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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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)       ISCR Case No. 11-07400
)
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: Pro se
August 29, 2013
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Decision
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CEFOLA, Richard A., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP) on October 6, 2010.  On January 3, 2013, the Department of Defense (DOD)
issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines
H and E for 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. 
Applicant answered the SOR in writing on February 5, 2013, and requested a
hearing before an Administrative Judge.  DOHA received the request on February 7,
2013, and I received the case assignment on March 29, 2013.  DOHA issued a notice of
hearing on April 3, 2013, and I convened the hearing as scheduled on May 9, 2013.
The Government offered Exhibits (GXs) 1 through 5, which were received without
objection.  Applicant testified on his own behalf and submitted Exhibits (AppXs) A
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through C, which were received without objection.  DOHA received the transcript of the
hearing (TR) on May 20, 2013.  I granted Applicant’s request to keep the record open
until June 10, 2013, to submit additional matters.  On June 10, 2013, he submitted
Exhibits D and E, which were received without objection. The record closed on June 11,
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 certain facts relating to 21 U.S.C. 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.  The facts administratively noticed are set out in the Findings of
Fact, below. 
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in
Subparagraphs 1.a., and 1.b. of the SOR, without explanations.  He denied the factual
allegations in Subparagraph 2.a. of the SOR, with explanations.  He also provided
additional information to support his request for eligibility for a security clearance.
Guideline H - Drug Involvement & Guideline E - Personal Conduct
1.a., 1.b. and 2.a.  Applicant is 30 years of age.  (GX 3 at page 6.)  As a 21 year
old attending college in 2004, he used marijuana “about 20 or 30 times.”  (TR at page
26 lines 2~16.)  As a result, his “school performance went down. . . . So, then . . . [he]
just kind of stopped it.”  (TR at page 26 lines 14~18.)  Applicant then used marijuana
about five times until his last usage in March of 2010.  (TR at page 16 line 20 to page 29
line 14, at page 32 lines 12~22, at page 35 line 8 to page 36 line 14 and at page 44 line
9 to page 51 line 6.)
Applicant was granted a security clearance in about October of 2008.  (GX 2 at
page 15.)  He used marijuana twice in 2010, the last time, as stated above, was in
March of that year.  (TR at page 27 line 17 to page 31 line 2, and at page 43 line 21.)
Applicant has recently submitted a signed letter of intent with automatic revocation of
his clearance should he use any controlled substance.  (AppX E.)
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
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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
The security concern relating to the guideline for Drug Involvement is set out in
Paragraph 24:
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.
The guideline also notes several conditions that could raise security concerns.
Under Subparagraph 25(a), “any drug abuse” may be disqualifying.  In addition, “any
illegal drug use after being granted a security clearance” under Subparagraph 25(g)
may be disqualifying.  Here, Applicant used marijuana 25 to 35 times, and twice in 2010
after having been granted a security clearance.
These are countered, however, by the mitigating conditions found in
Subparagraphs 26(a) and 26(b).  Applicant’s “behavior happened so long ago, was so
infrequent . . . that it is unlikely to recur . . . .” Furthermore, he has shown “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.”  The
Applicant was last involved with any illegal substance more than three years ago.  He
has also signed a letter of intent not to abuse any drugs in the future.  I find his
statement of intent to be credible and sincere.
Guideline E - Personal Conduct
The security concern relating to the guideline for Personal Conduct is set out in
Paragraph 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.
The guideline notes several conditions that could raise security concerns.  Under
Subparagraph 16(d), “credible adverse information that is not explicitly covered by 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
that 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”  Here,
Applicant used marijuana on numerous occasions in contravention of the law.
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However, I find that countervailing Mitigating Condition 17(c) is applicable here, in that
“so much time has passed,” more than three years, “that it is unlikely to recur and does
not cast doubt on the individual’s reliability, trustworthiness, or good judgment.”
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 Subparagraph 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 Subparagraph 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 the unqualified support
of those who know him in the workplace.  (AppX C at pages 1~6).  The record evidence
leaves me without questions and doubts as to Applicant’s eligibility and suitability for a
security clearance.  For this reason, 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
Paragraph 2, Guideline E: For APPLICANT
Subparagraph 2.a.: For Applicant
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Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
Richard A. Cefola
Administrative Judge