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                            DEPARTMENT OF DEFENSE
             DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
-----------, --------- --------- )       ISCR Case No. 08-03913
SSN: ------ ---- -------- )
)
Applicant for Security Clearance )
Appearances
For Government: Melvin A. Howry, Esquire, Department Counsel
For Applicant: John Warner Widell, Esquire
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Decision
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WHITE, David M., Administrative Judge:
Applicant used marijuana about once a month on social occasions from about
January 2004 to about February 2008. He honestly admitted this use during the security
clearance investigation, and there was no other evidence of it. His life circumstances
have changed, and he persuasively established his intent not to abuse any drugs in the
future. Based upon a review of the case file, pleadings, exhibits, and testimony,
eligibility for access to classified information is granted. 
Applicant submitted his Electronic Questionnaires for Investigation Processing
(e-QIP), on May 21, 2007. On July 16, 2008, the Defense Office of Hearings and
Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) detailing security
concerns under Guidelines H, and E. 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 for SORs issued after September
1, 2006. 
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Applicant acknowledged receipt of the SOR on July 18, 2008. He answered the
SOR in writing on that same date (AR), and requested that his case be decided without
a hearing. On July 31, 2008, Applicant submitted a written supplemental response
withdrawing his previous election and requesting a hearing before an administrative
judge. Department Counsel was prepared to proceed on August 28, 2008, and the case
was assigned to me on September 3, 2008. DOHA issued a notice of hearing on
September 3, 2008, and I convened the hearing as scheduled on September 26, 2008.
The Government offered exhibits (GE) 1 and 2, which were admitted without objection.
The Government also offered HE II, comprising the Under Secretary of Defense
(Intelligence) Memorandum, dated June 20, 2008, and three sections of the United
States Code, to support a request that I take administrative notice of the facts that the
Bond Amendment prohibits granting a security clearance to an unlawful user of a
controlled substance or a drug addict, and that marijuana is a controlled substance.
Applicant had no objection, and administrative notice was taken of these facts together
with pertinent definitions of those terms. Applicant testified on his own behalf, and
submitted exhibits (AE) A1 through A12, which were admitted without objection.
Applicant’s wife, supervisor, and several law enforcement and security personnel with
whom he has worked also testified for him. DOHA received the transcript of the hearing
(Tr.) on October 7, 2008.
Findings of Fact
In his Answer to the SOR, Applicant admitted all of the factual allegations
concerning his drug involvement except having purchased marijuana. He clarified his
earlier statement to an investigator about this by stating that his wife actually made the
purchases. He also denied that his actions gave rise to Guideline E security concerns
because he fully and honestly disclosed his occasional marijuana use. Although he did
not formally respond to SOR ¶ 1.f concerning the Bond Amendment, his counsel stated
that it was his intent to deny its applicability. (Tr. at 20-21.) Applicant’s admissions,
including those contained in his response to DOHA Interrogatories (GE 2), are
incorporated in the following findings.
Applicant is a 31-year-old network security engineer. He has worked for his
present employer since December 1999. He also served in the Army National Guard,
from 1998 to 2003, when he was medically discharged under honorable conditions
following a vehicle accident. During his service, he was awarded an Army
Commendation Medal. (AE A6.) He immigrated to the United States in 1997 to attend
college, and became a naturalized U.S. citizen in December 2002. He renounced his
former foreign citizenship and holds only a U.S. passport. He has never held a security
clearance. He and his first wife were married from 1998 to 2003, and had no children.
He married his current wife in February 2007, and they have one child born very
recently. (GE 1 at 1-3, 7-9, 15-17, 21; Tr. at 98, 103-107, 116.)
On his e-QIP, Applicant admitted to using marijuana on an occasional,
recreational basis from January 2004 to present. (GE 1 at § 24.) He later described his
use as about once per month, on average, with his wife or close friends. (GE 2 at 3.) His
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wife confirmed that he only smoked marijuana once every month or two, in social
settings with her and friends. (Tr. at 90.) He never used marijuana while he was in the
National Guard, and never tested positive or was arrested for any drug use. (Tr. at 96-
97.) His use was casual enough that he does not remember exactly when it started and
stopped, but knows it was not before January 2004 or after February 2008, when he
and his wife made a firm commitment that neither would use marijuana again because
they found out she was pregnant. He had also committed to stopping when required to
do so by the security clearance process, but had believed his wife might continue use
until her pregnancy. Both Applicant and his wife testified very firmly and credibly that
they decided to stop using marijuana altogether in February 2008, had no problem
doing so, and were not going to use it, or any other illegal drug, in the future. (GE 2 at 3;
Tr. at 80-91, 98-100, 110-115.)
Applicant submitted two urine samples, collected August 19, and September 6,
2008, for private testing at a laboratory. Both samples tested negative for all seven
drugs screened. (AE A2; AE A3.) Applicant’s wife, and four supervisors who have
known him for years, all testified that he is completely honest and very firm in following
through on his commitments. His four supervisors hold senior and highly responsible
positions in organizational security and information protection. All hold high-level
security clearances, and expressed their complete trust and confidence in Applicant’s
ability to protect sensitive information, and to abstain from any drug abuse in the future.
All of their testimony in this regard was highly credible and compelling. (Tr. at 47-91.)
Applicant also submitted his most recent outstanding annual performance review and
four letters of appreciation spanning 2003 to 2008 for excellent performance of
important work, for much of which he is uniquely qualified. (AE A7 through A11.)
Applicant has ended all contact with former drug-involved associates, except his
wife and one friend who has not used marijuana for a long time. (Tr. at 101-102.) He
and his wife are dedicated to providing a good example for their child, and find any drug
use incompatible with parenting. Applicant testified openly and honestly about his past
drug abuse, and convincingly declared his intent never to abuse drugs in the future. He
knew that he would have to stop while holding a clearance, and always intended to do
so. He honestly did not know, and no one ever told him, that occasional use while his
application was pending could be disqualifying, but was told by his security manager to
be fully honest about all such matters. (Tr. at 73-75, 97-98.) He also submitted a signed,
sworn statement of intent never to use marijuana or other controlled substances in the
future, with automatic revocation of his clearance resulting from any such use. (AE A1.)
He understands and agrees that, if granted a clearance, his terms of employment will
require him to undergo random drug testing. (AR at 4.)  
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
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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 over-arching
adjudicative goal is a fair, impartial and common sense decision. According to AG ¶¶
2(a) and 2(c), the entire process is a conscientious scrutiny of applicable guidelines in
the context 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 “Any doubt concerning personnel being considered for access to classified
information 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. 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 the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7
of Executive Order 10865 provides that “Any determination under this order adverse to
an applicant shall be a determination in terms of the national interest and shall in no
sense be a determination as to the loyalty of the applicant concerned.” 
A person applying for access to classified information seeks to enter 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.
Analysis
Guideline H, Drug Involvement
AG ¶ 24 expresses the security concern pertaining to drug involvement: “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
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regulations.” AG ¶ 25 describes conditions that could raise a security concern and may
be disqualifying. Disqualifying conditions raised by the SOR allegations and asserted by
Department Counsel are: “(a) any drug abuse;” “(c) illegal drug possession, including
cultivation, processing, manufacture, purchase, sale, or distribution; or possession of
drug paraphernalia;” and “(h) expressed intent to continue illegal drug use, or failure to
clearly and convincingly commit to discontinue drug use.” (Tr. at 119.) SOR ¶ 1.f also
alleges that his use of marijuana disqualifies Applicant from being granted a clearance
under the Bond Amendment.  
Applicant admitted to recreational use of marijuana about once a month over
about a four-year period between January 2004 and February 2008. He then stopped
using it, both because it is incompatible with holding a security clearance and because
he and his wife committed to stop after learning she was pregnant (AG ¶ 25(a)). They
purchased the marijuana they used, but never grew or distributed any (AG ¶ 25(c)).
Applicant never expressed an intent to continue illegal drug use, although he did tell an
investigator he thought his wife might do so and said he could stop if his clearance so
required. At that July 2007 interview, those statements would reasonably support
security concerns under AG ¶ 25(h).   
AG ¶ 26 provides conditions that an applicant could establish in order to mitigate
security concerns. Mitigating conditions raised by this record include: “(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;” and “(b) 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; (3) an appropriate
period of abstinence; and, (4) a signed statement of intent with automatic revocation of
clearance for any violation.”
Applicant’s drug possession and use occurred over about four years, and as
recently as February 2008. This conduct was relatively recent and not particularly
infrequent. However, it did happen under circumstances that have significantly changed.
First, Applicant and his wife became parents and convincingly testified that they believe
marijuana use to be incompatible with their new lives and raising their child. Second,
Applicant now understands that what he formerly considered casual and socially
acceptable marijuana use is incompatible with obtaining a security clearance. He clearly
values the ability to perform the important work for which his supervisors support his
clearance far more than he values any future drug use. Applicant met his burden of
establishing that his drug possession and use occurred under circumstances that it is
unlikely to recur and does not cast doubt on his current reliability, trustworthiness or
good judgment (AG ¶ 26(a)). He did not do so while in the military and will not do so
while a parent or while holding a clearance. Applicant provided substantial evidence of
his intent not to abuse drugs in the future, including his disassociation from drug-using
contacts, his abstinence for almost a year and two negative urinalysis tests, and his
signed statement of intent with automatic revocation (¶ 26(b)). This case did not involve
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abuse of prescription drugs, nor was any drug treatment program prescribed, so neither
AG ¶¶ 26 (c) nor (d) apply.
Concerning the Bond Amendment, that provision of law prohibits all Federal
Agencies from granting or renewing a security clearance to any person who is an
unlawful user of a controlled substance or is an addict. There is neither an allegation nor
any evidence indicating that Applicant is addicted to anything. The Under Secretary of
Defense (Intelligence) defined an “unlawful user” for Bond Amendment implementation
purposes in his June 20, 2008 memorandum (HE II), as follows:
an “unlawful user of a controlled substance” is a person who uses a
controlled substance and has lost the power of self-control with reference
to the use of the controlled substance, and any person who is a current
user of the controlled substance in a manner other than as prescribed by a
licensed physician. Such use is not limited to the use of drugs on a
particular day, or within a matter of days or weeks before, but rather that
the unlawful use has occurred recently enough to indicate that the
individual is actively engaged in such conduct. 
Up until February 2008, Applicant met the definition of an unlawful user of marijuana.
After that time, he has convincingly stopped being an unlawful user of marijuana and is
most unlikely to ever do so again. He never lost self-control with reference to his use of
marijuana. Accordingly, Applicant has met his burden of showing he is no longer
disqualified from eligibility for a clearance under the Bond Amendment.  
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to personal conduct:
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 information. Of special interest is any failure to provide truthful
and candid answers during the security clearance process or any other
failure to cooperate with the security clearance process.
AG ¶ 16 sets forth potentially disqualifying conditions. The SOR alleged
Applicant’s use of marijuana after having submitted his security clearance application as
the conduct giving rise to Guideline E concerns. Department Counsel argued that this
allegation raised AG ¶ 16(d)(3):
(d) credible adverse information that is not explicitly covered under any
other guideline and may not be sufficient by itself for an adverse
determination, but which, when combined with all available information
supports a whole-person assessment of questionable judgment,
untrustworthiness, unreliability, lack of candor, unwillingness to comply
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with rules and regulations, or other characteristics indicating that the
person may not properly safeguard protected information. This includes
but is not limited to consideration of:
(1) untrustworthy or unreliable behavior to include breach of client
confidentiality, release of proprietary information, unauthorized
release of sensitive corporate or other government protected
information:
(2) disruptive, violent, or other inappropriate behavior in the
workplace; 
(3) a pattern of dishonesty or rule violations; and,
(4) evidence of significant misuse of Government or other
employer's time or resources.
While smoking marijuana at any time is covered under Guideline H, the particular
issues of judgment and willingness to abide by rules and regulations that potentially
arise from doing so while a clearance application is pending are not covered there. The
Guideline H aggravated disqualifying condition only pertains to drug use after being
granted a clearance (AG ¶ 25(g)). Applicant has not been dishonest in the least. In fact,
his candid admissions are the only evidence raising any concerns in the first place. His
occasional, casual marijuana use was technically illegal but not otherwise of special
concern within his then-existing social circle. He expressed his willingness and ability to
stop doing so when required by his clearance status, and was never told it was of
immediate concern while his application was pending. Had he been so told, he would
have stopped earlier than he voluntarily did in February 2008. All who know him well
testified that, other than this self-admitted and now-regretted series of bad decisions, he
is a stickler for rules, has excellent judgment, and is highly dependable. 
This personal conduct analysis, by terms of the guideline, overlaps with and
implicates the following whole person analysis as well. For the same reasons discussed
above under Guideline H, security concerns arising from this conduct are substantially
mitigated under 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”). Because all his supervisors and family already know about this past
drug use, he also established mitigation under AG ¶ 17(e) (“the individual has taken
positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or
duress”). 
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
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conduct and all the circumstances established by the record evidence. The
administrative judge should consider 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.
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security
clearance must be an overall commonsense judgment based upon careful consideration
of the guidelines and the whole person concept.    
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case. Applicant’s conduct of security
concern involved a four-year period of occasional marijuana use. He was never arrested
for this, never distributed any drugs, never tested positive for use or showed any
impairment or other effects at work, where he excelled. This occurred when he was
mature and fully responsible for his choices, but in a social situation where it was
considered acceptable behavior. He and his wife both decided to stop smoking
marijuana for good in February 2008, and have not done so since. This behavioral
change appears to be permanent and drug use is most unlikely to recur. Applicant’s
motivation for the conduct was social enjoyment, but that interest is now heavily
outweighed by his desire to be a good parent and to be worthy of a security clearance
to do pending, important work. I have seldom seen a more impressive, serious, and
convincing group of character witnesses testify as credibly about their confidence in his
integrity and determination to refrain from any future drug use or other irresponsible
behavior. 
Applicant’s use of marijuana was casual and occurred during a relatively brief
period of his life comprising the early years of his relationship with his second wife. She
clearly influenced his choice to do this, and has now joined him in his commitment to
permanently change that aspect of their lives. His supervisors at work were somewhat
surprised to learn he had used marijuana, but were neither surprised by his honesty
about it when asked, nor the least bit doubtful of his determination and ability to stop.
There is no susceptibility to coercion or duress arising from this past conduct, since it is
known to all whose knowledge of it could be detrimental to Applicant. 
Overall, the record evidence leaves me with no doubt as to Applicant’s present
eligibility and suitability for a security clearance. He has fully met his burden to mitigate
the security concerns arising from drug involvement and personal conduct
considerations.
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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: FOR APPLICANT
Subparagraph 1.a: For Applicant
Subparagraph 1.b: For Applicant
Subparagraph 1.c: For Applicant
Subparagraph 1.d: For Applicant
Subparagraph 1.e: For Applicant
Subparagraph 1.f: For Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with the interests of national security to grant Applicant eligibility for a
security clearance. Eligibility for access to classified information is granted.
                                             
DAVID M. WHITE
Administrative Judge