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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 08-09699
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Francisco Mendez, Esquire, Department Counsel
For Applicant: Pro Se
______________
Decision
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HENRY, Mary E., Administrative Judge:
Based upon a review of the case file, pleadings, exhibits, and testimony,  I
conclude that Applicant’s eligibility for access to classified information is granted.
Applicant submitted her Electronic Questionnaires for Investigations Processing
(e-QIP) (Security Clearance Application (SF 86)) on July 29, 2008. The Defense Office
of Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR)
detailing security concerns under Guideline H on March 17, 2009. 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. 
 
GE 1; AE B; Tr. 22-23.1
GE 1; Tr. 22-23.2
GE 1; Tr. 24.3
Tr. 24-26, 33.4
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Applicant acknowledged receipt of the SOR on March 24, 2009. She answered
the SOR in writing on April 10, 2009, and requested a hearing before an administrative
judge. DOHA received the request on April 13, 2009. Department Counsel was
prepared to proceed on May 14, 2009, and I received the case assignment on May 15,
2009. DOHA issued a notice of hearing on May 27, 2009, and I convened the hearing
as scheduled on June 18, 2009. The government offered two exhibits (GE) 1 and 2,
which were received and admitted into evidence without objection. Applicant and one
witness testified on her behalf. She submitted two exhibits (AE) A and B, which were
received and admitted into evidence without objection. The record closed on June 18,
2009. DOHA received the transcript of the hearing (Tr.) on June 25, 2009.
Findings of Fact
In her Answer to the SOR, Applicant admitted the factual allegations in ¶¶ 1.a
and 1.b of the SOR, with explanations. She also provided additional information to
support her request for eligibility for a security clearance. 
Applicant, who is 23 years old, started working for a Department of Defense
contractor on June 30, 2008 as a business development analyst. Her current supervisor
praises her work skills, honesty, and integrity. She advises that Applicant’s hiring drug
screen was negative.  1
Applicant graduated from high school in 2004 and received a bachelor’s degree
in business marketing. She is single and currently lives with her parents.2
When Applicant completed her e-QIP, she acknowledged using marijuana
between 2003 and 2008. Applicant began experimenting with marijuana while a high
school student. Her high school boyfriend asked her if she wanted to smoke marijuana.
She decided to try it. She smoked marijuana with him twice. When she ended this
relationship, she continued to smoke marijuana occasionally at the homes of friends.3
In college, Applicant increased her marijuana usage. As a freshman, she smoked
marijuana four or five times a month, usually with her roommate, who was also her best
friend. She stated that they smoked marijuana to ease boredom and for entertainment.
During her sophomore and junior years of college, Applicant increased her marijuana
usage to eight to ten times a month. In her senior year of college, she began decreasing
her marijuana usage as she was moving into the job market and away from her college
life. She last used marijuana on May 8, 2008 with her then boyfriend to celebrate the
completion of college.4
Response to SOR attachment; Tr. 26, 34.       5
Tr. 26-27, 30.6
Id. at 27–28, 31-32.7
Id. 17-20.8
AE A.9
3
Applicant has no intent to use marijuana in the future because the school
environment is different from her present environment. She describes her marijuana use
as a phase in school life. She has no plans to revisit that part of her life. Her career and
her family are her current focus. On April 10, 2009, she signed an automatic revocation
letter should she violate the Directive.5
Friends or her college boyfriend provided most of the marijuana she smoked.
Occasionally, she provided her boyfriend with money to purchased marijuana for their
use. She did not actually purchase any marijuana from any drug dealer. She never used
any other illegal drugs. When offered other illegal drugs, she said “no” and left the
room.6
Applicant denied habitual use of marijuana when she completed her e-QIP. Upon
reflection at the hearing, she acknowledged that she habitually used marijuana in
college. Her college boyfriend is no longer in her life. Except for her best friend, she no
longer associates with her college friends who used marijuana. Her best friend no
longer smokes marijuana.7
A friend testified on Applicant’s behalf. Applicant’s good friend since seventh
grade opined that Applicant is a very honest and trustworthy person with good integrity.
Her friend knew about Applicant’s marijuana use in college and high school. She also
knew that Applicant had not used marijuana since the spring of 2008. She stated that
Applicant had her priorities straight and would not use marijuana after college. Because
they are good friends, she knew Applicant no longer used marijuana.  8
Another very long-time friend wrote a letter of recommendation on behalf of
Applicant. She described Applicant as honest and candid. She stated Applicant does
not lie, even when knowing negative consequences can occur for telling the truth.
Applicant is a supportive, kind, and caring friend.9
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.
After any decision, the losing party has a right to appeal the case to the Defense Office of Hearings and10
Appeals  Appeal Board. The Appeal Board’s review authority is limited to determining whether three tests are
met:
E3.1.32.1. The Administrative Judge’s findings of fact are supported by such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion in light of
all the contrary evidence in the same record. In making this review, the Appeal Board shall
give deference to the credibility determinations of the Administrative Judge:
E3.1.32.2. The Administrative Judge adhered to the procedures required by E.O. 10865
(enclosure 1) and this Directive: or
E3.1.32.3. The Administrative Judge’s rulings or conclusions are arbitrary, capricious, or
contrary to law.
The Appeal Board does not conduct a “de novo determination”, recognizing that its members have
no opportunity to observe witnesses and make credibility determinations. The Supreme Court in United States
v. Raddatz, 447 U.S. 667, 690 (1980) succinctly defined the phrase “de novo determination”:
[This legal term] has an accepted meaning in the law. It means an independent determination
of a controversy that accords no deference to any prior resolution of the same controversy.
Thus, in Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 23 [(1974)], the Court
had occasion to define “de novo proceeding” as a review that was “unfettered by any
prejudice from the [prior] agency proceeding and free from any claim that the [agency’s]
determination is supported by substantial evidence.” In United States v. First City National
Bank, 386 U.S. 361,368 [(1967)], this Court observed that “review de novo” means “that the
court should make an independent determination of the issues” and should not give any
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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.
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.  10
special weight to the [prior] determination of the administrative agency.
(Internal footnotes omitted). See ISCR Case No. 07-10396 (App. Bd., Oct. 2, 2008) and ISCR Case No. 07-
07144 (App. Bd., Oct. 7, 2008). In ISCR Case No. 05-01820 (App. Bd. Dec 14, 2006), the Appeal Board
criticized the administrative judge’s analysis, supporting grant of a clearance for a Peoples Republic of China
related Applicant, and then decided the case itself. Judge W hite’s dissenting opinion cogently explains why
credibility determinations and ultimately the decision whether to grant or deny a clearance should be left to
the judge who makes witness credibility determinations. Id. at 5-7. See also ISCR Case No. 04-06386 at 10-11
(App. Bd. Aug. 25, 2006)(Harvey, J., dissenting) (discussing limitations on Appeal Board’s authority to reverse
hearing-level judicial decisions and recommending remand of cases to resolve material, prejudicial error) and
ISCR Case No. 07-03307 (App. Bd. Sept. 29, 2008). Compliance with the Agency’s rules and regulations is
required. See United States ex. rel. Acardi  v. Shaughnessy, 347 U.S. 260, 268 (1954); Lopez v. FAA, 318
F.3d 242, 247-248 (D.C. Cir 2003); Nickelson  v. United States, 284 F. Supp.2d 387, 390 (E.D. Va.
2003)(explaining standard of review).
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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
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 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.
AG ¶ 25 describes conditions that could raise a security concern and may be
disqualifying:
(a) any drug abuse (see above definition); and 
(c) illegal drug possession, including cultivation, processing, manufacture,
purchase, sale, or distribution; or possession of drug paraphernalia.
Applicant used marijuana, an illegal drug, throughout her college years and
occasionally in high school. Appellant gave her boyfriend money to purchase marijuana,
but did not actually purchase it herself.  Because she smoked marijuana, she
possessed it. The government has established its case under these disqualifying
conditions.
AG ¶ 26 provides conditions that could mitigate security concerns:
(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;
(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 no longer associates with her college boyfriend and her college friends
with whom she generally used marijuana, except for her best friend. She is no longer in
the college environment, but living at home with her parents and working in the
business world, where marijuana use is not part of her everyday environment. She has
not used marijuana in more than 13 months and does not intend to use it in the future.
Her best friend also stopped using marijuana after college. Finally, she signed a
statement of intent with automatic revocation of a clearance for any violation. She
changed her lifestyle and looks forward to developing her career in the business world.
She does not feel the need to spend her time smoking marijuana. She has mitigated the
government’s security concerns under AG ¶ 26(b). Because she has changed her daily
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environment from college student life to the business world, her college use of
marijuana is unlikely to recur and does not cast doubt on the individual's current
reliability, trustworthiness, or good judgment. AG ¶ 26(a) has some applicability.
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) 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. The decision to grant or deny a security
clearance requires a careful weighing of all relevant factors, both favorable and
unfavorable. In so doing, an administrative judge must review all the evidence of record,
not a single item in isolation, to determine if a security concern is established and then
whether it is mitigated. A determination of an applicant’s eligibility for a security
clearance should not be made as punishment for specific past conduct, but on a
reasonable and careful evaluation of all the evidence of record to decide if a nexus
exists between established facts and a legitimate security concern. 
In reaching a conclusion, I considered the potentially disqualifying and mitigating
conditions in light of all the facts and circumstances surrounding this case. As a high
school student, Applicant experimented with smoking marijuana on a few occasions.
When she entered college, she began smoking marijuana on a more regular basis,
sometimes out of boredom. (See AG & 2(a)(4).) As a college senior, Applicant decided
to reduce her marijuana use and to quit upon graduation. She realized that she would
be entering the business world and this conduct needed to cease. She showed maturity
by making this decision. She no longer associates with most of her college friends as
their lives and residences are different. She continues to spend time with her best
friend, who also stopped smoking marijuana now that she is out of college. Applicant
also signed the automatic revocation, knowing that she can lose her clearance and job if
she returns to smoking marijuana, another sign of her maturity. Her testimony about her
decision to stop smoking marijuana and to focus on her career and family is credible.
She made decisions in college which brought her to a hearing. She, however, has made
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important decisions in the short time since her college graduation which reflect a good
level of maturity and a move in the proper direction for the rest of her life.
Overall, the record evidence leaves me without questions or doubts as to
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I
conclude Applicant mitigated the security concerns arising from her past drug use. 
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
Conclusion
In light of all of the circumstances presented by the record in this case, it is
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
                                                              
MARY E. HENRY
Administrative Judge