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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 13-01142
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Catie E. Young, Esquire
May 20, 2014
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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 December 6, 2010.  On December 11, 2013, the Department of Defense
(DOD) issued a Statement of Reasons (SOR) detailing the security concerns under
Guideline H 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 acknowledged receipt of the SOR on January 6, 2014.  He answered
the SOR in writing through counsel on January 30, 2014, and requested a hearing
before an Administrative Judge.  The Defense Office of Hearings and Appeals (DOHA)
received the request soon thereafter, and I received the case assignment on March 19,
2014.  I granted Applicant’s request for a delay until the week of “21st-24th” of April
2014, in order for his counsel to be available.  DOHA issued a notice of hearing on
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March 31, 2014, and I convened the hearing as scheduled on April 22, 2014.  The
Government offered Exhibits (GXs) 1 and 2, which were received without objection.
Applicant testified on his own behalf, as did his fiancee, and submitted Exhibits (AppXs)
A through Q which were received without objection.  DOHA received the transcript of
the hearing (TR) on May 2, 2014.  I granted Applicant’s request to keep the record open
until May 7, 2014, to submit additional matters.  On April 30, 2014, he submitted signed
copies of AppXs E, G and H, and a supplement to AppX P, which were received without
objection.  The record closed on May 7, 2014.  Based upon a review of the pleadings,
exhibits, and testimony, eligibility for access to classified information is granted.
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in
Subparagraph 1.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
Applicant is a 28 year-old employee of a defense contractor.  (TR at page 21 line
13 to page 22 line 8, and GX 1 at page 6.)  He received a security clearance sometime
in 2011.  (TR at page 21 line 13 to page 22 line 8.)
1.a.  In August of 2013, Applicant and his fiancee were at a casino in Las Vegas,
Nevada.  He describes what happened in the following terms:
We met a couple at the Blackjack Table, and they invited us up [to their
room] to a party later that evening.  And later that evening, we went up
there and just to check it out and to see - - just to mingle and to have fun
in Vegas.  Then I guess during the party, someone had marijuana.  I don’t
know exactly who had it or brought it or when it was initially taken out and
shown to the party.  Then after that, it was passed around, and I regretfully
took a couple of puffs.  Not too long after that, we hung out a little bit
longer and just talked to a couple of people and then we went back to our
hotel room and went to sleep that night.  That was pretty much it.  (TR at
page 24 line 12 to page 25 line 2.)
This is the only time Applicant has ever used an illegal substance.  (TR at page
26 line 9 to page 27 line 17.)  His fiancee’s testimony corroborated that of Applicant,
and she also admitted to smoking the marijuana.  (TR at page 50 line 8 to page 57 line
23.)
Two weeks after this incident, Applicant verbally self-reported it to his security
officer.  (TR at page 29 line 6 to page 30 line 17, and page 40 line 5 to page 42 line 21.)
This is corroborated by his security officer.  (AppX P as supplemented.)  Applicant later
submitted the self-report in writing.  (AppX H.)  He also told his “brothers and sisters” of
his transgression.  (TR at page 32 line 1 to page 33 line 2.)  Furthermore, Applicant has
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submitted a signed statement of intent with automatic revocation should he “use illegal
drugs again.”  (AppX P at pages 1~2.)
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
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
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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
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, the
“illegal . . . purchase . . .” under Subparagraph 25(c), and “any illegal drug use after
being granted a security clearance” under Subparagraph 25(g) may be disqualifying.
Here, Applicant used marijuana once, in August of 2013, 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 under such
unusual circumstances 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.”  Applicant
used marijuana at a party in Las Vegas.  The only time he has ever used any illegal
substance.  He self-reported his transgression soon thereafter, and has signed a letter
of intent not to abuse any drugs in the future.  I find his statement of intent to be credible
and sincere.
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
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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.  Applicant has the unqualified support of
those who know him in the workplace.  (AppXs A~G.)  The record evidence leaves me
without questions or 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.
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
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
Richard A. Cefola
Administrative Judge