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ISCR Case 16-01252.h1 — CASE

ISCR Case 16-01252.h1denied

Case Headnote

ISCR Case No. 16-01252.h1

deniedSep 20, 2017· Hon. Elizabeth M. Matchinski· hearing

Summary

A 52-year-old software developer was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from his use of marijuana in July 2015 while already holding a security clearance, and his failure to disclose significant prior workplace discipline.

Specifically, the applicant did not report being removed from a contract, counseled, and placed on probationary status and a performance improvement plan by a previous employer around April or May 2014. Furthermore, he continued to associate with his cohabitant girlfriend, who uses marijuana.

The judge determined that the applicant's marijuana use, coupled with his expressed willingness to use it again if federally legalized, indicated a risk of recurrence and undermined his trustworthiness. His lack of candor regarding past workplace discipline further contributed to the denial, raising concerns about his reliability.

Why the Applicant Was Denied

The applicant used marijuana while holding a security clearance, indicating a risk of recurrence.
He expressed willingness to use marijuana if legalized under federal law, undermining trustworthiness.
The applicant was not fully candid in his security clearance application, failing to disclose prior workplace discipline.

Conditions Referenced

Disqualifying

H.1.araisedDrug Involvement
E.2.araisedFalsification of Information

Mitigating

H.1.arejectedInfrequent Drug UseThe circumstances and recency of the applicant's marijuana use cast doubt on his reliability.
E.2.arejectedLack of Intent to FalsifyThe applicant's omission was not deemed a misunderstanding or inadvertent mistake.

Key Rule Quoted

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

Procedural Posture

SOR issuedMay 25, 2016
Answer filedJul 5, 2016Requested decision on written record.
Hearing held—No hearing; decision made on written record.
Decision dateSep 20, 2017

Cite For

Denial of Security Clearance Due to Drug Involvement Under Guideline H
Failure to Disclose Prior Workplace Discipline Under Guideline E
Impact of Personal Associations on Security Clearance Eligibility

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: Decision on RecordDecided: denied

The judge found that the applicant had falsified his security clearance application by failing to disclose a prior disciplinary action at work. However, the judge concluded that the personal conduct concerns were mitigated, resulting in a favorable finding for the applicant on this allegation. The overall decision for the applicant's security clearance was denied due to other factors.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	deliberately failing to disclose that he had been removed from a contract, counseled, and placed on probationary status and a performance improvement plan by his then employer around April or May 2014 (SOR ¶ 2.a).	For Applicant	Omission or Failure to DiscloseFOUND DELIBERATE	Employment History	Admitted	—	(a) prompt, good-faith correction before being confronted	Claimed Acknowledgment and Remorse

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: Decision on RecordDecided: denied

The judge found that the applicant used marijuana in July 2015 while holding a security clearance, which raised significant concerns regarding his reliability and trustworthiness. Although the applicant claimed the use was infrequent, the judge ruled against him due to the circumstances of the use and his ongoing association with a girlfriend who uses marijuana, leading to a denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana in July 2015 while he held a security clearance.	Against Applicant	MarijuanaWHILE CLEARED	Experimental	Admitted	(a) any substance misuse (f) any illegal drug use while holding a clearance or sensitive position	—	—
1.b	Applicant continues to associate with his cohabitant girlfriend, who uses marijuana.	For Applicant	Unspecified Drug InvolvementWHILE CLEARED	Unspecified	Admitted	(a) any substance misuse (f) any illegal drug use while holding a clearance or sensitive position	—	—

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: ) ) (Redacted) ) ISCR Case No. 16-01252 ) Applicant for Security Clearance )

For Government: Robert J. Kilmartin, Esq., Department Counsel For Applicant: Pro se

09/20/2017 ______________

STATEMENT OF CASE

______________

MATCHINSKI, Elizabeth M., Administrative Judge:

Applicant used marijuana in July 2015 while he held a security clearance. He indicated that he would continue to use marijuana if it was legalized under federal law. There is an unacceptable risk of recurrence, given he used marijuana with his cohabitant girlfriend, and she continued to use marijuana at times in his presence. Applicant was not fully candid on his December 2015 security clearance questionnaire in that he concealed that he had been placed on probation at work in 2014 for making an unauthorized change to software code, but the personal conduct concerns have been mitigated. Clearance is denied.

Statement of the Case

On May 25, 2016, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing the security concerns under Guideline H, drug involvement, and Guideline E, personal conduct, and explaining why it was unable to find it clearly consistent with the national interest to grant or continue security clearance eligibility for him. The DOD CAF took the action under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information effective within the DOD on September 1, 2006.

On July 5, 2016, Applicant answered the SOR allegations and requested a decision on the written record by an administrative judge from the Defense Office of Hearings and Appeals (DOHA). On September 14, 2016, the Government submitted a File of Relevant Material (FORM), consisting of three exhibits: the SOR with Applicant’s response (Item 1); Applicant’s December 4, 2015 security clearance application (Item 2); and an Office of Personnel Management (OPM) summary of a January 8, 2016 interview of Applicant (Item 3).

DOHA forwarded a copy of the FORM to Applicant and instructed him to respond within 30 days of receipt. Applicant received the FORM on October 7, 2016. He submitted no response by the November 6, 2016 deadline for comment and rebuttal evidence. On August 10, 2017, I was assigned the case to determine whether it is clearly consistent with national security to grant or continue a security clearance for Applicant.

While this case was pending a decision, the Director of National Intelligence (DNI) issued Security Executive Agent Directive 4 establishing the National Security Adjudicative Guidelines (AG) applicable to all covered individuals who require national security eligibility or eligibility to hold a sensitive position. The AG supersede the adjudicative guidelines implemented in September 2006 and are effective for any adjudication made on or after June 8, 2017. Accordingly, I have adjudicated Applicant’s security clearance eligibility under the new AG.1

Evidentiary Ruling

Department Counsel submitted as Item 3 a summary of an unsworn enhanced subject interview of Applicant conducted on January 8, 2016. This document was part of the DOD Report of Investigation (ROI) in Applicant’s case. Under ¶ E3.1.20 of the Directive, a DOD personnel background report of investigation may be received in evidence and considered with an authenticating witness, provided it is otherwise admissible under the Federal Rules of Evidence. The interview summary did not bear the authentication required for admissibility under AG ¶ E3.1.20.

In ISCR Case No. 15-01807 decided on April 19, 2017, the Appeal Board held that it was not error for an administrative judge to admit and consider a summary of personal subject interview in the absence of any objection to it or any indication that it contained inaccurate information. The applicant in that case had objected on appeal to the accuracy of some of the information in a FORM, but had not objected to the interview summary or indicated that it was inaccurate in any aspects when she responded to the FORM. Unlike the applicant in ISCR Case No. 15-01807, Applicant did not submit a response to the FORM submitted in his case. However, as in ISCR Case No. 15-01807, Applicant was provided a copy of the FORM and advised of his opportunity to submit objections or material that he wanted the administrative judge to consider. In a footnote, the FORM advised Applicant of the following:

IMPORTANT NOTICE TO APPLICANT: The attached summary of your Personal Subject Interview (PSI) (Item 3) is being provided to the Administrative Judge for consideration as part of the record evidence in this case. In your response to this File of Relevant Material (FORM), you can comment on whether [the] PSI summary accurately reflects the information you provided to the authorized OPM investigator(s) and you can make any corrections, additions, deletions, and updates necessary to make the summary clear and accurate. Alternatively, you can object on the ground that the report is unauthenticated by a Government witness. If no objections are raised in your response to the FORM, or if you do not respond to the FORM, the Administrative Judge may determine that you have waived any objections to the admissibility of the summary and may consider the summary as evidence in your case.

Concerning whether Applicant understood the meaning of authentication or the legal consequences of waiver, Applicant’s pro se status does not confer any due process rights or protections beyond those afforded him if he was represented by legal counsel. He was advised in ¶ E3.1.4 of the Directive that he may request a hearing. In ¶ E3.1.15, he was advised that he is responsible for presenting evidence to rebut, explain, or mitigate facts admitted by him or proven by Department Counsel and that he has the ultimate burden of persuasion as to obtaining a favorable clearance decision. While the Directive does not specifically provide for a waiver of the authentication requirement, Applicant was placed on sufficient notice of his opportunity to object to the admissibility of the interview summary, to comment on the interview summary, and to make any corrections, deletions, or updates to the information in the report. He was advised that if he did not respond, the interview summary may be considered as evidence in his case. Applicant chose to rely solely on the record presented in the FORM, which included the information reflected in the interview summary, however disqualifying, mitigating, or exculpatory the information. I cannot presume without any evidence that Applicant failed to understand his due process rights or obligations under the Directive or that he did not want the summary of his interview considered in his case. Accordingly, I accepted Item 3 in the record, subject to issues of relevance and materiality in light of the entire record, including Applicant’s admissions to the allegations.

Summary of Pleadings

The SOR alleges under Guideline H that Applicant used marijuana in July 2015 after being granted a DOD security clearance in March 2006 (SOR ¶ 1.a) and that he continues to associate with his cohabitant girlfriend, who uses marijuana (SOR ¶ 1.b). Under Guideline E, Applicant is alleged to have falsified his December 2015 Electronic Questionnaire for Investigations Processing (e-QIP) by deliberately failing to disclose that he had been removed from a contract, counseled, and placed on probationary status and a performance improvement plan by his then employer around April or May 2014 (SOR ¶ 2.a). When he answered the SOR, Applicant admitted the allegations and stated with respect to his drug use, “I inhaled one.” (Item 1.)

FINDINGS OF FACT

After considering the FORM, which includes Applicant’s response to the SOR (Item 1), I make the following findings of fact.

Applicant is a 52-year-old software developer with a bachelor’s degree awarded in December 1988. In December 2005, he began working for his current employer (company X), a subsidiary of a defense contractor that is sponsoring him for continued security clearance eligibility. He was employed full time until May 2014, when he went part time with company X and started working full time for a commercial company involved in digital- platform development. Applicant has held a DOD secret clearance since March 2006. (Items 2-3.)

Applicant and his ex-wife married in January 1989, separated in August 2015, and divorced in December 2015. He and his ex-wife had three children together. Their daughter is now 22 and their twin sons are 23 years old. (Items 2-3.) Applicant has been in a cohabitant personal relationship since August 2015. (Item 2.)

While working full time with company X, Applicant supported a contract on which he made unauthorized changes in the program’s software code. He was accused by a supervisor on the program of intentionally placing a “bug” in the programming code. As a result, Applicant was removed from the contract in April 2014, verbally counseled, and placed on probation for “possibly” one month. (Item 2.) There is no evidence that Applicant had any other problems at work, although he stopped working full time with the company shortly thereafter.

On December 4, 2015, Applicant certified to the accuracy of a Questionnaire for National Security Positions (SF 86) incorporated within an e-QIP that he completed electronically on November 30, 2015. In response to section 13A concerning employment activities, Applicant disclosed his employment with company X. He answered “No” to the following inquiry concerning that employment: “For this employment, in the last seven (7) years have you received a written warning, been officially reprimanded, suspended, or disciplined for misconduct in the workplace, such as a violation of security policy?” In response to an inquiry concerning the illegal use of drugs or controlled substances in the last seven years, Applicant stated, “I took a single hit of marijuana in July 2015.” He admitted that his use of marijuana occurred while he possessed a security clearance. Applicant denied any intention to use the drug or any other controlled substance in the future, and stated, “It was a one-time thing.”2 (Item 2.) On January 8, 2016, Applicant was interviewed by an authorized investigator for the OPM. Applicant indicated that due to “oversight,” he had failed to disclose on his e-QIP that he was disciplined by company X in April 2014 following accusations that he had willfully bugged programming code. Applicant explained that he had made changes to the software code to improve the program, but a supervisor on the program saw it as an intentional act to place a “bug” in the software. Applicant explained that he was removed from the contract, counseled, and placed on probation for “possibly” one month. He denied any other employment issues. Concerning his disclosed drug use, Applicant explained that he took a single “hit” of marijuana in July 2015 with his cohabitant girlfriend at a national park. She provided the drug, and he used it for experimental purposes. Applicant indicated that he had no intention of using marijuana in the future because of his security clearance. However, he added that he would use marijuana if it became legal to do so under federal law. Applicant admitted that his girlfriend continues to use marijuana. Recreational use of marijuana is legal in their state, and he has been “around [his girlfriend] when she smokes marijuana in town.” Applicant denied any adverse impact on his behavior, judgment, or reliability because of his use of marijuana. (Item 3.)

POLICIES

The U.S. Supreme Court has recognized the substantial discretion the Executive Branch has in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are required to be considered 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, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overall 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. Under Directive ¶ E3.1.14, the Government must 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 applicant or proven by Department Counsel. . . .” The applicant has the ultimate burden of persuasion to obtain a favorable security 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 that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that 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).

ANALYSIS

Guideline H: Drug Involvement and Substance Misuse

The security concerns about drug involvement and substance misuse are articulated in 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.

Applicant used marijuana3 with his cohabitant girlfriend while they were at a national park in July 2015. While there is no evidence of any illegal drug use by Applicant beyond that one time, he used marijuana while he held a DOD security clearance on federal property knowing that it was illegal under federal law. AG ¶ 25(a), “any substance misuse (see above definition),” and AG ¶ 25(f), “any illegal drug use while granted access to classified information or holding a sensitive position,” are clearly established. AG ¶ 25(c), “illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia,” applies only in that Applicant had physical possession of marijuana when he used it. Concerning potentially mitigating conditions under AG ¶ 26, AG ¶ 26(a) applies in that his one-time use can reasonably be characterized as “so infrequent.” AG ¶ 26(a) provides:

(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.

However, the circumstances and recency of Applicant’s marijuana use in July 2015 cast doubt on his current reliability, trustworthiness, and judgment. He used marijuana within six months of completing his e-QIP to renew his security clearance eligibility, despite knowing that marijuana use was illegal under federal law.

AG ¶ 26(b) provides for mitigation when an individual acknowledges his drug involvement and has taken steps to preclude a recurrence:

(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 involvement or misuse is grounds for revocation of national security eligibility.

Regarding whether Applicant has established a sufficient pattern of abstinence under AG ¶ 26(a), the extent to which security concerns may have become attenuated because of the passage of time is a question to be resolved based on the evidence as a whole. See ISCR 14-01847 (App. Bd. Apr. 9, 2015). Applicant’s use of marijuana occurred only one time, and his candor about his marijuana use on his e-QIP and during his enhanced subject interview afford him some credibility on the issue of his stated intention not to use any marijuana in the future unless it becomes legal under federal law. Yet, Applicant’s use of marijuana in knowing violation of his security clearance eligibility is an aggravating factor. He had abstained from marijuana for little more than six months as of his subject interview and one year as of his response to the SOR. Of greater concern going forward, there is no evidence that his cohabitant girlfriend has ceased her involvement with marijuana. She provided the marijuana that they used together in July 2015. Applicant acknowledged during his January 2016 interview that he has been around his girlfriend on other occasions when she was smoking marijuana.

The SOR separately alleges drug involvement security concerns because of Applicant’s continued association with his cohabitant girlfriend who uses marijuana (SOR ¶ 1.b). The Appeal Board has held that security-related conduct can be alleged under more than one guideline, and in an appropriate case, be given independent weight under each guideline.4 The DOD is not in the business of dictating a person’s friends and associates. Applicant’s continuation of his close personal relationship with a known marijuana user has security significance because of his marijuana use, and it is primarily relevant in assessing his reform, including whether he is committed to a drug-free lifestyle. Applicant appears to have a permissive attitude toward his girlfriend using marijuana in his presence. There is a very real risk that Applicant will find himself in situations conducive to relapse in the future. He admitted that he would continue to use marijuana if it was legalized under federal law. Under the circumstances, insufficient time has passed to guarantee that his marijuana use will not reoccur. The drug involvement and substance misuse security concerns are not adequately mitigated.

Guideline E: Personal Conduct

The concerns about personal conduct are articulated in 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.

Applicant is alleged to have deliberately falsified his December 2015 security clearance application by responding “No” to an inquiry concerning whether he had received a written warning, been officially reprimanded, or been disciplined for misconduct at work in the last seven years (SOR ¶ 2.a). The evidence shows that Applicant disclosed no adverse information on his e-QIP concerning his employment with company X. During his enhanced subject interview, he indicated that he had been removed from a program and placed on probation by the company in April 2014 after he was accused of intentionally programming a “bug” in software code without authorization. He attributed his failure to report this employment discipline on his e-QIP to “oversight.” Disqualifying condition AG ¶ 16(a) is not established when omissions are due to misunderstanding, inadvertent mistake, or other cause that could negate the willful intent. That disqualifying condition provides:

(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 security clearance eligibility or trustworthiness, or award fiduciary responsibilities.

When Applicant answered the SOR, he discrepantly admitted the alleged falsification, albeit without any explanation. The Appeal Board has explained the process for analyzing falsification cases, stating: (a) when a falsification allegation is controverted, Department Counsel has the burden of proving falsification; (b) proof of an omission, standing alone, does not establish or prove an applicant’s intent or state of mind when the omission occurred; and (c) a Judge must consider the record evidence as a whole to determine whether there is direct or circumstantial evidence concerning the applicant’s intent or state of mind at the time the omission occurred. [Moreover], it was legally permissible for the Judge to conclude Department Counsel had established a prima facie case under Guideline E and the burden of persuasion had shifted to the applicant to present evidence to explain the omission.

ISCR Case No. 03-10380 at 5 (App. Bd. Jan. 6, 2006) (citing ISCR Case No. 02-23133 (App. Bd. June 9, 2004)). Oversight does not adequately explain his failure to disclose that he had been disciplined for the unauthorized manipulation of computer software, especially when the discipline, including being placed on probation by the company, coincided with his transition to part-time employment with the company. He admitted the allegation of deliberate falsification when he answered the SOR. Moreover, Applicant was informed in the FORM that his falsification of his e-QIP was “anathema to finding him suitable for a security clearance.” Applicant chose not to refute or rebut that assertion. AG ¶ 16(a) applies.

Deliberate misrepresentation or concealment may be mitigated under AG ¶ 17(a) if “the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts.” Applicant is credited with admitting during his enhanced subject interview that he had not disclosed on his SF 86 that he had been disciplined by his employer in April 2014. He provided details about the conduct that led him to being placed on probation, albeit claiming that his intent was to improve the software code. The summary of his subject interview (Item 3) does not shed light on whether he volunteered the information upfront or whether he had first been confronted. Furthermore, even if his rectification was reasonably prompt, it was incomplete in that he did not acknowledge the intentional nature of his false response his e-QIP.

Concerning AG ¶ 17(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,” Applicant falsified his SF 86 in one relevant aspect, so it may reasonably be considered infrequent. Even so, his false denial of any work-related disciplinary action is viewed seriously because he concealed unauthorized conduct. Even assuming that his intention was to improve the software program, discipline imposed for unauthorized change to programming code is information that could influence a security clearance investigation or adjudication. Furthermore, his failure to acknowledge during his OPM interview that he intentionally falsified his SF 86 cast some doubt on his good judgment.

AG ¶ 17(d) is implicated by Applicant’s detailed admission in January 2016 about his misconduct in 2014 and the discipline imposed, and by his admission in response to the SOR that he deliberately falsified his SF 86. AG ¶ 17(d) provides: (d) the individual has acknowledged the behavior and obtained counseling to change 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.

Although Applicant’s lack of full candor on his SF 86 is not condoned, I have little concern about his trustworthiness going forward in light of his subsequent rectification about his alteration of software code and the fact that he has been forthright about his marijuana use. The personal conduct security concerns are mitigated.

WHOLE PERSON CONCEPT

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of his conduct and all relevant circumstances in light of the nine adjudicative process factors listed at AG ¶ 2(d).5 In making the overall commonsense determination required under AG ¶ 2(a), I have to consider Applicant’s age and maturity as well as his status as a cleared employee. By using marijuana knowing that it was illegal under federal law, Applicant raised considerable doubts about whether he can continue to be relied on to comply with DOD rules and requirements, including those concerning the handling and safeguarding of classified information. While the personal conduct concerns caused by his SF 86 falsification have largely been mitigated, security concerns persist because of his drug involvement.

It is well settled that once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or renewal of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990). The Government must be able to rely on those persons holding security clearance eligibility to fulfill their responsibilities consistent with laws, regulations, and policies, and without regard to their personal interests. For the reasons discussed, Applicant has raised enough doubt in that regard to where I am unable to conclude that it is clearly consistent with the national interest to continue his eligibility for a security clearance.

FORMAL FINDINGS

Formal findings for or against Applicant 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

Subparagraph 1.a: Against Applicant Subparagraph 1.b: For Applicant

Paragraph 2, Guideline E: FOR APPLICANT

Subparagraph 2.a: For Applicant

CONCLUSION

In light of all of the circumstances, it is not clearly consistent with the national interest to continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied.

_____________________ Elizabeth M. Matchinski Administrative Judge

FOOTNOTES

1 Application of the AGs that were in effect as of the issuance of the SOR would not change my decision in this case. 2 The SF 86 in the record has some legibility issues, likely due to a poor copy, but they do not affect the findings in this case. 3 Schedules I, II, III, IV, and V, as referred to in the Controlled Substances Act, are contained in 21 U.S.C. § 812(c). Marijuana is a Schedule I drug. Despite some states providing for medical marijuana use or the decriminalization or legalization of recreational use of minor amounts of the drug, marijuana remains a Schedule I controlled substance under federal law. Such drugs have a high potential for abuse, no currently accepted medical use in treatment in the United States, and lack accepted safety for using the drug under medical supervision. 4 See ISCR 11-06672 (App. Bd. Jul. 2, 2012). 5 The factors under AG ¶ 2(d) are as follows:

(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.