1 
 
                                                              
DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
[Redacted] )  ISCR Case No. 16-00828 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Nicole A. Smith, Esq., Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
FOREMAN, LeRoy F., Administrative Judge: 
 
This case involves security concerns raised under Guidelines H (Drug 
Involvement), E (Personal Conduct), and F (Financial Considerations). Eligibility for 
access to classified information is denied. 
 
Statement of the Case 
 
Applicant submitted a security clearance application (SCA) on March 22, 2015. 
On July 1, 2016, the Department of Defense Consolidated Adjudications Facility (DOD 
CAF) sent him a Statement of Reasons (SOR) alleging security concerns under 
Guidelines H, E, and F. The DOD CAF acted under Executive Order (Exec. Or.) 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. The adjudicative guidelines are 
codified in 32 C.F.R. § 154, Appendix H (2006), and they replace the guidelines in 
Enclosure 2 to the Directive. 
 
2 
 
 Applicant answered the SOR on July 15, 2016, and requested a hearing before 
an administrative judge. Department Counsel was ready to proceed on September 7, 
2016, and the case was assigned to me on October 20, 2016. On October 26, 2016, the 
Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was 
scheduled for November 15, 2016. I convened the hearing as scheduled. Government 
Exhibits (GX) 1 and 3 through 6 were admitted in evidence without objection. GX 2, a 
summary of a personal subject interview conducted during Applicant’s background 
investigation, was not admitted because he declined to waive the authentication 
requirement of the Directive ¶ E3.1.20. (Tr. 27-28.) He testified and submitted 
Applicant’s Exhibit (AX) A, which was admitted without objection. DOHA received the 
transcript (Tr.) on November 28, 2016. 
 
Findings of Fact1 
 
 In his answer to the SOR, Applicant admitted the allegations in SOR ¶¶ 1.a-1.e, 
denied the allegations in SOR ¶¶ 2.a and 2.b, and admitted the allegations in SOR ¶¶ 
3.a-3.j. His admissions in his answer and at the hearing are incorporated in my findings 
of fact.  
 
 Applicant is a 42-year-old electrician employed by a defense contractor since 
February 2014. He has been employed by various defense contractors since June 
1998. He has held a security clearance since December 2006. He applied for a 
clearance in 1998, but his application was denied in June 1999. (GX 3 at 6; Tr. 66.) 
 
 Applicant has never married. He has lived with a cohabitant since September 
2010. He has eight children, ranging in age from 1 to 19. His two youngest children live 
with him and their mother. At one time, he was paying $1,800 per month in child support 
for six children; he now pays $680 for four children. (GX 1 at 19-23; Tr. 33-35.) 
 
 Applicant testified that, as of the date of the hearing, his gross income for the 
calendar year was about $53,000. When he works eight-hour days, his net monthly pay 
is between $800 and $900. With overtime, his net monthly pay is about $1,200 to 
$1,400. (Tr. 67-68.) He estimated that he has a net monthly remainder of about $200 
after paying all his bills. He has no savings and nothing in his retirement account. (Tr. 
33-36.) 
 
 When Applicant submitted an SCA in June 2005, he disclosed that he was 
charged with possession of marijuana in May 1997, and that the charges had been 
dismissed. He also disclosed that he was charged with possession of marijuana and 
possession of a controlled substance in March 2000, that the charge of possessing a 
controlled substance was dismissed, and that he was convicted of possessing 
marijuana and given a suspended six-month jail sentence, fined $291, and his driver’s 
license was suspended for 30 days. (GX 3 at 5.)  
 
                                                          
1 Applicant’s personal information is extracted from his security clearance application (GX 1) unless 
otherwise indicated by a parenthetical citation to the record. 
3 
 
In his March 2015 SCA, he stated that he used marijuana four times a week from 
January 1997 to March 2000. (GX 3 at 6.) In his response to the SOR, he admitted that 
he used marijuana with varying frequency from June 1994 to January 2015, and that he 
tested positive for marijuana in a January 2015 urinalysis. At the hearing, he testified 
that he used marijuana occasionally until he was hired by a defense contractor in June 
2000, when he stopped using it because he was subject to urinalysis. (Tr. 39, 41.) He 
tested positive for marijuana in a January 2015 urinalysis after using it at a New Year’s 
party. (Tr. 35-37.) 
 
 When Applicant submitted his most recent SCA in March 2015, he answered 
“No” to the following question: “Have you EVER been charged with an offense involving 
alcohol or drugs?” He did not disclose the marijuana charges in May 1997 and March 
2000. (GX 1 at 28.) He disclosed that he smoked marijuana occasionally until January 
2015, while holding a security clearance, but he stated that he intended to discontinue 
his marijuana use. (GX 1 at 29.) Finally, he disclosed that he was required to participate 
in an eight-week motivational enhancement and early intervention group after his 
positive urinalysis, and that he was still in treatment when he submitted his SCA. (GX 1 
at 30.) 
 
 At the hearing, Applicant denied intentionally falsifying his SCAs. He attributed 
his omissions to confusion about dates and forgetfulness about some of the events. (Tr. 
49.) He also testified that he did not believe he was “charged” with any drug-related 
offenses, because they were dismissed. (Tr. 55.) He did not explain why he did not 
disclose the drug-related charges in March 2000 that resulted in a conviction and 
suspended jail sentence. 
 
 Applicant testified that he had good credit and was able to buy a house in 2008. 
However, when his child-support payments increased from $400 per month to $1,800 
per month he fell behind on his mortgage loan payments, car payments, and other 
obligations, causing the delinquent debts reflected in his credit bureau reports (CBRs) 
from April 2015 (GX 5) and June 2016 (GX 4) and alleged in the SOR, none of which 
are resolved. (Tr. 56-57.) The SOR alleges two delinquent medical bills for $315 and 
$226 (SOR ¶¶ 1.a and 1.b); a credit-card account charged off for $2,550 (SOR ¶ 1.c); a 
home mortgage loan past due for $2,260 (SOR ¶ 1.d); a car loan past due for $4,468 
(SOR ¶ 1.e); a judgment for $3,263 in unpaid bridge tolls (SOR ¶ 1.f); a judgment for 
$2,975 for a delinquent car loan (SOR ¶ 1.g); a judgment for $135 medical bill (SOR ¶ 
1.h); a cellphone bill for $1,842 (SOR ¶ 1.i); and a telecommunications bill for $522 
(SOR ¶ 1.j). 
 
 In October 2016, Applicant filed a petition for Chapter 13 bankruptcy. The petition 
includes all the debts alleged in the SOR. Applicant made his first $840 payment to the 
bankruptcy trustee on November 1, 2016. (AX A.) 
 
4 
 
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 § 2.  
 
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 
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.” 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, 
5 
 
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 H, Drug Involvement 
 
 The SOR alleges that Applicant used marijuana with varying frequency from 
about June 1994 to about January 2015 (SOR ¶ 1.a); he was charged with possession 
of marijuana in about May 1997 (SOR ¶ 1.b); he was charged with possession of 
marijuana in about March 2000 (SOR ¶ 1.c); he used marijuana after he was granted a 
security clearance in December 2006 (SOR ¶ 1.d); and he tested positive for marijuana 
in a January 2015 urinalysis (SOR ¶ 1.e). 
 
The concern under this guideline is set out in AG ¶ 24: AUse 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.@ 
Drugs are defined in AG ¶ 24(a)(1) as A[d]rugs, 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).”  
 
Applicant’s admissions in his answer to the SOR, his disclosures in his SCAs, 
and his testimony at the hearing establish the following disqualifying conditions under 
this guideline: 
 
AG ¶ 25(a): any drug abuse, defined in AG ¶ 24(b) as “the illegal use of a 
drug or use of a legal drug in a manner that deviates from approved 
medical direction”;  
 
AG ¶ 25(b): testing positive for illegal drug use;  
 
AG ¶ 25(c): illegal drug possession, including cultivation, processing, 
manufacture, purchase, sale, or distribution; or possession of drug 
paraphernalia; and 
 
AG ¶ 25(g): any illegal drug use after being granted a security clearance.  
 
 The following mitigating conditions are potentially relevant: 
 
AG ¶ 26(a): the behavior happened so long ago, was so infrequent, or 
happened under such circumstances that it is unlikely to recur or does not 
6 
 
cast doubt on the individual's current reliability, trustworthiness, or good 
judgment; 
 
AG ¶ 26(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; and 
 
AG ¶ 26(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. 
 
 The first prong of AG ¶ 26(a) (Ahappened so long ago@) focuses on whether the 
drug involvement was recent. There are no Abright line@ rules for determining when 
conduct is Arecent.@ The determination must be based on a careful evaluation of the 
totality of the evidence. If the evidence shows Aa significant period of time has passed 
without any evidence of misconduct,@ then an administrative judge must determine 
whether that period of time demonstrates Achanged circumstances or conduct sufficient 
to warrant a finding of reform or rehabilitation.@ ISCR Case No. 02-24452 at 6 (App. Bd. 
Aug. 4, 2004).  
 
 AG ¶ 26(a) is not established. Applicant’s last drug abuse was two years ago, but 
two years is not a significant period of time in the context of a lifetime of drug abuse. He 
resumed his marijuana use in January 2015, after almost ten years of abstinence and 
vulnerability to random urinalysis. His drug abuse was infrequent from 2005 until 
January 2015, but it did not occur under circumstances making it unlikely to recur. 
 
 AG ¶ 26(b) is partially established. Applicant declared his intent to refrain from 
drug use in his SCA and at the hearing, and he no longer associates with drug users. 
However, he has not submitted a statement of intent with provision for automatic 
revocation of his clearance for any violation. 
 
 AG ¶ 26(d) is not fully established. Even if his eight-week motivational 
enhancement and early intervention group qualified as a drug treatment program, he 
has not received a favorable prognosis. 
 
Guideline E, Personal Conduct 
 The SOR alleges that Applicant falsified his June 2005 SCA by stating that he 
used drugs from January 1997 through March 2000, when in fact he used drugs from 
January 1997 through June 2005 (SOR ¶ 2.a). It also alleges that he falsified his March 
2015 SCA by failing to disclose that he was charged with marijuana possession in May 
1997 and March 2000 (SOR ¶ 2.b). 
7 
 
 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 
and candid answers during the security clearance process or any other 
failure to cooperate with the security clearance process.   
 The relevant disqualifying condition in this case is AG ¶ 16(a): “deliberate 
omission, concealment, or falsification of relevant facts from any personnel security 
questionnaire . . . .” 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 level of 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). Applicant has only a high school education, but he has held a clearance 
since 2006, is familiar with the security-clearance process, and understands that drug 
abuse raises serious security concerns.  
 
 With respect to Applicant’s 2005 SCA, he credibly explained that he stopped 
using marijuana when he was hired by a defense contractor in June 2000 and abstained 
for a long period thereafter. Thus, I conclude that AG ¶ 16(a) is not established for the 
2005 SCA, as alleged in SOR ¶ 2.a.  
 
 With respect to Applicant’s 2015 SCA, he claimed that he did not believe he was 
“charged” with any drug offenses because the charges were dismissed, but his claim is 
inconsistent with his disclosure in his 2005 SCA of drug-related charges that were 
dismissed. Furthermore, he has not credibly explained why he did not disclose his 
March 2000 conviction and suspended jail sentence for possession of marijuana. Thus, 
I conclude that AG ¶ 16(a) is established for the 2015 SCA, as alleged in SOR ¶ 2.b. 
 
 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; and 
 
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. 
 
8 
 
 AG ¶ 17(a) is not established. Applicant made no effort to correct his omissions 
until he was confronted with the evidence. 
 
 AG ¶ 17(c) is not established. Intentional falsification of an SCA is not “minor,” 
because falsification of an SCA “strikes at the heart of the security clearance process.” 
ISCR Case No. 09-01652 (App .Bd. Aug. 8, 2011.) Although Applicant’s falsification is 
arguably infrequent, it did not occur under unique circumstances making recurrence 
unlikely. 
 
Guideline F, Financial Considerations 
 
 The SOR alleges ten delinquent debts (SOR ¶¶ 1.a-1.j), all of which are 
unresolved. The concern under this guideline is set out in AG ¶ 18:  
 
Failure or inability to live within one=s means, satisfy debts, and meet 
financial obligations may indicate poor self-control, lack of judgment, or 
unwillingness to abide by rules and regulations, all of which can raise 
questions about an individual=s reliability, trustworthiness and ability to 
protect classified information. An individual who is financially 
overextended is at risk of having to engage in illegal acts to generate 
funds. 
 
 This concern is broader than the possibility that a person might knowingly 
compromise classified information to raise money. It encompasses concerns about a 
person’s self-control, judgment, and other qualities essential to protecting classified 
information. A person who is financially irresponsible may also be irresponsible, 
unconcerned, or negligent in handling and safeguarding classified information. See 
ISCR Case No. 11-05365 at 3 (App. Bd. May 1, 2012). 
 
 Applicant’s admissions, corroborated by his credit bureau reports, establish two 
disqualifying conditions under this guideline: AG ¶ 19(a) (“inability or unwillingness to 
satisfy debts”) and AG ¶ 19(c) (“a history of not meeting financial obligations”). The 
following mitigating conditions under this guideline are potentially applicable: 
 
AG ¶ 20(a): the behavior happened so long ago, was so infrequent, or 
occurred under such circumstances that it is unlikely to recur and does not 
cast doubt on the individual=s current reliability, trustworthiness, or good 
judgment; 
 
AG ¶ 20(b): the conditions that resulted in the financial problem were 
largely beyond the person=s control (e.g., loss of employment, a business 
downturn, unexpected medical emergency, or a death, divorce or 
separation), and the individual acted responsibly under the circumstances; 
 
9 
 
AG ¶ 20(c): the person has received or is receiving counseling for the 
problem and/or there are clear indications that the problem is being 
resolved or is under control; and 
 
AG ¶ 20(d): the individual initiated a good-faith effort to repay overdue 
creditors or otherwise resolve debts. 
 
 AG ¶ 20(a) is not established. Applicant’s delinquent debts are numerous, recent, 
and were not incurred under circumstances making them unlikely to recur. 
 
 AG ¶ 20(b) is not established. Applicant provided no evidence of conditions 
beyond his control. His child-support obligations were incurred because he voluntarily 
chose to father numerous children regardless of his ability to support them. Medical 
debts are frequently due to conditions beyond a person’s control, but Applicant has 
provided no evidence of the circumstances in which his medical debts were incurred.  
 
 AG ¶ 20(c) is not established. Applicant has completed the counseling required 
by the bankruptcy court, but he has just begun making payments under his bankruptcy 
plan, and it is too soon to determine whether his financial problems are under control. 
 
AG ¶ 20(d) is not established. This mitigating condition requires a showing of 
good faith, which means acting in a way that shows reasonableness, prudence, 
honesty, and adherence to duty or obligation. ISCR Case No. 99-0201, 1999 WL 
1442346 at *4 (App. Bd. Oct. 12, 1999). Evidence of past irresponsibility is not mitigated 
by payment of debts only under pressure of qualifying for a security clearance.  A 
promise to pay a delinquent debt in the future is not a substitute for a track record of 
paying debts in a timely manner. ISCR Case No. 07-13041 at 4 (App. Bd. Sep. 19, 
2008). Applicant did not file his bankruptcy petition until he received the SOR, and he 
has not yet established a track record of compliance with his bankruptcy plan. 
 
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 
rehabilitation and other permanent behavioral changes; (7) the motivation 
10 
 
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 Guidelines H, E, and F in my whole-
person analysis, and I have considered the factors in AG ¶ 2(a). After weighing the 
disqualifying and mitigating conditions under Guidelines H, E, and F, and evaluating all 
the evidence in the context of the whole person, I conclude Applicant has not mitigated 
the security concerns raised by his drug involvement, falsification of his March 2015 
SCA, and his delinquent debts. 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 H (Drug Involvement):  AGAINST APPLICANT 
 
  Subparagraphs 1.a-1.e:    Against Applicant 
 
 Paragraph 2, Guideline E (Personal Conduct):  AGAINST APPLICANT 
 
  Subparagraph 2.a:     For Applicant 
 
  Subparagraph 2.b:     Against Applicant 
 
 Paragraph 3, Guideline F (Financial Considerations): AGAINST APPLICANT 
 
  Subparagraphs 3.a-3.j:    Against Applicant 
 
Conclusion 
 
 I conclude that it is not clearly consistent with the national interest to continue 
Applicant’s eligibility for access to classified information. Clearance is denied. 
 
 
 
 
LeRoy F. Foreman 
Administrative Judge