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                                                            DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
 
             
In the matter of: 
          ) 
  )  ISCR Case No. 11-12424 
                                                            )                      
Applicant for Security Clearance ) 
                       
                                                                        
  
Appearances 
 
For Government: Eric H. Borgstrom, Esq., Department Counsel 
For Applicant: Pro se 
 
 
 
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Decision 
______________ 
 
 
ANTHONY, Joan Caton, Administrative Judge: 
 
 After a thorough review of the written record in this case, I conclude that 
Applicant failed to rebut or mitigate the Government’s security concerns under   
Guideline H, Drug Involvement, and Guideline E, Personal Conduct. His eligibility for a 
security clearance is denied. 
 
                                                      Statement of Case 
 
On June 3, 2011, Applicant completed and signed an electronic questionnaire for 
investigations processing (e-QIP). On December 3, 2012, the DOD issued Applicant a 
Statement of Reasons (SOR) detailing security concerns under Guideline H, Drug 
Involvement, and Guideline E, Personal Conduct. DOD acted under Executive Order 
10865, Safeguarding Classified Information within Industry (February 20, 1960), as 
amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance 
Review Program (January 2, 1992), as amended (Directive); and the adjudicative 
guidelines (AG) effective within the DOD for SORs issued after September 1, 2006.  
  
 
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 Applicant provided two answers to the SOR. His first notarized answer was dated 
December 22, 2012, and his second notarized answer was dated January 31, 2013. On 
February 7, 2013, Applicant provided a notarized statement in which he declined a 
hearing, and requested a decision on the written record.    
 
The Government compiled its File of Relevant Material (FORM) on March 14, 
2013. The FORM contained documents identified as Items 1 through 5. On April 26, 
2013, DOHA forwarded a copy of the FORM to Applicant, with instructions to submit 
any additional information or objections within 30 days of receipt. Applicant received the 
file on May 8, 2013. His response was due on June 7, 2013. Applicant did not submit 
any additional information or file any objections within the prescribed time period. On 
June 26, 2013, the case was assigned to me for a decision.     
 
Findings of Fact 
 
 The SOR contains four allegations of disqualifying conduct under Guideline H, 
Drug Involvement (SOR ¶¶ 1.a. through 1.d.) and three allegations of disqualifying 
conduct under Guideline E, Personal Conduct (¶¶ 2.a. through 2.c.). In his Answers to 
the SOR, Applicant admitted all allegations under both guidelines. However, he further 
stated that he misunderstood the questions raised in Sections 23a and 23c on the e-
QIP he completed and certified on June 3, 2011, and he did not willfully withhold 
information or falsify information in his responses. Applicant’s admissions are entered 
as findings of fact.  (Item 1; Item 2; Item 3.) 
 
 The facts in this case are established by the record provided by the Government 
and by information provided by Applicant. The record evidence includes Applicant’s 
June 3, 2011 e-QIP; official agency records; and Applicant’s responses to DOHA 
interrogatories.1 (See Items 1 through 5.) 
 
 After a thorough review of the record in the case, including the documentary 
evidence, relevant policies, and applicable adjudicative guidelines, I make the following 
additional findings of fact:  
 
 Applicant is 41 years old. Since May 2011, he has been employed by a 
government contractor. He seeks a DOD security clearance. Applicant was first married 
in 2000. He and his wife divorced in 2002. Applicant married again in 2006. He has one 
adult stepchild. (Ex. 4.) 
 
 Applicant has a history of substance abuse. In a July 2011 interview with an 
OPM investigator, Applicant stated that he first used marijuana in 1991 during his first 
                                            
1 Applicant was interviewed by an authorized investigator from the U.S. Office of Personnel Management 
(OPM) on July 13, 2011. In response to DOHA interrogatories, Applicant reviewed the investigator’s 
report and, on October 12, 2012, he signed a statement affirming that the investigator’s report accurately 
reflected his interview. He did not provide any additional information. (Item 5.) 
 
 
 
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semester in college. He used marijuana once a day and spent about $25 a week on 
marijuana. (Item 5.) 
 
 In December 1992, Applicant was expelled from college. After leaving college, 
Applicant’s marijuana use increased to two or three times a day, and he spent about 
$60 a week on his drug habit. He smoked marijuana with friends or by himself. 
Applicant’s use of marijuana continued until at least 2007. (Item 5.) 
 
 From the mid-1990s until 2007, Applicant purchased marijuana and sold it to his 
friends. By selling marijuana that he purchased to his friends, Applicant was able to 
offset some of his drug use expenses. (Item 5.) 
 
 Applicant’s marijuana use caused relationship problems in his first marriage and 
was a contributing factor to his divorce. Applicant’s drug use also caused financial 
problems during this time. He continued to smoke marijuana even when he could not 
afford to pay his rent or buy food.  (Item 5.) 
 
 Applicant told the investigator that he stopped using marijuana in 2007. In 
September 2010, however, Applicant went on vacation with a friend and used marijuana 
again. Applicant claims he has not used marijuana since September 2010, although he 
continues to associate with the friend with whom he used marijuana, and the friend uses 
marijuana when he and Applicant are together. (Item 5.) 
 
 Applicant has not sought treatment or counseling for his drug use. He has not 
been diagnosed or evaluated as a drug abuser or drug dependent by a qualified 
medical professional or a licensed clinical social worker. He claims he has never had a 
positive drug test. (Item 5.)   
  
 In June 2011, Applicant completed an e-QIP. Section 23a on the e-QIP asks the 
following: 
 
In the last 7 years, have you illegally used any controlled substance, for 
example, cocaine, crack cocaine, THC (marijuana, hashish, etc.), 
narcotics (opium, morphine, codeine, heroin, etc.), stimulants 
(amphetamines, speed, crystal methamphetamine, Ecstasy, ketamine, 
etc.), depressants (barbiturates, methaqualone, tranquilizers, etc.), 
hallucinogenics (LSD, PCP, etc.), steroids, inhalants (toluene, amyl 
nitrate, etc.) or prescription drugs (including painkillers)? 
 
Applicant answered “Yes” to Section 23a. He listed his one use of marijuana in 
September 2010. He failed to disclose the full extent of his drug use between June 2004 
and at least 2007. The SOR alleges at ¶ 2.b. that Applicant’s failure to disclose this 
information was deliberate. (Item 1; Item 4; Item 5.) 
 
 Section 23c on the e-QIP Applicant completed in June 2011 asks the following: 
“In the last 7 years, have you been involved in the illegal possession, purchase, 
 
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manufacture, trafficking, production, transfer, shipping, receiving, handling or sale of 
any controlled substance?” Applicant answered “No” to Section 23c and failed to 
disclose that, between June 2004 and at least 2007, he purchased marijuana on several 
occasions and also purchased and sold marijuana to others during this time. The SOR 
alleges at ¶ 2.c. that Applicant’s failure to disclose this information was deliberate. (Item 
1; Item 4; Item 5.) 
 
 As an attachment to his Answers to the SOR, Applicant provided a copy of his 
most recent performance review. The review assesses 18 work and skill categories. 
Applicant met the requirements for 12 categories. He exceeded the requirements in the 
following categories: works independently; assigned job completed to schedule; 
technical proficiency; capable of accepting personal responsibility; interaction/works well 
with supervisors; interaction/works well with co-workers. (Item 2; Item 3.) 
  
                                      Policies 
 
The U.S. Supreme Court has recognized the substantial discretion of the 
Executive Branch in regulating access to information pertaining to national security, and 
it has emphasized that “no one has a ‘right’ to a security clearance.” Department of the 
Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the 
authority to control access to information bearing on national security and to determine 
whether an individual is sufficiently trustworthy to have access to such information. Id. at 
527. The President has authorized the Secretary of Defense or his designee to grant an 
applicant’s eligibility for access to classified information “only upon a finding that it is 
clearly consistent with the national interest to do so.”  Exec. Or. 10865, Safeguarding 
Classified Information within Industry § 2 (Feb. 20, 1960), as amended.    
 
 When evaluating an applicant’s suitability for a security clearance, an   
administrative judge must consider the adjudicative guidelines (AG). These guidelines 
are not inflexible rules of law. Instead, recognizing the complexities of human behavior, 
the administrative judge applies these guidelines 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, the applicant is 
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, 
 
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or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The 
applicant has the ultimate burden of persuasion in 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 classified 
information. Such decisions entail a certain degree of legally permissible extrapolation 
about 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). 
 
Analysis 
 
Guideline H, Drug Involvement 
 
 Use of an illegal drug or misuse of a prescription drug can raise questions about 
an individual’s reliability and trustworthiness 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 ¶ 24(a) defines drugs as “mood and behavior altering 
substances.” The definition of drugs includes “(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.” AG ¶ 24(b) defines drug abuse as “the 
illegal use of a drug or use of a legal drug in a manner that deviates from approved 
medical direction.” 
 
 The record in this case establishes that Applicant used marijuana, at various 
times, from 1991 to 2010. From 1992 to 2007, he used marijuana frequently, sometimes 
daily, and he purchased and sold marijuana to others to help pay for his drug habit. 
 
 Applicant’s behavior casts doubt on his reliability, trustworthiness, and good 
judgment. It also raises security concerns about his ability or willingness to comply with 
laws, rules, and regulations. I conclude that Applicant’s illegal drug use and his 
purchase and sale of illegal drugs to others raise security concerns under AG ¶¶ 25(a) 
and 25(c). AG ¶ 25(a) reads: “any drug abuse [as defined at AG ¶ 24(b)].”  AG 25(c) 
reads: “illegal drug possession, including cultivation, processing, manufacture, 
purchase, sale, or distribution; or possession or drug paraphernalia.” 
 
 
 
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Applicant’s drug use began in 1991 and continued until at least 2007, a period of 
16 years. His most recent use of marijuana occurred in September 2010. His drug use 
was sustained, habitual, and a lifestyle choice.  
 
Three Guideline H mitigating conditions might apply to the facts of Applicant’s 
case. If Applicant’s drug use “happened so long ago, was so infrequent, or happened 
under such circumstances that it is unlikely to recur or does not cast doubt on [his] 
current reliability, trustworthiness, or good judgment,” then AG ¶ 26(a) might be 
applicable in mitigation. If Applicant demonstrated an “intent not to abuse any drugs in 
the future by (1) disassociation from drug-using associates and contacts, (2) changing 
or avoiding the environment where drugs were used, (3) abstaining from drug use for 
an appropriate period, or (4) signing a statement of intent with the automatic revocation 
of his security clearance for any violation,” then AG ¶ 26(b) might be applicable. If 
Applicant provided evidence of “satisfactory completion of a prescribed drug treatment 
program, including but not limited to rehabilitation and aftercare requirements, without 
recurrence of abuse, and a favorable prognosis by a duly qualified medical 
professional,” then AG 26(d) might be applicable.  
 
Applicant’s past illegal drug use continues to cast doubt on his current reliability, 
trustworthiness, and good judgment.  He failed to establish that he had abstained from 
drug use for an appropriate period or that he had disassociated from those with whom 
he had used drugs in the past. He failed to demonstrate that he had changed his 
conduct to avoid environments where drugs are used. He did not provide a signed 
statement of his intent not to abuse drugs in the future, with automatic revocation of his 
security clearance for any violation. 
 
Applicant’s illegal drug use occurred periodically over a period of many years.  
Insufficient time has elapsed to demonstrate whether he will abstain from illegal drug 
use in the future. I conclude that AG ¶¶ 26(a), 26(b), and 26(d) do not apply in 
mitigation to the facts of Applicant’s case. I also conclude that the conduct alleged in 
SOR ¶ 1.d. is not a disqualifying condition under Guideline H, and accordingly, I find for 
Applicant on that allegation. 
 
Personal Conduct 
 
AG ¶ 15 explains why personal conduct is a security concern: 
 
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. 
 
When Applicant completed his e-QIP in 2011, he listed a one-time use of 
marijuana in September 2010. In his response to Section 23a, he failed to disclose his 
 
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frequent use of marijuana between 2004 and 2007. In his response to Section 23c, he 
also failed to disclose his frequent purchase and resale of marijuana. Applicant’s 
personal conduct raises security concerns under AG ¶ 16(a), which reads: “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.” Applicant’s continued contact with at least one friend with whom he 
used illegal drugs also raises a security concern under AG ¶ 16(g), which reads: 
“association with persons involved in criminal activity.” 
 
In his answer to the SOR, Applicant denied that his failure to disclose the full 
extent of his 16-year marijuana use and his failure to disclose his frequent purchase and 
resale of marijuana to others were deliberate. Instead, he stated that his omissions were 
the result of misunderstandings.  
 
DOHA’s Appeal Board has cogently explained the process for analyzing 
falsification cases: 
 
(a) when a falsification allegation is controverted, Department Counsel has 
the burden of proving falsification; (b) proof of an omission, standing 
alone, does not establish or prove an applicant’s intent or state of mind 
when the omission occurred; and (c) a Judge must consider the record 
evidence as a whole to determine whether there is direct or circumstantial 
evidence concerning the applicant’s intent or state of mind at the time the 
omission occurred.   
 
ISCR Case No. 03-10380 at 5 (App. Bd. Jan. 6, 2006) (citing ISCR Case No. 02-23133 
(App. Bd. June 9, 2004)). 
 
 Applicant was a mature adult when he completed his e-QIP in 2011. He knew, or 
should have known, of the importance of telling the truth to the Government when 
seeking a security clearance. He also had reason to know that his drug use and his 
illegal drug possession, purchase, and sale were substantial and would raise security 
concerns. Additionally, Applicant should have known that illegal drug use is criminal 
activity and his continued associations with known drug users cast doubt upon his 
reliability, judgment, and willingness to comply with rules and regulations. 
 
 When Applicant completed his security clearance application in 2011, he 
responded “yes” when asked if he had, in the last 7 years, used illegal drugs. He 
admitted using marijuana one time in 2010, even though he had also used marijuana 
habitually and frequently on multiple occasions between 2004 and 2007. He answered 
“No” when asked if, in the last 7 years, he had ever possessed, purchased, or sold 
illegal drugs, even though he knew he had done so between 2004 and 2007. 
  
 
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 Applicant made no good-faith efforts to correct the falsifications in his e-QIP 
before being confronted with the facts. He did not claim that the falsifications occurred 
as a result of improper or inadequate advice of authorized personnel. His falsifications 
were neither minor nor infrequent. Instead, they cast doubt on Applicant’s reliability, 
trustworthiness, and good judgment.  
 
 After thoroughly reviewing the documentary evidence in this case, I conclude that 
Applicant used, possessed, purchased, and sold marijuana frequently over a significant 
period of time. I also conclude that his falsifications on his 2011 e-QIP were deliberate. 
Accordingly, none of the Guideline E mitigating conditions apply.  
 
 Whole-Person Concept 
 
 Under the whole-person concept, an 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.        
 
I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances raised by the written record in this case. Applicant has 
worked for his present employer since May 2011, and he has compiled a good work 
record. However, he has used, possessed, purchased, and sold illegal drugs for many 
years. His lack of candor in failing to reveal this information on his e-QIP raises serious 
concerns about his trustworthiness and reliability.  
 
Applicant failed to meet his burden of persuasion in mitigating the Government’s 
security concerns under the drug involvement and personal conduct adjudicative 
guidelines. Overall, the record evidence in this case leaves me with questions and 
doubts about Applicant’s eligibility and suitability for a security clearance. 
 
 
 
 
 
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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   
 
 Subparagraphs 1.a. - 1.c.:             Against Applicant 
 
 Subparagraph 1.d.:     For Applicant    
  
 Paragraph 2, Guideline E:   AGAINST APPLICANT 
 
 Subparagraphs 2.a - 2.c.:             Against 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. 
                                               
_____________________________ 
Joan Caton Anthony 
Administrative Judge