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                             DEPARTMENT OF DEFENSE
               DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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)       ISCR Case No. 15-01611
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)
Applicant for Security Clearance )
Appearances
For Government: Jeff Nagel, Esquire, Department Counsel
For Applicant: Sean Bigley, Esquire
August 11, 2016
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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 November 7, 2012.  On November 9, 2015, the Department of Defense
(DOD) issued a Statement of Reasons (SOR) detailing the security concerns under
Guidelines H and J 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 acknowledged receipt of the SOR on November 30, 2015.  He
answered the SOR in writing through counsel (Answer) on December 8, 2015, and
requested a hearing before an Administrative Judge.  The Defense Office of Hearings
and Appeals (DOHA) received the request soon thereafter, and I received the case
assignment on March 15, 2016.  DOHA issued a notice of hearing on March 16, 2016,
and I convened the hearing as scheduled on April 5, 2016.  The Government offered
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Exhibits (GXs) 1 through 4.  Applicant’s counsel objected to GXs 2 and 4, which were
admitted on a limited basis.  (Transcript (TR) at page 12 line 14 to page 13 line 15, and
at page 14 line 6 to page 15 line 16.)  Applicant testified on his own behalf, as did his
wife, and submitted Exhibits (AppXs) A through E, which were received without
objection.  DOHA received the transcript of the hearing on April 13, 2016.  I granted
Applicant’s request to keep the record open until April 12, 2016, to submit additional
matters.  On April 5, 2016, he submitted Exhibit F, which was received without
objection.  The record closed on April 13, 2016, the date the transcript was received.
Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to
classified information is granted.
Findings of Fact
In his Answer to the SOR, Applicant admitted the factual allegations in
Subparagraphs 1.b.~1.g., and 2.a.~2.c. of the SOR, with explanations.  He denied the
factual allegations in Subparagraphs 1.a. and 1.h. of the SOR.  He also provided
additional information to support his request for eligibility for a security clearance.
Guideline H - Drug Involvement
Applicant is 28 years old and has been employed by a defense contractor for
more than four years.  (TR at page 26 lines 14~23.)  While attending college, at the age
of nineteen and just prior to his present employment, he used a number of illegal
substances, which will be delineated below.  (TR at page 28 line 21 to page 30 line 11.)
Since his present employment, he no longer associates with those fellow students with
whom he did drugs.  (TR at page 33 line 15 to page 34 line 9, and at page 48 lines
1~15.)  This is also attested to by his wife.  (TR at page 24 line 15 to page 25 line 1.)
Applicant has submitted “a signed statement of intent with automatic revocation of his
clearance” as to any illegal substance abuse.  (AppX C.)  He has also submitted an
evaluation from a “Substance Abuse Professional,” who avers that Applicant “is
trustworthy,” and that Applicant does not pose “any threat to public safety or the interest
of national security.”  (AppXs A and F.)
1.a.  Applicant admits that he used marijuana, “about 100 or so times,” from
about December of 2005 to the “summer or early fall of 2011.”  (TR at page 40 line 19 to
page 41 line 3, and Answer at pages1~2.)
1.b.  Applicant admits that he used cocaine “three or four times” while attending
parties from about January of 2007 to January of 2010.  (TR at page 41 line 4 to page
42 line 2, and Answer at pages 2~3.)
1.c. and 1.d.  Applicant admits that he used Ecstasy three times from about
January of 2007 to January of 2010, and that he used Hallucinogenic Mushrooms twice
from about June of 2008 to February of 2009.  (TR at page 42 line 10 to page 43 line
10, and Answer at page 3.)
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1.e.~1.g.  Applicant admits that he used Xanax once in 2007, Aderall three times
from January 2006 to January of 2009, and Vicadine three times from January 2007 to
January 2011, all without having prescriptions for their usage.  (TR at page 45 line 6 to
page 46 line 5, and Answer at page 3.)
1.h.  Applicant denies that he ever purchased marijuana.  (TR at page 30 lines
12~16.)
Guideline J - Criminal Conduct
2.a.  Applicant admits that in December of 2006, at the age of 19, he was
arrested and charged for the theft of beer.  He was cited and fined.  (TR at page 34 line
10 to page 35 line 7, and at page 49 lines 17~21.)
2.b.  Applicant admits that in March of 2011, during Saint Patrick’s Day
celebrations, he was charged with public intoxication.  The charge was eventually
dropped.  (TR at page 35 line 15 to page 36 line 21, and at page 49 line 22 to page 52
line 4.)
2.c.  Applicant admits that his Drug Involvement, noted in Paragraph 1 of the
SOR, also constituted Criminal Conduct.
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the revised 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
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
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.
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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 “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.  Here, the
Applicant used drugs over a five year period ending the summer or early fall of 2011.
However, I find two countervailing mitigating conditions that are applicable here.  Under
Subparagraph 26(a) it may be mitigating where “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.”  Applicant’s past drug involvement occurred nearly five years ago.
Furthermore, under Subparagraph 26(b)(4) it may also be mitigating where there is “a
demonstrated intent not to abuse any drugs in the future, such as: (4) a signed
statement of intent with automatic revocation of clearance for any violation.”  Applicant
has submitted such a declaration.  (AppX C.)  Drug involvement is found for Applicant.
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Guideline J - Criminal Conduct
Paragraph 30 of the adjudicative guidelines sets out the security concern relating
to Criminal Conduct:
Criminal activity creates doubt about a person=s judgment, reliability, and
trustworthiness.  By its very nature, it calls into question a person=s ability
or willingness to comply with laws, rules and regulations.
The adjudicative guidelines set out certain conditions that could raise security
concerns.  Paragraph 31(a) provides that “a single serious crime or multiple lesser
offenses,” may raise security concerns.  Applicant was charged with theft in 2006, with
public intoxication in 2011, and used illegal substances over a five year period ending
the summer or early fall of 2011.  However, I find the countervailing mitigating condition
under Subparagraph 32(a) to be applicable, here.  It may be mitigating when “so much
time has elapsed since the criminal behavior happened, or it happened under such
unusual circumstances that it is unlikely to recur and does not cast doubt on the
individual’s reliability, trustworthiness, or good judgment.”  Applicant’s Criminal Conduct
ended about five years ago, with his swearing off the use of illegal substances.  Criminal
Conduct is found for 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.  Those who know the Applicant in the
workplace speak most highly of him.  (AppXs B and E.)  The record evidence leaves me
without questions and doubts as to Applicant’s eligibility and suitability for a security
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clearance.  For all these reasons, I conclude Applicant has mitigated the security
concerns arising from his admitted Drug Involvement and Criminal 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: FOR APPLICANT
Subparagraphs 1.a.~1.h.: For Applicant
Paragraph 2, Guideline J: FOR APPLICANT
Subparagraph 2.a.~2.c.: 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 access to classified information is granted.
Richard A. Cefola
Administrative Judge