KEYWORD: Drugs
DIGEST: Applicant used marijuana about 50 times between February 2000 and March 2005,
purchased marijuana about 10 times during that period, and used opium twice in December 2002.
He last used marijuana while he was employed by a defense contractor and awaiting a decision on
his security clearance application.  The security concerns raised by his drug involvement are not
mitigated.  Clearance is denied.
CASENO: 06-23307.h1
DATE: 06/14/2007
DATE:  June 14, 2007
In re:
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SSN:  -----------
Applicant for Security Clearance
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ISCR Case No. 06-23307
DECISION OF ADMINISTRATIVE JUDGE
LEROY F. FOREMAN
APPEARANCES
FOR GOVERNMENT
Daniel F. Crowley, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant used marijuana about 50 times between February 2000 and March 2005, purchased
marijuana about 10 times during that period, and used opium twice in December 2002.  He last used
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marijuana while he was employed by a defense contractor and awaiting a decision on his security
clearance application.  The security concerns raised by his drug involvement are not mitigated.
Clearance is denied.
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STATEMENT OF THE CASE
On December 26, 2006, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) detailing the basis for its preliminary decision to deny Applicant a
security clearance.  This action was taken Executive Order 10865, Safeguarding Classified
Information within Industry (Feb. 20, 1960), as amended and modified; Department of Defense
Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Jan. 2, 1992),
as amended and modified (Directive); and the revised adjudicative guidelines approved by the
President on December 29, 2005, and implemented effective September 1, 2006 (Guidelines).  The
SOR alleged security concerns raised under Guideline H (Drug Involvement). Applicant answered
the SOR in writing on February 12, 2007, and elected to have the case decided on the written record
in lieu of a hearing. Department Counsel submitted the Government’s written case on March 27,
2007. A complete copy of the file of relevant material (FORM) was provided to Applicant, who was
afforded an opportunity to file objections and submit material to refute, extenuate, or mitigate the
disqualifying conditions. Applicant received the FORM on April 5, 2007 and responded on May 16,
2007.  Applicant’s response to the FORM was dated and mailed more than 30 days after his receipt
of the FORM, but Department Counsel did not object to the untimely response.  Accordingly, I have
considered Applicant’s response in making my decision.  The case was assigned to me on May 29,
2007.
FINDINGS OF FACT
Applicant's admissions in his answer to the SOR and response to the FORM are incorporated
into my findings of fact.  I make the following findings:
Applicant is a 25-year-old software engineer for a defense contractor.  He received a bachelor
of science degree in computer engineering in May 2005 and began working for his current employer
immediately thereafter.  He has never held a security clearance.
Applicant executed a security clearance application in July 2005, in which he disclosed using
marijuana about 50 times between February 2000 and March 2005, and using opium twice in
December 2002.  In his answer to the SOR, he admitted this conduct (alleged in SOR ¶¶ 1.a and 1.d).
He also admitted purchasing marijuana at least ten times (alleged in SOR ¶ 1.c), and using marijuana
once during a college reunion in September 2005 (alleged in SOR ¶ 1.b).
In his response to the FORM, Applicant declared his willingness to undergo “continual and
regular drug screenings” and “to enroll in a drug counseling program as deemed necessary by the
Government of the United States.”  There is no evidence he has submitted to drug screening or
sought drug counseling.
POLICIES
“[N]o one has a ‘right’ to a security clearance.”  Department of the Navy v. Egan, 484 U.S.
518, 528 (1988).  As Commander in Chief, the President has “the authority to . . . control access to
information bearing on national security and to determine whether an individual is sufficiently
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trustworthy to occupy a position . . . that will give that person access to such information.”  Id. at
527.  The President has authorized the Secretary of Defense or his designee to grant applicants
eligibility for access to classified information “only upon a finding that it is clearly consistent with
the national interest to do so.”  Exec. Or. 10865, Safeguarding Classified Information within
Industry § 2 (Feb. 20, 1960), as amended and modified.  “The adjudicative process is an examination
of a sufficient period of a person’s life to make an affirmative determination that the person is an
acceptable security risk.”  Guidelines ¶ 2(a)  Each clearance decision must be a fair, impartial, and
commonsense decision based on the relevant and material facts and circumstances, the whole person
concept, the disqualifying conditions and mitigating conditions under each specific guideline, and
the factors listed in the Guidelines ¶¶ 2(a)(1)-(9).
A person granted access to classified information enters into a special relationship with the
government.  The government must be able to have a high degree of trust and confidence in persons
with access to classified information.  However, the decision to deny an individual a security
clearance is not necessarily a determination as to the loyalty of the applicant.  See Exec. Or. 10865
§ 7.  It is merely an indication the applicant has not met the strict guidelines the President and the
Secretary of Defense have established for issuing a clearance.
Initially, the government must establish, by substantial evidence, conditions in the personal
or professional history of the applicant which disqualify, or may disqualify, the applicant from being
eligible for access to classified information.  See Egan, 484 U.S. at 531.  “Substantial evidence” is
“more than a scintilla but less than a preponderance.”  See v. Washington Metro. Area Transit Auth.,
36 F.3d 375, 380 (4th Cir. 1994).  The Guidelines presume a nexus or rational connection between
proven conduct under any of the criteria listed therein and an applicant’s security suitability.  See
ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).  
Once the government establishes a disqualifying condition by substantial evidence, the
burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts.  See Directive ¶
E3.1.15.  An applicant “has the ultimate burden of demonstrating that it is clearly consistent with
the national interest to grant or continue his security clearance.”  ISCR Case No. 01-20700 at 3 (App.
Bd. Dec. 19, 2002).  “[S]ecurity clearance determinations should err, if they must, on the side of
denials.”  Egan, 484 U.S. at 531; see Guidelines ¶ 2(b). 
CONCLUSIONS
Guideline H (Drug Involvement)
The concern under this guideline is as follows: “Use of an illegal drug or misuse of a
prescription drug can raise questions about an individual’s reliability and trustworthiness, both
because it may impair judgment and because it raises questions about a person’s ability or
willingness to comply with laws, rules, and regulations.” Guidelines ¶ 24. This guideline
encompasses involvement with “[d]rugs, materials, and other chemical compounds identified and
listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis,
depressants, narcotics, stimulants, and hallucinogens).”  Guidelines ¶ 24(a)(1).  Drug abuse is “the
illegal use of a drug or use of a legal drug in a manner that deviates from approved medical
direction.”  Guidelines ¶ 24(b).
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Disqualifying conditions under this guideline include “any drug abuse,” and “illegal drug
possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or
possession of drug paraphernalia.”  Guidelines ¶ 25(a) and (c).  The evidence in this case establishes
these two disqualifying conditions.
Since the government produced substantial evidence to raise ¶¶ 25(a) and (c), the burden
shifted to Applicant to produce evidence to rebut, explain, extenuate, or mitigate the facts.  Directive
¶ E3.1.15.  An applicant has the burden of proving a mitigating condition, and the burden of
disproving it is never shifted to the government.  See ISCR Case No. 02-31154 at 5 (App. Bd. Sep.
22, 2005).  
Security concerns raised by drug involvement may be mitigated by showing that “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.”  Guidelines ¶ 26(a).  The first clause of ¶ 26(a) (“happened so long ago”) focuses
on the recency of drug involvement.  There are no “bright line” rules for determining when conduct
is “recent.”  The determination must be based on a careful evaluation of the totality of the evidence.
ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004).  If the evidence shows “a significant period
of time has passed without any evidence of misconduct,” then an administrative judge must
determine whether that period of time demonstrates “changed circumstances or conduct sufficient
to warrant a finding of reform or rehabilitation.”  Id.  
Applicant’s drug involvement occurred during his college years and continued during his
current employment.  When he executed his SF 86 in July 2005, he was on notice that drug
involvement raised security concerns.  Nevertheless, he succumbed to peer pressure during his
college reunion in September 2005 and again used marijuana.  While he apparently has not used
drugs since September 2005, he has been living under a microscope since he received the SOR in
December 2006.  His abstinence from drugs for about 20 months is “a significant period,” but it must
be considered in the context of a five-year pattern of frequent and regular drug use that continued
after he applied for a security clearance.  I am not convinced Applicant has left behind his casual
attitude about drug use.  His drug use while his application was pending raises serious doubts about
his judgment and his willingness to follow rules.  I conclude Applicant has not carried his burden
of establishing the mitigating condition in Guidelines ¶ 26(a).
Security concerns arising from drug involvement also may be mitigated by evidence of “a
demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation from drug-using
associates and contacts; (2) changing or avoiding the environment where drugs were used; [or] (3)
an appropriate period of abstinence.”  Guidelines ¶ 26(b)(1)-(3).  Applicant has declared his intent
to abstain from drugs, but he has not demonstrated that intent.  He readily succumbed to peer
pressure in September 2005.  He has produced no evidence of a lifestyle change, disassociation from
drug users, counseling, or other support systems to reinforce abstinence from drugs.  He has declared
his willingness to under drug screening and enroll in a drug counseling program, but he has not
undergone screening or sought counseling.  His period of abstinence, standing alone, is insufficient
to establish this mitigating condition, especially when considered in the context of his five-year
history of frequent and regular drug use.
The Whole Person
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In addition to considering the specific disqualifying and mitigating conditions under
Guideline H, I have also considered: (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 applicant’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.  Guidelines
¶¶ 2(a)(1)-(9).  Several of these factors are incorporated in the discussion of Guideline H, but some
merit additional comment.
Applicant’s illegal drug abuse was serious misconduct, in which he participated willingly and
frequently.  When he last used marijuana, he was a 23-year-old college graduate employed by a
defense contractor and awaiting a decision on his application for a security clearance.  The likelihood
of recurrence once he is relieved from the pressure of qualifying for a clearance cannot be
determined on the basis of this record.
After weighing the disqualifying and mitigating conditions under Guideline H, and evaluating
all the evidence in the context of the whole person, I conclude Applicant has not mitigated the
security concerns based on his drug involvement.  Accordingly, I conclude he has not carried his
burden of showing that it is clearly consistent with the national interest to grant him a security
clearance.
FORMAL FINDINGS
The following are my conclusions as to each allegation in the SOR:
Paragraph 1.  Guideline H: AGAINST APPLICANT
Subparagraphs 1.a- 1.d: Against Applicant
DECISION
In light of all of the circumstances in this case, it is not clearly consistent with the national
interest to grant Applicant a security clearance.  Clearance is denied.
LeRoy F. Foreman
Administrative Judge