1
 
                                                             
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 11-01018
)
Applicant for Security Clearance )
Appearances
For Government: Candace Garcia, Esquire, Department Counsel
For Applicant: Pro se  
______________
Decision
______________
HENRY, Mary E., Administrative Judge:
Based upon a review of the pleadings, exhibits, and testimony, Applicant’s
eligibility for access to classified information is denied.
Statement of the Case
Applicant signed an Electronic Questionnaire for Investigations Processing (e-
QIP) on July 26, 2010. The Defense Office of Hearings and Appeals (DOHA) issued
Applicant a Statement of Reasons (SOR) on February 9, 2010, detailing security
concerns under Guidelines H, drug involvement, and J, criminal 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 For Determining Eligibility for
Access to Classified Information (AG) implemented on September 1, 2006. 
 
GE 1; GE 2; Tr. 18, 32-34, 58-67.1
AE C; AE D; Tr. 61-65.2
2
Applicant received the SOR on March 7, 2012 and answered it on March 20,
2012. Applicant requested a hearing before an administrative judge. DOHA received the
request, and Department Counsel was prepared to proceed on April 19, 2012. I
received the case assignment on May 1, 2012. DOHA issued a Notice of Hearing on
May 16, 2012, and I convened the hearing as scheduled on June 5, 2012. The
Government offered exhibits (GE) marked as GE 1 through GE 5, which were received
and admitted into evidence without objection. Applicant and one witness testified. He
submitted exhibits (AE) marked as AE A through AE D, which were received and
admitted into evidence without objection. I held the record open for one week, for
Applicant to submit additional matters. Applicant timely submitted AE E, which was
marked and admitted without objection. The record closed on June 12, 2012. DOHA
received the hearing transcript (Tr.) on June 13, 2012.
Findings of Fact
In his Answer, Applicant admitted the factual allegations in the SOR. His
admissions are incorporated herein as findings of fact. He also provided additional
information to support his request for eligibility for a security clearance. After a complete
and thorough review of the evidence of record, I make the following additional findings
of fact.  
Applicant, who is 52 years old, works as a mechanical engineer for a Department
of Defense (DOD) contractor. He began work with his current employer in 1984 and has
worked continuously for his employer. He has held a confidential or secret clearance
since 1984, and he has never mishandled classified information.1
Applicant’s supervisor for the last three years testified on his behalf. He indicated
that Applicant conducts himself in a professional and respectful manner at work.
Applicant’s performance always exceeds expectations. Based on their work relationship,
his supervisor considers Applicant honest, reliable, trustworthy, and dependable. When
asked on cross-examination if his opinion would change if he learned that Applicant had
an extensive period of drug use, his supervisor stated “it very well may, yes.” Applicant’s
performance evaluations for the last 12 years support his supervisor’s statements about
his work skills and abilities. His supervisor also stated that in April 2010, Applicant
observed a group of seven trespassers on the company’s property and reported his
observations to security.2
Applicant graduated from college with a Bachelor of Science degree in
engineering in 1984. He married his first wife in 1987, and they divorced in 2000. He
has two sons, ages 22 and 19, who now reside with him. His oldest son is a special
GE 1; GE 2; Tr. 18-20, 29, 44.3
GE 1; GE 3; Tr. 23, 29-33.4
Applicant admitted at the hearing that he knew this conduct was wrong and that he should not be using5
cocaine or marijuana as he held a security clearance. He also knew that he could lose his job. Tr. 33-34.
GE 1; GE 3; GE 5; Tr. 24-26, 36, 43-44.6
3
needs child, who is autistic and hearing impaired. Applicant married his second wife in
2006 and they divorced in 2010. His girlfriend lives with him and his sons.3
In high school and college, Applicant smoked marijuana and experimented with
many different drugs. After college, he abstained from any drug use until after his
divorce in 2000. His first girlfriend after his divorce suggested he smoke marijuana to
relax him, as he is a nervous and anxious person. He smoked marijuana a few times
with her, but quit because the marijuana exacerbated his anxiety and because he did
not like its effect on him. Over the next eight years, he took a puff of marijuana about
once a year during a motorcycle ride to be part of the group. He last smoked any
amount of marijuana in April 2009. He never purchased marijuana.4
In 2004, Applicant began dating the woman who would become his second wife.
When they first met, she was not involved with drugs. In November 2004, she met old
friends at a motorcycle event. These friends provided her with cocaine, which she
shared with him. For the next year, Applicant and she used cocaine one to two times a
month. Beginning in November 2005, they began to use cocaine on a weekly basis at
parties. He regularly contributed money for the purchase of the cocaine. Their cocaine
use continued after they married in 2006.  In 2008, during an argument, she threatened5
to call his office and report his drug use. Her threat frightened him. He moved out of the
marital home and stopped his cocaine use. Six months later, Applicant returned to the
marital home in an effort to salvage his marriage. Upon his return, he again used
cocaine several times over the next few months. After his second wife sustained serious
injury in a motorcycle accident, their “rocky” marriage deteriorated. He decided to end
the marriage and told his wife in April 2009. They used cocaine one more time after his
decision. He explained the use of cocaine in his marriage as “part of their relationship,”
even though he knew it was illegal. Applicant has never been arrested or charged with
drug offenses.6
Applicant fully acknowledged his illegal drug use between 2001 and 2009. He
never reported to work under the influence of marijuana or cocaine, and he never used
drugs at work. His drug use did not impact his work performance. He always kept his
drug use separate from his work. No one at work was aware of his drug use. Applicant
verified that he received yearly security training, which included a direction not to use
illegal drugs. He is aware of a company drug policy, but did not know the specifics of the
policy. His supervisor explained the company’s drug policy as two-fold: 1) an initial drug
screening process for new employees, and 2) random drug testing. Applicant stated that
he passed a random drug test in 2003, which was the last time he was subjected to a
GE 5; Tr. 22, 27, 33-36, 38-39, 65-68.7
GE 1; GE 3 - GE 5; Tr. 20-21, 47-52.8
Applicant told the counselor that he began drinking alcohol at age 17 and that he drank alcohol on the9
weekends at the rate of 1-2 drinks “per episode”. His BAC at the time of his arrest was .14%. GE 3. 
GE 3; Tr. 48-53.10
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random drug test. His supervisor had no knowledge that Applicant had been subjected
to a random drug test.7
On May 31, 2009, Applicant attended a party, where he consumed alcohol with
friends. On his way home from the party, the police stopped him and charged him with
driving under the influence (DUI), DUI with breathalyzer, and failure to produce
evidence of financial responsibility. On September 21, 2009, Applicant entered into a
plea agreement with the prosecutor. He plead guilty to DUI and failure to provide
evidence of financial responsibility. The DUI with breathalyzer charged was dismissed.
Based on this plea agreement, the court sentenced Applicant to 10 days in jail, with nine
days suspended; fined him $$1,500; placed him on 12 months of unsupervised
probation; ordered him to attend alcohol classes and obtain an alcohol evaluation; and
directed that an ignition interlock be placed on his car as part of his probation. Applicant
complied with all the terms of his probation. As a result of his DUI conviction, the Motor
Vehicle Department assessed him 8 points on his driving record, which will remain on
his driving record for seven years. To keep his driver’s license, he cannot commit any
traffic violations for two years and no DUI offenses for five years. He is in compliance
with these terms.8
Applicant obtained the required alcohol evaluation in July 2009. Based on the
pattern of alcohol use provided by Applicant,  the alcohol counselor evaluated Applicant9
as a Level II potential problem drinker, who required 16 hours of DUI education.
Applicant, who does not dispute this assessment, attended the Level II DUI education
classes and eight sessions of Alcoholics Anonymous (AA). As a result of these classes,
Applicant realized that his drinking habits were not normal and that he needed to get
control of himself.10
When he decided to quit his drug use and end his second marriage, Applicant
decided he needed to make changes in his life to ensure a drug-free lifestyle. He
changed his surroundings, ended his friendship with the motorcycle club, and ceased
contacts with his second wife. Following the alcohol education and AA classes,
Applicant limited his alcohol consumption to one beer after work and three beers on the
weekend. He does not drink and drive. He lives with his girlfriend, whom he describes
as a positive force in his life. She helped him recognize that he created the more recent
problems in his life and that his second marriage damaged his relationship with his
GE 5; AE B; AE E; Tr. 21-22, 48-56.11
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sons. Applicant continues to work on improving his relationship with them. Finally,
Applicant signed a letter of intent not to use drugs in the future.11
Policies
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 used 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.
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.
Under 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 applicant or proven by Department Counsel. . . .” An
applicant has the ultimate burden of persuasion for obtaining a favorable security
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 an 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.
 
6
Section 7 of Executive Order 10865 provides that decisions shall be “in terms of
the national interest and shall in no sense be a determination as to the loyalty of the
applicant concerned.” 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 drug involvement:
Use of an illegal drug or misuse of a prescription drug can raise questions
about an individual's reliability and trustworthiness, both because it may
impair judgment and because it raises questions about a person's ability
or willingness to comply with laws, rules, and regulations.
(a) Drugs are defined as mood and behavior altering substances, and include:
(1) Drugs, materials, and other chemical compounds
identified and listed in the Controlled Substances Act of
1970, as amended (e.g., marijuana or cannabis,
depressants, narcotics, stimulants, and hallucinogens), and
(2) inhalants and other similar substances;
(b) drug abuse is the illegal use of a drug or use of a legal drug in a
manner that deviates from approved medical direction.
AG ¶ 25 describes the disqualifying conditions that could raise security concerns.
I have considered all the conditions, and the following are potentially applicable: 
(a) any drug abuse (see above definition); 
(c) illegal drug possession, including cultivation, processing, manufacture,
purchase, sale, or distribution; or possession of drug paraphernalia;
(d) diagnosis by a duly qualified medical professional (e.g., physician,
clinical psychologist, or psychiatrist) of drug abuse or drug dependence;
and
(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.
Applicant used marijuana intermittently between 2001 and 2009. He used
cocaine regularly between 2004 and 2009. To smoke marijuana and to use cocaine, he
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had to possess these drugs and associated paraphernalia. Although there is no
evidence that he manufactured or sold marijuana or cocaine, he routinely provided
money towards the purchase of cocaine. During the time he used cocaine and
marijuana, he possessed a DOD security clearance. The Government has established a
security concern under AG ¶¶ 25(a), 25(c), and 25(g). 
Applicant has never been diagnosed with drug dependency or as a drug abuser;
thus, AG ¶¶ 25(d) and 25(e) are not applicable. AG ¶ 25(h) is not established because
Applicant has ceased his drug use and has no intent to use drugs in the future.
The drug involvement guideline also includes examples of conditions that can
mitigate security concerns. I have considered mitigating factors AG ¶ 26(a) through
20(d), and the following are potentially applicable:
(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.
Applicant’s use of marijuana was infrequent; however, he used cocaine
extensively for more than four years. His decision to use illegal drugs, particularly
cocaine, showed bad judgment. In 2009, he decided to stop all his drug use and has
done so. He changed his friends, divorced his second wife with whom he used cocaine
regularly, and changed his environment and activities. While he did not obtain
counseling for drug use, the counseling he received following his May 2009 DUI
significantly changed his viewpoint about the use of alcohol and validated his decision
not to use drugs. He recognizes his poor judgment in using illegal drugs and accepts
responsibility for his conduct. Applicant ceased his drug use in 2009 and willingly signed
a statement of intent with revocation of his clearance should he use any illegal drugs in
the future, and he made lifestyle changes supportive of continued abstinence. While I
am persuaded that Applicant is not likely to abuse marijuana or cocaine in the future,
and favorable findings are returned as to SOR allegations 1.a. and 1.b, that does not
end the inquiry in this case.
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Although Applicant intends not to use drugs in the future, he breached a special
trust when he used marijuana and cocaine, illegal drugs, while he held a security
clearance. He used these drugs multiple times between 2001 and 2009, knowing when
he did so that he was violating his security clearance requirements, and that the use
was illegal. Each year, he attended security training and was informed of the prohibition
against illegal drug use. Despite this knowledge, he continued his excessive use of
cocaine. He did not want his co-workers to know of his illegal drug use because he
feared it would impact his job. I find that his breach of the trust given him outweighs the
other mitigating factors regarding his drug involvement and entitlement to a security
clearance. Applicant has failed to fully mitigate the security concern under Guideline H.
Guideline J, Criminal Conduct
AG ¶ 30 expresses the security concern pertaining to criminal conduct, “Criminal
activity creates doubt about a person's judgment, reliability, and trustworthiness. By its
very nature, it calls into question a person's ability or willingness to comply with laws,
rules and regulations.”
AG ¶ 31 describes the disqualifying conditions that could raise security concerns.
I have considered all the conditions, and the following are potentially applicable: 
(a) a single serious crime or multiple lesser offenses; and
(c) allegation or admission of criminal conduct, regardless of whether the
person was formally charged, formally prosecuted or convicted.
The police arrested and charged Applicant with a DUI in May 2009 and he pled
guilty to this charge in September 2009. Applicant engaged in criminal conduct when he
routinely used marijuana and cocaine for eight years, even though he was never
arrested for his drug use. The Government has established a security concern under
AG ¶¶ 31(a) and 31(c). 
AG ¶ 32 provides conditions that could mitigate security concerns. I have
considered all the mitigating conditions, and especially the following:
(a) so much time has elapsed since the criminal behavior happened, or it
happened under such unusual circumstances that it is unlikely to recur
and does not cast doubt on the individual's reliability, trustworthiness, or
good judgment; and
(d) there is evidence of successful rehabilitation; including but not limited
to the passage of time without recurrence of criminal activity, remorse or
restitution, job training or higher education, good employment record, or
constructive community involvement.
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Applicant has been arrested one time for DUI. This arrest occurred three years
ago. Applicant met all the requirements of his probation and continues to adhere to the
rules of the road so as not to lose his driver’s license. He is acutely aware of the impact
that another DUI arrest would have on him and has taken steps to assure that he will
not again be arrested for DUI. He limits the level of his alcohol consumption and does
not drive after drinking. Applicant decided over three years ago that his illegal drug use
was the wrong path. He decided to change his life, and he did. He has a new girlfriend,
new friends, and an excellent employment record. He has rehabilitated his past criminal
conduct, and there is little likelihood that he will be involved in criminal conduct in the
future. Applicant has mitigated the security concerns about his criminal conduct.
Whole-Person Concept
Under the whole-person concept, the administrative judge must evaluate an
applicant’s eligibility for a security clearance by considering the totality of an applicant’s
conduct and all 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. The decision to grant or
deny a security clearance requires a careful weighing of all relevant factors, both
favorable and unfavorable. In so doing, an administrative judge must review all the
evidence of record, not a single item in isolation, to determine if a security concern is
established and then whether it is mitigated. A determination of an applicant’s eligibility
for a security clearance should not be made as punishment for specific past conduct,
but on a reasonable and careful evaluation of all the evidence of record to decide if a
nexus exists between established facts and a legitimate security concern. 
In reaching a conclusion, I considered the potentially disqualifying and mitigating
conditions in light of all the facts and circumstances surrounding this case. Applicant
spoke honestly and truthfully about his drug use between 2001 and 2009. He made no
excuses for his conduct and accepted responsibility for his bad judgment in deciding to
use illegal drugs. He is given credit for recognizing the negative impact his cocaine use
and second marriage had on his life and for taking the necessary steps to change his
life for the better. He never allowed his drug use to interfere with his work, but it
interfered with his relationship with his sons. In the 28 years he has held a security
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clearance, he has never mishandled sensitive or classified information, a factor in his
favor.
The many positive factors in Applicant’s favor are outweighed by his extremely
poor judgment in using illegal drugs, particularly his regular use of cocaine. He knows
cocaine and marijuana are illegal drugs and he acknowledges that he had been told, at
least once a year at his security training, not to use illegal drugs. His breach of the trust
given to him by the Government raises serious questions about his trustworthiness and
integrity. Moreover, he used marijuana occasionally at motorcycle events so that he
would be accepted by the group. Questions about his vulnerability to pressure or
coercion are raised by this admission and are not mitigated.
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 mitigated the security concerns arising from his criminal conduct under
Guideline J, but he did not mitigate his drug involvement under Guideline H.
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: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: Against Applicant
Paragraph 2, Guideline J: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: 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.
                                                              
MARY E. HENRY
Administrative Judge