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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
---------------------- )       ISCR Case No. 13-00788
)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Esquire, Department Counsel
For Applicant: Barry M. Sax, Esquire
February 14, 2014
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DECISION
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ROSS, Wilford H., Administrative Judge:
Applicant submitted her most recent Electronic Questionnaire for Investigation
Processing (e-QIP) on October 31, 2012. (Government Exhibit 1.) On September 9,
2013, the Department of Defense issued a Statement of Reasons (SOR) detailing the
security concerns under Guidelines H (Drug Involvement), G (Alcohol Consumption),
and E (Personal Conduct) concerning Applicant. The action was taken under Executive
Order (EO) 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 for SORs issued after September 1, 2006. 
 
Applicant answered the SOR in writing on October 4, 2013 (Answer), and
requested a  hearing before an administrative judge. Department Counsel was prepared
to proceed on November 4, 2013. This case was assigned to me on November 19,
2013. The Defense Office of Hearings and Appeals (DOHA) issued notices of hearing
on November 20, and December 2, 2013. I convened the hearing as scheduled on
December 17, 2013. The Government offered Government Exhibits 1 through 4, which
Government Exhibit 3 is the actual affidavit, signed and initialed by Applicant. A discussion between Applicant1
and Department Counsel concerning how this document was prepared is found in the Transcript at pages 132-
134.
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were admitted without objection. Applicant submitted Applicant Exhibits A through O,
which were admitted without objection, called one witness, and testified on her own
behalf. Applicant asked that the record remain open for the receipt of additional
documents. DOHA received the transcript of the hearing (Tr.) on January 2, 2014.
Applicant timely submitted Applicant Exhibit P, which was admitted without objection.
Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to
classified information is denied.
Findings of Fact
Applicant is 54, and divorced. She is employed by a defense contractor as a
contracts manager for a major defense program, and seeks to retain a security
clearance in connection with her employment. Applicant admitted allegations 1.b, 1.c,
2.a, and 3.b of the SOR, with reservations. She admitted in part and denied in part
allegation 1.a. She denied, or I view her responses as denials, allegations 3.a, 3.c, 3.d,
and 3.e. Applicant’s admissions are incorporated into the following findings of fact.
Paragraph 1 (Guideline H, Drug Involvement)
The Government alleges in this paragraph that Applicant is ineligible for
clearance because she used illegal drugs.
1.a. Applicant admits using marijuana in the past, but denies that the dates
alleged in the SOR are correct. She admitted in her testimony using marijuana two or
three times in high school, then not using it again until 2010. According to Applicant she
used marijuana three times in 2010 - once during the summer, once at Thanksgiving
and last around Christmas 2010 when on a cruise. Applicant insists that she took at
most only one puff of marijuana on each occasion. (Government Exhibit 3 at 4-6; Tr. 72-
81, 106-114.)
Applicant further stated that she was undergoing a period of emotional difficulty
in 2010 related to the recent deaths of both of her parents within six months of each
other, in November 2009 and May 2010. In addition, Applicant stated that her own
health issues, which began in 2008, and family problems also contributed to her
emotional state. She stated to a DoD investigator, “I was going through a tough time in
my life after the death of both my parents and I just wanted the pain to go away and I
was told that smoking the marijuana would relax me, which it did.” (Answer at 1-2;
Government Exhibit 3 at 5-6.)   1
1.b. Applicant admits using marijuana after being granted a Secret security
clearance in 2000 and again in 2008. (Tr. 81-84, 114.)
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1.c. Applicant admits that she used marijuana after preparing and certifying a
Questionnaire for National Security Positions on October 25, 2010. (Tr. 84-85.)
Paragraph 2 (Guideline G, Alcohol Consumption)
The Government alleges in this paragraph that Applicant is ineligible for
clearance because she uses intoxicants to excess.
2.a. Applicant admits that she may have used alcohol to excess at the time she
used marijuana in November and December 2010. As stated, this was during the period
after her parents both died within six months of each other. (Tr. 85-87.)
Paragraph 3 (Guideline E - Personal Conduct)
The Government alleges in this paragraph that Applicant is ineligible for
clearance because she has made false statements to the Department of Defense during
the clearance screening process. Applicant admits that she had false answers on her
questionnaire, but denied there was an intent to deceive the Government.
3.a. Applicant filled out a Government questionnaire on October 25, 2010.
(Government Exhibit 2.) Question 20c of that questionnaire required Applicant to set
forth the foreign countries she had visited within the past seven years. The SOR alleges
that Applicant falsified the questionnaire because she did not list a trip to Mexico, which
she made in 2010. In fact, Applicant’s trip occurred in December 2010, after the date
the questionnaire was certified by Applicant. (Applicant Exhibit P; Tr. 135-138.) This
allegation is found for Applicant.
3.b. Applicant responded, “Yes,” to Question 23a of the same questionnaire,
admitting that she had illegally used controlled substances within seven years of the
date of the questionnaire. The question also contains a section for Applicants to set
forth their drug use in detail. Applicant left this section blank, even though, by her own
account, she had used marijuana within three months of filling out the questionnaire.
Applicant states that she did not intentionally falsify her answer. Rather, she
states that she either misread the question, or was not properly prompted by a “drop-
down” menu on the computerized form, or she was rushing through the process. She
further stated, “It wasn’t deliberate by any means to bypass that section of the SF-86
and not give you any detail. If I didn’t want to give you any detail, I wouldn’t have
answered ‘yes’ intentionally.” (Answer at 4; Tr. 90-91.) 
The strength of these arguments, however, is undercut by a look at the document
itself. Government Exhibit 2 shows at least two places where Applicant hand-wrote
additional information on the final signed copy of the Questionnaire, specifically her date
of birth at question 2, and the birthday of one of her daughters at question 18. So, a
reasonable inference can be drawn that she read the questionnaire closely at the time
she signed it.
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3.c. Applicant answered, “No,” to Question 23b of the same questionnaire,
which asks, “Have you EVER illegally used a controlled substance while possessing a
security clearance; while employed as a law enforcement officer, prosecutor, or
courtroom official; or while in a position directly and immediately affecting public
safety?” (Emphasis in original.) This was a false answer to a relevant question about
her drug use, since she had used marijuana in at least in July 2010, three months
before the questionnaire was filled out, and at a time she held a security clearance.
Applicant states that she was confused by the question and read it as asking
whether she had illegally used controlled substances while possessing a security
clearance, WHILE AT THE SAME TIME being employed as a law enforcement officer,
prosecutor, or courtroom official. In other words, she read the question as if the semi-
colon between the first two clauses of the question did not exist. (Answer at 4; Tr. 91-
92, 126-130.) 
When questioned by me concerning this obviously strained reading of the
question Applicant continued to insist that it was true. At this point she also stated that
she is slightly dyslexic. Finally, Applicant stated, “[T]here is no gain for me to answer
this question wrong purposely.” (Tr. 138-140.) The credibility and validity of these
arguments is discussed further, below.
3.d. Applicant filled out a subsequent Government questionnaire on October
31, 2012. (Government Exhibit 1.) Question 23 again asks Applicant to set forth her
illegal use of controlled substances within the last seven years. Applicant discussed in
great detail the three drug use events in 2010 that she has consistently admitted.
The Government alleges that Applicant falsified this question because she did
not set forth her entire drug abuse history. To find that Applicant did not falsify this
application, I must find that she was truthful in stating the full extent of her marijuana
usage. After considering all the evidence, I do not find her to be credible or truthful
about the true extent of her drug use, as discussed below.
3.e. The Government alleges that Applicant falsified material facts during an
interview conducted by an authorized investigator for the Department of Defense in
December 2012. Further, the allegation is that Applicant also falsified a signed affidavit
presented to the same investigator. I find validity in this allegation.
In reviewing the available evidence concerning her use of drugs, there are
several contradictory statements. Applicant has maintained that she used marijuana
three times in 2010, and that her use was, at most, an attempt to smoke marijuana and
not a very successful one at that. (Tr. 78-79.) Yet, in Government Exhibit 1, she also
states the following at page 31, “During a very fragile time in my life I used very poor
judgment and smoked marijuana a few times. There is no pattern of frequency because
this is not typical of my behavior. The nature of my use on these few occasion[s] was
one of desperation during a very painful period in my life and was isolated to this period
of my life.” Further, on page 32, “I have learned not to self medicate with any kind of
drug and I no longer need to, I am all to aware of what harm [I] have caused myself and
Applicant Exhibit A is letter dated May 31, 2011, from the Employee Assistance Program Consultant for2
Applicant’s employer. They met 14 times over three years from December 19, 2007. He states that their time
together was primarily concerned with one of Applicant’s children and a work conflict issue in 2008. There is
no statement that Applicant spoke with him about her emotional issues connected to her parents’ deaths, or
her use of marijuana.
Applicant Exhibits B, D, and F are communications from several of Applicant’s friends. They are concerned3
with the interviews the writers had with investigators from the Department of Defense. I have examined and
considered all three of them in making my Findings of Fact.
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I am determined not to ever again fall into the trap.”  I have examined all available2
evidence and am unable to make a specific finding as to the true nature and extent of
Applicant’s drug use.3
Mitigation
Applicant is a highly respected and successful professional. Applicant’s
supervisor, the manager of contracts and property for her employer, testified extensively
on her behalf. His  comments were very laudatory. (Tr. 26-66.) 
She also submitted letters from co-workers and superiors. She is described as a
person who “has a reputation of being [a] thorough and hard working person with a high
level of integrity.” The writers all appear to have some knowledge of the specific
allegations in the SOR, and indicate that they believe it to be an aberration. (Applicant
Exhibits C, E, G through N.)
Applicant also submitted various performance appraisals and performance
awards from her employer. (Applicant Exhibit O.) They show her to be a talented person
with management skills.
Policies
Security clearance decisions are not made in a vacuum. When evaluating an
applicant’s suitability for a security clearance, the administrative judge must consider
the adjudicative guidelines. In addition to brief introductory explanations for each
guideline, the adjudicative guidelines list potentially disqualifying conditions and
mitigating conditions, which are to be used as appropriate 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 AG ¶ 2(a) describing 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. In addition, the administrative judge may also rely on
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his or her own common sense, as well as knowledge of the law, human nature, and the
ways of the world, in making a reasoned decision.
The protection of the national security is the paramount consideration. AG ¶ 2(b)
requires that, “Any 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 ¶ 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, or
mitigate facts admitted by the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance 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. Security clearance decisions include, by
necessity, consideration of the possible risk that 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.
 
Finally, as emphasized in Section 7 of Executive Order 10865, “Any
determination under this order adverse to an applicant shall be a determination 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
Paragraph 1 (Guideline H - Drug Involvement)
The security concern relating to the guideline for Drug Involvement is set out in
AG & 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. 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
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cannabis, depressants, narcotics, stimulants, and hallucinogens), and (2)
inhalants and other similar substances; Drug abuse is the illegal use of a
drug or use of a legal drug in a manner that deviates from approved
medical direction.
I have considered the disqualifying conditions under AG ¶ 25 and especially
considered the following:  
(a) any drug abuse; and
(g) any illegal drug use after being granted a security clearance.
 Applicant admits using marijuana three times in 2010. She used marijuana while
holding a security clearance, including within a month after certifying a Government
questionnaire that asked about her drug use. As stated above, I am not convinced that
Applicant’s statements as to the extent and nature of her drug use are credible or
correct. She states that she would merely hold the marijuana cigarette or pipe to her
mouth and either not inhale, or attempt to do so unsuccessfully. However, she also
states that she was using marijuana to self medicate, and that it’s use would relax her.
These are contradictory statements and I cannot find between them.
I have studied all of the mitigating conditions under AG ¶ 26 and especially
considered the following: 
(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 were used; (3) an appropriate
period of abstinence; (4) a signed statement of intent with automatic
revocation of clearance for any violation. 
Applicant offered insufficient evidence that would support mitigation under AG ¶¶
26 (a), or (b). Under normal circumstances three years of abstinence could be enough.
However, as stated, I remain uncertain as to the actual extent of Applicant’s drug use
due to her inconsistent description of it. Without that certainty, I cannot find that
recurrence is unlikely, or that her conduct no longer casts doubt on her reliability,
trustworthiness, or judgment. Paragraph 1 is found against Applicant.
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Paragraph 2 (Guideline G - Alcohol Consumption)
The security concern relating to the guideline for Alcohol Consumption is set out
in AG & 21:      
Excessive alcohol consumption often leads to the exercise of questionable
judgment or the failure to control impulses, and can raise questions about
an individual’s reliability and trustworthiness.
Applicant admitted that she used alcohol while using marijuana in November and
December 2010. Applicant denies that she has an alcohol problem, and there is no
other evidence in the record to support this allegation.
The following disqualifying condition minimally applies to this case under AG ¶
22:
(a) alcohol-related incidents away from work, such as driving while under
the influence, child or spouse abuse, disturbing the peace, or other
incidents of concern, regardless of whether the individual is diagnosed as
an alcohol abuser or alcohol dependent. 
I have examined the potential mitigating conditions under this paragraph and find
that one of them applies under AG ¶ 23:
(a) so much time has passed, or the behavior was so infrequent, or it
happened under such unusual circumstances that it is unlikely to recur or
does not cast doubt on the individual’s current reliability, trustworthiness or
good judgment.
In this case Applicant admits to two incidents of possibly drinking to excess,
which may have had an impact on her use of marijuana. Under the particular
circumstances of this case, the evidence is insufficient to show that she has an alcohol
problem. Paragraph 2 is found for Applicant.
Paragraph 3 (Guideline E - Personal Conduct)
The security concern relating to Personal Conduct is set out in AG ¶ 15:
Conduct involving questionable judgment, lack of candor,
dishonesty or unwillingness to comply with rules or 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.
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I have examined the disqualifying conditions under AG ¶ 16 and especially
considered the following:  
(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
(b) deliberately providing false or misleading information concerning
relevant facts to an employer, investigator, security official, competent
medical authority, or other government representative.
The following mitigating condition under AG ¶ 17 may apply to the facts of this
case:
(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.
In order to determine whether Applicant was truthful in her interview, affidavit,
and questionnaires, two separate but interlinked aspects of the case must be discussed.
First, was Applicant truthful in setting forth the full extent of her drug use? Second, does
her explanation as to how she filled out Government Exhibit 2, the 2010 questionnaire,
make sense? In the following discussion it is also important to keep in mind that
Applicant has the burdens of proof and persuasion.
Concerning Applicant’s drug use, as discussed in detail above, I simply am
unable to make a finding that her statements are entirely true. I will not restate my
points here.
Next, Applicant’s statements concerning how she filled out the questionnaire in
2010, both with regards to not stating when and where she used marijuana and denying
using it while holding a security clearance, have been considered by me and found
wanting. Applicant is obviously a person of above average intelligence, who is intimately
involved with the written word in her job. Particularly with regards to question 23b, it is
simply not credible for her to argue that she read that question in a way that is so totally
at odds with a plain reading of it. That being the case, it is not possible to find that she
was truthful in her 2012 questionnaire or during the interview with the investigator.
It may seem unduly harsh to find against Applicant with regards to drug use that
is arguably very minor, and what can be seen as no more than errors of concentration
on the questionnaire. However, it is Applicant’s burden to mitigate the security
significance of the conduct. When someone such as Applicant continually denies that
she has engaged in the conduct, and basically uses tortured logic to support her
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argument, it is not reasonable for me to say at the present time that she is eligible for a
security clearance.
As stated above, allegation 3.a is found for Applicant. With that exception,
Paragraph 3 is found against Applicant.
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 applicant’s
conduct and all the circumstances. 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. 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.      
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. In a nutshell, the Government
expects and requires applicants to be truthful and accurate in their communications with
it, especially concerning the use illegal substances. After reviewing all the evidence
under the clearly consistent standard, I cannot find that Applicant has been truthful and
accurate with the Government, or with me. Under AG ¶ 2(a)(3), Applicant’s conduct is
recent. Based on the state of the record, I cannot find that there have been permanent
behavioral changes under AG ¶ 2(a)(6). Accordingly, at the present time, I find that
there is the potential for pressure, coercion, exploitation, or duress (AG ¶ 2(a)(8)), and
that there is an unacceptable likelihood of recurrence (AG ¶ 2(a)(9)). 
Overall, the record evidence leaves me with questions and doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant has not mitigated the security concerns arising from her drug use,
and personal conduct at this time. 
On balance, it is concluded that Applicant has not successfully overcome the
Government's case opposing her request for a DoD security clearance. Accordingly, the
evidence supports a finding against Applicant as to the factual and conclusionary
allegations expressed in Paragraphs 1, and 3 of the Government's Statement of
Reasons. As stated above, Paragraph 2 is found for Applicant.
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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
Subparagraph 1.a.: Against Applicant
Subparagraph 1.b.: Against Applicant
Subparagraph 1.c.: Against Applicant
Paragraph 2, Guideline G: FOR APPLICANT
Subparagraph 2.a.: For Applicant
Paragraph 3, Guideline E: AGAINST APPLICANT
Subparagraph 3.a.: For Applicant
Subparagraph 3.b.: Against Applicant
Subparagraph 3.c.: Against Applicant
Subparagraph 3.d.: Against Applicant
Subparagraph 3.e.: 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.
                                              
WILFORD H. ROSS
Administrative Judge