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                        DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  ) ISCR Case No. 12-04147    
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Ray T. Blank, Jr., Esq., Department Counsel 
For Applicant: Pro se 
 
 
 
______________ 
 
Decision 
______________ 
 
 
NOEL, Nichole L., Administrative Judge: 
 
Applicant contests the Department of Defense (DOD) intent to deny his eligibility 
for a security clearance to work in the defense industry. By signing a statement of intent 
to abstain from future drug use and disassociating himself from his drug-using 
associates, Applicant has mitigated the security concerns raised by his marijuana use. 
Also, his voluntary disclosure of his past drug use eliminates the misconduct as a 
potential source of exploitation. Clearance is granted. 
 
Statement of the Case 
 
Department of Defense (DOD) issued a Statement of Reasons (SOR) detailing 
security concerns about Applicant’s drug involvement. 1 DOD adjudicators were unable 
                                                          
1 This case is adjudicated under Executive Order (EO) 10865, Safeguarding Classified Information within 
Industry, 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 in Enclosure 2 to the Directive.    
 
 
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to find that it is clearly consistent with the national interest to grant or continue 
Applicant’s security clearance and recommended that the case be submitted to an 
administrative judge to determine whether to revoke or deny Applicant’s security 
clearance.  
 
Applicant timely answered the SOR and requested a hearing. The case was 
assigned to me on November 6, 2012. At the hearing convened on December 13, 2012, 
I admitted Government’s Exhibits (GE) 1 and 2 and Applicant’s Exhibits (AE) A through 
E, without objection. After the hearing, I left the record open for the Applicant to submit 
post-hearing documentation. He timely submitted AE F through I. I received the 
transcript (Tr.) on December 21, 2012. 
 
Findings of Fact 
  
 Applicant, 50, has been employed by a federal contractor on a part-time basis 
since July 2011. When he initially began his job as a role player training U.S. troops and 
civilians deploying to Afghanistan, he worked two to three days a week. Because of 
downsizing, his work has since dwindled to two to three days each month. Twice 
divorced, Applicant has two children, ages 12 and 14, from his most recent marriage, 
which ended in 2003. He also has an adult son from his first marriage.2 
 
 Applicant retired from the U.S Army in 2005, achieving the rank of sergeant first 
class (E-7). He held a security clearance for the duration of his 21-year career without 
incident. Between 1997 and 2001, Applicant served as the non-commissioned officer in 
charge (NCOIC) of various functions for a military intelligence battalion. He served tours 
of duty during Desert Shield, Desert Storm, and the Bosnia conflict. In the course of his 
military career, Applicant was routinely evaluated as being among the best for overall 
performance and potential. He received over 31 medals, service ribbons, and badges in 
addition to dozens of letters, certificates, plaques, and commander’s coins. In the years 
since his retirement, Applicant has worked sporadically. He has spent five of the last 
eight years unemployed. Since 2009, he has worked intermittently for another 
government agency. When not working, Applicant devotes himself to the maintenance 
of his home and raising his children.3  
 
 In December 2011, Applicant’s employer sponsored his application for a security 
clearance. While it is not necessary for his position as a role player, having the 
clearance makes him eligible for higher paying jobs with his employer. On his security 
clearance application, Applicant disclosed a 1980 possession of marijuana charge. He 
also disclosed three occasions of marijuana use in March 2008, June 2009, and August 
2011. During his background investigation, Applicant voluntarily reported an additional 
incident of marijuana use in December 2011, after he submitted his security clearance 
application. On these occasions, Applicant did not purchase the drug, but used the 
marijuana offered to him in social settings. Since his last use, Applicant has 
                                                          
2 Tr. 40; GE 1-2.  
 
3 Tr. 21-23, 39; GE 2; AE C-E, G,H. 
 
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disassociated himself from friends that use marijuana. Applicant did not use marijuana 
during his military career or while he held a security clearance.4  
 
 Applicant has taken responsibility for his unlawful conduct. He acknowledges that 
he made bad decisions when he used marijuana on those four occasions. Applicant 
disclosed his drug use knowing that doing so could negatively impact his security 
clearance application and compromise his ability to secure a higher paying job. In 
January 2013, Applicant executed a statement of intent with automatic revocation of his 
security clearance for any future illegal drug use.5   
 
Policies 
 
When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the adjudicative guidelines (AG). In addition to brief 
introductory explanations for each guideline, the adjudicative guidelines list potentially 
disqualifying conditions and mitigating conditions, which are used in evaluating an 
Applicant’s eligibility for access to classified information.  
 
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.” 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 ultimate burden 
of persuasion to obtain 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 classified 
information. Such decisions entail a certain degree of legally permissible extrapolation 
of potential, rather than actual, risk of compromise of classified information.  
 
Section 7 of Executive Order 10865 provides that decisions shall be “in terms of 
the national interest and shall in no sense be a determination as to the loyalty of the 
applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites 
for access to classified or sensitive information).  
                                                          
4 Tr. 31-32, 37-38; GE 1-2; AE F; Answer. 
 
5 Tr. 32-33; GE F; Answer. 
 
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Analysis 
 
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.”6 Applicant engaged in disqualifying conduct when he used 
marijuana on four occasions between March 2008 and December 2011.7 His 1980 
charge for possession of marijuana occurred 33 years ago, when he was 18 years old. I 
have considered it, but conclude it has little weight in evaluating his current suitability. 
 
 There is no bright-line rule dictating the period of abstinence required for a 
finding that the conduct is not recent.8 Relying on other factors in addition to the simple 
passage of time,9 the record supports a finding that Applicant’s drug use is unlikely to 
recur.10 He did not have an active security clearance at any time he used marijuana. His 
use was limited to social settings and is not indicative of a pattern of abuse or addiction. 
Applicant acknowledges his poor judgment and resulting misconduct. Throughout the 
adjudicative process he has shown remorse and regret for his behavior. Furthermore, 
he has demonstrated the intent not to use drugs in the future.11 He has disassociated 
himself from his drug-using associates and contacts, and he has signed a statement of 
intent with automatic revocation of his security clearance for any future violation.  
 
Whole-Person Concept 
 
 I have no doubts or reservations about Applicant’s current reliability, 
trustworthiness, and ability to protect classified information. In reaching this conclusion, 
I have also considered the whole-person factors at AG ¶ 2(a). The purpose of the 
security clearance adjudication is to make “an examination of a sufficient period of a 
person’s life to make an affirmative determination that the personal is an acceptable 
security risk.”12 Here, Applicant’s four instances of misconduct must be weighed against 
his 21 years of military service. Applicant has demonstrated an understanding of the 
responsibility attendant to the protection of classified information and his fiduciary 
                                                          
6 AG ¶ 24. 
 
7 See AG ¶ 25(a).  
 
8 See ISCR Case No. 05-03941 (App. Bd. Aug. 2, 2007); See also ISCR Case No. 98-0611 (App. Bd. 
Nov. 1, 1999)(The Appeal Board when viewed in conjunction with other factors, the administrative judge 
did not err in applying the relevant mitigating condition where the applicant used marijuana nine months 
before the record closed). 
 
9 See Id. 
 
10 AG ¶ 26(a). 
 
11 AG ¶ 26(b). 
 
12 AG ¶ 2(a). 
 
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relationship with the Government when given access to classified information. Applicant 
self-reported negative information without concern for his own interests. He placed the 
needs of protecting national security above his own, even though having a security 
clearance may improve his financial well-being.  
 
 A finding that Applicant has mitigated the security concerns raised by his conduct 
in no way diminishes the seriousness of his illegal conduct. However, it is not the 
purpose of a security clearance case to punish or sanction a person for their past 
actions. Rather, it is a predictive risk assessment based on the past conduct. Applicant 
has taken responsibility for his misconduct and has made appropriate changes to 
reduce the likelihood of recurrence. Most important, his voluntary disclosure of negative 
information eliminates the conduct as a potential source of exploitation.  
 
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  
 
Subparagraphs 1.a – 1.b:     For Applicant  
 
Conclusion 
 
In light of the record in this case, it is clearly consistent with the national interest 
to grant Applicant eligibility for a security clearance. Clearance is denied. 
 
 
 
 
 
__________________________ 
Nichole L. Noel 
Administrative Judge