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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 15-02712 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Mary M. Foreman, Esq., Department Counsel 
For Applicant: Eric A. Eisen, Esq.  
 
 
______________ 
 
Decision 
______________ 
 
 
CREAN, THOMAS M., Administrative Judge: 
 
Based on a review of the pleadings, exhibits, and testimony, I find that Applicant 
failed to mitigated drug involvement and personal conduct security concerns. Eligibility 
for access to classified information is denied. 
 
Statement of the Case 
 
Applicant submitted an Electronic Questionnaire for Investigations Processing (e-
QIP) in April 2010 to obtain a security clearance required for his duties with a defense 
contractor. Applicant received interim eligibility for access to classified information. 
Applicant applied to upgrade his eligibility for access to classified information in 
November 2011. On September 23, 2015, The Department of Defense (DOD) issued 
Applicant a Statement of Reasons (SOR) detailing security concerns for drug 
involvement (Guideline H) and personal conduct for falsifying material facts on the two 
e-QIPs. (Guideline E). These actions were 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 
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adjudicative guidelines (AG) effective in the Department of Defense on September 1, 
2006.  
 
 Applicant initially answered the SOR on October 19, 2015. He admitted the 
allegation of marijuana use, but denied the allegation of falsifying material facts on the 
e-QIPs. On September 23, 2016, DOD amended SOR allegation 1.a, to add the words 
“after being granted a DoD industrial security clearance on August 19, 2010.” On 
October 16, 2016, Applicant admitted SOR allegation 1.a as amended. Department 
Counsel was prepared to proceed on August 3, 2016, and the case was assigned to me 
on October 19, 2016. The Defense Office of Hearings and Appeals (DOHA) issued a 
Notice of Hearing on February 13, 2017, scheduling a hearing for March 13, 2017. I 
convened the hearing as scheduled. The Government offered three exhibits, which I 
marked and admitted into the record without objection as Government Exhibits (GX) 1 
through 3. Applicant testified, and offered six exhibits which I marked and admitted into 
the record without objection as Applicant Exhibits (AX) A through F. DOHA received the 
transcript of the hearing (Tr.) on March 21, 2017. 
 
Findings of Fact 
 
 Applicant’s admissions are included in my findings of fact. After a thorough 
review of the pleadings, transcript, and exhibits, I make the following additional findings 
of fact. Applicant is 40 years old, and graduated from college in 1999 with a bachelor’s 
degree in computer information systems. In high school and college, Applicant was 
active as a singer in school and church musical programs. After graduation from 
college, he moved close to his family and remained active in professional musical 
programs. He worked in various information technology positions including working 
overseas for the defense contractor who is his present employer. He submitted a 
security clearance application (SCA) in 2010, and received eligibility for access to 
classified information. However, he did not access any classified information while in 
these positions. He is not married, but lives with his fiancé. He never served on active 
duty in the military. (Tr. 16-28; Gov. Ex. 1, e-QIP, dated November 29, 2011; GX 2, e-
QIP, dated April 9, 2010) 
 
The SOR alleges, and Applicant admits, that he used marijuana in June 2011 
after being granted eligibility for access to classified information (SOR 1.a). The SOR 
also alleges that Applicant provided false information on his November 29, 2011 e-QIP 
in response to question 23 asking about illegal drug activity by providing the date of 
01/2007 for his most recent use rather than June 2011 (SOR 2.a). Applicant denied this 
allegation. He also denied providing false information on his April 9, 2010 e-QIP by 
responding “no” to question 23 asking in the last seven years had he used an illegal 
drug. He used marijuana on occasion from October 2000 to January 2007 (SOR 2.b).  
 
Applicant did not drink alcohol or use illegal drugs in high school or college. He 
first used marijuana with friends in 2000 when he was 23 years old. He used marijuana 
about once a year with friends for the next few years. He stopped using marijuana in 
2007. When completing his SCA in 2010, Applicant did not think about his prior use of 
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marijuana. He stated that he did not intentionally omit reference to his prior marijuana 
use on his 2010 SCA. (Tr. 28-33, 35-36)  
 
In 2011, Applicant took a difficult professional licensing examination while 
stationed overseas for his contractor employer. When he passed the examination, he 
took a trip to England as a reward. On his way back to his duty station, he stopped in 
Amsterdam for a few days. He used marijuana, which was legal in the Netherlands, one 
time. He did not think at the time about his eligibility for access to classified information. 
(Tr. 33-34, 36-37) 
 
Applicant completed his second SCA in November 2011. He checked his first 
SCA and was surprised by his “no” response to the use of illegal drugs question. He 
corrected his previous answer by noting his use of marijuana five or six times from 2000 
to 2007 on the November 2011 SCA. However, he did not note his use of marijuana in 
Amsterdam in 2011 because he believed his use at the time was in a place where 
marijuana use was legal and the question referred to illegal use. He later discussed 
using marijuana in Amsterdam with a security investigator during his personal subject 
interview. (Tr. 38-39) 
 
Applicant acknowledged that he used marijuana after college about once a year 
from 2000 to 2007. In 2011, he used marijuana in Amsterdam. At the time, he was 
working for a defense contractor, held a security clearance, and believed use of 
marijuana in Amsterdam to be legal but understood it was not legal in the United States. 
He did not know why he did not note the 2000 to 2007 marijuana use on his April 2010 
SCA. He now knows he should have reported his previous use. In completing his 
second SCA, he realized his previous answers concerning use of marijuana were 
improper, so he wanted to correct his error. He disclosed his prior use. He did not 
disclose his use five months earlier in Amsterdam. He believed his use in Amsterdam to 
be legal. (Tr. 39-47; AX E, Section 23, e-QIP, November 29, 2011) 
 
Applicant provided a Statement of Intent not to use illegal drugs in the future. He 
also agreed to automatic revocation of his security clearance for any violation of use of 
illegal drugs. (AX F, Statement, dated March 11, 2017)  
 
Applicant also provided letters of recommendation. A former work associate 
stated that she has known Applicant for over 15 years. She has a high trust in him 
because he is dependable, faithful, unfailing, and a person she can go to with problems 
and issues. After Applicant deployed overseas, she confided in him about her own 
problems. Applicant assisted her to resolve her problems. (AX A, Letter, dated January 
12, 2017) 
 
A friend of Applicant for over 20 years wrote that Applicant is careful, cautious, 
safety conscious, and has excellent judgment. He has no doubt that Applicant can be 
trusted to do his duty and exercise discretion. (AX B, Letter, dated February 20, 2017) 
 
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A long-term friend of Applicant, who is an assistant district attorney, wrote that 
Applicant is intelligent, outgoing, engaging, honest, and trustworthy. Applicant is a 
competent, trustworthy, and diligent worker. He follows all rules and always tries to do 
his best job. The friend has no hesitation to give Applicant highest recommendation. 
(AX C, Letter, dated January 16, 2017). 
 
A church pastor has known Applicant as a member of his church for over seven 
years. He has worked closely with Applicant in providing youth ministries. He spent time 
with Applicant socially and never saw him drink alcohol to excess or use illegal drugs. 
(AX D, Letter, undated) 
 
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the Administrative Guidelines. 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 common sense 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. 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, the applicant is 
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, 
or mitigate facts admitted by applicant or proven by department counsel. . .” The 
applicant has the burden of persuasion 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 
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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 
 
Drug Involvement 
 
The use of an illegal drug or misuse of a prescription drug can raise questions 
about an individual’s reliability and trustworthiness, because it may impair judgment and 
raises questions about a person’s ability or willingness to comply with laws, rules, and 
regulations. Drug abuse is the illegal use of a drug or use of a legal drug in a manner 
that deviates from approved medical direction. Drugs are defined as mood and behavior 
altering substances, including drug material and other chemical compounds identified 
and listed in the Controlled Substances Act of 1970. Marijuana or cannabis is included 
in the Schedule 1 list. (AG ¶ 24)  
 
Applicant admitted using marijuana five or six times from 2000 to 2007. He 
admitted using marijuana in June 2011 after receiving a security clearance. These facts 
raise the following Drug Involvement Disqualifying Conditions under AG ¶ 25: 
 
(a) any drug use; and 
 
(g) any illegal drug use after being granted a security clearance. 
 
 I considered the following Drug Involvement Mitigating Conditions under AG ¶ 
26: 
 
(a) the behavior happened so long ago, was so infrequent, or happened 
under such unusual 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 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; (4) a signed statement of intent with automatic 
revocation of clearance for any violation. 
 
While there is no "bright line" rule for determining when conduct is recent or 
sufficient time has passed since the incidents, a determination whether past conduct 
affects an individual's present reliability and trustworthiness must be based on a careful 
evaluation of the totality of the evidence. If the evidence shows a significant period of 
time has passed without evidence of drug involvement, there must be an evaluation 
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whether that period of time demonstrates changed circumstances or conduct sufficient 
to indicate a finding of reform or rehabilitation. 
 
 These mitigating conditions apply only in part. Applicant admits to using 
marijuana five or six time from 2000 to 2007, and again once in 2011. There is no 
reported use of marijuana since June 2011. While Applicant used marijuana over ten 
years ago, he voluntarily used marijuana one time only six years ago. His voluntary use 
in 2011 negates a finding that his use is so infrequent or happens under unusual 
circumstances that it is unlikely to happen again. His use in 2011 shows that it may 
happen again. His voluntary use of marijuana in 2011 undercuts his stated intent not to 
use marijuana in the future. His last use of marijuana was only six years ago under 
circumstances that can likely recur. Under these circumstances, there has not been an 
appropriate period of abstinence. Applicant has not established circumstances that 
could indicate a change in lifestyle and circumstance. Applicant failed to mitigate 
security concerns for drug involvement.  
 
Personal Conduct 
 
 Personal conduct is a security concern because conduct involving questionable 
judgment, untrustworthiness, unreliability, or unwillingness to comply with rules and 
regulations can raise questions about an individual’s reliability, trustworthiness, and 
ability to protect classified and sensitive information. Of special interest is any failure to 
provide truthful and candid answers during the process to determine eligibility for 
access to classified information or any other failure to cooperate with this process (AG ¶ 
15). Personal conduct is always a security concern because it asks whether the 
person’s past conduct justifies confidence the person can be trusted to properly 
safeguard classified or sensitive information. Authorization for a security clearance 
depends on the individual providing correct and accurate information. If a person 
conceals or provides false information, the security clearance process cannot function 
properly to ensure that granting access to classified or sensitive information is in the 
best interest of the United States Government.  
 While there is a security concern for a deliberate omission, concealment, or 
falsification of a material fact in any written document or oral statement to the 
Government when applying for a security clearance, not every omission, concealment, 
or inaccurate statement is a falsification. A falsification must be deliberate and material. 
It is deliberate if done knowingly and willfully with intent to deceive. 
 The SOR alleges that Applicant did not provide full, complete, and accurate 
information concerning his drug use in responses to drug use questions on two SCAs. 
On his April 2010 SCA, he did not list his use of marijuana from 2000 to 2007. He did 
not know why he failed to report this use of marijuana on the SCA. He listed the 2000 to 
2007 marijuana use on his November 2011 SCA. However, he failed to note his use of 
marijuana only five months earlier while being eligible for access to classified 
information. His reason for not listing this marijuana use was that marijuana use was not 
illegal in the city where he used the drug. 
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There is evidence indicating Applicant may not have provided full, complete, and 
accurate information to the security investigators. Applicant’s failure to list his marijuana 
use on both SCAs raises a security concern under Personal Conduct Disqualifying 
Condition 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 eligibility or trustworthiness, or award fiduciary responsibilities). 
 
 Applicant denied that he intentionally did not provide full, complete, and accurate 
information to security investigators. Applicant did not know why he did not provide 
accurate information on his first SCA. He did not provide the marijuana use information 
in Amsterdam on the second application because his use was in a place where 
marijuana use was legal. Applicant knew of his use from 2000 to 2007 and had no 
reasonable explanation why he did not list this use of marijuana. Applicant’s explanation 
why he did not note his use of marijuana five months earlier on his second SCA is not 
reasonable under the circumstances. Applicant’s failures to list his marijuana use were 
deliberate and not the result of a misunderstanding of why the government was 
concerned about use of illegal substances. I find Applicant deliberately failed to provide 
correct and accurate information on drug use on his SCAs, and conclude that Applicant 
did not mitigate the personal conduct security concern. 
 
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. 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 
the facts and circumstances surrounding this case. I considered that the letters of 
recommendation from Applicant’s friends and co-workers and Applicant’s letter of intent 
not to use illegal drugs in the future. The allegations under Guidelines E and H, as 
established by the government’s evidence, reflect a lack of judgment by Applicant. The 
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evidence shows a recent use of marijuana while having eligibility for access to classified 
information and two separate failures to disclose marijuana use. Applicant’s explanation 
for failing to disclose marijuana use and marijuana use while holding a security 
clearance is that he just did not think about his use marijuana under the circumstances. 
Applicant’s actions show a lack of good judgment. He showed a lack of judgment when 
he did not list his prior use of marijuana on his first SCA and could not provide an 
explanation or reason for his failure. He showed a lack of judgment when he used 
marijuana in Amsterdam without thinking about the fact he had eligibility for access to 
classified information. He knew that while marijuana use was legal in Amsterdam, it was 
not legal under federal law or while holding a security clearance. He again showed a 
lack of judgment when he executed his second e-QIP and did not note his marijuana 
use in Amsterdam only five month earlier. Applicant’s statement of intent not to use 
marijuana in the future has little impact because of his recent voluntary use. 
 
Applicant admitted using marijuana five or six times from 2000 to 2007, and 
voluntarily one time in 2011. Applicant has not established that he did not deliberately 
provide false information concerning his drug use on two SCAs. These facts leave me 
with questions and doubts about Applicant’s judgment and his suitability for access to 
classified information. For all these reasons, I conclude that Applicant has not mitigated 
drug involvement and personal conduct security concerns. Eligibility for access to 
classified information is denied. 
 
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:   AGAINST APPLICANT 
 
  Subparagraph 1.a:   Against Applicant 
 
 Paragraph 2, Guideline E:   AGAINST APPLICANT 
 
  Subparagraphs 2.a - b:  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. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge