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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
 [REDACTED] )  ISCR Case No. 16-02352 
  ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Braden B. Murphy, Esq., Department Counsel 
For Applicant: Maurice Arcadier, Esq. 
 
 
______________ 
 
Decision 
______________ 
 
 
HESS, Stephanie C., Administrative Judge: 
 
Applicant’s improper entry of work hours and her one-time marijuana use while 
holding a security clearance are not likely to recur and do not cast doubt on her current 
reliability, trustworthiness, or judgment. Applicant has mitigated the Guidelines E 
(Personal Conduct) and H (Drug Involvement and Substance Misuse) security concerns. 
Eligibility for access to classified information is granted. 
 
Statement of the Case 
 
Applicant submitted a security clearance application (e-QIP) on June 21, 2011. On 
August 21, 2016, the Department of Defense Consolidated Adjudications Facility (DOD 
CAF) sent her a Statement of Reasons (SOR) alleging security concerns under 
Guidelines H and E. The DOD CAF acted under Executive Order (Ex. 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.  
 
Applicant answered the SOR on September 2, 2016, and requested a hearing 
before an administrative judge. Department Counsel was ready to proceed on October 
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12, 2016, and the case was assigned to me on December 19, 2016. On December 21, 
2016, the Defense Office of Hearings and Appeals (DOHA) notified Applicant that the 
hearing was scheduled for January 13, 2017. I convened the hearing as scheduled. 
Government Exhibits (GX) 1 and 4 through 6 were admitted in evidence without objection. 
Applicant’s counsel, who entered his appearance at the hearing, objected to GX 2 and 
GX 3, and I sustained his objections. Applicant testified and Applicant’s Exhibits (AX) A 
and B were admitted without objection. DOHA received the transcript (Tr.) on January 24, 
2017. 
 
The SOR was issued under the AG implemented on September 1, 2006. The DOD 
implemented the amended AG on June 8, 2017, while this decision was pending. This 
decision will be based on the amended AG effective June 8, 2017. The outcome of this 
case would have been the same if decided based on the former AG. 
 
Findings of Fact 
 
The SOR alleges under Guideline E that in May 2014, Applicant charged her 
employer for hours that she did not actually perform work, which resulted in a three-day 
suspension without pay and receipt of a corrective action memo. The SOR further alleges 
under Guideline H that Applicant used for marijuana one time in September 2014, after 
being granted a security clearance.  Applicant admits each of the SOR allegations.  
 
Applicant is a 32-year-old project management specialist employed by her current 
employer, a defense contractor, since October 2016. She was first granted a security 
clearance in 2011, and has worked in the defense industry since 2009. She earned her 
bachelor’s degree in May 2009, and her Master’s degree in October 2013. (GX 1; Tr. 21-
22.) She and her husband married in 2013, and have a one-year-old daughter. 
 
From May 5, 2014, through May 19, 2014, Applicant’s direct supervisor was out of 
the office on business travel. He attempted to contact Applicant at her desk on May 12, 
2014, during her regular work hours. Later, he checked her time log, and noted that she 
had claimed eight hours for that day. He emailed her requesting verification of her time 
entry for May 12, 2014. Applicant responded by email that she had started her work day 
at 11:00 a.m. due to an appointment, and had worked until 7:00 p.m. Her supervisor 
suspected that Applicant had not worked the hours she claimed and initiated an 
investigation.  
 
The investigation revealed that in the course of two weeks, Applicant had claimed 
21 “questionable” hours. Applicant explained that she had been approved to take a 
computer-based training course, had printed the course materials, and studied the course 
materials off-line, both at home and at her desk, claiming hours for studying the materials. 
Applicant stated during the investigation that she had left work early on several occasions 
to complete her work at home, which could account for 10 of the hours she had entered 
but was not actually present at work. Applicant was unable to adequately account for the 
21 “questionable” questionable hours. 
 
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The investigation concluded that Applicant had entered 21 hours which could not 
be supported by computer login or logoff times, entry or exit gate logs, or video camera 
surveillance. Applicant’s supervisor stated that that he was not aware of any other 
attendance or behavioral issues from Applicant. As a result of the investigation, Applicant 
was issued a corrective action memo that remains in her personnel file, and was given a 
three-day suspension without pay. Applicant signed the memo, accepted responsibility, 
and apologized for her actions. (GX 6.)  
  
Applicant describes this incident as isolated, and states that it was not her intention 
to be compensated for hours she did not work, but acknowledges that she did not properly 
follow her employer’s accountability protocol. Applicant has not had any other disciplinary 
actions while employed by a defense contractor. She was promoted since this incident, 
and her 2015 annual performance review was favorable. (AX B.) She was later recruited 
by her current employer, and offered a higher level position as incentive, which she 
accepted in October 2016. (Tr. 24-25.) 
 
In September 2014, while visiting her hometown, Applicant and a group of her high 
school classmates gathered for a casual reunion at a hookah bar. The group had drinks 
and socialized, and at some point, someone offered her marijuana, which she smoked. 
Applicant had not anticipated that marijuana would be present at the gathering, and she 
spontaneously smoked it, in part due to curiosity. (Tr. 24-25; Tr. 51.) She recognizes that 
this conduct was wrong and in violation of the law, the requirements of her security 
clearance, and of her then-employer’s drug policy. (Answer; Tr. 52.) Applicant states that 
she listed this use on her most recent e-QIP and disclosed it to the investigator during her 
subject interview in January 2016. (Tr. 27.) She had never previously used marijuana, nor 
has she done so since. Applicant has no intention of using marijuana or any other illegal 
drug in the future, and has agreed to the automatic revocation of her security clearance 
if she should do so. (AX A; Tr. 25.) She does not maintain contact with her high school 
classmates and has not been in the presence of illegal drug usage since the 2014 
incident. (Tr. 54.) 
 
Applicant is committed to her career supporting the DOD and recognizes the 
importance of conducting herself with integrity and honesty. She views her misconduct 
as two isolated incidents that do not represent who she is or who she “want [s] to be as a 
professional.” (Tr. 36-37.) Her stated intention to conduct herself in a professional, 
trustworthy manner was sincere and credible. The birth of her daughter caused Applicant 
to refocus on the importance of her values. (Tr. 54.) 
   
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 
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consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified 
Information within Industry § 2 (Feb. 20, 1960), as amended.  
 
Eligibility for a security clearance is predicated upon the applicant’s 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.”  See 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, 
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).  
 
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Analysis 
 
Guideline E, Personal Conduct 
 
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 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 following will normally result in 
an unfavorable national security eligibility determination, security clearance 
action, or cancellation of further processing for national security eligibility: 
 
Applicant’s admissions, corroborated by the record evidence, establish the 
following disqualifying condition under this guideline:  
 
AG ¶ 16(d) credible adverse information that is not explicitly covered under 
any other guideline and may not be sufficient by itself for an adverse 
determination, but which, when combined with all available information, 
supports a whole-person assessment of questionable judgment, 
untrustworthiness, unreliability, lack of candor, unwillingness to comply with 
rules and regulations, or other characteristics indicating that the individual 
may not properly safeguard classified or sensitive information. This 
includes, but is not limited to, consideration of: 
 
(1) untrustworthy or unreliable behavior to include breach of 
client confidentiality, release of proprietary information, 
unauthorized release of sensitive corporate or government 
protected information; 
 
(2) any disruptive, violent, or other inappropriate behavior; 
 
(3) a pattern of dishonesty or rule violations; and 
 
(4) evidence of significant misuse of Government or other 
employer's time or resources. 
 
The following mitigating conditions are applicable: 
 
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; and 
 
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AG ¶ 17(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. 
 
 Applicant’s 2014 improper entry of work hours resulted in disciplinary action by her 
employer. In the course of the investigation into Applicant’s conduct, her supervisor stated 
that he did not think Applicant had previously inaccurately submitted her time, and she 
has not done so since. She continued to work for this employer without incident, was 
promoted in 2014, and received a positive performance evaluation for 2015. She accepts 
responsibility for her conduct and has apologized. This past conduct does not cast doubt 
on Applicant’s reliability, trustworthiness, or good judgment and is unlikely to recur. 
Guideline H, Drug Involvement and Substance Misuse  
 
The concern under this guideline is set out in AG ¶ 24:  
 
 The illegal use of controlled substances . . . 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.  
 
Applicant’s admissions, corroborated by the record evidence, 
establish the potentially disqualifying conditions under this guideline:  
 
AG ¶ 25(a) any substance misuse; and 
 
AG ¶ 25(f) any illegal drug use while granted access to classified 
information or holding a sensitive position. 
 
The following mitigating conditions may also apply: 
 
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 cast doubt on the individual’s current reliability, trustworthiness, or good 
judgment; and 
 
AG ¶ 26(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 were drugs were used; and 
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(3) providing a signed a 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. 
 
The Directive does not define “recent,” and there is no “bright-line” definition of 
what constitutes “recent” conduct. ISCR Case No. 03-02374 at 4 (App. Bd. Jan. 26, 2006). 
The Judge is required to evaluate the record evidence as a whole and reach a reasonable 
conclusion as to the recency of an applicant’s conduct. ISCR Case No. 03- 02374 at 4 
(App. Bd. Jan. 26, 2006).  
Applicant’s one-time use of marijuana in September 2014 while holding a security 
clearance occurred sufficiently long ago and under such unusual circumstances that it is 
unlikely to recur. She accepts responsibility for her actions, and has matured. She does 
not associate with people who use marijuana, and has not been around any illegal drug 
use since 2014. She has signed a statement of intent to not use any illegal drugs in the 
future, and has acknowledged that her clearance could be revoked should she do so. Her 
single use of marijuana does not cast doubt on her current reliability, trustworthiness, or 
good judgment. All of the above mitigating conditions apply. 
 
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(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.  
 
 I have incorporated my comments under Guidelines E and H in my whole-person 
analysis. Some of the factors in AG ¶ 2(d) were addressed under those guidelines, but I 
have also considered the following: 
 
 Applicant’s testimony was sincere and she regrets and accepts responsibility for 
her conduct. Both incidents of concern occurred over three years ago, and Applicant has 
learned and grown from her mistakes.  
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 After weighing the disqualifying and mitigating conditions under Guidelines E and 
H, and evaluating all the evidence in the context of the whole person, I conclude Applicant 
has mitigated the security concerns raised by her improper entry of work hours and her 
one-time marijuana use while holding a security clearance. Accordingly, I conclude she 
has carried her burden of showing that it is clearly consistent with the national interest to 
grant her eligibility for access to classified information. 
 
Formal Findings 
 
As required by section E3.1.25 of Enclosure 3 of the Directive, I make the following 
formal findings on the allegations in the SOR: 
  
 Paragraph 1, Guideline H (Drug Involvement):  FOR APPLICANT 
 
  Subparagraph 1.a:     For Applicant 
  
Paragraph 2, Guideline E (Personal Conduct):  FOR APPLICANT 
 
  Subparagraph 2.a:     For Applicant  
 
Conclusion 
 
 I conclude that 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. 
 
 
 
Stephanie C. Hess 
Administrative Judge