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                               DEPARTMENT OF DEFENSE
                DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
--------, --------- ---- )       ISCR Case No. 09-04989
SSN: ------ ---- -------- )
)
Applicant for Security Clearance )
Appearances
For Government: Fahryn E. Hoffman, Esquire, Department Counsel
For Applicant: Pro se
______________
Decision
______________
WHITE, David M., Administrative Judge:
Applicant used marijuana from about 1974 until 1988, when he stopped in
connection with treatment in Alcoholics Anonymous. He resumed regular recreational
marijuana use in 2004, and expressed his intent to continue using it several times
during the security clearance application process. He says he stopped using marijuana
recently, but that caused him to relapse into alcohol use. He used marijuana with his
daughter, and does not want his employers to know about his drug use. Based upon a
review of the case file, pleadings, testimony, and exhibits, eligibility for access to
classified information is denied. 
Applicant submitted a security clearance application (SF 86) on May 6, 2009. On
November 4, 2009, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) to Applicant, detailing security concerns under Guidelines
H (Drug Involvement), J (Criminal Conduct), and E (Personal Conduct). 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 for Determining Eligibility for
GE 1.1
GE 2.2
Tr. 33-34. I granted Department Counsel’s motion to amend the SOR to conform to the evidence by3
changing the originally alleged “1970" to “1974.”
GE 2; Tr. 24, 39-44.4
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Access to Classified Information that went into effect within the Department of Defense
on September 1, 2006. 
Applicant acknowledged receipt of the SOR on November 10, 2009. He
answered the SOR in writing on November 30, 2009, and requested a hearing before
an administrative judge. Department Counsel was prepared to proceed on February 11,
2010, and the case was assigned to me on May 13, 2010. DOHA issued a Notice of
Hearing on July 9, 2010, and I convened the hearing as scheduled on August 18, 2010.
The Government offered exhibits (GE) 1 and 2, which were admitted without objection.
Applicant offered no documentary evidence, and testified on his own behalf. I granted
Applicant’s request to leave the record open until September 7, 2010, for submission of
additional evidence. DOHA received the transcript of the hearing (Tr.) on August 20,
2010. Applicant did not submit any additional evidence before the deadline, nor did he
request an extension of time to do so.  
Findings of Fact
Applicant is a 56-year-old employee of a major defense contractor, where he has
worked since 1981 under various corporate structures. He has no military service, and
this is his first application for a security clearance. He is married with two adult
daughters and two adult stepsons.  In his response to the SOR, he formally admitted all1
of the factual allegations except SOR ¶ 1.c, which he denied. Applicant’s admissions,
including his statements in response to DOHA interrogatories,  are incorporated in the2
following findings.
Applicant began using marijuana in approximately 1974, while he was in college.3
He continued smoking marijuana, including recreational use with his first wife, until 1988
when he entered Alcoholics Anonymous (AA). He has abstained from alcohol use since
then, with a few recent relapses, but resumed smoking marijuana in 2004 when an old
friend offered him some. Following that incident, Applicant gradually increased his use
of marijuana from monthly to every weekend and several week nights per month. He
occasionally bought marijuana and possessed it for his own use. His last purchase was
around September or October 2009. His last use of marijuana was in October 2009,
shortly before his receipt of the SOR. He stopped using marijuana at that point because
his clearance was denied as a result of his previous actions and statements that he
intended to continue using it.4
AR; GE 1; GE 2; Tr. 25, 45-49, 51, 72-73.5
GE 1; GE 2; Tr. 56-57.6
GE 2 at 50.7
GE 2.8
Tr. 60, 92-93.9
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Applicant’s first wife was diagnosed with cancer during late 2006, and she
passed away in January 2007. This was a particularly stressful period for Applicant, and
his marijuana use increased to help him sleep. His younger daughter graduated from
high school during the spring of 2007, and had turned 18 the previous October. During
the summer of 2007, Applicant became aware of his daughter’s marijuana use, and told
her that he also used marijuana in an attempt to create an additional bond with her. He
described her as a marijuana activist who continues to use and favors legalization. He
used marijuana with her and several of her friends about 10 or 12 times over the next
year or two. Applicant remarried in October 2008. He smoked marijuana with his current
wife several times, but she did not like inhaling the smoke and preferred to drink
alcohol. He also smoked marijuana once or twice a month with his now-24-year-old
stepson starting in December 2008.  5
When Applicant completed his May 2009 SF 86, he answered “Yes” to the
questions inquiring about illegal drug use and possession. He described his dates of
marijuana use as from March 2006 (estimated) to May 2009. He described: “Occasional
weekend recreational use and to help with sleeping difficulties after my first wife died. I
have possessed very small quantities (less than 7 grams) of marijuana for my own
personal use. Stopped use with current job.” During his hearing, he was troubled that he
had estimated March 2006, rather than 2004, as the date he resumed marijuana use.
He credibly testified that he had no intention to conceal his actions, of which there is no
other evidence. He also admitted that his last statement about stopping use was not
correct, and he continued his regular marijuana use after submitting the SF 86.  6
During his June 2009 interview with an investigator from the Office of Personnel
Management (OPM), Applicant disclosed that he had last used marijuana one week
before, and planned on continued “occasional use.” He said he usually used it with
friends on the weekends, did not feel that he had a substance abuse problem, and
intended to continue such use.  On August 24, 2009, he responded to DOHA7
interrogatories concerning his drug use, which included an affirmation of the contents of
the OPM summary of the foregoing interview. He stated that he had not decided to stop
using illegal drugs, had last used the previous weekend, and intended to continue
occasional weekend use of marijuana.  8
Applicant testified that if it would not impact his career, professional life, or job,
he would probably continue to use marijuana because alcohol use is bad for him as an
alcoholic and should not be consumed with his arthritis medicine.  He resumed9
Tr. 55-56, 68-70.10
Tr. 76-79.11
Tr. 51-52, 61-63.12
Tr. 48-54, 63, 66-67, 73-76.13
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attendance at AA in May or June 2010 because he had relapsed into alcohol use after
he stopped smoking marijuana. He felt the program was helping him to avoid further
alcohol relapses. He is not seeking treatment for marijuana abuse or dependence, nor
has he ever done so.  Applicant was specifically advised of the option to submit a10
signed statement of intent not to use drugs in the future, with automatic revocation of
clearance for any violation, and indicated that he wanted to prepare and submit such a
statement in evidence. Department Counsel offered to provide a sample, and otherwise
assist Applicant with understanding the proper contents of such a signed statement.11
As noted above, Applicant submitted no documentary evidence during the period the
record remained open after the hearing at his request. Applicant continues to see the
friends with whom he smoked marijuana in the past. Many of these friends, as well as
his daughter and his stepson, continue to use it in his presence.  12
Many members of Applicant’s family know about his drug use, but nobody with
whom he works knows about it, specifically including his supervisor and his security
manager. Although he evaded acknowledging a formal company policy against drug
abuse, Applicant said he tries hard to present a clean-cut persona at work, and cares a
lot about what other people think of him. He thinks those he works with would think less
of him if they knew about his drug use, and it would adversely affect their trust or
confidence in him as a representative of the company to their Government customers.  13
Applicant submitted no other evidence concerning his character, or performance
evaluations concerning his work. He was credible in his honest admissions about his
history of drug use, and clear that the only reason he stopped using marijuana was
because that conduct was causing his security clearance to be denied. 
Policies
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 (DCs) and mitigating conditions (MCs), which are to be used 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s
overarching adjudicative goal is a fair, impartial, and commonsense decision. According
to AG ¶¶ 2(a) and 2(c), the entire process is a conscientious scrutiny of applicable
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guidelines in the context 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 the 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, “[t]he applicant is
responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or
mitigate facts admitted by the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7
of Executive Order 10865 provides: “[a]ny determination under this order adverse to an
applicant shall be a determination in terms of the national interest and shall in no sense
be a determination as to the loyalty of the applicant concerned.”
A person applying for access to classified information seeks to enter 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 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 potential, rather than actual, risk of compromise of
classified information.
Analysis
Guideline H, Drug Involvement
AG ¶ 24 expresses the security concern pertaining to alcohol consumption:
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, as amended (e.g.,
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marijuana or cannabis, depressants, narcotics, stimulants, and
hallucinogens), 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.
AG ¶ 25 describes conditions that could raise a security concern and may be
disqualifying. The DCs raised by the facts in this case are:
(a) any drug abuse (see above definition);
(c) illegal drug possession, including cultivation, processing, manufacture,
purchase, sale, or distribution; or possession of drug paraphernalia; and
(h) expressed intent to continue illegal drug use, or failure to clearly and
convincingly commit to discontinue drug use.
Applicant admitted to illegally using marijuana on a regular basis from 1974 to
1988, and again from 2004 to October 2009. Throughout this period he also purchased
and possessed the marijuana that he used. He apparently recognized the security
implications of this conduct when he stated on his SF 86, “Stopped use with current
job.” He told the OPM investigator in June 2009 that he intended to continue using
marijuana, and confirmed that intention under oath on August 24, 2009, in response to
DOHA interrogatories. He was also clear that he would continue using marijuana if it
would not prevent him from obtaining a security clearance, and he only stopped in order
to avoid denial of his clearance. Because he conceals his drug use from his security
manager, supervisor, and all coworkers, Applicant failed to clearly and convincingly
commit to discontinue drug use should he receive a security clearance under present
circumstances.
AG ¶ 26 provides conditions that could mitigate security concerns. The MCs with
potential application under the facts in this case are:
(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;
(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 were used; 
(3) an appropriate period of abstinence; and
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(4) a signed statement of intent with automatic revocation of
clearance for any violation; and
(d) satisfactory completion of a prescribed drug treatment program,
including but not limited to rehabilitation and aftercare requirements,
without recurrence of abuse, and a favorable prognosis by a duly qualified
medical professional.
Applicant’s known illegal drug use continued until as recently as one year ago,
was quite frequent, and did not happen under circumstances that would indicate it was
unlikely to recur or does not cast doubt on his current reliability, trustworthiness, or good
judgment. The existence of criminal laws prohibiting, and a company culture (if not
formal policy) prohibiting such conduct failed to deter him from regular use of marijuana.
No mitigation under AG ¶ 26(a) was established. 
Applicant did not demonstrate an intent not to abuse drugs in the future, and the
balance of evidence strongly indicates that he would resume drug use and continue to
hide it from his supervisor and security personnel should he be granted a security
clearance. Given his history of drug use that continued for many months after
submission of his SF 86, and despite obvious concerns from OPM and DOHA
investigators, his recent abstinence is of insufficient duration to demonstrate that
resumption of such conduct is unlikely. He only stopped because the conduct made him
ineligible for a security clearance, and said he would continue were it not having such
an effect. He continues to associate with his drug-using friends and contacts, and has
not changed or avoided the environment in which the drugs were and are used. Despite
his expressed desire to submit a signed statement of intent not to use drugs in the
future, he failed to do so. He accordingly failed to establish mitigation under AG ¶ 26(b).
Applicant’s marijuana use did not involve a prescription drug, so AG ¶ 26(c) has
no application. Finally, he has not entered or completed a drug treatment program, and
has no intention of doing so. AG ¶ 26(d) therefore supplies no mitigation.
Guideline J, Criminal Conduct
AG ¶ 30 expresses the security concern pertaining to criminal conduct: 
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. 
AG ¶ 31 describes conditions that could raise a security concern and may be
disqualifying. The condition supported by this record is ¶ 31(a) “a single serious crime or
multiple lesser offenses.” Applicant admitted purchasing, possessing, and using
marijuana on a great number of occasions over a long period of time, and that such
conduct violates both federal and local criminal laws. 
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AG ¶ 32 provides conditions that could mitigate criminal conduct security
concerns. These are: 
(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;
(b) the person was pressured or coerced into committing the act and those
pressures are no longer present in the person’s life;
(c) evidence that the person did not commit the offense; and
(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.
For the same reasons that Applicant failed to establish mitigation under AG ¶
26(a), discussed above, he failed to meet his burden with respect AG ¶ 32(a). He said
he used marijuana to help deal with the stress of his first wife’s sudden illness and
death from cancer, but he had resumed regular marijuana use at least three years
before that took place. There was no other evidence of coercion or pressure to use
marijuana. He simply liked doing it. Mitigation under AG ¶ 32(b) was not proven.
Applicant admitted all of these offenses, so AG ¶ 32(c) does not apply. If Applicant’s
claims to have abstained from marijuana use for almost a year are true, then he has
begun to demonstrate some evidence of rehabilitation. His relapses into alcoholism in
response to that drug abstinence raise potential concerns over whether such
rehabilitation could be considered successful, however, and his absence of any remorse
about his conduct further diminishes the mitigating effect. He offered no evidence
concerning his employment record or constructive community involvement. Accordingly,
Applicant failed to establish mitigation under AG ¶ 32(d).    
Guideline E, Personal Conduct
AG ¶ 15 expresses the security concern pertaining to 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.
AG ¶ 16 describes the DCs under this guideline. The specific Guideline E
concerns raised by the SOR allegations are:
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(e) personal conduct, or concealment of information about one’s conduct,
that creates a vulnerability to exploitation, manipulation, or duress, such
as (1) engaging in activities which, if known, may affect the person’s
personal, professional, or community standing. . .; and
(g) association with persons involved in criminal activity.
Applicant admitted frequent and regular marijuana use during five of the past six
years, including about a dozen instances of smoking it with his daughter and her friends
since the summer of 2007. He has concealed this marijuana use from his supervisors
and coworkers because he greatly values their high opinion of him as a clean-cut
individual, and knows that they would think much less of him if they knew of this
conduct. These facts establish substantial concerns under AG ¶¶ 16(e) and (g). Also
raised are the judgment, reliability, and trustworthiness issues the Appeal Board found
to be inherent under AG ¶ 15 in ISCR Case No. 06-20964 (App. Bd. Apr. 10, 2008).
Applicant’s choice to engage in illegal drug use with his 18-year-old daughter and her
friends, and expressed opinion that he feels no moral compulsion to obey laws
prohibiting marijuana use, show very questionable judgment and an unwillingness to
comply with rules and regulations he does not like. Security concerns are accordingly
raised, and shift the burden to him to establish mitigation.
AG ¶ 17 provides personal conduct MCs. The only MCs with potential
applicability to the foregoing security concerns are: 
(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;
(d) the individual has acknowledged the behavior and obtained counseling
to change the behavior or taken other positive steps to alleviate the
stressors, circumstances, or factors that caused untrustworthy, unreliable,
or other inappropriate behavior, and such behavior is unlikely to recur; 
(e) the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress; and 
(g) association with persons involved in criminal activity has ceased or
occurs under circumstances that do not cast doubt upon the individual’s
reliability, trustworthiness, judgment, or willingness to comply with rules
and regulations.
Minimal, if any, mitigation under AG ¶ 17(c) was established, for the reasons
discussed above concerning AG ¶¶ 26(a) and 32(a). AG ¶ 17(d) was not established
because he continues to deny the wrongfulness of his marijuana purchase, possession,
and use, and failed to establish that recurrence is unlikely as discussed above. His
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ongoing concealment of his extensive drug use from supervisors, security personnel,
and coworkers, creates substantial and continuing vulnerability to exploitation,
manipulation, and duress. AG ¶ 17(e) was therefore not established. Finally, he
continues his association with drug-using friends and relatives, who still engage in this
illegal activity in his presence. No mitigation under AG ¶ 17(g) was proven.
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 the applicant’s
conduct and all relevant circumstances. The administrative judge should consider the
nine adjudicative process factors listed at 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
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. 
Under AG ¶ 2(c), the ultimate determination of whether to grant eligibility for a security
clearance must be an overall commonsense judgment based upon careful consideration
of the guidelines and the whole-person concept.   
I considered the potentially disqualifying and mitigating conditions in light of all
pertinent facts and circumstances surrounding this case. Applicant’s most recent five-
year period of regular marijuana use involved voluntary and knowing behavior by a
mature and accountable individual. The illegal drug use continued for many months
after he applied for his clearance, despite his knowledge that such conduct was
prohibited. Applicant only stopped because he finally came to believe he would not
receive a clearance while he continued such conduct, and said that he would resume it
if not for such a consequence. Applicant expressed no remorse for his illegal conduct,
or for encouraging and engaging in such activities with his daughter and other young
people. Rehabilitation or permanent behavioral changes were not demonstrated. He
has hidden this conduct from everyone at work because it would adversely affect his
cherished reputation, making him susceptible to coercion and duress. Recurrence of
such activity is made more likely should he receive a clearance, since his only motive
for stopping would be removed and he expressed his intention to continue drug use
were it not such an impediment. 
Overall, the record evidence creates substantial doubt as to Applicant’s present
eligibility and suitability for a security clearance. He did not meet his burden to mitigate
the security concerns arising from his drug involvement, criminal conduct, and personal
conduct.
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Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline H: AGAINST APPLICANT
Subparagraphs 1.a through 1.c: Against Applicant
Paragraph 2, Guideline J: AGAINST APPLICANT
Subparagraph 2.a: Against Applicant
Paragraph 3, Guideline E: AGAINST APPLICANT
Subparagraph 3.a: Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the interests of national security to grant Applicant eligibility for a
security clearance. Eligibility for access to classified information is denied.
                                              
DAVID M. WHITE
Administrative Judge