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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)         ISCR Case No. 09-07877
SSN: )
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Esquire, Department Counsel
For Applicant: Pro se
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Decision
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MASON, Paul J., Administrative Judge:
After illegally using marijuana periodically from 1984 to 1988, Applicant stopped
using the drug from 1988 to 1998 because he was granted a security clearance to work
on classified projects. After surrendering his security clearance and being read out of
classified projects in 1998, he resumed periodic marijuana use at varying frequencies
from 1998 to at least August 2009. From late 2005 or early 2006 to July 2009, Applicant
combined his marijuana use with periodic use of ecstacy. Unlike his definitive intentions
against future ecstacy use, Applicant has not convincingly demonstrated he will use no
marijuana in the future under any circumstances. Combined with an insufficient period
of abstinence from illegal drug use, Applicant has not provided sufficient evidence to
overcome his illegal marijuana use. Eligibility for access to classified information is
denied. 
Statement of the Case
Applicant submitted his most recent Security Clearance Application (SCA, GE 1)
on May 9, 1993. He submitted a more recent SCA on August 25, 2009. He was
interviewed by an investigator from the Office of Personnel Management (OPM) on
 In the last 7 years, have you been involved in the illegal possession, purchase, manufacture, trafficking,1
production, transfer, shipping, receiving, handling, or sale of any controlled substance (see question above)
including prescription drugs?
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October 7, 2009. (GE 3) In his interrogatory answers submitted to the Government on
December 29, 2009, Applicant agreed with the investigator’s summary of his October
2009 interview, and that it could be used in a security clearance hearing to determine
his security suitability. (Interrogatory answers, GE 4) In supplemental interrogatory
answers dated December 29, 2009, Applicant provided additional information regarding
the scope of his use of marijuana and ecstasy, and when he stopped using drugs. (GE
5) 
On March 3, 2010, DOHA issued a Statement of Reasons (SOR) detailing
security concerns under drug involvement (Guideline H), and personal conduct
(Guideline E). The action was taken pursuant to 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. 
Applicant submitted his notarized answer to the SOR on March 16, 2010. DOHA
issued a Notice of Hearing on June 21, 2010, for a hearing on July 13, 2010. The
hearing was held as scheduled. At the hearing, five exhibits (GE 1 through 5) were
admitted in evidence to support the Government’s case. Applicant objected to GE 2
(SCA, August 25, 2009). While he was completing the SCA, he had problems with the
software, resulting in an incorrect response to question 23(c)  of the security form. He1
indicated his “no” response should have been “yes.” Department Counsel, and I agreed,
that the inadvertent error was irrelevant to the allegations in the SOR. (Tr. 13-16)
The record remained open until July 27, 2010 (Tr. 65) to allow Applicant an
opportunity to submit additional evidence. He submitted three exhibits (AE A through AE
C) in a timely fashion. Those exhibits have been entered into the record. AE A contains
a statement of position by Applicant indicating he has no future intention of using illegal
drugs or misusing prescription drugs. Applicant offered to submit to random drug testing
and/or drug counseling. He also listed four individuals whom he believed would submit
character references by emails. (Id.) I have received no character statements from the
last two individuals identified in AE A. AE B is a character statement from Ms. B,
employed in management with Applicant’s former employer and the first reference
identified in AE A. AE C is a character reference from Mr. C, also employed in
management by Applicant’s former employer and the second reference in AE A. 
DOHA received the transcript on July 20, 2010. The record closed on July 27,
2010. 
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Findings of Fact
The first paragraph of the SOR alleges drug involvement. Applicant essentially
admitted all the allegations under drug involvement, but disputed the time periods and
the frequency of use. His disputes over the time periods of use initially appear in his
interrogatory answers (GE 5, question 1.a drug used/last drug use/intentions for future
drug use) that he submitted on December 29, 2009. His disputes about the time periods
and frequency of his drug use continues in his response to the SOR and his testimony.
He did not answer the personal conduct allegation, the second paragraph of the SOR. I
will interpret the absence of an answer as a “denial” to the second allegation. On the
second page of his answer, Applicant provided a general statement of his past drug
use: 
I do not find my past drug use at issue in this case. This activity is not one
that defines me nor did it consume my life. I would define my usage
somewhere between “privately and casually social” to “I’d rather eat a
brownie than take the [prescribed medication] or a [prescribed
medication].” When I went to work for [defense contractor] ([successor
defense contractor]) in 1988, I stopped all drug use because it was
required for me to do so - I resumed only after leaving in 1998. If it is
required for me to stop again - I will do so. Frankly, in the last 19 years of
my career, I’d rather be saving for my retirement than frivolously spending
money. (Answer to SOR)
Applicant is 47 years old and single. Since March 2006, he has been employed
as a consultant for two defense contractors, and a senior technical writer for a private
company. He seeks a security clearance. Applicant has a Bachelor’s degree in
mechanical engineering. He was completing the requirements for a Ph. D. when he
moved to his current home in 1999. (Tr. 30; GE 2)
After discovering the pressure in his eyes was too high, he had laser surgery to
relieve the pressure in 1985, and was treated with the prescribed drug marinol for three
months. He discontinued the marinol because of the drug’s disabling side effects. The
ophthalmologist noted that marijuana had fewer short-term side-effects, but expressed
no recommendation for Applicant to use the drug. (Tr. 32) 
SOR 1.a: In his October 2009 interview and his interrogatory answers in
December 2009, Applicant indicated he used marijuana two to three times a month from
1985 to 1988 to cope with the eye pressure. (GE 3) In GE 5, Applicant stated he used
marijuana about twice a month from 1986 to 1988. At the hearing, Applicant stressed
that after the surgery in 1985, he used the drug “periodically,” “like very infrequently.”
(Tr. 33) 
SOR 1.b: In his October 7, 2009, interview, Applicant indicated that between
1988 and 1998, he did not use marijuana because he had a security clearance. (GE 3
at 1, 2; Tr. 36) From 1998 until a least September 2009, he smoked marijuana about
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twice a month at home or at parties. (GE 3 at 2) At the hearing, Applicant testified he
smoked marijuana until August 23, 2009 (Tr. 54), and not October 4, 2009, as indicated
in his October 7, 2009, interview. (Id. at 3) 
In 2002, Applicant began experiencing deep pains in his hands. His doctor
considered that he was witnessing the early stages of rheumatoid arthritis, though
Applicant was never officially diagnosed with the condition. With the objective of
relieving the hand pain, Applicant took prescribed medication for about eight months. To
relieve the sickening side effects of the medication, Applicant smoked marijuana daily
for about eight months before discontinuing the prescribed medication altogether
because it had no effect on the pain. (Id.) From 2002 to the present, Applicant continued
to smoke marijuana, but decreased his use to twice a month for therapeutic purposes of
dealing with his hand and knee pain. (Id.) 
Applicant indicated in the October 2009 interview that he possessed an amount
of marijuana in a container about the size of a cell phone, and that the amount might
last him until June 2010. (Id. at 3) He repeatedly stated he would stop using marijuana if
required to hold a security clearance. He indicated in GE 5 that he stopped using
marijuana in July or August 2009. He testified his last marijuana use was on his
birthday, August 23, 2009. (Tr. 46) Applicant provided no explanation for telling the
investigator during the interview that his last use marijuana was on October 7, 2009.
(GE 3 at 3)
SOR 1.c: In his October 2009 interview, Applicant discussed his use of ecstacy
with a partner one or two times a month between November 2005 and July 2009. His
partner always provided the marijuana and ecstacy. (GE 3 at 2, 3) In GE 5, Applicant
described his ecstacy use from 2005 to August 2009, at a frequency of one to two times
a month. In his answer to the SOR and at the hearing, Applicant claimed that he did not
begin to use ecstacy until January 2006 rather than November 2005. Though Applicant
did not want to use ecstacy, he or his partner made concessions to build their
relationship. (Tr. 53, 26) Applicant denied he was ever dependent on ecstacy and
declared he had no intention of using the drug in the future. (GE 3 at 3)
SOR 1.d: Applicant completed and certified his SCA on August 25, 2009. (GE 2)
In his interview dated October 7, 2009, Applicant indicated that he used marijuana
about twice a month from 2002 to the present. (GE 3) He also noted in his October
2009 interview that his last use of marijuana occurred on October 4, 2009, to facilitate
sleep. (Id. at 3) I find Applicant used marijuana after he applied for a security clearance
on August 25, 2009. 
SOR 1.e: In 2005, Applicant purchased a small bag of marijuana. He could not
recall how much he paid or the amount he purchased. (Id.) He also purchased a
marijuana cigarette in February 2002 and again in October 2003. (Id.) Applicant never
received a prescription for his marijuana use (Tr. 34, 43), but claimed he was trying to
get a prescription on two occasions when he bought the drug. (Tr. 44) He has never
received counseling or treatment for his drug use. (GE 3, GE 4, GE 5; Tr. 58) 
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When asked whether he intended to forego all future marijuana use, Applicant
initially testified that if he received the security clearance, he would not use drugs. (Tr.
29) At a later point in his testimony, he testified other matters are more important in his
life than using marijuana. (Tr. 48-49) Subsequently, Applicant testified that if the
Government wanted him to make a “personal sacrifice,” then he would stop using the
drug because he did not want to do anything that is not permitted. (Tr. 57) AE A, as
referenced in Statement of Case, contains Applicant’s stated intention, dated July 22,
2010, not to use marijuana in the future, and submit to random drug testing. 
Applicant no longer has contact with his former partner who provided him the
ecstacy. (GE 3; Tr. 52) In addition, Applicant stopped traveling to the area where his
former partner lived. (Tr. 62-63)
Character Evidence
On July 19, 2010, Ms. B, Vice President of Human Resources and
Administration, wrote a character reference for Applicant. (AE B) She has known him
professionally since 1996, and he is still a professional and personal friend. Her
endorsement of him for a position of trust is based on his good judgment,
trustworthiness, and belief in the national security. (Id.)
AE C is a character reference dated July 22, 2010, from Mr. C, Director of
Strategic Development, the second person noted in AE A. Their relationship began
professionally in the late 1980s. They have socialized together on many occasions. In
Mr. C’s view, Applicant should receive a security clearance because of his good
judgment and security conscientiousness. 
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 useful 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 commonsense. 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. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture. 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.
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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 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.
Applicant’s admitted use of marijuana from about 1985 to 1988, after eye
surgery, and from 1998 to at least August 23, 2009 invokes the disqualifying condition
set forth in AG ¶ 25(a) (any drug use). In order to use an illegal drug, the user has to
possess the illegal drug. AG ¶ 25(c) (Illegal drug possession, including cultivation,
processing, manufacture, purchase, sale, or distribution; or possession of drug
paraphernalia) also applies. Applicant purchased marijuana on three occasions. 
Applicant used marijuana at varying frequencies from 1984 to 1988. After
returning his security clearance and being read out of classified programs in 1998,
Applicant resumed marijuana use for approximately 11 years. Regardless of why he
used the drug, Applicant repeatedly broke the law. His use of marijuana in the 1980s to
thwart the disabling side effects of the prescribed eye medication does not excuse the
fact that his use was illegal. His decision in 2002 to replace eight months of prescribed
hand and knee medication with marijuana does not extenuate his illegal use of
marijuana. Given Applicant’s age and education, he should have returned to his
physician to identify a legal course of action to treat his condition. 
Applicant’s drug use from 1998 to October 4, 2009 is disqualifying under the drug
involvement guideline. His inconsistent and ambiguous statements about when he
terminated his drug use and whether he would use drugs in the future are not credible.
AG ¶ 25(h) (expressed intent to continue illegal drug use, or failure to clearly and
convincingly commit to discontinue drug use) applies. 
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
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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’s drug use did not end until October 2009, after 11 years of illegal
marijuana use coupled with about three and a ½ years of ecstacy use. Even though
there is no precise definition of the word “recent,” Applicant’s illegal drug use, which
ended less than a year ago, is considered recent. Since Applicant admitted periodic
marijuana and ecstacy use over several years, his use cannot be considered sporadic.
The lack of substantial evidence showing a clear and convincing commitment to
discontinue all drug use continues to cast doubt on Applicant’s current reliability,
trustworthiness, and good judgment. AG ¶ 26(a) does not apply. 
Applicant resumed drug use in 1998 after relinquishing his security clearance. In
his October 2009 interview (GE 3), he stated that he had no intention of using ecstacy in
the future, but he did not provide the same unconditional language about future
marijuana use. He conditioned his abstinence from marijuana use to being granted a
security clearance. At the hearing, Applicant seemed to move toward an unconditional
intent to forego all future marijuana use when he referred to his age and presence of
more important matters in life. However, he did not provide an unconditional intention to
forego future drug use until after the hearing. While Applicant may have disassociated
himself from drug-using contacts, and changed his environment, insufficient time has
passed under AG ¶ 26(b) to justify complete confidence in his stated intention to refrain
from all future drug use. Applicant has not mitigated the security concerns associated
with his drug involvement.  
Personal Conduct
Paragraph 15 of the AG sets forth the security concern for personal conduct: 
Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions
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.
The disqualifying condition under AG ¶ 16 of the personal conduct guideline is:
AG ¶ 16(d) (credible adverse information that is not explicitly covered under any other
guideline and may not be sufficient by itself for an adverse determination, but which,
when combined with all available information supports a whole-person assessment of
questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to
comply with rules and regulations, or other characteristics indicating the person may not
properly safeguard protected information. This includes but is not limited to
consideration of: (3) a pattern of dishonesty or rules violations...)
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Applicant’s repeated illegal drug use from 2002 to at least August 23, 2009,
demonstrates a willingness to disregard rules and regulations. 
There are three mitigating conditions under AG ¶ 17 that are potentially
applicable to the circumstances in this case. Those conditions are: AG ¶ 17(c) (the
offense is so minor, or so much time has passed, or the behavior is so infrequent, or it
happened under such unique circumstances that it is unlikely to recur and does not cast
doubt on the individual’s reliability, trustworthiness, or good judgment); AG ¶ 17(d) (the
individual has acknowledged the behavior and obtained counseling to change the
behavior or taken other positive steps to alleviate stressors, circumstances, or factors
that caused untrustworthy, unreliable or other inappropriate behavior, and such
behavior is unlikely to recur); and, AG ¶ 17(g) (association with persons involved in
criminal activity has ceased or occurs under circumstances that do not cast doubt on
the individual’s reliability, trustworthiness, judgment or willingness to comply with rules
and regulations). The mitigating conditions have been carefully considered but none
apply due to the frequency and scope of Applicant’s drug use, and the fact his drug use
and disassociation with drug users did not end until July 2009. The personal conduct
guideline has not been mitigated. 
Whole-Person Concept
This recommended 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:
(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 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. 
I have evaluated the facts of this case in conjunction with the disqualifying and
mitigating conditions of the AG. I have found against Applicant under the drug
involvement and the personal conduct guidelines. I have also assessed this case under
the nine general factors of the whole-person concept.
AppIicant began his illegal use of marijuana in about 1985. He exercised good
judgment between 1988 and 1998 by not using drugs while holding a security
clearance. However, in 1998, Applicant resumed using marijuana periodically, choosing
to violate the law for the next 11 years. Beginning in late 2005 or early 2006, he
combined his illegal marijuana use with ecstacy use at varying frequencies until July
2009. Applicant has provided different cessation dates for his marijuana use in place of
the date of October 4, 2009 that he provided in his in October 7, 2009, interview. 
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While Applicant’s character evidence provides a favorable picture of a person
who generated a quality performance record during his employment with the defense
contractor between 1988 and 1998, the evidence in mitigation does not overcome the
duration and recency of his drug use. Moreover, his illegal drug use does not dispel the
repeated rules violations under the personal conduct guideline. 
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 through 1.e Against Applicant
Paragraph 2 (Guideline E): AGAINST APPLICANT
Subparagraph 1.a Against Applicant 
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with national interest to grant Applicant eligibility for a security
clearance. Eligibility for access to classified information is denied. 
                      
Paul J. Mason
Administrative Judge