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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 14-03154 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Ross Hymans, Esq., Department Counsel 
For Applicant: Matt Hughes, Esq.  
 
 
______________ 
 
Decision 
______________ 
 
 
CREAN, THOMAS M., Administrative Judge: 
 
Based on a review of the pleadings, exhibits, and testimony, Applicant mitigated 
drug involvement and personal conduct security concerns. Eligibility for access to 
classified information is granted. 
 
Statement of the Case 
 
Applicant submitted an Electronic Questionnaire for Investigations Processing (e-
QIP) on April 29, 2008, to obtain a security clearance required for his duties in the U.S. 
Army. After an investigation conducted by the Office of Personnel Management (OPM), 
Applicant was granted access to classified information including Sensitive 
Compartmented Information (SCI). He submitted another e-QIP on June 18, 2013, to 
retain his access to classified information which is required for his employment with a 
defense contractor. After another investigation conducted by OPM, the Department of 
Defense (DOD) could not make the affirmative findings required to issue a security 
clearance. On April 19, 2015, DOD issued Applicant a Statement of Reasons (SOR) 
detailing security concerns for drug involvement (Guideline H) and personal conduct 
(Guideline E). The action was taken under Executive Order 10865, Safeguarding 
Classified Information within Industry (February 20, 1960), as amended; Department of 
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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.  
 
 Applicant answered the SOR on June 23, 2015. He admitted the three 
allegations of personal conduct under Guideline E, and the two allegations of drug use 
under Guideline H. Department Counsel was prepared to proceed on August 10, 2015, 
and the case was assigned to me on September 17, 2015. The Defense Office of 
Hearings and Appeals (DOHA) issued a Notice of Hearing on September 30, 2015, 
scheduling a hearing for October 14, 2015. I convened the hearing as scheduled. The 
Government offered six exhibits, which I marked and admitted into the record without 
objection as Government Exhibits (GX) 1 through 6. Applicant testified, and offered two 
exhibits which I marked and admitted into the record without objection as Applicant 
Exhibits (AX) A and B. I kept the record open for Applicant to submit additional 
documents. Applicant timely submitted one additional document which I marked and 
admitted into the record without objection as AX C. (GX 7, e-mail, dated November 16, 
2016) DOHA received the transcript of the hearing (Tr.) on October 22, 2015. 
 
Findings of Fact 
 
 Applicant’s admissions are included in my findings of fact. After a thorough 
review of the pleadings, transcript, and exhibits, I make the following additional findings 
of fact.   
 
 Applicant is a 28-year-old high school graduate. He attended one semester of 
college in 2005. He served on active duty in the Army from April 2008 until November 
2011. He received an honorable discharge as a specialist (E-4). He served a tour in Iraq 
from July 15, 2009 until February 2011. He married in November 2010 and divorced in 
February 2011. He has no children. He has been employed in the same analyst position 
with different contractors since 2012. Applicant presented Certificates of Appreciation 
from the federal law enforcement office that he supports with his analysis work. (Tr. 17-
22; Gov. Ex. 1, e-QIP, dated April 29, 2008; GX 2, e-QIP, dated June 18, 2013; AX B, 
Certificates of Appreciation, January and February 2015; AX C, DD 214) 
 
The SOR alleges, and Applicant admits, that he used marijuana at various times 
from September 2005 until December 2011 (SOR 1.a), and after being granted access 
to classified information in July 2008 (SOR 1.b). All information concerning his 
marijuana use was provided by Applicant either in his e-QIP or in response to questions 
from a security investigator. Applicant also admits that he told a security investigator on 
May 14, 2008, that he does not intend to use illegal drugs again (SOR 2.a), and that he 
used marijuana for the first and only time in September 2005 (SOR 2.b). He did not tell 
the security investigator that he used marijuana in 2007 prior to entering the Army in 
April 2008. Applicant told a security investigator on September 24, 2013, that he had not 
used marijuana while in the U.S. Army and while having access to classified information 
(SOR 2.c). He admitted to using marijuana in November 2011 as he was leaving active 
duty.  
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On his first application for a security clearance submitted shortly after he entered 
active duty in the Army, Applicant admitted to one-time experimental use of marijuana in 
September 2005 while a college student. He purchased a small amount of marijuana 
and used it by himself in his home. (GX 1, e-QIP, dated April 29, 2008). Applicant was 
interviewed by a security investigator on May 14, 2008. He admitted his September 
2005 use of marijuana. He told the investigator that he did not like the feeling he 
received from marijuana and did not continue to use marijuana. He stated he had no 
“future intent to smoke marijuana or use any other illegal substance” (Tr. 27-28, 33-34; 
GX 3, Personal Subject Interview, dated May 14, 2008).  
 
Applicant submitted a second e-QIP to update his eligibility for access to 
classified information on June 18, 2013. It had been five years since his last application 
for a security clearance, and he was now employed as a civilian by a defense 
contractor. On this e-QIP, he noted that he used marijuana for experimental reasons 
with a friend in March 2007, as well as about five times after leaving active duty. He did 
not disclose his 2007 use of marijuana on his April 2008 e-QIP. He told his recruiter 
about his marijuana use in 2007. His recruiter told him that his limited use of marijuana 
in 2007 was not the type of marijuana use that concerned the Army. The recruiter did 
not tell him to lie about his marijuana use but indicated the use was not pertinent. Since 
he believed the experimental use of marijuana did not concern the Army, he did not 
include the 2007 use on his e-QIP. (Tr. 34-36) 
 
Applicant was granted access to classified information while on Army active duty 
from April 2008 until November 2011. He did not use marijuana or any illegal substance 
for the over three years he was on active duty. He was tested for drug use numerous 
times while on active duty, and since starting work as a civilian analyst in 2012, with 
negative results. When Applicant was out processing from the Army in November 2011, 
he used marijuana four or five times during and shortly after his out processing from the 
Army. During the out processing, Applicant had left his barracks and was living with a 
friend off the military installation. He was “read out” of his access to classified 
information and SCI during his out processing, but he is unsure if he had been read out 
before he used marijuana in November 2011. He disclosed this use on his June 18, 
2013 e-QIP, and admitted using marijuana while possessing a security clearance. He 
noted on the e-QIP that he had left the Army, was unemployed, and was thinking of 
returning to college. In response to another question on the e-QIP concerning any other 
use of an illegal substance while possessing a security clearance, Applicant answered 
“no”. He admitted on the June 2013 e-QIP to using marijuana 12 to 15 times in his life. 
 
 In response to questions from the security investigator on September 24, 2013, 
Applicant said he had not used marijuana while holding a security clearance or while in 
the Army. Since he was no longer performing Army duties and was not living on the 
installation, he did not believe he was subject to the Army rule on drug use. About a 
month after leaving the Army, he realized he missed analyst work and started looking 
for an analyst position. He knew he could not use marijuana while in an analyst position, 
so he stopped using marijuana in December 2011. (Tr. 32-34; GX 4, Personal Subject 
Interview, dated September 24, 2013) 
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Applicant self-referred to an addiction service program for an evaluation in June 
2015. He underwent a variety of substance abuse evaluation tests. The tests indicate 
no alcohol abuse, and a past history of low-level marijuana abuse. He was evaluated by 
a licensed clinical social worker and substance abuse counselor who is the program 
director for the addiction services. The counselor’s report noted Applicant’s early 
marijuana use and that he relapsed to marijuana use in November 2011 in response to 
multiple social stressors. The report noted that Applicant realizes that marijuana is not a 
positive stress management tool. The report also noted that Applicant has not used any 
illegal substance since late 2011. His marijuana use was diagnosed as in sustained full 
remission. Based on his test results and evaluation, the counselor did not recommend 
any substance abuse or mental health treatment. (AX A, Report, dated June 22, 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.  
 
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 
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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 or misuse of a prescription 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. Drug abuse is the illegal use of a drug or use of a legal drug in a manner 
that deviates from approved medical direction. Drugs are defined as mood and behavior 
altering substances, including drugs material and other chemical compounds identified 
and listed in the Controlled Substances Act of 1970. Marijuana or cannabis is included 
in the Schedule 1 list. (AG ¶ 24)  
 
Applicant used marijuana at various times from September 2005 until December 
2011. He admitted using marijuana after being granted a security clearance. While it 
may be unclear whether Applicant was still holding a security clearance when he used 
marijuana in November 2011, the disqualifying condition as noted below raises use of 
marijuana after being granted a security clearance. Applicant’s use of marijuana in 2011 
was after being granted a security clearance in 2008. Applicant's use of marijuana 
raises the following Drug Involvement Disqualifying Conditions under AG ¶ 25: 
 
(a) any drug use; and 
 
(g) any illegal drug use after being granted a security clearance. 
 
 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;  
 
(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); and 
 
(d) satisfactory completion of a prescribed drug treatment program, 
including but not limited to rehabilitation and aftercare requirement, 
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without recurrence of abuse, and a favorable prognosis by a duly qualified 
medical professional. 
 
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. 
 
 These mitigating conditions apply. Applicant admits to intermittent limited use of 
marijuana as a student before entering the Army and as he was leaving the Army. He 
was at a low point in his life at the time he left the Army. He used marijuana a total of 12 
to 15 times in his life. He has not used illegal drugs since late 2011. Applicant realizes 
that he is an adult and a security analyst and as such he cannot use illegal substances. 
He stated a clear intent not to use illegal drugs in the future. His last use of marijuana 
was over four years ago, his use was infrequent, and the use happened under 
circumstances that are now unlikely to recur. Applicant’s environment is now one of 
maturity and a professional life that prohibits illegal drug use. While Applicant was not 
enrolled and did not complete a substance abuse program, he did receive a favorable 
evaluation and prognosis from a duly qualified medical professional. There has been an 
appropriate period of abstinence, and a change in lifestyle and circumstance. Applicant 
mitigated security concerns for drug involvement.  
 
Personal Conduct 
 
 Personal conduct is a security concern because conduct involving questionable 
judgment, untrustworthiness, unreliability, or unwillingness to comply with rules and 
regulations can raise questions about an individual’s reliability, trustworthiness, and 
ability to protect classified and sensitive information. Of special interest is any failure to 
provide truthful and candid answers during the process to determine eligibility for 
access to classified information or any other failure to cooperate with this process (AG ¶ 
15). Personal conduct is always a security concern because it asks whether the 
person’s past conduct justifies confidence the person can be trusted to properly 
safeguard classified or sensitive information. Authorization for a security clearance 
depends on the individual providing correct and accurate information. If a person 
conceals or provides false information, the security clearance process cannot function 
properly to ensure that granting access to classified or sensitive information is in the 
best interest of the United States Government.  
 While there is a security concern for a deliberate omission, concealment, or 
falsification of a material fact in any written document or oral statement to the 
Government when applying for a security clearance, not every omission, concealment, 
or inaccurate statement is a falsification. A falsification must be deliberate and material. 
It is deliberate if it is done knowingly and willfully with intent to deceive. 
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 The SOR alleges that Applicant did not provide full, complete, and accurate 
information concerning his drug use in responses to questions from security 
investigators. There is evidence to indicate that Applicant may not have provided full, 
complete, and accurate information to the security investigators. Applicant’s failures 
potentially raise the following security concerns under Personal Conduct Disqualifying 
Condition AG ¶ 16(b) deliberately providing false and misleading information concerning 
relevant facts to an employer, investigator, security official, competent medical authority, 
or other official government representative.  
 
 Applicant denied that he intentionally did not provide full, complete, and accurate 
information to security investigators. Applicant told the security investigator in May 2008 
that he never intended to use illegal drugs in the future. At the time of the interview, it 
was Applicant’s intent not to use drugs in the future. He did not use illegal drugs for 
almost four years while in the Army indicating his intent in 2008 was not to again use 
illegal drugs. His limited use of marijuana as he left active duty in November 2011 does 
not establish that he lied to the investigator about never intending to use illegal drugs 
again. 
 
 Applicant used marijuana on a limited basis with a friend in 2007 prior to entering 
the Army. He did not disclose this use on his May 2008 e-QIP because he did not 
believe his limited marijuana use under the circumstances was pertinent and an Army 
concern. This belief was based on comments and guidance from his recruiter. His 
failure to list the use was not deliberate but the result of a wrong understanding of the 
Army’s concern for use of illegal substances. Applicant noted his 2007 use of marijuana 
on his June 2013 e-QIP. By that time, he had been in the Army for almost four years, 
had been eligible for access to classified information both as a soldier and a civilian for 
over five years. He was honest and truthful because he knew what conduct and actions 
to list on the e-QIP. 
 
 Applicant admits using marijuana in November 2011 after being granted a 
security clearance in 2008. While the language of the disqualifying condition is using 
illegal drugs after being granted a security clearance, the investigator’s notes indicate 
that Applicant‘s statement was that he did not use illegal drugs while holding a security 
clearance. Applicant was in the final days of his out processing from the Army when he 
used marijuana in November 2011. He may have been “read out” of his security 
clearance at the time. Applicant believed he was no longer in the Army, did not have a 
security clearance, and was not bound by the non-use of illegal drug rules. His failure to 
inform the security investigator that he used marijuana while holding a security 
clearance is reasonable under the circumstances. I find Applicant did not deliberately 
fail to provide correct and accurate information on drug use security investigators. I 
conclude that Applicant mitigated the personal conduct security concern. 
 
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 
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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 that Applicant is a good 
worker who has been commended by the law enforcement agency he supports for his 
employer. I considered that he has been granted access to classified information for the 
past seven years without any allegations of security violations.  
 
 Applicant admitted using marijuana with varying frequency while a student and 
before entering active duty, and on a limited basis after leaving Army active duty. His 
last use of marijuana was over four years ago. He received a good prognosis 
concerning his drug use from a medical professional. Applicant established that he did 
not deliberately provide false information concerning his drug use to security 
investigators. These facts leave me without questions and doubts about Applicant’s 
eligibility and suitability for access to classified information., For all these reasons, I 
conclude that Applicant has mitigated drug involvement and personal conduct security 
concerns. Eligibility for access to classified information is granted. 
 
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 - b:  For Applicant 
 
 Paragraph 2, Guideline E:   FOR APPLICANT 
 
  Subparagraph 2.a - c:  For Applicant 
 
 
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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. Eligibility for access to classified information is granted. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge