1
 
                                                             
                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
               )       ISCR Case No. 12-09936
)
Applicant for Security Clearance )
Appearances
For Government: Bryan Olmos, Esquire, Department Counsel
For Applicant: Pro se  
______________
Decision
______________
HENRY, Mary E., Administrative Judge:
Based upon a review of the pleadings, exhibits, and testimony, Applicant’s
eligibility for access to classified information is granted.
Statement of the Case
Applicant completed and certified an Electronic Questionnaire for Investigations
Processing (e-QIP) on April 12, 2012. The Department of Defense (DOD) Consolidated
Adjudications Facility (CAF) issued Applicant a Statement of Reasons (SOR) on August
1, 2015, detailing security concerns under Guideline H, drug involvement, and guideline
E. The action was taken under Executive Order 10865, Safeguarding Classified
Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6,
Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as
amended (Directive); and the Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information (AG), implemented on September 1, 2006. 
 
GE 1; AE B; AE D; Tr. 23.1
GE 1; AE D; AE G; Tr. 24, 28.2
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  Applicant received the SOR on August 6, 2015, and he answered it on August
24, 2015. Applicant requested a hearing before an administrative judge with the
Defense Office of Hearings and Appeals (DOHA). Department Counsel was prepared to
proceed on October 7, 2015, and I received the case assignment on October 13, 2015.
DOHA issued a Notice of Hearing on October 14, 2015, and I convened the hearing as
scheduled on October 21, 2015. The Government offered exhibits (GE) marked as GE 1
through GE 3, which were received and admitted into evidence without objection.
Applicant testified. He submitted exhibits (AE) marked as AE A through AE H, which
were received and admitted into evidence without objection. The record closed on
October 21, 2015. DOHA received the hearing transcript (Tr.) on November 4, 2015.
Procedural Ruling
Notice
Applicant received the notice of the date, time and place of the hearing less than
15 days before the hearing. I advised Applicant of his right under ¶ E3.1.8. of the
Directive to receive the notice at least 15 days before the hearing. Applicant
affirmatively waived this right under the Directive. (Tr. 9-10)
Findings of Fact
In his Answer to the SOR, Applicant admitted all the factual allegations in ¶¶ 1.a,
1b, and 2.a of the SOR. His admissions are incorporated herein as findings of fact. He
also provided additional information to support his request for eligibility for a security
clearance. After a complete and thorough review of the evidence of record, I make the
following findings of fact.  
Applicant, who is 48 years old, works as a senior scientist for a DOD contractor.
He began his current employment in November 2006. He receives excellent
performance reviews and is well-respected for his technical skills and interpersonal
abilities.1
Applicant received a Bachelor of Science degree in electrical engineering in 1992
and a Master of Science degree in electrical engineering in 2000. He anticipates
receiving a Master of Science degree in management of information systems in
December 2015. He began a doctoral program in late 2011. He has completed 24 hours
of course work. He recently received a doctoral student scholarship award as a result of
his work in this program. He also works as a teaching assistant at the university.  2
Applicant and his wife married in May 1993. They separated in April 2010, and
their divorce became final in 2012. They have three children, two daughters, ages 21
GE 1; Tr. 23, 25-27, 45.3
GE 3; Tr. 29-31, 42.4
GE 3; Tr. 31-35.5
The police also charged the young woman, but the charges and results of her court case are unknown. GE6
3; Tr. 35.
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and 19, and a son, age 13. His daughters are not financially dependent upon him, and
he and his wife share custody of their son. He will soon be a grandfather. Both his
daughters experienced serious medical issues around the time of his divorce. His oldest
daughter was diagnosed with anorexia and bulimia in 2009, and the divorce aggravated
her problems. After Applicant and his wife separated, his younger daughter was
diagnosed with depression. His daughters’ medical issues created additional financial
burdens and emotional stress. His son seemed less impacted by the divorce.3
For six months after his separation, Applicant did not go out and socialize with
others. In the fall of 2010, he began dating for the first time in 20 years. After finishing a
marathon race in February 2011, he met an attractive, younger woman who presented
herself as successful and ambitious. They shared similar interests, and began to date.
In early March 2011, she told him that she had been in rehabilitation for heroin use. He
did not think much about her statement and did not consider that she may have a
current issue with heroin. She had not used drugs in his presence or discussed using
illegal drugs. About a week later, she had a business event. She suggested they meet
for dinner after her event and stay overnight at a nearby hotel. Applicant agreed.4
On March 19, 2011, he registered at the hotel, then walked to the hotel
restaurant to meet the young woman. While he waited for her to arrive, he consumed a
bottle of wine. At dinner, they consumed another bottle of wine between them. Applicant
was intoxicated when he left the restaurant. Once in the hotel room, the young woman
suggested they get “high”. Initially, he responded that he did not do drugs. He cannot
remember their entire conversation, but she eventually persuaded him to get ”high”
because he would experience the “best sex ever”. She was sitting next to him and
injected him with heroin from a needle she had. He assumes the heroin was in her
purse, but he does not know. He did not purchase the heroin nor did he observe her
purchase it. Within seconds, he reacted badly to the heroin. He does not know what
happened after she injected him, but he remembers waking up to a beep and looking at
paramedics. He was taken to the hospital and released hours later.5
The police interviewed Applicant and the young woman at the hospital. The
police charged him with possession of a narcotic drug, a class four felony, and
possession of drug paraphernalia, a class six felony.  In July 2011, Applicant pled guilty6
to amended count three of unlawful possession or use of drug paraphernalia, a class
GE 2; AE H; Tr. 35-38.7
GE 2.8
Response to SOR; AE A; Tr. 40-442, 46, 48, 50-52.9
Response to SOR; Tr. 11-13.10
AE E; AE F.11
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one misdemeanor. The court fined him $100, which he paid. This is Applicant’s only
arrest or interaction with the criminal justice system.7
Applicant reported his arrest to his facility security officer (FSO), his executive
vice president, and his deputy director. His employer took no disciplinary action against
him. His FSO filed an incident report with the DOD CAF.8
Applicant denies that he uses any illegal drugs, and the record lacks any
evidence of illegal drug involvement beyond the incident that led to his arrest. He
consumes beer or wine, but usually not to excess. He describes his use of alcohol as
two or three beers a couple of times a week. After he and his wife separated in 2010, he
sought counseling during that summer, but he was not diagnosed as having any mental
health issues. Applicant has a long-time lady friend, who does not use drugs or
consume alcohol. None of his friends are drug users. In August 2015, Applicant
voluntarily submitted to an independent drug test. The test results are negative for any
illegal drugs. Applicant signed a letter of intent not use illegal drugs in the future under
the penalty of immediate revocation of his security clearance.9
Applicant attributes the events of March 19, 2011 to “horribly poor judgment” and
his irresponsible action. He realizes that he nearly died from his poor decision that night.
He intends not to use drugs in the future. Since this incident, he has focused on
preparing for and participating in triathlons and bike races as well as completing his
master’s and doctoral programs.10
 Applicant’s friend of more than 20 years wrote a letter of recommendation for
Applicant. He describes Applicant as hardworking, honest, trustworthy, and reliable. He
is aware of the incident in question and was surprised that it occurred because use of
illegal drugs is out of character for Applicant. He does not believe such an incident will
occur again. Applicant’s current lady friend also wrote a letter of recommendation. She
is aware of his one-time use of heroin and the surrounding circumstances. She has
never seen him intoxicated and has absolutely no concerns that he will use illegal drugs
in the future.11
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the adjudicative guidelines. In addition to brief
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introductory explanations for each guideline, the adjudicative guidelines list potentially
disqualifying conditions and mitigating conditions, which are used 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 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.
The protection of the national security is the paramount consideration. AG ¶ 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.
Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an applicant is
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by applicant or proven by Department Counsel. . . .” An
applicant has the ultimate burden of persuasion for 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 an 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
AG ¶ 24 expresses the security concern pertaining to drug involvement:
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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.
(a) 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;
(b) drug abuse is the illegal use of a drug or use of a legal drug in a manner
that deviates from approved medical direction.
AG ¶ 25 describes the disqualifying conditions that could raise security concerns.
I have considered all the conditions, and the following are potentially applicable: 
(a) any drug abuse (see above definition);    
(g) any illegal drug use after being granted a security clearance.
While on a date in March 2011, Applicant agreed to get “high”, and his female
companion injected him with heroin. He possessed a security clearance at the time. The
Government has established a security concern under AG ¶¶ 25(a) and 25(g).
The drug involvement guideline also includes examples of conditions that can
mitigate security concerns. I have considered mitigating factors AG ¶ 26(a) through ¶
26(d), and the following are potentially applicable:
(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; and,
(4) a signed statement of intent with automatic revocation of
clearance for any violation.
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Applicant’s use of heroin was a one-time event, which occurred almost five years
ago. He nearly died as a result of this poor decision. He does not associate with the
young woman who injected him with heroin and he has not placed himself in a position to
be vulnerable to a similar incident. His friends, including his long-time lady friend, do not
use illegal drugs. His recent drug test was negative for any illegal drug use as of the date
of the test. He signed a statement of intent not to use drugs in the future, and he
understands that if he does, he will lose his security clearance. The serious results from
his decision have impacted Applicant in a positive way. He refocused his life towards
physical exercise and furthering his education. He has developed a relationship with a
woman who does not use drugs and does not consume alcohol. In reviewing all the
evidence and in assessing Applicant’s attitude and behavior, I am confident that he will
not use illegal drugs again. He did this conduct while holding a security clearance, which
is a breach of the Government’s trust in him. He did so while intoxicated, which does not
excuse his behavior, but was also uncharacteristic of him. He has learned a valuable
lesson from his wrong decision. He has mitigated any security concerns about his future
use of drugs under AG ¶ 26(a) and 26(b)(1)-(4).  
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
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. 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.
AG ¶ 16 describes the disqualifying conditions that could raise security concerns.
I have considered all the conditions, and the following are potentially applicable: 
(c) credible adverse information in several adjudicative issue areas that is
not sufficient for an adverse determination under any other single guideline,
but which, when considered as a whole, supports a whole-person
assessment of questionable judgment, untrustworthiness, unreliability, lack
of candor, unwillingness to comply with rules and regulations, or other
characteristics indicating that the person may not properly safeguard
protected information; and
(e) personal conduct, or concealment of information about one's conduct,
that creates a vulnerability to exploitation, manipulation, or duress, such as
(1) engaging in activities which, if known, may affect the person's personal,
professional, or community standing, or (2) while in another country,
engaging in any activity that is illegal in that country or that is legal in that
country but illegal in the United States and may serve as a basis for
exploitation or pressure by the foreign security or intelligence service or
other group.
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Applicant exercised poor judgment when he agreed to get “high” in March 2011.
He decision was impacted by his intoxication and by the prospect of “great sex”. The
Government has established a security concern about his judgment in March 2011 under
AG ¶¶ 16(c) and 16(e).
The personal conduct guideline also includes examples of conditions that can
mitigate security concerns. I have considered mitigating factors AG ¶¶ 17(a) through ¶
17(g), and the following are potentially applicable:
(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;
(d) the individual has acknowledged the behavior and obtained counseling
to change the behavior or taken other positive steps to alleviate the
stressors, circumstances, or factors that caused untrustworthy, unreliable,
or other inappropriate behavior, and such behavior is unlikely to recur;
(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress;
Applicant’s one-time use of heroin occurred at a time in his life and under
circumstances which are not likely to reoccur in his life. He clearly recognizes that he
made a bad decision, which almost killed him. He has refocused his life towards positive
activities, such as his exercising and biking. He returned to school to obtain his doctorate
degree and to complete a second master’s degree. He developed a positive relationship
with a lady friend. He has no need or desire to be involved with illegal drugs. He does not
have any contact with the young woman who gave him the heroin. His current friends are
not illegal drug users. He told his FSO, deputy director, and executive vice president
about this incident. Both his lady friend and his longtime friend who attested to his good
character are aware of the incident. He cannot be coerced or manipulated because of
this incident. Applicant has mitigated the personal conduct security concerns raised
about his conduct in March 2011 under Guideline E.
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 an applicant’s
conduct and all relevant circumstances. 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
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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. 
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 decision to grant or
deny a security clearance requires a careful weighing of all relevant factors, both
favorable and unfavorable. In so doing, an administrative judge must review all the
evidence of record, not a single item in isolation, to determine if a security concern is
established and then whether it is mitigated. A determination of an applicant’s eligibility
for a security clearance should not be made as punishment for specific past conduct, but
on a reasonable and careful evaluation of all the evidence of record to decide if a nexus
exists between established facts and a legitimate security concern. 
The evidence in support of granting a security clearance to Applicant under the
whole-person concept is more substantial than the evidence in support of denial.  In
reaching a conclusion, I considered the potentially disqualifying and mitigating conditions
in light of all the facts and circumstances surrounding this case. Applicant made a
decision almost five years ago that he sincerely regrets. He knows that he exercised
poor judgment and engaged in inappropriate behavior. The Government’s concern
focuses more on the possibility of his exercise of poor judgment in the future than to his
future use of illegal drugs. Applicant has persuaded me that he will not use heroin or any
other illegal drug in the future. In deciding whether his conduct indicates that he would
exercise poor judgment in handling classified material, I looked at what he has done
since March 2011. He immediately distanced himself from the young woman. He
refocused his energies towards triathlon and cycling training and competitions. He
associates with individuals who are not involved with drugs, and he developed a long-
term relationship with a caring woman. He enrolled in a doctorate program, and he is
successfully moving through this program. He made his immediate management aware
of his arrest arising out of his one-time heroin use. Applicant has taken numerous steps
to assure that he will not make such a serious error in judgment. He learned from this
incident and can be trusted to properly handle classified information and materials.
Overall, the record evidence leaves me without questions or doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant mitigated the security concerns arising from his drug involvement and
personal conduct under Guidelines H and E.
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
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Subparagraph 1.b: For Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.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 a security clearance is granted.
                                                              
MARY E. HENRY
Administrative Judge