1 
     DEPARTMENT OF DEFENSE 
 DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: ) 
) 
) ISCR Case No. 16-00812 
) 
) 
Applicant for Security Clearance ) 
Appearances 
For Government: Bryan Olmos, Esq., Department Counsel 
For Applicant: Pro se 
October 6, 2017 
______________ 
Decision 
______________ 
Jennifer I. Goldstein, Administrative Judge: 
On April 27, 2015, Applicant submitted his Electronic Questionnaire for 
Investigations Processing (e-QIP). (Item 3.) On August 18, 2016, the Department of 
Defense Consolidated Adjudications Facility (DODCAF) issued Applicant a Statement of 
Reasons (SOR) detailing security concerns under Guidelines H, Drug Involvement and 
Substance Misuse; and E, Personal Conduct. (Item 1.) 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.   
Applicant answered the SOR on September 10, 2016 (Item 2), and requested a 
decision on the record without a hearing. Department Counsel submitted the 
Government’s written case on October 13, 2016. A complete copy of the file of relevant 
material (FORM) was sent to Applicant, including documents identified as Items 1 
through 6. He was given an opportunity to file objections and submit material to refute, 
extenuate, or mitigate the Government’s evidence. He received the FORM on October 
 
2 
 
 
28, 2016, and did not respond. Items 1 through 6 are admitted into evidence. The case 
was assigned to me on October 1, 2017. 
 
On June 8, 2017, the DOD implemented new AG.1 Accordingly, I have applied 
the June 2017 AG.2 However, because the September 2006 AG were in effect on the 
date the FORM was completed, I have also considered the September 2006 AG. 
Having considered both versions of the AG, I conclude that my decision would have 
been the same had I applied the September 2006 AG. 
 
Findings of Fact 
 
 In his answer to the SOR, Applicant admitted the factual allegations under drug 
involvement in subparagraphs 1.a and 1.b of the SOR. Subparagraphs 1.a and 1.b 
concerned his arrest in 2015 for possession of marijuana, and the fact that his arrest 
occurred after receiving a security clearance. He failed to admit or deny the sole 
allegation in subparagraph 2.a of the SOR, which alleged that the concerns identified in 
subparagraphs 1.a and 1.b raised additional concerns under the guideline for personal 
conduct. In absence of a clear admission, subparagraph 2.a is deemed denied. (Item 2.) 
 
 Applicant is 25 years old. He has an associate’s degree in avionics. He has 
worked for a defense contractor since February 2014. He was granted a secret security 
clearance in June 2015. (Item 3; Item 4.) 
 
 In August 2015 Applicant was arrested and charged with possession of 
marijuana and speeding. (Item 5.) Applicant self-reported this arrest to his security 
officer on September 1, 2015. An “Order for Conditional Discharge” was entered by the 
court on February 16, 2016. It “placed [Applicant] under supervision of the court for a 
term not to exceed 4 months, required him to remain drug free, and required him to pay 
a fine of $150. (Item 6.) Applicant presented documentation in his answer to the SOR 
that showed he had taken steps to have his record expunged. (Item 2.) 
 
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 
                                                          
1 On December 10, 2016, the Security Executive Agent issued Directive 4 (SEAD-4), establishing a 
“single, common adjudicative criteria for all covered individuals who require initial or continued eligibility 
for access to classified information or eligibility to hold a sensitive position.” (SEAD-4 ¶ B, Purpose). The 
SEAD-4 became effective on June 8, 2017 (SEAD-4 ¶ F, Effective Date). The National Security 
Adjudicative Guidelines (AG), which are found at Appendix A to SEAD-4, apply to determine eligibility for 
initial or continued access to classified national security information. (SEAD-4 ¶ C, Applicability).  
 
2 ISCR Case No. 02-00305 at 3 (App. Bd. Feb. 12, 2003) (security clearance decisions must be based on 
current DoD policy and standards). 
 
 
3 
 
 
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, administrative judges apply the guidelines 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), 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 national security 
eligibility 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. 
 
Directive ¶ E3.1.14 requires the Government to present evidence that 
establishes controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an 
“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.”  
 
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 adverse 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).   
 
 
4 
 
 
Analysis 
 
Guideline H: Drug Involvement and Substance Misuse 
 
The security concern relating to the guideline Drug Involvement and Substance 
Misuse is set forth at AG ¶ 24: 
 
The illegal use of controlled substances, to include the misuse of 
prescription and non-prescription drugs, and the use of other substances 
that cause physical or mental impairment or are used in a manner 
inconsistent with their intended purpose can raise questions about an 
individual's reliability and trustworthiness, both because such behavior 
may lead to physical or psychological impairment and because it raises 
questions about a person's ability or willingness to comply with laws, rules, 
and regulations. Controlled substance means any "controlled substance" 
as defined in 21 U.S.C. 802. Substance misuse is the generic term 
adopted in this guideline to describe any of the behaviors listed above. 
 
The guideline at AG ¶ 25 contains seven conditions that could raise a security 
concern and may be disqualifying. Two conditions are established: 
 
(c) illegal possession of a controlled substance, including cultivation, 
processing, manufacture, purchase, sale, or distribution; or possession of 
drug paraphernalia; and 
 
(f) any illegal drug use while granted access to classified information or 
holding a sensitive position. 
 
 Appellant was arrested for possession of marijuana in August 2015. He had a 
security clearance for his job at that time. Therefore, AG ¶¶ 25(c), and 25(f) are 
established.  
 
The guideline at AG ¶ 26 contains four conditions that could mitigate security 
concerns. Two conditions may be applicable: 
 
(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 
 
5 
 
 
(b) the individual acknowledges his or her drug involvement and substance misuse, 
provides evidence of actions taken to overcome this problem, and has established a 
pattern of abstinence, including, but not limited to: 
 
(1) disassociation from drug-using associates and contacts;  
(2) changing or avoiding the environment where drugs were 
used; and  
 
(3) providing a signed statement of intent to abstain from all 
drug involvement and substance misuse, acknowledging that 
any future involvement or misuse is grounds for revocation 
of national security eligibility. 
 
 Applicant failed to present any evidence to support the above mitigating 
conditions. There is no evidence that his drug involvement is unlikely to continue 
or that he has taken actions to overcome this problem.  
 
Guideline E, Personal Conduct 
 
 The security concern relating to the guideline for Financial Considerations 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 or sensitive information. Of special interest is any failure to 
cooperate or provide truthful and candid answers during national security 
investigative or adjudicative processes.  
 
The guideline notes several conditions that could raise security concerns under 
AG ¶ 16. One is potentially applicable in this case:   
 
(e) personal conduct, or concealment of information about one's conduct, 
that creates a vulnerability to exploitation, manipulation, or duress by a 
foreign intelligence entity or other individual or group. Such conduct 
includes: 
 
(1) engaging in activities which, if known, could affect the 
person's personal, professional, or community standing. 
 
  Applicant’s possession of marijuana was criminal conduct that could affect his 
personal, professional, or community standing. The evidence is sufficient to raise this 
disqualifying conditions.  
 
6 
 
 
 AG ¶ 17 provides conditions that could mitigate security concerns. I 
considered all of the mitigating conditions under AG ¶ 17 including: 
 
(a) the individual made prompt, good-faith efforts to correct the omission, 
concealment, or falsification before being confronted with the facts; 
 
(b) the refusal or failure to cooperate, omission, or concealment was 
caused or significantly contributed to by advice of legal counsel or of a 
person with professional responsibilities for advising or instructing the 
individual specifically concerning security processes. Upon being made 
aware of the requirement to cooperate or provide the information, the 
individual cooperated fully and truthfully; 
 
(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 contributed to untrustworthy, 
unreliable, or other inappropriate behavior, and such behavior is unlikely 
to recur; 
 
(e) the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress; 
 
(f) the information was unsubstantiated or from a source of questionable 
reliability; and 
 
(g) association with persons involved in criminal activities was unwitting, 
has ceased, or occurs under circumstances that do not cast doubt upon 
the individual's reliability, trustworthiness, judgment, or willingness to 
comply with rules and regulations. 
 
 None of the above conditions have been shown to apply. While Appellant is 
credited with self-reporting his arrest, this action in and of itself does not mitigate the 
concern that he could be subject to coercion related to his possession of marijuana 
while holding a security clearance. The record is silent on the facts surrounding his 
arrest and history of drug involvement. His arrest for possession of marijuana continues 
to cast doubt on his judgment. 
 
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 an applicant’s 
 
7 
 
 
conduct and all the circumstances. The administrative judge should consider the nine 
adjudicative process factors listed at AG ¶ 2(d):  
 
(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.  
 
 AG ¶ 2(b) requires each case must be judged on its own merits. Under AG ¶ 
2(c), the ultimate determination of whether to grant national security 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. Applicant made a poor decision to 
possess an illegal substance. Applicant’s current reliability, trustworthiness, and good 
judgment remain questionable under the alleged security concerns. My comments 
regarding each guideline are incorporated here also.  
 
Overall, the record evidence leaves me with questions and doubts as to 
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I 
conclude Applicant failed to mitigate the security concerns arising from his drug 
involvement and substance misuse, and his personal conduct.  
 
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 
 
Paragraph 2, Guideline E:   AGAINST APPLICANT 
 
  Subparagraph 2.a:    Against Applicant 
    
 
8 
 
 
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. 
 
 
                                                     
_________________ 
Jennifer I. Goldstein 
Administrative Judge