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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 [Redacted] )  ISCR Case No. 12-06463 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Candace L. Garcia, Esq., Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves security concerns raised under Guideline E (Personal 
Conduct). Eligibility for access to classified information is denied. 
 
Statement of the Case 
 
Applicant submitted a security clearance application on August 11, 2011. On 
June 6, 2015, the Department of Defense (DOD) sent him a Statement of Reasons 
(SOR) alleging security concerns under Guideline E. The DOD acted 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 (AG) implemented by the DOD on September 1, 2006.  
 
 Applicant answered the SOR on July 6, 2015, and requested a hearing before an 
administrative judge. Department Counsel was ready to proceed on September 8, 2015, 
and the case was assigned to me on October 2, 2015. On October 20, 2015, the 
Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was 
scheduled for November 10, 2015. I convened the hearing as scheduled. Government 
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Exhibits (GX) 1 through 5 were admitted in evidence without objection. Applicant 
testified but did not call any witnesses or present any documents. I kept the record open 
until November 30, 2015, to enable him to present documentary evidence. He timely 
submitted Applicant’s Exhibits (AX) A through D, which were admitted without objection. 
DOHA received the transcript (Tr.) on November 18, 2015. 
 
Amendment of SOR 
 
 On my own motion and without objection from either party, I amended the last 
sentence of SOR ¶ 1.a to conform to the evidence by inserting “oxide” after “nitrous.” 
(Tr. 79.) 
 
Findings of Fact 
 
 In his answer to the SOR, Applicant admitted SOR ¶ 1.c and denied SOR ¶¶ 1.a 
and 1.b. His admissions in his answer and at the hearing are incorporated in my 
findings of fact.  
 
 Applicant is a 30-year-old senior engineer employed by a federal contractor since 
June 2015. (Tr. 23.) He has worked for federal contractors since May 2009. He 
submitted a security clearance application (SCA) in June 2010, and he received a 
clearance in August 2010. He applied for a higher-level clearance in September 2010, 
and his application was denied in June 2011. (GX 5.) 
 
 Applicant attended various universities and colleges from 2003 to 2009 and 
received a bachelor’s degree in December 2009. He received his master’s degree in 
information assurance in 2011. (Tr. 27.) He married in May 2015. (Tr. 22.) 
 
When Applicant submitted his June 2010 SCA, he responded “Yes” to the 
question whether, in the last seven years, he had had illegally used any controlled 
substance. He disclosed that he used marijuana from May 2008 to September 2009, 
mushrooms in June and July 2008, and cocaine in May 2008.  
 
 The denial of Applicant’s application for a higher-level clearance in June 2011 
was based on his admissions during a polygraph examination in November 2010. He 
admitted that visited a massage parlor twice in September-October 2010, paid $70 for a 
full-body massage, and then paid an additional $100 for a sexual “happy ending” on 
each occasion. When questioned about his drug use, he admitted that he purchased, 
used, and sold marijuana from June to September 2009; purchased and used cocaine 
in June 2009; purchased and used mushrooms in April and June 2009; purchased and 
used opium three times in April and May 2009; purchased and used hashish three times 
in April and May 2009; purchased and used Oxycontin twice in April 2009; used 
methadone once in April 2009; used whippets (small metal containers of nitrous oxide) 
twice in March 2009; and used two balloons containing nitrous oxide once in April 2009. 
(GX 5.)  
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 When Applicant submitted another SCA in August 2011, he again disclosed his 
use of marijuana, mushrooms, and cocaine. He did not disclose that he had also used 
opium, hashish, Oxycontin, methadone, and nitrous oxide from March to May 2009. 
 
 During a personal subject interview (PSI) conducted in February 2012, Applicant 
admitted his use of marijuana, mushrooms, and cocaine as listed in his two SCAs. He 
told the investigator that he had not used any other drugs. (GX 3 at 13.)  
 
In November 2013, Applicant responded to DOHA interrogatories about his drug 
use by listing marijuana, mushrooms, and cocaine. He did not disclose his use of 
opium, hashish, Oxycontin, methadone, and nitrous oxide.1 (GX 3 at 5.)  
 
 At the hearing, Applicant testified that his drug use was while he was in college, 
and when he submitted his first SCA he did not appreciate the implications of applying 
for a clearance. (Tr. 20-21.) He testified that there were only three spaces on the SCAs 
for listing the drugs he had used, and he listed the three drugs he had used most 
frequently. He denied intentionally concealing adverse information. He stated that he 
was unfamiliar with the form and did not realize that he could add additional information 
about his drug use in the space for comments at the end of the questionnaire. (Tr. 28-
31.) However, he used the space for comments on both SCAs to declare that he would 
never use drugs again. He was not concerned with space constraints when he 
responded to DOHA interrogatories in November 2013, because he disclosed only his 
use of marijuana, mushrooms, and cocaine even though the DOHA interrogatories 
provided spaces for five drugs. 
 
 When questioned about his February 2012 PSI, Applicant testified that he had 
already admitted using drugs other than marijuana, mushroom, and cocaine during the 
November 2010 interview. Regarding his answer to the investigator’s question about 
other drug use not listed on his SCA, he testified that he must have overlooked the 
summary of his response when he reviewed the PSI summary. (Tr. 42-43.) He also 
testified that he believed that every agency processing his clearance applications had 
access to what he had told other agencies. (Tr. 48-49.)  
 
 In his answer to the SOR, Applicant admitted that he solicited prostitution twice at 
a massage parlor in September-October 2010, while holding a security clearance and 
being considered for a higher-level clearance. It occurred when he was lonely and 
depressed after a romantic breakup. (GX 3 at 13.) He has not engaged in similar 
behavior since October 2010 and does not intend to do so in the future. (Tr. 25.) 
                                                          
1 The SOR does not allege that Applicant intentionally omitted material facts from his response to DOHA 
interrogatories. Conduct not alleged in the SOR may be considered to assess an applicant=s credibility; to 
decide whether a particular adjudicative guideline is applicable; to evaluate evidence of extenuation, 
mitigation, or changed circumstances; to consider whether an applicant has demonstrated successful 
rehabilitation; or as part of a whole-person analysis. ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 
2006). I have considered Applicant’s omissions from his response to DOHA interrogatories for these 
limited purposes. 
 
 
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 Applicant’s former employer, who has known him all his life, describes him as 
very intelligent, personable, and trustworthy, and a “good and decent person.” He 
knows that Applicant has a strong family network, a “solid core” of good friends, and a 
wonderful wife. He states, “I can confirm he is a man of integrity, dedicated to his family, 
friends and career and [I] am proud to consider him a dear friend.” (AX A.) 
 
 A former colleague, who has known Applicant since 2011, states that Applicant is 
truthful and has never been secretive about his past drug use. He corroborated 
Applicant’s belief that the intelligence community shares information with the DOD. (AX 
B.) 
 
 A current colleague, who has known Applicant since 2008, states that Applicant 
is “one of the most straightforward, kind, and generous human beings I have ever met.” 
He believes that Applicant has abstained from any drug use and has been very 
forthright about his past. He considers Applicant trustworthy, honest, and dedicated. 
(AX C.) 
 
 A former supervisor describes Applicant as one of his best workers, who always 
performed above expectations. The former supervisor states that, after he leaves his 
current job, he will find Applicant and recruit him to be a coworker. (AX D.) 
 
Policies 
 
 “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 
484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to 
“control access to information bearing on national security and to determine whether an 
individual is sufficiently trustworthy to have access to such information.” Id. at 527. The 
President has authorized the Secretary of Defense or his designee to grant applicants 
eligibility for access to classified information “only upon a finding that it is clearly 
consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified 
Information within Industry § 2 (Feb. 20, 1960), as amended.   
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, 
recognizing the complexities of human behavior, an administrative judge applies these 
guidelines in conjunction with an evaluation of the whole person. An administrative 
judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An 
administrative judge must consider all available and reliable information about the 
person, past and present, favorable and unfavorable. 
 
 The Government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. Decisions include, by necessity, consideration of the 
possible risk that the applicant may deliberately or inadvertently fail to safeguard 
classified information. Such decisions entail a certain degree of legally permissible 
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extrapolation about potential, rather than actual, risk of compromise of classified 
information. 
 
Clearance decisions must be made “in terms of the national interest and shall in 
no sense be a determination as to the loyalty of the applicant concerned.”  See Exec. 
Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the 
applicant has not met the strict guidelines the President and the Secretary of Defense 
have established for issuing a clearance. 
 
 Initially, the Government must establish, by substantial evidence, conditions in 
the personal or professional history of the applicant that may disqualify the applicant 
from being eligible for access to classified information. The Government has the burden 
of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531.  
“Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the 
criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 
at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).   
 
 Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant has the burden of proving a mitigating condition, 
and the burden of disproving it never shifts to the Government. See ISCR Case No. 02-
31154 at 5 (App. Bd. Sep. 22, 2005).  
 
An applicant “has the ultimate burden of demonstrating that it is clearly consistent 
with the national interest to grant or continue his security clearance.” ISCR Case No. 
01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, 
if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).  
 
Analysis 
 
Guideline E, Personal Conduct 
 
 The SOR alleges that Applicant falsified his SCAs in June 2010 and August 2011 
by intentionally failing to disclose the full extent of his drug use (SOR ¶ 1.a), and that he 
falsified material facts during his February 2012 PSI by stating that he had not used any 
drugs other than those disclosed in his SCAs (SOR ¶ 1.b). It also alleges that he 
solicited prostitution on two occasions in September and October 2010 (SOR ¶ 1.c). 
 The concern under this guideline is set out in AG ¶ 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. Of special interest is any failure to provide truthful 
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and candid answers during the security clearance process or any other 
failure to cooperate with the security clearance process.   
 The relevant disqualifying condition for the falsifications alleged SOR ¶¶ 1.a and 
1.b are: 
 
AG ¶ 16(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 qualifications, award benefits or status, determine security 
clearance eligibility or trustworthiness, or award fiduciary responsibilities; 
and  
AG ¶ 16(b): deliberately providing false or misleading information 
concerning relevant facts to an employer, investigator, security official, 
competent medical authority, or other official government representative. 
 When a falsification allegation is controverted, as in this case, the Government 
has the burden of proving it. An omission, standing alone, does not prove falsification. 
An administrative judge must consider the record evidence as a whole to determine an 
applicant’s state of mind at the time of the omission. See ISCR Case No. 03-09483 at 4 
(App. Bd. Nov. 17, 2004). An applicant’s education and experience are relevant to 
determining whether a failure to disclose relevant information on a security clearance 
application was deliberate. ISCR Case No. 08-05637 (App. Bd. Sep. 9, 2010). 
 
 AG ¶ 16(a) is established for the June 2010 and August 2011 SCAs. Applicant is 
intelligent and well educated. He knew that he was not limited to the three spaces for 
responding, because he took advantage of the space for additional comments to 
emphasize his intention not to use drugs again. Furthermore, in Applicant’s response to 
DOHA interrogatories in November 2013, he listed only the same three drugs even 
though five spaces were provided on the form. (GX 3 at 5.) His testimony that he 
believed that information given to one agency would be shared with other agencies 
does not excuse his omissions from his June 2010 SCA, because the additional 
information about other drug use was not divulged to any government agency until the 
November 2010 interview.  
 
 Applicant’s explanation that he believed his disclosures in the November 2010 
interview would be shared with other government agencies is plausible and not 
uncommon among applicants. However, it does not explain or mitigate his failure to 
disclose the extent of his drug use in his August 2011 SCA. To the contrary, it 
aggravates it, because he disclosed selected facts and intentionally omitted other 
material facts that he had disclosed in his November 2010 interview.  
  
 AG ¶ 16(b) is also established. Although Applicant claimed faulty memory when 
questioned about his statement in his PSI, he conceded that the investigator probably 
asked him if he had used any drugs other than those listed in his June 2010 SCA. He 
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had an opportunity to correct the summary of his PSI when he answered the DOHA 
interrogatories in November 2013, but did not avail himself of that opportunity. 
 
 Applicant’s admissions during his various interviews and at the hearing are 
sufficient to establish the solicitation of prostitution alleged in SOR ¶ 1.c and the 
following additional disqualifying conditions: 
AG ¶ 16(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; 
AG ¶ 16(d): credible adverse information that is not explicitly covered 
under any other guideline and may not be sufficient by itself for an 
adverse determination, but which, when combined with all available 
information 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. This 
includes but is not limited to consideration of . . . a pattern of dishonesty or 
rule violations; and  
AG ¶ 16(e): personal conduct, or concealment of information about one's 
conduct, that creates a vulnerability to exploitation, manipulation, or 
duress, such as . . . engaging in activities which, if known, may affect the 
person's personal, professional, or community standing.  
 The following mitigating conditions are potentially relevant: 
 
AG ¶ 17(a): the individual made prompt, good-faith efforts to correct the 
omission, concealment, or falsification before being confronted with the 
facts; 
 
AG ¶ 17(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; 
 
AG ¶ 17(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; and 
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AG ¶ 17(e): the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress. 
 
 AG ¶ 17(a) is not established for Applicant’s falsifications. He made no effort to 
correct the omissions in his June 2010 SCA until he was subjected to a polygraph 
examination in November 2010. Even after admitting the full extent of his drug use 
during the polygraph examination, he persisted in his omissions in his August 2011 
SCA, during his February 2012 PSI, and in his answers to DOHA interrogatories in 
November 2013. 
 
 AG ¶ 17(c) is not established for Applicant’s falsifications of his June 2010 and 
August 2011 SCAs and responses to questioning during his February 2012 PSI. 
Applicant repeated his omissions in his November 2013 responses to DOHA 
interrogatories. His omissions were not “minor,” because falsification of a security 
clearance application “strikes at the heart of the security clearance process.” ISCR 
Case No. 09-01652 (App .Bd. Aug. 8, 2011.) His intentional omissions did not occur 
under unique circumstances making them unlikely to recur. 
 
 AG ¶ 17(c) is established for Applicant’s solicitation of sexual activity in 
September and October 2010. His conduct occurred twice during a short time span, and 
during a time when he was emotionally recovering from a failed relationship. More than 
five years have elapsed without recurrence. 
 
 AG ¶ 17(d) is not established for Applicant’s falsifications. He has continued to 
deny his intentional falsifications. However, he has acknowledged his sexual conduct at 
the massage parlor.  
 
 AG ¶ 17(e) is established. Applicant made full disclosure of his drug use and 
sexual behavior during his November 2010 interview. He has disclosed his prior drug 
use to several coworkers and friends. 
 
Whole-Person Concept 
 
 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. In applying the whole-
person concept, an administrative judge must evaluate an applicant’s eligibility for a 
security clearance by considering the totality of the applicant’s conduct and all relevant 
circumstances. An 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.  
 
 I have incorporated my comments under Guideline E in my whole-person 
analysis, and I have considered the factors in AG ¶ 2(a). After weighing the disqualifying 
and mitigating conditions under Guideline E, and evaluating all the evidence in the 
context of the whole person, I conclude Applicant has not mitigated the security 
concerns raised by his intentional omissions of material facts in his June 2010 SCA, 
August 2011 SCA, and February 2012 PSI. Accordingly, I conclude he has not carried 
his burden of showing that it is clearly consistent with the national interest to continue 
his eligibility for access to classified information. 
 
Formal Findings 
 
 I make the following formal findings on the allegations in the SOR: 
 
 Paragraph 1, Guideline E (Personal Conduct): AGAINST APPLICANT 
 
  Subparagraphs 1.a-1.b:   Against Applicant 
 
  Subparagraph 1.c:    For Applicant 
 
Conclusion 
 
 I conclude that it is not clearly consistent with the national interest to continue 
Applicant’s eligibility for a security clearance. Eligibility for access to classified 
information is denied. 
 
 
 
 
LeRoy F. Foreman 
Administrative Judge