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ISCR Case 21-01940 — CASE

ISCR Case 21-01940granted

Case Headnote

ISCR Case No. 21-01940

grantedSep 30, 2022· Hon. John Bayard Glendon· hearing

Summary

A 39-year-old cybersecurity engineer was granted a security clearance despite past issues under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). Allegations included marijuana use from 2003 or 2004 to July 2011, including a specific instance in July 2011 after a clearance had been granted. He also used Xanax without a prescription from approximately 2006 to 2008.

Further concerns involved questionable judgment and lack of candor. The applicant was alleged to have provided false information about his last marijuana use date in a March 15, 2013 background interview and to have deliberately omitted past drug use in a 2012 SCA and a May 18, 2010 security clearance application.

The judge determined that the applicant's last drug use was over eleven years prior and occurred under unusual circumstances, making recurrence unlikely. Significant personal growth was demonstrated through a stable family life and a commitment to abstinence. The applicant's testimony and character references supported his maturity and integrity, ultimately mitigating past concerns and leading to the granting of the security clearance.

Why the Applicant Prevailed

The applicant's last drug use occurred over eleven years ago under unusual circumstances, making it unlikely to recur.
He provided evidence of significant personal growth, including a stable family life and a commitment to abstain from drug use.
The applicant's testimony and character references supported his maturity and integrity, mitigating past concerns.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedSubstance Misuse
AG ¶ 25(f)raisedIllegal Drug Use While Holding a Clearance
AG ¶ 16(a)raisedDeliberate Omission or Falsification
AG ¶ 16(b)raisedProviding False or Misleading Information

Mitigating

AG ¶ 26(a)appliedBehavior Unlikely to Recur
AG ¶ 26(b)appliedAcknowledgment and Actions Taken to Overcome Issues
AG ¶ 17(c)appliedMinor Offense or Significant Time Passed
AG ¶ 17(d)appliedAcknowledgment and Counseling
AG ¶ 17(g)appliedCeased Association with Criminal Activities

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedSep 28, 2021
Answer filedDec 2, 2021
Hearing heldJun 30, 2022via video teleconference
Decision dateSep 30, 2022

Cite For

Mitigation of Past Drug Use Under Guideline H
Personal Conduct Issues Mitigated by Evidence of Personal Growth
Importance of Character References in Security Clearance Cases

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: HearingDecided: granted

The judge found in favor of the applicant on all allegations under Guideline E, concluding that the applicant's past conduct involving questionable judgment and lack of candor was mitigated by his subsequent honesty in disclosing relevant information during a later security clearance application. The applicant's admissions and explanations were considered in the overall assessment of his personal conduct.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant engaged in conduct that involves questionable judgment, lack of candor, and dishonesty.	For Applicant	Questionable Judgment General	—	Admitted	—	—	—
2.b	Applicant provided false information about the date of his last use of marijuana in his March 15, 2013 background interview.	For Applicant	Lack of Candor in Interview	Other	Admitted	—	—	—
2.c	Applicant deliberately omitted his past drug use in his 2012 SCA.	For Applicant	Omission or Failure to Disclose	Other	Admitted	—	—	—
2.d	Applicant failed to disclose his drug use in his May 18, 2010 security clearance application.	For Applicant	Omission or Failure to Disclose	Other	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: HearingDecided: granted

The judge found that the applicant used marijuana with varying frequency from 2003 or 2004 to July 2011, including a use in July 2011 after being granted a security clearance. The applicant also used Xanax without a prescription from about 2006 to 2008. All allegations were ruled in favor of the applicant, indicating successful mitigation of concerns regarding drug involvement.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana with varying frequency from 2003 or 2004 to July 2011.	For Applicant	Marijuana	Experimental	Admitted	—	—	—
1.b	Applicant used marijuana in July 2011 after he had been granted a security clearance.	For Applicant	MarijuanaWHILE CLEARED	Experimental	Admitted	—	—	—
1.c	Applicant used the prescription medication Xanax without a prescription from about 2006 to 2008.	For Applicant	Prescription Other Misuse	Experimental	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) ) ISCR Case No. 21-01940 ) ) Applicant for Security Clearance ) Appearances For Government: Tara Karoian, Esq., Department Counsel For Applicant: Ryan C. Nerney, Esq. September 30, 2022

STATEMENT OF CASE

GLENDON, John Bayard, Administrative Judge: Statement of the Case Applicant submitted his most recent Electronic Questionnaire for Investigations Processing on January 28, 2020 (2020 e-QIP). On September 28, 2021, the Defense Counterintelligence and Security Agency Consolidated Adjudications Facility (CAF) issued a Statement of Reasons (SOR) to Applicant detailing security concerns under Adjudicative Guidelines H (Drug Involvement and Substance Misuse) and E (Personal Conduct). The action was taken under Executive Order 10865, Safeguarding Classified Information Within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the Adjudicative Guidelines effective within the Department of Defense after June 8, 2017.

Applicant responded the SOR (Answer) on December 2, 2021. He attached to the Answer 15 documents marked as Applicant Exhibits (AE) A through O and requested a hearing before an administrative judge. Department Counsel was prepared to proceed on April 4, 2022. The case was assigned to me on April 19, 2022. The Defense Office of Hearings and Appeals (DOHA) issued a Notice of Hearing on May 9, 2022, scheduling the case to be heard via video teleconference on June 30, 2022. I convened the hearing as scheduled. Department Counsel offered Government Exhibits (GE) 1 through 4, which were admitted without objection. Applicant offered the 15 exhibits attached to his Answer and five additional exhibits marked as AE P through T. His exhibits were admitted without objection. Applicant and a character witness testified. DOHA received the transcript of the hearing (Tr.) on July 13, 2022. (Tr. at 14- 16.) I kept the record open to provide Department Counsel with the opportunity to research the Government’s investigative file from 2010 to determine if Applicant was interviewed in connection with his 2010 security clearance application (2010 SCA), and if so, to submit a copy of the interview summary. Department Counsel subsequently reported in an email that she had reviewed the available records and did not find an interview summary. She also submitted three exhibits, marked as GE 5 through 7 for identification purposes, which are the Case Closing Transmittal forms prepared by the Office of Personnel Management (OPM) at the conclusion of the agency’s three background investigations of Applicant in 2020, 2012-13, and 2010, respectively. Applicant’s counsel objected to the admission of GE 5 through 7 on the grounds that they were inadmissible under Directive ¶ E3.1.20 in the absence of the testimony of an authenticating witness. He also objected to the admission of Department Counsel’s emails on this subject on the ground that they were merely argument, not evidence. I overrule counsel’s objection regarding GE 5 through 7, as these documents are official records of the U.S. Government. The cited section of the Directive specifically states that official records are admissible without an authenticating witness. Moreover, the proposed exhibits are not “DoD personnel background reports of investigation (ROIs),” which are excluded under an exception in Directive ¶ E3.1.20 from the general rule of admissibility of official records. I agree with Applicant’s counsel that the emails from Department Counsel on this subject are merely argument, as are the replies of Applicant’s counsel. As such, they are not admissible as evidence and will not be weighed as evidence, but the arguments contained therein will be given the consideration they deserve like any other argument of counsel. I have marked the disputed email thread as Hearing Exhibit A for the record.

FINDINGS OF FACT

Applicant is 39 years old. He married in 2006 and divorced in 2008. He remarried in 2016 and has two young children. He earned a bachelor’s degree in 2006 and a master’s degree in 2008. Applicant has been employed by a defense contractor as a cybersecurity engineer since March 2017. He was first granted a security clearance in June 2010. He seeks to retain national security eligibility and a security clearance in connection with his employment. (Tr. at 32-39; GE 1 at 7, 14, 23-25, 29, 129-131; AE G.) Paragraph 1 (Guideline H, Drug Involvement and Substance Misuse) The Government alleged in this paragraph that Applicant is ineligible for a clearance because he has a history of drug involvement and substance misuse. Specifically, the SOR alleged that Applicant used marijuana with varying frequency from 2003 or 2004 to July 2011 (SOR 1.a). The SOR also alleged that Applicant used marijuana in July 2011 (2011 Marijuana Use) after he had been granted a security clearance (SOR 1.b). The SOR further alleged that Applicant used the prescription medication Xanax without a prescription from about 2006 to 2008 (SOR 1.c). In the Answer, Applicant admitted all three allegations with explanations and other mitigating information. Applicant began smoking marijuana with his college girlfriend in about 2003. They used marijuana regularly through their college years and after they married in 2006. Applicant and his wife separated and divorced two years later. During their brief marriage, his former wife also encouraged Applicant to take Xanax, a prescription drug prescribed to her, to reduce his stress and anxiety. Applicant described his ex-wife as mature, intelligent, and controlling, and he described himself at the time as immature, insecure, inexperienced, and easily controlled. After receiving his master’s degree in 2008, he began life on his own and separated himself from being under the control of his former wife. He also began his professional career. In late 2007 or early 2008, he also stopped using illegal drugs and misusing prescription drugs. At the same time, he stopped associating with friends who used illegal drugs. (Tr. at 36-40, 44-48, 74; GE 4 at 7.) In 2011 Applicant was deployed to a war zone for about four months working for a defense contractor supporting the U.S. Marine Corps. He was working at a forward operating base and moved to other similar locations during his deployment. He experienced a dangerous environment on a daily basis. After he returned to the United States, he visited his uncle who offered him marijuana to celebrate his safe return from the war zone. Applicant briefly smoked the marijuana, but then realized that he made a mistake because he held a security clearance. He has not used marijuana since this incident in July 2011. (Tr. at 40-45; GE 4 at 8.)

Paragraph 2 (Guideline E, Personal Conduct) The Government alleged in this paragraph that Applicant is ineligible for clearance because he has engaged in conduct that involves questionable judgment, lack of candor, and dishonesty. The SOR cross-alleged under this guideline the three Guideline H allegations described above (SOR 2.a). The SOR also alleged that Applicant provided false information about the date of his last use of marijuana in his March 15, 2013 background interview (2013 Interview) (SOR 2.b). The SOR alleged further that he deliberately omitted his past drug use as alleged in SOR 1.a, 1.b, and 1.cin his 2012 SCA (SOR 2.c) and that he failed to disclose his drug use as alleged in SOR 1.a and 1.cin his May 18, 2010 security clearance application (2010 SCA) (SOR 2.d). Applicant admitted all four SOR allegations in the Answer with explanations and other mitigating information. At the time of his 2020 e-QIP, he properly disclosed the responsive information about his use of marijuana once in July 2011 while he held a security clearance. The applicable question had no time limitation. The e-QIP did not require disclosure of his marijuana use prior to 2008 because that illegal drug use was outside of the seven-year timeframe of the relevant question. Mitigation and Whole Person Evidence Applicant provided extensive documentary evidence and testimony in mitigation of the security concerns raised under both Guideline H and Guideline E. All of his evidence supports my observation of Applicant that he is a mature, responsible, and honest person, who has fully taken control of his life. The documentary evidence covers a number of issues. Applicant has received numerous awards and other recognitions of his accomplishments. He provided copies of his degrees, training certificates and performance evaluations. The evaluations reflect that he is a valued employee. He also submitted a statement of his intent to never use illegal drugs in the future along with negative drug test results evidencing that he is committed to his stated intent. He underwent a psychological and substance abuse evaluation in which the evaluator concluded that Applicant is not at risk of using drugs in the future. In addition, he submitted certificates evidencing that he took a drug and alcohol awareness course, a behavior modification course, and a marijuana education class. (AE C – T.) Applicant’s exhibits include three character reference letters from supervisors and a co-worker. They are all aware of Applicant’s drug history and his falsifications dating back to the 2010 to 2013 period. Each of the references support Applicant as a person who has learned from his past mistakes and grown into a highly responsible and honest person. (AE C.) Applicant’s testimony and his witness’ testimony were impressive. Applicant explained that his drug use 14 or more years ago was during a period when he was young and was under the influence of his ex-wife, who was a frequent drug user. He testified that she was diagnosed as bipolar or suffering from multiple personalities disorder, which

is now referred to as dissociative identity disorder. Although she encouraged him to smoke marijuana with her and to use her prescription Xanax pills, he blamed himself for being susceptible to manipulation and for being immature and inexperienced. He also testified that his one-time use of marijuana in July 2011 was an instance of poor judgment following a very difficult and traumatic experience in a dangerous war zone. He was overwhelmed by his safe return to his home and let his guard down to celebrate with his uncle, who is a marijuana user. Applicant has since told his uncle that he has no interest in using marijuana in the future and asked his uncle to refrain from doing so in front of him. He regrets his poor judgment at the time. He has no intention to use illegal drugs in the future and has signed a statement submitted into the record to support his testimony. (Tr. at 30-51, 69-70; AE K.) Applicant testified that his omissions in his 2010 SCA of his past drug use were due to poor judgment and fear that his drug use may adversely affect his clearance eligibility. He testified further that he was interviewed 2010 at the U.S. Navy base where he was working briefly as a contractor. He said that he reported his pre-2008 use of marijuana and Xanax to the investigator and that he acknowledged that he was wrong to omit this information from his 2010 SCA. After the hearing Department Counsel argued that the Government’s records do not reflect that such an interview took place because the OPM Case Closing Transmittal form (GE 7) does not list this investigative step and there was no record of a report summarizing such an interview in the Government’s paper or electronic files. (Tr. at 82-85; GE 7.) Applicant testified that he when he prepared his 2012 SCA, he understood that he was only being asked to update his information since his 2010 SCA and that he was not being asked to disclose seven years of drug use. He credibly testified that it was not his intention to mislead the Government in his 2012 SCA about his pre-2008 drug use in his 2012 SCA. When he was interviewed in March 2013, he fully disclosed his pre-2008 use of marijuana and Xanax. This disclosure was voluntary because the report of the interview does not reflect that the Investigator had information about his prior drug use and confronted him about it and his nondisclosure in the 2012 SCA. (Tr. at 76-80: GE 4 at 6.) Applicant acknowledged that in his 2012 SCA he omitted his July 2011 use of marijuana. He also did not disclose this incident to the investigator in his March 2013 background interview. He testified that he incorrectly concluded that his 2011 drug use was not security significant since it was a one-time use. He was alone at the time he prepared the 2012 SCA and was recovering from his divorce in 2008 without having fully matured. He did not have friends of his own who he trusted to advise him. (Tr. at 53-67; GE 4 at 6.) In the Report of Investigation (ROI) summarizing Applicant’s April 2020 OPM background interview, the investigator detailed Applicant’s comments regarding his admission in his 2020 e-QIP about a one-time use of marijuana in July 2011 with his uncle. The investigator also wrote that, “[Applicant] had never used an illegal drug prior to this,” apparently referring to the July 2011 incident discussed in immediately preceding

clause in the ROI. In response to DOHA’s Interrogatories, Applicant verified that the ROI correctly stated his comments to the investigators with two corrections. In one correction, Applicant wrote that the language quoted above “is not accurate and [I] do not recall this being part of the conversation.” (GE 4 at 2, 22.) At the hearing, Applicant also denied making that statement during his April 2020 interview. In the absence of a verification by Applicant of the ROI language attributing a statement to him about prior drug use or his adoption of the quoted statement as a correct statement, the disputed language of the ROI is inadmissible evidence under Directive ¶ E3.1.20 since no witness testified to authenticate the ROI. Appropriately, the SOR does not allege that Applicant falsified information in his April 2020 Interview about his past drug use. (Tr. at 92-102.) Applicant emphasized that he has learned about the importance of personal integrity and the honesty after he remarried and began his work with his current employer. Since about 2016, he has become an adult with significant family and work responsibilities. In his 2020 e-QIP, he disclosed his July 2011 use of marijuana after having been granted a security clearance in 2010. He testified that this disclosure was the result of the changes he has made in his life. (Tr. at 53-67.) With respect to his character, Applicant’s witness provided a strong endorsement of Applicant’s maturity and integrity. Applicant described his witness as his “mentor.” The witness has known Applicant since about 2017 and at one point was Applicant’s supervisor. He still has daily interactions with Applicant as a senior person in Applicant’s division of a large defense contractor. The witness endorsed Applicant’s maturity, intelligence, expertise, integrity, and work ethic. He believes that the person Applicant is today is not the same person Applicant was ten or more years ago when he the incidents alleged in the SOR occurred. He believes that Applicant today exercises excellent judgment and is a person of integrity. (Tr. at 17-29, 61.)

POLICIES

When evaluating an applicant’s suitability for national security eligibility, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines (AG) list potentially disqualifying conditions and mitigating conditions, which are to be used in evaluating an applicant’s national security eligibility. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied 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. The entire process is a conscientious scrutiny of applicable guidelines in the context 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, “Any 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. I have not drawn inferences based on mere speculation or conjecture. Directive ¶ E3.1.14, requires the Government to present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, “The 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 national security eligibility. 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 or sensitive information. Finally, as emphasized in Section 7 of Executive Order 10865, “Any determination under this order adverse to an applicant shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also Executive Order 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information.)

ANALYSIS

Paragraph 1 (Guideline H, Drug Involvement and Substance Misuse) The security concerns relating to the guideline for drug involvement and substance misuse are set out in AG ¶ 24, which reads as follows: 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. AG ¶ 25 describes two conditions that could raise security concerns and may be disqualifying in this case: (a) any substance misuse (see above definition); and (f) any illegal drug use while granted access to classified information or holding a sensitive position. Applicant’s admissions in his Answer and his detailed testimony regarding his history of drug use establish the above disqualifying conditions and shift the burden to Applicant to mitigate the security concerns raised by his conduct. The guideline includes two conditions in AG ¶ 26 that could mitigate the security concerns arising from Applicant’s alleged drug involvement and substance misuse: (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 the 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 involvement or misuse is grounds for revocation of national security eligibility. Both of the above mitigating conditions fully apply. Applicant’s last drug use was when he held a clearance in 2011, but it occurred more than eleven years ago under unusual circumstances. It is unlikely that Applicant will repeat such behavior in the future. Also, his frequent drug use more than 14 years ago is not recent enough to be of security significance. Applicant’s past behavior does not cast doubt on his current reliability, trustworthiness, and good judgment. In addition, Applicant’s evidence has satisfactorily addressed AG ¶ 26(b) and each of the subsections thereunder. In my mitigation analysis, I have also taken administrative notice of the Security Executive Agent “Clarifying Guidance Concerning Marijuana for Individuals Eligible to Access Classified Information or Eligible to Hold a Sensitive Position,” dated December

21, 2021 (Guidance). In her Guidance, the Security Executive Agent (SecEA) noted the increased number of states that have legalized or decriminalized the use of marijuana. She reaffirmed SecEA’s 2014 memorandum regarding the importance of compliance with Federal law on the illegality of the use of marijuana by holders of security clearances. She provided further clarification of Federal marijuana policy writing that this policy remains relevant to security clearance adjudications “but [is] not determinative.” She noted that the adjudicative guidelines provided various opportunities for a clearance applicant to mitigate security concerns raised by his or her past use of marijuana. (Guidance at 1.) Following careful consideration of the disqualifying and mitigating evidence, as well as SecEA’s recent clarifying guidance regarding Federal policy concerning marijuana use by holders of security clearances, I conclude that Applicant has mitigated the security concerns raised by his past use of marijuana and his misuse of a prescription drug. Paragraph 1 is found in favor of Applicant. Paragraph 2 (Guideline E, Personal Conduct) The security concerns relating to the guideline for personal conduct are set out in AG ¶ 15, which states: 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 three conditions that could raise security concerns and may be disqualifying in this case: (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; (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 (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 used marijuana and misused a prescription drug in the past. He also used marijuana on one occasion while holding a security clearance. AG ¶ 16(c) is established. Applicant deliberately provided false information in his 2010 SCA about his past drug use. On the other hand, Applicant credibly testified that he did not deliberately omit in his 2012 SCA information about his earlier use of marijuana and misuse of Xanax because he believed he had disclosed that information in a 2010 Interview and he was merely updating his prior investigation when he prepared his 2012 SCA. The Government’s evidence does not reflect that Applicant was interviewed in 2010. Moreover, the Government presented no evidence to explain the significance of the absence in the Government’s file of a Report of Investigation summarizing an interview of Applicant in 2010 or of the information in GE 7, the OPM Case Closing Transmittal form. Accordingly, I give more weight to Applicant’s credible testimony that he was interviewed in 2010 and disclosed his drug use during that interview. In 2012 Applicant believed the new application was just an update in light of his disclosure of his drug use in the 2010 Interview. He was dealing with an unusual situation in 2012 when asked to prepare a new application two years after his first one had resulted in the granting of a clearance. His misinterpretation of the disclosure requirements in the 2012 SCA does not amount to a willful falsification. Applicant also testified that his failure to disclose his 2011 use of marijuana in his 2012 SCA was due to his belief that it was not necessary to report it because it was a one-time use of marijuana and was not of any security significance. Arguably, he did not deliberately provide false information in that application, he merely made a mistake based upon a lack of understanding of what was required. He did testify, however, that he regretted smoking marijuana with his uncle in 2011 because he knew it was wrong since he held a security clearance. I conclude that he knowingly and deliberately provided false information by not disclosing that more recent drug use in his 2012 SCA and his 2013 interview. As a result of my conclusions that the evidence and Applicant’s admissions establish three deliberate falsifications by Applicant in the past, AG ¶ 16(a) and (b) are also established. The burden shifts to Applicant to mitigate the security concerns raised by his conduct. AG ¶ 17 includes four conditions that could mitigate the security concerns arising from Applicant’s behavior in 2010, 2012, and 2013: (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; (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; (e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; and

(g) association with persons involved in criminal activities was unwitting, has ceased, or occurs under circumstances that do not cast doubt upon the individual’s reliability, trustworthiness, judgment, or willingness to comply with rules and regulations. Applicant has fully established all of the above mitigating conditions. The most recent of the three established falsifications occurred during the 2013 Interview, over nine years ago. Applicant has provided significant evidence of the changes he has made and his maturing experiences over the past nine years, including a solid, healthy marriage, a young family, a job with significant security responsibilities, and a mentor who has taught him the importance of personal integrity. He no longer associates with his ex-wife, who engaged in criminal behavior and encouraged him to participate in such behavior. He now appreciates the value of integrity and when asked to complete a security clearance application in 2020, he honestly disclosed the most derogatory information in his personal history, i.e., that he had a one-time experience with marijuana seven years earlier while holding a clearance. He had failed to disclose this information in his 2013 interview, but he did the right thing in his 2020 e-QIP. He understood that his disclosure may have serious consequences. The Government investigated his disclosure and initiated the instant proceedings to deny him eligibility for a clearance, which carries with it the potential loss of his employment. By this action, he has fully acknowledged that his prior falsifications were wrong. He has taken responsibility for his past behavior and eliminated his vulnerability to exploitation. As a result, his offenses in 2010, 2012, and 2013 do not cast doubt on his reliability, trustworthiness, and judgment. Accordingly, paragraph 2 of the SOR is found in favor of Applicant.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for national security eligibility 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 national security 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 pertinent facts and circumstances surrounding this case, including the whole-person factors quoted above. Applicant has mitigated the security concerns raised by his past use of marijuana and Xanax and his repeated falsifications years ago. His testimony and other evidence has established that he has grown and matured since 2013 and now places a high value on his integrity. He has accepted that his security clearance requires that he be fully honest about his past even if it means that his honesty could result in serious damage to his career and his ability to support his young family. By his actions, he has established that his past conduct will not be repeated in the future. Overall, the record evidence does not raise any questions or doubts as to Applicant’s present suitability for national security eligibility and a security clearance.

FORMAL FINDINGS

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline H: FOR APPLICANT Subparagraphs 1.a through 1.c: For Applicant Paragraph 2, Guideline E: FOR APPLICANT Subparagraph 2.a through 2.d: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue Applicant’s national security eligibility for a security clearance. Eligibility for access to classified information is granted. JOHN BAYARD GLENDON Administrative Judge