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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
                    )       ISCR Case No. 12-10889
                                                                     )
Applicant for Security Clearance                  )
Appearances
For Government: Alison O’Connell, Esq., Department Counsel
For Applicant: Pro se
                                                                            
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Decision
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LYNCH, Noreen, A., Administrative Judge:
The Department of Defense (DOD) issued Applicant a Statement of Reasons
(SOR) alleging security concerns arising under Guideline H (Drug Involvement) and
Guideline E (Personal Conduct). The SOR was dated September 10, 2013. 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 in
September 2006. 
Applicant timely answered the SOR and requested a hearing before an
administrative judge. The case was assigned to me on November 25, 2013. DOHA
issued a notice of hearing on December 11, 2013, scheduling the hearing for December
17, 2013. Government Exhibits (GX) 1 through 5 were admitted into evidence without
objection. Applicant Exhibits (AX)  A through C were admitted into evidence without
objection. Applicant testified and presented one witness. I held the record open for any
additional information that Applicant might provide. He submitted one document, which
was marked as AX D. DOHA received the transcript (Tr.) on December 27, 2013.
Applicant was suspended from the employment in February 2013 pending the outcome of the security      1
clearance process. He receives unemployment.
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Based on a review of the pleadings, testimony, and exhibits, eligibility for access to
classified information is denied.
Findings of Fact
In his answer to the SOR, Applicant admitted the factual allegations under
Guideline H (Drug Involvement) and Guideline E (Personal Conduct) with the exception
of SOR ¶¶ 2.c, 2.g, and 2.h.
Applicant is a 48-year-old network administrator for a defense contractor.  He is1
single and has no children. He served in the U.S. Army from February 1984 until July
1985 and was given a general discharge under Honorable conditions. (AX A) Applicant
completed trade school courses.  He has worked for his current employer since March
2012. (AX B) He believes that he had a security clearance while in the military. (Tr.19)
Applicant admitted using marijuana occasionally between 1979 and 2010. He
first used marijuana in high school in 1979. His last incident was in 2010, and Applicant
emphasized that it was an isolated incident. He was attending a holiday party at a
friend’s house and “had a couple of puffs.” (Tr. 12)   According to Applicant, before the
incident in 2010, it had been five years since his last use. He admitted that he led a
party-boy life style, but he wants to live a professional life and better his employment
opportunities. He never purchased the drug, but was provided the marijuana by friends.
He denies any illegal drug use from 2005 until 2010. (Tr. 13) He has no intention of
using illegal drugs in the future. (AX D) The death of Applicant’s mother and the closing
of his business in 2009 also influenced his choice to stop the use of marijuana. (Tr. 26) 
Applicant’s August 2012 Office of Personnel Management (OPM) interview noted
that Applicant responded that over the past five years he had smoked marijuana in
cigarette form perhaps two times a month. (GX 2) Applicant denies that it is an accurate
description of what he said at the interview. However, he did not correct that piece of
information. He stated that perhaps it was an oversight on his part. 
Personal Conduct
In December 2000, Applicant completed a Declaration for Federal Employment. 
In response to Question 7, he listed his military discharge as Honorable. He denies that
he deliberately falsified the application. (GX 5) His reasoning was that he believed it
was the same as an honorable discharge. He noted that it was called an
“administrative” discharge and that he was given an “administrative” discharge due to a
family hardship. He was emphatic that the two types were not dissimilar. At the hearing,
Applicant explained that he was under the impression that a general discharge under
honorable conditions is the same as an honorable discharge.  He also noted that he
could have asked to upgrade to an honorable discharge, but he did not see the point.
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In June 1985, Applicant received a non-judicial punishment for drunk on
duty/failure to obey a lawful order or regulation. He was sentenced to correctional
custody for 30 days and a forfeiture in pay. (GX 3) He admitted that he went to an
enlisted men’s club on post, which was restricted to him. He was there on field
exercises. He believes he was not drunk, but admitted that he had been drinking beer.
(Tr.27)
Applicant told his command that he wanted to go home as his father was quite ill
and possibly dying. According to Applicant, a process was started and he was granted
an “administrative” discharge. However, when he received the non-judicial punishment,
the discharge became a general discharge under honorable conditions. (Tr. 31, AX C )
In October 1985, Applicant was charged and arrested for unlawful possession-
controlled dangerous substance (CDS). Applicant’s vehicle was searched and a
canister with marijuana residue was found. Due to an illegal search, Applicant was
found not guilty of the crime. (GX 4)  
In June 1989, Applicant was charged with concealing a deadly weapon. He was
convicted of the offense and sentenced to two months confinement, suspended, and
one year probation. Applicant was delivering pizza on a military base. A random search
of his vehicle was conducted and a wooden nightstick was found by the front seat of the
car. Applicant denies carrying any firearm. He admits that he had the nightstick as he
would use it for self defense in case he was robbed. He pled not guilty to the charge but
was found guilty.(GX 4)
Applicant was stopped the same evening in June 1989 and charged with driving
under the influence. He left a bar with a friend who had been drinking with him.
Applicant did not come to a full stop at a yield sign and was pulled over by the police.
Applicant completed probation successfully. He attended alcohol abuse classes on his
own volition. This incident is his only alcohol-related charge. Applicant stated that he no
longer drinks alcohol. (GX 2)
Applicant denies the 1990 battery charge. At first he could not recollect any
incident. He stated that he has never been found guilty of battery. At the hearing,
Applicant explained that he had a verbal altercation with a woman about a situation
involving his mother. The woman’s boyfriend bumped chests with Applicant. Applicant
pushed him back and the fellow fell. At that point, they both swung at each other. The
police were called. Applicant recalls that he was charged, but at court, the charge was
dismissed because the complainant did not appear. (Tr. 46) 
In January 2011, Applicant admits that he left his job of approximately eight
months because of conditions that were not favorable to him. He stated that he was
threatened by another employee. A manager initiated an incident report. Applicant was
given a reprimand. Applicant refused to sign the reprimand and never returned to work.
(Tr. 48) He noted that it was not a career-oriented job but just a job to pay his bills.
(Answer to SOR) 
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In December 2011, Applicant was terminated from his employment. He told his
manager that he could not report to work the next day. Applicant explained that he had
to meet a friend who would give him money to pay his water bill. (Tr. 50) It was
imperative that he meet the friend because Applicant’s water had been shut off and he
did not have the money to pay the bill. When the friend did not meet him that day,
Applicant  stated that he received a telephone call from his manager and was ordered
to come in to work by a certain time or he would be fired. Applicant advised the
manager that he could not be there by that time. Applicant noted that he had been
working at the job for a few weeks and had not received his first pay check. Again, he
stated that it was not a career-choice job, but one to pay his bills. 
 Applicant provided a  letter of recommendation from a colleague. who describes
him as a model employee in the company. (AX B) He recommends him for a security
clearance. He testified that he has known Applicant since 2000, and is aware of the
SOR allegations. He recalls that Applicant was always passionate about his work in
information technology (IT). 
Policies
When evaluating an applicant’s suitability for a security clearance, an
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. These guidelines are not inflexible
rules of law. Instead, recognizing the complexities of human behavior, they are applied
in conjunction with the factors listed in the adjudicative process. An administrative
judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision.
Under AG ¶ 2(c), this process is a conscientious scrutiny of a number of variables
known as the “whole-person concept.” An 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. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
The Government must present evidence to establish controverted facts alleged
in the SOR. An 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 burden of proof is something less than a preponderance
of evidence. The ultimate burden of persuasion is on the applicant.   
A person seeking access to classified information enters into a fiduciary
relationship with the Government based on trust and confidence. This relationship
transcends normal duty hours and endures throughout off-duty hours. The Government
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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 of 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.” “The clearly consistent standard indicates that security clearance
determinations should err, if they must, on the side of denials.” Any reasonable doubt
about whether an applicant should be allowed access to sensitive information must be
resolved in favor of protecting such information. The decision to deny an individual a
security clearance does not necessarily reflect badly on an applicant’s character. It is
merely an indication that the applicant has not met the strict guidelines the President
and the Secretary of Defense established for issuing a clearance.
Analysis
Guideline H, Drug Involvement
AG ¶ 24 expresses the security concern pertaining to 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.
(a) Drugs are defined as mood and behavior altering substances, and
include:
(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;
(b) drug abuse is the illegal use of a drug or use of a legal drug in a
manner that deviates from approved medical direction.
AG ¶ 25 describes conditions that could raise a security concern and may be
disqualifying:
(a) any drug abuse (see above definition); 
(b) testing positive for illegal drug use;
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(c) illegal drug possession, including cultivation, processing, manufacture,
purchase, sale, or distribution; or possession of drug paraphernalia;
(d) diagnosis by a duly qualified medical professional (e.g., physician,
clinical psychologist, or psychiatrist) of drug abuse or drug dependence;
(e) evaluation of drug abuse or drug dependence by a licensed clinical
social worker who, is a staff member of a recognized drug treatment
program;
(f) failure to successfully complete a drug treatment program prescribed
by a duly qualified medical professional;
(g) any illegal drug use after being granted a security clearance; and,
(h) expressed intent to continue illegal drug use, or failure to clearly and
convincingly commit to discontinue drug use.
Applicant admitted his use of marijuana, an illegal drug, between 1979 and 2010.
He also admitted that he last used marijuana in 2010. AG ¶¶ 25(a) and 25(c), apply. 
AG ¶ 26 provides conditions that could mitigate security concerns:
(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;
(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 were used; 
(3) an appropriate period of abstinence; and,
(4) a signed statement of intent with automatic revocation of
clearance for any violation;
(c) abuse of prescription drugs was after a severe or prolonged illness
during which these drugs were prescribed, and abuse has since ended;
and
(d) 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.
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Applicant’s last use of any illegal substance was in June 2010. He  stated
that he has not used any illegal drugs since that time. Applicant also submitted a
signed letter of intent not to use illegal drugs in the future. He stated that he has
no intention of using any illegal drugs. He has a long history of marijuana use. A
large part of his use was stopped in 2005, but he again used it in 2010. Granted,
he has not used any illegal drug since 2010, but given his pattern, the drug use
does not reflect good judgment, reliability, and trustworthiness to sufficiently
mitigate the security concerns under this guideline.  None of the mitigating
factors fully apply.
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
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.
AG ¶ 16 describes conditions that could raise a security concern and may be
disqualifying:
(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;
(b) deliberately providing false or misleading information concerning
relevant facts to an employer, investigator, security official, competent
medical authority, or other official government representative;
(c) credible adverse information in several adjudicative issue areas that is
not sufficient for an adverse determination under any other single
guideline, but which, when considered as a whole, 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;
(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 that the
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person may not properly safeguard protected information. This includes
but is not limited to consideration of:
(1) untrustworthy or unreliable behavior to include breach of
client confidentiality, release of proprietary information,
unauthorized release of sensitive corporate or other
government protected information;
(2) disruptive, violent, or other inappropriate behavior in the
workplace; 
(3) a pattern of dishonesty or rule violations; and
(4) evidence of significant misuse of Government or other
employer's time or resources.
(e) personal conduct, or concealment of information about one's conduct,
that creates a vulnerability to exploitation, manipulation, or duress, such
as (1) engaging in activities which, if known, may affect the person's
personal, professional, or community standing, or (2) while in another
country, engaging in any activity that is illegal in that country or that is
legal in that country but illegal in the United States and may serve as a
basis for exploitation or pressure by the foreign security or intelligence
service or other group;
(f) violation of a written or recorded commitment made by the individual to
the employer as a condition of employment; and
(g) association with persons involved in criminal activity. 
Applicant described his discharge on a government form as “honorable” rather
than “general under honorable conditions”. He believed that they were basically the
same. He produced his record of service form (DD214) and did not hide the
circumstances in the case. The Government did not prove that he intentionally falsified
the official document. 
Applicant has a pattern of incidents involving criminal drug charges beginning in
1985. Although the last incident was in 2010, Applicant has a pattern of unreliable
behavior. The incidents with his loss of employment do not persuade me that has good
judgment. His misconduct and failure to follow rules troubles me. This spans a period of
time since 1985. AG ¶¶ 16(c), and 16(d)(3) apply. His conduct shows a pattern of
untrustworthiness.  
AG ¶ 17 provides conditions that could mitigate security concerns:
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
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(b) the refusal or failure to cooperate, omission, or concealment was
caused or significantly contributed to by improper or inadequate advice of
authorized personnel or legal counsel advising or instructing the individual
specifically concerning the security clearance process. Upon being made
aware of the requirement to cooperate or provide the information, the
individual cooperated fully and truthfully;
(c) the offense is 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;
(d) the individual has acknowledged the behavior and obtained counseling
to change the behavior or taken other positive steps to alleviate the
stressors, circumstances, or factors that caused untrustworthy, unreliable,
or other inappropriate behavior, and such behavior is unlikely to recur;
(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress;
(f) the information was unsubstantiated or from a source of questionable
reliability; and
(g) association with persons involved in criminal activity has ceased or
occurs under circumstances that do not cast doubt upon the individual's
reliability, trustworthiness, judgment, or willingness to comply with rules
and regulations.
Applicant’s behaviors were not minor. He has not presented any other
information to persuade me that he has mitigated personal conduct concerns regarding
his conduct. I have doubts about his judgment, trustworthiness, and reliability. After
considering the mitigating conditions outlined in AG ¶ 17, I conclude Applicant has not
mitigated the security concern under personal conduct or drug use. 
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 an applicant’s
conduct and all the 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
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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. As noted above, the
ultimate burden of persuasion is on the applicant seeking a security clearance. 
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case, as well as the whole-person factors.
Applicant is a 48-year-old professional who has a pattern of illegal drug use that spans
a period from 1979 until 2010. Granted, the use was sporadic after 2005. However, this
is a long history of use. Applicant had criminal charges from 1985 until 1990. He has
not had any criminal charges since then, but again, this shows a pattern of
inappropriate conduct. He had two incidents that resulted in termination from
employment in 2011. He shows poor judgment. 
Applicant did not falsify or intentionally mislead the Government in 2000 by listing
his discharge as honorable. He explained the reasoning at the hearing. While Applicant
has no new criminal charges and an abstinence of three years with any illegal activity,
the lengthy pattern of misconduct gives me doubts about his ability to handle classified
information. I have doubts about his judgment. Any doubts must be resolved in favor of
the Government. Applicant has not met his burden in this case. He has not mitigated
the security concerns under drug use and personal conduct. Clearance is denied.
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
Subparagraph 1.a: Against Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraphs 2a.-2g.: Against Applicant
Subparagraph 2.h: For Applicant
Subparagraphs 1.i-j: Against Applicant
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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 a security clearance.
Clearance is denied. 
                                                     
NOREEN A. LYNCH.
Administrative Judge