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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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)       ISCR Case No. 11-10546
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)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Pro se
March 25, 2013
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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 May 25, 2011.  On October 31, 2012, the Department of Defense
(DOD) issued a Statement of Reasons (SOR) detailing the security concerns under
Guideline H 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 November 15, 2012.  He
answered the SOR in writing on November 16, 2012, and requested a hearing before
an Administrative Judge.  DOHA received the request on January 8, 2013, and I
received the case assignment that same date.  DOHA issued a notice of hearing on
January 8, 2013, and I convened the hearing as scheduled on February 6, 2013.  The
Government offered Exhibits (GXs) 1 and 2, which were received without objection.
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The Applicant testified on his own behalf and submitted Exhibit (AppX) A, which was
received without objection.  DOHA received the transcript of the hearing (TR) on
February 15, 2013.  I granted the Applicant’s request to keep the record open until
March 6, 2013, to submit additional matters.  On February 11, 15, and 19, of 2013, he
submitted Exhibits B, C, and D, respectively, which were received without objection.
The record closed on March 6, 2013.  Based upon a review of the pleadings, exhibits,
and testimony, eligibility for access to classified information is granted.
Procedural and Evidentiary Rulings
Request for Administrative Notice
Department Counsel submitted a formal request that I take administrative notice
of 21 U.S.C. Chapter 13, Subsection 1, Part B, Sections 802 and 812.  The request was
granted.  The request, and the attached documents, were not admitted into evidence,
but were included in the record.
Findings of Fact
In his Answer to the SOR, the Applicant admitted all the factual allegations of the
Subparagraphs of the SOR, without explanations.
Guideline H - Drug Involvement
1.a.~1.c.  From about June 2005 until April of 2010, while in high school and then
as an undergraduate in college, the Applicant used marijuana about once a month.  (TR
at page 20 line 6 to page 23 line 19, and page 28 line 20 to page 29 line 4.)  During this
period he also purchased marijuana on several occasions.  (TR at page 29 lines 5~21.)
While attending graduate school, the Applicant also used marijuana about five times
from about May of 2010 to March of 2011.  (TR at page 20 lines 6~11, and page 28 line
20 to page 29 line 4.)
1.d.~1.f.  The Applicant also used Psilocybin on one occasion in November of
2007, he used MDMA (Ecstacy) on one occasion, and LSD on two occasions in May of
2010.  (TR at page 31 lines 6~15.)
Those the Applicant associated with in high school and in college no longer use
illegal substances.  (TR at page 26 line 24 to page 27 line 13.)  Most recently, in
February of 2013, the Applicant subscribed and swore to the following:
1. I have not used marijuana or any other controlled substance since
March 2011.  2. I will not use and intend not to use marijuana or any other
controlled substance in the future.  3. I understand and agree that any
future use of a controlled substance will result in automatic revocation of
my security clearance.  (AppX A.)
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Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the 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(c) provide, respectively, that “Any drug abuse,” and
“illegal drug . . . purchase,” 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 last marijuana usage occurred about two years ago.
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 sworn declaration, the Applicant has
eschewed any future Drug Involvement.  Drug Involvement 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.  Those who know the Applicant from
academia and in the work place speak most highly of him and aver that he is
trustworthy (AppXs B~D.).  The record evidence leaves me with no questions and
doubts as to Applicant’s eligibility and suitability for a security clearance.  For all these
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reasons, I conclude Applicant has mitigated the security concerns arising from his Drug
Involvement.
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
Subparagraph 1.e: For Applicant
Subparagraph 1.f: 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