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              DEPARTMENT OF DEFENSE  
                  DEFENSE OFFICE OF HEARINGS AND APPEALS 
 
 
 
 
In the matter of:  ) 
 ) 
      )  ISCR Case No. 12-08559 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: David F. Hayes, Esq., Department Counsel 
For Applicant: Nicole A. Smith, Esq. 
 
 
 
________________ 
 
Decision 
________________ 
 
 
O’BRIEN, Rita C., Administrative Judge: 
 
Based on a review of the pleadings, exhibits, and testimony, I conclude that 
Applicant has not mitigated the security concerns raised under the guidelines for drug 
involvement and personal conduct. Accordingly, her request for a security clearance is 
denied. 
 
Statement of the Case 
 
On December 30, 2013, the Department of Defense (DOD) issued Applicant a 
Statement of Reasons (SOR) citing security concerns under Guideline H (drug 
involvement) and Guideline E (personal conduct) of the Adjudicative Guidelines (AG).1 
In her Answer to the SOR, Applicant admitted the drug-related allegations, and denied 
the personal conduct allegation. She requested a hearing before an administrative 
                                                 
1 Adjudication of the case is controlled by Executive Order 10865, as amended; DOD Directive 5220.6 
(Directive), as amended; and the Adjudicative Guidelines, which supersede the guidelines listed in 
Enclosure 2 to the Directive. They apply to all adjudications or trustworthiness determinations in which 
an SOR was issued on or after September 1, 2006.  
 
 
 
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judge. The Defense Office of Hearings and Appeals (DOHA) issued a Notice of Hearing 
on March 24, 2014, and I convened the hearing on April 8, 2014. I admitted two 
Government exhibits (GE 1-2) and two Applicant exhibits (AE A-B). DOHA received the 
transcript on April 17, 2014. 
 
Findings of Fact 
 
Applicant’s admissions are incorporated as findings of fact. After a thorough 
review of the pleadings and the record evidence, I make the following findings of fact. 
 
Applicant is 45 years old, married, and has one seven-year-old son. She 
completed bachelor’s and master’s degrees in the 1990s, and a law degree 2005. In 
1991, she received her first security clearance when she worked as a contract specialist 
for a defense agency from 1991 to 1996. From 1997 to 2005, she worked for a defense 
contractor as director of contracts, where she also held a secret security clearance. 
From 2005 to 2007, she was director of federal contracts for another defense 
contractor. In 2007, she joined her current company as director of contracts. She is now 
executive vice president of contracts and business administration. She was granted a 
top secret security clearance in 2007. In 2012, she had a periodic reinvestigation for her 
top secret clearance. (GE 1, 2; Tr. 31-37, 41, 43, 49) 
 
Applicant smoked a marijuana cigarette three times between 2000 and 2003, 
between the ages of 32 and 35. She used marijuana in 2000, while dating her future 
husband. She smoked marijuana two more times with him after they were married in 
July 2003. In 2003, Applicant was attending law school. She disclosed her marijuana 
use on her security clearance application and at her security interview during her 
investigation from 2005 to 2007. Applicant was granted a top secret security clearance 
in 2007. She testified that she did not receive any information or warnings about her 
marijuana use during or after that investigation. Applicant testified that she has received 
general security training annually, at the defense agency in the 1990s, at previous 
contractor companies, and at her current company. The annual presentation at her 
current company states that use of illegal substances constitutes a security concern. It 
also states, generally, that employees should address any concerns with the FSO. (GE 
1; Tr. 31-41) 
 
Applicant visits her family in another state about four times per year. In 2011, at 
age 41, Applicant attended a July 4th party with family members. Her mother had 
expressed curiosity about marijuana, which she had never used. At the party, 
Applicant's brother-in-law offered a marijuana cigarette to Applicant's mother and the 
other family members. Applicant decided to join in with her family, and she shared the 
cigarette. When her counsel asked Applicant if she was thinking about her security 
clearance when she used marijuana in 2011, Applicant testified, “Of course I knew I 
probably shouldn't have done it.” (GE 1, 2; Tr. 44-45, 62, 70-72)  
 
 
 
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When Department Counsel asked about her thoughts at the time, Applicant 
testified,  
 
A I don't really, I mean when it was presented I thought oh this is an issue -- 
well we all know it's not legal, right, we're sitting there and making a choice to partake. 
 
 Q So that was your choice even knowing you had a top secret security 
clearance? 
 
A Right. That night I made a poor choice. (Tr. 62) 
 
Applicant testified that the night she used marijuana, she did not think that if she 
smoked the cigarette and then disclosed it during her investigation, that she could lose 
her security clearance. (Tr. 45-47) Applicant testified,  
 
[I] think because I had disclosed the three prior uses and still was granted 
a top secret clearance, I may not have fully appreciated the leeway that I 
apparently had been granted on being given the top secret security 
clearance in the first place. . . . (Tr. 46) 
 
Applicant testified that her family members do not smoke marijuana in her presence, her 
husband and friends do not smoke marijuana, and she does not associate with illegal 
drug users. (Tr. 44) 
 
In 2012, Applicant completed her current security clearance application for 
reinvestigation for her top secret security clearance. She testified that she takes the 
duty of honesty seriously, and knew she was required to disclose her marijuana use. 
The drug-related questions asked whether she had used illegal drugs during the 
previous seven years (2005-2012). She disclosed her 2011 marijuana use. She also 
disclosed that her 2000 to 2003 marijuana uses occurred while she held a secret 
security clearance. An authorized DOD investigator interviewed Applicant in March 
2012. Applicant disclosed the instances when she used marijuana between 2000 and 
2003, and in 2011.  
 
Applicant also testified that at the time she used marijuana, it did not occur to her 
to disclose it to her FSO or her supervisor. She stated in her interrogatory response, “I 
could not be compromised by my choice to take part in the activity, nor am I 
embarrassed by it.” Applicant informed the FSO about her drug use after she received 
the DOHA interrogatory in September 2013. A few months later, after she received the 
SOR in early 2014, she informed the company Chief Executive Officer (CEO) and Chief 
Operating Officer (COO) of her illegal drug use. She testified that her company has no 
policy requiring immediate disclosure of illegal drug use to company officials. (GE 2; Tr. 
13-20, 41-44, 49, 63, 66-70) 
 
 
 
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Applicant testified she has never had a random drug test for any of her jobs. She 
has never received drug treatment or counseling, and has not used illegal drugs since 
2011. She submitted a signed statement that she will abstain from drug abuse and that 
she understands future illegal drug use will result in revocation of any security clearance 
she is granted. She testified, “I can tell you very clearly that my sworn statement of no 
intent to smoke marijuana is made this time with full certainty and understanding of its 
relevance and its impact.” (GE 1, 2; AE A, B; Tr. 27-29, 50-52, 64) 
 
The founder and CEO of Applicant's company has known her for 13 years. They 
have had weekly contact since he hired her in 2007. Applicant holds a position of trust 
in the company and has never had issues of misconduct. Approximately two months 
before the hearing, she informed him of her 2011 illegal drug use. He testified that she 
was “. . . very remorseful, very embarrassed” about it, and Applicant “. . . said she was 
just embarrassed quite frankly.” She was sorry that she had done something that 
affected herself and her company. He believes she has good judgment and he has 
relied on it in the past. He characterizes her marijuana use as a lapse in judgment, and 
considers her one of his most trustworthy employees. (Tr. 13-20) 
 
The CEO stated that the company FSO provides employees with quarterly 
reminders regarding security clearance issues. When questioned about his company’s 
drug policy, the CEO stated, “Well, there's no toleration of it internally” but drug 
problems have not arisen, except for the current adjudication. He stated that, to his 
knowledge, Applicant did not receive instruction about self-reporting negative 
information to the FSO. He also did not remember his FSO providing information about 
illegal drug use. However, he testified that the incompatibility of using illegal drugs while 
holding a security clearance is understood by his employees. (Tr. 20-29) 
 
Applicant submitted character reference letters from friends and colleagues who 
have known her from 7 to 23 years. All were aware of Applicant's 2011 illegal drug use. 
One friend who has known her for 17 years called it “completely surprising” and out of 
character. As a colleague and close friend of Applicant's family, he stated that “I have 
never seen any use or indication of use of an illegal substance. . . .” He described 
Applicant as having exemplary character, trustworthiness, and judgment, and as a 
trusted advisor within the company. A coworker described Applicant as one of the most 
reliable and responsible people she has ever met. Another coworker attested to 
Applicant's honesty and integrity. The COO of Applicant's company has known her for 
13 years, and became her direct supervisor 2 years ago. He stated that “[Applicant] is 
always the voice of reason and compliance, ensuring we do the right thing and follow 
the rules . . . [Applicant] has earned this position of responsibility and trust through 
repeated demonstration of good judgment and excellent performance.” (AE B) 
 
Policies 
 
Each security clearance decision must be a fair and commonsense 
determination based on examination of all available relevant and material information, 
 
 
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and consideration of the pertinent criteria and adjudication policy in the AG.2 Decisions 
must also reflect consideration of the factors listed in ¶ 2(a) of the Guidelines, 
commonly referred to as the “whole-person” concept.  The presence or absence of a 
disqualifying or mitigating condition does not determine a conclusion for or against an 
applicant. However, specific applicable guidelines are followed whenever a case can 
be measured against them as they represent policy guidance governing the grant or 
denial of access to classified information. In this case, the pleadings and the 
information presented by the parties require consideration of the security concerns and 
adjudicative factors addressed under Guidelines H (drug involvement) and E (personal 
conduct).   
 
 A security clearance decision is intended only to resolve the question of whether 
it is clearly consistent with the national interest3 for an applicant to either receive or 
continue to have access to classified information. The Government 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, the Government 
must be able to prove controverted facts alleged in the SOR. If the Government meets 
its burden, it then falls to the Applicant 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.4 A person who has access to classified information enters into a 
fiduciary relationship with the Government based on trust and confidence. Therefore, 
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 her or his 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.5 
 
Analysis 
 
Guideline H, Drug Involvement  
 
 AG ¶ 24 expresses 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. 
                                                 
2 Directive. 6.3. 
3 See Department of the Navy v. Egan, 484 U.S. 518 (1988). 
4 See Egan, 484 U.S. at 528, 531. 
5 See Egan; AG ¶ 2(b). 
 
 
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 I considered the following disqualifying conditions listed at AG ¶ 25:  
 
(a) any drug abuse; 
 
(c) illegal drug possession, including cultivation, processing, 
manufacture, purchase, sale, or distribution; or possession of drug 
paraphernalia; and 
 
(g) any illegal drug use after being granted a security clearance.  
 
 After accepting a position with a defense agency, Applicant received her first 
secret security clearance in 1991. Subsequently, she possessed and used marijuana 
three times between 2000 and 2003, while she held the secret security clearance. After 
being granted a top secret security clearance in December 2007, she again used an 
illegal drug in 2011. AG ¶¶ 25(a), (c), and (g) apply.  
 
Two of the four mitigating conditions are relevant 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 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;  
 
(4) a signed statement of intent with automatic 
revocation of clearance for any violation. 
 
 Applicant’s drug use is not recent, and it was infrequent. However, the 
circumstances in which she used marijuana are not unlikely to recur: she used 
marijuana with her husband and family members, whom she sees frequently. In 
addition, her use of marijuana after eight years abstinence is a concern. Applicant's 
decision to knowingly violate the law, and especially to engage in illegal conduct while 
holding a security clearance, raises serious concerns about her trustworthiness and 
judgment. AG ¶ 26(a) does not apply. 
 
 
 
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 Some mitigation applies based on Applicant’s abstention from marijuana use for 
the past three years, and her notarized statement that she will not use marijuana and 
other illegal drugs in the future, subject to revocation of any security clearance she 
might hold at the time. However, Applicant has continuing contact with her husband 
and family members with whom she used marijuana in the past. In addition, she used 
marijuana in 2011, after a long period of abstention. Her current period of three years’ 
abstention is shorter than her past period of eight years’ abstention. Applicant receives 
partial mitigation under AG ¶ 26(b). 
 
Guideline E, Personal Conduct 
 
AG ¶ 15 expresses the security concern about personal conduct: 
 
Conduct involving questionable judgment, lack of candor, 
dishonesty, or unwillingness to comply with rules and regulations 
can raise questions about an individual's reliability, 
trustworthiness and ability to protect classified information. Of 
special interest is any failure to provide truthful and candid 
answers during the security clearance process or any other 
failure to cooperate with the security clearance process. 
 
Under AG ¶ 16, the following disqualifying conditions are relevant: 
 
(c) credible adverse information in several adjudicative issue areas that is 
not sufficient for an adverse determination under any other single 
guideline, but which, when considered as a whole, supports a whole-
person assessment of questionable judgment, untrustworthiness, 
unreliability, lack of candor, unwillingness to comply with rules and 
regulations, or other characteristics indicating that the person may not 
properly safeguard protected information; and 
 
(e) personal conduct, or concealment of information about one's conduct, 
that creates a vulnerability to exploitation, manipulation, or duress, such 
as (1) engaging in activities which, if known, may affect the person's 
personal, professional, or community standing, or (2) while in another 
country, engaging in any activity that is illegal in that country or that is 
legal in that country but illegal in the United States and may serve as a 
basis for exploitation or pressure by the foreign security or intelligence 
service or other group. 
 
 Applicant engaged in illegal conduct by using marijuana three times between 
2000 and 2003. Each of the instances occurred while she held a secret security 
clearance. She used the same illegal drug again in 2011, at a time when she held a top 
secret security clearance. Lack of candor is not at issue, as Applicant disclosed her 
illegal drug use on her security clearance applications and in her security interviews. 
 
 
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However, she showed poor judgment, and an unwillingness to obey the rule of law 
when she used illegal drugs. AG ¶ 16(c) applies. 
 
Applicant failed to disclose her illegal conduct to her FSO or supervisor at the 
time it occurred. She testified that her company did not have a policy requiring 
disclosure. However, in 2011, Applicant had held a security clearance for more than 
two decades, sponsored by a military agency and several defense contractors; she had 
also received annual security training for years. It is not credible that she did not know 
security clearance holders are required to report changes in their circumstances that 
could affect their security clearance. Yet she did not reveal her 2011 marijuana use to 
the FSO until two years later, after she received the interrogatory in September 2013. 
She did not disclose it to her supervisor until 2014, after she received the SOR. 
Although she stated in her interrogatory response that she was not embarrassed by 
her illegal conduct, her supervisor testified that when Applicant informed him, she said 
she was embarrassed to report her illegal conduct to him. Applicant remained 
vulnerable to coercion during the two years she failed to disclose her illegal drug use. 
AG ¶ 16 (e)(1) applies. 
 
 Guideline E contains factors that can mitigate disqualifying conduct. The 
following conditions under AG ¶ 17 are relevant: 
 
(c) the offense is so minor, or so much time has passed, or the behavior is 
so infrequent, or it happened under such unique circumstances that it is 
unlikely to recur and does not cast doubt on the individual's reliability, 
trustworthiness, or good judgment; and 
 
(e) The individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress. 
 
The rationale discussed under Drug Involvement, AG ¶ 26(a) applies under 
Guideline E, AG ¶ 17(c). In addition, under AG ¶ 17(c), Applicant's conduct in using an 
illegal drug while holding a security clearance cannot be considered minor. It was a 
breach of the obligations imposed on security clearance holders, and raises serious 
doubts about Applicant's reliability and judgment. AG ¶ 17(c) does not apply. However, 
Applicant has disclosed her illegal conduct to her FSO and supervisor, and is no longer 
vulnerable to exploitation. AG ¶ 17(e) applies. 
 
Whole-Person Analysis  
  
 Under the whole-person concept, an administrative judge must evaluate the 
applicant’s security eligibility by considering the totality of an applicant’s conduct and all 
the circumstances. An administrative judge should consider the nine adjudicative 
process factors listed at AG ¶ 2(a): 
  
 
 
 
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(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. 
 
AG ¶ 2(c) requires that the ultimate determination of whether to grant a security 
clearance must be an overall commonsense judgment based upon careful 
consideration of the guidelines and the whole-person concept. Under the cited 
guidelines, I considered the potentially disqualifying and mitigating conditions in light of 
all the facts and circumstances surrounding this case.  
 
 Applicant's history includes positive factors that weigh in her favor, including 
abstinence from marijuana use for the past three years, her intent not to use it in the 
future, her educational achievements, her professional accomplishments, and her 
laudatory character references from her supervisor, friends, and coworkers. 
 
 However, Applicant's illegal conduct outweighs these factors. She engaged in 
criminal activity by using an illegal drug. She used marijuana while she held a security 
clearance at both the secret and top secret levels. After her 2011 marijuana use, she 
did not reveal her illegal conduct to her employer until prompted by the security 
clearance process. Applicant’s conduct is not mitigated, despite being granted a 
security clearance in 2007, after using marijuana. The Appeal Board has consistently 
held that prior favorable adjudications do not preclude subsequent adverse decisions; 
previous conduct is considered during each investigation and adjudication, especially 
when the most recent facts were not present, or as significant, during an earlier 
investigation.6 
 
 Applicant's use has been infrequent. However, on evaluating the whole person, I 
find that her four uses, all while holding a security clearance, show that she has 
repeatedly put her own wishes ahead of her duty to obey the law and uphold her 
obligations as a security clearance holder. Those who hold security clearances enter 
into a fiduciary relationship with the Government based on trust. Applicant's repeated 
illegal conduct while holding a security clearance does not demonstrate the 
                                                 
6 ISCR Case No. 01-24504 at 3 (App. Bd. Feb. 11, 2003). See also, ISCR Case No. 07-17383 at 2 (App. 
Bd. Feb. 12, 2009), “However, prior decisions to grant or retain a clearance do not undermine the legal 
sufficiency of a Judge’s subsequent adverse decision. ‘The government is not estopped from making an 
adverse clearance decision when there were prior favorable adjudications.’ ISCR Case No. 03-04927 at 
5 (App. Bd. Mar. 4, 2005); ISCR Case No. 04-01961 at 4 (App. Bd. Jul. 12, 2007). 
 
 
 
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trustworthiness and good judgment required in those granted access to classified 
information. 
 
 A fair and commonsense assessment of the available information shows 
Applicant has not satisfied the doubts raised about her suitability for a security 
clearance. For these reasons, I conclude she has not mitigated the security concerns 
arising from the cited adjudicative guidelines. 
 
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 as follows: 
 
Paragraph 1, Guideline H:   AGAINST APPLICANT 
 
 Subparagraphs 1.a – 1.b   Against Applicant 
 
 Paragraph 2, Guideline E:   AGAINST APPLICANT 
 
 Subparagraph 2.a    Against Applicant  
 
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the interests of national security to allow Applicant access to 
classified information. Applicant’s request for a security clearance is denied. 
 
 
 
 
RITA C. O’BRIEN 
Administrative Judge