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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)         ISCR Case No. 09-02839
)
)
Applicant for Security Clearance )
Appearances
For Government: Gina L. Marine, Esquire, Richard A. Stevens, Esquire, Department
Counsel
For Applicant: Alan V. Edmunds. Esquire
______________
Decision
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MASON, Paul J., Administrative Judge:
Another administrative judge from the Defense Office of Hearings and Appeals
(DOHA) issued her first decision in this case on February 23, 2010, granting Applicant’s
security clearance request. The DOHA Appeal Board issued a Remand Decision, dated
May 17, 2010, instructing the judge to issue a new decision correcting certain errors. On
July 30, 2010, the judge issued a Decision on Remand, granting Applicant’s security
clearance request. On October 29, 2010, the DOHA Appeal Board issued a second
Remand Decision, with instructions for this case to be assigned another administrative
judge. I was assigned the case on November 3, 2010. After a full review of the record, I find
it is not clearly consistent with the national interest to grant Applicant a security clearance.
Eligibility for access to classified information is denied. 
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Statement of the Case
Procedural History
1. Applicant completed and certified her Standard Form 86 (SCA) on February 4,
2009. She was interviewed by an investigator from the Office of Personnel Management
(OPM) on March 18, 2009. A summary of this interview appears in her interrogatory
answers dated June 30, 2009. Applicant agreed with (1) the investigator’s summary and
(2) that it could be used at a hearing to determine her security suitability. The interview
summary is located inside Government’s Exhibit (GE) 2.
2. On September 15, 2009, DOHA issued a Statement of Reasons (SOR) detailing
security concerns under drug involvement (Guideline H). 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
adjudicative guidelines (AG) implemented by the Department of Defense on September 1,
2006.
3. On September 25, 2009, Applicant furnished an answer to the SOR. She
essentially admitted both allegations, but claimed under SOR 1.a that she used the drug
infrequently and stopped using the drug after a one-time use in 2008. She denied SOR 1.b,
declaring her intention to abstain from all future drug use. She attached a letter to her
answer declaring an intention to abstain from future drug use, including a statement to have
her security clearance revoked if she used drugs again. At the hearing on December 7,
2009, the government’s two exhibits (GE 1 and GE 2) were entered into the record. AE A
through AE Q were admitted in evidence on behalf of Applicant. 
At the end of the hearing on December 7, 2009, the administrative judge kept the
record open for additional documentary submissions. Applicant submitted AE R (negative
drug test results dated December 10, 2009) in the time allowed for post-hearing
submissions. Applicant’s exhibits that were entered into the record through December 10,
2009, were AE A through AE R.
4. On February 23, 2010, the administrative judge rendered a favorable decision
granting Applicant a security clearance. 
5. On May 17, 2010, the DOHA Appeal Board ordered the case be remanded. They
instructed the administrative judge to:
consider the conflicts in the evidence-specifically the Applicant’s statement
regarding possible future use at parties-when evaluating Applicant’s
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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 character
witnesses’ lack of knowledge about Applicant’s marijuana use when weighing
the relative importance of the character statements to the overall use. 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. (ISCR Case No. 09-02839 at 5 (App. Bd.
May 17, 2010)
6. On June 2, 2010, the administrative judge issued sue sponte a Remand Order
requesting Applicant obtain a drug test and furnish the test results by June 23, 2010. On
June 4, 2010, Department Counsel filed a Motion to Rescind the Judge’s Remand Order,
arguing that the administrative judge had no authority to request a drug test. On June 10,
2010, Applicant filed a response to Department Counsel’s remand motion arguing the
Appeal Board’s Remand Order (May 17, 2010) set no limitations on what portions of
evidence the judge was to review, and the Remand Order would not lead to new evidence,
but an updating of evidence. On June 14, 2010, Applicant filed a Motion to Re-Open the
Record to update the record with test results from the date of the hearing. On June 15,
2010, Department Counsel filed a Motion Opposing Applicant’s June 14, 2010 motion. 
On June 17, 2010, the administrative judge rescinded her June 2, 2010 order and
granted Applicant’s June 14, 2010 motion to re-open. The administrative judge instructed
Applicant to submit a sworn affidavit concerning her drug use since the December 7, 2009
hearing, and submit a new drug test report. Applicant furnished an affidavit (AE S, June 22,
2010) and negative drug test results (AE T, June 8, 2010), which became a part of the
record. 
7. On June 30, 2010, the administrative judge issued a Decision on Remand finding
it clearly consistent with the national interest to grant Applicant’s access to classified
information. On June 30, 2010, Applicant’s exhibits that were entered into the record were
AE A through AE T.
8. On October 29, 2010, the Appeal Board remanded this case a second time, with
instructions for the case to be assigned to another administrative judge for decision
because the previous judge acted in a manner “that would lead a reasonable, disinterested
person to question the fairness and impartiality of the administrative judge.” The Appeal
Board determined that:
the new decision should be based on the record as it existed at the time the
Board ordered the first remand, if both parties consent. However, because
 AE V is a copy of the same negative drug test results in AE T, collected and processed on June 8, 2010.1
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credibility may be an important issue in this case, if either party requests a
new hearing, then the new judge should convene one expeditiously. ISCR
Case No. 09-02389 at 4 (App. Bd. Oct. 29, 2010)
9. DOHA issued a Notice of Hearing on November 19, 2010, for a hearing on
December 7, 2010. On December 2, 2010, Department Counsel filed a Motion to consider
the evidence of record as it existed on May 17, 2010, the date of the DOHA Appeal Board’s
Remand Order.
On December 7, 2010, Applicant filed a list of proposed exhibits (AE P through AE
U) to be entered into the record. Because the record already contains exhibits AE A
through AE T, the proposed exhibits (AE P through AE U) have been re-labeled and
entered into evidence as follows: 
i. AE P, Applicant’s performance evaluation, was received in
evidence at the hearing on December 7, 2009. The proposed
AE P (two cover letters showing that the drug tests were
served on the government and the judge) was withdrawn. (Tr.
II, 12)
ii. AE Q (medical evaluation) was entered into the record on
December 7, 2009. The proposed AE Q is re-labeled and
entered into the record as AE U (Applicant’s affidavit dated
June 22, 2010). 
iii. The proposed AE R (negative drug test results dated June
8, 2010) is re-labeled AE V.1
iv. AE S (negative drug test results dated November 16, 2010)
for is now AE W.
v. AE T (2010 performance evaluation) is now AE X.
vi. AE U (goal report for 2010) is now AE Y.
10. I am considering the evidence of record at the time it existed on May 17, 2010,
the date of the DOHA Appeal Board’s Remand. Because credibility could be an issue, the
additional evidence I am considering is the testimony elicited from Applicant on December
7, 2010, and Applicant’s Exhibits (AE) U through Y. Applicant’s request to recall two of the
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three witnesses who had testified at the first hearing was denied. The basis for my denial
was the anticipated cumulation of testimony, and also the fact that character statements
of the two witnesses (AE C, AE F) were entered into the record at the first hearing on
December 7, 2009. 
References to the first hearing transcript will be cited as Tr. I, followed by the page
number. The second hearing transcript will be cited as Tr. II, followed by the page number.
DOHA received the transcript (Tr.) Of the second hearing on December 16, 2010. The
record closed on December 16, 2010.
Remand Findings of Fact
Applicant is 50 years old and has two children, ages 21 and 19. She has been
employed as an electrical engineer since May 1996. (GE 1) Her employment history
includes working at a facility as an electrician in 1985 with a Q clearance received through
the Department of Energy. (Tr. I, 61, 63) She understood the importance of not using drugs
while working at the facility. (Tr. I, 64) 
Applicant sporadically used marijuana since she was 14 years old. She never
purchased or sold marijuana. (GE 2, interview) She engaged in limited marijuana use
during her marriage from September 1982 to December 1999. (Tr. I, 62; Tr. II, 20-21) In
an SCA she filled out in 1985 to work as an electrician for another contractor job, she
admitted using marijuana. (Tr. I, 55-56, 62) In response to question 23A of her February
2009 SCA (drug involvement in the last 7 years), she answered “yes.” In the comments
area of drug involvement (SCA), Applicant indicated that from January 2001 to February
2009, she used marijuana “once or twice a year, very infrequent.” (GE 1 at 10) In the
reference section of her February 2009 SCA, Applicant identified her girlfriend as a
reference. 
In her interview with an OPM investigator in March 2009, Applicant indicated she
took one or two “tokes” on a marijuana cigarette when she attended large parties at the
home of her girlfriend (noted as a reference in the SCA), generally during the holidays. She
also stated that under similar circumstances, she would take a toke in the future if she
desired. (GE 2, interview) Applicant never smoked a full marijuana cigarette, nor attended
parties at the friend’s home to smoke marijuana. If offered, she may or may not smoke
marijuana. She told the investigator that her infrequent marijuana use could be verified by
a friend. (Id.) The record reflects the friend is Applicant’s coworker. (AE G)
On June 30, 2009, Applicant notified DOHA in interrogatory answers that she agreed
with the investigator’s summary of her March 2009 interview, and made no additions or
modifications to the interview summary. (GE 2) She agreed that the summary of the 
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interview could be admitted into evidence at a hearing to determine her suitability for a
security clearance. (Id.)
During the hearing on December 7, 2009, Applicant explained she used marijuana
at her girlfriend’s house. Applicant recalled her last use of marijuana was “around the
holidays, between Thanksgiving and Christmas for one time.” (Tr. I, 53) Applicant testified
the investigator asked the future drug use question vaguely, and she responded in a similar
fashion: “well, I don’t know. I don’t think so.” (Tr. I, 54) Her response does not appear in the
March 2009 summary of interview. (GE 2, interview)
In her September 2009 answer to the SOR, Applicant stated she intended to abstain
from all future drug use. She signed a separate letter of intent (attached to her answer)
expressing an intent to never use marijuana and illegal drugs in the future, and consenting
to a revocation of her security clearance for an infraction. (AE M)
Applicant decided to stop using marijuana because it was not a smart thing to do.
(Tr. I, 54) At the hearing in December 2010, Applicant indicated she last saw her girlfriend
(whose husband supplied the marijuana) in December 2008. (Tr. II, 24) At the hearing in
December 2009, she indicated she last saw her girlfriend toward the end in February 2009.
(Tr. I, 55, 58-59) When her children were younger, Applicant did not admit to them she
used marijuana, but told them that she did not want them using marijuana. (Tr. I, 58) In
March 2009, at the beginning of her current security investigation, and with a heightened
degree of concern for her career, Applicant talked to her children even more emphatically
about not using drugs. (Tr. I, 65-66)
In addition to her signed statement (including revocation) indicating she would not
use drugs in the future (AE M, September 25, 2009), she provided an affidavit indicating
she does not use drugs. (AE U, June 22, 2010) She took five random drug tests on
September 24, 2009 (AE O), October 16, 2009 (AE N), December 10, 2009 (AE R), June
8, 2010 (AE V), and November 16, 2010 (AE W) All tests produced negative results.
Applicant indicated she has not used marijuana since the December 2009 hearing, and has
no intentions of using the drug in the future. (Tr. II, 15)
Applicant told three coworkers about her past drug use. The only information she
provided to the first coworker was that she used marijuana. (Tr. I, 28). One coworker
estimated Applicant’s last use of marijuana was five years ago. (Tr. I, 40) One witness
opined Applicant’s last marijuana use was about two years ago, but he really did not know.
(Tr. I, 49-50) Collectively, the three witnesses had little knowledge of Applicant’s marijuana
use. They still recommended her for a security clearance based on her professionalism and
honesty. These coworkers also have character statements in the record (AE C, F, and K).
Nine additional individuals submitted character statements praising Applicant’s
professionalism and honesty. None of the statements provided any indication that the
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authors were aware of Applicant’s past marijuana use. (AE A, B, D, E, G, H, I, J, and L) A
licensed clinical health counselor evaluated Applicant on October 27, 2009. After a clinical
interview and Applicant’s completion of a questionnaire, counselor concluded that Applicant
had no mental health issues, and she also concluded that Applicant’s responses did not
show current or past drug abuse problems. (AE Q; Tr. I, 67) There is no indication that the
counselor had access to information from other sources regarding Applicant’s drug use. 
Policies
When evaluating an applicant's suitability for a security clearance, the administrative
judge must consider the AG. Each guideline lists potentially disqualifying conditions and
mitigating conditions, which are required to be used to the extent they apply in evaluating
an applicant's eligibility for access to classified information.
The administrative judge's ultimate goal is to reach a fair and impartial decision that
is based on common sense. The decision should also include a careful, 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. Decisions include, by necessity, consideration of
the possible risk the applicant may deliberately or inadvertently fail to safeguard classified
information. Such decisions entail a certain degree of legally permissible extrapolation
about 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, or
mitigate facts admitted by applicant or proven by Department Counsel . . . ." The applicant
has the ultimate burden of persuasion for 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.
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Applicant’s infrequent marijuana use since she was 14 years old falls within AG ¶
25(a) (any drug use). Any drug use includes drug possession. AG ¶ 25(c) (Illegal drug
possession, including cultivation, processing, manufacture, purchase, sale, or distribution;
or possession of drug paraphernalia) also applies. 
AG ¶ 25(h) (expressed intent to continue illegal drug use, or failure to clearly and
convincingly commit to discontinue drug use) applies based on Applicant’s interview in
March 2009. During that interview, Applicant indicated that if the marijuana was available
at future parties of a girlfriend, she would use the marijuana if she wanted. Using illegal
drugs regardless of the frequency raises questions about a person’s judgment and her
ability to comply with the law. AG ¶ 25(h) applies. 
On June 30, 2009, three months after her interview, Applicant provided interrogatory
answers to the Government in which she agreed with the February 2009 interview
summary prepared by the investigator. She also agreed that the summary could be used
as evidence in a security clearance hearing to determine her security clearance suitability.
Agreeing with her February 2009 intention to use marijuana under certain circumstances
constitutes more evidence of poor judgment under AG ¶ 25(h). The Government has
established a case under the drug involvement guideline.
The two relevant mitigating conditions under ¶ 26 of 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 a signed statement of intent with
automatic revocation of clearance for any violation). 
Applicant claims she stopped using marijuana in 2008 after a one-time use between
Thanksgiving and Christmas 2008. However, Applicant did not fully express that claim until
December 2009, after she had stated contradictory positions in February 2009 (SCA),
March 2009 (interview) and June 2009 (interrogatory answers) about her drug use and
future drug use. Applicant’s conflicting positions undermine her overall credibility and
prevent me from finding she terminated her drug use in 2008. Considering the evidence as
a whole, Applicant’s future intent to use drugs in certain situations continues to raise doubt
regarding her current reliability and good judgment. AG ¶ 26(a) does not apply.
Applicant’s statement in March 2009, and verification of that statement in June 2009
that she would continue to use drugs in certain future circumstances substantially
diminishes the mitigating weight available to her under AG ¶ 26(b). The October 2009
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medical report (AE Q) reflects that Applicant had a clinical interview with a counselor. In the
questionnaire portion of report, she told the counselor she stopped using marijuana in
2008. The report has questionable probative value because the report does not indicate
whether the counselor was aware of the information Applicant furnished to the Government
in February, March and June 2009, about her marijuana use. 
Applicant testified in December 2010 that in approximately December 2008 she
stopped seeing her girlfriend with whom she used marijuana. Yet, at the hearing in
December 2009, she indicated she stopped associating with her toward the end of
February 2009. Furthermore, Applicant used her girlfriend as a reference in her February
2009 SCA. The record is unclear about whether Applicant has changed her environment
where drugs are used. Had there been no evidence in March and June 2009 of an intention
to use drugs in the future, then Applicant may have established an appropriate period of
abstinence. Finally, Applicant’s decision to forego all future drug use occurred less than
three months after her June 30, 2009, interrogatory answers acknowledging that she would
use marijuana under certain circumstances in the future. Because her answer and the
affidavit were executed shortly after she received the SOR, it appears that Applicant
changed her mind because she wanted to improve her chances of getting a security
clearance, not because her drug use involved illegal conduct. 
Applicant’s character evidence has been thoroughly evaluated. Though the nine
written references provide glowing appraisals of her professionalism and honesty, they
furnish no probative value into nature, scope, and frequency of Applicant’s drug use. While
the testimony of the three witnesses indicated they were aware of Applicant’s drug use,
their corresponding references make no reference to Applicant’s drug use. In light of
Applicant’s infrequent marijuana use since she was 14 years old, her marijuana use after
holding a security clearance in 1985, and her recent conditional statements about future
marijuana use, the more recent affidavit in June 2010 and negative drug test reports are
insufficient to carry Applicant’s ultimate burden of persuasion under the drug involvement
guideline. 
Whole-Person Concept 
In evaluating Applicant’s security clearance worthiness, I have examined the
evidence under the disqualifying and mitigating conditions of the drug involvement
guideline. I have also weighed the circumstances within the context of nine variables known
as the whole-person concept. In evaluating the relevance of an individual's conduct, the
administrative judge should consider the following factors:
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
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individual's age and maturity at the time of the conduct; (5) the extent to
which the participation was 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.
There are several pieces of evidence that weigh in Applicant’s favor. She has
worked as an engineer for her employer for 13 years. In that time, she has compiled a good
job performance record and has earned the respect of her coworkers. The mitigating value
of the written character statements is limited by the authors’s lack of knowledge of
Applicant’s marijuana use. 
Weighing against Applicant’s favorable evidence is her lengthy drug use history and
where and when she used the drug as she advanced in age. Given the fact she held a
security clearance in the past from another agency, she should have known that security
clearance obligations are an around-the clock responsibility, meaning a security clearance
holder cannot use illegal drugs at work or non-work situations, regardless of time of day or
the type of environment. Drug use is against the law and government policy. The fact that
Applicant disclosed her infrequent drug use in February 2009 does not make it any less
illegal. The fact that she stated her intention in March 2009, then reaffirmed her intention
in June 2009 to use drugs in the future, demonstrates poor judgment. Having reviewed the
evidence under the specific conditions in the context of whole person-person concept,
including the evidence furnished by Applicant after May 17, 2010, she has not met her
ultimate burden of persuasion under the drug involvement guideline.
Formal Findings
Paragraph 1 (Guideline H): AGAINST APPLICANT
Subparagraph 1.a Against Applicant
Subparagraph 1.b Against Applicant
Conclusion
In light of all the circumstances presented by the record in this case, it is not clearly
consistent with the national interest to grant Applicant access to classified information.
Eligibility for access to classified information is denied.
Paul J. Mason
Administrative Judge