DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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                                                                      )                                                             
         -------------------------------------                )       ADP  Case No. 17-03464          
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Applicant for Public Trust Position )
Appearances
For Government: Brittany Muetzel, Esq., Department Counsel
For Applicant:   Pro se
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 Decision
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WESLEY, Roger C., Administrative Judge:
Based upon a review of the pleadings and exhibits, I conclude that Applicant did
not mitigate the trustworthiness concerns regarding his drug involvement and personal
conduct. Eligibility for a public trust position is denied. 
 
Statement of Case
On November 15, 2017, the Department of Defense (DoD) Consolidated
Adjudications Facility (CAF) issued a Statement of Reasons (SOR) detailing reasons
why DoD adjudicators could not make the affirmative determination of eligibility to hold a
public trust position, and recommended referral to an administrative judge to determine
whether eligibility to hold a public trust position should be granted, continued, denied, or
revoked. The action was taken 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 (January 2,
1992), as amended (Directive); and Directive 4 of the Security Executive Agent
Directive (SEAD 4), dated December 10, 2016, National Security Adjudicative
Guidelines for all covered individuals who require initial or continued eligibility for access
to classified information or eligibility to hold a sensitive position were established to
supercede all previously issued national security adjudicative criteria or guidelines,
effective June 8, 2017.
Applicant responded to the SOR on December 7, 2017, and elected to have his
case decided on the basis of the written record. Applicant received the File of Relevant
Material (FORM) on July 29, 2016.  He did not supplement the record with objections to
any of the exhibit items in the FORM. Nor did he provide supplemental information
pertaining to his responses.
Summary of Pleadings
Under Guideline H, Applicant allegedly used marijuana, with varying frequency,
from about 2006 to at least February 2017. Allegedly, Applicant used marijuana after
being granted a position of trust in about 2007. 
Under Guideline E, Applicant allegedly falsified his security clearance application
of December 10, 2016 by omitting his use of illegal drugs within the previous seven years.
Allegations of drug use covered by Guideline H are cross-alleged under Guideline E.
In his response to the SOR, Applicant admitted the allegations pertaining to his
substance abuse and his continued use while holding a position of trust. He claimed his
marijuana use was never routine and used only at social gatherings two to three times a
year. He claimed he no longer engages in this behavior and fully abstains from any drug
use.
Addressing the falsification allegations covered by Guideline E, Applicant admitted
the allegations with explanations. He claimed that he fully disclosed his drug use during
his ensuing personal interview. He explained that his admissions during his personal
interview represented his attempts to correct the record regarding his mistake.
      Findings of Fact
Applicant is a 36-year-old junior management analyst for a defense contractor who
seeks eligibility for a public trust position. The allegations covered in the SOR and
admitted by Applicant are incorporated and adopted as relevant and material findings.
Additional findings follow.
Background
Applicant never married and has no children. (Item 3) He earned a bachelor’s
degree 2003 from a respected university. He reported no military service. 
Since January 2016, Applicant has worked for his current employer in an analyst
capacity. (Items 3-4)  Between April 2008 and December 2015, he was employed for a
resource management firm in various job capacities.  (Items 3-4)  Most recently (between
September 2014 and December 2015), he was employed as the firm’s project manager. 
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Applicant’s drug involvement
Between 2006 and February 2017, Applicant used marijuana while holding a
position of trust. (Items 3-5) He used marijuana in social gatherings two to three times a
year. He last used marijuana in February 2017 and expressed conflicting intentions about
using marijuana in the future. In a June 2017 interview with an agent from the Office of
Personnel Management (OPM), he reserved the possibility of continuing to use marijuana
in the future. (Item 5) By contrast, in his answers to interrogatories propounded to him in
November 2017, he expressed no intentions of using marijuana in the future. (Item 4) 
Without more detailed current information about his intentions to resume marijuana use,
his conflicting statements about his future intentions cannot be reconciled. At this time,
Applicant cannot be absolved of recurrence risks.
E-QIP omissions
Asked to complete an electronic questionnaires for investigations processing (e-
QIP) in December 2016, Applicant omitted his past use of marijuana within the previous
seven years while holding a position of trust. (Items 3-5) He attributed his omissions of his
past marijuana use to a lack of candor. 
In his ensuing interview with an OPM agent in June 2017, Applicant admitted using
illegal drugs without any prompting from the OPM agent. (Item 5) Nothing in the OPM
summary of interview contradicts Applicant’s assurances that he provided voluntary and
accurate answers to the OPM agent’s questions about his  prior drug use.  Without
substantive evidence to challenge Applicant’s good-faith claims of prompt, good-faith
disclosures, Applicant’s claims are accepted.
Policies
                
       The SEAD 4, App. A, lists guidelines to be used by administrative judges in the
decision-making process covering trustworthiness cases. These guidelines take into
account factors that could create a potential conflict of interest for the individual applicant,
as well as considerations that could affect the individual’s reliability, trustworthiness, and
ability to protect privacy information. These guidelines include conditions that could raise
a concern about trustworthiness access and may be disqualifying (disqualifying
conditions), if any, and many of the conditions that could mitigate trustworthiness
concerns.
These guidelines must be considered before deciding whether or not eligibility to
hold a public trust decision should be granted, continued, or denied. The guidelines do
not require administrative judges to place exclusive reliance on the enumerated
disqualifying and mitigating conditions in the guidelines in arriving at a decision. Each of
the guidelines is to be evaluated in the context of the whole person in accordance with
App. A,  ¶ 2(c).
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In addition to the relevant AGs, administrative judges must take into account the
pertinent considerations for assessing extenuation and mitigation set forth in App. A, ¶
2(d) of the AGs, which are intended to assist the judges in reaching a fair and impartial
commonsense decision based upon a careful consideration of the pertinent guidelines
within the context of the whole person. 
The adjudicative process is designed to examine a sufficient period of an
applicant’s life to enable predictive judgments to be made about whether the applicant is
an acceptable trustworthiness  risk. The following App A, ¶ 2(d) factors are pertinent: (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 chances; (7) the motivation for the conduct; (8) the potential for
pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or
recurrence.
 Viewing the issues raised and evidence as a whole, the following individual
guidelines are pertinent in this case.
                                               D   r u  g   I n  v  olvement
The Concern: 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. . .,  AG ¶ 24
   Personal Conduct
The Concern: 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 ¶ 15. 
Burden of Proof
By virtue of the principles and policies framed by the AGs, a decision to grant or
continue an applicant's eligibility to hold a sensitive position may be made only upon a
threshold finding that to do so is clearly consistent with the national interest.  Because
the Directive requires administrative judges to make a commonsense appraisal of the
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evidence accumulated in the record, the ultimate determination of an applicant's
eligibility for a sensitive position depends, in large part, on the relevance and materiality
of that evidence. See United States, v. Gaudin, 515 U.S. 506, 509-511 (1995).  
As with all adversarial proceedings, the judge may draw only those inferences
which have a reasonable and logical basis from the evidence of record.  Conversely, the
judge cannot draw factual inferences that are grounded on speculation or conjecture.
The Government's initial burden is twofold: (1) it must prove by substantial
evidence any controverted facts alleged in the SOR, and (2) it must demonstrate that
the facts proven have a material bearing to the applicant's eligibility to obtain or maintain
eligibility to hold a public trust position. The required materiality showing, however, does
not require the Government to affirmatively demonstrate that the applicant has actually
mishandled or abused privacy information before it can deny or revoke a security
clearance. Rather, the judge must consider and weigh the cognizable risks that an
applicant may deliberately or inadvertently fail to safeguard privacy information.
Once the Government meets its initial burden of proof of establishing admitted or
controverted facts, the evidentiary burden shifts to the applicant for the purpose of
establishing his or her trustworthiness through evidence of refutation, extenuation, or
mitigation.  Based on the requirement of  Exec. Or. 10865 that all security clearances
and related eligibility to hold sensitive positions be clearly consistent with the national
interest, the applicant has the ultimate burden of demonstrating his or her clearance
eligibility. “[Trustworthiness] determinations should err, if they must, on the side of
denials.” See Department of the Navy v. Egan, 484 U.S. 518, 531 (1988). 
Analysis  
Trustworthiness concerns are raised over Applicant’s use of marijuana while
holding a position of trust. Additional trustworthiness concerns are raised over his
falsifying his e-QIP by omitting his marijuana use within the previous seven years. 
Holding a public trust position involves the exercise of important fiducial
responsibilities, among which is the expectancy of consistent trust and candor in
protecting and guarding personally identifiable information (PII). DOD Manual 5200.02,
which incorporated and canceled DOD Regulation 5200.2-R, covers both critical-
sensitive and non-critical sensitive national security positions for civilian personnel. See
5200.02, ¶ 4.1a(3)(c)3. Positions designated as Category l and Category II automated
data processing positions (ADP) were previously classified as critical-sensitive and non-
critical sensitive positions under DOD Regulation 5200.2-R, Personnel Security
Program, (Jan. 1987, as amended) (the Regulation), ¶¶ C3.1.2. 1.1.7. Other positions
that did not meet ADP criteria were classified as non-sensitive positions under the
Regulation.
Definitions for critical-sensitive and non-critical sensitive positions provided in
5200.02, ¶ 4.1a (3)(c) contain descriptions similar to those used to define ADP l and II 
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positions under DOD Regulation 5200.2-R.  (32 C.F.R. § 154.13 and Part 154, App. J)
ADP positions are broken down as follows in 32 C.F.R. § 154.13 and Part 154, App. J:
ADP l (critical-sensitive positions covering the direction, design, and planning of
computer systems) and ADP II (non-critical-sensitive positions covering the operation,
and maintenance of computer systems). Considered together, the ADP I and II positions
covered in DOD Regulation 5200.2-R refine and explain the same critical-sensitive and
non-critical-sensitive positions covered in DOD Manual 5200.02, ¶ 4.1a (3)(c) and are
reconcilable as included positions in 5200.02.  
So, while ADP trustworthiness positions are not expressly identified in DOD
Manual 5200.02, they are implicitly covered as non-critical sensitive positions that
require “access to automated systems that contain active duty, guard, or personally
identifiable information or information pertaining to service members that is otherwise
protected from disclosure by DOD 5400.11-R. . . “. DOD 5200.02, Sec. 4.1, ¶ 3(c). See
DOD Directive 5220.6 ¶¶ D5(d) and D8. By virtue of the implied retention of ADP
definitions in DOD Manual 5200.02, ADP cases continue to be covered by the process
afforded by DOD 5220.6 in accordance with the governing principles of Exec. Or.
10865.  
Drug Involvement concerns
Over an 11-year period spanning 2006 to February 2017, Applicant used
marijuana on a recurring basis (generally two to three times a year) while holding a
position of trust for most of the elapsed time (since 2007). He has been ambivalent
about his future intentions to resume his use of marijuana. His past use of marijuana
while holding a position of trust warrants the application of two disqualifying conditions:
DC ¶¶ 25(a), “any substance misuse;” and 25 (f), “any illegal drug use while granted
access to classified information or holding a sensitive position.” 
Applicant’s recurrent use of marijuana over an extended number of years is
incompatible with his holding a position of trust over much of the same period. Without
more corroborating and substantive proof of Applicant’s assured avoidance of marijuana
use in the future, potentially applicable mitigating conditions (MCs) covered in the drug
involvement guideline are not available to Applicant under the developed facts of this
case. At this point in Applicant’s development, it is too soon to make safe predictive
judgments about his ability to avoid risks of recurrent  marijuana use. Unfavorable
conclusions are warranted with respect to the allegations covered by Guideline H and
incorporated under Guideline E.
Personal conduct concerns
Applicant’s implicit acknowledgment of his falsifying the e-QIP he completed in
December 2016 relieve the Government of having to prove intent and motive. His 
omissions, when considered collectively, reflect knowing and wilful omissions of material
information in his e-QIP and throughout the adjudication review process. Application of
¶ DC 16(a), deliberate omission, concealment, or falsification of relevant facts from any
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personnel security questionnaire, personal history statement, or similar form used to
conduct investigations, determine employment qualifications, award benefits of status,
determine national security eligibility or trustworthiness, or award fiduciary
responsibilities,” is fully warranted in Appellant’s case. 
Afforded an opportunity to further explain his marijuana use and e-QIP omissions 
in a follow-up OPM interview in June 2017, Applicant fully acknowledged his past
marijuana use without prompting from the interviewing OPM agent. His admissions
entitle him to the mitigating benefits of MC ¶ 17(a), “the individual made prompt, good-
faith efforts to correct the omission, concealment, or falsification before being
confronted with the facts.” Applicant’s prompt, good-faith corrections enable him to
mitigate the falsification allegations covered by Guideline E. 
Whole-person assessment
From a whole-person perspective, Applicant has established independent
probative evidence of his increased understanding of DoD policy constraints on the use
of illegal substances. However, he has not provided enough demonstration of overall
reliability to dispel continuing concerns about recurrence risks relative to his
considerable history of marijuana use. To his credit, Applicant  has made good progress
in developing his technical skills with his current employer and earning his bachelor’s
degree.
Considering the record as a whole, at this time there is insufficient probative
evidence of sustainable mitigation to make predictable judgments about Applicant’s 
ability to avoid illegal drugs in the foreseeable future. Taking into account all of the facts
and circumstances surrounding Applicant’s past drug use, he fails to mitigate security
concerns with respect to the allegations covered by the drug involvement guideline and
incorporated in the personal conduct guideline. Unfavorable conclusions are entered
with respect to the marijuana use allegations covered by the drug and personal conduct 
guidelines. Favorable conclusions are warranted with respect to the falsification
allegations. Eligibility to hold a position of trust under the facts and circumstances of this
case is inconsistent with the national interest. 
Formal Findings
In reviewing the allegations of the SOR and ensuing conclusions reached in the
context of the findings of fact, conclusions, conditions, and the factors listed above, I
make the following formal findings:
GUIDELINE H (DRUG INVOLVEMENT):                 AGAINST APPLICANT
   
Subparas 1.a-1.b:                        Against Applicant
GUIDELINE E (PERSONAL CONDUCT):               AGAINST APPLICANT
   
Subpara 2.a:                                   For Applicant
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         Subpara. 2.b:                                             Against Applicant
               
Conclusions
In light of all the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant or continue Applicant’s eligibility to
hold a public trust position.  Eligibility to hold a public trust position is denied.
                                          
Roger C. Wesley
Administrative Judge 
                                        
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