DATE:  October 24, 2007
In re:
--------------------------------
SSN:  -----------
Applicant for Security Clearance
)
)
)
)
)
)
)
)
ISCR Case No. 07-03657
DECISION OF ADMINISTRATIVE JUDGE
LEROY F. FOREMAN
APPEARANCES
FOR GOVERNMENT
Melvin A. Howry, Esq., Department Counsel
FOR APPLICANT
Pro Se
SYNOPSIS
Applicant began abusing drugs when he was about 12 years old, and he continues to use
marijuana.  He has not mitigated the security concerns based on drug involvement, and he is
ineligible for a clearance under 10 U.S.C. 986(c)(2).  Clearance is denied.
2
STATEMENT OF THE CASE
On May 29, 2007, 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 (AG).  The SOR alleged security concerns
raised under Guideline H (Drug Involvement).  Applicant answered the SOR in writing on June 26,
2007, admitted 10 of the 13 allegations, 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 July 26, 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 August 4, 2007, but did not respond.  The
case was assigned to me on October 5, 2007.
PROCEDURAL RULING
Two allegations in the SOR are lettered as subparagraph 1.d.  On my own motion, I have
made pen changes to correct the lettering of one of those subparagraphs and all following
subparagraphs.  I also have amended the last subparagraph in the SOR to conform to the evidence
by adding an allegation that Applicant’s conduct alleged in subparagraphs 1.l (as corrected)
disqualifies him from holding a clearance under 10 U.S.C. § 986, as amended. 
FINDINGS OF FACT
Applicant’s admissions in his answer to the SOR and at the hearing are incorporated into my
findings of fact.  He admitted all the allegations of drug involvement, except the purchase of cocaine
alleged in SOR ¶ 1.d and the purchase of crystal methamphetamine alleged in SOR ¶ 1.h.  He did
not answer the allegation that his drug involvement makes him ineligible for a security clearance
under 10 U.S.C. § 986, as amended.  I make the following findings:
Applicant is a 29-year-old research associate for a defense contractor.  He graduated from
high school in June 1996, and graduated from college in December 2001.  He began working for his
current employer in May 2004.  He has never held a security clearance.
Applicant purchased marijuana from 1992 to January 2007.  He used it from 1989, when he
was about 12 years old, until at least January 22, 2007.  He was arrested in 1993 for possession of
marijuana, attempted to grow marijuana plants in 1995, and sold it to friends while he was in high
school.  In a written statement to a security investigator in May 2002 (GX 5 at 2-3), he declared, “I
plan to continue smoking marijuana, but if for some reason it will affect my employment with [a
federal contractor], I will quit using it.”  He admitted his continuing marijuana use in his answer to
the SOR on June 26, 2007.
3
Applicant purchased and used LSD about 20 times between 1992 and 1998, purchased and
used crystal methamphetamine about three times between 1994 and 1996, and purchased and used
cocaine about 25 times between 1995 and 2000.  
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
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.  Eligibility for a security clearance is
predicated upon the applicant meeting the criteria contained in the Guidelines.  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 AG ¶¶ 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 AG ¶ 2(b). 
Absent a waiver from the Director, Defense Office of Hearings and Appeals, the Department
of Defense may not grant a security clearance to any applicant who “is an unlawful user of, or is
addicted to, a controlled substance.”  10 U.S.C. § 986(c)(2), as amended.  Marijuana is a controlled
substance as defined in the Controlled Substances Act, 21 U.S.C. § 802. 
CONCLUSIONS
4
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.”  AG ¶ 24. 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.”  AG
¶¶ 25(a) and (c). Drug abuse is “the illegal use of a drug or use of a legal drug in a manner that
deviates from approved medical direction.” AG ¶ 24(b). The evidence raises AG ¶¶ 25(a) and (c).
Since the government produced substantial evidence to raise AG ¶¶ 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).  Applicant presented nothing to rebut, explain, or mitigate the facts.  None of the
enumerated mitigating conditions under this guideline are established.
The Whole Person
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.  AG ¶¶
2(a)(1)-(9).  
Applicant is a mature adult who has abused drugs since adolescence, and he has declared his
intention to continue using marijuana.  He has exhibited no concern that his conduct is illegal or
unacceptable.  Although he stated in May 2002 that he would quit using marijuana if it affected his
employment by a federal contractor, he answered the SOR in June 2007 by admitting he intends to
continue his marijuana, and he submitted nothing in response to the FORM.  I conclude he will likely
continue using marijuana and will remain vulnerable to pressure, coercion, exploitation, or duress.
After weighing the disqualifying conditions under Guideline H and the absence of mitigating
evidence, 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.
5
Smith Amendment (10 U.S.C. § 986, as amended)
Applicant’s continuing use of marijuana makes him ineligible for a clearance under 10
U.S.C. § 986(c)(2), as amended, unless a waiver is granted by the Director, DOHA.  I would deny
Applicant a clearance based on his long history of drug abuse, even if 10 U.S.C. § 986(c)(2) were
not applicable to his case.
FORMAL FINDINGS
The following are my conclusions as to each allegation in the SOR:
Paragraph 1. Guideline H (Drug Involvement): AGAINST APPLICANT
Subparagraphs 1.a-m: 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