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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
                                                          )     ISCR Case No. 08-02406
SSN:   )
)
Applicant for Security Clearance )
Appearances
For Government: Daniel F. Crowley, Esquire, Chief Department Counsel
For Applicant: Pro Se
______________
Decision
______________
MATCHINSKI, Elizabeth M., Administrative Judge:
Statement of the Case 
Applicant submitted an Electronic Questionnaire for Investigations Processing
(e-QIP) on May 24, 2007. On July 30, 2008, the Defense Office of Hearings and
Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant detailing the
security concerns under Guideline H that provided the basis for its decision to deny him
a security clearance. 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 revised adjudicative
guidelines (AG) promulgated by the President on December 29, 2005, and effective
within the Department of Defense as of September 1, 2006. 
 
Applicant answered the SOR in writing on August 20, 2008, and requested a
hearing before an administrative judge. The case was assigned to me on September
26, 2008, to consider whether it is clearly consistent with the national interest to grant or
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continue a security clearance for him. On November 13, 2008, I scheduled a hearing for
December 1, 2008.
The parties appeared as scheduled. Four government exhibits (Ex. 1-4) and five
Applicant exhibits (Ex. A-E) were admitted without any objections and Applicant
testified, as reflected in a transcript (Tr.) received by DOHA on December 11, 2008.
Based on a review of the pleadings, exhibits, and hearing testimony, eligibility for
access to classified information is denied.
Findings of Fact
DOHA alleged under Guideline H, drug involvement, that Applicant used
marijuana with varying frequency from February 1997 through May 2007 (SOR ¶ 1.a),
purchased marijuana from at least December 2002 through May 2007 (SOR ¶ 1.b),
used Ritalin at least 35 to 40 times from May 2006 through April 2007 when it was not
prescribed for him (SOR ¶ 1.c), used “magic mushrooms” at least once in May 2003
(SOR ¶ 1.d) and used opium at least once in June 2002 (SOR ¶ 1.e). Applicant
admitted the allegations but denied any intent to repeat the behavior. After considering
the evidence of record, I make the following findings of fact.
Applicant is a 30-year-old senior product design engineer who has been
employed by a defense contractor since October 2006 (Ex. 1). He is seeking a secret
clearance for his duties (Ex. B).
Applicant started smoking marijuana in about February 1997, at the beginning of
his second semester in college in state X. He used the drug throughout the remainder of
his undergraduate study, usually at parties about once a month (Ex. 1, Ex. 2, Tr. 40). In
May 2000, he was awarded his bachelor of science degree in electrical engineering.
That summer, he remained at the college, working on his graduate research (Ex. 1).
In September 2000, he began master’s degree studies at a university in a large
city in state X where illegal drugs were more easily accessible. While in graduate
school, he continued to smoke marijuana at a somewhat higher frequency than in
college, “mainly for relaxation purposes in the comfort of [his] own home.” (Ex. 1, Tr.
40).  He purchased the drug through friends (Tr. 41). In June 2002, he tried opium while
on a weekend trip visiting friends (Tr. 46).
After earning his master’s degree in electrical engineering in December 2002, he
began pursuing his doctorate in the same discipline at the same university (Ex. 1, Tr.
38). In late March 2003, Applicant and his spouse married (Ex. 1, Tr. 39). He continued
to smoke marijuana. In May 2003, he tried hallucinogenic mushrooms out of curiosity
one weekend while visiting a friend (Ex. 1, Ex. 2, Tr. 46).
Applicant’s spouse brought some debt into the marriage that they were not able
to satisfy on their income. Applicant had a small stipend as a graduate research
assistant at the university. Yet, they managed to qualify for a mortgage, and bought a
Applicant was eventually awarded his doctorate degree in electrical engineering, although there is1
discrepant information about the date. On his e-QIP (Ex. 1), he indicated the degree was awarded in June
2007. At his hearing, he testified he received his degree about two weeks before he started work in October
2006 (Tr. 50).
There is no evidence that Applicant ever took a drug screen for his job.2
Applicant cannot recall whether he read the employee handbook by which the policy information is3
disseminated to employees, or whether he just assumed his employer would have a drug policy (Tr. 49). 
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home in state X in about September 2003. In February 2004, his spouse stopped
working on the birth of their first child (Ex. 1, Tr. 39). She subsequently pursued a
career in real estate for a short time until she became pregnant with twins, who were
born in September 2006 (Ex. 1, Tr. 39). 
Applicant continued to smoke marijuana at home after the birth of his first
daughter and while his spouse was pregnant with their twins. In about May 2006, he
started using Ritalin, which had been prescribed for his spouse to treat her attention
deficit disorder (ADD) (Tr. 42-43). In researching her mental illness and the drug (Tr.
45), Applicant learned that it increased concentration/focus, and he began taking some
of her medication so that he could better concentrate on his doctoral thesis (Ex. 1).1
In about September 2006, Applicant briefly ceased using marijuana in
anticipation of a pre-employment drug screen (Ex. 1).  In late October 2006, he began2
working for the defense contractor in state Y. His employer had a zero tolerance policy
against drug abuse on the job or on company premises and indicated in its employee
handbook that drug abuse by employees off the job could result in disciplinary action by
the company (Ex. 3).  
In November 2006, Applicant and his family moved into temporary housing paid
for by his employer near his job in state Y. They were unable to obtain a mortgage for a
home in the area due to their poor credit (Ex. 1, Tr. 41). In February 2007, Applicant’s
spouse and children moved back to their home in state X to prepare the premises for
sale while Applicant began sharing an apartment near work with a male roommate.
Almost every weekend, Applicant drove home, about 500 miles round trip, to see his
spouse and children. He resumed smoking marijuana on those weekend trips to state X,
assuming, if not knowing, that his employer would not condone it.  His spouse, who was3
also using marijuana at that time, sometimes procured the drug for them. Other times,
he bought the drug himself (Tr. 52).  Early on Monday mornings, he left his family and
drove the 250 miles directly to work in state Y (Tr. 41-42).  From February to April 2007,
he ingested some of his spouse’s Ritalin before he left his house in state X to help him
stay awake during the long drive (Ex. 1, Tr. 41-44). Applicant stopped using the Ritalin
because of remorse/guilt about using a medication not prescribed for him (Tr. 44).
In May 2007, Applicant was asked by his employer to apply for a DoD security
clearance. Applicant informed the facility security officer (FSO) about his use of
The FSO, who is also familiar with Applicant’s work in his capacity as chief scientist, indicated on4
November 14, 2008, that Applicant was up-front about his use of marijuana in college when he was filling out
his application for a security clearance. He added that he would not have requested a clearance for him had
Applicant showed “any tendency or evidence of his using marijuana while employed with our company.” (Ex.
C). There is no indication that Applicant told the FSO that he had used marijuana and Ritalin since becoming
an employee of the company.
Applicant somewhat reluctantly volunteered the details of his spouse’s marijuana involvement. W hen5
asked how he obtained the marijuana he used after October 2006, Applicant indicated that his spouse was
still living in state X and had contacts there (“I was able to, when I went down to the weekend, have access
to it.”). In response to whether his spouse was using marijuana as well at that time, Applicant stated, “I don’t
know if that’s relevant.” (Tr. 51). Subsequently asked for the number of times that he observed his spouse use
marijuana from May 2007 to December 2007, Applicant claimed initially that he could not recall but went on
to testify that it was “approximately ten times.” (Tr. 60).
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marijuana in college (Ex. B, Ex. C), and with the FSO’s consent,  Applicant completed4
an e-QIP on May 24, 2007. He was candid about his and his spouse’s financial
difficulties, and about his illegal drug involvement. In response to question 24
concerning any illegal drug use in the preceding seven years, he indicated he used
marijuana “many” times from about February 1997 to May 2007; often during
undergraduate school, to relax during graduate school, and after a brief cessation in
anticipation of a pre-employment drug screen for his present job, on an occasional basis
on weekends after he began working for the defense contractor. He averred that on
filing out his e-QIP, he decided to cease use of marijuana. Applicant also disclosed that
he used Ritalin about 35 to 40 times between May 2006 and April 2007, initially to
concentrate while writing his Ph. D thesis, and since February 2007 to stay awake while
returning from visits home to see his family. He also listed his one-time uses of “magic
mushrooms” in May 2003 and opium in about June 2002. Applicant listed some debts
and indicated that at times, he was faced with the choice of buying food or paying the
bills (Ex. 1). Applicant told his spouse that he had applied for a security clearance. He
told her to not get in any trouble, and that they both needed to stop using marijuana (Tr.
59).
Sometime in summer 2007, Applicant attended a social gathering in state Y
where a friend from state X smoked marijuana. This friend was in the area visiting his
relatives, and Applicant had suspicions that their socialization would involve marijuana
(Tr. 54). Applicant had informed this person in May 2007 not to offer him marijuana in
the future because he was applying for a security clearance. Applicant left the premises
while the marijuana was smoked (Tr. 55-56), but his spouse smoked the drug (Tr. 57-
58). Applicant observed his spouse smoking marijuana on about ten occasions between
May 2007, when he asked her to stop using the drug, and December 2007, when they
moved to their present residence in state Z (Tr. 58-61).   Applicant asserts, with no5
evidence of record to the contrary, that his spouse ceased her marijuana use in
December 2007 (Tr. 58). As of early December 2008, she was still taking Ritalin (Tr.
62). 
On May 20, 2008, Applicant was interviewed by a government investigator for
further details about his illegal drug involvement. Applicant indicated he stopped using
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marijuana in May 2007 because he did not want to lose his job (“I do not intend to use
marijuana again. The temptation is there but there are more important things to do, and
I have children. I want to set a good example for them.”). Applicant detailed his use of
Ritalin in 2007 and denied any intent to use Ritalin again unless it was prescribed for
him. Applicant indicated that his spouse, siblings, and friends are aware of his previous
drug involvement so it could not be used against him (Ex. 2).
Applicant and his spouse have been in marital counseling with a clinical
psychologist since June 2008. After it was pointed out that some of his symptoms were
common to a diagnosis of ADD, the clinical psychologist referred Applicant for a
psychiatric evaluation. ADD was ruled out in favor of a depressive disorder (Ex. E, Tr.
35). As of early December 2008, Applicant was in treatment with the clinical
psychologist to relieve his mild depression (Tr. 37, 66).
At his hearing, Applicant submitted a written statement of intent not to use or
purchase an illegal drug or to misuse a prescription drug again with the full
understanding that any security clearance he held would be automatically revoked for
any violation (Ex. D). He wants to be a good role model for his children and to retain the
job that he loves (Tr. 47). About once or twice a year, Applicant socializes with those
friends from state X with whom his spouse used marijuana in summer 2007 (Tr. 56).
Applicant was hired by his employer to work on a new sensor system involving
infrared laser technology. During the past two years, he has fully lived up to his
employer’s expectations, and has demonstrated an ability to interact with various
functional groups. The maturity of his approach to the job and responsiveness to
organizational needs led to unsolicited praise from several senior managers (Ex. A, Ex.
B).
Policies
When evaluating an Applicant’s suitability for a security clearance, the
administrative judge must consider the revised adjudicative guidelines (AG). In addition
to brief introductory explanations for each guideline, the adjudicative guidelines list
potentially disqualifying conditions and mitigating conditions, which are useful 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 overarching
adjudicative goal is a fair, impartial and common sense decision. According to AG ¶
2(c), 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.
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The protection of the national security is the paramount consideration. AG ¶ 2(b)
requires that “[a]ny doubt concerning personnel being considered for access to
classified information will be resolved in favor of 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. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
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 as to obtaining 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
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 information.
 
Section 7 of Executive Order 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
The security concerns about drug involvement are set out in AG ¶ 24:
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.
(a) Drugs are defined as mood and behavior altering substances, and
include:
(1) Drugs, 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), and
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(2) inhalants and other similar substances;
(b) drug abuse is the illegal use of a drug or use of a legal drug in a
manner that deviates from approved medical direction.
Applicant began using marijuana during his freshman year of college at parties.
He continued to smoke the drug while in graduate school to relax, at times with his
spouse, and he purchased the drug on occasion through friends. While he stopped
smoking for a brief period in anticipation of a drug screen for his job in fall 2006, he
resumed smoking marijuana on weekends until May 2007.  He also abused Ritalin while
working on his doctoral thesis, and again from February 2007 to April 2007, taking it to
stay awake while driving back from visits to his spouse and children. He estimates that
over the 2006/07 time frame, he ingested Ritalin that had not been prescribed for him
on about 35 to 40 occasions. Applicant also tried opium in June 2002, and
hallucinogenic mushrooms in May 2003 out of curiosity.  AG 25(a), “any drug abuse,”
and AG ¶ 25(c), “illegal drug possession, including cultivation, processing, manufacture,
purchase, sale, or distribution; or possession of drug paraphernalia,” apply.
Concerning potential factors in mitigation under Guideline H, Applicant’s
involvement with opium and hallucinogenic mushrooms was “so infrequent” as to fall
within AG ¶ 26(a), “the behavior happened so long ago, was so infrequent, or happened
under such circumstances that it is likely to recur or does not cast doubt on the
individual’s current reliability, trustworthiness, or good judgment.” However, AG ¶ 26(a)
cannot reasonably be applied to his overall drug involvement, given his ten years of
marijuana use and abuse of Ritalin about 35 to 40 times over about one year.
At his hearing, Applicant furnished the statement required for AG ¶ 26(b)(4), “a
demonstrated intent not to abuse any drugs in the future, such as: (4) a signed
statement of intent with automatic revocation of clearance for any violation.” AG ¶
26(b)(4) applies, but it is only one factor to consider in assessing the risk of future
abuse. Marijuana was a significant part of Applicant’s recreational lifestyle for some ten
years. He obviously enjoyed the drug’s effects, and he and his spouse continued to
smoke even after the births of their three children and despite significant financial
problems. On his e-QIP, he indicated that at times, he had to choose between paying
the bills and buying food. Yet, these financial difficulties did not stop him from
purchasing  marijuana. He gave little thought to the illegality of using his spouse’s Ritalin
without a prescription on many occasions. Concerned that he could test positive in a
pre-employment drug screen for his current job, Applicant stopped smoking marijuana
for a brief period in fall 2006. However, after he was secure in his position, he resumed
his involvement with marijuana. From February to April 2007, he again abused Ritalin
on the weekends.
Applicant resolved in May 2007 to abstain from all future illegal drug use,
including any use of controlled substances not prescribed for him. A demonstrated
intent not to abuse any drugs in the future can be shown by “an appropriate period of
abstinence” (see AG ¶ 26(b)(3)). The frequency and duration of previous abuse are
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factors to consider in assessing whether the term of abstinence is sufficient to
guarantee against recurrence. Applicant’s present abstinence of some 18 months is not
insignificant, although it is relatively short when compared to his years of marijuana
abuse. Moreover, a friend aware that Applicant had to cease his drug use for his job
nonetheless pulled out marijuana at a social function attended by Applicant and his
spouse in summer 2007. Applicant had suspicions that marijuana would be present at
the function and he attended anyway (Tr. 54). Although he showed good judgment in
temporarily removing himself from the situation, his spouse smoked the drug on that
occasion. Furthermore, Applicant was around his wife when she smoked marijuana on
about ten occasions between May and December 2007. While he testified he told her
that they both needed to cease their involvement with the drug, he condoned her drug
use by staying around while she used it.
Applicant submits that AG ¶ 26(b)(1), “disassociation from drug-using associates
and contacts,” and AG ¶ 26(b)(2), “changing or avoiding the environment where drugs
are used,” apply in that drugs are no longer part of his or his spouse’s lifestyle since
they moved to their present residence in December 2007. There is no evidence that
Applicant and his spouse socialize with any regularity with their drug-using friends from
state X, but they have not completely terminated the relationships (“Every now and
again, we–they’re in the area for some family events, so we see them occasionally,
once or twice a year at most.” Tr. 56). Without the opportunity to assess Applicant’s
spouse’s commitment to remaining drug free, I cannot fully apply AG ¶ 26(b)(1), AG ¶
26(b)(2), or AG ¶ 26(b)(3). As recently as May 2008, Applicant acknowledged to a
government investigator that the temptation is there to use marijuana, and Ritalin is
readily available in the home. He now denies any desire to use marijuana (“There’s no
physical or emotional–what do I want to say–binding with me and marijuana.” Tr. 37) or
Ritalin, but I am unable to conclude based on the available record that his drug abuse is
safely in the past.
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 the applicant’s
conduct and all the circumstances in light of the nine adjudicative process factors listed
at AG ¶ 2(a):
(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.
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Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security
clearance must be an overall common sense judgment based upon careful
consideration of the guidelines and the whole person concept. 
Applicant knew when he used the marijuana, hallucinogenic mushrooms, opium,
and Ritalin that he was engaging in illegal conduct. Concerned that he would test
positive for marijuana in any pre-employment screen for his present job, he abstained
for a brief period, only to resume his involvement once he was on the company’s
payroll. He continued to smoke marijuana at home for some seven months, and abused
Ritalin over three months of that time, assuming if not knowing that his employer would
not condone that abuse (see AG ¶¶ 2(a)(1), 2(a)(2), 2(a)(3), 2(a)(4), and 2(a)(5)).
Applicant exhibited some maturation in resolving to give up drugs on applying for a
clearance, and in candidly disclosing his drug abuse on his e-QIP (see AG ¶ 2(a)(6)).
But he also looked the other way while his spouse continued to smoke marijuana for at
least seven more months. His desire to retain his employment and the increasing
likelihood of his children being affected by his and his spouse’s conduct in the home are
not sufficient to overcome the drug involvement concerns.
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: Against Applicant
Subparagraph 1.c: Against Applicant
Subparagraph 1.d: Against Applicant
Subparagraph 1.e: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
ELIZABETH M. MATCHINSKI
Administrative Judge