DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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---------------------------------- )       ISCR Case No. 11-02986
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Applicant for Security Clearance )
Appearances
For Government: Paul Delaney, Esquire, Department Counsel
For Applicant: Pro se
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 Decision
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WESLEY, Roger C., Administrative Judge:
Based upon a review of the pleadings, items, and legal arguments in the case
file, Applicant does not mitigate drug involvement security concerns. Clearance is
denied.
Statement of the Case
On May 25, 2011, the Defense Office of Hearings and Appeals (DOHA) issued a
Statement of Reasons (SOR) detailing reasons why DOHA could not make the
preliminary affirmative determination of eligibility for granting a security clearance, and
recommended referral to an administrative judge to determine whether a security
clearance should be granted, continued, denied, or revoked. 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 Program (January 2, 1992), as
amended (Directive); and the Adjudicative Guidelines (AGs) implemented by the
Department of Defense (DoD) on September 1, 2006.
Applicant responded to the SOR on June 20, 2011, and elected to have his case
decided on the basis of the written record. Applicant received the File of Relevant
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Material (FORM) on September 20, 2011, and did not respond with any supplemental
information.  The case was assigned to me on November 7, 2011.  
Summary of Pleadings
Under Guideline H, Applicant allegedly (a) used marijuana with various
frequency from about 1989 (while a senior in high school) until at least June 2010 and
(b) purchased marijuana.  In his response to the SOR, Applicant admitted the drug-
related allegations.  He claimed he has not used marijuana in over a year and used it
intermittently before quitting altogether in June 2010. He characterized his marijuana
purchases as infrequent, with his last purchase occurring over four years ago.
Findings of Fact
Applicant is a 30-year-old network administrator of a defense contractor who
seeks a security clearance. The allegations covered in the SOR and admitted to by
Applicant are adopted as relevant and material findings.  Additional findings follow.
Applicant has worked for the same defense contractor since February 2005.  He
holds a bachelor’s degree from a recognized university.  (Item 5) He married his only
spouse in May 1997 and has three children from this marriage.                                    
In 1989, while he was a senior in high school, Applicant was introduced to
marijuana. (Items 5 and 6) He smoked the substance infrequently in high school with
friends when the drug was available.  He knew students in his high school who would
sell small bags of marijuana to both his friends and himself for $5 to $10 a bag.  (Item
6) Typically, Applicant and his friends would roll the marijuana in cigarette papers and
share the joints with each other. (Item 6) He never smoked marijuana more than once a
month in high school. 
Applicant entered college the year following his high school graduation and once
again became involved with marijuana usage.  (Item 6) At parties he attended with
fellow college students on the weekends, he regularly smoked marijuana. (Item 6)
Occasionally, he and his friends smoked marijuana during the week as well. Most of the
time, they smoked their marijuana out of rolled cigarettes, or joints, but sometimes they
smoked it with pipes. (Item 6)  
It was never hard for Applicant to buy marijuana in college. (Item 6) He never
purchased more than a small amount of the drug at a time, and only from people he
knew.  His customary practice was to pool his money with friends and “buy a baggy of
marijuana” that contained enough of the substance “to fill a couple of joints or pipes.”
(Item 6) Once they made their purchases, they would share their marijuana freely with
each other at college parties. (Item 6) Applicant continued this use and purchase
routine for the three years he was enrolled in this college. (Item 6)  
Applicant never became dependent upon marijuana and used it only for
recreational purposes. (Item 6) Upon leaving college, he went to work and began dating
his current spouse.  He resumed his use of marijuana a couple of years later after he
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returned to school at a local community college.  He estimates he used it a couple of
times a month during his community college enrollment.   
In 1995, Applicant transferred to a four-year college, different from the one he
attended after high school.  While a student at this college, he continued to socially use
marijuana a couple of times a month. (Item 6) After just one year at this institution, he
transferred to his third college. Here, he stayed three years in residence and earned a
bachelor’s degree. (Item 6) While he continued to smoke marijuana during his
residence at these two colleges, he limited his usage to a couple of times a month in
social situations. (Item 6)  
Applicant and his wife continued to smoke marijuana socially after he graduated
from college in 1999, but not as often. Since 2003, he and wife smoked the substance
on a bi-monthly basis with friends and neighbors.  Once or twice a year, he purchased
enough of the substance from friends and neighbors to meet his personal needs.
Through July 2007, he made periodic $50 purchases of an 1/8 of an ounce of
marijuana for his personal use.  He estimates each purchase supplied the personal
needs of his wife and himself for six months to a year. Typically, he smoked his
marijuana out of a pipe.  Never did he ask his friend or neighbor where they obtained
their marijuana supplies, and he assures he never purchased marijuana from drug
dealers or suppliers. (Item 6)  
By 2007, Applicant and his wife rarely smoked marijuana anymore. He last
purchased marijuana in July 2007, and thereafter smoked the substance only a couple
of times a year in small group settings with his wife and friends. Concerned about
setting a proper example for his young daughter and informed of his need to apply for a
security clearance, he and his wife ceased using marijuana altogether in June 2010.
(Item 6).  Applicant expressed his intention never to use marijuana again and indicated
his wife expressed a similar intention to avert any resumption of marijuana use in the
future. (tem 6) 
Although Applicant’s statements are credible, he never provided any written
statements or other documentation to gauge the seriousness of his intentions and his
wife’s intentions.  Without any documented corroboration, predictive judgments about
his ability to avoid any recurrent marijuana involvement cannot be made with any
degree of reliability. To date, Applicant has not sought any treatment for drug use, and
has never been diagnosed or treated for the use of illegal drugs. (Item 6).  
Although he was afforded an opportunity to supplement the record, Applicant
provided no endorsements or performance evaluations on his behalf. Nor did he
provide any proof of community and civic contributions. 
Policies
The AGs list guidelines to be used by administrative judges in the decision-
making process covering DOHA cases. These guidelines take into account factors that
could create a potential conflict of interest for the individual applicant, as well as
considerations that could affect the individual’s reliability, trustworthiness, and ability to
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protect classified information. These guidelines include "[c]onditions that could raise a
security concern and may be disqualifying” (disqualifying conditions), if any, and many
of the "[c]onditions that could mitigate security concerns.” These guidelines must be
considered before deciding whether or not a security clearance should be granted,
continued, or denied. The guidelines do not require administrative judges to place
exclusive reliance on the enumerated disqualifying and mitigating conditions in the
guidelines in arriving at a decision. Each of the guidelines is to be evaluated in the
context of the whole person in accordance with AG ¶ 2(c). 
In addition to the relevant AGs, administrative judges must take into account the
pertinent considerations for assessing extenuation and mitigation set forth in AG ¶ 2(a)
of the revised AGs, which are intended to assist the judges in reaching a fair and
impartial commonsense decision based upon a careful consideration of the pertinent
guidelines within the context of the whole person. The adjudicative process is designed
to examine a sufficient period of an applicant’s life to enable predictive judgments to be
made about whether the applicant is an acceptable security risk. 
When evaluating an applicant’s conduct, the relevant guidelines are to be
considered together with the following AG ¶ 2(a) factors: (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 chances; (7) the motivation for the conduct; (8) the potential for
pressure, coercion, exploitation, or duress; and (9) the likelihood of continuation or
recurrence.
Viewing the issues raised and evidence as a whole, the following individual
guidelines are pertinent in this case:
Drug Involvement
The Concern: 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  AG ¶ 24.
Burden of Proof
By virtue of the principles and policies framed by the AGs, a decision to grant
or continue an applicant's security clearance may be made only upon a threshold
finding that to do so is clearly consistent with the national interest.  Because the
Directive requires administrative judges to make a commonsense appraisal of the
evidence accumulated in the record, the ultimate determination of an applicant's
eligibility for a security clearance depends, in large part, on the relevance and
materiality of that evidence. See Kungys v. United States, 485 U.S. 759, 792-800
(1988).  As with all adversarial proceedings, the judge may draw only those inferences
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which have a reasonable and logical basis from the evidence of record.  Conversely,
the judge cannot draw factual inferences that are grounded on speculation or
conjecture.
The Government's initial burden is twofold: (1) it must prove by substantial
evidence any controverted facts alleged in the SOR, and (2) it must demonstrate that
the facts proven have a material bearing to the applicant's eligibility to obtain or
maintain a security clearance. The required materiality showing, however, does not
require the Government to affirmatively demonstrate that the applicant has actually
mishandled or abused classified information before it can deny or revoke a security
clearance. Rather, the judge must consider and weigh the cognizable risks that an
applicant may deliberately or inadvertently fail to safeguard classified information.
Once the Government meets its initial burden of proof of establishing admitted
or controverted facts, the evidentiary burden shifts to the applicant for the purpose of
establishing his or her security worthiness through evidence of refutation, extenuation,
or mitigation.  Based on the requirement of  Exec. Or. 10865 that all security
clearances be clearly consistent with the national interest, the applicant has the
ultimate burden of demonstrating his or her clearance eligibility. “[S]ecurity-clearance
determinations should err, if they must, on the side of denials.” See Department of the
Navy v. Egan, 484 U.S. 518, 531 (1988). 
Analysis  
Between 1989 and June 2010, Applicant used marijuana recurrently and
periodically purchased enough of the substance to meet his personal needs. After
being introduced to marijuana in high school, he continued using the substance
throughout his college enrollments, and in the ensuing years.  Between 2003 and
June 2010, he and his wife smoked marijuana with friends and neighbors on a
bimonthly basis in group social settings.  Periodically, he purchased enough
marijuana from sources known to him to satisfy his personal needs and the needs of
his friends and spouse.  By his accounts, he made his last marijuana purchases in
July 2007. 
Concerned about setting an example for his 11-year-old daughter and
obtaining a security clearance, he ceased using marijuana in June 2010. However, he
has not provided any corroboration from his spouse or other sources concerning his
decision to cease using illegal drugs, and the prospects of his resuming his use of
marijuana in the foreseeable future are uncertain. With so much recurrent use of his
own and spouse in the record, too much doubt and uncertainty exist to make safe
predictable judgments about his ability to avoid recurrent drug involvement. 
On the strength of the evidence presented, several disqualifying conditions of
the Adjudicative Guidelines for drug abuse are applicable: DC ¶ 25(a), “any drug
abuse;” DC ¶ 25(c), “illegal possession, including cultivation, processing,
manufacture, purchase, sale, or distribution; or possession of drug paraphernalia;”
and DC ¶ 25(h), “expressed intent to continue illegal drug use, or failure to clearly and
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convincingly commit to discontinue drug use.”  Afforded an opportunity to respond to
the FORM materials, Applicant did not reply. 
From a whole-person perspective, Applicant has established no independent
probative evidence in this record to warrant any different conclusions under the whole-
person concept in the Directive.  He has provided no endorsements from supervisors
and coworkers to soften or mitigate any of the drug and judgment concerns
associated with his recurrent and still very recent use of marijuana. 
Taking into account all of the facts and circumstances surrounding Applicant’s
drug use and judgment lapses, Applicant does not mitigate security concerns related
to his drug use and personal conduct issues. Unfavorable conclusions warrant with
respect to the allegations covered by Guidelines H and E.
Formal Findings
In reviewing the allegations of the SOR and ensuing conclusions reached in the
context of the findings of fact, conclusions, conditions, and the factors listed above, I
make the following formal findings:
GUIDELINE H: (DRUG INVOLVEMENT):         AGAINST APPLICANT
   
Subparagraphs. 1.a and 1.b: AGAINST APPLICANT
Conclusions
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 Applicant’s security
clearance.  Clearance is denied.
                                          
Roger C. Wesley
Administrative Judge 
                                        
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