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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 14-00775 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Julie R. Mendez, Esq., Department Counsel 
For Applicant: Pro se 
 
______________ 
 
Decision 
______________ 
 
 
CREAN, THOMAS M., Administrative Judge: 
 
Based on a review of the case file and pleadings, I conclude that Applicant failed 
to provide sufficient information to mitigate security concerns under Guideline H for drug 
involvement. Eligibility for access to classified information is denied. 
 
Statement of the Case 
 
On October 29, 2013, Applicant submitted an Electronic Questionnaire for 
Investigations Processing (e-QIP) to obtain a security clearance required for his 
employment with a defense contractor. (Item 3) Applicant was interviewed by an 
investigator from the Office of Personnel Management (OPM) on December 11, 2013. 
(Item 4) The Department of Defense (DOD) could not make the affirmative findings 
required to issue a security clearance. On April 22, 2014, DOD issued Applicant a 
Statement of Reasons (SOR) detailing security concerns for drug involvement under 
Guideline H. (Item 1) 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 
(AG) effective in the Department of Defense on September 1, 2006.  
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 Applicant answered the SOR on October 24, 2014. He admitted the one 
allegation of marijuana use from May 1973 until April 2013. He noted that he no longer 
uses marijuana, having stopped use in April 2013. His use over the previous 40 year 
was light and sporadic with instances of non-use for as long as ten years. He indicated 
that he is not addicted to marijuana and has passed many random drug tests. Applicant 
requested a decision on the written record. (Item 2) Department Counsel submitted the 
Government’s written case on January 27, 2015. Applicant received a complete file of 
relevant material (FORM) on February 12, 2015, and was provided the opportunity to 
file objections and submit material to refute, extenuate, or mitigate the security 
concerns. Applicant timely submitted additional information. (Item 5, Response to 
FORM, dated February 27, 2015) The case was assigned to me on April 8, 2015. 
 
Findings of Fact 
 
 After a thorough review of the case file and the pleadings, I make the following 
essential findings of fact.   
 
 Applicant is a 59-year-old high school graduate employed since October 2013 as 
a ship fitter by a defense contractor. He married in February 1983, separated in 1999, 
and finally divorced in June 2003. He has no children. (Item 2, E-QIP) 
 
The SOR alleges that Applicant used marijuana with varying frequency from 
approximately May 1973 until April 2013. (SOR 1.a) The allegation is based on 
Applicant’s response to e-QIP question 23 asking if in the last seven years he had used 
any drug or controlled substance. Applicant answered “Yes” and noted that he used 
marijuana once a month from May 1973 until August 2013. (Item 3)  
 
In his interview with the OPM investigators, Applicant stated that his marijuana 
use, starting in 1973, was isolated and for short periods of time. He smoked marijuana 
in both paper and pipe form recreationally starting in high school until he joined the 
Navy in June 1975. He did not smoke marijuana while in the Navy from June 1975 until 
June 1981. He smoked marijuana again from June 1981 until he married in February 
1983. He did not use marijuana after his marriage from February 1983 until August 
2012. He used once monthly from August 2012 until April 2013. His use was 
recreational because he liked the way marijuana made him feel relaxed. He never paid 
for marijuana since it was provided by the people he smoked with. He no longer 
associates with anyone that uses marijuana. He has no intention to use marijuana in the 
future because his new job means a lot to him. He has never received treatment or 
counseling for drug use. He emphasized that he never had a problem due to marijuana 
use, and does not need marijuana to function. (Item 4 at 1-2) 
 
In his response to SOR, Applicant admitted the allegation of marijuana use but 
stated he has not used marijuana for over a year. His marijuana use over the last 40 
years was light and sporadic with periods of nonuse over 10 years. He is not addicted to 
marijuana. He was tested many times in a random drug testing job situation always with 
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negative results. He is willing to be tested randomly again. He is capable of abstaining 
from marijuana use for the remainder of his life. 
 
In his response to the FORM, Applicant pointed out that he held a security 
clearance while on active duty in the Navy and for a number of years while working for 
another defense contractor. He noted that the response on the e-QIP that he used 
marijuana monthly referred only to the last period of use from August 2012 until April 
2013. Prior to that, his use was about once a month during the times that he was using 
marijuana. He emphasized that marijuana use was infrequent and only in a social 
situation. He stated that in the 40 years he noted he used marijuana, he actually did not 
use marijuana in approximately 35 of those years. He reiterated that he always passed 
random drug tests and rigorous background checks. Applicant wrote that “[He] has 
shown a capacity to refrain from drug use whenever he saw fit and when he determined 
that the circumstance made it necessary.” (Response to FORM, dated March 19, 2015) 
 
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the 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. 
 
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 over-arching 
adjudicative goal is a fair, impartial, and common sense 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.  
 
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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 to using marijuana from May 1973 until April 2013. Applicant's 
marijuana use raises the Drug Involvement Disqualifying Conditions AG ¶ 25(a) (any 
drug use).  
 
 I considered the following Drug Involvement Mitigating Conditions under 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  
 
(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.  
 
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 of 
time has passed without evidence of drug involvement, there must be an evaluation 
whether that period of time demonstrates changed circumstances or conduct sufficient 
to indicate a finding of reform or rehabilitation.  
 
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 Applicant admits sporadically using marijuana from May 1973 until April 2013. He 
used marijuana monthly from 2012 until 2013, so his use is recent and frequent. He 
used marijuana willingly so it was not used under any unique circumstances. Applicant 
stated he intends not to use marijuana in the future because his present job means a 
good deal to him.  
 
 Applicant has not used marijuana for approximately two years. He stopped using 
marijuana at times during his 40 years of marijuana use, but always returned to use 
marijuana. As he stated in his response to the FORM, “I believe that I have consistently 
shown a capability to abstain from use whenever I saw fit and when I determined that 
circumstances made it necessary.” This is not the statement of an individual who 
decided not to use an illegal drug in the future. It is the statement of a person who is 
willing to use an illegal drug whenever he thinks necessary. He has not shown an 
unequivocal intent not to abuse drugs in the future. Under these circumstances, two 
years of abstinence from marijuana use is not a sufficient time for Applicant to meet his 
burden to show changed circumstances or conduct that indicates he has reformed and 
will no longer use illegal drugs. His use of marijuana under the circumstances can occur 
again and it could cast doubt on his reliability, trustworthiness, and good judgment. 
When there has been more time of abstinence from drug use, Applicant could be 
granted access to classified information at present. There is no compelling evidence of 
a changed circumstance indicating reform or rehabilitation. AG ¶¶ 26(a) and 26(b) do 
not apply.  
 
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. I considered Applicant’s active duty 
service in the Navy, his service with a defense contractor, and his successful access to 
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classified information in the past. I considered Applicant’s stated intention not to use 
illegal drugs in the future. Applicant sporadically used marijuana willingly and 
deliberately for over 40 years. Applicant has not presented sufficient information to 
establish reform and changed circumstances sufficient to indicate that he will not use 
illegal drugs in the future. Applicant has not met his burden to show that his drug use 
from 1973 until 2013 no longer reflects adversely on his reliability, honesty, 
trustworthiness, and good judgment. His past knowing and intentional use of marijuana 
shows that he may not properly safeguard classified information. For all these reasons, I 
conclude Applicant has not mitigated the security concerns for illegal drug use. Overall, 
the record evidence leaves me with questions and doubts as to Applicant’s judgment, 
reliability, and trustworthiness. He should not be granted access to classified 
information. 
 
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:   AGAINST APPLICANT 
 
  Subparagraph 1.a:   Against Applicant 
 
Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with national interest to grant Applicant eligibility for a security 
clearance. Eligibility for access to classified information is denied. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge