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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
----------------------- )       ISCR Case No. 14-00013
)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Esquire, Department Counsel
For Applicant: Pro se
June 30, 2014
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DECISION
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ROSS, Wilford H., Administrative Judge:
Applicant submitted his Electronic Questionnaire for Investigation Processing (e-
QIP) on August 14, 2013. (Government Exhibit 1.) On February 20, 2014, the
Department of Defense issued a Statement of Reasons (SOR) detailing the security
concerns under Guidelines H (Drug Involvement), E (Personal Conduct), and F
(Financial Considerations) 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 March 3, 2014 (Answer), and
requested a decision without a hearing by an administrative judge. On April 15, 2014,
pursuant to Paragraph E.3.1.7 of Enclosure 3 of the Directive Department Counsel
requested that this case be heard by an administrative judge. Department Counsel was
prepared to proceed on April 29, 2014. This case was assigned to me on May 2, 2014.
The Defense Office of Hearings and Appeals (DOHA) issued a notice of hearing on May
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6, 2014. I convened the hearing as scheduled on May 22, 2014. The Government
offered Government Exhibits 1 through 5, which were admitted without objection.
Applicant submitted Applicant Exhibits A through C, which were admitted without
objection, and testified on his own behalf. Applicant asked that the record remain open
for the receipt of additional documents. DOHA received the transcript of the hearing
(Tr.) on May 28, 2014. Applicant timely submitted Applicant Exhibits D and E, which
were 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 34, and single. He has been employed by a defense contractor since
August 2013 and seeks to obtain a security clearance in connection with his
employment. (Government Exhibit 1 at Section 13A.) Applicant admitted allegations 1,a,
1.b, 3.a, and 3.b of the SOR, with explanations. He denied allegations 2.a, and 2.b.
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 he used illegal drugs.
1.a and 1.b. Applicant admits using and purchasing marijuana in 2012 and 2013,
but denies that his use and purchase were illegal. In 2012 Applicant was in college. He
began having issues sleeping in April or May of that year. A friend suggested that
Applicant try marijuana and gave him some at that time. Applicant used the marijuana
he was given at least once and found that it helped him sleep. (Tr. 33-34.)
Applicant lives in a state where the possession and use of medical marijuana is
legal under state law with a doctor’s written permission. In September 2012 Applicant
went to a clinic, paid a fee, was evaluated, and received a medical marijuana card valid
for one year. The card expired on September 19, 2013. (Applicant Exhibit B.) While the
procedure was legal, Applicant expressed the belief that the entire experience was “iffy.”
(Tr. 34-38.)
Once Applicant had the card he purchased marijuana from a legal medical
marijuana dispensary. Applicant states that he used marijuana once or twice a week
from September 2012 to approximately May 2013, about the time he finished school
and was looking for a job. (Tr. 38-41, 45.)
Paragraph 2 (Guideline E - Personal Conduct)
The Government alleges in this paragraph that Applicant is ineligible for
clearance because he has made false statements to the Department of Defense during
the clearance screening process.
Internal Revenue Service, Publication 17 (2013)  Your Federal Income Tax, 1 http://www.irs.gov/publications/
p17/ch01.html#en_US_2013_ publink1000170407 (accessed June 26, 2014).
Yahoo, Tax - Need You File a Tax Return for Your 2010 Income? 2 http://voices.yahoo.com/tax-file-tax-return-
2010-income-7682566.html?cat=3 (January 23, 2011).
Jackson Hewitt Tax Service, What are the 2011 minimum filing requirements? https://jacksonhewitt3
.custhelp.com/app/answers/detail/a_id/2756/~/what-are-the-2011-minimum-filing-requirements%3F (updated
December 27, 2013).
Jackson Hewitt Tax Service, What are the 2012 minimum filing requirements? https://jacksonhewitt4
.custhelp.com/app/answers/detail/a_id/2756/~/what-are-the-2011-minimum-filing-requirements%3F 
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2.a. Applicant filled out a Government questionnaire on August 14, 2013.
(Government Exhibit 1.) Section 23 of that questionnaire asked Applicant, “In the last
seven (7) years, have you illegally used any drugs or controlled substances.”
(Government Exhibit 1.) (Emphasis is original.) Applicant answered, “No.”
Applicant maintains that he did not have to answer this question, “Yes,” because
he had a medical marijuana card, which made his use legal in his state. However,
Applicant acknowledged that Federal law continues to make marijuana use illegal. (Tr.
42-43.) In addition, as stated above, Applicant admits using marijuana given to him by a
friend in 2012. This usage, before the time Applicant had a medical marijuana card,
even if only one time, was required to be reported. 
2.b. Section 23 of the same questionnaire also asked Applicant, “In the last
seven (7) years, have you been involved in the illegal purchase, manufacture,
cultivation, trafficking, production, transfer, shipping, receiving, handling or sale of any
drug or controlled substance?” (Government Exhibit 1.) (Emphasis in original.) Applicant
again answered, “No.”
As before, Applicant maintains that he did not have to answer this question,
“Yes,” because he had a medical marijuana card, which made purchases from
authorized dispensaries legal in his state. However, once again, Federal law prohibited
transfer and purchase of marijuana. In addition, Applicant was given marijuana by a
friend in 2012. This transfer and handling, even one time, came under the rubric of this
question and was required to be reported. 
Paragraph 3 (Guideline F - Financial Considerations)
3.a Applicant did not file his Federal income tax returns for tax years 2010,
2011, and 2012. During those years Applicant was a full-time student and did not have
any income at all. He believed that because he did not have any income he was not
required to file returns for those years. (Tr. 48-52, 55-59.) He is correct. Only people
whose gross income is over a certain figure are required to file returns.  In 2010 the1
figure was $9,350;  the figure in 2011 was $9,500;  and in 2012 $9,750.  However, in2 3 4
order to receive his Earned Income Tax Credit, the Applicant has now prepared tax
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returns for 2010, 2011 and 2012. (Applicant Exhibit D.) This allegation is found for
Applicant.
3.b Applicant had a state tax lien filed against him for the 2007 tax year. This
was due to an administrative oversight on Applicant’s part. He has since paid his back
taxes and the lien has been released. (Applicant’s Exhibits A and C; Tr. 46-48.) This
allegation is found for Applicant.
Mitigation
Applicant submitted an email from his direct supervisor. This person has worked
with Applicant since August 2013. He states that Applicant “seems to be very reliable
and trustworthy,” and that Applicant can be “a valuable and trusted asset.” He
recommends that Applicant receive a security clearance. (Applicant Exhibit E.)
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
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
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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
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
(c) illegal drug possession, including cultivation, processing, manufacture,
purchase, sale, or distribution; or possession of drug paraphernalia.
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 Applicant admits using marijuana in 2012 and 2013. It appears that most of this
use occurred in the context of Applicant having and using a physician-issued, state-
authorized medical marijuana card. However, Applicant did not have this card when he
began using marijuana in April or May 2012, after he was given marijuana by a friend.
Moreover, Applicant acknowledged that he knew the purchase, possession, and use of
marijuana was criminally prohibited by Federal law throughout this period. Both of these
disqualifying conditions apply.
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). Applicant’s marijuana use ended approximately a year ago. Whether it
was legal under state law or not, marijuana use and possession continues to be illegal
under Federal law. While Applicant stated that he did not intend to use marijuana in the
future, it is simply too soon to find that he has mitigated this allegation. Paragraph 1 is
found against Applicant.
Paragraph 2 (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.
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
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qualifications, award benefits or status, determine security clearance
eligibility or trustworthiness, or award fiduciary responsibilities.
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.
Applicant is an intelligent young man. He knew at the time he completed the
questionnaire that his possession and use of marijuana also included the marijuana
given to him by a friend before he had a medical marijuana card. Under any reading of
the question those facts needed to be revealed. Under the circumstances, particularly
given the time of use and when he filled out the questionnaire, the offense cannot be
seen as minor. It also goes without saying that Applicant was also required to tell the
Government about his drug use with a medical marijuana card, which was still illegal
under Federal law. Paragraph 2 is found against Applicant.
Paragraph 3 (Guideline F - Financial Considerations)
As discussed above, there is no current security significance to the allegations
under this paragraph. Paragraph 3 is found for 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
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it, especially concerning the use of 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. In addition, his use of drugs in 2012 and 2013 cannot be
mitigated at this time. 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 yet mitigated the security concerns arising from his drug
use, and personal conduct. 
On balance, it is concluded that Applicant has not successfully overcome the
Government's case opposing his 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 2 of the Government's Statement of
Reasons. As stated above, Paragraph 3 is found for Applicant.
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
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraph 2.a.: Against Applicant
Paragraph 3, Guideline F: FOR APPLICANT
Subparagraph 3.a.: For Applicant
Subparagraph 3.b: For 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 eligibility for a security
clearance. Eligibility for access to classified information is denied.
                                              
WILFORD H. ROSS
Administrative Judge