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                          DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 18-00978 
  )   
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Aubrey De Angelis, Esq., Department Counsel 
For Applicant: Edward O. Lear, Esq. 
 
 
October 3, 2018 
______________ 
 
Decision 
______________ 
 
 
CEFOLA, Richard A., Administrative Judge: 
 
Statement of the Case 
 
On April 20, 2018, and as amended on June 5, 2018, in accordance with DoD 
Directive 5220.6, as amended (Directive), the Department of Defense issued Applicant 
a Statement of Reasons (SOR) alleging facts that raise security concerns under 
Guidelines H, J, and F. The SOR further informed Applicant that, based on information 
available to the government, DoD adjudicators could not make the preliminary 
affirmative finding it is clearly consistent with the national interest to grant or continue 
Applicant’s security clearance. 
 
Applicant answered the SOR on May 11, 2018, and the amended SOR on June 
25, 2018, and requested a hearing before an administrative judge. (Answers #1 and 
#2.) The case was assigned to me on July 26, 2018. The Defense Office of Hearings 
and Appeals (DOHA) issued an amended notice of hearing on July 26, 2018, 
scheduling the hearing for August 22, 2018. The hearing was convened as scheduled. 
The Government offered Exhibits (GX) 1 through 7. GX 1 through GX 7 were admitted 
without objection. Applicant testified on her own behalf. Applicant presented 15 
 
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documents, which I marked Applicant’s Exhibits (AppXs) A through O. AppX A through 
AppX O were admitted without objection. DOHA received the transcript of the hearing 
(TR) on September 4, 2018. 
 
Findings of Fact 
 
 Applicant admitted all the allegations of SOR. After a thorough and careful review 
of the pleadings, exhibits, and testimony, I make the following findings of fact.  
 
 Applicant is a 55-year-old employee of a defense contractor. (GX 1 at pages 7 
and 12.) She has been employed with the defense contractor for a year. She has held a 
security clearance, off and on, since 1989. (GX 1 at pages 12 and 37.) 
 
Guideline H – Drug Involvement and Substance Misuse & Guideline J – Criminal 
Conduct 
 
 1.a., 1.c., and 2.a.. Applicant used marijuana, with varying frequency from about 
October of 1995 until October of 1996, while holding a security clearance. (TR at page 
18 lines 1~14, at page 47 line 25 to page 48 line 11, at page 48 line 19 to page 49 line 
14, and at page 50 line 19 to page 51 line 11.) Applicant again returned to the use of 
marijuana as a “natural route,” in dealing with family and physical difficulties from about 
January of 2014 until at least June of 2017. (TR at page 33 line 6 to page 34 line 14.)  
  
 1.b., 1.d., and 2.a. Applicant used methamphetamine while holding a security 
clearance. (TR at page 48 line 12 to page 49 line 14.) This usage led to her arrest and 
charge in October of 1996, in part, for felony possession of a controlled substance. (TR 
at page 17 lines 3~25, and at TR at page 48 line 19 to page 49 line 14.)  
 
Guideline F – Financial Considerations 
 
 3.a. As the result of her 1996 arrest, Applicant lost her security clearance and 
job. (TR at page 28 line 12 to page 29 line 11.) This loss of income caused her to file for 
the protection of a chapter 7 Bankruptcy in 1996. (TR at page 28 line 12 to page 29 line 
11, and GX 6.) 
 
 3.b. In 2017, Applicant lost her non-defense contractor job, and the resulting loss 
of income again forced her to file for the protection of a chapter 7 Bankruptcy. (TR at 
page 29 line 12 to page 32 line 18, and GX 7.) 
 
 Since her last bankruptcy filing, Applicant has received financial counseling, and 
has no past-due indebtedness. (TR at page 44 line 21 to page 45 line 20, and AppXs N 
and O.)   
 
  
 
 
  
 
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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 
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 must present evidence to establish 
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 (EO) 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).   
 
 
 
 
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Analysis 
 
Guideline H - Drug Involvement and Substance Misuse 
 
The security concern relating to the guideline for 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. Three conditions are established: 
 
(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. 
 
 Appellant used marijuana and methamphetamine while holding a security 
clearance. She also used marijuana from about January of 2014 until at least June of 
2017. Therefore, AG ¶ 25 (a), (c), and (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 
 
(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. 
 
 None of these apply. Applicant’s drug involvement and misuse is fairly recent.  
 
Guideline J - Criminal Conduct 
 
The security concern relating to the guideline for Criminal Conduct is set out in 
AG ¶ 30:  
 
Criminal activity creates doubt about a person's judgment, reliability, and 
trustworthiness. By its very nature, it calls into question a person's ability 
or willingness to comply with laws, rules, and regulations. 
 
The guideline at AG ¶ 31 contains five disqualifying conditions that could raise a 
security concern and may be disqualifying. Two conditions apply, as discussed below: 
 
(a) a pattern of minor offenses, any one of which on its own would be 
unlikely to affect a national security eligibility decision, but which in 
combination cast doubt on the individual's judgment, reliability, or 
trustworthiness; and 
 
(b) evidence (including, but not limited to, a credible allegation, an 
admission, and matters of official record) of criminal conduct, regardless of 
whether the individual was formally charged, prosecuted, or convicted. 
 
Applicant was charged with felony possession of a controlled substance in 1996. 
She continued to use marijuana, a controlled substance, for at least three and a half 
years until as recently as June of 2017. This evidence raises security concerns under 
these disqualifying conditions, thereby shifting the burden to Applicant to rebut, 
extenuate, or mitigate those concerns. 
 
The guideline in AG ¶ 32 contains four conditions that could mitigate criminal 
conduct security concerns: 
 
(a) so much time has elapsed since the criminal behavior happened, or it 
happened under such unusual circumstances, that it is unlikely to recur 
and does not cast doubt on the individual's reliability, trustworthiness, or 
good judgment; 
 
 
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(b) the individual was pressured or coerced into committing the act and 
those pressures are no longer present in the person's life; 
 
(c) no reliable evidence to support that the individual committed the 
offense; and 
 
(d) there is evidence of successful rehabilitation; including, but not limited 
to, the passage of time without recurrence of criminal activity, restitution, 
compliance with the terms of parole or probation, job training or higher 
education, good employment record, or constructive community 
involvement. 
 
 Despite Applicant’s felony arrest for drug abuse, she returned to the fairly recent 
use of a controlled substance. The evidence does not establish mitigation under any of 
the above conditions. 
 
Guideline F - Financial Considerations 
 
 The security concern relating to the guideline for Financial Considerations is set 
out in AG ¶ 18: 
 
Failure to live within one's means, satisfy debts, and meet financial 
obligations may indicate poor self-control, lack of judgment, or 
unwillingness to abide by rules and regulations, all of which can raise 
questions about an individual's reliability, trustworthiness, and ability to 
protect classified or sensitive information. Financial distress can also be 
caused or exacerbated by, and thus can be a possible indicator of, other 
issues of personnel security concern such as excessive gambling, mental 
health conditions, substance misuse, or alcohol abuse or dependence. An 
individual who is financially overextended is at greater risk of having to 
engage in illegal or otherwise questionable acts to generate funds. 
Affluence that cannot be explained by known sources of income is also a 
security concern insofar as it may result from criminal activity, including 
espionage. 
 
The guideline notes several conditions that could raise security concerns under 
AG ¶ 19. Two are potentially applicable in this case:   
 
(a) inability to satisfy debts; and 
 
(c) a history of not meeting financial obligations. 
 
  Applicant filed for the protection of chapter 7 bankruptcies in 1996 and again in 
2017. The evidence is sufficient to raise these disqualifying conditions.  
 
  
 
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 AG ¶ 20 provides seven conditions that could mitigate security concerns. Three 
may apply: 
 
(a) the behavior happened so long ago, was so infrequent, or occurred 
under such circumstances that it is unlikely to recur and does not cast 
doubt on the individual's current reliability, trustworthiness, or good 
judgment; 
 
(b) the conditions that resulted in the financial problem were largely 
beyond the person's control (e.g., loss of employment, a business 
downturn, unexpected medical emergency, a death, divorce or separation, 
clear victimization by predatory lending practices, or identity theft), and the 
individual acted responsibly under the circumstances; and 
 
(c) the individual has received or is receiving financial counseling for the 
problem from a legitimate and credible source, such as a non-profit credit 
counseling service, and there are clear indications that the problem is 
being resolved or is under control. 
 
 Applicant’s past financial problems were the results of loss of employment. She 
currently has no past-due indebtedness. She has demonstrated that future financial 
problems are unlikely. Mitigation under AG ¶¶ 20(a), (b) and (c) have been established. 
  
Whole-Person Concept 
 
 Under the whole-person concept, the administrative judge must evaluate an 
applicant’s national security eligibility for a security clearance by considering the totality 
of the applicant’s conduct and all relevant 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. 
 
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.  
 
I considered the potentially disqualifying and mitigating conditions in light of all 
facts and circumstances surrounding this case. I have incorporated my comments under 
Guidelines H, J, and F in my whole-person analysis. Some of the factors in AG ¶ 2(d) 
were addressed under those guidelines, but some warrant additional comment.  
 
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Applicant is a well-respected individual, as evidenced by 13 character 
references. However, her fairly recent drug involvement and related criminal conduct 
leave me with questions and doubts as to her eligibility and suitability for a security 
clearance. For all these reasons, I conclude Applicant failed to mitigate the drug 
involvement, and criminal conduct security concerns.  
 
Formal Findings 
 
 Formal findings for or against Applicant on the allegations set forth in the SOR, 
as required by ¶ E3.1.25 of the Directive, are: 
 
Paragraph 1, Guideline H:   AGAINST APPLICANT 
 
  Subparagraphs 1.a. through 1.d.:  Against Applicant 
 
Paragraph 2, Guideline J:   AGAINST APPLICANT 
 
  Subparagraph 2.a.:    Against Applicant 
 
Paragraph 3, Guideline F:   FOR APPLICANT 
 
  Subparagraph 3.a. and 3.b.:  For Applicant 
 
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 national security eligibility 
for a security clearance. Eligibility for access to classified information is denied. 
 
 
 
 
________________________ 
Richard A. Cefola 
Administrative Judge