he had difficulty explaining his reasoning for
lying, and why he should be trusted now. Of particular concern was his testimony at the
hearing that he only used drugs two or three times after 2005, which was so wildly at
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odds with his statements in the questionnaire (Government Exhibit 1) of his use being
upwards of nine times. While that may seem like a petty difference at first glance, his
testimony was often vague and filled with platitudes rather than real facts about himself.
It is also telling that he falsified two questionnaires because he suspected his drug use
might keep him from getting a job. Applicant also attempted to argue that because he
could not make a “connection” with the 2009 investigator he found it impossible to come
forward and tell her the truth. Couple that action with his subsequent failure to come
forward before being confronted, it is simply too soon for me to find that he has
mitigated the facts of his repeated falsifications, or that he has demonstrated
rehabilitation.
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.
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
apply here as well. Applicant engaged in drug use that ended about three years ago. He
also repeatedly gave the government false information about his drug use. Yet, he is
undoubtedly an intelligent and talented man, respected in his workplace and throughout
his educated life for his successes, drive and abilities. In certain respects, this could be
said to be a close case, yet it is not. In the final analysis, Applicant has failed to
adequately explain his conduct in using marijuana, especially after being employed in
the defense industry with a security clearance, as well as his falsifications concerning
such use. Once again, it is Applicant’s burden to show he is eligible for a security
clearance. He has not done so.
Based on the state of the record, I find that there have not been demonstrated
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 also a likelihood of recurrence (AG ¶ 2(a)(9)). 
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Overall, the record evidence leaves me with serious questions and doubts about
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
Involvement and Personal Conduct. He is not 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: AGAINST APPLICANT
Subparagraphs 1.a through 1.c: Against Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraphs 2.a through 2.d: 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.
            
                                
_________________
WILFORD H. ROSS
Administrative Judge