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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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)       ISCR Case No. 14-00379
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Esquire, Department Counsel
For Applicant: Pro se
October 16, 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 August 23, 2013.  On May 5, 2014, as further amended on June 25, 2014,
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, and its amendment, in writing on May 22, 2014,
and on July 1, 2014, respectively, and requested a hearing before an Administrative
Judge.  The Defense Office of Hearings and Appeals (DOHA) received the request on
June 27, 2014, and I received the case assignment that same date.  DOHA issued a
notice of hearing on July 18, 2014, and I convened the hearing as scheduled on August
15, 2014.  The Government offered Exhibits (GXs) 1 and 2, which were received without
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objection.  Applicant testified on his own behalf, as did his wife.  DOHA received the
transcript of the hearing (TR) on August 25, 2014.  I granted Applicant’s request to keep
the record open until September 15, 2014, to submit additional matters.  On August 29,
2014, he submitted Exhibit (AppX) A, which was received without objection.  The record
closed on September 15, 2014.  Based upon a review of the pleadings, exhibits, and
testimony, eligibility for access to classified information is denied.
Findings of Fact
In his Answers to the SOR, Applicant admitted the factual allegations in all of the
Subparagraphs of the SOR, with explanations.  He also provided additional information
to support his request for eligibility for a security clearance.
Applicant is 59 years of age, and served in the United States Navy for six years
from 1973~1979.  (TR at page 27 line 10 to page 30 line 7, and AppX A at pages 1~5.)
Guideline H - Drug Involvement
1.a.~1.c.  Applicant smoked marijuana periodically while in high school, and
continued his usage while in the Navy.  (TR at page 27 line 10 to page 28 line 11.)  He
used marijuana periodically, with “numerous breaks over the years,” until his last usage
in June of 2012, when he also purchased the drug.  (TR at page 28 line 12 to page 29
line 15.)  Applicant estimated he smoked marijuana “a lot.”  (TR at 29 lines 12~15.)
Previously, in June of 1993, he was also arrested for and found guilty of Possession of
Marijuana.  (TR at page 29 line 16 to page 30 line 11, and GX 2 at page 3.)  Although
he avers no future use of marijuana, he can not 100% rule it out.  (TR at page 34 lines
20~25.)
Guideline E - Personal Conduct
2.a.  Applicant answered “No,” to “Section 23 - Illegal Use of Drugs or Drug
Activity . . . In the last seven (7) years,” on his August 23, 2013, e-QIP, thereby denying
his 2012 usage and purchase of marihuana.  (TR at page 36 line 9 to page 40 line 24,
and GX 1 at page 40.)  This was a wilful falsification.
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
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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).
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.
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The guideline also notes several conditions that could raise security concerns.
Under Subparagraph 25(a), “any drug abuse” may be disqualifying.  In addition, “illegal .
. . purchase” under Subparagraph 25(c) may be disqualifying.  Here, Applicant used
marijuana, periodically, for a period of about 40 years.  His last usage and purchase of
the illegal substance was in 2012.
I can find no countervailing mitigating condition that is applicable here.
Subparagraphs 26(a) and 26(b)(4) require that Applicant’s “behavior happened so long
ago, was so infrequent . . . that it is unlikely to recur . . . ,” and that he has shown “a
demonstrated intent not to abuse any drugs in the future . . . .”  The Applicant’s 40 years
of periodic usage ended only two years ago, and he testified that he was not 100% sure
he would not use marijuana in the future.
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(a), “deliberate omission, concealment, or falsification of relevant facts
from any personnel security questionnaire . . . or similar form . . . .”  Here, Applicant
falsified his answer to Sections 23 on his August 2013 e-QIP.  He used and purchased
marijuana the year prior to executing this document.  I can find no countervailing
Mitigating Condition that is applicable here.
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
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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 his spouse who abhors the use of illegal drugs (TR at page 45 line 18 to page 49 line
9), and has done well in his current employment.  (AppX A.)  However, the record
evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability
for a security clearance.  He was clearly less than candid with the Government as to his
past drug abuse.  For this reason, I conclude Applicant has not mitigated the security
concerns arising from his Drug Involvement and 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: Against APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Subparagraph 1.c: Against Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraph 2.a: 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.
Richard A. Cefola
Administrative Judge