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    DEPARTMENT OF DEFENSE 
  DEFENSE OFFICE OF HEARINGS AND APPEALS 
  
  
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 14-05294 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Daniel F. Crowley, Esq., Department Counsel 
For Applicant: Dana D. Jacobson, Esq. 
 
 
 
 
______________ 
 
Decision 
______________ 
 
 
HEINY, Claude R., Administrative Judge: 
 
Applicant contests the Department of Defense’s (DoD) intent to deny his eligibility 
for a security clearance to work in the defense industry. During a six-week period in 
June and July 2013, Applicant used marijuana and tested positive on a drug urinalysis. 
He has mitigated the drug involvement and personal conduct security concerns. 
Clearance is granted. 
 
History of the Case 
 
 On December 13, 2014, acting under the relevant Executive Order and DoD 
Directive,1 the DoD issued a Statement of Reason (SOR) detailing drug involvement 
and personal conduct security concerns. DoD adjudicators could not find that it is clearly 
consistent with the national interest to grant or continue Applicant’s security clearance. 
                                                          
1 Executive Order 10865, Safeguarding Classified Information within Industry (February 20, 1960), as 
amended; DoD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program 
(January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the DoD 
on September 1, 2006. 
 
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On January 17, 2015, Applicant answered the SOR and requested a hearing. On May 
27, 2015, I was assigned the case. On June 16, 2015, the Defense Office of Hearings 
and Appeals (DOHA) issued a Notice of Hearing for a hearing to be convened on July 7, 
2015.  
 
At the hearing, Government’s Exhibits (Ex.) 1 and 2 and Applicant’s Exhibits A 
through E were admitted without objection. Applicant testified at the hearing, as did his 
two supervisors. On July 15, 2015, DOHA received the hearing transcript (Tr.). 
 
Findings of Fact 
 
 In Applicant’s Answer to the SOR, he admitted the drug involvement and 
personal conduct allegations. His admissions are incorporated as facts. After a thorough 
review of the pleadings, exhibits, and testimony, I make the following additional findings 
of fact: 
 
 Applicant is a 61-year-old senior research engineer who has worked for a 
defense contractor since February 2005, and he seeks to retain a security clearance. 
(Tr. 49) He received clearances in April 1974 and October 2008. He served four years 
in the U.S. Navy directly after leaving high school. (Ex. E, Tr. 47)  
 
Applicant did not use marijuana in high school or in college. (Tr. 61) He first used 
it during the summer of 2013. (Tr. 61) During that summer, he attended a block party. 
He no longer associates with these individuals. For six weeks during June and July 
2013, he continued to smoke marijuana with these individuals four or five times a week. 
(Ex. 1) He had family responsibility, financial worries, concern for his grandson, and no 
time off from work, all of which interfered with his sleeping. (Tr. 62) He thought the 
marijuana use might help him to relax and sleep better. (Ex. 2) 
 
On July 24, 2013, he tested positive for marijuana metabolites on a urinalysis. 
(Ex. D) On August 5, 2013, he also tested positive for marijuana metabolites. (Ex. D) 
The nanogram reading for the July 24, 2013 test was 205 and had decreased to 40 
nanograms two weeks later on the August 5, 2013 test. (Tr. 80) Applicant asserts his 
last marijuana use was July 23, 2013, the day before he took the July urinalysis. He 
asserts the positive test in August was a “spin-down” and positive only because a trace 
amount remained in his urine. (Tr. 72) 
 
On Applicant’s October 2013 Electronic Questionnaires for Investigations 
Processing (e-QIP), he listed his marijuana use and frequency. (Ex. 1) He indicated his 
use was caused by stress and that he was taking stress management and wellness 
classes. He stated he had no intention of using marijuana in the future. (Ex. 1)  
 
In 2013, Applicant’s three sons and mother were living with him. (Tr. 59) His 
mother was suffering from stage IV lung cancer. (Tr. 60) She was not living with him 
when she died on July 2013. (Tr. 88) One of Applicant’s sons has Tourette syndrome. 
(Tr. 54) Another son, that son’s wife, and child were living with Applicant. Applicant’s 
 
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grandson suffers from cerebral palsy, which causes the grandson to frequently wake up 
crying during the night. (Tr. 56) The household’s sleeping periods are routinely limited to 
about five hours. (Tr. 56) At the time, he was working long hours. He had one period of 
overtime when he had no time off for six weeks. (Ex. 2)  
 
Applicant was very remorseful and ashamed about his actions and for letting 
down himself, his family, and his employer. (Tr. 74) He has told his family about his 
marijuana use. He acknowledged he made a stupid and wrong decision to use 
marijuana. His explanation for why he, an intelligent and highly educated person, would 
chose to start using marijuana for the first time at age 59 was:  
 
The pressures at home, just the working, the not sleeping, just wore me 
down. That’s all I can tell you sir. I just – I was beat. (Tr. 84) 
 
A licensed marriage family therapist supervisor gave Applicant a Substance 
Abuse Subtle Screening Inventory, Adult (SASSI-3) and conducted four counseling 
session with him (Tr. 68) The therapist indicated the SASSI-3 showed no substance 
abuse or dependence issues. (Ex. B) She found Applicant was not substance 
dependent, but had used cannabis to cope with stress. (Ex. B) Applicant received a 
good prognosis and the therapist stated there was no reason to believe Applicant would 
return to cannabis use. (Ex. B, C) Applicant took meditation training classes to help 
address his stress. (Tr. 71)  
 
From September 2013 through August 2014, Applicant had one random 
urinalysis each month. (Ex. D) All 12 random urinalyses were negative for the presence 
of marijuana. (Ex. D) Applicant attended Narcotics Anonymous, which reinforced his 
belief not to use illegal drugs in the future. (Tr. 73-74) It is his intent to never use illegal 
drugs again.  
 
Applicant’s director and supervisor stated Applicant is honest, trustworthy, 
forthright, dedicated, efficient, and extremely remorseful. His work has been top quality, 
above reproach, and very important to the U.S. military and war fighters. (Ex. A, Tr. 22-
30, Tr. 37-44) The company has a written policy against illegal drug use. (Tr. 43) 
 
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the adjudicative guidelines. In addition to brief 
introductory explanations for each guideline, the adjudicative guidelines list potentially 
disqualifying conditions and mitigating conditions, which must be considered 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 overarching 
adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 
 
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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 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 safeguard 
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 of the loyalty of the 
applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites 
for access to classified or sensitive information).  
 
Analysis 
 
Drug Involvement 
 
AG ¶ 24 expresses the security concern pertaining to 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. 
 
For six weeks during the summer of 2013, Applicant used marijuana four or five 
times a week. AG ¶ 25 describes the applicable conditions that could raise a security 
concern and may be disqualifying: 
 
(a) any drug abuse; 
 
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(b) testing positive for illegal drug use; 
 
(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. 
 
AG ¶ 26 provides conditions that could mitigate security concerns: 
 
(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; and, 
 
(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 requirements, 
without recurrence of abuse, and a favorable prognosis by a duly qualified 
medical professional. 
  
 In July 2013, Applicant last used marijuana. He intends to never use illegal drugs 
again. He acknowledged his use was wrong. He realizes how stupid his decision was to 
use illegal drugs and what he risked. He is very remorseful and ashamed of his actions. 
He takes responsibility for his actions and understands the consequences. He is willing 
to sign an affidavit stating he would submit to drug testing and any future drug use 
would result in the loss of his clearance.  
 
Applicant’s marijuana use was confined to a six-week period more than two 
years ago. 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 within 
the parameters set by the directive.” ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 
2004). For example, the Appeal Board determined in ISCR Case No. 98-0608 (App. Bd. 
Aug. 28, 1997), that an applicant's last use of marijuana occurring approximately 17 
months before the hearing was not recent. If the evidence shows “a significant period of 
time has passed without any evidence of misconduct,” then an administrative judge 
 
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must determine whether that period of time demonstrates “changed circumstances or 
conduct sufficient to warrant a finding of reform or rehabilitation.”2 
 
Because of his abstention from drug use for two years, and his recognition of the 
adverse impact on his life that drug abuse could cause, the incompatibility of illegal use 
with his goals, and his stated desire never to use illegal drugs again, there is reasonable 
certitude that he will continue to abstain from drug use. Applicant did not attempt to hide 
his illegal usage. He disclosed it on his e-QIP. His illegal drug use ending more than two 
years ago does not cast doubt on his current reliability, trustworthiness, or good 
judgment. Because he will not use illegal drugs in the future, confidence in his current 
reliability, trustworthiness and good judgment with respect to drug use is restored. AG ¶ 
26(a) applies. 
 
AG ¶ 26(b) applies because he has disassociated from drug-using associates, 
has not used marijuana in more than two years, and is willing to sign a statement of 
intent with automatic revocation of his clearance for any future illegal drug use.  
 
AG ¶ 26(d) has limited applicability. He received some counseling and a 
Substance Abuse Subtle Screening Inventory showed no substance abuse or 
dependence issues. Applicant was found not to be substance dependent, but had used 
cannabis to cope with stress. He received a good prognosis and took meditation training 
classes to help address his stress. 
 
Personal Conduct 
 
AG ¶ 15 explains why personal conduct is a security concern stating: 
                                                          
2 ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). In ISCR Case No. 04-09239 at 5 (App. Bd. Dec. 
20, 2006), the Appeal Board reversed the judge’s decision denying a clearance, focusing on the absence 
of drug use for five years prior to the hearing. The Appeal Board determined that the judge excessively 
emphasized the drug use while holding a security clearance, and the 20 plus years of drug use, and gave 
too little weight to lifestyle changes and therapy. For the recency analysis the Appeal Board stated:  
 
Compare ISCR Case No. 98-0394 at 4 (App. Bd. June 10, 1999) (although the passage 
of three years since the applicant's last act of misconduct did not, standing alone, compel 
the administrative judge to apply Criminal Conduct Mitigating Condition 1 as a matter of 
law, the Judge erred by failing to give an explanation why the Judge decided not to apply 
that mitigating condition in light of the particular record evidence in the case) with ISCR 
Case No. 01-02860 at 3 (App. Bd. May 7, 2002) (“The administrative judge articulated a 
rational basis for why she had doubts about the sufficiency of Applicant's efforts at 
alcohol rehabilitation.”) (citation format corrections added). 
 
In ISCR Case No. 05-11392 at 1-3 (App. Bd. Dec. 11, 2006) the Appeal Board, considered the recency 
analysis of an administrative judge stating: 
 
The administrative judge made sustainable findings as to a lengthy and serious history of 
improper or illegal drug use by a 57-year-old Applicant who was familiar with the security 
clearance process. That history included illegal marijuana use two to three times a year 
from 1974 to 2002 [drug use ended four years before hearing]. It also included the illegal 
purchase of marijuana and the use of marijuana while holding a security clearance. 
 
 
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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 Personal Conduct Disqualifying Conditions under AG ¶ 16 are potentially3 
applicable: 
 
(d) credible adverse information that is not explicitly covered under any 
other guideline and may not be sufficient by itself for an adverse 
determination, but which, when combined with all available information 
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. This includes 
but is not limited to consideration of: 
 
(1) untrustworthy or unreliable behavior to include breach of client 
confidentiality, release of proprietary information, unauthorized release of 
sensitive corporate or other government protected information: 
 
(2) disruptive, violent, or other inappropriate behavior in the 
workplace;  
 
(3) a pattern of dishonesty or rule violations; and 
 
(4) evidence of significant misuse of Government or other 
employer's time or resources. 
 
(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; 
 
                                                          
3 AG ¶ 16(a) and (b) do not apply because there are no allegations of falsification. AG ¶ 16(c) and (d) do 
not apply because the conduct is explicitly covered under Guideline H, drug abuse. AG ¶ 16(f) does not 
apply because the company’s policy against illegal drug use was not sufficiently explained or documented 
as to be a “commitment made by the individual to the employer as a condition of employment.” 
Additionally, this was not alleged in the SOR. 
 
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(f) violation of a written or recorded commitment made by the individual to 
the employer as a condition of employment; and 
 
(g) association with persons involved in criminal activity.  
 
With respect to the personal conduct concerns involving Applicant’s drug abuse 
the pertinent disqualifying conditions are AG ¶ 16(d)(3), a pattern of rule violations and 
AG ¶ 16(e)(1), which states, “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.” AG ¶ 16(g), was not alleged, but potentially 
applies. Certainly, past marijuana use violated the law in our society, and is conduct a 
person might wish to conceal, as it adversely affects a person’s professional and 
community standing. 
 
The mitigating condition outlined in AG ¶ 17(e), “the individual has taken positive 
steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress” 
applies to Applicant’s past drug abuse. Applicant’s employer, government 
representatives, and family are aware of his past marijuana use. Applicant has taken 
the positive step of disclosure, eliminating any vulnerability to exploitation, manipulation, 
and duress. I do not believe Applicant would compromise national security to avoid 
public disclosure of his past marijuana use. Any personal conduct security concerns, 
pertaining to his past drug use are mitigated.  
 
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. Applicant, at age 59, chose for the 
 
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first time to use marijuana and did so during a six week period in 2013. He is hard 
working, diligent, and responsible. His supervisors praise his character, duty 
performance, and dedication. The stressful conditions existing at the time of his use 
have changed. In July 2013, in the middle of his use, his mother died of cancer. He has 
taken meditation classes to help him address his stress. She gave him a good 
prognosis and the found there was no reason to believe Applicant would return to 
cannabis use. He realizes his conduct was wrong, inappropriate, and stupid. He is 
ashamed and remorseful about his marijuana use and intends to never use illegal drugs 
again, an intent reinforced during his attendance at Narcotics Anonymous.  
 
Overall, the record evidence leaves me without questions or doubts as to 
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I 
conclude Applicant mitigated the security concerns arising from his drug involvement 
and personal conduct.  
 
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, Drug Involvement:  FOR APPLICANT 
 
  Subparagraphs 1.a and 1.b: For Applicant 
  
Paragraph 2, Personal Conduct:  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. Eligibility for access to classified information is granted. 
 
 
 
_________________ 
CLAUDE R. HEINY II 
Administrative Judge