DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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---------------------- )       ISCR Case No. 08-04629
SSN: ----------- )
)
Applicant for Security Clearance )
Appearances
For Government: Gina L. Marine, Department Counsel
For Applicant: Pro Se
February 18, 2009
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Decision
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TESTAN, Joseph, Administrative Judge:
On May 22, 2008, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) to applicant detailing the security concerns under
Guideline H. 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. 
 
Applicant answered the SOR in writing on June 10, 2008, and requested an
Administrative Determination by an Administrative Judge (AJ). Department Counsel
issued a File of Relevant Material (FORM) on September 25, 2008. Applicant filed a
response to the FORM on November 14, 2008. The case was assigned to me on
December 12, 2008. Based upon a review of the case file, pleadings, and exhibits,
eligibility for access to classified information is denied.
Some of his drug use occurred while he was holding a security clearance.
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 Interrogatory 5. In April 2008, applicant prepared a self-styled “amendment,” presumably to his
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interrogatory responses,  in which he stated: “This added amendment is to clear up any questions that I
didn’t finish correctly. On the question of ever used drugs: The statement I wrote was based on my Son.
The last time that I remember smoking was on 1 January 2008. On the question of ever purchased, was
by my son and that date is on the paper work.” At the end of the “amendment,” he reiterated that he
smokes “maybe once every two or three months.”
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Findings of Fact
Applicant is a 54 year old employee of a defense contractor.
Applicant was interviewed by an OPM/DOD investigator in September 2007.
During the same month, the investigator prepared a four page report based on that
interview. DOHA sent interrogatories to applicant in February 2008, which he answered
in March 2008. In addition to interrogatories requesting specific information about his
drug use, one interrogatory specifically asked applicant if the four page report “reflect[s]
accurately the information that you provided to the authorized investigator for the
Department of Defense on the day you were interviewed.” Applicant responded “yes” to
this interrogatory. The four page report, interrogatories, and applicant’s answers to the
interrogatories, are all part of Exhibit 5.
As reflected in the September 2007 four page report, applicant told the
investigator he (1) smoked marijuana and/or hashish from 1967 to the present,  (2) uses1
about one joint two to three times per month, (3) uses these drugs at home and at
parties to relax from the pressures of the job, (4) feels “high” when he uses them, and
(5) intends to use the same amount of these drugs in the future. Applicant confirmed
some of this information in response to Interrogatory 1, where he stated he had used
marijuana/hashish two/three times a month, last used one or both of these drugs in
February 2008, and has not decided to stop using illegal substances.
In the 1970s, applicant was charged with Possession of Marijuana after a police
officer searched applicant and found a “joint” on him. The case was dismissed because
the search was ruled illegal.
In either the late 1980s or early 1990s, applicant was charged in a foreign
country with Possession of Marijuana. He was convicted, fined, and placed on
probation.
In SOR Paragraph 1.c., the Government alleges applicant purchased marijuana
on multiple occasions. In his response to the SOR, applicant stated, “I DENY IT. I have
never purchased marijuana, or hash. Some one else does this. This is so that I don’t
know who and where?” His denial conflicts with his response to one of the
aforementioned interrogatories, where he stated he had purchased marijuana and
hashish in February 2008.  2
In SOR Paragraph 1.d., the Government alleges applicant intends to continue
using marijuana. This allegation is certainly consistent with what applicant told the
investigator in September 2007, and what he stated in response to the interrogatories in
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March 2008. However, in his response to the allegation he stated, “I DENY IT. This is a
specific question. Right now, NO to the question.”
In response to the FORM, applicant provided a long statement in which he
stated, among other things, “Let me try to explain myself here. I really did not know what
I need to do during this time frame, but I do know this much. I have not drunk or smoked
any drugs for over 5 years now, must be getting older and that I have no interest in it.”
This denial of any drug use during the last five years contradicts every other statement
he has provided on this issue.
Policies
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.” (Department of
the Navy v. Egan, 484 U.S. 518,527 (1988).) In Executive Order 10865, Safeguarding
Classified Information Within Industry (February 20, 1960), the President set out
guidelines and procedures for safeguarding classified information within the executive
branch. The President 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. Ord. 10865, Section 2.)
To be eligible for a security clearance, an applicant must meet the security
guidelines contained in the Directive. Enclosure 2 of the Directive sets forth personnel
security guidelines, as well as the disqualifying conditions and mitigating conditions
under each guideline.
Initially, the Government must present evidence to establish controverted facts in
the SOR that disqualify or may disqualify the applicant from being eligible for access to
classified information. (Directive, Paragraph E3.1.14.) Thereafter, the applicant is
responsible for presenting evidence to rebut, explain, extenuate, or mitigate the facts.
(Directive, Paragraph 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).) “Any doubt as to
whether access to classified information is clearly consistent with national security will
be resolved in favor of the national security.” (Directive, Paragraph E2.2.2.)
A person granted access to classified information enters into a special
relationship with the government. The government must be able to repose a high
degree of trust and confidence in those individuals to whom it grants access to
classified information. The decision to deny an individual a security clearance is not a
determination as to the loyalty of the applicant. (Exec. Ord. 10865, Section 7.) It is
merely an indication that the applicant has not met the strict guidelines the President
has established for issuing a clearance.
 50 U.S.C. 435c.(b).
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Analysis
Guideline H, Drug Involvement
The security concern for drug involvement is set forth in Paragraph 24 of the AG,
and is as follows:
Use of an illegal 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.
Paragraph 25 describes conditions that could raise a security concern and may
be disqualifying: Under Paragraph 25.a., “any drug abuse” may be disqualifying. Under
Paragraph 25.c., “illegal drug possession, including cultivation, processing,
manufacture, purchase, sale, or distribution . . .” may be disqualifying. Under Paragraph
25.h., an “expressed intent to continue illegal drug use, or failure to clearly and
convincingly commit to discontinue drug use,” may be disqualifying. Applicant’s use and
purchase of marijuana and hashish, and his March 2008 statement that he has no
current plans to stop using marijuana, raise these three disqualifying conditions.
Paragraph 26 of the AG sets forth conditions that could mitigate security
concerns. I considered each of them and conclude none apply.
In addition to the AG, current law specifically prohibits the granting of a security
clearance to an “unlawful user of a controlled substance.”  For purposes of this3
prohibition, 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, or is a person who is a current user of the controlled
substance in a manner other than as prescribed by a licensed physician. Because the
evidence does not support a finding that applicant has lost his self-control with respect
to his drug use, or that he has used marijuana or hashish since February 2008, I
conclude he does not meet the definition of “an unlawful user of a controlled substance.”
“Whole Person” Analysis 
Under the whole person concept, the AJ must evaluate an applicant’s security
eligibility by considering the totality of the applicant’s conduct and all the circumstances.
An AJ should consider the nine adjudicative process factors listed at AG Paragraph
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) 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 Paragraph 2.c, the ultimate
determination of whether to grant a security clearance must be an overall common
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sense 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 is a middle aged man who
has used marijuana and hashish for many years. As recently as March 2008, he
indicated he will continue to use these drugs.  Although he provided a carefully worded
denial of an intent to continue using marijuana and hashish in response to the SOR, this
denial is not credible in light of his many decades of drug use and the numerous
inconsistent statements he provided regarding his drug use. Based on the foregoing, I
conclude applicant failed to mitigate the security concerns arising from Guideline H.
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
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national security to grant applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
                                              
JOSEPH TESTAN
Administrative Judge