DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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----------------------------------                   )       ISCR Case No. 14-06710
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Applicant for Security Clearance )
Appearances
For Government: Allison O’Connell, Esq., Department Counsel
For Applicant: Pro se
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 Decision
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WESLEY, Roger C., Administrative Judge:
Based upon a review of the pleadings and exhibits, I conclude that Applicant
mitigated security concerns regarding his use of illegal drugs. Eligibility for access to
classified information is granted. 
 
History of the Case
On June 22, 2015, the Department of Defense (DOD) Consolidated Adjudication
Facility (CAF) issued a Statement of Reasons (SOR) detailing reasons why DOD
adjudicators could not make the preliminary affirmative determination of eligibility for
granting a security clearance, and recommended referral to an administrative judge to
determine whether a security clearance should be granted, continued, denied, or
revoked. The action was taken under 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 (AGs) implemented by the
DOD on September 1, 2006.
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Applicant responded to the SOR on July 8, 2015, and elected to have his case
decided on the basis of the written record. Applicant received the Government’s File of
Relevant Material (FORM) on November 2, 2015, and responded to the FORM within
the time permitted. He submitted a signed, sworn statement on November 13, 2015,
which was admitted as Item 8.  The case was assigned to me on December 4, 2015. 
Summary of Pleadings
Under Guideline H, Appellant allegedly used marijuana one time (in April 2013)
after he had been granted a security clearance. In his response to the allegations in the
SOR, Applicant admitted the allegation with explanations. He claimed he used the
illegal substance once out of curiosity while on a retreat with trusted friends. He claimed
the use was out of character for him and he reported the incident promptly to his facility
security officer (FSO).  
Findings of Fact
 Applicant is a 43-year-old information technology (IT) manager for a defense
contractor who seeks to retain his security clearance. The allegations covered in the
SOR and admitted by Applicant are adopted as relevant and material findings.
Additional findings follow.
Background
Applicant married his spouse in May 1995 and has one child from this marriage.
(Item 5) He attended college classes between August 1991 and May 1995 and earned
a bachelor’s degree in May 1995. (Item 1)  He claimed no military service. (Items 1 and
6) Applicant has worked for his current employer since February 2014 as an IT
manager. Prior to joining his current employer, he worked as a systems analyst for
another defense contractor between December 2012 and January 2014. (Item 5) 
Drug-related incident
Applicant spent a weekend retreat with friends on April 21, 2013. (Item 7) That
evening, Applicant was offered to smoke marijuana in a pipe by his friends and
accepted their offer. After accepting the offer, Applicant used marijuana on this one
occasion at the retreat. At the time, Applicant held a security clearance, which he
obtained in September 2009. (Items 1 and 6) Applicant did not like the taste of the
marijuana and has not used it since he returned from the retreat. (Item 6) 
Applicant expressed no desire to ever use marijuana again, and has not used it
since April 2013. (Item 6) Applicant told his wife of his experimentation with marijuana
and his commitment to avoid it in the future. At the time of the retreat, his security
clearance was not active. (Item 6) Applicant has never experimented with any other
illegal drugs.
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In a post-FORM submission of November 2015, applicant reaffirmed his
assurances that his use of marijuana with friends in April 2013 was a one-time event,
which has never occurred before or since been replicated. (Item 8) He assured that he
has maintained over two and one-half years of abstinence since his first and only use of
marijuana in April 2013. Applicant notorized his post-FORM statement with his
expressed understanding that he was subject to automatic revocation of his clearance
for any violation. (Item 8) 
Most of Applicant’s leisure time is devoted to family-oriented activities and
working around his residence. There is nothing in Applicant’s reported background that
could be used to pressure, coerce, or influence him. (Item 6) Applicant’s has good
employment references. (Item 6) 
Policies
The AGs list guidelines to be used by administrative judges in the decision-making
process covering DOHA cases. These guidelines take into account factors that could
create a potential conflict of interest for the individual applicant, as well as considerations
that could affect the individual’s reliability, trustworthiness, and ability to protect classified
information. These guidelines include "[c]onditions that could raise a security concern
and may be disqualifying” (disqualifying conditions), if any, and many of the "[c]onditions
that could mitigate security concerns.” The AGs must be considered before deciding
whether or not a security clearance should be granted, continued, or denied. The
guidelines do not require administrative judges to place exclusive reliance on the
enumerated disqualifying and mitigating conditions in the guidelines in arriving at a
decision. Each of the guidelines is to be evaluated in the context of the whole person in
accordance with AG ¶ 2(c). 
In addition to the relevant AGs, administrative judges must take into account the
pertinent considerations for assessing extenuation and mitigation set forth in AG ¶ 2(a) of
the revised AGs, which are intended to assist the judges in reaching a fair and impartial
commonsense decision based upon a careful consideration of the pertinent guidelines
within the context of the whole person. The adjudicative process is designed to examine
a sufficient period of an applicant’s life to enable predictive judgments to be made about
whether the applicant is an acceptable security risk. 
When evaluating an applicant’s conduct, the relevant guidelines are to be
considered together with the following AG ¶ 2(a) factors: (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 chances; (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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Viewing the issues raised and evidence as a whole, the following individual
guideline is pertinent in this case:
Drug Involvement
The Concern: 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  AG ¶ 24.
Burden of Proof
By virtue of the principles and policies framed by the AGs, a decision to grant
or continue an applicant's security clearance may be made only upon a threshold
finding that to do so is clearly consistent with the national interest.  Because the
Directive requires administrative judges to make a commonsense appraisal of the
evidence accumulated in the record, the ultimate determination of an applicant's
eligibility for a security clearance depends, in large part, on the relevance and
materiality of that evidence. See United States, v. Gaudin, 515 U.S. 506, 509-511
(1995).  As with all adversarial proceedings, the judge may draw only those inferences
which have a reasonable and logical basis from the evidence of record.  Conversely,
the judge cannot draw factual inferences that are grounded on speculation or
conjecture.
The Government's initial burden is twofold: (1) it must prove by substantial
evidence any controverted facts alleged in the SOR, and (2) it must demonstrate that
the facts proven have a material bearing to the applicant's eligibility to obtain or
maintain a security clearance. The required materiality showing, however, does not
require the Government to affirmatively demonstrate that the applicant has actually
mishandled or abused classified information before it can deny or revoke a security
clearance. Rather, the judge must consider and weigh the cognizable risks that an
applicant may deliberately or inadvertently fail to safeguard classified information.
Once the Government meets its initial burden of proof of establishing admitted
or controverted facts, the evidentiary burden shifts to the applicant for the purpose of
establishing his or her security worthiness through evidence of refutation, extenuation,
or mitigation.  Based on the requirement of  Exec. Or. 10865 that all security
clearances be clearly consistent with the national interest, the applicant has the
ultimate burden of demonstrating his or her clearance eligibility. “[S]ecurity-clearance
determinations should err, if they must, on the side of denials.” See Department of the
Navy v. Egan, 484 U.S. 518, 531 (1988). 
Analysis  
Security concerns are raised about Applicant’s one-time use of marijuana while
holding a security clearance during a retreat with friends in April 2013. On the strength
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of the evidence presented, two disqualifying conditions (DC) of the AGs for drug
abuse are applicable: DC ¶ 25(a), “any drug abuse,” and DC ¶ 25(c), “illegal
possession, including cultivation, processing, manufacture, purchase, sale, or
distribution; or possession of drug paraphernalia.” Judgment concerns exist over
Applicant’s one-time use of marijuana while holding a security clearance.
Considering the isolated nature of Applicant’s marijuana use in April 2013,
enough time has elapsed to facilitate safe predictable judgments that he will not return
to illegal drug use in the foreseeable future. Pertinent mitigating conditions (MC)
covered by AG ¶ 24 are available to Applicant. MC ¶ 24(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,” and MC ¶ 24(b), “a demonstrated intent not to
use any drugs in the future, such as (3) an appropriate period of abstinence,” apply to
Applicant’s limited use of marijuana.
Prior to his one-time use of marijuana in April 2013 while on a retreat, Applicant
had never used marijuana. Compounding the significance of this one-time use was
Applicant’s possession of a security clearance at the time and his imputed knowledge
that smoking marijuana (even on a single occasion) is incompatible with holding a
clearance. 
Applicant expressed remorse for his mistaken judgment in using marijuana on
his retreat and has committed to avoiding any future recurrence. Since April 2013,
Applicant has stayed true to his commitment and avoided any recurrent use of
marijuana. With no recurrent history of marijuana use, and with so much time that has
elapsed since his first and only use in 2013 (i.e., over two and one-half years of
abstinence), Applicant has solidified his commitment to avoid any recurrence of illegal
drug use in the foreseeable future.
Based on his assurances and actions to date, it is unlikely that Applicant will
resume his use of marijuana or any illegal substance in the foreseeable future. He
fully understands, too, that should he return to recurrent use in the future, he is
subject to losing his clearance. Based on his one-time use of marijuana, his self
reporting of marijuana use, and his assurances he will never use illegal drugs again
without placing himself at certain risk of losing his clearance, safe predictable
judgments, can be made about Applicant’s ability to avoid recurrent drug involvement
in the future.  
From a whole-person perspective, Applicant has established independent
probative evidence of his one-time use of marijuana and the unlikelihood of his ever
resuming his use of the substance. He has a bachelor’s degree and steady
employment as an IT specialist with his current employer. Applicant’s own
acknowledgment of poor judgment helps to reinforce favorable conclusions about his
overall judgment, reliability, and trustworthiness. 
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Taking into account all of the facts and circumstances surrounding Applicant’s
isolated drug use and judgment lapse, Applicant mitigates security concerns related to
his drug use. Favorable conclusions are warranted with respect to the allegations
covered by subparagraph 1.a of Guideline H.
Formal Findings
In reviewing the allegations of the SOR and ensuing conclusions reached in the
context of the findings of fact, conclusions, conditions, and the factors listed above, I
make the following formal findings:
GUIDELINE H: (DRUG INVOLVEMENT):         FOR APPLICANT
   
Sub-para. 1.a                      For Applicant
Conclusions
In light of all the circumstances presented by the record in this case, it is clearly
consistent with the national interest to grant or continue Applicant’s security clearance.
Clearance is granted.
                                          
Roger C. Wesley
Administrative Judge