1 
 
                                                              
                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
) 
 [NAME REDACTED] )       ISCR Case No. 17-02603 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
  
For Government: Andre M. Gregorian, Esq., Department Counsel 
For Applicant: Pro se 
 
 
 
 
______________ 
 
Decision 
______________ 
 
 
MALONE, Matthew E., Administrative Judge: 
 
 
 Applicant did not mitigate the security concerns about his involvement with illegal 
drugs or his falsification of answers to questions in his security clearance application. 
Applicant’s request for a security clearance is denied. 
 
Statement of the Case 
 
 On April 11, 2016, Applicant submitted an Electronic Questionnaire for 
Investigations Processing (e-QIP) to obtain a security clearance required for his 
employment with a defense contractor. After reviewing the results of the ensuing 
background investigation, adjudicators for the Department of Defense (DOD) could not 
determine that it is clearly consistent with the national interest for Applicant to have access 
to classified information.1 
                                                 
1 Required by Executive Order 10865, as amended. See also Directive, Section E3.1.1. 
 
2 
 
 On January 30, 2018, DOD issued to Applicant a Statement of Reasons (SOR) 
alleging facts that raise security concerns about drug involvement and substance misuse 
(Guideline H) and personal conduct (Guideline E). Applicant timely responded to the SOR 
and requested a decision without a hearing. On May 7, 2018, Department Counsel issued 
a File of Relevant Material (FORM)2 in support of the SOR. Applicant received the FORM 
on May 16, 2018, and was notified that he had 30 days to file a response to the FORM. 
He did not submit any additional information, and the record closed on June 15, 2018. 
The case was assigned to me on July 27, 2018. 
 
Findings of Fact 
 
 Under Guideline H, the SOR alleged that Applicant used and purchased marijuana 
with varying frequency between 2010 and at least March 2017 (SOR 1.a); that in March 
2017, he was charged with possessing less than one ounce of marijuana, a charge that 
was still pending disposition when the SOR was issued (SOR 1.b); and that in June 2013, 
Applicant was charged with possession of marijuana with intent to distribute (SOR 1.c). 
In response, Applicant admitted, with explanation, each of those allegations. (FORM, Item 
1) 
 
 Under Guideline E, the SOR alleged that Applicant deliberately made false official 
statements when he answered “no” to the first two questions in Section 23 (Illegal Use of 
Drugs or Drug Activity) of his April 2016 e-QIP, thereby omitting from his e-QIP the 
involvement with marijuana to which he admitted in response to SOR 1.a (SOR 2.a). In 
response, Applicant denied any intent to falsify his answers or to mislead the government. 
(FORM, Item 1) In addition to the facts established by Applicant’s admissions in response 
to the SOR, I make the following findings of fact. 
 
 Applicant is 22 years old. At the time he submitted his e-QIP, he was attending a 
state university with a projected graduation in May 2018. With his Answer, he provided a 
copy of his academic transcript showing a 3.19 GPA through the end of 2017. While 
attending college, Applicant completed three internships at the defense contractor that 
sponsored his 2016 request for a security clearance. (FORM, Item 1) 
 
 In response to e-QIP Section 23 (Illegal Use of Drugs or Drug Activity), Applicant 
answered “no” to each question about his drug involvement (i.e., use, possession, 
purchase, or sale) in the preceding seven years. The background investigation that 
ensued from the submission of his e-QIP revealed that Applicant used marijuana between 
2010 and 2015. It also revealed that he was arrested in June 2013, while he was a minor 
and still in high school, and charged with possession with intent to sell marijuana. 
Additionally, the investigation showed that Applicant was cited for possession of 
marijuana in March 2017, a charge that was still pending in January 2018. In response to 
the FORM, Applicant did not provide any new information about that charge. (FORM, 
Items 1 – 5) 
                                                 
2 See Directive, Enclosure 3, Section E3.1.7. The FORM included five exhibits (Items 1 – 5) proffered in 
support of the Government’s case. 
 
3 
 
 Applicant was interviewed by a government investigator during a personal subject 
interview (PSI) on March 17, 2017. The investigator confronted Applicant with information 
about Applicant’s 2013 arrest. Applicant was found to be in possession of over an ounce 
of marijuana during a search incident to a traffic stop. Applicant was driving with a friend 
after having purchased the marijuana. The charge was later dismissed in juvenile court 
and expunged from Applicant’s record after he completed a weekly drug counseling 
course. In discussing his drug use with the investigator, Applicant stated that he started 
using marijuana in 2010. For the next two years, he smoked marijuana with friends on 
most weekends. Applicant also spent between $100 and $200 each week to buy one or 
two ounces of marijuana. Applicant continued to smoke marijuana in college, but claimed 
he stopped smoking marijuana in January 2015 because he saw it as a waste of time. He 
also stated that he knew most companies, with whom he would likely seek employment 
after graduating, would require him to pass a drug test. In response to interrogatories 
from Department Counsel, Applicant stated he does not intend to use marijuana in the 
future. He also affirmed the accuracy of the PSI summary provided with the 
interrogatories, and he adopted that summary as an accurate representation of what he 
told the investigator. (FORM, Item 3) 
 
 During Applicant’s PSI, he also discussed the drug possession citation he had 
received the week before his interview. On March 9, 2017, Applicant was one of two 
passengers in a car that was stopped for having a burnt-out headlight. Because the driver 
and other passenger had recent drug-related offenses, the police had probable cause to 
search the vehicle. In the PSI, Applicant stated that the search produced a small amount 
of marijuana found in the vehicle, and that because no one in the vehicle admitted to 
possession of the drugs, all three were issued citations for possession of marijuana. 
Applicant has denied the marijuana was his. (FORM, Items 1 and 3) 
 
 The police report of the March 9, 2017, event shows that Applicant admitted to 
police before they searched the vehicle that he had marijuana on his person, and that he 
produced from his pants pocket a baggie containing 3.79 grams of marijuana. The report 
also shows that no other drugs were found or detected by a drug-sniffing dog used in the 
search. The driver of the car was cited for having a failed headlight, and Applicant was 
issued a citation charging him with possession of less than one-half ounce of marijuana. 
Applicant responded to the charge by returning the citation noting his intent to plead not 
guilty to this charge. Available information does not reflect a final disposition of this 
charge. (FORM, Items 1, 3, and 4) 
 
Policies 
 
 Each security clearance decision must be a fair, impartial, and commonsense 
determination based on examination of all available relevant and material information,3 
and consideration of the pertinent criteria and adjudication policy in the adjudicative 
guidelines. Decisions must also reflect consideration of the factors listed in ¶ 2(d) of the 
new guidelines. Commonly referred to as the “whole-person” concept, those factors are: 
 
                                                 
3 Directive, 6.3. 
 
4 
 
 (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.  
 
 The presence or absence of a disqualifying or mitigating condition is not 
determinative of a conclusion for or against an applicant. However, specific applicable 
guidelines should be followed whenever a case can be measured against them as they 
represent policy guidance governing the grant or denial of access to classified 
information. A security clearance decision is intended only to resolve whether it is clearly 
consistent with the national interest4 for an applicant to either receive or continue to have 
access to classified information. Department Counsel must produce sufficient reliable 
information on which DOHA based its preliminary decision to deny or revoke a security 
clearance for an applicant. Additionally, Department Counsel must prove controverted 
facts alleged in the SOR.5 If the Department Counsel meets its burden, it then falls to the 
applicant to refute, extenuate, or mitigate the case for disqualification.6 
 
 Because no one is entitled to a security clearance, an applicant bears a heavy 
burden of persuasion to establish that it is clearly consistent with the national interest for 
the applicant to have access to protected information.7 A person who has access to such 
information enters into a fiduciary relationship with the Government based on trust and 
confidence. Thus, there is a compelling need to ensure each applicant possesses the 
requisite judgment, reliability, and trustworthiness of one who will protect the nation’s 
interests as his or her own. The “clearly consistent with the national interest” standard 
compels resolution of any reasonable doubt about an applicant’s suitability for access to 
classified information in favor of the Government.8 
 
Analysis 
 
Drug Involvement and Substance Misuse 
 
 The facts established through the Government’s information, and by Applicant’s 
statements and admissions, reasonably raise a security concern about illegal drug use. 
That security concern is stated at AG ¶ 24: 
 
                                                 
4 See Department of the Navy v. Egan, 484 U.S. 518 (1988). 
5 Directive, E3.1.14. 
6 Directive, E3.1.15. 
7 See Egan, 484 U.S. at 528, 531. 
8 See Egan; Adjudicative Guidelines, ¶ 2(b). 
 
5 
 
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. 
 
 Applicant has illegally used, purchased, and possessed a controlled substance as 
recently as the week before his PSI in March 2017. Appellant admitted to using marijuana 
through early 2015; however, his possession of a small amount of marijuana, usually 
intended for personal use, supports a reasonable inference that he continued using 
marijuana even after he applied for a security clearance. That possession also 
undermines his claims in his PSI and in response to interrogatories that he has no future 
intent to use marijuana. The foregoing requires application of the following AG ¶ 25 
disqualifying conditions: 
 
(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 
 
(g) expressed intent to continue drug involvement and substance misuse, 
or failure to clearly and convincingly commit to discontinue such misuse. 
 
 I also considered the following pertinent AG ¶ 26 mitigating conditions: 
 
(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 
 
(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 
 
6 
 
involvement or misuse is grounds for revocation of national security 
eligibility. 
 
 Nothing in Applicant’s response to the Government’s information supports any of 
the mitigating conditions. His drug use in high school and college was not infrequent, 
occurring as often as weekly over a period of at least five years. His 2013 arrest involved 
a significant amount of marijuana, which he had just purchased. Before that arrest, 
Applicant spent as much as $200 a week to buy marijuana. His last-known involvement 
with illegal drugs is recent, coming after he submitted his e-QIP and just before his PSI. 
When he was cited for drug possession in March 2017, he was riding in a car with persons 
who themselves had previously been charged with drug-related offenses. The foregoing 
renders valueless his claims that he will not use drugs in the future. On balance, Applicant 
did not mitigate the security concerns about his involvement with marijuana. 
 
Personal Conduct 
 
 The facts established through the Government’s information, and by Applicant’s 
statements and admissions, reasonably raise a security concern about his personal 
conduct. That security concern is stated at 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: 
 
(a) refusal, or failure without reasonable cause, to undergo or cooperate 
with security processing, including but not limited to meeting with a security 
investigator for subject interview, completing security forms or releases, 
cooperation with medical or psychological evaluation, or polygraph 
examination, if authorized and required; and 
 
(b) refusal to provide full, frank, and truthful answers to lawful questions of 
investigators, security officials, or other official representatives in 
connection with a personnel security or trustworthiness determination. 
 
 Applicant answered “no” to all questions in e-QIP Section 23. The allegation at 
SOR 2.a specifically addressed the first two of those questions, which together required 
him to disclose whether, in the preceding seven years (between April 11, 2009 and April 
11, 2016) he had used, purchased, or possessed illegal drugs, including marijuana. The 
record shows that he, in fact, bought, possessed, and used marijuana during that period. 
Thus, he should have answered “yes” to both questions.  
 
 
7 
 
To be disqualifying, Applicant’s responses must have been given with an intent to 
conceal the information, or to mislead the government about that information. Specifically, 
the issue is whether the record supports application of AG ¶ 16(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 national security eligibility or 
trustworthiness, or award fiduciary responsibilities. 
 
I conclude AG ¶ 16(a) applies. Applicant did not respond directly to the SOR 2.a 
allegation. Instead, he stated he did not disclose his 2013 arrest because he believed the 
record was expunged and he was under the impression he did not have to disclose it. 
That arrest is not at issue under this guideline. What is at issue is his failure to disclose 
his use of marijuana after 2009. For that omission he provided no explanation. In reaching 
my conclusion that Applicant intended to conceal his drug use, I have considered the 
record evidence as a whole. That evidence includes his apparent falsifications of the 
details of his 2017 arrest, both during his PSI and in response to the SOR. Applicant’s 
version of those events in his PSI and in response to the SOR stands in stark contrast to 
the police report generated at the time of the citation. Although this aspect of the record 
was not alleged in the SOR, I considered it as relevant circumstantial evidence of 
Appellant’s candor and truthfulness, or lack thereof. 
 
I also considered the following pertinent AG ¶ 17 mitigating conditions: 
 
(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; and 
 
(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. 
 
 None of these mitigating conditions apply. Rather than correct his omissions, 
Applicant chose to misrepresent the details of his involvement with illegal drugs during a 
PSI and in response to the Government’s information. Although he stated his belief he 
did not have to disclose a drug-related arrest as a minor because the record had been 
expunged, he did not present any information about guidance regarding whether he 
should have disclosed his frequent use of drugs that began in 2005 and continued at least 
until his stated termination of drug use in 2015. After he received the FORM, Applicant 
 
8 
 
did not avail himself of his opportunity to clarify or further explain his position regarding 
SOR 2.a. 
 
 Finally, there is nothing minor about Applicant’s deliberate falsification of 
information the government needed to make an accurate, well-informed assessment of 
his suitability for access to classified information. Applicant did not present any 
information that shows why his omissions should not cast doubt on his judgment, 
reliability and trustworthiness. The security concerns under this guideline are not 
mitigated.   
 
 I have evaluated this record and applied the appropriate adjudicative factors under 
Guidelines H and E. I also have considered the whole-person factors listed in AG ¶ 2(d). 
The record evidence as a whole does not support any of the whole-person factors. His 
drug use is recent, voluntary, and likely to recur. The positive information about his 
academic record is not sufficient to resolve the doubts, raised by the Government’s 
information, about Applicant’s suitability for access to classified information. Because 
protection of the interests of national security is the principal focus of these adjudications, 
those doubts must be resolved against the Applicant. 
 
Formal Findings 
 
 Formal findings 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:  AGAINST APPLICANT 
 
   Subparagraphs 1.a - 1.c:  Against Applicant 
 
   Paragraph 2, Guideline E:  AGAINST APPLICANT 
 
   Subparagraph 2.a:   Against Applicant 
 
Conclusion 
 
 In light of all available information, it is not clearly consistent with the interests of 
national security for Applicant to have access to classified information. Applicant’s request 
for a security clearance is denied. 
 
 
 
                                                     
MATTHEW E. MALONE 
Administrative Judge