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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 15-04891 
  ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Allison Marie, Esq., Department Counsel 
For Applicant: Pro se 
 
 
__________ 
 
Decision 
__________ 
 
 
RIVERA, Juan J., Administrative Judge: 
 
Applicant illegally used drugs between 1999 and 2012 while possessing a 
clearance during part of that period. There is no evidence of substance misuse after 
2012. Nevertheless, he falsified his 2003 and 2009 security clearance applications 
(SCA) to cover the extent of his substance misuse. Drug involvement and substance 
misuse security concerns are mitigated. Personal conduct security concerns are not 
mitigated. Clearance denied. 
 
Statement of the Case 
 
Applicant submitted his most recent SCA on August 26, 2014. After reviewing it 
and the information gathered during a background investigation, the Department of 
Defense (DOD) issued a Statement of Reasons (SOR) alleging security concerns under 
Guideline H (drug involvement and substance misuse) and Guideline E (personal 
conduct) on December 13, 2015. Applicant answered the SOR on January 4, 2016, and 
requested a hearing before an administrative judge from the Defense Office of Hearings 
and Appeals (DOHA).  
 
DOHA assigned the case to me on February 3, 2017. DOHA issued a notice of 
hearing that same day, setting the hearing for March 3, 2017. At the hearing, the 
 
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Government offered four exhibits (GE 1 through 4), which were admitted as evidence 
without objections. GE 4 was marked and made part of the record, but it is not 
evidence. Applicant testified on his own behalf, and submitted no other evidence. DOHA 
received the hearing transcript (Tr.) on March 9, 2017. 
 
Findings of Fact 
 
Applicant admitted all of the SOR allegations under Guidelines H and E. His SOR 
and hearing admissions are incorporated as findings of fact. After a thorough review of 
the record evidence, and having considered Applicant’s testimony and his demeanor 
while testifying, I make the following additional findings of fact:  
 
Applicant is a 38-year-old employee of a federal contractor. He graduated from 
high school in 1997, and pursued no further formal education. He married in 2007 and 
has two sons, ages nine and six.  
 
Applicant’s work history indicates that he worked as a carpenter between 1998 
and 2003, and between October 2008 and March 2009. He worked for federal 
contractors between August 2003 and October 2008, and between March 2009 and 
June 2012. His current employer and clearance sponsor, a federal contactor, hired him 
in June 2012, and he has worked there since. Applicant was granted a secret clearance 
in 2003, which was upgraded to a top-secret clearance in 2004. He has possessed a 
top-secret clearance since 2004. (Tr. 6-7) 
 
On July 25, 2003, Applicant submitted an SCA. In his response to Question 27 
(Your use of Illegal Drugs and Drug Activity-Illegal Use of Drugs) Applicant disclosed 
that he illegally used marijuana four times between May and June 1998. He deliberately 
failed to disclose that he had been illegally using marijuana, cocaine, and OxyContin 
during the preceding seven years. (Tr. 30-31) 
 
On May 30, 2009, Applicant submitted another SCA. In response to Section 23 
(Illegal Use of Drugs or Drug Activity), asking whether in the last seven years he had 
illegally used any controlled substance (including cocaine, marijuana, and prescription 
medications not prescribed to him) he answered “No” and disclosed no illegal drug use 
or possession. His 1998 illegal marijuana use and the OxyContin use between 1999 
and 2001 were outside of the preceding seven year period asked by the question. 
However, Applicant deliberately falsified his 2009 SCA when he failed to disclose his 
use of marijuana and cocaine between 2003 and 2009. Section 23 also asked Applicant 
whether he had EVER illegally used a controlled substance while possessing a security 
clearance. Applicant answered “No” and deliberately falsified his 2009 SCA to cover his 
illegal use of cocaine and marijuana after he was granted a clearance in 2003. 
 
Applicant disclosed in Section 23 (Illegal Use of Drugs or Drug Activity) of his 
2014 SCA that he illegally used marijuana while possessing a security clearance. He 
estimated that his first use of marijuana was in January 2003, and his most recent use 
was in September 2011. He described his marijuana use as “Was used sporadically 
 
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with friends at band practices.” Applicant also used cocaine between January 2003 and 
March 2012, while possessing a security clearance. He described his cocaine use as 
“Used once a year with friends during special events (bachelor parties).”  
 
Applicant testified he does not intend to use any illegal drugs or controlled 
substances in the future. (Tr. 23) In his 2014 SCA he stated: “I realized that my job and 
possibility of career advancement were more important than smoking weed or snorting 
cocaine with his band mates.” (GE 1) 
 
 Applicant explained that when he was in high school, at age 18, he was playing 
recreational music with high school friends. One of his band mates brought marijuana to 
practice and they illegally smoked marijuana during their weekly practices, or at least 
every other week. (Tr. 15, 25) In January 1999, at age 20, he moved out of his parent’s 
home to live in an apartment with one of his band mates. While living in the apartment, 
a friend of his roommate brought OxyContin to the apartment and Applicant 
experimented with the drug approximately twice a week during a two-year period. (Tr. 
26) In late 2000, Applicant moved back with his parents. He claimed his last use of 
OxyContin was in 2001, but he continued to use marijuana and cocaine. (Tr. 16)  
 
In 2003, Applicant’s uncle and vice-president of a company (federal contractor) 
hired Applicant. When he was completing the 2003 SCA, Applicant was concerned that 
disclosing his past illegal drug use would hinder his ability to get the job and a 
clearance, and he deliberately omitted his past illegal drug use. Applicant also lied 
about his illegal drug use when he applied for his top-secret clearance in 2004, and 
when he submitted his 2009 SCA for his top-secret clearance reevaluation. He believed 
he had to continue his falsifications to keep his clearance and his job. He was 
concerned about not being able to support his family. (Tr.16-17)  
 
 Applicant continued to associate with his illegal drug-using friends and to partake 
in their illegal marijuana and cocaine use until after his second son was born in 2011. 
Applicant claimed that his last contact with his drug-using friends, and the last time he 
illegally used drugs, was 2012. He claimed that by 2012, he had matured and was able 
to prioritize the most important things, like his family  
 
In 2012, at age 31, Applicant was hired by his current employer, a federal 
contractor. He anticipated being assigned to work with government agencies in matters 
that required him to have access to sensitive compartmented information (SCI). In 2014, 
Applicant underwent interviews complimented with life-style polygraphs. He averred he 
was honest and forthcoming during his interviews, and that he passed the second 
polygraph-assisted interview.  
 
Applicant testified that he now realizes the severity of lying about his drug use in 
the SCAs. He acknowledged that his behavior showed immaturity and selfishness. He 
believes that by disclosing his past illegal drug use and SCA falsifications he has taken 
responsibility for his criminal behavior.  
 
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Policies 
 
The SOR was issued 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 (Directive) 
(January 2, 1992), as amended; and the Adjudicative Guidelines for Determining 
Eligibility for Access to Classified Information (AG), implemented by the DOD on 
September 1, 2006.  
 
While the case was pending a decision, the Director of National Intelligence 
implemented Security Executive Agent Directive (SEAD) 4, National Security 
Adjudicative Guidelines (AG), effective June 8, 2017, which replaced the 2006 AG. I 
decided this case under the current AGs implemented by SEAD 4. 
 
Eligibility for access to classified information may be granted “only upon a finding 
that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, § 2. The 
U.S. Supreme Court has recognized the substantial discretion of the Executive Branch 
in regulating access to information pertaining to national security, emphasizing that “no 
one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 
518, 528 (1988). 
 
The AG list disqualifying and mitigating conditions for evaluating a person’s 
suitability for access to classified information. Any one disqualifying or mitigating 
condition is not, by itself, conclusive. However, the AG should be followed where a case 
can be measured against them, as they represent policy guidance governing access to 
classified information. Each decision must reflect a fair, impartial, and commonsense 
consideration of the whole person and the factors listed in SEAD 4, App. A ¶¶ 2(d) and 
2(f). All available, reliable information about the person, past and present, favorable and 
unfavorable, must be considered.  
 
Security clearance decisions resolve whether it is clearly consistent with the 
national interest to grant or continue an applicant’s security clearance. The Government 
must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, 
the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. The 
applicant bears the heavy burden of demonstrating that it is clearly consistent with the 
national interest to grant or continue his or her security clearance.  
 
Persons with access to classified information enter into a fiduciary relationship 
with the Government based on trust and confidence. Thus, the Government has a 
compelling interest in ensuring each applicant possesses the requisite judgment, 
reliability, and trustworthiness of those who must protect national interest as their own. 
The “clearly consistent with the national interest” standard compels resolution of any 
reasonable doubt about an applicant’s suitability for access in favor of the Government. 
“[S]ecurity clearance determinations should err, if they must, on the side of denials.” 
Egan, 484 U.S. at 531; SEAD 4, ¶ E(4); SEAD 4, App. A, ¶¶ 1(d) and 2(b). Clearance 
decisions are not a determination of the loyalty of the applicant concerned. They are 
 
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merely an indication that the applicant has or has not met the strict guidelines the 
Government has established for issuing a clearance. 
 
Analysis 
 
Drug Involvement and Substance Misuse 
 
AG ¶ 24 articulates the security concern for the illegal use of drugs:  
 
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.  
 
Between 1999 and 2012, Applicant illegally used controlled substances. Most of 
the illegal use occurred while he possessed a security clearance granted to him in 2003. 
AG ¶ 25 provides disqualifying conditions that could raise a security concern and may 
be disqualifying in this case:  
 
(a) any substance misuse (see above definition); 
 
(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. 
 
The record established the disqualifying conditions under AG ¶¶ 25(a), (c), and 
(f) requiring additional inquiry about the possible applicability of mitigating conditions 
under 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; 
 
(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: 
 
 
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(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; 
 
The Appeal Board concisely explained Applicant’s responsibility for proving the 
applicability of mitigating conditions as follows:  
 
Once a concern arises regarding an Applicant’s security clearance 
eligibility, there is a strong presumption against the grant or maintenance 
of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th 
Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government 
presents evidence raising security concerns, the burden shifts to the 
applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The 
standard applicable in security clearance decisions is that articulated in 
Egan, supra. “Any doubt concerning personnel being considered for 
access to classified information will be resolved in favor of the national 
security.” Directive, Enclosure 2 ¶ 2(b).  
 
ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013).  
 
The above two mitigating conditions apply. The illegal drug use happened 
between 1999 and 2012. There is no evidence of any substance misuse after 2012. It 
has been about six years since Applicant’s last substance misuse. He disclosed his past 
illegal drug use in his 2014 SCA. 
 
Personal Conduct 
 
AG ¶ 15 explains why personal conduct is a security concern stating: 
 
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.  
 
 AG ¶ 16 describes conditions that could raise a security concern and may 
be disqualifying in this case: 
 
 
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(a) deliberate omission, concealment, or falsification of relevant facts from any 
personnel security questionnaire . . . used to conduct investigations, . . . determine 
security clearance eligibility or trustworthiness. . . .1; 
 
(b) deliberately providing false or misleading information; or concealing or 
omitting information, concerning relevant facts to an employer, investigator, security 
official, competent medical or mental health professional involved in making a 
recommendation relevant to a national security eligibility determination, or other official 
government representative; and  
 
(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 2003 and 2009 SCAs (Sections 27 and 23 (respectively) 
specifically asked Applicant to disclose whether in the past seven years he had illegally 
use any controlled substance and whether he had ever used a controlled substance 
while possessing a clearance. Applicant deliberately failed to disclose his illegal use of 
controlled substances between 1999 and 2009, and that he illegally used drugs after he 
was granted a clearance in 2003. Applicant’s false statements on his SCAs, satisfy the 
three above disqualifying conditions.  
 
 AG ¶ 16 describes conditions that could mitigate the personal conduct 
security concerns: 
 
(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 
                                            
1 The Appeal Board has cogently explained the process for analyzing falsification cases, stating:
 
(a) when a falsification allegation is controverted, Department Counsel has the burden of 
proving falsification; (b) proof of an omission, standing alone, does not establish or prove 
an applicant’s intent or state of mind when the omission occurred; and (c) a Judge must 
consider the record evidence as a whole to determine whether there is direct or 
circumstantial evidence concerning the applicant’s intent or state of mind at the time the 
omission occurred. [Moreover], it was legally permissible for the Judge to conclude 
Department Counsel had established a prima facie case under Guideline E and the 
burden of persuasion had shifted to the applicant to present evidence to explain the 
omission.  
 
ISCR Case No. 03-10380 at 5 (App. Bd. Jan. 6, 2006) (citing ISCR Case No. 02-23133 (App. Bd. June 9, 
2004)). 
 
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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 tp 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; and 
 
(e) the individual has taken positive steps to reduce or eliminate vulnerability to 
exploitation, manipulation, or duress. 
 
 AG ¶ 17(a) partially applies because Applicant disclosed his illegal use of 
drugs in his 2014 SCA before being confronted about it. Notwithstanding, the security 
concerns are not mitigated. He disclosed his illegal drug use, in part, because he 
anticipated having to participate in polygraph-assisted interviews. He also claimed he 
had matured by then and realized the seriousness of his mistakes.  
 
 AG ¶ 17(c) does not apply because making a false statement is a serious 
offense (felony), it did not occur under unusual circumstances, and it continues to cast 
doubt on Applicant’s reliability, trustworthiness, and good judgment. 
 
 AG ¶ 17(d) does not apply because Applicant presented no evidence of 
counseling. AG ¶ 17(e) applies because Applicant disclosed his criminal behavior in his 
2014 SCA and that could be considered as taking positive steps to reduce or eliminate 
his vulnerability to exploitation. 
 
Whole-Person Concept 
 
 I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case, and under the whole-person 
concept. SEAD 4, App. A, ¶¶ 2(a), 2(d) and 2(f). I have incorporated my comments 
under Guidelines H and E in my whole-person analysis. Some of these factors were 
addressed under that guideline, but some warrant additional comment. 
 
Applicant is a 38-year-old employee of a federal contractor. He has worked for 
his employer since 2012, and has held a clearance since 2003, and a top-secret 
clearance since 2004. Applicant disclosed his substance misuse in his 2014 SCA. 
There is no evidence of any substance misuse after 2012. He testified that he is 
committed to not using any illegal drugs in the future. The substance misuse security 
concerns are mitigated. 
 
 
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Considering the record as a whole, Applicant’s evidence is insufficient to mitigate 
the falsifications of his 2003 and 2009 SCAs. Applicant deliberately falsified both SCAs 
and continued to illegally use controlled substances knowing about the illegality of his 
actions, the Government’s position against the use of illegal drugs, and the probable 
adverse consequences of his actions – losing his job and his eligibility for a clearance. 
Applicant’s lack of judgment, candor, honesty, and his unwillingness to comply with 
rules and regulations continue to raise questions about his current reliability, 
trustworthiness, and ability to protect classified or sensitive information. The personal 
conduct security concerns are not mitigated. 
 
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:      FOR APPLICANT 
 
  Subparagraphs 1.a - 1.e:     For Applicant 
 
  Paragraph 2, Guideline E:      AGAINST APPLICANT 
 
  Subparagraphs 2.a - 2.d:     Against Applicant 
 
Conclusion 
 
In light of all the circumstances presented by the record in this case, it is not 
clearly consistent with the national security interests of the United States to continue 
Applicant’s eligibility for a security clearance. Clearance denied. 
 
 
 
____________________________ 
JUAN J. RIVERA 
Administrative Judge