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                                                            DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 09-01510 
                                                            )                                 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: James F. Duffy, Esquire, Department  Counsel 
For Applicant: Pro Se 
 
 
 
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Decision 
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ANTHONY, Joan Caton, Administrative Judge: 
 
 After a thorough review of the written record in this case, I conclude that 
Applicant failed to rebut or mitigate the government’s security concerns under Guideline 
H, Drug Involvement. His eligibility for a security clearance is denied. 
 
Applicant completed and certified an Electronic Questionnaire for Investigations 
Processing (e-QIP) on November 7, 2008. On July 31, 2009, the Defense Office of 
Hearings and Appeals (DOHA) issued Applicant a Statement of Reasons (SOR) 
detailing security concerns under Guideline H, Drug Involvement. 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.  
  
 In his Answer to the SOR, dated August 10, 2009, Applicant requested a 
decision on the record in lieu of a hearing. The government compiled its File of Relevant 
 
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Material (FORM) on September 17, 2009. The FORM contained documents identified 
as Items 1 through 9. By letter dated September 22, 2009, DOHA forwarded a copy of 
the FORM to Applicant, with instructions to submit any additional information and/or 
objections within 30 days of receipt. Applicant received the file on October 8, 2009, and 
he provided additional information in response to the FORM, which DOHA received on 
October 14, 2009. On October 22, 2009, the case was assigned to me for a decision. 
Without objection, I admitted to the record Applicant’s one-page response to the FORM. 
 
Findings of Fact 
 
 The SOR contains five allegations of disqualifying conduct under Guideline H, 
Drug Involvement (SOR ¶¶ 1.a. through 1.e.). In his Answer to the SOR, Applicant 
admitted the five Guideline H allegations.  Applicant’s admissions are entered herein as 
findings of fact.  (Item 1; Item 4.) 
 
 Applicant is 27 years old, never married, and employed as a software 
engineer/security researcher by a government contractor. In 2005, he received a 
Bachelor of Science degree in Computer Science. He has been employed part-time and 
full-time in information technology since about 2001. (Item 5.) 
 
 On November 7, 2008, Applicant completed and signed an e-QIP. Section 24a of 
the e-QIP asks the following question: “Since the age of 16 or in the last 7 years, 
whichever is shorter, have you illegally used a controlled substance, for example, 
marijuana, cocaine, crack cocaine, hashish, narcotics (opium, morphine, codeine, 
heroin, etc.), amphetamines, depressants (barbiturates, methaqualone, tranquilizers, 
etc.), hallucinogenics (LSD, PCP, etc.), or prescription drugs?” (Item 5; emphasis in 
original.) 
 
 Applicant answered “yes” to Question 24a and provided additional information. 
He stated that he used the prescription drug adderall illegally approximately six times 
from January 2000 to October 2008. He also stated that he used prescription drugs 
containing hydrocodone illegally approximately 30 times from January 2002 to October 
2008. Additionally, Applicant stated he had illegally used a prescription drug muscle 
relaxer, not further identified, once in August 2008. (Item 5 at 28.) 
 
 Applicant also acknowledged the illegal use of the controlled substance 
marijuana “numerous” times between January 1998 and September 2008. In response 
to Question 24a, he added the following information: “I’ve smoked marijuana numerous 
times throughout my life, but would never describe the use as chronic, more as casual. I 
would probably average the usage out to be 1 time per month for the last 10 years 
(probably less).” (Item 5 at 28.) 
 
 In his response to Question 24a, Applicant also reported illegal use of the 
controlled substance cocaine approximately 20 times between January 2001 and 
August 2007. He added the following information: “I’m going with a higher number than 
 
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times I can actually recall. I first tried [c]ocaine in college and have done it a few times 
since then.” (Item 5 at 28-29.) 
 
 Applicant was interviewed about his illegal drug use by an authorized investigator 
from the U.S. Office of Personnel Management (OPM) on December 30, 2008. In the 
interview, as summarized by the investigator, Applicant confirmed the drug usage he 
had listed on his e-QIP in response to Question 24a. He denied purchasing any of the 
prescription drugs he used illegally. He stated that the drugs were provided to him by 
friends in social settings. He reported that adderall made him “stay awake, hyper and 
jittery”; that he used hydrocodone about twice a year in social settings “to have fun and 
feel good” and that it made him “feel great”; and that his one-time use of a muscle 
relaxer in August 2008 was experimental and “did nothing for him and had no effect on 
him.” (Item 6 at 3-4.) 
 
 In the interview with the OPM investigator, Applicant also confirmed that he 
smoked marijuana and snorted cocaine, as listed in his responses to Question 24a. He 
denied any dependency on illegal drugs, any treatment for drug abuse, and ever testing 
positive for illegal drug use. He stated that his family and friends knew of his illegal drug 
use. He claimed that his illegal drug use had no effect on his personal life or 
professional career. He also stated he had no intention of using illegal drugs in the 
future. In a sworn and notarized response to DOHA interrogatories on March 25, 2009, 
Applicant confirmed that the investigator’s summary of their interview on December 30, 
2008, accurately reflected the information he had provided to the investigator during the 
interview. (Item 6, 3-6.) 
 
 I take administrative notice that the controlled substances marijuana and cocaine 
have been identified by the National Institute on Drug Abuse (NIDA) as commonly 
abused drugs. NIDA lists the intoxication effects of marijuana as “euphoria, slowed 
thinking and reaction time, confusion, impaired balance and coordination/cough, 
frequent respiratory infections; impaired memory and learning; increased heart rate, 
anxiety; panic attacks; tolerance, addiction.” NIDA identifies cocaine as a stimulant and 
lists the following intoxication effects and potential health consequences for those who 
use cocaine: “rapid breathing/tremor, loss of coordination; irritability, anxiousness, 
restlessness, delirium, panic, paranoia, impulsive behavior, aggressiveness, tolerance, 
addiction, psychosis.” (Item 7 at 1-2.) 
 
 I also take administrative notice that the stimulant adderall is prescribed for use 
in treating the hyperactivity condition known as attention-deficit disorder and that 
hydrocodone is an opiate compound prescribed to suppress coughs and to alleviate 
moderate to moderately severe pain. The misuse of these prescription drugs can have 
severe or fatal consequences. (Item 8; Item 9.) 
  
 Applicant provided the following statement in response to the FORM: 
 
 I feel that I am an excellent candidate for [a] security clearance and 
would like reconsideration. I deal not only with [deleted] trade secrets, but 
 
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those of many other large companies and governments on a daily basis. 
Handling of secure information is a large part of my job and requires me to 
be an extremely trustworthy individual. I can provide multiple character 
references which can testify to my sincerity regarding national, 
international and corporate security practices. Although my drug history 
may be beyond what you consider reasonable, I have never had a 
problem with substance abuse of any kind, nor intend to experiment in the 
future. I feel that I could be of great assistance to the United States 
government and help secure our technological infrastructure if given this 
clearance. In closing, I would like to request a re-examination of my case. 
 
(Applicant’s Response to FORM at 1.) 
 
                             Policies 
 
The U.S. Supreme Court has recognized the substantial discretion of the 
Executive Branch in regulating access to information pertaining to national security, and 
it has emphasized that “no one has a ‘right’ to a security clearance.” Department of the 
Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the 
authority to control access to information bearing on national security and to determine 
whether an individual is sufficiently trustworthy to have access to such information. Id. at 
527. The President has authorized the Secretary of Defense or his designee to grant an 
applicant’s eligibility for access to classified information “only upon a finding that it is 
clearly consistent with the national interest to do so.”  Exec. Or. 10865, Safeguarding 
Classified Information within Industry § 2 (Feb. 20, 1960), as amended and modified.    
 
 When evaluating an applicant’s suitability for a security clearance, an   
administrative judge must consider the revised adjudicative guidelines (AG). These 
guidelines are not inflexible rules of law. Instead, recognizing the complexities of human 
behavior, the administrative judge applies these guidelines in conjunction with the 
factors listed in the adjudicative process. The administrative judge’s overarching 
adjudicative goal is a fair, impartial, and commonsense 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 
 
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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 
 
 Use of an illegal drug or misuse of a prescription drug can raise questions about 
an individual’s reliability and trustworthiness because it may impair judgment and 
because it raises questions about a person’s ability or willingness to comply with laws, 
rules, and regulations. AG ¶ 24(a) defines drugs as “mood and behavior altering 
substances.” The definition of drugs includes “(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 (2) inhalants and other similar substances.” AG  ¶ 24(b) defines drug abuse as “the 
illegal use of a drug or use of a legal drug in a manner that deviates from approved 
medical direction.” 
 
The record shows that Applicant admitted the illegal use of marijuana, with 
varying frequency, for approximately 10½ years, from January 1998 to at least 
September 2008. He admitted the illegal use of cocaine, with varying frequency, for 
approximately 6½ years, from approximately January 2001 to at least August 2007. 
From January 2000 to at least October 2008, he used the prescription drug adderall, 
without a prescription, From January 2002 to at least October 2008, he used the 
prescription drug hydrocodone, without a prescription. He also used a muscle relaxer 
drug without a prescription once in August 2008.   
 
The record establishes that Applicant, who is now 27 years old, used multiple 
drugs illegally and abused prescription drugs during a span of over ten years. This 
conduct occurred during his adolescence and throughout his college years. It continued 
 
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even after he graduated from college in 2005, and after he began his professional career. 
As recently as August 2008, as a 26-year-old adult, he experimented with and used a 
prescription muscle relaxer drug illegally. This conduct casts doubt on his reliability, 
trustworthiness, and good judgment. It also raises security concerns about his ability or 
willingness to comply with laws, rules, and regulations. I conclude that Applicant’s illegal 
drug use and illegal use of prescription drugs raises security concerns under AG ¶¶ 25(a) 
and 25(c). AG ¶ 25(a) reads: “any drug abuse [as defined at AG ¶ 24(b)].” AG ¶ 25(c) 
reads: “illegal drug possession, including cultivation, processing, manufacture, purchase, 
sale, or distribution; or possession of drug paraphernalia.” 
 
Two Guideline H mitigating conditions might apply to the facts of Applicant’s 
case.  If Applicant’s drug use happened so long ago, was so infrequent, or happened 
under such circumstances that it is unlikely to recur or does not cast doubt on his 
current reliability, trustworthiness, or good judgment, then AG ¶ 26(a) might be 
applicable in mitigation. If Applicant demonstrated an intent not to abuse any drugs in 
the future by disassociation from drug-using associates and contacts, changing or 
avoiding the environment where drugs were used, abstaining from drug use for an 
appropriate period, or signing a statement of intent with the automatic revocation of his 
security clearance for any violation, then AG ¶ 26(b) might be applicable.  
 
From 1998 to 2008, Applicant’s illegal drug use was on-going and frequent. The 
record shows that Applicant’s illegal drug use and abuse of prescription drugs 
continued until September and October of 2008, a short time before he completed and 
signed his e-QIP in November 2008. Applicant’s illegal drug use and prescription drug 
abuse was a long-term lifestyle choice.  
 
When Applicant was interviewed by an authorized OPM investigator in December 
2008, he asserted that he had no intention to use illegal drugs in the future. However, 
he provided no information to demonstrate his intent: he failed to provide evidence that 
he had abstained from drug use for an appropriate period; that he had disassociated 
from those with whom he had used drugs in the past; or that he had changed his 
conduct to avoid environments where drugs are used. Moreover, he failed to provide a 
signed statement of intent with an automatic revocation of his security clearance for any 
future illegal drug use or abuse of prescription drugs. Absent evidence of demonstrated 
intent not to abuse any drugs in the future, I conclude that AG ¶¶ 26(a) and 26(b) do not 
apply in mitigation to the security concerns raised by the facts in Applicant’s case.  
 
Whole Person Concept 
 
 Under the whole person concept, an administrative judge must evaluate an 
applicant’s eligibility for a security clearance by considering the totality of an applicant’s 
conduct and all relevant 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 
 
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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. While Applicant was candid in 
revealing his drug abuse when he completed his e-QIP, he failed to demonstrate that he 
would not return to drug use in the future. In his statement in response to the FORM, he 
failed to recognize or acknowledge that his long-term drug use may have had some 
deleterious effects on his judgment, trustworthiness, or reliability. Additionally, while he 
expressed an intent not to use illegal drugs in the future, he failed to identify specific 
actions to demonstrate his intent. 
 
Overall, the record evidence leaves me with questions and doubts as to 
Applicant’s eligibility and suitability for a security clearance. For these reasons, I 
conclude Applicant failed to mitigate the security concerns arising from his prolonged 
and relatively recent involvement with illegal drugs and the illegal use of prescription 
drugs. 
 
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 
 
  Subparagraphs 1.a. through 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 national security to grant Applicant eligibility for a security 
clearance.  Eligibility for access to classified information is denied. 
                                               
_____________________________ 
Joan Caton Anthony 
Administrative Judge