KEYWORD: Guideline H; Guideline E
DIGEST: Use of marijuana following a pre-employment drug test and after submitting a SCA
significantly undercuts an applicant’s claim to have demonstrated an intent not to use drugs.  One
would expect that at that point a person would understand the importance of abstention. 
Applicant’s use of marijuana after such a test raises a substantial question as to whether he has
demonstrated a serious intent to obey the law or whether he has refrained from drug use simply to
qualify for employment.  Applicant’s use of marijuana despite his employer’s policy, and his use
after submitting his SCA, raise serious questions about his judgment and, therefore, under
Guideline E. Favorable decision remanded.
CASENO: 07-00852.a1
DATE: 05/27/2008
DATE: May 27, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-00852
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Alison O’Connell, Esq., Department Counsel
FOR APPLICANT
Directive ¶ E2.26(b).  “[A] demonstrated intent not to abuse any drugs in the future, such as: (1) disassociation1
form drug-using associates and contacts; (2) changing or avoiding the environment where drugs were used; (3) an
appropriate period of abstinence; (4) a signed statement of intent with automatic revocation of clearance for any
violation[.]”
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Holly Walker, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On August 17, 2007, DOHA issued a statement of reasons advising Applicant of the basis
for that decision–security concerns raised under Guideline H (Drug Involvement) and Guideline E
(Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended)
(Directive).  Applicant requested a hearing. On February 7, 2008, after the hearing, Administrative
Judge Martin H. Mogul granted Applicant’s request for a security clearance.  Department Counsel
filed a timely appeal pursuant to Directive ¶¶  E3.1.28 and E3.1.30.
Department Counsel raised the following issues on appeal: whether the Judge erred in
applying Drug Involvement Mitigating Condition (DIMC) 26(b);  whether the Judge erred in1
concluding that Applicant’s case did not raise security concerns under Guideline E; and whether the
Judge erred in his whole-person analysis.  Finding error, we remand the case to the Judge.
Whether the Record Supports the Judge’s Factual Findings
A.  Facts
The Judge made the following pertinent findings of fact: Applicant started using marijuana
in college in 1995.  His use was sporadic, though during 1998 it increased to one or two times a
week.  After graduating in 2000, his use decreased to one or two times a year.  His last usage was
in July 2006, and prior to that his next to last in October 2005.  The use in 2006 took place after
Applicant had submitted his security clearance application (SCA).  Applicant has purchased some
of the marijuana he has used.  Additionally, he used psychogenic mushrooms once, during a trip to
the Netherlands in 1999, and used Ecstasy once in 2002.  Applicant has promised his girlfriend that
he will not use drugs in the future.  He also knows that drugs will hurt his career.  He has decided
not to use drugs even if he did not need a security clearance.  
B.  Discussion
The Appeal Board’s review of the Judge’s findings of facts is limited to determining if they
are supported by substantial evidence–“such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion in light of all the contrary evidence in the record.”  Directive
¶ E3.1.32.1.  “This is something less than the weight of the evidence, and the possibility of drawing
two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.”  Consolo v. Federal Maritime Comm’n, 383 U.S.
607, 620-21 (1966).  In evaluating the Judge’s findings, we are required to give deference to the
Judge’s credibility determinations.  Directive ¶ E3.1.32.1. 
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Department Counsel has not challenged the Judge’s findings.  Therefore, they are not at issue
in this appeal.  In arguing the issues on appeal, Department Counsel contends that the Judge’s
decision does not take into account significant contrary record evidence.  The Board will address this
contention below. 
Whether the Record Supports the Judge’s Ultimate Conclusions
 A Judge is required to “examine the relevant data and articulate a satisfactory explanation
for” the decision, “including a ‘rational connection between the facts found and the choices made.’”
Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).  “The
general standard is that a clearance may be granted only when ‘clearly consistent with the interests
of the national security.’”  Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).  The Appeal
Board may reverse the Judge’s decision to grant, deny, or revoke a security clearance if it is arbitrary,
capricious, or contrary to law.  Directive ¶¶ E3.1.32.3 and E3.1.33.3.  
Once a concern arises regarding an Applicant’s security clearance eligibility, there is a strong
presumption against the grant or maintenance of a security clearance.  See Dorfmont v. Brown, 913
F. 2d 1399, 1401 (9  Cir. 1990), cert. denied, 499 U.S. 905 (1991).  After the government presentsth
evidence raising security concerns, the burden shifts to the applicant to establish any appropriate
mitigating conditions.  See Directive ¶ E3.1.15.  “The application of disqualifying and mitigating
conditions and whole person factors does not turn simply on a finding that one or more of them apply
to the particular facts of a case.  Rather, their application requires the exercise of sound discretion
in light of the record evidence as a whole.”  See, e.g., ISCR Case No. 05-03635 at 3 (App. Bd. Dec.
20, 2006).
In deciding whether the Judge's rulings or conclusions are arbitrary or capricious, the Board
will review the Judge's decision to determine whether:  it does not examine relevant evidence; it fails
to articulate a satisfactory explanation for its conclusions, including a rational connection between
the facts found and the choice made; it does not consider relevant factors; it reflects a clear error of
judgment; it fails to consider an important aspect of the case; it offers an explanation for the decision
that runs contrary to the record evidence; or it is so implausible that it cannot be ascribed to a mere
difference of opinion.  In deciding whether the Judge's rulings or conclusions are contrary to law,
the Board will consider whether they are contrary to provisions of Executive Order 10865, the
Directive, or other applicable federal law.  See ISCR Case No. 03-22861 at 2-3 (App. Bd. Jun. 2,
2006).
The Judge favorably applied DIMC 26(b), concluding that Applicant had demonstrated an
intent not to use drugs in the future.  Department Counsel persuasively argues that this conclusion
was reached without appropriate consideration of significant contrary record evidence, specifically
that Applicant used marijuana after submitting to a pre-employment drug test and that he used
marijuana after submitting the SCA.  The Board has previously held that use of marijuana following
a pre-employment drug test and after submitting a SCA significantly undercuts an applicant’s claim
to have demonstrated an intent not to use drugs in the future.  “As a matter of common sense, one
Directive ¶ E2.26(b).  “(1) [D]isassociation from drug-using associates and contacts; (2) changing or avoiding2
the environment where drugs were used; (3) an appropriate period of abstinence[.]”
See ISCR Case No. 02-22603 at 6 (App. Bd. Sep. 3, 2004): “. . . the Judge’s decision cannot simply be silent3
about what, as a matter of common sense, appears to be . . . an important aspect of the case.”
See Tr. at 96-99.   “Q: [F]rom about 2000 to 2005, your marijuana use was approximately one to two times4
a year?  A: Yes . . . Q: Now, you started working . . . for [defense contractor] in 2003.  Correct?  A: Yes. . .  Q: So, you
at least understood that you shouldn’t be using illegal drugs when you started working at [defense contractor]?  A: Based
on the drug test . . . Q: [H]ow often did you have to take that drug test . . . .A: One time . . . there is a time period within
your application or within your acceptance letter, I think that’s it . . . Q: So, do you recall when the drug test was?  A:
It would have been around December 2003.” 
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would expect that a person who has taken a drug test as a condition of employment would
understand the importance of future abstention.  That Applicant used marijuana after such a test
raises a substantial question as to whether she has demonstrated a serious intent to obey the law or
whether she has refrained from drug use simply in order to qualify for employment.”  ISCR Case No.
06-18270 at 3 (App. Bd. Nov. 7, 2007).  
In the case under consideration here, the Judge noted Applicant’s having used marijuana after
completing his SCA in evaluating whether the Government has presented a prima facie case for
Guideline H disqualifying conditions.  However, he did not provide a serious discussion of
Applicant’s future intent in the context of Applicant’s burden of persuasion as to mitigation.  To the
contrary, the Judge’s analysis of future intent consisted simply in repeating almost verbatim three
of the illustrative examples listed under DIMC 26(b).   Such conclusory language does not explain2
why it is that Applicant can be said to have demonstrated, rather than merely having promised, an
intent to refrain from future drug use.  While Judges are presumed to have considered all the record
evidence, some matters, such as those under discussion here, are sufficiently significant to warrant
discussion of them.   The Judge’s decision is deficient in that regard .3
Department Counsel also contends that the Judge erred in concluding that Applicant’s having
used marijuana after submitting his SCA did not raise a security concern under Guideline E.  Again,
the Board finds this argument persuasive.  The disqualifying conditions listed under each Guideline
are illustrative only, not exhaustive and exclusive.  In analyzing cases before them, Judges must be
guided by common sense and with a view toward making a reasoned determination consistent with
the interests of national security.  The general security concern raised by Guideline E is that
“[c]onduct involving questionable judgment . . . or unwillingness to comply with rules and
regulations can raise questions about an individual’s reliability, trustworthiness and ability to protect
classified information.”  Directive ¶ E2.15.  The Board agrees with Department Counsel that
Applicant’s having used marijuana despite his employer’s policy against such activity,  and his use4
after submitting his SCA, raise serious questions about his judgment and, therefore, his fitness for
a clearance.  Under the facts of this case, this activity raises a security concern under Guideline E,
and the Judge’s decision on this matter should have been made in the context of Applicant’s burden
of persuasion as to mitigation.  The Judge’s conclusion that the Government had not met its initial
burden of producing substantial evidence of a Guideline E security concern is not sustainable.  
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The Board concludes that the best way to address the errors described above is to remand the
case to the Judge for a new decision.  This decision should examine the extent to which Applicant
has met his burden of persuasion, both as to mitigation as well as to the whole-person, under both
Guidelines E and H.  In doing so, the decision should address the extent to which Applicant’s
circumstances fall within the precedent set forth in ISCR Case No. 06-18270 supra.
     
Order
The Judge’s favorable security clearance decision is REMANDED.
Signed: Jean E. Smallin                 
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S. Fields                
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody                  
James E. Moody
Administrative Judge
Member, Appeal Board