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                              DEPARTMENT OF DEFENSE
               DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 14-02975
)
)
Applicant for Security Clearance )
Appearances
For Government: Caroline E. Heintzelman, Esquire, Department Counsel
For Applicant: Rodney R. Moody, Esquire
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Decision
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WHITE, David M., Administrative Judge:
Applicant used marijuana for almost 40 years, during ten of which he held a
security clearance. He falsified information concerning his drug abuse on security
clearance applications in 2003 and 2014. Resulting security concerns were not
mitigated. Based upon a review of the pleadings, testimony, and exhibits, eligibility for
access to classified information is denied. 
Statement of the Case
Applicant submitted a security clearance application (SF 86) on March 18, 2014.
(GE 1.) On September 5, 2014, the Department of Defense Consolidated Adjudications
Facility (DoD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing
security concerns under Guideline H (Drug Involvement) and Guideline E (Personal
Conduct). 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 for
Determining Eligibility for Access to Classified Information, effective within the
Department of Defense after September 1, 2006. 
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Applicant answered the SOR in writing (Answer) on October 3, 2014, and
requested a hearing before an administrative judge. Department Counsel was prepared
to proceed on July 6, 2015, and the case was assigned to me on July 13, 2015. The
Defense Office of Hearings and Appeals (DOHA) issued a Notice of Hearing on July 21,
2015, and I convened the hearing as scheduled on August 13, 2015. The Government
offered Exhibits (GE) 1 through 3, which were admitted without objection. Applicant
offered Exhibits (AE) A and B, which were admitted without objection, and testified on
his own behalf. DOHA received the transcript of the hearing (Tr.) on August 19, 2015. 
Findings of Fact
Applicant is a 55-year-old employee of a defense contractor, where he has
worked since 2004. He is a college graduate, who has no military service. He has held a
security clearance since 2003, when he was employed by a subcontractor of his current
employer. He is separated from his second wife, and has two teenage children. (GE 1;
GE 2; Tr. 62-63.) 
In his Answer, Applicant admitted the allegations in SOR ¶¶ 1.a and 1.b, and
denied the remaining allegations, with explanations. He made additional statements
concerning his drug involvement, and his inaccurate answers to questions about that
subject on his two SF 86 security clearance applications, in a sworn response to DOHA
Interrogatories dated July 31, 2014. Applicant’s admissions and statements are
incorporated into the following findings.
Applicant reported that he used marijuana on a daily basis from about 1975 (at
age 14 or 15) until 1985 when he graduated from college. From 1985 to 2003 his
marijuana use decreased from daily to weekly to monthly, and he estimated his average
use over that period to be twice per month. From 2003 until February 2014, while
holding a security clearance and working for a company that he knows has a policy
tolerating no drug use at all, he admittedly used marijuana once or twice per year. On
May 8, 2014, Applicant told an investigator from the Office of Personnel Management
(OPM) that he “uses marijuana rarely and has never let it control him; therefore, he
intends to continue to use it in the future.” He said then, and confirmed in July 2014, that
he would cease marijuana use if required for continued employment. He still socializes
monthly with the friend he usually smokes it with. (GE 3; Tr. 34-36, 42-44, 54-55, 59.) 
Applicant completed and certified the truth of his first SF 86 on July 31, 2003.
(GE 2.) In response to the question asking about any drug activity during the preceding
seven years, he stated that he had used marijuana rarely from January 1985 through
1999, describing it as, “Occasional social usage at concerts etc. Never habitual use.”
(GE 2 at 16.) He thereby intentionally concealed what he later described as his weekly
to monthly use, averaging twice per month, from January 2000 through July 2003. His
attempt to explain this deception during his hearing testimony, when for the first time he
said that he stopped using marijuana as a 2000 New Year’s resolution but started again
in 2003 after obtaining his clearance, was inconsistent with his previous statements and
less than credible. (Tr. 38-40, 54-57.)
Applicant discussed an incident, during which he left a Government laptop computer containing “secured”1
information in the waiting area of a civilian airport, but that did not result in any adverse action against him. 
Tr. 29-30.   
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Applicant also falsified his responses to two drug involvement questions on his
March 2014 SF 86, which initiated this pending eligibility determination. When asked if
he had illegally used any drugs or controlled substances during the preceding seven
years, he responded, “No.” In the optional comment section he wrote, “Currently
marijuana use is legal in [his residence] state.” When asked if he had ever illegally used
or otherwise been involved with a drug or controlled substance while holding a security
clearance other than previously listed, he responded, “No.” The state in which Applicant
resides decriminalized recreational marijuana use in late 2012. Applicant acknowledged
during his testimony that he understood marijuana to still be a controlled substance that
is illegal to use under Federal law, which also controls security clearance eligibility. He
further failed to explain his denial on the SF 86 of his admitted use of marijuana about
twice a year between 2003 and 2014 while holding a security clearance, other than to
say that he didn’t really think smoking that amount of marijuana was “use.” Applicant’s
attempts to justify these falsifications during his testimony were not credible. (GE 1; GE
2; GE 3; Tr. 41-44, 49-52, 55-62.)
Applicant submitted a signed statement of intent never to use illegal drugs again,
with consent to automatic revocation of his security clearance for any violation. He
clarified during the hearing that his earlier assertions, that he did not consider marijuana
use to be illegal in his state and that he did not think smoking marijuana once or twice a
year constituted “use,” did not apply to this statement, which he signed on the morning
of his hearing. (AE A; Tr. 20-21, 45, 67-69.)
Applicant also submitted a forensic drug testing report for an underarm hair
sample he submitted on July 31, 2015, to a drug testing laboratory. The sample tested
negative for cannabinoids and carboxy-THC, indicating that he had not digested any
marijuana recently. The report commented, “Body hair represents up to 1 year.” (AE B.) 
Applicant did not submit mitigating evidence concerning the quality of his
professional performance, the level of responsibility his duties entail, or his track record
with respect to handling sensitive information and observation of security procedures.  I1
considered his testimony to be credible concerning his willingness to forego future drug
abuse in order to save his job, but less than credible concerning his attempted
justification of previous drug abuse while holding a security clearance and falsification of
his 2003 and 2014 security clearance applications.
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
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disqualifying conditions (DCs) and mitigating conditions (MCs), which are to be 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s
overarching adjudicative goal is a fair, impartial, and commonsense decision. According
to AG ¶¶ 2(a) and 2(c), the entire process is a conscientious scrutiny of applicable
guidelines in the context 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 the 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, “[t]he applicant is
responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or
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.” Section 7
of Executive Order 10865 provides: “[a]ny 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.”
A person applying for access to classified information seeks to enter 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.
Analysis
Guideline H, Drug Involvement
AG ¶ 24 expresses the security concern pertaining to drug involvement:
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
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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 conditions that could raise a security concern and may be
disqualifying. The two DCs raised by the evidence in this case are: 
(a) any drug abuse (see above definition); and
(g) any illegal drug use after being granted a security clearance. 
Applicant admittedly used marijuana with varying frequency from about 1975 to
February 2014. He did so while holding a security clearance after 2003. These facts
support application of the foregoing DCs, shifting the burden to Applicant to prove
mitigation of resulting security concerns. In May 2014 Applicant said that he intended to
continue marijuana use in the future, but clearly declared in AE A and during his
testimony that he intends to discontinue drug use. Therefore, the former concerns
arising under AG ¶ 25(h) from his, “expressed intent to continue illegal drug use,” are no
longer present.
AG ¶ 26 provides four conditions that could mitigate the security concerns arising
from Applicant’s drug involvement:
(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; 
(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;
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(4) a signed statement of intent with automatic revocation of
clearance for any violation; 
(c) abuse of prescription drugs was after a severe or prolonged illness
during which these drugs were prescribed, and abuse has since ended;
and
(d) satisfactory completion of a prescribed drug treatment program,
including but not limited to rehabilitation and aftercare requirements,
without recurrence of abuse, and a favorable prognosis by a duly qualified
medical professional. 
Applicant’s marijuana abuse continued for almost 40 years, without any
significant period of abstinence until 2014, when he applied to renew his security
clearance. This casts doubt on Applicant’s current reliability, trustworthiness, and
judgment, and there is insufficient persuasive evidence that drug abuse is unlikely to
recur. Mitigation under AG ¶ 26(a) was not established.
Applicant told the OPM investigator in May 2014 that he intended to continue
using marijuana in the future, and only changed that position after receiving the SOR.
He continues at least monthly social contact with the friend with whom he usually
smoked marijuana. His period of abstinence since early 2014 is a good start, but not
significant compared to almost 40 years of regular drug use without regard to criminal
laws and workplace policies prohibiting such conduct. His signed statement of intent is
less persuasive than it might otherwise be, had he not attempted to parse the meanings
of “illegal” and “use” with respect to his earlier misconduct. Applicant failed to establish
significant mitigation under AG ¶ 26(b).
Neither AG ¶¶ 20(c) nor (d) were raised by Applicant’s circumstances or the
evidence in this case. He was not abusing a prescription drug, and he was neither
recommended for nor involved in any drug treatment program. 
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.
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AG ¶ 16 describes conditions that could raise a security concern and may be
disqualifying. The DCs supported by the evidence in this case are:
(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
(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. 
Applicant deliberately falsified his 2003 SF 86 by failing to disclose his drug
abuse between January 2000 and the time he certified the completeness and truth of
that document. He deliberately falsified his 2014 SF 86 by denying illegal drug use
during the past seven years, while holding his security clearance. He also knew that his
drug use violated his company’s policies and Federal law, subjecting him to adverse
professional consequences for his conduct. Security concerns under AG ¶¶ 16(a) and
(e) were accordingly raised by substantial evidence under these facts.
AG ¶ 17 describes conditions that could mitigate security concerns under the
Personal Conduct guideline. The MCs with potential application in this case are: 
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
(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; and
(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress.
Applicant made no effort to correct his concealment of his drug abuse on either
of his security clearance applications before being confronted with them. His
explanations after being confronted were not credible. These recent and multiple
falsifications are felony offenses under Title 18 U.S.C. § 1001, and are not considered
to be minor offenses in connection with security clearance eligibility determinations. 
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Applicant did not admit his attempts to deceive, but rather proposed inconsistent
and unpersuasive semantic justifications for his false answers. No supervisor offered
testimony or character evidence to support a conclusion that his concealed drug abuse
in violation of company policy no longer subjects him to potential exploitation or duress.
Accordingly, Applicant failed to establish mitigation under any of those Mcs.
 
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 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
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.   
I considered the potentially disqualifying and mitigating conditions in light of all
pertinent facts and circumstances surrounding this case. Applicant is a mature
individual who is accountable for the untrustworthiness and bad judgment demonstrated
by his long history of drug abuse, and by his attempts to conceal his drug abuse on two
security clearance applications. Applicant did not demonstrate rehabilitation or
permanent behavioral changes, but instead attempted to minimize and justify his
misconduct. The potential for recurrence, pressure, coercion, and duress remains
undiminished. He provided insufficient evidence concerning his professional
performance or character to mitigate the security concerns raised by his misconduct.
Overall, the evidence creates substantial doubt as to Applicant’s eligibility and suitability
for a security clearance.
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Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline H: AGAINST APPLICANT
Subparagraphs 1.a and 1.b: Against Applicant
Subparagraph 1.c: For Applicant
Paragraph 2, Guideline E: AGAINST APPLICANT
Subparagraphs 2.a through 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.
                                              
DAVID M. WHITE
Administrative Judge