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                        DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
------------------------ )       ISCR Case No. 10-03213
)
Applicant for Security Clearance )
Appearances
For Government: Eric Borgstrom, Esquire, Department Counsel
For Applicant: Pro se
                                                                            
______________
Decision
______________
MARSHALL, Jr., Arthur E., Administrative Judge:
On November 23, 2010, the Defense Office of Hearings and Appeals (DOHA)
issued a Statement of Reasons (SOR) enumerating security concerns under Guideline
H (Drug Involvement) and Guideline E (Personal Conduct). The action was taken under
Executive Order (EO) 10865, Safeguarding Classified Information within Industry
(February 20, 1960), as amended; Department of Defense (DOD) Directive 5220.6,
Defense Industrial Personnel Security Clearance Review Program (January 2, 1992),
as amended (Directive); and the adjudicative guidelines (AG) effective within the DOD
on September 1, 2006. 
In a December 17, 2010, response, Applicant admitted the allegations raised
under Guideline H and Guideline E, and requested a decision without hearing. The
parties proposed a hearing date of March 30, 2011. A notice setting the hearing date for
March 20, 2011, was issued on March 16, 2011. I convened the hearing as scheduled. 
Applicant testified, called one witness, and offered six documents, which were
accepted into the record without objection as exhibits (Exs.) A through F. He was given
until April 6, 2011, to submit any additional documents for consideration. Department
Counsel offered nine documents, which were admitted as exhibits (Exs.) 1-9 without
objection. On April 7, 2011, the transcript (Tr.) of the proceeding was received. Also on
 Tr. 41.      1
 Tr. 43-44. Applicant is unaware whether his employer has an anti-drug policy.      2
 Tr. 25.      3
 Tr. 40-41.      4
 Tr. 25.      5
 Tr. 26, 32; Ex. E (W ikipedia entry Cluster Headache, dated Mar. 29, 2011) and Ex. I (American Headache      6
Society, Treatment of Cluster Headache, undated).
 Tr. 26, 29. Applicant noted that they can be “about as unbearable a pain as [he] can imagine.”      7
 Tr. 26-27.      8
2
April 7, 2011, Department Counsel forwarded three additional documents timely
received from Applicant. Lacking objections to those documents, they were accepted
into the record as Exs. G through I and the record was closed. Based on a thorough
review of the testimony, submissions, and exhibits, I find Applicant failed to meet his
burden of mitigating the security concerns raised in the SOR. Clearance is denied.
Findings of Fact
Applicant is a 41-year-old lead architect who has worked for the same defense
contractor for nine years. Applicant earned a high school diploma and completed a
bachelor’s degree. He married in 2000. He has no children. 
As a college upperclassman, Applicant tried marijuana about six to ten times
between 1990 and 1991, and contributed money toward its purchase. After college, he
concentrated on employment and held multiple positions before starting work with his
present employer. He was granted a secret clearance in 2003.  In 2006, Applicant and1
his wife had a party in their home. His wife’s cousin attended the party and was in the
basement when he produced a marijuana cigarette. Applicant, who was inebriated at
the time, accepted the marijuana cigarette, had one inhalation, and passed it back.
Applicant knew that marijuana use was illegal and against DoD policy for those who
possess a security clearance.  He attributes his lapse to alcohol and poor judgment. He2
no longer associates with his wife’s cousin.  In 2007, he was in a room in his home3
where someone was using marijuana, but he did not directly ingest the drug.4
In about fall of 2008, Applicant was granted a top secret clearance.  At the time,5
he had recently been doing internet research on cluster headaches, a condition from
which he suffered. His cluster headaches would occur “pretty much like clockwork”
about every two-and-a-half years, and would last for about six weeks of increasing
severity until they would clear and he would start another headache-free cycle.  Such6
headaches would build to a climax, during which they would become highly debilitating.
At their peak, they affect his ability to function normally, and often require Applicant to
take time off from work.  Applicant discovered that marijuana was listed on a number of7
internet websites as a possible treatment.  He did not check with his office or his8
 Tr. 33-34.      9
 Tr. 35.      10
 Tr. 34, 45, 49-50.      11
 Tr. 45.      12
 Tr. 45-46 Applicant has not consulted any medical physicians who specialize in headaches. His initial      13
diagnosis for cluster headaches predates the facts at issue and he has accepted the condition as “a fact of
life sort of thing.” His wife indicates that he first sought treatment for the headaches in the early 2000s. Ex.
C (Letter, dated Mar. 28, 2011).
 Tr. 27, 33. Also in 2008, Applicant attended a function where marijuana was being used, but he did not      14
ingest the drug. Tr. 42-43.
 Tr. 26.      15
 Id.      16
 Tr. 36, 41-42, 50. Applicant also disclosed the drug use on his September 2009 security clearance      17
application. See Ex. 1 (Security clearance application, dated Sep. 24, 2009).
 Tr. 27-28.      18
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security officer about whether trying marijuana for self-prescribed medical reasons
would create a security concern.  A professional acquaintance advised him that such an9
inquiry might lead to issues such as those noted in the SOR.  Moreover,  Applicant did10
not check with his medical provider about its efficacy, whether he would be a candidate
for marijuana therapy, or explore prescription alternatives such as Marinol, a synthetic
cannabinoid.  He did not pursue the issue of medical marijuana or a related alternative11
with his doctor because his physician “isn’t anybody I trust, a person I trust for any
medical advice, oddly.”  He did not inquire about the medical use of marijuana or a12
cannabinoid pharmaceutical with any qualified medical providers or headache
specialists.  There is no evidence that he sought pain management through a13
legitimate pain clinic or other qualified resource. 
In October 2008, a few weeks after being granted a top secret clearance,
Applicant was on a business trip in a city where, through acquaintances and co-
workers, he thought he could get marijuana.  He did not buy marijuana. Rather, he was14
given some of the drug by a a co-worker or acquaintance who had acquired the
marijuana through a medical source.  Based on his internet research, he used the15
marijuana, “felt the expected effects of marijuana, and then had a terrible headache the
next day.”  He did not inform his security officer about his marijuana use when he16
returned to his office. He later noted it on his Sensitive Compartmented Information
(SCI) access application form, which was ultimately denied in May 2009.17
Concerning the marijuana experiment as an approach to managing his medical
condition, Applicant noted, “it didn’t work, so mostly, the worst case scenario of the
situation is I didn’t find anything that was going to help the condition and I’ve just
violated something that I said I wouldn’t do as part of my security clearance.”  He also18
 Tr. 30.      19
 Tr. 28-29.      20
 Tr. 44.      21
 Id. See also Tr. 62-64.      22
 Tr. 63-64. See also Ex. I, supra, note 6.      23
 Tr. 29.      24
 Tr. 50.      25
 Tr. 42-43.      26
 Ex. D (Letter, dated Mar. 30, 2011).      27
 Tr. 53-55.      28
 Tr. 56.      29
 Ex. G (Letter, dated Apr. 5, 2011).      30
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stated that his decision to try marijuana “wasn’t a rash decision. It wasn’t a situation
where I was drinking and thought it would be fun. It was a  decision where I looked at
alternatives. I looked at . . . risk factors. . . .”  Regarding subsequent internet queries19
about the efficacy of marijuana for cluster headaches, Applicant concluded that
marijuana “is only a good treatment according to people who are trying to use
marijuana to treat everything. So its not exactly legit.”20
At the time he tried marijuana for his headaches, Applicant had a prescription for
Imitrex, a prescription drug prescribed by his general practitioner for his headaches.21
He does not like the medication because of potential cardiovascular side effects.
However, although he has not been poised for a recurrence of cluster headaches since
the cycle coinciding near his 2008 marijuana use, Applicant testified that he has found a
newer, injectable form of the medication to be sufficiently effective.  He has not tried22
any other medications known to target intense headaches.  Citing to his recent23
acquisition of a pilot’s license and his work, Applicant stated that illegal drug use makes
“it very prohibitive for [him] to have any kind of drugs, illegal, especially.”  24
Applicant has no intent to use marijuana or any other illegal drugs in the future.
He no longer socializes with those who use drugs.  He annually attends a work-related25
conference where he has seen drug activity.  Applicant signed a statement of intent26
with automatic revocation of security clearance for any future violation.  He is27
successful at his job. His former supervisor stated that Applicant is trustworthy, and
noted that Applicant is a hard worker and very reliable.  He confirmed that Applicant’s28
cluster headaches had impacted Applicant’s ability to work when they occur.29
Applicant’s regional director described Applicant as “popular, influential, and effective”
at work30
 See also ISCR Case No. 94-1075 at 3-4 (App. Bd. Aug. 10, 1995).      31
 ISCR Case No. 93-1390 at 7-8 (App. Bd. Jan. 27, 1995).      32
 Id.      33
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Policies
When evaluating an applicant’s suitability for a security clearance, an
administrative judge must consider the AG. In addition to brief introductory explanations
for each guideline, the AG list potentially disqualifying conditions and mitigating
conditions. 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. Under AG ¶ 2(c), this
process is a conscientious scrutiny of a number of variables known as the “whole-
person concept.” The administrative judge must consider all 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.
The Government must present evidence to establish controverted facts alleged
in the SOR. An 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 burden of proof is something less than a preponderance31
of evidence. The ultimate burden of persuasion is on the applicant.  32
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 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 EO 10865 provides that decisions shall be “in terms of the national
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). “The clearly consistent standard indicates that
security clearance determinations should err, if they must, on the side of denials.”  Any33
 Id.      34
 AG  ¶ 24.      35
 Id. at ¶ 24(a)(1-2).      36
 Id. at  ¶ 24(b).      37
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reasonable doubt about whether an applicant should be allowed access to sensitive
information must be resolved in favor of protecting such sensitive information.34
Based upon consideration of the evidence, Guideline H (Drug Involvement) and
Guideline E (Personal Conduct) are the most pertinent to this case. Conditions
pertaining to these AGs that could raise a security concern and may be disqualifying,
and those which would mitigate such concerns, are discussed below.
Analysis
Guideline H – 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.  “Drugs” are defined as mood and behavior altering substances,35
and include drugs, materials, and other chemical compounds identified and listed in the
Controlled Substances Act of 1970, as amended, (e.g., marijuana or cannabis,
depressants, narcotics, stimulants, and hallucinogens) and inhalants and other
substances.  “Drug abuse” is the illegal use of a drug or use of a legal drug in a36
manner that deviates from approved medical direction.  37
Applicant admitted he used marijuana, an illegal drug, in the early 1990s. He
also admitted that he contributed money toward the purchase of marijuana during that
time. He admitted he used the drug in 2006 and 2008, after he was granted a security
clearance. Drug Involvement Disqualifying Conditions AG ¶ 25(a) (any drug abuse), AG
¶ 25(c) (illegal drug possession, including cultivation, processing, manufacture,
purchase, sale, or distribution; or possession of drug paraphernalia purchase of illegal
drugs), and AG ¶ 25(g) (any illegal drug use after being granted a security clearance)
apply. With disqualifying conditions raised, the burden shifts to Applicant to mitigate
related security concerns.
Applicant’s drug use did not end in the early 1990s. After receiving a security
clearance, he again abused the drug in 2006 and in October 2008. He failed to
immediately report these incidents to his security officer or his employer. While he is
now contrite over his more recent use of marijuana, he justifies his latest use of
marijuana as a form of internet-based, self-prescribed, medical inquiry without showing
any attempts to consult a qualified and trusted medical specialist. To date, he maintains
that he took a calculated risk. There is insufficient evidence to establish Drug
Involvement Mitigating Condition AG ¶ 26(a) (the behavior happened so long ago, was
 AG ¶ 15.      38
 Id.      39
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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). 
Since October 2008, Applicant has ended his social relationships with those who
use drugs, including a relative. However, it appears that he still attends an annual work-
related event where drug activity is known to occur. Therefore, AG ¶ 26(b)(1)
(disassociation from drug-using associates and contacts) applies, but AG ¶ 26(b)(2)
(changing or avoiding the environment where drugs were used) does not. In addition,
he signed a statement of intent in compliance with AG ¶ 26(b)(4) (a signed statement of
intent with automatic revocation of clearance for any violation), thus raising that
mitigating condition. 
Applicant has been drug-free for about two-and-a-half years, a period not
significantly longer than between his use of marijuana sometime in 2006 and late 2008.
Consequently, insufficient time has passed to establish a meaningful demonstration of
abstinence. AG ¶ 26(b)(3) (an appropriate period of abstinence) does not apply.
Applicant admitted that he illegally used marijuana, a controlled substance, in the
early 1990s, 2006, and in late 2008. The last two incidents were after he was granted a
security clearance. He failed to inform his security officer or employer of his drug abuse
within a reasonable time after each incident. Notable, but of less significance, is the fact
that while he is now drug-free, he works in an environment where associates apparently
use or have access to marijuana. Furthermore, insufficient time has passed to
demonstrate his resolve to remain drug free. In light of the totality of the facts and
Applicant’s statements, drug involvement security concerns remain unmitigated.
Accordingly, Guideline H of the SOR is concluded against Applicant.
Guideline E – Personal Conduct
Security concerns arise from matters of personal conduct because “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.“  In addition, “any failure to38
provide truthful and candid answers during the security clearance process or any other
failure to cooperate with the security clearance process” is of special interest.  39
The single allegation raised under this guideline references Applicant’s past
illegal drugs as the basis for his denial of SCI access. That underlying drug use was
thoroughly and explicitly considered under Guideline H, above. Therefore, 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 that the person
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may not properly safeguard protected information) does not apply. Given the nature
and content of the allegation, as well as Applicant’s open acknowledgment of the facts,
none of the other disqualifying conditions apply. As noted above, Applicant’s drug
involvement has already raised significant security concerns that remain unmitigated
and are further discussed under the whole-personal analysis below.
Whole-Person Concept
Under the whole-person concept, an administrative judge must evaluate an
applicant’s eligibility for a security clearance by considering the totality of an applicant’s
conduct and all the circumstances. An administrative judge should consider the nine
adjudicative process factors listed at AG ¶ 2 (a). Under AG ¶ 2(c), the ultimate
determination of whether to grant a security clearance must be an overall
commonsense judgment based on careful consideration of the guidelines and the
whole-person concept. 
I considered the potentially disqualifying and mitigating conditions in light of all
the facts and circumstances surrounding this case, as well as the “whole-person”
factors. Multiple facts speak in Applicant’s favor. He is a mature and bright man who is
a valued employee. He has worked for the same employer for nearly a decade. He a
high school diploma and completed a bachelor’s degree. He is married. Applicant
suffers from cluster headaches, a condition that causes intermittent periods of intense
and debilitating pain. 
Applicant has worked in the defense contracting industry for nearly a decade.
While every sympathy is with Applicant with regard to his medical condition, it does not
excuse his recreational and illegal use of marijuana at a party in 2006, as a mature and
educated man who was granted a security clearance only three years earlier. While a
one-time breach of this type is not necessarily cause for the automatic revocation of a
security clearance, these facts are particularly worrisome because he repeated his
mistake in 2008.
Applicant suffers from cluster headaches, a condition so debilitating that every
two-and-a-half years he experiences a six-week period of increasingly painful
headaches. The headaches become so severe that he is limited in his functioning and
is often unable to work for one or more of those weeks. Rather than seek the help of a
qualified headache specialist or seek relief through a pain management medical
practice, he chose to rely on a general practitioner for whom he holds little trust to
manage his condition. To compensate for his own lack of medical qualifications and in
search of better treatment options, he relied on the internet to research cluster
headaches. He discovered that marijuana might have some use in either the prevention
or management of cluster headaches. Rather than consult his regular doctor, a
specialist, or consider alternative therapies, Applicant considered marijuana to be a
potential option. 
At the time Applicant chose to illegally use marijuana to address his cluster
headaches in late 2008, he was about to complete an application for SCI access. He
had answered questions about past drug use on security-related applications before.
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He knew that marijuana was illegal. He knew that the use of illegal and controlled
substances was incompatible with the maintenance of both the security clearance and
SCI access. Just as he eschewed consulting a trusted medical specialist, he
purposefully chose to eschew the obvious first step for a professional in his position –
consulting his security officer or superior about his contemplation of illegally using non-
prescribed marijuana. He admits that he considered the “risk factors” before he used
marijuana for purportedly medicinal purposes, but proceeded with trying the drug for
medicinal purposes. Consequently, when he abused marijuana in October 2008, he
knowingly disregarded the illegality of his act; he proceeded without medical
authorization to use a controlled substance, and breached his duties and
responsibilities to the U.S. Government. There is no evidence that his security officer
was immediately advised of his marijuana use. There is only the evidence that he
disclosed the use on subsequent applications related to SCI access and his security
clearance. 
Given both Applicant’s pattern of intermittent drug use and his reckless behavior,
less than three years of renewed abstinence is insufficient to mitigate drug involvement
security concerns. Drug involvement security concerns remain unmitigated.   
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
Subparagraphs 1.a–1c: Against Applicant
Paragraph 2, Guideline E: FOR APPLICANT
Subparagraphs 2.a: For 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 a security clearance.
Clearance is denied.
ARTHUR E. MARSHALL, JR.
Administrative Judge