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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 10-11126 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Richard Stevens, Esquire, Department Counsel 
For Applicant: Pro se 
 
 
 
______________ 
 
Decision 
______________ 
 
 
CREAN, Thomas M., Administrative Judge: 
 
Based on a review of the pleadings, exhibits, and testimony, eligibility for access 
to classified information is granted. 
 
Statement of the Case 
 
Applicant submitted an Electronic Questionnaire for Investigations Processing (e-
QIP) on June 14, 2010, to obtain a security clearance required for employment with a 
defense contractor. After an investigation conducted by the Office of Personnel 
Management (OPM), the Defense Office of Hearings and Appeals (DOHA) issued an 
interrogatory to Applicant to clarify or augment potentially disqualifying information in his 
background. After reviewing the results of the background investigation and Applicant's 
response to the interrogatory, DOHA could not make the preliminary affirmative findings 
required to issue a security clearance. On March 18, 2011, DOHA issued Applicant a 
Statement of Reasons (SOR) detailing security concerns for drug involvement 
(Guideline H). 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 
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Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines 
(AG) effective in the Department of Defense on September 1, 2006.  
 
 The SOR alleges that Applicant used marijuana with varying frequency from April 
1999 until February 2010 (SOR 1.a). Applicant admitted the allegation in his May 10, 
2010, response to the SOR. Applicant requested a hearing on May 23, 2011. (Hearing 
Exhibit I) Department Counsel was prepared to proceed on June 13, 2011, and the case 
was assigned to me on July 25, 2011. DOHA issued a Notice of Hearing on August 4, 
2011, scheduling a hearing for August 23, 2011. I convened the hearing as scheduled. 
The Government offered two exhibits, which were marked and admitted into the record 
without objection as Government Exhibits (Gov. Ex.) 1 and 2. Applicant testified. DOHA 
received the transcript of the hearing (Tr.) on September 9, 2011. 
 
Procedural Issues 
 
 Applicant did not remember the date he received the Notice of Hearing. 
However, he discussed the date of the hearing with Department Counsel before the 
notice was issued on August 4, 2011.  Applicant is entitled to 15 day notice of a hearing 
(Directive E3.1.8.). Applicant was ready to proceed and had sufficient time to prepare. 
Applicant affirmatively waived the 15-day notice requirement. (Tr. 5-6) 
 
Findings of Fact 
 
 Applicant’s admission to the SOR allegation under Guideline H is included in my 
findings of fact. After a thorough review of the pleadings, transcript, and exhibits, I make 
the following essential findings of fact.   
 
 Applicant is a 29-year-old scientist who has worked for a defense contractor for 
over four years. His work for the defense contractor until now has been in areas not 
requiring access to classified information. His employer wants to use his expertise in 
areas requiring access to classified information. Applicant received bachelor’s degrees 
in dual science majors in April 2004, and master’s degrees in the same majors in April 
2008. He started working for the defense contractor in April 2007 after completing his 
master’s degree class work while writing his thesis. He is single. (Tr. 10-15, 36; Gov. 
Ex. 1, e-QIP, dated June 14, 2010) 
 
 Applicant has been direct and forthcoming about his use of illegal drugs. He 
experimented with a variety of illegal drugs, to include marijuana, while in high school 
after the death of his father. He has not used the other drugs, except marijuana, since 
he was young and in high school. He admits using marijuana with varying frequency 
from April 1999 to February 2010. Applicant admits using marijuana while in college 
which was a violation of the college drug policy and could have led to academic 
suspension. He admits that he and his roommates used drugs in their dorm room and in 
a house they rented. Some of the use was sporadic. At times, it was almost daily, to 
include more than once a day. He admits using marijuana with his friends away from 
campus while on camping and vacation trips. He named some of his friends and fellow 
students who used drugs with him. He notes that his drug use did not affect his 
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academics or his work. He received his degrees on time with honors. His work 
performance with the defense contractor has been outstanding. (Tr. 15-25) 
 
 After completing his undergraduate degrees and while working for the defense 
contractor and studying for his master’s degrees, he did not use drugs for approximately 
18 months. He used drugs sporadically after that time with fellow graduate students. He 
is not in contact with these students now. The other friends he is in contact with do not 
now use drugs. He still is in contact with his college roommate and he sees him about 
three times a year. The last time they used drugs together was December 2009. Since 
his former roommate is now an attorney clerking for a judge, he does not believe he still 
uses drugs. He admits that he has sporadic contact, especially when he is home on a 
visit, with some of his old drug using friends. Some may still use drugs but he has not 
talked to them about drugs, in over a year (Tr. 25-32) 
 
 When Applicant was hired by the defense contractor in July 2007, he was not 
asked about his drug use. His only discussion about drug use was to sign a statement 
that he was subject to random drug screening and a positive test would result in 
termination. Applicant used drugs after commencing his employment even though he 
risked termination. He does not know the number of times he used illegal drugs. His 
employer placed him on special sensitive and dangerous international missions. He 
would be gone for months at a time on international travel and would not use drugs. 
When he returned, and especially while home on the weekends, he used drugs 
sporadically in a social setting. He used illegal drugs when he was in an environment in 
which drugs were used. (Tr. 32-38) 
 
 His employer has great faith and trust in his character, abilities, and 
professionalism. He stopped using marijuana in February 2010 for health and 
professional reasons. He did not like the way the drug affected his health and he felt it 
was a detriment to his professionalism and career. He also has seen while on his 
international travels for his employer the damage done in countries by the drug industry. 
He is saddened and embarrassed that he contributed to the violence as a drug user. He 
finds his former drug use extremely embarrassing. He has moved on from using drugs, 
has not used drugs in over 18 months, and has signed a pledge that he will not use 
drugs in the future. If he did use drugs, he will be immediately terminated. He has grown 
and matured and now leads a healthier lifestyle. He exercises and eats healthier. He 
lost his father to lung cancer and this presents him with health issues. He does have a 
heart problem that is not a result of drug use. However, he does feel that marijuana use 
could affect his health. (Tr. 32-34, 38-41; Go. Ex.2, Response to Interrogatory, dated 
February 4, 2011)  
 
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the revised Administrative Guidelines. In addition to 
brief introductory explanations for each guideline, the adjudicative guidelines list 
potentially disqualifying conditions and mitigating conditions, which are useful in 
evaluating an applicant’s eligibility for access to classified information. 
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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. According to AG ¶ 2(c), 
the entire process is a conscientious scrutiny 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 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, the 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 
applicant has the burden of persuasion to obtaining a favorable security decision.  
 
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 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 
 
The use of an illegal drug can raise questions about an individual’s reliability and 
trustworthiness, because it may impair judgment and raises questions about a person’s 
ability or willingness to comply with laws, rules, and regulations. Drugs are mood and 
behavior altering substances, and include those listed in the Controlled Substances Act 
of 1970. Marijuana is listed in the Act. Drug abuse is the illegal use of a drug or the use 
of a legal drug in a manner that deviates from approved medical direction (AG ¶ 24). 
Applicant admits using marijuana with various frequency from April 1999 until February 
2010. Applicant's admitted drug use raises Drug Involvement Disqualifying Conditions 
AG ¶ 25(a) (any drug use), and AG ¶ 25(c) (illegal drug possession, including 
cultivation, processing, manufacture, purchase, sale, or distribution, or possession of 
drug paraphernalia). 
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 The Government produced sufficient evidence to establish the disqualifying 
conditions in AG ¶¶ 25(a) and 25(c). To use an illegal drug, the individual has to 
possess the drug. The burden shifted to Applicant to produce evidence to rebut, explain, 
extenuate, or mitigate the security concerns under drug involvement. An applicant has 
the burden to refute an established allegation or prove a mitigating condition, and the 
burden to prove or disprove it never shifts to the Government. Applicant raised 
conditions that may mitigate the security concern. 
 
 I considered Drug Involvement Mitigating Conditions AG ¶ 26(a) (the behavior 
happened so long ago, was so infrequent, or happened under such unusual 
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 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; (4) a signed statement of intent with 
automatic revocation of clearance for any violation). These mitigating conditions apply. 
While there is no "bright line" rule for determining when conduct is recent or sufficient 
time has passed since the incidents, a determination whether past conduct affects an 
individual's present reliability and trustworthiness must be based on a careful evaluation 
of the totality of the evidence. If the evidence shows a significant period has passed 
without evidence of drug involvement, there must be an evaluation whether that period 
demonstrates changed circumstances or conduct sufficient to indicate a finding of 
reform or rehabilitation.  
 
 Applicant admits using marijuana for almost 12 years from 1999 until February 
2010. His use during part of this time was sporadic. At times, while he was younger and 
in high school and college, the use was more frequent, sometimes daily and more than 
once daily. In later years, the use was not as frequent. He did not use when working 
overseas for his employer. He used at home, on vacation, and when he was in an 
environment in which drugs were used. There were no unusual circumstances leading 
to the drug use. His use started as a teenager but he was in his late 20s when he 
curtailed and stopped using marijuana in 2010. He was young and immature during 
most of the time he used marijuana. Applicant’s long and frequent use of marijuana for 
over 12 years casts doubt on his reliability, trustworthiness, and good judgment.  
 
 There are clear indications that his drug use will not recur. Balanced against his 
long-term use of marijuana is Applicant’s abstinence for approximately 18 months. He is 
a bright and smart individual who was straightforward and direct about his use of 
marijuana. He admitted his use in high school, in college, and while employed. He 
identified the individuals who used marijuana with him and his present relationship or 
lack of relationship with them. He stated a cogent and logical reason why he has now 
stopped using marijuana even though it took him until his late 20s to realize that drug 
use was illegal and bad for him. There are no indications he sought or received 
treatment for his drug use. However, he indicates he no longer associates with those 
that use drugs, is in a different environment, and he signed a document stating his 
intent not to use drugs in the future. His change of circumstance is sufficient to 
overcome his long term use of marijuana.  Applicant mitigated the security concerns for 
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his use of marijuana from 1999 until February 2010. He established sufficient changes 
of circumstance to show he has reformed and will no longer use illegal drugs.  
 
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 the 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 
the facts and circumstances surrounding this case. Applicant used marijuana starting in 
1999 when he was in high school until February 2010. He has not used marijuana for 
over 18 months. He established that his life circumstances have changed indicating he 
will not use drugs in the future. He is now older, wiser, and mature. He realizes the 
effect of marijuana use on his health and professionalism. While Applicant has come to 
these changed life circumstances a little later than some individuals, he realized that his 
drug use is contrary to his career goals and being cleared for access to classified 
information. Applicant has presented sufficient information to establish changed 
circumstances or a change in lifestyle sufficient to establish he will not use illegal drugs 
in the future. He met his burden to show his long-term drug use does not and will not 
reflect adversely on his reliability, honesty, trustworthiness, and good judgment. For all 
these reasons, I conclude Applicant has mitigated the security concerns for illegal drug 
use from 1999 until February 2010. Overall, the record evidence leaves me without 
questions or doubts as to Applicant’s judgment, reliability, and trustworthiness. Access 
to classified information is granted. 
 
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:   FOR APPLICANT 
 
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  Subparagraph 1.a:   For Applicant 
 
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is 
clearly consistent with national interest to grant Applicant eligibility for a security 
clearance. Eligibility for access to classified information is granted. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge