Authorized by DoD Directive 5220.6 (Directive), Section E3.1.2.2.1
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                           DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
[NAME REDACTED] )       ISCR Case No. 11-04309
)
)
)
Applicant for Security Clearance )
Appearances
For Government: Braden M. Murphy, Esquire, Department Counsel
For Applicant: Pro Se
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Decision
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MALONE, Matthew E., Administrative Judge:
Applicant failed to mitigate the security concerns raised by his use of illegal
drugs. His request for a security clearance is denied.
Statement of the Case
Applicant submitted an Electronic Questionnaire for Investigations Processing
(eQIP) on November 29, 2010. After reviewing the results of the ensuing background
investigation, adjudicators for the Defense Office of Hearings and Appeals (DOHA) sent
interrogatories  to Applicant seeking to clarify or augment information contained therein.1
Based on his responses to the interrogatories and the results of the background
investigation, it could not be determined that it is clearly consistent with the national
 Required by Executive Order 10865, as amended, and by DoD Directive 5220.6 (Directive), as amended.2
 The adjudicative guidelines were implemented by the Department of Defense on September 1, 2006. These3
guidelines were published in the Federal Register and codified through 32 C.F.R. § 154, Appendix H (2006).
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interest to continue Applicant’s access to classified information.   On March 14, 2012,2
DOHA issued to Applicant a Statement of Reasons (SOR) alleging facts which raise
security concerns addressed in the adjudicative guideline (AG)  for drug involvement3
(Guideline H).
Applicant timely responded to the SOR (Answer) and requested a hearing. The
case was assigned to me on June 7, 2011, and I scheduled this matter to be heard on
June 28, 2012. The hearing was subsequently rescheduled to June 27, 2012. The
parties appeared as scheduled. The Government presented three exhibits, which were
admitted without objection as Government’s Exhibits (Gx.) 1 - 3. Applicant testified in his
own behalf and proffered one exhibit, admitted via post-hearing submission without
objection as Applicant’s Exhibit (Ax.) A. DOHA received a transcript (Tr.) of the hearing
on July 6, 2012.
Findings of Fact
The Government alleged under Guideline H that Applicant used marijuana as
often as three times a week between 2007 or 2008 and March 2010 (SOR 1.a); that he
was separated from the Navy because he tested positive for marijuana through a
urinalysis administered when he reported for basic training (SOR 1.b); that he used
marijuana before reporting to basic training because he knew he would be tested for
illegal drugs and he regretted his decision to enlist in the Navy (SOR 1.c); and that in
March 2010, he was charged with and pleaded guilty to possession of marijuana and
speeding (15 - 19 mph over the speed limit). 
Applicant admitted with explanations all of the SOR allegations. His 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 fact.
Applicant is 24 years old and has been employed by a defense contractor since
November 2010. This is his first application for a security clearance, but he also may
have started the process of applying for a clearance during a brief stint in the U.S. Navy,
which is more fully discussed below. (Gx. 1)
Applicant grew up in State A, but moved to his current residence in State B in
August 2009. He lives with his older brother, who is a Navy veteran and now works for
the federal government. Applicant’s parents are divorced and each has remarried. While
he was growing up, he was very close to his grandmother, who lived nearby. She died
in early 2010. (Gx. 1; Tr. 55 - 56)
Applicant graduated from high school in 2007. He started using marijuana during
his senior year and smoked it with varying frequency up to three times weekly. After he
graduated, he continued working at a local resort where he had worked during high
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school. In October 2007, he enlisted in the Navy, but he did not report for basic training
until January 2008. (Gx. 1; Tr. 27 - 32, 57)
When Applicant reported for basic training, he was given an entry level urinalysis
to test for illegal drug use. Applicant failed the drug test, which showed he had used
marijuana. In February 2008, Applicant was separated from the Navy before proceeding
any further in his training. He characterized this action as an entry level separation. (Gx.
1; Gx. 2)
Applicant used marijuana just before he left for basic training. He had regretted
his decision to enlist and knew that he would be given a drug test when he reported.
Applicant’s recruiter told him that he had to report because he had signed a contract, so
Applicant thought he had no other recourse than to try to disqualify himself from military
service through illegal means. (Answer; Gx. 2; Gx. 3)
Applicant returned home to State A and was re-hired at the resort where he
worked before his enlistment. He also resumed using marijuana, albeit, less frequently
than before. In August 2009, Applicant moved to State B to live with his older brother.
Applicant wanted to make positive changes in his life and to start a career. After he
moved, he obtained work at a resort similar to the job he had held in State A. However,
in November 2010, he was hired by his current employer for work in support of Navy
ship maintenance, repair, and overhaul. (Gx. 1; Tr. 32 - 34)
After Applicant moved in with his brother, he continued to use marijuana
sporadically. However, the passing of his grandmother in early 2010 hit Applicant hard,
and he used marijuana to cope with his grief. From January 2010 until March 2010,
Applicant used marijuana as often as daily and at least two to three times weekly. (Gx.
1; Gx. 3; Tr. 34 - 35, 57 - 58)
In March 2010, Applicant was pulled over for speeding. When the police officer
approached Applicant’s car, he saw a small amount of marijuana on the backseat of
Applicant’s car. In addition to being cited for speeding, Applicant was issued a citation
for possession of marijuana. He later appeared in court and pleaded guilty to both
charges. Applicant’s driver’s license was restricted for six months, he was fined and
assessed court costs, and ordered to complete a drug awareness class. Applicant
complied with all of the terms of his sentence. Applicant claims he has not used any
illegal drugs since 2010 and that he will not use illegal drugs in the future. (Answer; Gx.
1; Gx. 2; Gx. 3; Tr. 35 - 41)
When Applicant submitted his eQIP, he disclosed his arrest for marijuana
possession and his use of that drug between January and March 2010. He also
disclosed that he tested positive for illegal drugs when he reported for basic training in
2008. When he responded to DOHA interrogatories about his drug use, he disclosed his
use of marijuana between January and March 2010, and acknowledged that he “tried it
a couple of times prior to these dates.” At hearing, Applicant further acknowledged that
he intentionally had not disclosed all of his drug use in his application and during the
investigation and adjudication of his clearance. He admitted that he was trying to
 See Department of the Navy v. Egan, 484 U.S. 518 (1988).4
 Directive. 6.3.5
 See Egan, 484 U.S. at 528, 531.6
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minimize the scope of his drug use so it would not hurt his chances of getting a
clearance. (Gx. 1; Gx. 3; Tr. 46 - 51, 59 - 60, 65 - 68)
Applicant’s older brother, who himself holds a security clearance, recommends
Applicant for a security clearance. Applicant has met all of his responsibilities regarding
sharing of expenses and other obligations since they started living together. Applicant’s
brother does not tolerate drug use, and despite Applicant’s missteps in the past,
expresses confidence in Applicant’s maturation and personal growth over the past two
years. (Ax. A) 
Policies
A security clearance decision is intended to resolve whether it is clearly
consistent with the national interest  for an applicant to either receive or continue to4
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,  and consideration of the pertinent criteria and adjudication policies5
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
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. Department Counsel 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, Department Counsel must
be able to prove controverted facts alleged in the SOR. If that burden is met, it then falls
to the individual 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
 See Egan; AG ¶ 2(b).7
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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
Applicant illegally used marijuana with varying frequency between 2007 and
2010. He used marijuana in a successful attempt to avoid military service after he
regretted his decision to enlist in 2007. He was arrested and pleaded guilty to marijuana
possession in March 2010. 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: 
(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. 
The Government established applicability of the disqualifying conditions listed at
AG ¶ 25(a) (any drug abuse...); AG ¶ 25(b) (testing positive for illegal drug use); and AG
¶ 25(c) (illegal drug possession, including cultivation, processing, manufacture,
purchase, sale, or distribution; or possession of drug paraphernalia).
Available information also requires that I considered the potential applicability of
the following mitigating conditions under 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
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on the individual's current reliability, trustworthiness, or good judgment;
and
(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;
(4) a signed statement of intent with automatic revocation of
clearance for any violation.
None of these mitigating factors apply. Applicant claims he has changed, that he
has not used marijuana for more than two years, and that he will not use drugs in the
future. However, his false statements about his drug use, made to protect his chances
of getting a security clearance, greatly undermine my confidence in his claims.
Accordingly, available information does not currently provide a sufficient basis for
application of any of the AG ¶ 26 mitigating conditions. Applicant has not mitigated the
security concerns about his drug involvement.
Whole-Person Concept
I have evaluated the facts presented and have applied the appropriate
adjudicative factors under Guideline H. I have also reviewed the record before me in the
context of the whole-person factors listed in AG ¶ 2(a). Until moving in with his older
brother and obtaining his current job in 2010, Applicant did not have much guidance or
direction. However, for most of the past two years, he has been working in a field that
offers a good income and, more important, personal and financial stability. Nonetheless,
Applicant’s decision to try to conceal the full extent of his drug use shows poor judgment
and undercuts the Government’s confidence that he will not again engage in illegal drug
use and that he will properly safeguard the Government’s sensitive information. Despite
two years of abstinence from illegal drugs, a fair and commonsense evaluation of the
record as a whole leaves me with significant doubts about Applicant’s judgment and
reliability. Protection of the national interest requires resolution of those doubts against
the Applicant.
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.d: Against Applicant
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Conclusion
In light of all of the foregoing, it is not clearly consistent with the national interest
for Applicant to have access to classified information. Request for security clearance is
denied.
                                         
MATTHEW E. MALONE
Administrative Judge