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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
) 
 [NAME REDACTED] )       ISCR Case No. 18-00175 
  ) 
 ) 
Applicant for Security Clearance ) 
 
Appearances 
 
For Government: Alison O’Connell, Esq., Department Counsel 
For Applicant: Chauncey B. Johnson, Esq. 
 
 
 
 
______________ 
 
Decision 
______________ 
 
 
MALONE, Matthew E., Administrative Judge:  
 
 The record did not support the allegations that Applicant was fired from a previous 
job. It also was not established that he misrepresented the circumstances surrounding 
the end of that employment in his security clearance application or during interviews with 
a government investigator. Applicant’s 2016 arrest for driving while intoxicated, and his 
use of marijuana the same day, are not disqualifying under the guidelines for drug 
involvement, criminal conduct or alcohol use. Nonetheless, under the personal conduct 
guideline, his arrest and drug involvement raised a security concern about his judgment 
and reliability. That concern is mitigated because his conduct was isolated, infrequent, 
and unlikely to recur. Applicant’s request for a security clearance is granted. 
 
Statement of the Case 
 
 On January 12, 2016, Applicant submitted an Electronic Questionnaire for 
Investigations Processing (e-QIP) to obtain eligibility for a security clearance required for 
 
 
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his employment with a defense contractor. Based on the results of the ensuing 
background investigation, Department of Defense (DOD) adjudicators could not 
determine that it is clearly consistent with the interests of national security for Applicant 
to have a security clearance.1 
 
 On March 7, 2018, DOD issued a Statement of Reasons (SOR) alleging facts that 
raise security concerns under the adjudicative guidelines for drug involvement and 
substance misuse (Guideline H) and personal conduct (Guideline E). Applicant timely 
responded to the SOR (Answer) and requested a hearing.  
 
 I received the case on August 9, 2018, and convened the requested hearing on 
September 28, 2018. The parties appeared as scheduled. Department Counsel proffered 
Government’s Exhibits (GX) 1 and 2. Applicant testified and proffered Applicant’s Exhibits 
(AX) A and B. All exhibits were admitted without objection.2 Additionally, Applicant 
testified on his own behalf and presented a witness. I received a transcript (Tr.) of the 
hearing on October 9, 2018. 
 
Findings of Fact 
 
 Under Guideline H, the Government alleged that between August 1992 and 
December 2016, Applicant used marijuana “with varying frequency,” his last drug use 
occurring after he had submitted his e-QIP and as he held an interim security clearance 
(SOR 1.a).  
 
 Under Guideline E, the Government cross-alleged the illegal drug use addressed 
in SOR 1.a (SOR 2.e). It was also alleged that Applicant was arrested in December 2016 
for driving while intoxicated (DWI) (SOR 2.a). Additionally, the Government alleged that 
in October 2015, he was fired from a previous employer for violating the employer’s rules 
and/or policies (SOR 2.b). Additionally, the Government alleged that Applicant 
deliberately provided false or misleading answers to an e-QIP question about the 
circumstances under which Applicant left the job referenced in SOR 2.b (SOR 2.c). 
Finally, it was alleged that he deliberately tried to mislead a government investigator about 
those circumstances during a personal subject interview in June 2017 (SOR 2.d).  
 
 In response to the SOR, Applicant admitted SOR 1.a, 2.a and 2.e. He denied the 
remaining allegations. (Answer; Tr. 7 – 8) Applicant’s admissions in response to the SOR 
establish those allegations as facts. Additionally, I make the following findings of fact. 
 
 Applicant is 44 years old and has worked for a defense contractor since January 
2016. After submitting his e-QIP around the time he was hired, he was granted an interim 
security clearance pending the outcome of a background investigation. Applicant was 
interviewed or contacted for information by government investigators five times between 
                                                 
1 Required by Executive Order 10865, as amended, and by DOD Directive 5220.6 (Directive), as amended. 
 
2 Tr. 10 – 17, 21. 
 
 
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June 7 and November 11, 2017. This is his first application for a security clearance. (GX 
1 and 2; Tr. 40 – 41) 
 
  In response to questions in e-QIP Section 13A (Employment Activities), Applicant 
provided his employment history between January 2006 and January 2016, as required. 
Before being hired for his current job in January 2016, Applicant was unemployed from 
October 2015 through December 2015. Before that period of unemployment, he had 
worked at a law firm from April 2014 until leaving that job in October 2015. His stated 
reason for leaving was “Contract expired in October.” (GX 1) 
 
 During his background investigation, Applicant was first interviewed by a 
government investigator on June 7, 2017. During that interview, he confirmed his answers 
in Section 13A. On July 26, 2017, Applicant completed a follow-up interview with a 
government investigator. According to the summary of that interview, which Applicant 
reviewed and adopted with only one inconsequential change, he was presented with 
information showing he was actually fired from his law firm job in October 2015, and that 
he had received a written reprimand for misuse of his employer’s email system for 
personal purposes. The interview summary also shows he told the investigator that he 
had inadvertently (the investigator used the word “oversight”) failed to disclose the written 
reprimand. The summary goes on to state that Applicant “was confronted with information 
he was fired from the [law firm] and was not eligible for rehire.” No employment record or 
other documentation of the circumstances surrounding the end of Applicant’s employment 
at the law firm was presented at hearing. (GX 2; Tr. 50 – 51) 
 
 Applicant insisted in his July 26, 2017, interview and at his hearing, that the end of 
his employment was mutual. As to his statement to the investigator that he was not eligible 
for rehire, Applicant assumed the fact he left abruptly would preclude any possibility he 
might be rehired, and he stated that he never had any intention of seeking additional work 
at that firm. Applicant stated he decided to leave that job because, a few months earlier, 
he had learned that a co-worker doing the same work was being paid twice the hourly 
wage Applicant was paid. Applicant abruptly left the firm after several unsuccessful 
requests for a raise to bring his pay in line with his co-worker. In contrast to this 
representation of what Applicant told the investigator about a written reprimand, Applicant 
testified at hearing that he was only verbally counseled about using the firm’s email; that 
he never received any written warning or reprimand; that he was never told that the firm 
decided to fire him or that the end of his employment was characterized by the firm as 
involuntary; or that it was connected to his use of the firm’s email. Applicant acknowledged 
at hearing that he used a poor choice of words in his e-QIP to describe why he left, and 
that he now understands that he was never under contract (as opposed to employment 
at will) for that job. (Answer; Tr. 33 – 35, 40 – 41, 52 – 63, 69 – 70) 
 
 In December 2016, while in possession of an interim security clearance, Applicant 
got into an argument with his girlfriend, with whom he had been living. It was near the 
holidays, and it became apparent to Applicant that the relationship was likely to end soon. 
After leaving his girlfriend’s house, Applicant went to a bar in the neighborhood where he 
 
 
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grew up. He had several drinks with an old friend, who later in the evening, invited 
Applicant outside to smoke marijuana. Applicant accepted and took a few puffs from a 
joint. At the end of the evening, Applicant attempted to drive home, but he was pulled 
over for a traffic violation. The officer determined Applicant had been drinking, and 
Applicant admitted also having smoked marijuana that evening. Applicant failed a field 
sobriety test, and his blood-alcohol content was found to be above the legal limit. 
Applicant was arrested for DWI and spent one night in jail before being released on his 
own recognizance. On January 19, 2017, he was adjudged guilty of DWI and assessed 
a fine and court costs. He also was ordered to complete 20 hours of community service, 
attend a one-day DWI school, and have a breathalyzer interlock device installed on his 
care for one year. Applicant timely and successfully completed all aspects of his 
sentence. He testified that he was evaluated by the DWI school and found to be nothing 
more than a social drinker. Applicant does not drink and drive, but drinks a few beers 
every week. Aside from a minor in possession of alcohol charge when he was 19 years 
old, Applicant has not had any adverse interactions with law enforcement. (GX 2; AX B; 
Tr. 24 – 30) 
 
 Applicant gain was interviewed by an investigator on November 17, 2017. The 
summary of that interview begins by stating that “[the record] reflects [Applicant] smoked 
marijuana once a month on weekends. The last use of marijuana was December 2.” The 
summary does not otherwise specify what the investigator’s source of that information 
was. Having reviewed all of the available information probative of Applicant’s use of 
marijuana, I find as fact that, before December 2016, Applicant had not smoked marijuana 
since 1992, when he experimented with it during his first year of college. The total number 
of times Applicant has used marijuana over that 24-year span is five or less. To imply 
from the statement about his use in the summary of interview, above, that Applicant used 
once a month over any period of time since 1992, would be untenable. Applicant insists 
that, aside from minor experimentation with marijuana was while he was in his first year 
of college, the only time he used marijuana was on the night he was arrested for DWI in 
2016. There is no indication that he has used marijuana since that evening in December 
2016. Nor has had any further contact with the old friend with whom he used marijuana 
that evening. Applicant does not interact with anyone who uses marijuana or any other 
illegal drugs. (Answer; GX 2; Tr. 25 – 26, 30 – 32, 39, 42 – 43, 45) 
 
 Applicant has a good performance record in his current job. The government 
program manager and his company supervisor hold him in high regard for his 
professionalism, reliability, work ethic, and overall integrity. A former co-worker, who still 
sees Applicant socially on occasion, testified she has never seen Applicant use drugs or 
become intoxicated. She believes Applicant is a good person. (AX A; Tr. 35 – 38, 71 – 
78) 
 
Policies 
  
 This case is governed by the adjudicative guidelines (AG) issued by the Director 
of National Intelligence on December 10, 2016, and made effective for all adjudications 
 
 
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on or after June 8, 2017. 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 guidelines. Commonly referred to as the “whole-person” concept, those factors 
are:  
 
  (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.  
 
 The Government bears the initial burden of producing admissible information on 
which it based the preliminary decision to deny or revoke a security clearance for an 
applicant. Additionally, the Government must be able to prove controverted facts alleged 
in the SOR. If the Government meets its burden, it then falls to the applicant to refute, 
extenuate or mitigate the Government’s case. Because no one has a “right” to a security 
clearance, an applicant bears a heavy burden of persuasion.5 A person who has access 
to classified information enters 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 one who will 
protect the national 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 in favor of the Government.6 
 
 
                                                 
3 See Directive. 6.3. 
 
4 See Department of the Navy v. Egan, 484 U.S. 518 (1988). 
 
5 See Egan, 484 U.S. at 528, 531. 
 
6 See Egan; AG ¶ 2(b). 
 
 
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Analysis 
 
Drug Involvement and Substance Misuse 
 
  The security concern about Applicant’s involvement with illegal drugs is stated 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. 
 
  In addition to Applicant’s admission of the allegation at SOR 1.a, available 
information shows he first used marijuana as a teenager in the first year of college, but 
that he did not use marijuana again until December 2016. When he used marijuana in 
2016, he did so while holding a security clearance. The fact that it was an interim 
clearance does not matter. This information requires application of the disqualifying 
conditions at AG ¶¶ 25(a) (any substance misuse (see above definition)) and 25(f) (any 
illegal drug use while granted access to classified information or holding a sensitive 
position).  
 
  By contrast, the following AG ¶ 25 mitigating conditions apply:  
 
(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; and 
 
(2) changing or avoiding the environment where drugs were used. 
 
 Applicant committed an egregious lapse in judgment in December 2016 when, 
while holding a security clearance, he got drunk one night and accepted an offer to smoke 
marijuana. He did so under circumstances – after an argument with his now former 
girlfriend – that are unlikely to recur. His marijuana use was infrequent, December 2016 
 
 
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being the first time in 24 years that he smoked marijuana. It also appears to have been 
the only instance of drug use that is relevant to the current assessment of his suitability 
for access to classified information. Applicant association with the old friend with whom 
he used drugs was isolated, and Applicant does not currently associate with anyone who 
uses illegal drugs. I conclude he is unlikely to use drugs again and that the security 
concern under this guideline is mitigated.  
 
Personal Conduct 
 
 The security concern under this guideline is articulated 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 denied the allegations at SOR 2.b – 2.d. Therefore, the burden to prove 
those controverted issues of fact remained on the Government.7 As for the circumstances 
under which Applicant left his law firm job in October 2015, Applicant was unaware that 
his departure was characterized by employment records as involuntary. Applicant used 
his employer’s email for improper purposes and was reprimanded for it. Whether the 
reprimand was written or verbal is largely irrelevant here. There is insufficient information, 
in response to Applicant’s denials, which shows he was fired, whether it be for misusing 
email or for any other reason. The record evidence as a whole on this issue shows that 
Applicant left the law firm voluntarily. SOR 2.b is resolved for the Applicant. 
 
 In an interview on June 7, 2017, Applicant confirmed his answers in e-QIP Section 
13A. In SOR 2.c and 2.d, it was alleged that those statements constituted deliberate 
                                                 
7 Directive, E3.1.14. 
 
 
 
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falsifications.8 Those allegations require consideration of the following AG ¶ 16 
disqualifying conditions:  
 
(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; and   
 
(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. 
 
 In a follow-up interview on July 26, 2017, an investigator confronted Applicant with 
information that showed he had been fired from the law firm. The information with which 
Applicant was confronted is not available here. During that interview, Applicant stated he 
left the firm “by mutual agreement.” Because it was not established that Applicant’s 
departure was involuntary, and because his stated reasons for leaving that job are 
plausible, I conclude that his stated reason for leaving the job was not an intentionally 
false statement. The record evidence as a whole regarding Applicant’s intent at the time 
he submitted his e-QIP shows he did not intend to omit information or provide false 
information. The same conclusion extends to his statements in his subject interviews 
about the end of his law firm employment. Applicant understood that he left the job 
voluntarily. Because he characterized his departure differently in his e-QIP and his 
interviews does not mean he intended to be deceptive.9 AG ¶¶ 16(a) and 16(b) are not 
supported by this record, because it was not established that he intended to falsify or 
otherwise mislead about these matters. SOR 2.c and 2.d are resolved for the Applicant. 
 
 Applicant admitted the allegations at SOR 2.a and 2.e. Available information does, 
indeed, show that Applicant was arrested and convicted of DWI in December 2016. It also 
                                                 
8 The questions in e-QIP 13C (Employment Record) are intended to find out if, in the preceding seven 
years, the person completing the e-QIP was ever fired from a job, quit a job after being told he would be 
fired, left a job by mutual agreement following charges of misconduct, left a job by mutual agreement 
following notice of poor performance, had received a written warning, had been officially reprimanded, 
suspended, or disciplined for workplace misconduct. In response to those questions, Applicant answered 
“no.” The Government did not alleged that Applicant’s negative answers in Section 13C were also deliberate 
false statements. 
 
9 See, e.g. Appeal Board Decision, ISCR Case 00-0201, dated April 23, 2001 (An intent to falsify can be 
proven by direct or circumstantial evidence. An applicant's statements about his or her intent or state of 
mind are relevant evidence, but they are not binding or conclusive evidence. Rather, an applicant's 
statements must be considered in light of the applicant's credibility and the record evidence as a whole. 
(citations omitted). 
 
 
 
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shows that he used an illegal drug the same night, at a time when he held an interim 
security clearance. The allegations at SOR 2.a and 2.e are established.  
 
 For the same reasons I concluded Applicant’s drug use was mitigated under 
Guideline H, above, I conclude it would also be mitigated under the criminal conduct 
guideline. Likewise, Applicant’s DWI on the same night, standing alone, would not be 
disqualifying under the guidelines pertaining to criminal conduct or alcohol consumption. 
Nonetheless, considering both events together under this guideline, the facts established 
in 2.a and 2.e require application of the disqualifying condition at AG ¶ 16(c): 
 
credible adverse information in several adjudicative issue areas that is not 
sufficient for an adverse determination under any other single guideline, but 
which, when considered as a whole, 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. 
 
 Applicant had a security clearance when he went out drinking in December 2016. 
That evening, he decided to drive while intoxicated. He also decided to use illegal drugs 
with a friend he had not seen in a long time. Applicant was 42 years old at the time and 
knew, or should have known, that his conduct was not consistent with the requirements 
of a drug-free workplace; nor was his abuse of alcohol that evening exemplary of the 
sound judgment required of one whom the government asks to protect its sensitive 
information. 
 
 By contrast, I also considered the mitigating condition at AG ¶ 17(c) : 
 
(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. 
 
 Available information supports application of this mitigating condition. Applicant’s 
misconduct in December 2016 was not minor; however, his use of marijuana and abuse 
of alcohol are isolated. Applicant’s misconduct also occurred nearly three years ago, and 
there is no other indication in this record that, before 2016, he had engaged in similar 
conduct since his early college days. Nor has he engaged in any misconduct since 
December 2016. The events at issue here also occurred under circumstances that are 
unlikely to recur. As required by AG ¶¶ 16(c) and 17(c), I also have evaluated this record 
in the context of the whole-person factors listed in AG ¶ 2(d). Applicant presented positive 
recommendations and testimony about his character, work performance, and current use 
of alcohol. On balance, the security concerns under this guideline are resolved for 
Applicant, and the record evidence as a whole supports a fair and commonsense 
conclusion that the security concerns raised by the Government are mitigated. 
 
 
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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: FOR APPLICANT 
 
   Subparagraphs 1.a:  For Applicant 
 
   Paragraph 2, Guideline E: FOR APPLICANT 
 
   Subparagraphs 2.a – 2.e: For Applicant 
 
Conclusion 
 
  In light of all of the foregoing, it is clearly consistent with the interests of national 
security for Applicant to have access to classified information. Applicant’s request for a 
security clearance is granted. 
 
 
 
                                        
MATTHEW E. MALONE 
Administrative Judge