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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
---------------------------------- ) ISCR Case No. 10-01076
)
Applicant for Security Clearance )
Appearances
For Government: Daniel F. Crowley, Esq., Department Counsel
For Applicant: Ray Gutierrez, Esq.    
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Decision
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LEONARD, Michael H., Administrative Judge:
Applicant contests the Defense Department’s intent to deny his eligibility for a
security clearance to work in the defense industry. The evidence shows he has a long-
term history of drug abuse (primarily marijuana) during the period 1996–2009. It began
as a way to self-medicate pain he experienced after a serious car accident in 1996.  His
marijuana use continued long after his recovery from his injuries and became a daily
routine. He last used marijuana in about December 2008. He last used cocaine in about
June 2009, a few months before he submitted his application for a security clearance.
His employment history includes being fired, once in 2007, and again in 2009, for failing
drug tests. Although the current short-term trend is favorable, given the nature, extent,
and seriousness of his drug abuse, it is too soon to tell if these matters are safely in the
past. He did not present sufficient evidence to mitigate the security concerns stemming
from his history of drug abuse. Accordingly, this case is decided against Applicant.
  This case is adjudicated under Executive Order 10865, Safeguarding Classified Information within Industry,1
signed by President Eisenhower on February 20, 1960, as amended, as well as DoD Directive 5220.6,
Defense Industrial Personnel Security Clearance Review Program , dated January 2, 1992, as amended
(Directive). In addition, the Adjudicative Guidelines for Determining Eligibility for Access to Classified
Information (AG), effective within the Defense Department on September 1, 2006, apply to this case.  The AG
were published in the Federal Register and codified in 32 C.F.R. § 154, Appendix H (2006). The AG replace
the guidelines contained in Enclosure 2 to the Directive.   
 Exhibit C. 2
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Statement of the Case
Acting under the relevant Executive Order and DoD Directive,  on February 10,1
2011, the Defense Office of Hearings and Appeals (DOHA) issued a statement of
reasons (SOR) explaining that it was not clearly consistent with the national interest to
grant Applicant access to classified information. The SOR is similar to a complaint, and
it alleged matters under Guideline H for drug involvement and Guideline E for personal
conduct.      
Applicant timely answered the SOR and requested a hearing. The case was
assigned to me on April 28, 2011. The hearing was scheduled for June 8, 2011, but was
postponed at the request of Applicant’s counsel. The hearing then took place as
scheduled by video teleconference on June 29, 2011. The hearing transcript (Tr.) was
received July 14, 2011. 
The record was kept open until July 15, 2011, to allow Applicant to submit
additional documentary evidence. Through counsel, Applicant made a timely
submission and those matters are marked and admitted without objections as follows:
(1) Exhibit M–affidavit; (2) Exhibit N–divorce decree; and (3) Exhibit O–state law
concerning remarriage.  
Findings of Fact
In his Answer to the SOR, Applicant admitted all factual allegations under
Guidelines H and E. His admissions are accepted as findings of fact. In addition, the
following findings of fact are supported by substantial evidence.  
Applicant is a 35-year-old employee of a federal contractor. He is seeking to
obtain a security clearance for the first time. His educational background includes an
associate’s degree in applied sciences earned in 2003. He has been employed by the
same company from July 2009 to present. He was recently promoted from his entry-
level position of telephone mechanic helper to telephone mechanic 1.  The company2
has a drug-free workplace policy, and he tested negative when he began his
 Exhibit A. 3
 Exhibit B. 4
 Exhibit 1. 5
 Exhibit 2. 6
 Exhibit I. 7
 Tr. 49–51. 8
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employment.  In response to the SOR and at his own expense, he underwent drug3
testing in February 2011, and he tested negative.4
Applicant has a history of illegal drug involvement. He disclosed it when he
completed his security clearance application in August 2009.  He provided additional5
information during a background interview in October 2009.  His undisputed history of6
illegal drug involvement is summarized as follows:
• He used marijuana, with varying frequency, during 1996–2008. For a period, he
used marijuana on a daily basis. His last use of marijuana took place in about
December 2008. He also bought marijuana.
• He used cocaine about 12 to 15 times during 2007–2009. The cocaine was
provided by a supervisor, and Applicant used it at work with other employees. 
• He used Ecstacy about five times during 2004. He also purchased the drug.
• He used hallucinogenic mushrooms one or two times during 2004.
• He tested positive for illegal drug use on two occasions, once in 2007 and again
in 2009. On each occasion, he was terminated or fired due to failing the drug
test.  
His drug of choice was marijuana, and that matter is discussed further below.
Before 1996, Applicant had never used illegal drugs. In 1996, he had a car
accident in which he was thrown from the vehicle and suffered multiple facial fractures
and a broken neck.  After two weeks in the hospital, he was released to an inpatient7
rehabilitation center where he was treated for about one month. That was followed by
about a month of outpatient therapy. He experienced intense pain as a result of his
injuries. A friend suggested he try using marijuana for the pain. He soon became a
regular, if not daily, user of marijuana. His marijuana use served as a “gateway drug” for
his other drug use.  He last used marijuana in about December 2008, as he decided he8
had to quit due to his family obligations. 
 Tr. 54–55. 9
 Exhibit M. 10
 Exhibit N. 11
 Exhibit 3. 12
 W hether this person is subject to removal from the United States and entitled to relief therefrom is a13
question of law for U.S. immigration authorities, and it is not addressed in this decision.  
 Exhibit H. 14
 Tr. 98–101. 15
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Applicant does not intend to use any illegal drugs in the future. He takes
complete blame and responsibility for his drug abuse,  and he appeared to be genuinely9
remorseful for his illegal drug involvement. He currently has a medical condition that
further motivates him to refrain from illegal drug use and encourages him to engage in a
healthy lifestyle (for example, diet and exercise). He also submitted an affidavit vowing
not to engage in any drug abuse in the future and agreeing to automatic revocation of
any clearance should he violate his promise.10
Applicant is the father of three children. His first child was born in 2006. He and
the mother were never married and are living separately. The mother has custody of the
child and he has visitation rights. The mother was a drug user as well and Applicant
sometimes used drugs with her. He has been living with another woman since about
2008. They have two children, the first born in March 2009, and the second born in
November 2010. At hearing, he explained that he intended to marry the woman, but
they were waiting for her divorce case to conclude. Subsequently, the divorce was
granted by the court in July 2011.  11
Applicant’s future bride’s immigration status in the United States is that of an
illegal resident alien, sometimes referred to as an undocumented alien. According to
Applicant, she was born in Mexico and has resided in the United States for the majority
of her life. He learned about her immigration status sometime after they had formed
their relationship. He denies providing her any assistance in entering the United
States.  Upon her divorce and their marriage, Applicant’s intent is to obtain legal12
counsel to complete and file the necessary paperwork with U.S. immigration authorities
in order to adjust her status to that of a lawful resident alien.    13
Applicant submitted multiple letters of reference in support of his application for a
security clearance.  Three of the letters are from adult family members. I found the14
letter from his mother and father to be particularly noteworthy. It was insightful and
revealing into Applicant’s car accident, the challenges he faced as a result, and his
current circumstances; it also shows they are actively involved in his life.  They live15
across the street from Applicant and they see him, or their grandchildren, nearly every
day. 
 Department of Navy v. Egan, 484 U.S. 518, 528 (1988) (“it should be obvious that no one has a ‘right’ to16
a security clearance”); Duane v. Department of Defense, 275 F.3d 988, 994 (10  Cir. 2002) (no right to ath
security clearance).
 484 U.S. at 531.17
 Directive, ¶ 3.2. 18
 Directive, ¶ 3.2. 19
 ISCR Case No. 02-18663 (App. Bd. Mar. 23, 2004).20
 Directive, Enclosure 3, ¶ E3.1.14.21
 Directive, Enclosure 3, ¶ E3.1.15.22
 Directive, Enclosure 3, ¶ E3.1.15.23
 Egan, 484 U.S. at 531. 24
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Law and Policies
This section sets forth the general principles of law and policies that apply to an
industrial security clearance case. The only purpose of a clearance decision is to decide
if an applicant is suitable for access to classified information. The Department of
Defense takes the handling and safeguarding of classified information seriously
because it affects our national security, the lives of our servicemembers, and our
operations abroad. 
It is well-established law that no one has a right to a security clearance.  As16
noted by the Supreme Court in Department of Navy v. Egan, “the clearly consistent
standard indicates that security clearance determinations should err, if they must, on the
side of denials.”  Under Egan, Executive Order 10865, and the Directive, any doubt17
about whether an applicant should be allowed access to classified information will be
resolved in favor of protecting national security.  
A favorable clearance decision establishes eligibility of an applicant to be granted
a security clearance for access to confidential, secret, or top-secret information.  An18
unfavorable decision (1) denies any application, (2) revokes any existing security
clearance, and (3) prevents access to classified information at any level.  19
There is no presumption in favor of granting, renewing, or continuing eligibility for
access to classified information.  The Government has the burden of presenting20
evidence to establish facts alleged in the SOR that have been controverted.  An21
applicant is responsible for presenting evidence to refute, explain, extenuate, or mitigate
facts that have been admitted or proven.  In addition, an applicant has the ultimate22
burden of persuasion to obtain a favorable clearance decision.  In Egan, the Supreme23
Court stated that the burden of proof is less than a preponderance of the evidence.24
 ISCR Case No. 01-20700 (App. Bd. Dec. 19, 2002) (citations omitted).25
 Executive Order 10865, § 7.26
 AG ¶¶ 24–26 (setting forth the security concern and the disqualifying and mitigating conditions). 27
 AG ¶ 24(b). 28
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The DOHA Appeal Board has followed the Court’s reasoning, and a judge’s findings of
fact are reviewed under the substantial-evidence standard.25
The AG set forth the relevant standards to consider when evaluating a person’s
security clearance eligibility, including disqualifying conditions and mitigating conditions
for each guideline. In addition, each clearance decision must be a commonsense
decision based upon consideration of the relevant facts and circumstances, the
pertinent criteria and adjudication factors, and the whole-person concept. 
The Government must be able to have a high degree of trust and confidence in
those persons to whom it grants access to classified information. The decision to deny a
person a security clearance is not a determination of an applicant’s loyalty.  Instead, it26
is a determination that an applicant has not met the strict guidelines the President has
established for granting eligibility for access.
Analysis
1. Drug Involvement
Under Guideline H,  the security concern is that the use of an illegal drug, or27
misuse of a prescription drug, raises questions about a person’s judgment, reliability,
and trustworthiness. In this context, the term drug abuse means “the illegal use of a
drug or use of a legal drug in a manner that deviates from the approved medical
direction.”  The guideline also expresses a concern that drug involvement may call into28
question a person’s ability or willingness to follow laws, rules, and regulations.
Here, the evidence is more than sufficient to establish concerns based on
Applicant’s history of drug abuse. The evidence shows Applicant was a long-term user
of marijuana; he used cocaine more than ten times at the workplace; and he dabbled in
two other illegal drugs. His last use of marijuana took place in about December 2008,
and his last use of cocaine took place in about June 2009, a few months before he
completed his security clearance application. He also failed two employer-administered
drug tests resulting in his termination on each occasion. Based on the evidence as a
whole, the following disqualifying conditions under Guideline H are raised:
AG ¶ 25(a) any drug abuse; 
AG ¶ 25(b) testing positive for illegal drug use; and 
 ISCR Case No. 96-0501 (Dec. 3, 1996); and ISCR Case No. 96-0416 (Dec. 12, 1996). 29
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AG ¶ 25(c) illegal drug possession, including cultivation, processing,
manufacture, purchase, sale, or distribution; or possession of drug
paraphernalia. 
There are several mitigating conditions to consider under Guideline H. The
following mitigating conditions are most pertinent:
AG ¶ 26(a) the behavior happed 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 were
used;
(3) an appropriate period of abstinence; or 
(4) a signed statement of intent with automatic revocation of
clearance for any violation.
After considering these disqualifying and mitigating conditions, the central issue
is whether Applicant presented sufficient evidence to mitigate and overcome the drug
involvement security concerns. I conclude that he has not. His drug abuse began in
1996, when he started using marijuana to self-medicate intense pain from injuries
sustained in the car accident. That is an extenuating circumstance, and his drug abuse
could have been excused had it been limited to that circumstance. But marijuana use
became part of his daily routine and went on for more than ten years, ending in late
2008. His marijuana use led to other drugs, including cocaine use during 2007–2009. It
is also noteworthy that post-2005, his marijuana and cocaine use took place when he
was presumably older and wiser in his 30s. 
To his credit, his last use of illegal drugs took place about two years ago in June
2009, he appears to be focused on work and family, and he has a family-support
system in place. These are positive signs. But compared with his long-term history of
drug abuse, at this point, the positive signs can only be considered a favorable short-
term trend. Given the nature, extent, and seriousness of his drug abuse, it is too soon to
tell if this matter is safely in the past. In reaching this conclusion, I reviewed and
considered two hearing-level cases as requested by Applicant’s counsel.  Neither case29
 AG ¶¶ 15–17 (setting forth the security concern and the disqualifying and mitigating conditions). 30
 AG ¶ 15. 31
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constitutes binding legal authority, and neither case, in my view, is so closely aligned
with the facts of this case to require a similar favorable outcome.  
2. Personal Conduct
Under Guideline E for personal conduct,  the suitability of an applicant may be30
questioned or put into doubt due to false statements and credible adverse information
that may not be enough to support action under any other guideline. The overall
concern under Guideline E is:  
Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations [that may] 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.  31
SOR ¶¶ 2.a and 2.b alleged Applicant’s two terminations due to failing drug tests
in 2007 and 2009. The positive drug tests and resulting terminations were also alleged
under Guideline H, and the related security concerns were discussed above. Based on
the record as a whole, these matters do not raise any independent security concerns
that require additional discussion under Guideline E. 
The allegation in SOR ¶ 2.c was not discussed in the findings of fact because
involves a minor incident that took place at Applicant’s workplace in 2004. It did not
involve illegal drugs, and it may have resulted from a misunderstanding. It is mitigated
by the passage of time without recurrence of a similar incident. 
SOR ¶ 2.d alleged the undisputed fact that Applicant resides “in the United
States with an undocumented alien.” This person is the mother of his two children and
he intends to marry her. Upon their marriage, he intends to seek to adjust her
immigration status to that of a lawful resident alien. He denies assisting her in entering
the United States, and there is no evidence that he did so. Nor is there evidence that he
has engaged in unlawful or fraudulent conduct to facilitate her presence in the United
States. Indeed, neither the SOR nor Department Counsel asserted that Applicant was in
violation of any specific law. Nevertheless, this allegation raises a legitimate security
concern based on associating with another who is engaged in illegal activity. Having
considered the surrounding circumstances, including his intent to obtain lawful
immigration status for his bride-to-be, I conclude that Applicant’s association with her
does not reflect so poorly on his judgment, reliability, and trustworthiness that it should
disqualify him from access to classified information. An opposite conclusion might
suggest that Applicant must end a relationship with a woman with whom he is raising
 AG ¶ 2(a)(1)–(9). 32
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two young children in order to obtain a security clearance. That notion is contrary to
common sense and Applicant’s moral obligations to the mother of his children and his
children.   
3. Whole-Person Concept
I have also considered this case in light of the evidence as a whole and the nine-
factor whole-person concept.  In particular, I considered the nature, extent, and32
seriousness of Applicant’s illegal drug involvement; the circumstances surrounding the
conduct; the frequency and recency of the conduct; his age at the time of the conduct;
the presence of rehabilitation and other positive changes; and the likelihood of
recurrence. Given the frequency and extent of his drug abuse over a period of many
years, it is simply too soon to tell if his drug abuse is safely in the past. Indeed, although
his last use of an illegal drug (cocaine) was about two years ago in June 2009, it took
place about a month before he began his current job and about two months before he
completed his application for a security clearance. He did not present sufficient
evidence of a track record of reform and rehabilitation to mitigate and overcome the
security concerns. Accordingly, I conclude that Applicant did not meet his ultimate
burden of persuasion to obtain a favorable clearance decision.  
Formal Findings
The formal findings on the SOR allegations are as follows:
Paragraph 1, Guideline H: Against Applicant
Subparagraphs 1.a–1.g: Against Applicant
Paragraph 2, Guideline E: For Applicant
Subparagraphs 2.a–2.d: For Applicant
Conclusion
In light of the record as a whole, it is not clearly consistent with the national
interest to grant Applicant eligibility for a security clearance. Eligibility for access to
classified information is denied.            
Michael H. Leonard
Administrative Judge