The government submitted five items in support of its contentions.1
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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 09-01524
SSN: ---------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Gina L. Marine, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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LYNCH, Noreen, Administrative Judge:
Applicant submitted his Security Clearance Application (SF 86) on October 24,
2008. On November 19, 2009, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) detailing the security concerns under Guidelines
H and E 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, answered the allegations, and
requested a decision on the record in lieu of a hearing. Department Counsel submitted
the Government’s written case on November 23, 2009.  Applicant received a complete1
file of relevant material (FORM) on November 30, 2009, and was provided the
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opportunity to file objections and submit material to refute, extenuate, or mitigate the
Government’s case. Applicant submitted a response to the FORM in a timely manner.
Based upon a review of the record, pleadings, and exhibits, eligibility for access to
classified information is denied.
Findings of Fact
In his Answer, Applicant admitted the factual allegations in ¶¶ 1.a and 1.b in the
SOR. He also admitted the allegations in ¶ 2.a. Applicant included a statement of intent
with his Answer. In that statement, he promised not to “abuse any drugs in the future”
and understood that a violation would result in the revocation of his security clearance
(Item 3).
Applicant is a 43-year-old employee of a defense contractor. He graduated from
high school and attended a technical college for two years. He obtained a degree in
electrical technology in 1987 (Item 1). He is married with one child. He has worked in a
professional capacity in the electrical engineering field for his entire career. He has
been with his current employer since 1998.
Applicant first used marijuana while attending high school in 1981. Applicant
claims he stopped using marijuana after graduating from high school “for a long period
of time.” He admitted that he last used marijuana in December 2008 on his security
clearance application. 
In November 2001, Applicant was drinking at home. He proceeded to drive to a
store to get something to eat. The police stopped Applicant for driving on the wrong side
of the road. Applicant was arrested for driving while intoxicated (DWI). While he was
waiting for his court date on his DWI, Applicant was stopped for another incident (Item
5). 
In December 2001, Applicant took a demerol tablet to get “high” at home. He
then drove to get something to eat. Applicant drove into a tree and left the scene. After
driving erratically, Applicant was stopped by the police. He failed a field sobriety test but
passed the breathalyzer test. Applicant was found guilty of operating a motor vehicle
under the influence of demerol. He served 20 days home confinement, completed
community service, and was fined approximately $1,000. The court ordered Applicant to
submit to substance abuse screening for one year (Item 5).
Applicant completed his security clearance application in October 2008. He
reported using marijuana illegally from April 2008 until he signed his security clearance
application. He estimated his use was 25-30 times. He described his use as twice a
week at home when he was alone. Applicant was employed with a defense contractor at
the time (Item 4).
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Applicant summarized in his answer to the FORM that he was not addicted to
marijuana and therefore, he did not seek therapy. He stated that he had no difficulty
stopping his marijuana use. He was not a frequent user of marijuana and that he intend
not to use it again. He referred to his expertise in the workplace. He also stated that he
does not want to put his family in danger by making foolish mistakes. Applicant
acknowledged that his marijuana use has been “nothing but trouble.”
In December 2008, Applicant was interviewed by the Office of Personnel
Management (OPM) investigator (Item 5). He admitted a history of marijuana use during
his employment for a defense contractor. He told the investigator that he used
marijuana after completing his October 2008 security clearance application and three
days before his interview with the investigator. He claimed that the illegal use of
marijuana did not affect his job, but if it would affect his employment status, he would
stop and seek drug counseling (Item 5).
In May 2009, Applicant responded to DOHA interrogatories. He stated that he
intended to stop using marijuana. He explained that after his December 2008 interview,
he had been young and foolish and acted in a reckless manner but is now a responsible
person (Item 5).
Applicant is described as an excellent coworker and a mentor in the company.
He has the knowledge and experience of a veteran of the trade. He is a dedicated
employee and family man. He is dependable and responsible.
Applicant’s brother described him as an honest and hard-working individual who
has made sacrifices for others throughout his life. He praised Applicant for his honesty
in reporting the illegal use of marijuana on his security clearance application. He
believes Applicant realizes his mistakes and has moved forward with his life and left his
marijuana use behind. 
Applicant’s employee performance reviews for the past ten years consistently
rate him as fully satisfactory. He is an asset to the company, and plays a vital role in the
performance of the company mission. His supervisor describes him as a safe and
experienced worker. His productivity, knowledge, and cooperation are excellent.
.
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 required 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 overarching
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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
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. 
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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 his ilegal use of marijuana, in varying amounts and frequency,
spanning a period from about 1981 until December 2008. He possessed marijuana
before he used it. He claimed that he stopped using marijuana for a long period after
high school. Under AG ¶ 25(g) “any illegal drug use after being granted a security
clearance” is a disqualifying condition. Applicant illegally used marijuana after
completing his October 2008 security clearance application. He used marijuana during
the time that he was employed by a federal contractor. AG ¶¶ 25(a) and 25(c) apply;
however, 25(g) does not apply because his security clearance was not approved at the
time he used marijuana. 
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
on the individual=s current reliability, trustworthiness, or good judgment.@ Applicant=s
pattern of illegal drug use (marijuana) continued from a young age to adult maturity. He
was a mature adult working for a defense contractor and violating the drug policy when
he continued to use illegal drugs. He used marijuana after completing his 2008 security
clearance application. This shows poor judgment and lack of trustworthiness. I do not
find that this mitigating condition applies.  
Under AG ¶ 26(b), it may be mitigating where there is 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 in November 2009. He reiterated his
promise not to use marijuana in the future. He claimed that his last use was just before
his OPM interview in December 2008. Applicant’s most recent use of marijuana
included frequencies he described as twice a week. Moreover, he used it during his long
employment with a defense contractor and after his arrests which included a year of
court-ordered substance abuse screening. I do not find his statement of intent or period
of abstinence to be sufficient for mitigation under this condition. None of the other
mitigating conditions fully apply.
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
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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.
With respect to the personal conduct concerns involving Applicant’s illegal use of
marijuana from 1981 until December 2008, while holding a position with a defense
contractor and after completing his 2008 security clearance application, the pertinent
disqualifying conditions are AG ¶ 16(d)(3), “a pattern of rule violations,” and AG
16(e)(1), “personal conduct, or concealment of information about ones’s conduct, that
creates a vulnerability to exploitation, manipulation, or duress, such as (1) engaging in
activities which, if known, may affect their personal, profession, or community standing.”
Certainly, Applicant’s illegal use of marijuana during his employment violates rules and
regulations, and a lengthy history of such problems is conduct a person might want to
conceal, as it adversely affects a person’s professional and community standing.
The mitigating condition outlined in AG 17(e), “the individual has taken positive
steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress”
applies to Applicant’s use of marijuana. The government, Applicant’s security officials
and supervisor are aware of these problems. He disclosed the information on his
security clearance application. He has taken positive steps of disclosure, eliminating any
vulnerability to exploitation, manipulation, or duress. I do not believe Applicant would
compromise national security to avoid public disclosure of these problems. Any
personal conduct security concerns, pertaining to illegal drug use, are dealt with more
throughly under Guideline H in this decision. Applicant deserves credit in the whole
person analysis for candidly admitting his recent illegal use of marijuana in his security
clearance application. Personal conduct security concerns are mitigated. 
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 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
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.
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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 and conclude that they are not
sufficient to overcome the government’s case. Applicant is a mature, educated
professional. He has a wife and a son to support. He served in a professional capacity
for his entire career. He used marijuana during his time with his current employer. He
never felt there was a problem. He continued to use marijuana after his court-ordered
substance abuse screening for one year in 2001. His last use marijuanana was in
December 2008. 
Applicant completed his 2008 security clearance application and disclosed his
use of marijuana and his arrests. He told the interviewer in 2008 that he used marijuana
three days prior to the interview. He was candid during the security clearance process
and acknowledged his mistakes. He has not obtained any drug counseling and did not
believe that the use of marijuana affected his job performance. Indeed, he has a very
good record of employment. He has character references who recommend him. He
intends to stop using any illegal drug in the future. His most recent marijuana, use given
the history of illegal use, despite his statement of intent, does not provide sufficient
mitigation to carry his burden of proof under Guideline H or the whole person concept.
Overall, the record evidence leaves me with questions and doubts as to
Applicant’s eligibility, judgment, and suitability for a security clearance. For all the
reasons discussed above, I conclude Applicant has not mitigated the security concerns
arising from his drug involvement. He has mitigated the security concerns under
personal 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: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: Against Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraph 2.a: For Applicant
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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.
                                              
_________________
Noreen A. Lynch
Administrative Judge