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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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------------------------- )     ISCR Case No. 08-11403
SSN: ----------------- )
)
Applicant for Security Clearance )
Appearances
For Government: Robert E. Coacher, Esquire, Department Counsel
For Applicant: Pro se
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Decision
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MATCHINSKI, Elizabeth M., Administrative Judge:
Applicant used marijuana, at times daily, from June 1997 to at least August 2008.
He continued to smoke and purchase the illegal drug despite being arrested on three
occasions for possession of marijuana and drug paraphernalia. He denies any intent to
use marijuana in the future, but the evidence is insufficient to demonstrate that his
illegal drug use is behind him. Clearance denied.
Statement of the Case
On April 9, 2009, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) to Applicant detailing the security concerns under
Guideline H, Drug Involvement, and Guideline J, Criminal Conduct, that provided the
basis for its preliminary decision to deny him a security clearance and refer the matter to
an administrative judge. 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
The SOR alleges that Applicant was found guilty of the February 2005 paraphernalia charge. The1
court record indicates that he was convicted of the marijuana possession charge, and the paraphernalia
possession charge was not prosecuted. 
There is no evidence that Applicant was charged with an alcohol-related offense.2
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adjudicative guidelines (AG) effective within the Department of Defense on September
1, 2006. 
 
Applicant submitted an undated Answer, which was received by DOHA on June
16, 2009. He requested a decision without a hearing. On July 20, 2009, the Government
submitted a File of Relevant Material (FORM) consisting of seven exhibits (Items 1-7).
DOHA forwarded a copy of the FORM to Applicant and instructed him to respond within
30 days of receipt. Applicant received the FORM on November 2, 2009. DOHA received
no response from Applicant by December 2, 2009, the due date, and on February 2,
2010, the case was assigned to me to consider whether it is clearly consistent with the
national interest to grant or continue a security clearance for him. Based upon a review
of the Government’s FORM, eligibility for access to classified information is denied.
Findings of Fact
The SOR alleges under Guideline H, Drug Involvement, that Applicant used
marijuana from about June 1997 to at least August 2008 (SOR 1.a), and that he had
purchased marijuana (SOR 1.b). Under Guideline J, Criminal Conduct, Applicant is
alleged to have been arrested on marijuana possession and drug paraphernalia
possession charges in February 2005 (SOR 2.a), July 2004 (SOR 2.b), and June 2003
(SOR 2.c), and found guilty of the 2005 drug paraphernalia possession and 2003
marijuana possession charges.  Applicant admits the allegations. After considering the1
evidence of record, I make the following findings of fact:
Applicant is a 27-year-old data quality engineering analyst, who has worked for a
defense contractor since March 2008. He has a bachelor of science degree in
mathematics and seeks his first security clearance. (Item 4.)
Applicant used marijuana with varying frequency, at times daily, from June 1997
to at least August 2008. He began using marijuana at age 14 because “everyone” at his
school was using it. Applicant smoked the illegal drug with friends, to include in his
home. Applicant purchased marijuana on occasion. Other times, he obtained the drug
from his friends at no cost to him. He continued to smoke the drug while in college from
August 2001 to August 2007, despite three arrests for possession of marijuana and
drug paraphernalia. He stopped using marijuana at times because he was arrested,
only to resume smoking the drug. (Items 4, 5.)
In early June 2003, Applicant was stopped for driving under the influence.  The2
police found less than one gram of marijuana in a bowl in his vehicle, and Applicant was
arrested and charged with possession of marijuana and with possession of drug
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paraphernalia. (Items 4, 6.) In August 2003, he pleaded guilty to marijuana possession.
He was awarded unsupervised probation before judgment; fines and costs totaling
$100; and 30 days in jail, with 29 days suspended and credit for one day served. The
paraphernalia possession charge was dismissed. (Item 6.) Applicant completed his
probation on August 4, 2004. (Items 4, 5, 6.) Although not reflected in the district court
records, Applicant apparently also had to complete two days of community service.
(Item 5.) 
In early July 2004, Applicant was charged with possession of marijuana and
possession of drug paraphernalia after some marijuana was found in his car. The
charges were not prosecuted after the arresting officer failed to appear in court in
November 2004. (Item 4, 5, 6.) 
In early February 2005, while in college visiting a friend, Applicant was arrested
along with his friend by campus police. Applicant was charged with possession of drug
paraphernalia and with possession of marijuana. In late April 2005, he was found guilty
of marijuana possession and sentenced to probation until October 7, 2006; to 15 days in
jail (suspended); and to $55 in costs (suspended). The drug paraphernalia charge was
not prosecuted. (Items 4, 5, 6, 7.) The university placed him on probationary status,
barred him from student housing for three years, and required him to undergo drug
testing and to complete 100 hours of community service. Applicant completed the terms
of his sentence in 2006. (Item 5.)
In March 2008, Applicant started his professional career with his current
employer. (Item 4.)  Applicant continued to smoke marijuana until at least August 2008.
(Items 4, 5.) On September 16, 2008, Applicant applied for a security clearance for his
defense contractor employment. He indicated on his application that he used marijuana
“countless” times from about June 1997 to August 2008. (Item 4.) During an October 16,
2008, interview with an authorized investigator for the Government, Applicant admitted
that he had used marijuana in the past between June 1996 and August 2008, at times
daily. Applicant denied any intent to use marijuana in the future, or that he had a
problem with marijuana. He discussed his three arrests on drug charges, and admitted
that small amounts of marijuana had been found in his car and some paraphernalia had
been found in his car in the 2003 and 2004 incidents. Concerning the 2005 arrest,
Applicant indicated that he pleaded guilty to possession of marijuana, and to possession
of drug paraphernalia. (Item 5.) But court records indicate that he was found guilty of
marijuana possession after he had pleaded not guilty. (Item 6.)
In response to DOHA interrogatories in January 2009, and in response to the
SOR in June 2009, Applicant had an opportunity to update the record concerning his
drug involvement and any changes in his lifestyle to ensure against a relapse. (Item 3,
5.) He provided no information.
As of September 2008, Applicant was involved in a committed relationship with
his girlfriend, who lived with him. They shared their apartment with a male roommate.
(Item 4.) The available record is silent as to whether or not Applicant’s girlfriend has
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ever used any illegal drugs, or whether she knows about his marijuana use. Nor is there
any information about the roommate’s involvement, if any, with illegal drugs or whether
Applicant has changed his associates or activities to ensure a drug-free lifestyle.
Applicant’s mother apparently knows something about his illegal drug use or his arrests
or both (Item 5), although the extent of her knowledge is unclear.
Policies
The U.S. Supreme Court has recognized the substantial discretion the Executive
Branch has in regulating access to information pertaining to national security,
emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy
v. Egan, 484 U.S. 518, 528 (1988). When evaluating an applicant’s suitability for a
security clearance, the administrative judge must consider the 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 to be considered 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
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 to obtain 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
that the applicant may deliberately or inadvertently fail to safeguard classified
information. Such decisions entail a certain degree of legally permissible extrapolation
about 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
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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
Drug Involvement
The security concern about 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.
Applicant smoked marijuana in various quantities between June 1997 and August
2008. While there were periods of abstention, especially after his arrests, he abused the
drug as frequently as daily at other times. Applicant also purchased the drug, and he
was arrested on three occasions after he was caught with the drug or drug
paraphernalia or both. AG ¶ 25(a), “any drug abuse,” and AG ¶ 25(c), “illegal drug
possession, cultivation, processing, manufacture, purchase, sale, or distribution, or
possession of drug paraphernalia,” apply.
Although there is no evidence that Applicant has used any illegal drug since
August 2008, AG ¶ 26(a), “the behavior happened so long ago, was so infrequent, or
happened under such circumstances that it is likely to recur or does not cast doubt on
the individual’s current reliability, trustworthiness, or good judgment,” cannot reasonably
apply to marijuana abuse that occurred over ten years and was as frequent as daily.
Given Applicant’s admission to having smoked marijuana “countless” times, I
accept as credible his assertions in October 2008 that he had not smoked marijuana
since sometime in August 2008, and that he did not intend any future use. But it is
unclear whether he has managed to sustain his commitment to abstinence, or whether
he has avoided the friends with whom he had smoked marijuana, or situations
potentially conducive to drug use. Applicant provided no new detail about his drug
involvement or efforts to abstain when he answered DOHA interrogatories in January
2009, or the SOR in June 2009. He filed no response to the FORM. AG ¶ 26(b) requires
an applicant to demonstrate his or her commitment to maintain a drug-free lifestyle.
Under AG ¶ 26(b), “a demonstrated intent not to abuse any illegal drugs in the future”
can be shown by:
(1) disassociation from drug-using associates and contacts;
(2) changing or avoiding the environment where drugs were used;
(3) an appropriate period of abstinence;
(4) a signed statement of intent with automatic revocation of clearance for
any violation.
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The information of record falls considerably short of establishing “a demonstrated intent
not to abuse any drugs in the future” under AG ¶ 26(b). There is no evidence that
Applicant has completed a drug treatment program, so AG ¶ 26(d) is not pertinent. As of
October 2008, he did not believe that he had a problem with marijuana.
Criminal Conduct
The security concern about criminal conduct is set out in AG ¶ 30:
Criminal activity creates doubt about a person’s judgment, reliability, and
trustworthiness. By its very nature, it calls into question a person’s ability
or willingness to comply with laws, rules and regulations.
Applicant was arrested and charged with possession of marijuana and
possession of drug paraphernalia in June 2003, July 2004, and February 2005. He
admits that marijuana and drug paraphernalia were in his vehicle in June 2003 and July
2004, so AG ¶ 31(c), “allegation or admission of criminal conduct, regardless of whether
the person was formally charged, formally prosecuted or convicted,” applies, despite the
court’s decision to award him probation before judgment for the 2003 marijuana
possession charge, and the state’s decision not to prosecute the paraphernalia
possession charge in 2003 and marijuana possession and paraphernalia possession
charges in 2004. AG ¶ 31(c) also applies because of the guilty finding on the February
2005 marijuana possession charge. Furthermore, three illegal drug offenses within three
years implicate AG ¶ 31(a), “a single serious crime or multiple lesser offenses.”
Although Applicant has not been arrested for marijuana possession since
February 2005, he continued to smoke the drug, and therefore had physical custody of
the illegal drug on the occasions of usage, until at least August 2008. AG ¶ 32(a), “so
much time has elapsed since the criminal behavior happened, or it happened under
such unusual circumstances that it is unlikely to recur and does not cast doubt on the
individual’s reliability, trustworthiness, or good judgment,” does not apply to drug
involvement that was obviously a significant part of Applicant’s socialization or
recreational activities for over ten years. There is no indication that Applicant was
pressured into using and possessing marijuana, so AG ¶ 32(b), “the person was
pressured or coerced into committing the act and those pressures are no longer present
in the person’s life,” is not pertinent. AG ¶ 32(c), “evidence that the person did not
commit the offense,” applies, if at all, to the 2005 possession of drug paraphernalia. The
details of his arrest, as disclosed during his subject interview of October 2008, do not
include an admission to possession of any paraphernalia, apart from a statement that
he pleaded guilty to the charge. The court records indicate that he pleaded “not guilty”
to the marijuana possession charge. The drug paraphernalia charge was not
prosecuted after an “other plea” was entered for that offense.
Applicant demonstrated some reform around September 2008 when he resolved
to stop using marijuana out of concern for his employment. But in the absence of
evidence proving Applicant has successfully put his illegal drug abuse behind him, and
The adjudicative process factors identified in AG ¶ 2(a) are as follows:3
(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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that  his present activities, associates, and circumstances are consistent with a drug-
free lifestyle, I am unable to apply AG ¶ 32(d), “there is evidence of successful
rehabilitation; including but not limited to the passage of time without recurrence of
criminal activity, remorse or restitution, job training or higher education, good
employment record, or constructive community involvement.”
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 his conduct
and all relevant circumstances in light of the nine adjudicative process factors listed at
AG ¶ 2(a).  Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for3
a security clearance must be an overall commonsense judgment based upon careful
consideration of the guidelines and the whole-person concept. 
Marijuana played a significant part in Applicant’s recreational or social activities
for over ten years. He smoked the drug in his home, and with his friends. He likely also
smoked the drug in his vehicle at least twice. The police found marijuana and
paraphernalia in his car on two occasions, including in 2003 when he was stopped for
driving under the influence. He continued his marijuana involvement even after he was
found guilty in court and sanctioned by the university for his drug use in 2005.
Applicant’s blatant disregard for the laws prohibiting the use of marijuana is inconsistent
with the judgment and reliability that must be demanded of those persons granted
access to classified information. His candor about his drug involvement is a factor in his
favor, but based on the evidence before me, I am unable to conclude that it is clearly
consistent with the national interest to grant Applicant a security clearance at this time.
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
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Paragraph 2, Guideline J: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Subparagraph 2.b: Against Applicant
Subparagraph 2.c: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
Elizabeth M. Matchinski
Administrative Judge