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    DEPARTMENT OF DEFENSE 
            DEFENSE OFFICE OF HEARINGS AND APPEALS 
          
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 10-10379 
  ) 
Applicant for Security Clearance ) 
  
 
Appearances 
 
For Government: Raashid S. Williams, Esq., Department Counsel 
For Applicant: Pro se 
 
 
__________ 
 
Decision 
__________ 
 
 
RIVERA, Juan J., Administrative Judge: 
 
Applicant, 29, illegally used marijuana from January 2006 until June 2010. He is 
commended for disclosing his illegal drug use in his security clearance application 
(SCA). Notwithstanding, in light of his age, his recent use of marijuana, and the little 
corroborating evidence about a permanent lifestyle change and disassociation from his 
marijuana-using friends, I find that not enough time has passed to establish that 
Applicant’s use of marijuana is unlikely to recur. His recent behavior casts doubt on his 
reliability and judgment. Clearance is denied.  
 
Statement of the Case 
 
Applicant submitted a SCA on July 28, 2010. After reviewing the results of the 
ensuing background investigation, adjudicators for the Defense Office of Hearings and 
Appeals (DOHA) were unable to make a preliminary affirmative finding1 that it is clearly 
consistent with the national interest to grant Applicant’s request for a security clearance.  
 
1 Required by Executive Order 10865, Safeguarding Classified Information Within Industry, dated 
February 20, 1960, as amended; and Department of Defense (DoD) Directive 5220.6, Defense Industrial 
Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as revised. 
 
 
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On February 28, 2011, DOHA issued Applicant a statement of reasons (SOR), 
alleging security concerns under Guideline H (Drug Involvement) of the adjudicative 
guidelines (AG).2 Applicant responded to the SOR allegations on March 17, 2011, and 
requested a decision based on the record. On June 8, 2011, Applicant requested a 
hearing before an administrative judge. (Hearing exhibit (HE) 1) The case was assigned 
to me on July 5, 2011, to determine whether a clearance should be granted or denied. 
DOHA issued a notice of hearing on July 29, 2011, convening a hearing for August 19, 
2011. At the hearing, the Government offered exhibits (GE) 1 and 2, which were 
admitted without objection. Applicant testified and submitted exhibits (AE) 1 through 3, 
which were admitted without objection. AE 3 was received post-hearing. DOHA 
received the transcript of the hearing (Tr.) on August 26, 2011. 
 
Findings of Fact 
 
Applicant admitted the single factual allegation in the SOR. His admission is 
incorporated herein as a finding of fact. After a thorough review of all the evidence, 
including Applicant’s demeanor and testimony, I make the following additional findings 
of fact. 
 
Applicant is a 29-year-old Information Technology (IT) employee working for a 
Government contractor. He attended college from 2000 until 2006, and received his 
bachelor’s degree in Computer Science. He is single and he has no children. After 
college, he started working for company A. In 2007, he was hired by his current 
employer, a Government contractor, but he also continues to work for company A. He 
submitted his first SCA in July 2010, and disclosed his illegal marijuana use. He wanted 
to be completely forthcoming with the Government at the start of his new career path. 
Applicant testified that he was granted access to classified information at the secret 
level by two other Government agencies in April and May 2011. There is no evidence 
that he has compromised or caused others to compromise classified information. 
 
Applicant started using marijuana illegally during his senior year in college. He 
used marijuana socially, during college parties and fraternity activities. He estimated he 
used marijuana three to four times while in college. He continued his use of marijuana 
after he graduated from college. He estimated he smoked marijuana three or four more 
times after college. He smoked marijuana with some of his current coworkers at his 
company’s Christmas party in 2008. He also smoked marijuana with friends at a party in 
New York City in May 2007 or May 2008, and he last smoked it with friends at a party in 
New Jersey in June 2010. (Tr. 40) 
 
Applicant repeatedly testified that he no longer associates socially with his 
marijuana-using friends. However, he still works with the same coworkers with whom he 
smoked marijuana during the company’s 2008 Christmas party. He averred that 
although they are employed with the same company, he works in a different section of 
 
2 Adjudication of this case is controlled by the AGs, implemented by the DoD on September 1, 
2006. 
 
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the company, and he does his best to stay away from them. Applicant also attends 
some of his college fraternity’s functions as a graduate advisor. He testified that the use 
of illegal drugs is no longer allowed at his fraternity functions, and that policy is strictly 
enforced.  
 
Applicant applied for his current job in June 2010, but he had not yet been 
interviewed when he illegally smoked marijuana during that same month. Applicant 
testified that as soon as he was offered the job, he decided never to use any illegal 
drugs ever again. He submitted the pending SCA in July 2010, and disclosed his past 
use of marijuana. He was forthright and disclosed his past use of marijuana because he 
does not want to jeopardize his job or his ability to hold a security clearance. His current 
job is very important to him. He believes it will enhance his career path.  
 
After his hearing, he submitted a written statement of intent promising to never 
use any illegal drugs, or to associate with drug users, with the understanding that any 
violation of his promise would result in the automatic revocation of his clearance. (AE 3). 
He is willing to participate in any type of drug testing to show that he has been 
abstinent. He believes that being candid and forthcoming in his SCA, during his 
background interview, and at his hearing demonstrates his honesty, reliability, and 
trustworthiness. 
 
Applicant has not participated in drug counseling or rehabilitation, and has not 
been diagnosed with substance abuse. He presented no evidence of a recent diagnosis 
or prognosis concerning his use of illegal drugs. Since high school, Applicant has known 
that the use of marijuana was illegal. He initially experimented with marijuana, and then 
continued to use it socially, but not because of peer pressure. He considers himself a 
dedicated employee and his job is very important to him.  
 
Applicant is considered to be an excellent employee with a great work ethic. He 
is dedicated, loyal, and trustworthy. His references have known Applicant both 
personally and professionally, and they strongly recommend him for a security 
clearance because of his demonstrated dedication, knowledge, and qualifications. 
 
Policies 
 
 The President of the United States has the authority to control access to 
information bearing on national security and to determine whether an individual is 
sufficiently trustworthy to have access to such information.” Department of the Navy v. 
Egan, 484 U.S. 518, 527 (1988). The President has authorized the Secretary of 
Defense to grant eligibility for access to classified information “only upon a finding that it 
is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding 
Classified Information within Industry § 2 (Feb. 20, 1960), as amended. The U.S. 
Supreme Court has recognized the substantial discretion of the Executive Branch in 
regulating access to information pertaining to national security, emphasizing that “no 
one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 
518, 528 (1988). 
 
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Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the adjudicative guidelines. These AGs are not inflexible rules of 
law. Instead, recognizing the complexities of human behavior, these guidelines are 
applied in conjunction with an evaluation of the whole person. An administrative judge’s 
adjudicative goal is a fair, impartial, and commonsense decision. An administrative 
judge must consider all available, reliable information about the person, past and 
present, favorable, and unfavorable, to reach his decision.  
 
The Government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. Decisions include, by necessity, consideration of the 
possible risk that 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. Clearance decisions must be “in terms of the national interest and 
shall in no sense be a determination as to the loyalty of the applicant concerned.”  See 
Exec. Or. 10865 § 7. See also Executive Order 12968 (Aug. 2, 1995), Section 3. Thus, 
nothing in this Decision should be construed to suggest that I have based this decision, 
in whole or in part, on any express or implied determination as to Applicant’s allegiance, 
loyalty, or patriotism. It is merely an indication that the Applicant has not met the strict 
guidelines the President and the Secretary of Defense have established for issuing a 
clearance. 
 
Initially, the Government must establish, by substantial evidence, conditions in 
the personal or professional history of the applicant that may disqualify the applicant 
from being eligible for access to classified information. The Government has the burden 
of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531.  
“Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the 
criteria listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 
at 2 (App. Bd. May 2, 1996).      
 
Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it 
is clearly consistent with the national interest to grant or continue [his or her] security 
clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of 
disproving a mitigating condition never shifts to the Government. See ISCR Case No. 
02-31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, 
if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).   
 
 
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Analysis 
 
Guideline H, Drug Involvement 
 
AG ¶ 24 articulates the security concern about 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 started using marijuana during his senior year in college. He used 
marijuana eight times from 2006 until June 2010. Applicant stopped using marijuana 
because he wants to pursue a career with a Government contractor. He knows that his 
use of marijuana was illegal, and his continued use of marijuana would affect his ability 
to obtain a security clearance and pursue a career. He promised to never use illegal 
drugs again.  
 
AG ¶ 25 describes eight conditions related to drug involvement that could raise a 
security concern and may be disqualifying. Two drug involvement disqualifying 
conditions raise security concerns in this particular case: AG ¶ 25(a) “any drug abuse”3 
and AG ¶ 25(c) “illegal drug possession including cultivation, processing, manufacture, 
purchase.”  
 
  AG ¶ 26 provides four potentially applicable drug involvement mitigating 
conditions:  
 
(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  
 
 
3  AG ¶ 24(b) defines “drug abuse” as “the illegal use of a drug or use of a legal drug in a manner 
that deviates from approved medical direction.” 
 
AG ¶ 24(a) defines “drugs” as substances that alter mood and behavior, including: (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. 
 
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(4) a signed statement of intent with automatic revocation of clearance 
for any violation; 
 
(c) abuse of prescription drugs was after a severe or prolonged illness 
during which these drugs were prescribed, and abuse has since ended; 
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. 
 
I find that none of the Guideline H mitigating conditions fully apply. AG ¶ 26(b)(4) 
partially applies because Applicant submitted a signed statement of intent with 
automatic revocation of clearance for any violation. Notwithstanding, for the reasons 
outlined in the following paragraphs, this mitigating condition does not fully mitigate the 
security concerns raised by his recent, illegal marijuana use. Applicant’s use of 
marijuana spans four years. His favorable evidence is not sufficient to establish that he 
has implemented permanent lifestyle changes to prevent his future use of marijuana. He 
continues to have some association with his college friends and coworkers with whom 
he used marijuana. Not enough time has passed for me to conclude that his 
questionable behavior is unlikely to recur. His behavior still cast doubts on Applicant’s 
reliability and judgment. AG ¶ 26(a) does not apply.  
 
  Applicant has not participated in any counseling or aftercare treatment program. 
He presented no evidence of a recent diagnosis or prognosis concerning his illegal drug 
use. In light of Applicant’s age and his recent history of illegal marijuana use, Applicant’s 
promise not to use marijuana without corroboration (e.g., clear evidence of lifestyle 
changes, statements from those who know him about his disassociation from his drug-
using friends, or a competent medical diagnosis and prognosis) is not sufficient to show 
his questionable behavior is unlikely to recur.  
 
Considering the record evidence as a whole, I find there has not been a sufficient 
period of abstinence. Applicant’s past questionable behavior still casts doubts on his 
reliability, judgment, and willingness and ability to comply with the law. His favorable 
evidence, at this time, is not sufficient to fully mitigate the Guideline H security concerns. 
 
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 
 
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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.  
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. AG ¶ 2(c).   
I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case. Applicant receives credit for being 
truthful and forthcoming during the security clearance process. He stopped using illegal 
drugs in June 2010, because he wants to develop a career. He has outstanding 
endorsements from his character references. He is considered to be a truthful, highly 
competent, and dependable worker. These factors show responsibility, good judgment, 
and some mitigation. 
 
Notwithstanding, in light of Applicant’s age, his four years of marijuana use, and 
the recency of his last marijuana use, his promise to not use illegal drugs in the future 
without corroboration is not sufficient to show his questionable behavior is unlikely to 
recur. At this time, the record evidence fails to convince me of Applicant’s eligibility and 
suitability for a security clearance.  
 
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:     Against Applicant 
 
Conclusion 
 
In light of all the circumstances presented by the record in this case, it is not 
clearly consistent with the national interest to grant or continue eligibility for a security 
clearance for Applicant. Eligibility for a security clearance is denied. 
 
 
 
____________________________ 
JUAN J. RIVERA 
Administrative Judge