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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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------------------------ )       ISCR Case No. 08-10572
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Braden M. Murphy, Esquire, Department Counsel
For Applicant: Steven R. Freeman, Esquire
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Decision
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LYNCH, Noreen, Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86), on August 13,
2008. On February 4, 2009, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines
H and J for Applicant. 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 acknowledged receipt of the SOR on February 23, 2009, and answered
through Counsel. Applicant requested a hearing before an Administrative Judge. I
received the case assignment on April 16, 2009. DOHA issued a notice of hearing on
May 12, 2009, and I convened the hearing as scheduled on June 16, 2009. The
government presented one witness and offered Exhibits (Ex.) 1-5, which were received
without objection. Applicant testified on his own behalf and presented the testimony of
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one witness. He submitted Exhibits A-B without objection. DOHA received the transcript
of the hearing (Tr.) on June 23, 2009. Based upon a review of the case file, pleadings,
exhibits, and testimony, eligibility for access to classified information is granted.
Findings of Fact
In his Answer to the SOR, received February 23, 2009, Applicant admitted the
factual allegations in ¶¶ 1.a, and 2.a and 2.b of the SOR with explanations. He also
provided additional information to support his request for eligibility for a security
clearance. 
Applicant is a 30-year-old employee of a defense contractor. He graduated from
high school in 1996 and obtained his undergraduate degree in 2000. He received a
Master of Business Administration in 2007. He has never married and has a child from a
previous relationship. He is currently engaged to be married and has a child with his
intended wife. He has been with his current employer since 2001 (GE 1). He has not
previously held a security clearance.
Applicant started smoking marijuana when he was 17 years old in high school.
He smoked marijuana from March 1996 until May 2008. The frequency varied, but he
estimates that he used the illegal drug approximately 100 times. His use diminished in
frequency from once a week with friends, when he was younger, at parties to four times
a year in a social setting. His first son was born in 1999 and lived with Applicant’s
girlfriend. At that point in 1999, he used marijuana very infrequently (Tr. 92). He has
never used marijuana in his home with his family (GE 1).
In 2001, Applicant was arrested for possession of marijuana and possession of
paraphernalia. He was a passenger in an automobile with a friend who had used
marijuana. An officer stopped the vehicle and found marijuana and drug paraphernalia
in the glove compartment of the car (Tr. 17). He was arrested and spent a night in jail
(Tr. 94). As a first time offender, Applicant was given an assessment and education
program. The court “diversion program” allowed the charges to remain on an inactive
docket. Applicant voluntarily completed the program by attending class for five to ten
weeks (Tr. 95). The charges were nolle prosequi. His record is now expunged (GE 5). 
Applicant completed his security clearance application on August 13, 2008, and
listed his use of marijuana from March 1996 until May 2008. He reported the number of
times as 100+. He also noted that he used marijuana “much more frequently than I do
now”; the usage now is 4 times a year in a social setting;” and “at no time does this
substance enter my household” (Tr. 82).
An agent from the Office of Personnel Management (OPM) interviewed Applicant
in September 2008. She prepared a report of investigation concerning the interview (GE
3). The agent knew of Applicant’s admitted drug use before the interview. During the
interview Applicant was candid and admitted to the agent that although he had not used
marijuana since May 2008, he did not “know if he will use marijuana in the future” (GE
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4). Applicant elaborated that if he learns that his job would be negatively impacted by
marijuana use, he would stop to keep his job. The agent believed the interview was
unique because she does not recall anyone answering the question concerning “future
intent” in the way that Applicant did. At the hearing, she acknowledged that she could
not remember verbatim what Applicant said when she asked a follow up question about
under what circumstances would he or would he not use marijuana in the future (Tr. 35).
She remembers that he said if he learns that his job would be negatively impacted, then
he would not use marijuana. The agent testified that Applicant was cooperative and
candid during the interview (Tr. 39). 
Applicant’s future wife testified at the hearing. She has known Applicant for four
years. She and Applicant reside together in their own home. They have one child as a
result of their relationship who lives with them. Applicant’s son from his previous
relationship and his future wife’s oldest daughter from her first marriage also live in the
home (Tr. 48).
Applicant’s future wife knew about Applicant’s use of marijuana. She
acknowledged that she smoked marijuana with him when they first met about four years
ago. She explained that he has changed his lifestyle and habits because of their
blended family. He completely stopped using marijuana in part due to her condition that
if they would be married, she did not want that to be a part of the marriage or impact on
their family (Tr. 52). She is not working outside of the home at the current time because
she is expecting their second child. She and Applicant spend weekends with the
children. Applicant puts the children first. They attend sporting events and PTA (Tr. 54).
They socialize with other families in the neighborhood. 
Applicant does not have friends who smoke marijuana. He comes home every
evening after work (Tr. 56). He has relocated to a different community and he
associates with families with children (Tr. 82). He acknowledged that his first son was in
the custody of his wife during the earlier years when he was still using marijuana
occasionally. His life consists of work and home activities (Tr. 83).
Applicant has received a promotion and a raise every year for the past nine
years. He has been promoted to Program Operations Manager (Tr. 87). He enjoys his
work and applied for a security clearance so that he could enhance his career
opportunities. He has a family to support and wants to remain financially responsible for
the entire household. 
Applicant was candid, open, forthright and credible at the hearing. He was
thoughtful in his responses to questions concerning the exact number of times he used
marijuana after 2001 until 2008. He believed it may have been once or twice a year (Tr.
102). He was also honest when he admitted that in completing his security
questionnaire in August 2008, he answered to the best of his ability. He noted in
response to his December 2008 interrogatories to DOHA that he objected to the agent’s
description of his comment concerning future use. He believes he reported to the agent
that he would not use in the future because he understood what the ramifications were
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for his career and for his family (Tr. 113). He acknowledged at the hearing that he made
a firm decision not to use marijuana in the future after the interview with the agent (Tr.
114).
Applicant signed a Statement of Intent on June 16, 2009 that he would “refrain
from engaging in any illegal drug activity whatsoever, including but not limited to using
marijuana or any other illegal drug” (AE A). In the event that [I] fail to live up to the
promises contained in this Statement of Intent, I hereby consent to the automatic
revocation of my security clearance, should [I] be in the possession of a security
clearance. 
Applicant took a drug urine test in June 2009. He tested negative for nine
possible drugs (AE B). He conceded that this was not a random drug sample (Tr. 76).
He is willing to submit to random drug testing at any time (Tr. 78).
Applicant testified credibly at the hearing and consistent with his security
clearance application. He was candid in his interview with the agent investigating his
case. He has no contact with friends with whom he used marijuana. He is more settled
and focused on his career. He has received promotions at work. He will be married very
soon and has a blended family to care for. His social time is spent with other families in
the neighborhood. Marijuana use is not part of that culture, and is viewed as immature
and not responsible.
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 over-arching
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.
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.
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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 concern relating to the guideline for Drug Involvement is 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. 
The guideline notes several conditions that could raise security concerns. Under
AG & 25(a), Aany drug abuse@ is potentially disqualifying. Under AG ¶ 25(c) “illegal drug
possession, including cultivation, processing, manufacture, purchase, sale, or
distribution; or possession of drug paraphernalia” is also potentially disqualifying.
Applicant admitted using marijuana from 1996 until May 2008 approximately 100 times.
The evidence is sufficient to raise these potentially disqualifying conditions.
The guideline also includes examples of conditions that could mitigate security
concerns arising from drug involvement. Under AG ¶ 26(a), the disqualifying condition
may be mitigated where Athe behavior happened so long ago, was so infrequent, or
occurred under such circumstances that it is unlikely to recur and does not cast doubt
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on the individual=s current reliability, trustworthiness, or good judgment.@ Applicant’s
drug use was more frequent from 1996 until 2001. He used marijuana at parties when
he was single. His use over the last six years is fairly described as casual and
infrequent. Applicant’s last use of marijuana was in May 2008, I find that this mitigating
condition partially applies. Applicant is credible in his testimony concerning his
commitment to his family and home situation. He and his intended wife are expecting
their second child. He has a family. I do not find the marijuana use would likely recur
under his new circumstances. 
Under AG ¶ 26(b), it may be mitigating where Aa 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 signed a Statement of Intent. He does not associate with friends who
smoke marijuana. He is living in a different community with his family. He spends his
time at work and attending events with his family. He has focused on his career and
wants to enhance his career opportunities. He has not used marijuana since May 2008.
While his abstention from marijuana use for one year might not in another situation
necessarily constitute an appropriate period of abstinence, given the minimal marijuana
use by Applicant and his change in environment, I conclude that a year’s abstinence is
appropriate. He has shown an honesty and this goes to his trustworthiness for a
security clearance. On this credible record, it is extremely unlikely that Applicant would
return to illegal drug use. His firm commitment and his signed statement are sufficient
for mitigation under 26(b).
Guideline J, Criminal Conduct
The security concern relating to the guideline for Criminal Conduct is set out in
AG ¶ 30, ”Criminal activity creates doubt about a person’s judgment, reliability, and
trustworthiness. By its very nature, it calls into question a person’s ability or willingness
to comply with laws, rules and regulation.”
The guideline notes several conditions that could raise security concerns. Under
AG ¶ 31(a) an “single serious crime or multiple lesser offenses” may be potentially
disqualifying. Also AG 31(c) “allegation or admission of criminal conduct, regardless of
whether the person was formally charged, formally prosecuted or convicted” is a
potential disqualifying condition. As discussed above, Applicant admitted using
marijuana from 1996 until 2008 approximately 100 times. Applicant’s illegal marijuana
use and 2001 charge for possession of marijuana is sufficient to establish AG ¶¶ 31(a)
and 31(c).
The guideline also includes examples of conditions that could mitigate security
concerns arising from criminal conduct. Under AG ¶ 32(a) the disqualifying condition
may be mitigated where “so much time has elapsed since the criminal behavior
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happened, or it happened under such unusual circumstances that it is unlikely to recur
and does not cast doubt on the individual’s current reliability, trustworthiness, or good
judgment.” 
Under AG ¶ 30(d) it may be mitigating where “there is evidence of successful
rehabilitation; including, but not limited to the passage of time without recurrence of
criminal activity, remorse or restitution, job training or higher education, good
employment record, or constructive community involvement.”
For the reasons discussed above, I  find that Applicant has provided mitigation
under this guideline.
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. 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) theextent 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 common 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 used marijuana when he
was young in 1999. He smoked the illegal drug with friends at social gatherings. He was
charged with marijuana possession in 2001. He attended courses and completed a
court diversion program. He has no conviction on his record. It was expunged. He has
no other criminal record but he continued to smoke marijuana infrequently until May
2008.
Applicant has worked successfully for the same company for the past eight
years. He has received promotions and raises. He is now engaged to be married. He
and his future wife own a home together. He is focused on his family life with his future
wife and children. His marijuana usage in the past seven years dramatically decreased
and then completely stopped. He is fully committed to his family. He understands the
importance of responsibility. He wants to enhance his career and provide for his family.
Applicant disclosed his marijuana use on his security clearance and in his
interview with a government agent. He was candid and forthright at all times. He was
brutally honest when answering all questions. He has not used marijuana since May
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2008. He was credible in his statement of intent not to use marijuana in the future. He
understands the ramifications of any illegal drug use. He is willing to submit to any
random drug tests. He has demonstrated a trustworthiness in his security clearance
application process. 
Overall, the record evidence leaves me without questions and doubts as to
Applicant’s eligibility and suitability for a security clearance. For all the reasons
discussed above, I conclude Applicant has mitigated the security concerns arising from
his drug involvement and criminal conduct. 
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
Paragraph 2, Guideline J: FOR APPLICANT
Subparagraph 2.a: For Applicant
Subparagraph 2.b: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with national security to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
                                              
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Noreen A. Lynch
Administrative Judge