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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)         ISCR Case No. 12-04322
)
Applicant for Security Clearance )
Appearances
For Government: Stephanie Hess, Esquire, Department Counsel
For Applicant: Pro se
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Decision
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MASON, Paul J., Administrative Judge:
Applicant used marijuana on a monthly basis between 1998 and December 2005,
when he received a security clearance and began his employment for a defense contractor.
Though he used drugs on one additional occasion in April 2011, he had a good-faith belief
that he did not possess security clearances while working for the commercial employer
between 2009 and 2011. His good-faith belief caused him to incorrectly answer the drug
use security clearance question on his security clearance form in January 2012. Applicant’s
evidence in mitigation is sufficient to find in his favor under the drug involvement and
personal conduct guidelines. Eligibility for access to classified information is granted. 
Statement of the Case
Applicant completed and certified his Electronic Questionnaire for Investigations
Processing (e-QIP) on January 11, 2012. He was interviewed by an investigator from the
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Office of Personnel Management (OPM) on February 13, 2012. A summary of this interview
appears in his notarized interrogatory answers dated October 22, 2012. Applicant initially
did not agree with certain information in the summary and provided additional information
that is not relevant. After providing information about his drug use and future intention not
to use drugs, he agreed that the investigator’s summary could be used at a hearing to
determine his security suitability. 
On November 14, 2012, the Department of Defense (DOD) issued a Statement of
Reasons (SOR) detailing security concerns under drug involvement (Guideline H) and
personal conduct (Guideline E). The action was taken under Executive Order 10865,
Safeguarding Classified Information within Industry (February 20, 1960), as amended;
Department of Defense (DoD) Directive 5220.6, Defense Industrial Personnel Security
Clearance Review Program (January 2, 1992), as amended (Directive); and the
adjudicative guidelines (AG) implemented by the Department of Defense on September 1,
2006. Applicant’s notarized answer to the SOR was received on November 30, 2012. 
The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on
February 11, 2013, for a hearing on March 5, 2013. The hearing was held as scheduled.
At the hearing, three Government exhibits (GE) 1-3 were admitted in evidence without
objection. Applicant testified and presented no exhibits. DOHA received the transcript (Tr.)
on March 14, 2013. The record closed on March 14, 2013. 
Findings of Fact
The SOR alleges drug involvement and personal conduct. In his answer, Applicant
admitted all allegations. He provided an attachment to his answer explaining the
circumstances of his one-time use of marijuana in April 2011, while holding a security
clearance. 
Applicant is 32 years old and has been married since June 2011. He has a six-
month-old baby. In December 2003, he received his bachelor’s degree. In April 2008, he
received a master’s degree in network security. He has been working as an information
assurance analyst for a defense contractor since January 2012.
SOR 1.a alleges that Applicant used marijuana while holding a secret clearance
granted to him in October 2008 and an interim top secret security clearance granted to him
in January 2011. In support of the allegation, the Government presented Applicant’s
security clearance history, which is revealed in the Joint Personnel Adjudication System
(JPAS), a Government-wide system that tracks the status of security clearances for
defense contractor personnel. Applicant’s investigation and adjudication history reflects that
he received a secret security clearance on October 16, 2008. He provided an attachment
to his answer explaining that DOD adjudicators informed him the contractor who sponsored
 The attachment to Applicant’s answer contains relevant hearsay evidence of discussions he had with DOD1
adjudicators about his security clearance history. Though Applicant’s interest in the outcome of this security
clearance hearing must be considered, in view of the reliability and consistency of the hearsay evidence to
other evidence in the record and the Defense Security Service (DSS) Internet site (www.dss.mil/disco/indust-
disco-maintain) explaining operating procedures for maintaining personnel security clearances, and
Applicant’s favorable credibility at the hearing, the attachment is given considerable weight.  
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his October 2008 clearance did not enter the appropriate information into JPAS when he
terminated his employment with this sponsoring contractor in September 2009, and began
employment with a commercial company working on strictly non-classified projects.
Applicant believed he did not have a security clearance after September 2009. Since the
commercial company had no facility security officer (FSO), the company had no way to
determine if Applicant had a security clearance. Applicant worked for this company for three
years. (SOR answer, attachment;  GE 1 at 14; Tr. 22-24)1
JPAS shows that Applicant received an interim top secret clearance on January 21,
2011. (GE 3) He was unaware he had received a clearance. DOD adjudicators informed
him that the sponsoring contractor was late in entering the appropriate information into
JPAS indicating that Applicant never received a security clearance and was never
employed by them. In addition, this sponsoring contractor was not awarded the contract.
(SOR answer, attachment; GE 2 at 5; Tr. 24)
SOR 1.b alleges Applicant used marijuana with varying frequency from 1998 to
2005. In January 2012 (e-QIP) and October 2012 (interrogatory answers), he admitted
using marijuana on a monthly basis between 1998 and his graduation from college in
December 2003. He continued to use the drug monthly until he received a security
clearance in December 2005. He used the drug one more time with friends at a bachelor’s
party on April 16, 2011, but he has used no drugs since then. He has no intention to use
drugs in the future because he is most concerned about his career, his marriage, and his
life. Applicant is certain his drug use is in the past. (GE 1 at 37-38, GE 2 at 4-5; Tr. 31-33,
36). I find that Applicant used no marijuana from December 2005 until his last use on April
16, 2011. (GE 2 at third page)
Applicant has never misused prescription drugs. He has never been diagnosed as
drug dependent or a drug abuser, and has never received treatment or counseling for drug
use. He has never received disciplinary action for drug use. He no longer associates with
drug users. (GE 1 at 38, GE 2 at 4-5) 
SOR 2.a alleges that Applicant deliberately falsified material facts on his e-QIP dated
January 11, 2012, when he answered “no” to a question under Section 23 (Illegal Use of
Drugs or Drug Activity. Was your use while possessing a security clearance?) (e-QIP at 38)
Though Applicant’s answer to the question was false, I find the failure to disclose his one-
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time use in April 2011 was not deliberate because he did not believe he had a security
clearance after September 2009. I find his belief reasonable.
In response to the first question of the Section 23 module (e-QIP, January 11, 2012)
requiring information about any drug use within the last 7 years, Applicant indicated he
used marijuana about 12 times before December 2005. He used the drug once more at a
bachelor’s party in April 2011. He concluded his remarks to this question by stating, “I do
not intend to use this drug in the future because the drug is not worth using. I am more
concerned about focusing on my career, marriage, and life.” (GE 1 at 38; Tr. 36)
Having carefully reviewed the record, including Applicant’s demeanor and
deportment during the hearing, I find that Applicant testified credibly. He used marijuana
on a monthly basis from 1998 to December 2005, when he received his security clearance
and began working on classified projects. He used the drug one additional time at a
bachelor’s party in April 2011. Because of his family and career, Applicant does not intend
to use drugs in the future. 
Policies
Each guideline under the AG lists potentially disqualifying conditions and mitigating
conditions, which are required to be considered to the extent they apply in evaluating an
applicant's eligibility for access to classified information. These guideline-conditions must
be evaluated in the context of the whole-person concept, nine factors that bring together
all available, reliable information about the person, past and present, favorable and
unfavorable, in making a decision. Such decisions entail a certain degree of legally
permissible extrapolation about the potential, rather than actual, risk of compromise of
classified information.
Under Directive ¶ E3.1.14., the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.l5., 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 for obtaining a favorable security decision.
Analysis
Drug Involvement
Paragraph 24 of the AG sets forth the security concern associated with drug
involvement:
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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.
AG ¶ 25 identifies three pertinent disqualifying conditions that could raise security
concerns: (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 possessed and used marijuana on a monthly basis from 1998 until he received
a security clearance in December 2005. He used the drug once more at a bachelor’s party
in April 2011. While he used marijuana after being granted a security clearance in October
2008, he believed he no longer had a security clearance after he began working for a
commercial company in September 2009, where he was employed for three years. AG ¶¶
25(a) and 25(c) apply, but AG ¶ 25(g) does not apply. 
Applicant used marijuana on one occasion in April 2011 after being granted an
interim security clearance in January 2011. He was unaware he had been sponsored for
an interim clearance because he was working for a commercial company with no access
to JPAS. He was unaware he had received the interim clearance, and the sponsoring
contractor never received the contract. AG ¶¶ 25(a) and 25(c) apply. AG 25(g) does not
apply because I conclude Applicant did not know he had been granted an interim security
clearance in January 2011.
The two pertinent mitigating conditions under AG ¶ 26 of the drug involvement
guideline are: (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 are used,
(3) an appropriate period of abstinence, and (4) a signed statement of intent with automatic
revocation of clearance for any violation). AG ¶ 26(a) may apply when the drug use was
not recent. Following his monthly use of marijuana from 1998 to December 2005, Applicant
stopped using drugs for more than five years. His one-time use in April 2011 while holding
a security clearance occurred almost two years ago, and under unusual circumstances that
are unlikely to recur. He married in June 2011. He is the father of a six-month-old child. He
understands that losing his family and career by resuming drug use is not worth the risk.
AG ¶ 26(a) applies.
Applicant has sufficiently demonstrated that he no longer associates with drug users.
He does not want to jeopardize his family and career by using drugs again. He has not
used drugs since April 2011. While the record does not contain a signed statement of intent
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with automatic revocation, Applicant’s stated intent to refrain from future drug use is
confirmed by his statements in January 2012 (e-QIP), February 2012 (interview summary),
October 2012 (interrogatory answers), and his credible testimony. AG ¶ 26(b) applies.
Personal Conduct
The security concern for personal conduct is set forth in AG ¶ 15:
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 is any failure to provide truthful and
candid answers during the security clearance process or any other failure to
cooperate with the security clearance process. 
AG ¶ 16 contains two pertinent disqualifying conditions that may be applicable: (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 (d)
(credible adverse information that is not explicitly covered under any other guideline and
may not be sufficient by itself for an adverse determination, but which, when combined with
all available information supports a whole-person assessment of questionable judgment,
untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and
regulations, or other characteristics indicating the person may not properly safeguard
protected information. This includes but is not limited to consideration of . . . (3) a pattern
of dishonesty or rule violations . . . .) Though Applicant’s response to the drug question
under Section 23 was incorrect, I conclude he believed in good-faith that he no longer had
his October 2008 security clearance after he began working for a commercial company in
September 2009. Similarly, he believed that he did not have a security clearance in January
2011. His good-faith belief precludes a finding he deliberately failed to disclose information
of using drugs while possessing a security clearance. AG ¶ 16(a) does not apply. 
Applicant’s use of drugs in April 2011 would constitute a violation of using drugs
while possessing a security clearance. However, Applicant did not know he had received
a security clearance in January 2011 because he never worked for the sponsoring
contractor. The sponsoring contractor never received the contract. AG ¶ 16(d) does not
apply to Applicant’s one-time use of drugs in April 2011. 
The two pertinent mitigating conditions, AG ¶ 17(a) and AG ¶ 17(b), are not
applicable because I have determined that Applicant’s failure to disclose his drug use was
unintentional. 
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Having determined that Applicant believed he no longer had a security clearance
after switching to the commercial company in September 2009, and never being notified
of the interim clearance in January 2011, AG ¶¶ 17(c) and 17(d) do not apply.
Assuming that there is a rule violation based on Applicant’s questionable judgment
in using drugs while possessing an interim security clearance after the passage of more
than five years, his evidence in mitigation would overcome the violation with the mitigating
evidence presented under AG ¶ 17(c) (the offense is so minor, or so much time has
passed, or the behavior is 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
and good judgment); and AG ¶ 17(d) (the individual has acknowledged the behavior and
obtained counseling to change the behavior or taken other positive steps to alleviate
stressors, circumstances, or factors that caused untrustworthy, unreliable or other
inappropriate behavior, and such behavior is unlikely to recur). AG ¶ 17(c) is applicable for
the same reasons that have been discussed under AG ¶ 26(a) of the drug involvement
guideline. Applicant’s complete acknowledgment of his drug use invokes AG ¶ 17(d). His
recognition of the importance of his family and career justifies complete confidence that his
past drug use will not recur. AG ¶¶ 17(c) and 17(d) apply. 
Whole-Person Concept 
In evaluating Applicant’s security clearance worthiness, I have examined the
evidence under the disqualifying and mitigating conditions of the drug involvement and
personal conduct guidelines. I have also weighed the circumstances within the context of
nine variables known as the whole-person concept. In evaluating the relevance of an
individual's conduct, the administrative judge should consider the following factors set forth
in 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 the participation was
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 decision of whether the granting or continuing eligibility for
a security clearance is clearly consistent with the interests of national security must be a
judgment based on common sense after a careful review of the guidelines, which are to be
evaluated in the context of the whole-person concept.
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Applicant’s drug use has been discussed under the drug involvement and personal
conduct guidelines. Though he used drugs in April 2011 after being granted a security
clearance, he did not know he had a clearance because he never was notified, and the
sponsoring contractor never received the contract. Applicant has not used illegal drugs
since a bachelor party in April 2011. He married in June 2011, and he and his wife are
raising a young child. He convinced me that his family and career are more important than
engaging in future drug use. Having weighed and balanced all the evidence under the
disqualifying and mitigating conditions, and in the context of the whole-person concept,
Applicant has mitigated the security concerns under drug involvement and personal
conduct. See AG ¶ 2(a)(1)-2(a)(9).
Formal Findings
      Paragraph 1 (Guideline H):  FOR APPLICANT
 Subparagraphs 1.a-1.b: For Applicant
      Paragraph 2 (Guideline E):   FOR APPLICANT
Subparagraphs 2.a-2.b: For Applicant
Conclusion
In light of all the circumstances presented by the record in this case, it is clearly
consistent with the national interest to grant Applicant access to classified information.
Eligibility for access to classified information is granted. 
Paul J. Mason
Administrative Judge