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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)         ISCR Case No. 09-06417
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Paul M. DeLaney, Esquire, Department Counsel
For Applicant: Pro se
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Decision
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MASON, Paul J., Administrative Judge:
Applicant’s use of a variety of illegal drugs and legal drugs in a manner that
deviates from approved medical direction, from 2002 through September 2009, has not
been mitigated. Eligibility for access to classified information is denied. 
Statement of the Case
Applicant submitted her Security Clearance Application (SCA, Item 5) on April
11, 2009. She was interviewed by an investigator from the Office of Personnel
Management (OPM) on June 2, 2009. That interview appears in her Answers to
Interrogatories (Item 6) that were signed and notarized on November 11, 2009. The
adjudicators for the Defense Office of Hearings and Appeals (DOHA) could not find it
was clearly consistent with the national interest to grant Applicant access to classified
information. On February 16, 2010, DOHA issued Applicant a Statement of Reasons
(SOR) detailing security concerns under drug involvement (Guideline H). The action
was taken pursuant to Executive Order 10865, Safeguarding Classified Information
within Industry (February 20, 1960), as amended; Department of Defense Directive
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5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2,
1992), as amended (Directive); and the adjudicative guidelines (AG).
Applicant provided her answer to the SOR on March 10, 2010. She requested a
decision be made on the record in lieu of a hearing. A copy of the Government’s File of
Relevant Material (FORM, the Government’s evidence in support of the allegations of
the SOR) was sent to Applicant on April 7, 2010. She received the FORM on April 13,
2010, and provided her 17-page response to the FORM on May 11, 2010. Department
Counsel indicated on May 14, 2010, he had no objection to the response, and it is now
a part of the record for my review. The case file was assigned to me on May 18, 2010. 
Findings of Fact
The SOR contains 13 allegations under drug involvement. Applicant admitted
SOR 1.a through 1.f, and 1.h through 1.k. She denied 1.g, 1.l and 1.m. Applicant’s
admissions are included in the following Findings of Fact. 
Applicant is 28 years old and single. She has no children. She was cohabitating
with her boyfriend from 2002 until approximately May 2009. She received a Bachelor’s
of Science degree in Electrical Engineering/Computer Engineering in May 2005. She
has been employed as a research engineer by a defense contractor. She seeks a
secret security clearance. She has never had a clearance. 
In her SCA (Item 5), Applicant referenced her boyfriend. She noted that the
relationship began in July 2002. In her response to the FORM, Applicant explained her
boyfriend was a chronic drug user whose usage exceeded Applicant’s use. (Response
to FORM at 7) She purchased her drugs from her boyfriend or his friends who always
had access to drugs. She broke up with her boyfriend in late April 2009. A few months
later her former boyfriend entered a drug rehabilitation program. (Id.) 
Applicant’s interview (Item 6) with an OPM investigator dated June 2, 2009, her
SCA (Item 5), and her response to the FORM, provide a detailed history of her drug use
since April 2002. She used marijuana (SOR 1.a) about 10 to 15 times a month from
April 2002 to September 2009. She also purchased (SOR 1.b) the drug, but did not
provide details. 
Applicant abused vicodin (SOR 1.c) approximately 10 to 15 times a month from
April 2002 to September 2009. She also purchased the drug during the period. (SOR
1.d.) She abused vicodin in June 2009 to help her sleep. She abused aderol (SOR 1.e)
at varying frequency, but claimed she discontinued aderol use in June 2009.
Applicant used cocaine (SOR 1.f) on no more than four occasions between April
2002 and April 2005. Shortly after breaking up with her boyfriend, she used the drug
one additional time in May 2009 during a visit with friends. There is no evidence in the
record indicating that Applicant purchased cocaine. (SOR 1.g)
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Applicant used opium (SOR 1.h) on about 20 occasions between October 2008
and April 2009. Most of her purchases (SOR 1.I) and usage of opium occurred between
early 2009 and late April 2009, after her boyfriend began living with her. Applicant used
psilocybin mushrooms (SOR 1.j) no more than four times between April 2002 and
November 2007. 
Applicant admitted using illegal drugs after submitting her SCA on April 11, 2009.
(SOR 1.k)
SOR 1.l, alleging Applicant sold illegal drugs to friends, is based on her June
2009 interview (Item 6), where she stated she sold drugs to friends when they needed
them. However, Applicant indicated in her May 2010 response to the FORM that the
statement (Item 6) was false. She stated:
I have never sold drugs to my friends; I have however purchased drugs on
behalf of my friends while purchasing drugs for myself (almost exclusively
marijuana). The nature of drug purchasing requires secrecy, in a similar
way the DoD requires secrecy. Sellers prefer to sell to select, vetted,
buyers, so that both parties can mitigate the risk of detection and prevent
untrustworthy entities from obtaining incriminating information. (response
to FORM, at 4)
Applicant also denied SOR 1.m alleging that she intended to continue illegal drug
use if she is not granted a security clearance. In her interview in June 2009 (Item 6),
Applicant indicated she would stop using drugs if she received a security clearance. If
she did not receive a security clearance, she did not feel it would be necessary to stop
using drugs. In her response to the FORM, Applicant believed she may have
misunderstood the word “intent” in the context of the questioning. She explained that if a
situation were to arise where sobriety was designated a requirement, then she would
stop. (Response to FORM, at 6) Even though her decision to use or not use drugs is
guided by personal choice in addition to external pressure, she has decided to abstain
from future drug use. Applicant also noted she was making a concerted effort toward
refraining from all future drug use. (Id.)  
In the last section of Applicant’s response to the FORM, she contends her
character, not her drug history, should be the most important factor in the determination
of whether to grant or deny her security clearance. She does not believe her character
references were interviewed. 
In the Conclusion section of her response to the FORM, Applicant indicated that
her privacy was being invaded by the wording and zero tolerance policies set forth in
the drug involvement guideline (Guideline H). In her view, there seems to be no
distinction drawn by the guideline between the person who uses drugs and the person
who is addicted to drugs. She did not believe her recreational use of drugs to represent
a flaw in her character.
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Character Evidence
In her response to the FORM, Applicant noted she has been working for DoD
projects for the past 10 years while she was in school, and has continued working on
DoD projects with her current employer since February 2005. 
Applicant indicated her reliability is above reproach. Her credit rating is excellent.
She has an outstanding scholastic record. She helps her younger sister and mother pay
bills. Applicant is the director of a coop, and has to make daily decisions to ensure the
organization is operated as inexpensively and efficiently as possible.
Applicant’s openness during the security investigation is a testament to her
trustworthiness. Her supervisors have consistently recommended she apply for a
security clearance, despite her resistance in seeking access to classified information. 
Policies
When evaluating an applicant's suitability for a security clearance, the
administrative judge must consider the adjudicative guidelines (AG). Each guideline lists
potentially disqualifying conditions and mitigating conditions. These guidelines are
flexible rules of law that must take into consideration the complexities of human
behavior. 
The administrative judge's ultimate goal is to reach a fair and impartial decision
that is based on commonsense. The decision should also include a thorough evaluation
of a number of variables known as the "whole-person concept" that brings together 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.
Reasonable 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 sensible, logical, and based on the evidence
contained in the record. Likewise, I have avoided drawing inferences grounded on mere
speculation or conjecture.
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 the potential, rather than actual, risk of
compromise of classified information.
Under Directive ¶ E3.l.14., the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.l.l5., the applicant is
responsible for presenting "witnesses and other evidence to rebut, explain, extenuate,
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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.
Analysis
Drug Involvement
Paragraph 24 of the AG sets forth the security concern attached 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, and 
(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.
The guideline notes several disqualifying conditions that could raise security
concerns. During the period between April 2002 and September 2009, Applicant
purchased and used a variety of illegal drugs, or misused prescription drugs. AG ¶ 24(b)
(use of a legal drug in a manner that deviates from medical direction); AG ¶ 25(a) (any
drug abuse); and AG ¶ 25(c) (illegal drug possession, including cultivation, processing,
manufacture, purchase, sale, or distribution, or possession of drug paraphernalia) apply.
The record shows that Applicant continued to use drugs after she submitted her
SCA in May 2009. However, AG ¶ 25(g) (any illegal drug use after being granted a
security clearance) applies only while applicant has a security clearance. AG ¶ 25(g)
does not apply.
AG ¶ 25(h) (expressed intent to continue illegal drug use, or failure to clearly and
convincingly commit to discontinue drug use) applies. Though the record does not
demonstrate an unequivocal intent by Applicant to continue drug use, she stated in
June 2009 that if she did not receive a security clearance, it would not be necessary for
her to stop using drugs. Her subsequent statements in her May 2010 response to the
FORM do not clearly and convincingly establish she is resolved to abstinence from
illegal drugs or misuse of non-prescribed drugs. 
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The two relevant mitigating conditions under the drug involvement guideline are:
AG ¶ 26(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); and AG ¶ 26(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 are
used, (3) an appropriate period of abstinence, and (4) a signed statement of intent with
automatic revocation of clearance for any violation). 
Though Appellant’s abuse of some of the illegal drugs was sporadic or
experimental in the period between April 2002 and September 2009, she used
marijuana and misused the prescription drug vicodin on a regular basis during the
period. In order to use marijuana 10 to 15 times a month, I conclude she purchased the
drug regularly. If each drug is analyzed individually, her experimental use of some of the
drugs might qualify for infrequent use that ended a long time ago. However, because
the evidence must be viewed as a whole, the entire course of Applicant’s illegal drug
use, which lasted over seven years without clear convincing evidence of a commitment
to abstain in the future, continues to cast doubt on her judgment and reliability. AG ¶
26(a) does not apply. 
Applicant’s severance of ties with her boyfriend in April 2009 carries some weight
as disassociating from drug-using associates. However, shortly after their separation,
she resorted to cocaine as a way to soothe her emotions after a long relationship with
him. While her former boyfriend no longer lives with her, Applicant has not provided any
evidence indicating removal from the drug-using environment she was a part of for
about seven years. Considering the ambiguity of Applicant’s May 2010 response to the
FORM regarding future drug abstinence, I am unable to conclude Applicant will abstain
from all drug use. Assuming that she stopped drug use in September 2009, eight
months is not a sufficient period of abstention, considering her history of illegal drug
abuse and the absence of any treatment program. Even without a signed statement of
intent to forego future drug use with automatic revocation of clearance for any violation,
AG ¶ 26(b) is inapplicable. Having weighed the disqualifying conditions with the
mitigating conditions, Applicant has not met her ultimate burden of persuasion under the
drug guideline.  
Whole-Person Concept
This Decision must be an overall commonsense judgment based upon careful
consideration of the guidelines and the general factors of the whole-person concept.
Those factors include:
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
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rehabilitation and other 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 decision based on careful consideration of
the guidelines and the whole-person concept.
Applicant is 28 years old. When she was 20 years old in April 2002, she began
using drugs. In July 2002, she commenced a long relationship with her boyfriend, whom
she described as a serious drug user. For the next seven years, Applicant used a
variety of drugs. She purchased and sold some drugs to friends. Even after filling out
her SCA in April 2009, and providing an interview to OPM in June 2009, she continued
to use illegal drugs and non-prescribed drugs. Though she made statements in May
2010 of a growing intention to stop using drugs, she did not provide clear and
convincing evidence that sufficiently shores up her intention, particularly because of her
ongoing disagreements over the drug guideline in Directive 5220.6 and the
Government’s zero tolerance policy against drug use. Applicant has not mitigated her
illegal drug use and misuse of non-prescribed 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
Subparagraph 1.a Against Applicant
Subparagraph 1.b Against Applicant
Subparagraph 1.c Against Applicant
Subparagraph 1.d Against Applicant 
Subparagraph 1.e Against Applicant
Subparagraph 1.f Against Applicant
Subparagraph 1.g For Applicant
Subparagraph 1.h Against Applicant
Subparagraph 1.I Against Applicant
Subparagraph 1.m Against 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. 
                      
Paul J. Mason
Administrative Judge