KEYWORD: Guideline H
DIGEST: The Judge’s application of Guideline 26(b) ignores contrary record evidence
(Applicant’s prior equivocal statements regarding possible future drug use).  The Judge drew
improper favorable inferences from the fact that none of Applicant’s character witness’s knew of
her drug use.  Favorable decision remanded. 
CASENO: 09-02839.a1
DATE: 05/17/2010
  
DATE: May 17, 2010
In Re:
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Applicant for Security Clearance
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ISCR Case No. 09-02839
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
Richard A. Stevens, Esq., Department Counsel
FOR APPLICANT
Samuel Bluck, Esq.
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On September 15, 2009, DOHA issued a statement of reasons (SOR) advising Applicant
The Judge does not include the date of the application for this earlier clearance in her findings of fact, but there1
is record evidence which indicates it was in 1985 and was granted by a federal agency (Government Exhibit 1).  
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of the basis for that decision—security concerns raised under Guideline H (Drug Involvement) of
Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).  Applicant
requested a hearing.  On February 23, 2010, after the hearing, Administrative Judge Mary E. Henry
granted Applicant’s request for a security clearance. Department Counsel timely appealed pursuant
to the Directive ¶¶ E3.1.28 and E3.1.30.
Department Counsel raises the following issues on appeal: (a)  whether the Judge’s
application of Drug Involvement Mitigating Condition 26(b) is arbitrary, capricious, and unsupported
by the record evidence; and (b) whether the Judge’s “whole-person” analysis is arbitrary, capricious,
contrary to law, and unsupported by the record evidence.  For the following reasons, the Board
remands the Judge’s favorable security clearance determination.
The Judge made the following findings of fact: Applicant sporadically used marijuana
beginning at age 14.  She admitted her early marijuana use when completing an application for an
earlier security clearance.  When filling out her most recent security clearance application in1
February 2009, Applicant self-reported drug use in the seven years prior to February 2009.  She
indicated that she used marijuana one or two times a year and “very infrequently” during this time.
Applicant met with a security clearance investigator in March 2009.  Applicant explained that she
occasionally took one or two “tokes” on a marijuana cigarette when she attended parties at the home
of a friend.  She never smoked an entire marijuana cigarette, and she never attended the parties for
the purpose of smoking marijuana.  Rather, if offered, she might or might not smoke the marijuana.
Additionally, the investigator noted that Applicant did not have intentions to use marijuana in the
future but could not say she would not.  At the hearing, Applicant explained that when the
investigator asked her about future marijuana use, the question was fairly vague and she answered
it similarly.  The investigator asked, “well, do you think that you’ll ever do it again?” and Applicant
answered, “well, I don’t know.  I don’t think so.”
The Judge also found: Applicant decided to stop using marijuana as it is not a smart move
on her part.  She does not want her marijuana use to affect her career or job.  Applicant last used
marijuana at a friend’s holiday party between Thanksgiving and Christmas 2008.  She has decided
not to associate with this friend anymore.  Applicant prepared and signed a Statement of Intent on
September 25, 2009, indicating she would not use drugs in the future.  She further consented to
automatic revocation of her clearance if she did.  She has taken three random drug tests between
September 24, 2009 and December 10, 2009.  The results of these tests were negative.  Co-workers
knew Applicant smoked marijuana in the past and still expressly recommended her for a security
clearance without reservation.  Nine other letters of recommendation express confidence in
Applicant’s professionalism and honesty.  These individuals did not indicate that they had any
knowledge that she used marijuana and that this use was the reason for her security clearance issues.
On her own initiative, Applicant sought a mental health evaluation, which was performed on October
“[A] demonstrated intent not to abuse any drugs in the future. . . .”  The Board notes that the actual text of the2
Judge’s decision indicates that the case is mitigated under AG ¶ 26(d).  This is an obvious typographical error, given the
context in which the Judge concludes that the case has been mitigated, and given the fact that the Judge explicitly rejected
the application of AG ¶ 26(d) earlier in her analysis.
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27, 2009.  The mental health professional concluded that Applicant did not have any mental health
issues and that her responses did not show current or past substance abuse problems.      
The Judge reached the following conclusions: Because of Applicant’s marijuana use, the
government has established a prima facie case under Guideline H.  Applicant stopped her infrequent
use of marijuana about 14 months ago, which is not in the distant past, but the near past.  Applicant
signed a statement of intent not to use marijuana or illegal drugs in the future.  She has agreed to the
revocation of her security clearance should she do so.  In light of her honesty, Applicant’s stated
intent is credible.  Given she has credibly demonstrated she is a person of her word, her agreement
not to use any illegal drugs in the future is reliable and credible.  Applicant no longer associates with
her friend who permits marijuana at parties and no longer attends social functions at her friend’s
house.  She has not smoked marijuana in over 14 months.  Applicant has mitigated the government’s
security concerns under AG ¶ 26(b).   Under the whole person concept, the Judge concluded that2
Applicant smoked marijuana infrequently and sporadically in recent years and even less in past years.
Applicant’s honesty is not in question in this case.  She reported her marijuana use and made no
attempt to hide it.  When she completed her security clearance application, she reconsidered her
marijuana use and decided to stop.  Applicant is highly respected at her workplace and by her co-
workers.  There is little likelihood that her infrequent past use of marijuana can be used to coerce,
pressure, or exploit her to release classified information. 
Department Counsel argues that Applicant’s professed intent not to abuse drugs in the future
falls short of a demonstrated intent not to use them, such demonstrated intent being a requirement
for the application of AG ¶ 26(b).  Department Counsel also argues that the Administrative Judge’s
acceptance of Applicant’s assertion that she will not use illegal drugs in the future ignores record
evidence of previous equivocal statements that she is uncertain whether or not she will use drugs in
the future.  Additionally, Department Counsel asserts that by ignoring Applicant’s long history of
sporadic marijuana use, the lack of a track record of sustained abstinence and Applicant’s failure to
proclaim definitively an intent not to use in the future, the Judge has substituted a credibility
determination for record evidence.  Department Counsel’s arguments have merit.
The Judge concluded that in light of the fact that Applicant has credibly demonstrated that
she is a person of her word, her agreement to not use any illegal drugs in the future is reliable and
credible.  As Department Counsel points out, the Judge overlooked significant evidence in reaching
that conclusion and in mitigating Applicant’s conduct.  Applicant indicated in her March 2009
interview with the investigator that she had no intention to use marijuana in the future but could not
say she would not.  More importantly, the investigator’s report also indicates that Applicant stated
Government Exhibit 2. This specific and revealing indication of future intent is not mentioned anywhere in the3
Judge’s decision. 
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“if she is attending a party and it’s available and she wants to take a toke she will. ”  This statement3
indicates an intent to use marijuana in the future under the same circumstances in which most of
Applicant’s past use of marijuana as an adult took place.   In June 2009, DOHA sent Applicant a
copy of the statement she made to the investigator.  She was asked to authenticate it, and was given
the opportunity to add additional information.  In her response, dated June 30, 2009, Applicant
verified that the investigator’s written summary accurately reflected the information that she
provided.  She also agreed to adopt the investigator’s summary as accurately reflecting the
information provided in the interview and, by doing so, consented to the admission of the
investigator’s summary of the interview into evidence at any hearing held to determine her suitability
to hold a security clearance.  Applicant did not challenge the accuracy of the investigator’s report
during her hearing testimony.           
In her answer to her SOR in September 2009, Applicant indicated that she intended to abstain
from all future drug use.  On the same date, Applicant signed a separate letter of intent expressing
an intent never to use illegal drugs and/or marijuana again.  An important part of Applicant’s
testimony at the hearing acknowledged the difference between her statements to the investigator in
March 2009 and the statements made subsequent to her receipt of the SOR regarding her statements
about future intent to use drugs.  The Judge does not refer to this conflict in the analysis portion of
her decision, merely stating that Applicant’s agreement not to use any illegal drugs in the future is
“reliable and credible.”  The Board has held that while a Judge’s credibility determination is entitled
to deference, such an assessment does not relieve the Judge of the obligation to decide how much
weight can properly be given to an Applicant’s testimony and other statements in light of the record
evidence as a whole.  See, e.g., ISCR Case No. 03-02486 at 7 (App. Bd. Aug. 31, 2004), citing
Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985).  The credibility of Applicant’s post-SOR
statements and hearing testimony of changed intent toward the future use of drugs is a critical aspect
of the case, and by not squarely addressing it the Judge committed error.  Given the self-serving
nature of Applicant’s statements of future intent starting in September 2009, as well as record
evidence of Applicant’s earlier marijuana use after being required to reveal it on an earlier clearance
application, it is not reasonable for the Judge merely to accept the credibility of statements of future
intent without a clear explanation of why she found it credible.  See, e.g., ISCR Case No. 07-10804
at 4 (App. Bd. Jun. 19, 2008).     
Department Counsel also argues that, both in assessing Applicant’s credibility and analyzing
the case under the whole-person concept, the Judge placed too much reliance on the written
statements of character references.  In her decision, the Judge concluded that the authors of these
letters expressed the same level of confidence, trust, reliability, respect, professionalism, and honesty
in her as [Applicant’s] hearing witnesses.  A reading of the Judge’s decision as a whole reveals that
the Judge assigned considerable weight to these character statements.  However, the Judge
specifically acknowledged that none of the authors of the written character statements had any
awareness of Applicant’s past marijuana use, or the government’s concern about her involvement
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with drugs.  Department Counsel correctly points out that the Judge failed to consider or comment
upon the effect this lack of knowledge might have had upon the character references’ assessment of
Applicant’s character, integrity and judgment.  The Board has held that it is error for a Judge to rely
on character letters that do not reveal any knowledge of the underlying issues in a case to mitigate
security concerns based on those same issues.  See, e.g., ISCR Case No. 01-03132 at 4 (App. Bd.
Aug. 8, 2002).  Thus, the Judge’s substantial reliance on these character statements to mitigate the
government’s case against Applicant is significantly undercut by the statement authors’ lack of
knowledge about the case.    
Additionally, Department Counsel asserts the Judge drew an improper inference from the fact
that none of the character witnesses indicated knowledge about Applicant’s marijuana use and then
improperly concluded that none of the character references had ever observed her using illegal drugs
at work or saw her at work showing the effects of drug use.  Given the fact that the SOR did not
allege impaired judgment at work or use of drugs while at work, Department Counsel correctly
asserts that the Judge missed the point of the character witnesses’ lack of knowledge by using it to
speculate about the parameters of Applicant’s drug use in a setting not made relevant by the
allegations in the SOR, instead of considering such lack of knowledge when evaluating the
usefulness of the references’ unqualified opinions about Applicant’s personal integrity and judgment.
To the extent the Judge relied on this speculation about lack of workplace drug use to bolster her
overall analysis of mitigation, such reliance was error. 
The Board remands the case to the Judge with instructions to consider the conflicts in the
evidence–specifically the Applicant’s statement regarding possible future use at parties–when
evaluating Applicant’s credibility and her more recent stated intent not to use marijuana or other
drugs in the future.  After taking these matters into consideration, the Judge should then address the
viability of AG ¶26(b) as a basis for mitigation. Additionally, the Judge is instructed to evaluate the
effect of the character witnesses’ lack of knowledge about Applicant’s marijuana use when weighing
the relative importance of the character witness statements to the overall case.  The character
witnesses’ lack of knowledge as to Applicant’s marijuana use and the government’s corresponding
security concern is not to be used to create inferences favorable to Applicant. 
Order
The Judge’s favorable security clearance decision is REMANDED in accordance with the
decision above.
 
 
Signed: Michael Y. Ra’anan   
Michael Y. Ra’anan
Administrative Judge
Chairperson, Appeal Board
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Signed: Jeffrey D. Billett         
Jeffrey D. Billett
Administrative Judge
Member, Appeal Board
Signed: Jean E. Smallin            
Jean E. Smallin
Administrative Judge
Member, Appeal Board