1
                                                           
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)         ISCR Case No. 12-06676
)
)
Applicant for Security Clearance )
Appearances
For Government: Eric H. Borgstrom, Esq., Department Counsel
For Applicant: Pro se
______________
Decision
______________
MASON, Paul J., Administrative Judge:
On May 29, 2009, Applicant demonstrated poor judgment when he placed
himself in the company of his son who was in possession of illegal drugs. Applicant
mitigated his drug involvement because he is not a drug user and does not intend to
use drugs in the future. He mitigated his criminal conduct because he has no other
criminal record for arrests or convictions. However, his failure to provide truthful
information about the May 2009 arrest during the security clearance investigation has
not been mitigated. Eligibility for access to classified information is denied. 
Statement of the Case
Applicant completed and certified an Electronic Questionnaire for Investigations
Processing (e-QIP) on October 18, 2010. He provided interviews to an investigator from
the Office of Personnel Management (OPM) on November 17, 2010, and February 8,
2011. Interview summaries of those interviews appear in his interrogatory responses
which he signed and notarized on November 22, 2011. He agreed with the summaries
 Page numbers are located at the lower right corner of the page. 1
2
and indicated they could be admitted into evidence at a hearing to determine his
security suitability. (Item 5 at 137)  1
On June 29, 2012, the Department of Defense (DOD) issued a Statement of
Reasons (SOR) detailing security concerns under criminal conduct (Guideline J), 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 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 furnished two notarized answers: the first was July 24, 2012; the
second was on September 19, 2012. He requested a decision on the record in lieu of a
hearing. A copy of the Government’s File of Relevant Material (FORM), the
Government’s evidence in support of the allegations of the SOR, was sent to Applicant
on December 17, 2012. He received the FORM on January 18, 2013. In an attachment
to the FORM, he was advised he could respond to the information in the FORM by
submitting additional information in rebuttal, explanation, mitigation, or extenuation.
Applicant’s notarized response dated January 28, 2013, was entered into evidence on
February 1, 2013, without objection. 
Rulings on Procedure
The FORM filed by the Government on December 17, 2012, includes a Motion to
Amend the SOR by adding an allegation (SOR 3.c) under the personal conduct
guideline. That allegation reads as follows:
c. You falsified material facts on an Electronic Questionnaire for
Investigations Processing (e-QIP), executed by you on or about October
18, 2010, in response to Section 22b. “Have you been arrested by any
police officer, sheriff, marshal, or any other type of law enforcement
officer?” You answered “NO” and deliberately omitted having been
arrested on May 29, 2009, as set forth in subparagraph 1.a., above. 
Based on the record, specifically the city arrest report (Item 7), indicating Applicant was
arrested on May 29, 2009, for three criminal offenses alleged in SOR 1.a, the Motion to
Amend the SOR is hereby granted under E3.1.17 of DOD Directive 5220.6. 
Findings of Fact
The SOR contains one allegation under the criminal conduct guideline, two
allegations under the drug involvement guideline, and three allegations under the
personal conduct guideline. Applicant admitted SOR 1.a. He denied SOR 2.a and 2.b.
 The October 2010 e-QIP also shows that Applicant incorrectly answered Section 22e (has the applicant ever2
been charged with any offense related to alcohol or drugs). This omission cannot be considered in the
Government’s case-in-chief, but is relevant to Applicant’s overall credibility under the whole person-concept..
3
He admitted lying about his May 2009 arrest (SOR 3.c), but denied drug use or drug
possession in the last 7 years. (SOR 3.a, 3.b)
Applicant is 49 years old. He married in May 1987 and divorced in January 2005.
He has a 24-year-old son and a 20-year-old daughter from this marriage. He served in
the U.S. Navy from April 1985 until his honorable discharge in December 1992. He held
a security clearance while in the service. In March 2005, he was investigated by another
government agency (AGA) for a security clearance. He could not recall the level. He
has been employed by a defense contractor since November 2004, and has never been
cited for complaints or incidents by his supervisors at work. He has never taken drugs
and is subject to random drug tests at any time. 
Before his current job, Applicant was employed for about a year as a
warehouseman with another employer. He was also a corrections officer for
approximately 10 months in 2002.
In Applicant’s e-QIP, dated October 18, 2010, he denied: SOR 3.a (Section 23a.-
illegal drug use in the last 7 years); SOR 3.b (Section 23c.-illegal possession, transfer in
the last 7 years); and SOR 3.c (Section 22b.-arrests in the last 7 years).2
During an interview with an OPM investigator on November 17, 2010, Applicant
initially confirmed his negative response to question 22b. (criminal arrest(s) in the last 7
years) of his e-QIP dated October 18, 2010. Subsequently during the interview, he was
confronted with information about an arrest on May 29, 2009. Applicant stated he was
unaware of an arrest. Then, he told the investigator that on May 29, 2009, he traveled to
a city to attend a concert with his son and Applicant’s brother. They were stopped by
police on an unknown street because Applicant’s son was drinking a beer in public.
During a search of the three, the police found a pipe with marijuana residue in the
pocket of Applicant’s son. The three were then handcuffed and taken to the police
station. After fingerprinting, the three were released. Applicant claimed he was not
charged with any offense and never received a summons, unlike his son and his
brother. He reiterated his claim that he was unaware this arrest was on his record.
Applicant told the OPM investigator that he never used drugs, never received
drug treatment, never associated with drug users, and did not intend to use drugs in the
future. In his interrogatory answers dated November 22, 2011, Applicant agreed with
the contents of both the November 17, 2010, and the February 8, 2011, interview
summaries. 
In his first answer to the SOR (July 24, 2012), Applicant admitted he was
arrested, but denied he was charged with any offense. He confirmed most of the
information he provided in the November 2010 interview regarding the arrests, but
4
added that before he was arrested, he took the drug pipe from his son to try to prevent
his son from being arrested. Applicant stated, “Officers told us nothing would show up
on our records which is the main reason I answered no to prior arrests on the security
clearance application.” 
In his September 19, 2012 answer to the SOR, Applicant indicated, “I do admit
lying about my arrest on 29 May 2009 in fear of losing my job. I was never charged or
read any rights which are why I denied being arrested on my security clearance
[application]” 
In his response to the FORM dated January 28, 2013, Applicant, though
acknowledging he was arrested, disputed the arrest report which indicated he was
observed smoking marijuana from a metal pipe. He admitted he was charged but never
convicted of any offense. He acknowledged the poor judgment he exercised in
associating with his son who uses illegal drugs.  
The city arrest report reflects that Applicant was arrested and charged with
criminal possession of a controlled substance, criminal possession of marijuana in
public, and unlawful possession of marijuana. (Item 7) The information in the exhibit
identifying Applicant’s date of birth, social security number, and a residential address, is
independently confirmed in Applicant’s e-QIP (Item 4). 
The Federal Bureau of Investigation (FBI) criminal record indicates Applicant was
arrested for three misdemeanors (identified above) on May 29, 2009. (Item 6) The
identifying information in this exhibit regarding Applicant’s date of birth and social
security number is the same as Item 7 and Item 4. 
Considering the record as a whole, specifically Applicant’s interview summary
and his subsequent statements, he supplied different positions about whether he was
arrested on May 29, 2009. In his October 2010 e-QIP, he denied being arrested. When
the arrest was first discussed in his November 2010 interview, he falsely confirmed his
negative response in his October 2010 e-QIP. Even when he was confronted with the
May 2009 arrest later in the interview, he claimed he was unaware he had an arrest
record. He did not finally admit he had been arrested until July 2012, in his first answer
to the SOR. The different positions undermine Applicant’s credibility. 
Character Evidence
Applicant is proud he has been able to finance his children’s education while
paying child support. Aside from his statements about his job performance, he furnished
no character endorsements from his supervisors about his job performance. He
provided no evidence about his reputation from anyone in the community where he
lives. 
5
Policies
The evaluation of an applicant's suitability for a security clearance should include
a careful consideration of AG. Each guideline lists potentially disqualifying conditions
and mitigating conditions, which are to be applied to the extent they are deemed
necessary in evaluating an applicant's eligibility for access to classified information. The
conditions must be evaluated in the context of general factors that comprise the whole-
person concept.
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
Criminal Conduct
AG ¶ 30 of the criminal conduct guideline sets forth the security concern related
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.
The two pertinent disqualifying conditions under AG ¶ 31 are:
(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.
On May 29, 2009, Applicant was arrested and charged with three offenses: (1)
criminal possession of a controlled substance; (2) criminal possession of marijuana in
public; and (3) unlawful possession of marijuana. Although the three offenses are not
classified as serious criminal behavior, their designation at the misdemeanor level
raises security concerns about Applicant’s reliability and trustworthiness and good
judgment. The security significance of these charges is not excused by the fact that
Applicant was neither prosecuted nor convicted. AG ¶¶ 31(a) and 31(c) apply.
There are three pertinent mitigating conditions under AG ¶ 32 that may apply:
(a) so much time has passed since the criminal behavior happened, or it
happened under such circumstances that it is unlikely to recur and does
6
not cast doubt on the individual’s reliability, trustworthiness, or good
judgment; 
(c) evidence that the person did not commit the offense; 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 development.
The criminal conduct occurred more than three years ago. The crime arose
under circumstances that are unlikely to recur. Applicant unsuccessfully tried to take the
drug pipe from his son so that Applicant would be arrested rather than his son. The
arresting officer formed a different opinion and arrested Applicant, his son, and his
brother. Judging by the totality of the evidence, because Applicant has no other criminal
record of arrests or convictions, I am confident the criminal conduct will not recur.
Applicant does not receive full credit under AG ¶ 32(a) because of the poor judgment he
demonstrated in deliberately concealing relevant information about his arrest from his
October 2010 e-QIP and November 2010 interview. 
Applicant is entitled to some mitigation under AG ¶ 32(c). Although the city report
and federal record show an arrest for three drug possession charges, I accept
Applicant’s explanation of trying to take the blame for his son’s drug involvement. 
Applicant gains some mitigation from AG ¶ 32(d). More than three years have
passed since Applicant’s criminal behavior. Based on the isolated nature of the conduct,
along with Applicant’s remorse and some evidence of a good employment record, AG ¶
32(d) is partially applicable.
Drug Involvement
Paragraph 24 of the AG sets forth the security concern associated with 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.
AG ¶ 25 identifies two pertinent disqualifying conditions that could raise security
concerns: 
(a) any drug abuse; and
(c) illegal drug possession, including cultivation, processing, manufacture,
purchase, sale, or distribution, or possession of drug paraphernalia.
7
On May 29, 2009, Applicant was arrested for three drug possession offenses.
While he denies he used marijuana before the arrest, he admitted taking the drug pipe
used to smoke the drug. AG ¶¶ 25(a) and 25(c) apply.  
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. 
Applicant’s drug involvement transpired more than three years ago. There is no
additional evidence of marijuana use. AG ¶ 26(a) is applicable in part for the same
reasons that were discussed under AG ¶ 32(a) of the criminal conduct guideline.
Applicant does not use drugs and has never had drug treatment. Though his son was
the reason he was arrested for possession of drugs, Applicant no longer associates with
persons who use drugs. While the record does not contain a signed statement of intent
with automatic revocation, Applicant has convinced me he will not engage in future drug
use. 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 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
8
(b) deliberately providing false or misleading information concerning
relevant facts to an employer, investigator, security official, competent
medical authority, or other official government representative.
The omission of relevant facts from a security clearance form can occur for a
number of unintentional reasons. Those reasons, which include haste, oversight, or
negligence, are not present here. I conclude that Applicant deliberately omitted his May
2009 arrest from his October 2010 e-QIP. (SOR 3.c) He did not provide a full account of
his arrest until July 2012, when he furnished his first answer to the SOR. AG ¶¶16(a) and
16(b) apply. 
Based on my ultimate finding for Applicant under the drug involvement guideline,
SOR 3.a and 3.b (drug use and possession allegations) are resolved in his favor
because I conclude he is not involved with drugs. 
There are three mitigating conditions under AG ¶ 17 that are potentially applicable
to the circumstances in this case. Those conditions are: 
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment or falsification, before being confronted with the facts); 
(c) the offense was 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); and 
(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).
None of the mitigating conditions apply. Applicant deliberately omitted his May
2009 arrest from his October 2010 e-QIP. During the initial portion of his November 2010
interview, he falsely told the OPM investigator that he had no criminal record. After being
confronted with information regarding the May 2009 arrest, he supplied details of the
incident while still claiming that he was unaware the arrest was on his record. AG ¶ 17(a)
does not apply. 
AG ¶¶ 17(c) and 17(d) do not apply because of Applicant’s failure to be entirely
forthright about the May 2009 arrest when first given the opportunity to disclose the
information in his e-QIP and his November 2010 interview. The fact that Applicant finally
disclosed the truth about his arrest in July 2012 does not excuse his earlier omissions in
October and November 2010. The pattern of omissions continues to raise questions
about Applicant’s trustworthiness and judgment. 
9
Whole-Person Concept 
I have examined the evidence under the disqualifying and mitigating conditions of
the criminal conduct, 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:
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 determination of whether to grant eligibility for a
security clearance must be a commonsense judgment based on careful consideration of
the guidelines and the whole-person concept.
Applicant is 49 years old and divorced. He has two adult-age children. He
received an honorable discharge in December 1992 after serving more than seven years
in the U.S. Navy. Applicant is proud he has been able to finance his children’s education
while paying child support. 
On the other side of the ledger is Applicant’s deliberate omission of his arrest from
his October 2010 e-QIP. Instead of telling the truth about his arrest in November 2010,
Applicant continued to conceal his arrest by falsely affirming his negative e-QIP
response. After being confronted with information about his arrest, Applicant provided
details of the arrest, but still claimed he was unaware the arrest was on his record. 
In his first answer (July 2012) to the SOR, Applicant admitted he was arrested but
denied he was charged with an offense. In his second answer (September 2012),
Applicant admitted the arrest but again denied he was charged. Only after he was
confronted with the city arrest report and the FBI records did Applicant finally provide a
full account of the May 2009 offense. His repeated omissions of relevant information
between October 2010 and January 28, 2013, have not been mitigated. The fact that
Applicant was trying to protect his employment does not excuse or mitigate his deliberate
falsifications during the security investigation. After weighing and balancing the
disqualifying conditions with mitigating conditions, and considering all the evidence under
the whole-person concept, I conclude that Applicant has not mitigated the security
concerns arising under the personal conduct guideline. 
10
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 J): FOR APPLICANT
Subparagraph1.a: For Applicant
Paragraph 2 (Guideline H): FOR APPLICANT
Subparagraphs 2.a-2.b: For Applicant
Paragraph 3 (Guideline E): AGAINST APPLICANT
Subparagraphs 3.a-3.b: For Applicant
Subparagraph 3.c: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national interest to grant Applicant eligibility for a security
clearance. Eligibility for access to classified information is denied. 
                      
Paul J. Mason
Administrative Judge