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                DEPARTMENT OF DEFENSE 
        DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
) 
---------------------- )       ISCR Case No. 15-07176 
) 
) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Andrew H. Henderson, Esquire, Department Counsel 
 
For Applicant: Pro se 
 
 
June 6, 2017 
 
______________ 
 
Decision 
______________ 
 
ROSS, Wilford H., Administrative Judge: 
 
 
Statement of the Case 
 
Applicant submitted his most recent Electronic Questionnaire for Investigations 
Processing (e-QIP) on May 7, 2014. (Government Exhibit 1.) On June 9, 2016, the 
Department of Defense Consolidated Adjudications Facility (DoD CAF) issued a 
Statement of Reasons (SOR) to Applicant, detailing security concerns under Guidelines 
H (Drug Involvement) and 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 July 6, 2016, and requested a 
hearing before an administrative judge. Department Counsel was prepared to proceed on 
August 11, 2016. The case was assigned to me on August 17, 2016. The Defense Office 
of Hearings and Appeals (DOHA) issued a Notice of Hearing on August 30, 2016. I 
convened the hearing as scheduled on October 18, 2016. The Government offered 
Government Exhibits 1 through 3, which were admitted without objection.1 Applicant 
offered Applicant Exhibits A through D, which were admitted without objection, and 
testified on his own behalf.2 One additional witness testified on Applicant’s behalf. DOHA 
received the transcript of the hearing (Tr.) on October 26, 2016. 
  
 
Findings of Fact 
 
Applicant is a single, 30-year-old employee of a defense contractor. He received 
a bachelor’s degree in 2010. (Government Exhibit 1 at Section 12.) He has been 
employed by a defense contractor since 2010, and is seeking to retain a security 
clearance previously granted in connection with that employment.  
 
Paragraph 1 (Guideline H – Drug Involvement) 
 
 The Government alleged in this paragraph that Applicant is ineligible for clearance 
because he has used illegal drugs. Applicant admitted all the allegations under this 
paragraph. He also submitted additional evidence to support the finding of eligibility for 
access to classified information.  
 
1.a. Applicant admitted that from approximately 2004 through 2009, when he was 
in high school and college, he used marijuana approximately 50 times primarily during 
summer months. (Government Exhibit 1 at Section 23, Exhibit 3 at 6; Tr. 20, 32-33, 61-
62.) 
 
In addition, Applicant stated that in 2011 he ate a piece of cake that, unknown to 
him, had marijuana in it. (Government Exhibit 3 at 7; Tr. 20-21, 33-35.)  
 
1.b. Applicant admitted he used various hallucinogenic drugs, including LSD, 
Ecstasy, ketamine, and psilocybin mushrooms from 2004 through 2009. Applicant 
estimated he used such substances between 20 and 30 times during this period. 
Applicant admitted that he liked using hallucinogens for the experience. He further 
admitted that he missed drug use, “A little bit.” However, Applicant has repeatedly stated 
                                                 
1 Department Counsel also requested administrative notice be taken of facts contained in publications from 
the U.S. Department of Justice, Drug Enforcement Administration and the National Institutes of Health. 
Applicant had no objection, and the documents are entered into the record as Government Exhibits 4 and 
5. The facts administratively noticed are set forth in the Findings of Fact, below. (Tr. 11-13.)   
2 Applicant submitted a written closing statement on October 21, 2016. Department Counsel objected, 
stating that the record was not left open for submission of additional documentation. Pursuant to Directive, 
Additional Procedural Guidance ¶ E3.1.10 I am admitting the document as Applicant Exhibit E for 
Identification, and considering its content as argument only.  
 
 
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that he will not use any illegal drugs while possessing a security clearance. (Government 
Exhibit 1 at Section 23, Exhibit 3 at 8-11; Tr. 37-43, 60, 62-64, 70-71.)3 
 
1.c. In 2012 Applicant used the substance. He had used it several times while in 
college. Department Counsel affirmed that salvia, while a hallucinogen, is not a controlled 
substance. Applicant stated that his use of salvia after obtaining a security clearance was 
a mistake. He further testified, “I regretted that immediately. That was a moment of 
weakness. I do feel bad about that. I shouldn’t have done that.” (Tr. 46-47.)  
 
1.e, 1.f, 1.g, 1.h, and 1.i. Applicant admitted that he used several other potentially 
hallucinogenic substances on an experimental basis (usually less than five times for each 
substance) during the period from 2004 through 2009. These included 2C-I, 2C-E, eating 
a cactus, kawa kawa (Kava), and nitrous oxide. At the time of Applicant’s use, none of 
these substances was a Federal controlled substance. However, the synthetic 
hallucinogens 2C-I and 2C-E became Schedule I controlled substances in 2012. 
(Government Exhibit 4; Tr. 12, 43-45, 60-62.) 
 
1.d. Applicant admitted using drugs while employed as a lifeguard during the 
period from 2004 through 2009. He further admitted that his employment as a lifeguard 
could be viewed as one directly affecting public safety. Applicant stated in his Answer, 
“When using drugs other than marijuana, I gave myself at least one rest day before going 
in to work.” (Tr. 49-51.) 
 
An additional evidentiary fact of note is that Applicant has lived, and continues to 
live, with a person he used to use drugs with. (Tr. 48-49.)  
 
Paragraph 2 (Guideline E – Personal Conduct) 
 
The Government alleged in this paragraph that Applicant is ineligible for clearance 
because he has engaged in conduct that shows poor judgment, untrustworthiness or 
unreliability.  
 
Applicant filled out an e-QIP on April 7, 2010. (Government Exhibit 2.) Section 23 
of the questionnaire asked Applicant about his drug use history. Applicant admitted using 
and selling marijuana, mushrooms, Ecstasy, and LSD on an infrequent basis from 2004 
through 2007. This answer understated the extent of Applicant’s drug use, as well as 
misstating the date it actually ended in 2009. Applicant testified that he panicked when 
filling out this questionnaire because of the difficulties people had at that time in finding 
employment in his profession. He further stated in his testimony, about his answer 
concerning when he ended drug use, “That [answer] was false. Just plain false.” He 
                                                 
3 Though not alleged in the SOR, Applicant also admitted that he purchased and sold LSD and psilocybin 
mushrooms in 2006 and 2007. These facts cannot be used against Applicant in determining whether the 
Government has established a prima facie case. They can, however, be considered in determining whether 
Applicant has mitigated the allegations against him, and in considering the whole-person factors. 
(Government Exhibit 3 at 8-9; Tr. 38-41, 53.) 
 
 
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further testified that in making false statements on this questionnaire, “I very much broke 
my own moral code.” (Tr. 18-21.) 
 
Applicant filled out a second e-QIP on May 7, 2014. (Government Exhibit 1.) He 
was much more forthcoming about his drug use in Section 23 of this questionnaire. He 
was also much more truthful during interviews with investigators from the Office of 
Personnel Management. (Government Exhibit 3; Tr. 17-18, 66-70.)  
 
The SOR also alleged Applicant falsified Government Exhibit 2 by not admitting he 
used the synthetic hallucinogens 2C-E and 2C-I during 2004 and 2006. However, as 
stated above, those substances were not Schedule I controlled substances at the time of 
his use, or at the time he filled out the first questionnaire. Accordingly, since the question 
asks about “illegal use of drugs or drug activity,” the exclusion of those drugs from his 
answer was correct at the time. These subparagraphs are found for Applicant. 
 
Applicant did not admit in his 2010 questionnaire that he had used ketamine once 
in 2006. The SOR alleged that this failure also amounted to a falsification. Given his other 
admissions on that form of extensive drug use, even though far from complete, I find this 
omission to be accidental. Accordingly, this subparagraph is also found for Applicant. 
 
In his 2010 questionnaire Applicant answered, “No,” to the question of whether he 
had ever used an illegal controlled substance while in a position directly or immediately 
affecting public safety. When Applicant filled out a new e-QIP in 2014 he changed that 
answer and admitted that he had used drugs while employed as a lifeguard during the 
summers from 2004 through 2006. Applicant stated that he had changed his mind during 
the ensuing years as to whether his work as a lifeguard was directly concerning public 
safety. (Tr. 15-17, 51.) I find that Applicant was genuinely confused about whether his job 
as a lifeguard affected public safety when he filled out the first e-QIP in 2010. Therefore, 
his negative answer was not an attempted falsification. This subparagraph is also found 
for Applicant. 
 
Mitigation 
 
 A co-worker and friend testified on Applicant’s behalf. He has known Applicant 
since 2010. The witness has knowledge of the allegations in the SOR. He finds Applicant 
to be a “very stable, intelligent, honest and loyal friend and citizen,” worthy of a security 
clearance. The witness also testified that the allegations in the SOR are inconsistent with 
the Applicant he has known since 2010. (Tr. 74-84.)  
 
 Letters of recommendation were submitted for Applicant from people who know 
him personally and professionally. (Applicant Exhibits A, B, C, and D.) All of his co-
workers, including his current supervisor, recommend him for a position of trust, and also 
indicated their understanding of security clearance requirements. The writers of Applicant 
Exhibits C and D specifically indicated that they have knowledge of the drug and 
falsification allegations concerning Applicant. (Tr. 30-31.)   
 
 
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Policies 
 
Security clearance decisions are not made in a vacuum. 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 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. In addition, 
the administrative judge may also rely on his or her own common sense, as well as 
knowledge of the law, human nature, and the ways of the world, in making a reasoned 
decision. 
 
The protection of the national security is the paramount consideration. AG & 2(b) 
requires that AAny 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, AThe 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: AAny 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. 
 
 
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Analysis 
 
Paragraph 1 (Guideline H – Drug Involvement) 
 
 The security concern relating to Drug Involvement is set forth in AG ¶ 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. 
 
(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. 
 
 I have examined the disqualifying conditions under AG ¶ 25 and especially 
considered the following: 
 
 (a) any drug use;  
 
 (g) any illegal drug use after being granted a security clearance; and 
 
(h) expressed intent to continue illegal drug use, or failure to clearly and 
convincingly commit to discontinue drug use. 
 
 The following mitigating conditions under AG ¶ 26 may also apply to the facts of 
this case: 
 
(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; and 
 
 
 
 
 
 
 
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(b) a demonstrated intent not to abuse any drugs in the future, such as: 
 
 (2) changing or avoiding the environment where drugs were used; 
 
 (3) an appropriate period of abstinence. 
 
 Applicant engaged in significant illegal drug use, along with the use of then-legal 
hallucinogenic drugs, from 2004 through 2009. He used many of these drugs 
experimentally, in that he wanted to gain knowledge from the experience. Applicant 
testified that he enjoyed using drugs, and misses using drugs “a little bit.” It is also of note 
that his long-time roommate is a person who Applicant used drugs with in the past. 
 
 On the other hand, Applicant has not knowingly used any illegal drugs in seven 
years as of the date the record closed. He expressed considerable regret at his one-time 
use of the legal substance salvia in 2012. Applicant has repeatedly stated that he will not 
use illegal drugs in the future while he holds a security clearance. Applicant’s testimony 
was blunt and honest about his past drug use and his intentions about not using drugs in 
the future. 
 
 Examining the record as a whole, particularly the period of abstinence from illegal 
drug use, I find that Applicant has clearly and convincingly committed to not using drugs 
in the future. He has successfully mitigated the security significance of his drug use. 
Paragraph 1 is found for Applicant. 
 
Paragraph 2 (Guideline E – Personal Conduct) 
 
The security concern relating to Personal Conduct is set out in AG ¶ 15: 
 
Conduct involving questionable judgment, lack of candor, dishonesty or 
unwillingness to comply with rules or 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. 
 
 I have examined the disqualifying conditions under AG ¶ 16 and especially 
considered the following:   
 
(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 
 
 
 
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(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. . . 
 
 The following mitigating conditions under AG ¶ 17 apply to the facts of this case: 
 
(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; and 
 
(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 facts that caused untrustworthy, unreliable, or 
other inappropriate behavior, and such behavior is unlikely to recur. 
 
 In 2010 Applicant falsified his first e-QIP by not telling the absolute truth. Indeed, 
Applicant admitted that his conduct was purposeful in understating the extent and 
longevity of his illegal drug use. He was in his early 20s at that time and a recent graduate 
looking for his first adult job. To his credit, Applicant did not use those reasons as an 
excuse for his conduct. By 2014 Applicant had been employed in the defense industry for 
several years and better understood the requirement for truthfulness. His 2014 e-QIP was 
extensive and truthful. Applicant well understood the possible adverse consequences of 
his truthfulness. He has mitigated the impact of his original incomplete questionnaire, 
which was filled out six years before the record closed. AG ¶¶ 17(b) and 17(c) apply. 
Paragraph 2 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 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.  
 
 
 
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 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 has mitigated his 
intentional illegal drug use that ended at least seven years ago, and sufficient time has 
passed since he falsified a questionnaire, particularly since he has been truthful since 
then. I have particularly considered his truthfully admitting his history of buying and selling 
various drugs at least nine years ago. His history since 2010 is of a law abiding, 
trustworthy, and responsible person and employee. Overall, the record evidence does not 
create doubt as to Applicant=s present eligibility and suitability for a security clearance. 
 
 
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:    FOR APPLICANT 
 
Subparagraphs 1.a through 1.i:   For Applicant 
 
Paragraph 2, Guideline E:    FOR APPLICANT 
 
Subparagraphs 2.a through 2.f:   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 or continue Applicant=s eligibility for a security 
clearance. Eligibility for access to classified information is granted. 
                                                  
 
 
WILFORD H. ROSS 
Administrative Judge