1 Authorized by DoD Directive 5220.6 (Directive), Section E3.1.2.2.
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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
[Name Redacted] )       ISCR Case No. 10-01470
)
)
)
Applicant for Security Clearance )
Appearances
For Government: Richard A. Stevens, Esquire, Department Counsel
For Applicant: Robert D. Fogel, Esquire
______________
Decision
______________
MALONE, Matthew E., Administrative Judge:
Applicant failed to mitigate the security concerns raised by his involvement with
illegal drugs between 1995 and 2009. Applicant’s request for a security clearance is
denied.
Statement of the Case
On September 10, 2009, Applicant submitted an Electronic Questionnaire for
Investigations Processing (e-QIP) to obtain a security clearance required for his job with
a defense contractor. After reviewing the results of the ensuing background
investigation, adjudicators for the Defense Office of Hearings and Appeals (DOHA)
issued to Applicant a set of interrogatories1 to clarify or augment information obtained by
investigators. After reviewing the results of the background investigation and Applicant’s
responses to the interrogatories, DOHA adjudicators were unable to make a preliminary
2 Required by Executive Order 10865, as amended, and by DoD Directive 5220.6 (Directive), as amended.
3 The adjudicative guidelines were implemented by the Department of Defense on September 1, 2006. These
guidelines were published in the Federal Register and codified through 32 C.F.R. § 154, Appendix H (2006).
Pending official revision of the Directive, they take precedence over the guidelines listed in Enclosure 2 to the
Directive.
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affirmative finding2 that it is clearly consistent with the national interest to grant
Applicant’s request for access to classified information. On August 17, 2010, DOHA
issued to Applicant a Statement of Reasons (SOR) alleging facts which, if proven, raise
security concerns addressed in the adjudicative guideline (AG)3 for illegal drug
involvement (Guideline H).
Applicant timely answered the SOR and requested a hearing. The case was
assigned to me on November 10, 2010. Pursuant to a Notice of Hearing issued on
November 16, 2010, I convened a hearing in this matter on December 9, 2010. DOHA
received a transcript (Tr.) of the hearing on December 28, 2010. 
The parties appeared as scheduled. The Government presented three exhibits,
which were admitted without objection as Government’s Exhibits (Gx.) 1 - 3. Applicant
testified and presented three exhibits, identified as Applicant’s Exhibits (Ax.) A - C.
Department Counsel objected to the admissibility of Ax. B, but I admitted it over his
objection. Ax. A and Ax. C were admitted without objection. I admitted Ax. B over
Department Counsel’s objection. (Tr. 17 - 19)
Findings of Fact
Under Guideline H, the Government alleged that Applicant used marijuana with
varying frequency, and at times daily, between 1995 and April 2009 (SOR 1.a); that he
used cocaine with varying frequency between 2002 and October 2007 (SOR 1.b); that
he used mushrooms with varying frequency between 2000 and 2007 (SOR 1.c); that he
used ecstacy with varying frequency between 1999 and 2002 (SOR 1.d); and that he
bought the drugs he used between 1995 and 2009 (SOR 1.e). Applicant admitted, with
explanation, all of the SOR allegations. Applicant’s admissions are incorporated in my
findings of fact. Having reviewed the response to the SOR, the transcript, and exhibits, I
make the following additional findings of relevant fact.
Applicant is 34 years old and employed by a defense contractor in a position that
requires a security clearance. Applicant has worked for his current employer since
February 2008. He has worked in the information technology field since he graduated
from college in 1999. (Gx. 1) 
Applicant started using marijuana in college at about age 19, when it was offered
to him by friends and at parties. After college, he began to purchase small amounts of
marijuana for personal use. He began to smoke marijuana more often, sometimes daily.
His daily use lasted until about February 2008. (Gx. 2 and 3; Tr. 55 - 56) Applicant used
marijuana about 12 times in 2008 and 2009. He also used mushrooms, ecstacy, and
4 See Department of the Navy v. Egan, 484 U.S. 518 (1988).
5 Directive. 6.3.
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cocaine between 2002 and 2007. Applicant last used marijuana at a Super Bowl party in
February 2009, and at a golf tournament in April 2009. (Gx. 1; Gx. 2; Gx. 3)
Applicant used ecstacy once in 1999. He was given one ecstacy pill while at the
beach with friends. While on trips with friends on six other occasions between 2000 and
2002, Applicant purchased and used the drug. (Gx. 2.) Between about May 2000 and
October 2007, Applicant used cocaine while on trips with friends and at home. He
sometimes purchased cocaine by contributing to the cost of the drug when it was
provided by others. (Id.) Applicant also used hallucinogenic mushrooms about six times
between 2002 and 2007. The mushrooms were provided by friends while camping. He
also contributed to the purchase of mushrooms he used with friends at a music festival
in 2002, 2003, and 2005. (Id.)
In October 2010, Applicant self-referred for a professional substance evaluation
and urinalysis. The latter was negative for any illegal substances. (Ax. C) The
evaluation concluded that Applicant does not have a substance abuse problem that
requires clinical treatment. The evaluation also stated that Applicant’s reported drug use
was experimental and “ended several years ago.” (Ax. B) While his use of cocaine,
ecstacy and mushrooms was sporadic, Applicant acknowledged that his marijuana use
“far exceeds the notion of experimentation.” (Tr. 32 - 33)
Applicant enjoys a good reputation at work for his professionalism, intelligence,
and hard work. Military customers, co-workers, and long-time friends regard him as
reliable and honest. (Ax. A) Applicant testified that he stopped using drugs in April 2009,
in part, because of his application for a security clearance, and because he is in a
committed relationship with a woman whom he is likely to marry. She disapproves of
illegal drug use. (Answer; Tr. 30 - 31)
 
Policies
A security clearance decision is intended to resolve whether it is clearly
consistent with the national interest4 for an applicant to either receive or continue to
have access to classified information. Each decision must be a fair, impartial, and
commonsense determination based on examination of all available relevant and
material information,5 and consideration of the pertinent criteria and adjudication policies
in the adjudicative guidelines. Decisions must also reflect consideration of the factors
listed in ¶ 2(a) of the new guidelines. Commonly referred to as the “whole-person”
concept, those factors are:
(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
6 See Egan, 484 U.S. at 528, 531.
7 See Egan; Revised Adjudicative Guidelines, ¶ 2(b).
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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. 
The presence or absence of a disqualifying or mitigating condition is not, by itself,
conclusive. However, specific applicable guidelines should be followed whenever a case
can be measured against them as they represent policy guidance governing the grant or
denial of access to classified information. In this case, the pleadings and the information
presented by the parties require consideration of the security concerns and adjudicative
factors addressed under AG ¶ 24 (Drug Involvement).
The Government bears the initial burden of producing admissible information on
which it based the preliminary decision to deny or revoke a security clearance for an
applicant. Additionally, the Government must be able to prove controverted facts
alleged in the SOR. If the Government meets its burden, it then falls to the applicant to
refute, extenuate or mitigate the government’s case. Because no one has a “right” to a
security clearance, an applicant bears a heavy burden of persuasion.6 A person who
has access to classified information enters into a fiduciary relationship with the
Government based on trust and confidence. Thus, the Government has a compelling
interest in ensuring each applicant possesses the requisite judgment, reliability, and
trustworthiness of one who will protect the national interests as his or her own. The
“clearly consistent with the national interest” standard compels resolution of any
reasonable doubt about an applicant’s suitability for access in favor of the Government.7
Analysis
Drug Involvement
The Government presented sufficient information to show that Applicant used
marijuana extensively from about 1995 until April 2009. The Government’s information
also established that Applicant used cocaine, ecstacy, and hallucinogenic mushrooms
on multiple occasions between 1999 and 2007. Available information also showed that
Applicant purchased illegal drugs for personal use and to use with others. These facts
raise a security concern addressed in AG ¶ 24 as follows:
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: 
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(1) 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 (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. 
More specifically, available information requires application of the disqualifying
conditions listed at AG ¶ 25(a) (any drug abuse (see definition [at AG ¶ 25(a)]) and AG
¶ 25(c) (illegal drug possession, including cultivation, processing, manufacture,
purchase, sale, or distribution; or possession of drug paraphernalia). 
By contrast, the mitigating condition at AG ¶ 26(b) (a demonstrated intent not to
abuse any drugs in the future, such as: (1) dissociation from drug-using associates and
contacts; (2) changing or avoiding the environment where drugs were used; (3) an
appropriate period of abstinence... ) must be considered here. Applicant has not used
illegal drugs since April 2009. It also appears that his personal and social life no longer
includes substance abuse. 
However, none of the other pertinent mitigating conditions apply. His drug use
started in college at about age 19, which is not unusual. However, his drug use became
more frequent and diverse over the course of the 15 years after he graduated. It did not
end until he was 33 years old. Because of the length and scope of his illegal drug
involvement, Applicant’s abstinence over the past two years is insufficient to support
application of the mitigating condition at 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).
Applicant presented a clinical evaluation and a negative drug test; however,
without more information about the evaluation and the person who provided it, Ax. B
and C are not sufficient to support application of the mitigating condition at AG ¶ 26(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). On balance, Applicant has
failed to mitigate the security concerns about his past drug use. 
Whole-Person Concept
I have evaluated the facts presented and have applied the appropriate
adjudicative factors under Guidelines H. I have also reviewed the record before me in
the context of the whole-person factors listed in AG ¶ 2(a). Applicant is 34 years old and
presumed to be a mature adult. However, his behavior for the past 15 years reflects
serious defects in his judgment and trustworthiness. I have considered that his personal
life now appears to be more responsible, and that he was candid and forthcoming
during the investigation and adjudication of his suitability for a clearance. Nonetheless, it
8 See footnote 5, supra.
9 See footnote 7, supra. 
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is too soon, given this extensive record of misconduct and questionable judgment, to
conclude that his drug use will not recur. A fair and commonsense assessment8 of all
available information bearing on Applicant’s past and current circumstances shows that
doubts remain about his ability to protect the Government’s interests as his own.
Because protection of the national interest is paramount in these determinations, such
doubts must be resolved for the Government.9
Formal Findings
Formal findings 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 - 1.e: Against Applicant
Conclusion
In light of all of the foregoing, it is not clearly consistent with the national interest
to grant Applicant access to classified information. Request for security clearance is
denied.
                                         
MATTHEW E. MALONE
Administrative Judge