DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 14-02491
)
)
Applicant for Security Clearance )
Appearances
For Government: Robert J. Kilmartin, Esquire, Department Counsel
For Applicant: Pro Se, Esquire
April 23, 2015
______________
Decision
______________
CEFOLA, Richard A., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP) on March 28, 2013.  On July 17, 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 in writing (Answer) on September 17, 2014, and
requested an Administrative Determination by an administrative judge from the Defense
Office of Hearings and Appeals.  Department Counsel issued a File of Relevant Material
(FORM) on January 29, 2015.  Applicant did not respond to the FORM.  The case was
assigned to me on April 14, 2015.  Based upon a review of the pleadings and exhibits,
eligibility for access to classified information is denied.
2
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in
Paragraphs 1.a., 1.b., 2.a., and 2.b. of the SOR, with explanations.  He denied the
factual allegations in Paragraphs 2.c. and 2.d of the SOR.
Guideline H - Drug Involvement
1.a., 1.b., and 2.a.  Applicant was granted a security clearance in “1992/05/04.”
(Item 6 at page 20.)  In both his March 2013 e-Qip and his followup interview in May of
2013, Applicant admits that he began using marijuana in January of 1980.  (Item 4 at
page 28, and Item 5 at page 1.)  He “smokes half a joint one to two times per week.
The drug is provided . . . by his friend. . . . The drug is smoked at either the back patio of
. . . [his] house or his friend’s house.  The drug is used to help alleviate chronic back
pain . . . .”  (Item 5 at page 1.)  In his March 2013 e-Qip, Applicant not only admits that
he used marijuana “while possessing a security clearance,” but that he intends to use it
in the future.  (Item 4 at page 28.)  Furthermore, in his September 2014 Answer,
Applicant admits that he is “a regular user” of marijuana.  (Answer at page 1.)
Guideline E - Personal Conduct
2.c. and 2.d.  In answer to Item 20 on his August 1991 National Agency
Questionnaire, Applicant averred the following: “I experimented with marijuana from
1976~1979.  I smoked mostly at parties.  I no longer smoke it and don’t intend to in the
future.”  (Item 8 at pages 3~4.)  I find this to be a wilful falsification, as Applicant used
marijuana from 1980~1991.  In a followup interview in March of 1992, Applicant averred
the following: “I smoked marijuana (MJ) socially with high school friends from approx
1976 to 1979.”  (Item 7 at pages 2~3.)  Again, I find this to be a wilful falsification, as
Applicant used marijuana from 1980~1991.
2.b.  Applicant answered “No” to Section 27 on his January 2002 e-Qip, denying
any illegal drug use in “the last 7 years.”  (Item 6 at page 20.)  I find this to be a wilful
falsification, as Applicant used marijuana from 1995~2001.
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
3
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.
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.  Under Subparagraph
25(g), “any illegal drug use after being granted a security clearance” may also be
disqualifying.  Furthermore, an “expressed intent to continue illegal drug use” under
4
Subparagraph 25(h) may be disqualifying.  Here, Applicant has used marijuana for a
period of about 34 years, and intends to use it in the future.  I can find no countervailing
mitigating condition that is applicable here.  Guideline H is found against Applicant.
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” may be disqualifying.  In
addition under Subparagraph 16(b), “deliberately providing false or misleading
information concerning relevant facts to an . . . investigator” may also be disqualifying.
Here, Applicant falsified his answers to Item 20 on his August 1991 National Agency
Questionnaire, and to Section 27 on his January 2002 e-QIP.  He was also less than
candid with a Government investigator in March of 1992.  I can find no countervailing
Mitigating Condition that is applicable here.  Guideline E 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 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
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 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, and
5
intends to use marijuana in the future.  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
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against Applicant
Subparagraph 2.c: Against Applicant
Subparagraph 2.d: 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