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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 10-04448
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Esquire, Department Counsel
For Applicant: Paula W. Phinney, Esquire
November 6, 2012
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Decision
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CEFOLA, Richard A., Administrative Judge:
The Applicant submitted his Electronic Questionnaires for Investigations
Processing (e-QIP) on January 14, 2010.  On May 16, 2012, the Defense Office of
Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) detailing the
security concerns under Guidelines H and E for 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 after September 1, 2006.
The Applicant acknowledged receipt of the SOR on May 29, 2012.  He answered
the SOR in writing through counsel on June 13, 2012, and requested a hearing before
an Administrative Judge.  DOHA received the request on June 18, 2012, and I received
the case assignment on August 3, 2012.  I granted the Applicant’s request for a delay
until September 28, 2012, in order for his counsel to be available.  DOHA issued a
notice of hearing on August 21, 2012, and I convened the hearing as scheduled on
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September 28, 2012.  The Government offered Exhibits (GXs) 1 through 3, which were
received without objection.  The Applicant testified on his own behalf and submitted
Exhibits (AppXs) A through X, which were received without objection.  DOHA received
the transcript of the hearing (TR) on October 9, 2012.  The record closed on October 9,
2012.  Based upon a review of the pleadings, exhibits, and testimony, eligibility for
access to classified information is granted.
Findings of Fact
In his Answer to the SOR, the Applicant admitted the factual allegations in
Subparagraphs 1.a., 1.b., and 1.c. of the SOR, with explanations.  He denied the factual
allegations in Subparagraphs 1.d. and 2.a. of the SOR.  He also provided additional
information to support his request for eligibility for a security clearance.
Guideline H - Drug Involvement & Guideline E - Personal Conduct
The Applicant is an inventor, who holds “four U.S. Patents.”  (TR at page 55 line
10 to page 58 line 5.)  He was granted a Top Secret Security Clearance in May of 2005.
(TR at page 26 lines 7~12.)  He had a motorcycle accident in January of 2005; and as a
result, broke his “right clavicle collar bone.”  (TR at page 32 line 20 to page 34 line 8,
and AppX T.)  He was prescribed medication for his resulting pain, but found it to be
“pretty strong,” upsetting his stomach.  (TR at page 34 line 9 to page 35 line 21.)  In
2008, he also received “steroid injections” and “a muscle relaxer” to treat his chronic
pain.  (TR at page 35 line 22 to page 38 line 2, and AppX U.)
1.a.~1.d. and 2.a.  In October of 2009, the Applicant “was out riding dirt bikes,”
when he credibly avers the following occurred:
I remember I was out of water or something like that, and my neck was
hurting pretty bad.  One of the fellas was talking about the fact that he
had, you know the term medical in front of it and said it would help, and
that he had a card, and I accepted it.  (TR at page 31 line 24 to page 32
line 6.)
The Applicant does not excuse his actions, when in October of 2009, he smoked
a total of three marijuana cigarettes, on three separate occasions, to self-medicate his
pain.  (TR at page 31 line 24 to page 41 line 7.)  The third and last time he used the
illegal substance, he was cited for its usage.  (TR at page 42 lines 10~23.)  As a result
of this citation, in December of 2009, he successfully completed a five month, 20
session, diversion program.  (TR at page 47 line 9 to page 51 line 25, at page 59 lines
13~17, and at page 77 lines 8~18.)  The citation against him has been dismissed.  (TR
at page 90 lines 21~24.)
The Applicant foreswears any future involvement with illegal drugs, and has
signed a notarized “Statement of Intent” to that end.  (TR at page 46 lines 7~25, and
AppX Q.)
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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, these guidelines are applied in conjunction with the
factors listed in the adjudicative process.  The administrative judge’s over-arching
adjudicative goal is a fair, impartial and commonsense decision.  According to AG
Paragraph 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.
Paragraph 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.  Likewise, I have avoided drawing
inferences grounded on mere speculation or conjecture.
Under Directive Paragraph E3.1.14, the Government must present evidence to
establish controverted facts alleged in the SOR.  Under Directive Paragraph E3.1.15,
the Applicant is responsible for presenting “witnesses and other evidence to rebut,
explain, extenuate, or mitigate facts admitted by applicant or proven by Department
Counsel. . . .”  The Applicant has the ultimate burden of persuasion as to 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 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.
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).
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Analysis
Guideline H - Drug Involvement
Paragraph 24 of the adjudicative guidelines sets out the security concern relating
to Drug Involvement: “Use of an illegal drug . . . can raise questions about an
individual’s reliability and trustworthiness . . . .”
The adjudicative guidelines set out certain conditions that could raise security
concerns.  Paragraphs 25(a) and 25(g) provide, respectively, that “Any drug abuse,”
and “any illegal drug use after being granted a security clearance,” may raise security
concerns.  These are countered, however, by the mitigating conditions set forth in
Paragraphs 26(a) and 26(b)(4).  Paragraph 26(a) notes that it is mitigating when “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.”  Here, the Appellant’s three time
marijuana usage occurred about three years ago, and there is no indication that it will
be repeated.  Paragraph 26(b)(4) notes that it is mitigating when there is “a
demonstrated intent not to abuse any drugs in the future, such as: (4) a signed
statement of intent with automatic revocation of clearance for any violation.”  By a
notarized “Statement of Intent,” the Applicant has eschewed any future Drug
Involvement.  Drug Involvement is found for the Applicant.
Guideline E - Personal Conduct
Paragraph 15 of the new adjudicative guidelines sets out the security concern
relating 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.
The adjudicative guidelines again set out certain conditions that could raise
security concerns.  Paragraph 16(c) applies and provides that “credible adverse
information in several adjudicative issue areas that is not sufficient for an adverse
determination under any other single guideline, but which, when considered as a whole,
supports a whole-person assessment of questionable judgment, untrustworthiness,
unreliability, lack of candor, unwillingness to comply with rules and regulations, or other
characteristics indicating that the person may not properly safeguard protected
information” may be disqualifying.  This is countered, however, by the mitigating
condition set forth in Paragraph 17(c).  It notes that it is mitigating when “the offense is
so minor, or so much time has passed, or the behavior is so infrequent, or happened
under such unique circumstances that it is unlikely to recur and does not cast doubt on
the individual’s reliability, trustworthiness, or good judgement.”  His use of marijuana
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happened three years ago, and “under such unique circumstances that it is unlikely to
recur.”  Personal Conduct is found for the Applicant.
Whole-Person Concept
Under the whole-person concept, the Administrative Judge must evaluate an
Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s
conduct and all the circumstances.  Under AG Paragraph 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 also consider the nine
adjudicative process factors listed at AG Paragraph 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 all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  The Applicant has received numerous
awards and those that know him in the work place speak most highly of his character
(AppXs A~C, I and R.).  The record evidence leaves me with no questions or doubts as
to Applicant’s eligibility and suitability for a security clearance.  For all these reasons, I
conclude Applicant has mitigated the security concerns arising from his Drug
Involvement and related Personal Conduct.
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by section E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline H: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
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Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
Richard A. Cefola
Administrative Judge