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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
[Name Redacted]  )  ISCR Case No. 14-03733 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Nicole A. Smith, Esquire, Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
HOGAN, Erin C., Administrative Judge: 
 
On August 29, 2014, the Department of Defense (DOD) issued Applicant a 
Statement of Reasons (SOR) detailing security concerns under Guideline H, Drug 
Involvement, and Guideline E, Personal Conduct. 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) implemented within the Department of 
Defense on September 1, 2006.  
  
 On December 22, 2014, Applicant answered the SOR and requested his case be 
decided on the written record. Department Counsel prepared a File of Relevant Material 
(FORM) on June 26, 2015. The FORM was forwarded to Applicant on August 14, 2015.  
Applicant received the FORM on August 25, 2015. He had 30 days to submit a 
response to the FORM. He timely submitted additional matters in response to the 
FORM. Applicant’s Response to the FORM is admitted as Item 5. Department 
Counsel’s reply to the Response to the Form is admitted as Item 6. On September 18, 
2015, the FORM was forwarded to the Hearing Office and was assigned to me on 
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September 22, 2015. Based upon a review of the case file, pleadings, and exhibits, 
eligibility for access to classified information is granted. 
 
Rulings on Evidence 
 
 Item 4 of the FORM is a portion of the Report of Investigation (ROI) from the 
background investigation of Applicant. The five-page document is a summary of an 
interview of Applicant on December 19, 2013, in conjunction with his background 
investigation. DoDD 5220.6, enclosure 2, ¶ E3.1.20 states, “An ROI may be received 
with an authenticating witness provided it is otherwise admissible under the Federal 
Rules of Evidence.” (see ISCR Case No. 11-13999 (App. Bd., February 3, 2014).  
 
Although Applicant, who is representing himself, has not raised the issue via an 
objection, I am raising it sua sponte because Item 4 is not properly authenticated. 
Applicant’s failure to mention this issue in a response to the FORM is not a knowing 
waiver of the rule because he more than likely was unaware of the rule.  Waiver means 
“the voluntary relinquishment or abandonment – express or implied – of a legal right or 
advantage, the party alleged to have waived a right must have had both knowledge of 
the existing right and the intention of forgoing it.” Black’s Law Dictionary, 1717 (Bryan A. 
Garner, 9th ed., West 2009).  
 
Although, Department Counsel attempted to inform Applicant of the requirement 
in ¶ E3.1.20 of the Directive in footnote 1 on page 2, I cannot conclude Applicant  
expressly waived this rule. He did not mention it in his response to the FORM. I cannot 
conclude that Applicant read and understood footnote 1 on page 2. In accordance with 
the Directive, enclosure 2, ¶ E3.1.20, Item 4 is not admissible and will not be considered 
in this Decision.   
 
Findings of Fact 
 
 In his answer to the SOR, Applicant admits to the allegations in the SOR 
paragraphs 1.a and 1.b. He denies the falsification allegation in SOR paragraph 2.a. 
(Item 2)  
 
Applicant is a 50-year-old employee of a Department of Defense (DoD) 
contractor. He has worked for the DoD contractor since August 1996. He has held a 
security clearance since October 1997. His most recent security clearance was granted 
in September 2008. The highest level of education achieved is a bachelor’s degree. He 
has been married to his current wife since July 2013. He was married twice before and 
has two adult children. (Item 3)   
 
Guideline H – Drug Involvement 
 
The SOR alleges Applicant used marijuana on one occasion in 2010. (SOR ¶ 
1.a) It also alleged that his 2010 use of marijuana occurred after he had been granted a 
DoD Industrial Security Clearance on September 8, 2008. (SOR ¶ 1.b)  
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In his response to the SOR, dated December 22, 2014, Applicant admits that he 
used marijuana while holding a security clearance in 2010. He states that marijuana is 
legal in [State A]. He did not consider it an illegal substance if he could legally purchase 
and use the product, claiming, “If it is so illegal why isn’t the federal government 
stepping in and enforcing their law? If you really think me smoking marijuana once is a 
national threat then continue with this denial. One thing to ad [sic] I was not supporting 
any classified programs during the one time I smoked marijuana.” (Item 2 at 2)  
 
Guideline E - Personal Conduct  
 
In response to Section 23: Illegal Use of Drugs or Drug Activity – Illegal Use of 
Drugs or Controlled Substances: “In the last seven (7) years, have you illegally used 
any drugs or controlled substances? Use of a drug or controlled substance includes 
injecting, snorting, inhaling, swallowing, experimenting with or otherwise consuming any 
drug or controlled substance?” Applicant answered, “No.”  Applicant also answered, 
“No.” in response to the question in section 23 which asks, “Have you EVER illegally 
used or otherwise been involved with a drug or controlled substance while possessing a 
security clearance other than previously listed?” He did not list his 2010 illegal 
marijuana use. 
 
Applicant claims he did not list his 2010 marijuana use because the use of 
marijuana was legal in State A, where he resides. He states he did not knowingly falsify 
information on the security clearance application that he completed in October 2013. 
The question did not specifically mention “marijuana.” At the time he completed the 
security clearance application, he believed marijuana was legal in State A. Applicant 
states that this is why he answered, “No.” When the investigator interviewed him for his 
background investigation, she specifically mentioned marijuana in her questioning 
regarding the use of illegal drugs. He told her “yes” because he was trying to honestly 
answer the question. (Item 5)  
 
Applicant restates in his Response to the FORM, that marijuana is legal in State 
A and several other states. He has not smoked marijuana since his one-time use in 
2010. Applicant asks,  
 
Does one time really show my lack of insight to the responsibility and trust 
given for holding a security clearance? If anything, I have shown more 
trust because I was honest about my use. All I ever was trying to do was 
be open and honest, and here I’m getting ridiculed as being unreliable. I’m 
sure there are thousands upon thousands of people with security 
clearances who have smoked marijuana and then lied through their teeth 
to keep their clearances. And you’re worried about my admitted one-time 
use. (Item 5)  
 
On October 25, 2014, a Director of National Intelligence Memorandum, 
“Adherence to Federal Laws Prohibiting Marijuana Use,” advised that legislative 
changes by some states and the District of Columbia do not alter federal law or existing 
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National Security Adjudicative Guidelines. An individual’s disregard of federal law 
pertaining to the use, sale, or manufacture of marijuana remains adjudicatively relevant 
in national security determinations. Marijuana is identified as a controlled substance 
under the Federal Controlled Substances Act (title II of the Comprehensive Drug Abuse 
Prevention and Control Act) 21 U.S.C. 801-971 (1970). In other words, under federal 
law, use of marijuana remains unlawful.  
 
In State A, the recreational use of marijuana for individuals over age 21 became 
legal as a result of a ballot initiative 502 in the state legislature. When the legislature 
failed to take action, it advanced to the November 2012 general ballot. It was approved 
by popular vote on November 6, 2012. Marijuana dispensaries opened in July 2014. 
Medical marijuana was approved for the treatment of specific conditions in State A in 
1998 through Initiative 692. The statute was amended in 2010 and 2011.    
    
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 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 commonsense 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.  
 
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 as to obtaining 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 
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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 
that 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. 
  
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).   
 
Guideline H - Drug Involvement 
 
The security concern relating to the guideline for Drug Involvement is set out in 
AG & 24:       
  
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.  
 
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; 
 
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 guideline notes several disqualifying conditions that could raise security 
concerns. I find the following drug involvement disqualifying conditions apply to 
Applicant’s case.  
 
AG & 25(a) (any drug abuse);  
 
AG & 25(c) (illegal drug possession, including cultivation, processing, 
manufacture, purchase, sale, or distribution; or possession of drug 
paraphernalia); and  
 
AG ¶ 25(g) (any illegal drug use after being granted a security clearance). 
 
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Applicant used marijuana on one occasion in 2010. He possessed a security 
clearance at the time he used marijuana.  AG & 25(a) and AG ¶ 25(g) apply.  AG & 
25(c) also applies because Applicant possessed marijuana during his use in 2010.  
  
The Government’s substantial evidence and Applicant’s own admissions raise 
security concerns under Guideline H, Drug Involvement. The burden shifted to Applicant 
to produce evidence to rebut, explain, extenuate, or mitigate the security concerns. 
(Directive ¶ E3.1.15) An applicant has the burden of proving a mitigating condition, and 
the burden of disproving it never shifts to the Government. (See ISCR Case No. 02-
31154 at 5 (App. Bd. September 22, 2005))  
  
Guideline H also includes examples of conditions that could mitigate security 
concerns arising from drug involvement. The following mitigating conditions potentially 
apply to Applicant’s case:  
 
AG ¶ 26(a) (the behavior happened so long ago, was so infrequent, or 
occurred under such circumstances that it is unlikely to recur and does not 
cast doubt on the individual=s current reliability, trustworthiness, or good 
judgment); and  
  
AG & 26(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; and (4) a signed statement of intent with 
automatic revocation of clearance for any violation).  
   
 AG ¶ 26(a) applies because Applicant’s one-time use of marijuana occurred in 
2010, five years ago.  Under AG ¶ 26(a) there are no “bright line” rules for determining 
when conduct is “recent.” The determination must be based “on a careful evaluation of 
the totality of the record with the parameters set by the Directive.” ISCR Case No. 02-
24452 at 6 (App. Bd. Aug. 4, 2004). If the evidence shows “a significant period of time 
has passed without any evidence of misconduct,” then an administrative judge must 
determine whether that period of time demonstrates “changed circumstances or conduct 
sufficient to warrant a finding of reform or rehabilitation.” (Id.)   I find that Applicant’s use 
of marijuana is not recent. Applicant’s full disclosure of his marijuana use to the 
investigator conducting his background investigation and the absence of evidence of 
more recent or extensive illegal drug use mitigates doubts about Applicant’s current 
reliability, trustworthiness, or good judgment. Applicant was under the mistaken belief 
that it was okay to use marijuana because he believed that marijuana use was legal in 
State A where he resides. His misunderstanding of the law is not unreasonable 
considering he has no legal training.   
 
 AG ¶ 26(b) applies because Applicant has not used illegal drugs for five years. 
This is an appropriate period of abstinence. Applicant met his burden to mitigate the 
security concerns raised under Guideline H, Drug Involvement.  
 
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Guideline E – Personal Conduct 
 
 The security concern relating to the guideline for Personal Conduct is set out in 
AG &15: 
 
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.  
  
 The following disqualifying condition potentially applies to Applicant’s case: 
 
AG ¶ 16(a) (deliberate omission, concealment, or falsification of relevant 
facts from any personnel security questionnaire, personal history 
statement, or similar form used to conduct investigations, determine 
employment qualifications, award benefits or status, determine security 
clearance eligibility or trustworthiness, or award fiduciary responsibilities). 
  
 Applicant is alleged to have deliberately omitted his illegal marijuana use in 2010 
in response to Section 23 of his security clearance application dated October 15, 2013. 
In his response to the FORM, Applicant states he did not knowingly falsify information 
because he believed that marijuana was legal in State A, the state where he resides 
and works. The relevant question in Section 23 did not specifically mention marijuana 
use. He disclosed the 2010 marijuana use to the investigator conducting his background 
investigation because she specifically mentioned marijuana and he wanted to cooperate 
as much as possible.  I find Applicant did not intentionally falsify his security clearance 
application, because he believed marijuana use was legal in State A. He was not aware 
that marijuana use remained illegal under federal law. 
   
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 relevant 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.  
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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. In addition to Applicant’s illegal drug 
use, I considered he fully disclosed his illegal marijuana use to the investigator 
conducting his background investigation. He has not used marijuana for five years. He 
never purchased marijuana. In hindsight, Applicant should have used better judgment 
and looked into the Department of Defense policy regarding marijuana use in states 
where it is legal. Now that Applicant is informed that marijuana use remains illegal under 
federal law, he likely understands that additional illegal drug use may result in the 
revocation of his security clearance. He met his burden to overcome the security 
concerns raised by his one-time illegal drug use five years ago.  
  
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 
 
  Subparagraph 1.a:    For Applicant 
 
  Subparagraph 1.b:    For Applicant  
 
 Paragraph 2, Guideline E:    FOR APPLICANT 
 
  Subparagraph 2.a    For Applicant  
        
Conclusion 
 
In light of all of the circumstances presented by the record in this case, it is  
clearly consistent with the national interest to grant Applicant eligibility for a security 
clearance.  Applicant is warned that any future use of marijuana violates federal law and 
remains a security concern which could result in the revocation of his security 
clearance. Eligibility for access to classified information is granted. 
 
                                                
_________________ 
ERIN C. HOGAN 
Administrative Judge