KEYWORD: Guideline H; Guideline E
DIGEST: Applicant challenges the Judge’s treatment of Applicant’s having used marijuana while
he held a clearance in his analysis both of Disqualifying Conditions and Mitigating ones.  Applicant
argues that the Judge improperly conflated the concepts of disqualification and of mitigation.  We
find no support for this argument.  Neither the Directive, general principles of legal analysis, nor
common sense prohibit consideration of the same piece of evidence both for what it may reveal
about the nature of the security concerns and about whether the applicant has met his burden of
persuasion in mitigating them. Holding a clearance may enhance the seriousness of drug abuse and
is relevant in determining whether a sufficient period of time has elapsed to conclude that security-
significant conduct is behind applicant.  Adverse decision affirmed. 
CASENO: 14-03522.a1
DATE: 02/24/2016
DATE: February 24, 2016
In Re:
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Applicant for Security Clearance
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ISCR Case No. 14-03522
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
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FOR APPLICANT
Tod D. Stephens, Esq.
The Department of Defense (DoD) declined to grant Applicant a security clearance.  On
November 7, 2014, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that
decision–security concerns raised under Guideline H (Drug Involvement) and Guideline E (Personal
Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive).
Applicant requested a hearing.  On November 15, 2015, after the hearing, Defense Office of
Hearings and Appeals (DOHA) Administrative Judge Robert E. Coacher denied Applicant’s request
for a security clearance.  Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal: whether the Judge’s findings of fact
contained errors; whether the Judge erred in concluding that Applicant’s conduct raised security
concerns; and whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law.
Consistent with the following, we affirm. 
The Judge’s Findings of Fact
Applicant is 62 years old.  He is married, and his youngest child lives with him along with
her own two children.  He has worked for a Defense contractor for over 30 years and has held a
security clearance during that time, including 10 years with a top secret clearance.
Applicant admitted the allegations in the SOR.  The first asserts that he used marijuana from
August to November 2011 after having been granted a security clearance.  The second asserts that
he was arrested in November 2011 for possession of a dangerous drug without a prescription and
for driving under the influence of drugs (DUI).  He pled guilty to the latter offense.  
Applicant suffered a back injury in 2009, as a consequence of which he was prescribed
hydrocodone and morphine sulfur.  He was also prescribed muscle relaxers, which affected his
judgment.  He used marijuana from August to November 2011, having recalled from prior usage in
the 1970s that it would help him sleep.  During the 1970s, Applicant had been arrested several times
for using the drug.  He held a security clearance at the time he started using marijuana in 2011.  He
used it two or three times a week prior to going to bed.  Applicant obtained the marijuana from a
person he knew from the 1970s, paying about $40 an ounce.  He knew that using marijuana was
contrary to his employer’s policy regarding drug use and that it could cause him problems with his
clearance.  He did not disclose his drug use to anyone at work.                                                      
In November 2011, Applicant was driving to work when he had a flat tire.  A police officer
pulled over to assist him.  Applicant had a prescription drug in the car and, when asked to produce
the prescription, could not do so.  The officer administered a field sobriety test to Applicant, which
he failed.  The officer arrested Applicant.  A subsequent blood test yielded a positive result for
marijuana.  Applicant was charged with DUI because of this blood test.  He was not prosecuted for
the prescription drug.  Applicant pled guilty and has completed all of his sentence.  He states that
he has not used marijuana since his arrest and does not intend to do so in the future.
1Directive, Enclosure 2 ¶ 24(a).
2Directive, Enclosure 2 ¶ 24(g).  
3Directive, Enclosure 2 ¶ 16(e).  
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Applicant still suffers from his back problem and remains in constant pain.  He does not
intend to undergo surgery and remains on prescription pain medication.  Applicant has received
awards for the quality of his work as well as excellent ratings on his performance evaluations.
The Judge’s Analysis
The Judge concluded that Applicant’s misconduct raised two concerns under Guideline H:
Disqualiyfing Conditions 24(a)(“any drug abuse”)1 and 24(g): (“any illegal drug use after being
granted a security clearance”).2  Regarding Guideline E, he concluded that Applicant’s use of
marijuana satisfied the criteria of Disqualifying Condition 16(e) (“personal conduct, or concealment
of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or
duress”).3  In further concluding that Applicant had not mitigated the concerns raised by his conduct,
the Judge stated that Applicant has resumed marijuana use after a 36-year abstinence and that he still
experiences the back pain that gave rise to his 2011 marijuana use.  He noted that Applicant has not
used marijuana for four years.  However, he also stated that Applicant’s having held a clearance at
the time of his drug use and his knowledge that such use was illegal raises a serious concern about
his judgment.  He stated that these actions cast doubt upon Applicant’s current reliability and good
judgment.  The Judge also stated that Applicant’s willingness to use marijuana while his
grandchildren were living with him undercut his effort to demonstrate mitigation.  In analyzing
Applicant’s case under Guideline E, the Judge cited to some of the same evidence he had addressed
under Guideline H.  He also stated that Applicant had not presented sufficient evidence of positive
steps to reduce or eliminate his vulnerability to coercion.
Discussion
Applicant challenges some of the Judge’s findings of fact.  We examine a Judge’s findings
to see if they are supported by “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion in light of all the contrary evidence in the same record.”  Directive
¶ E3.1.32.1.  Applicant asserts several factual errors.  One is the finding that he had been arrested
several times in the 1970s for using marijuana.  He states that, to the contrary, he was arrested for
having possessed the drug, not for having used it.  This argument is persuasive.  The only evidence
concerning these prior arrests is found in Applicant’s security clearance application (SCA) and his
clearance interview, both of which disclose possession and make no reference to use.  However, it
is not likely that this error exerted any influence on the Judge’s overall decision.  Therefore, it is
harmless.  See, e.g., ISCR Case No. 14-03601 at 3 (App. Bd. Jul. 1, 2015).  
Applicant also contends that the Judge erred in stating that he had admitted all of the
allegations in the SOR.  He argues that he had “refuted,” that is, denied, the allegation regarding his
4In addressing this assignment of error, Applicant cites–in block format, implying that it is a quotation–language
that does not appear in the SOR Answer  or anywhere else in the record.  In particular, the Answer does not use the word
“refute,” “deny,” or any other word of equivalent meaning in addressing the allegation under consideration.  
5The incident history was admitted without objection as Government Exhibit 2.  This document states, in
pertinent part, “On 24 July 2013, [Applicant pled] guilty to the charge(s) of DUI[.]”  
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arrest for possession of a dangerous drug without a prescription and DUI and that there is no
evidence that he had pled guilty to DUI.4  The SOR allegation reads as follows:
In approximately November 2011, you were arrested and charged with Possession
of Dangerous Drug without Prescription, Driving Under the Influence of Alcohol
and/or Drugs, and Unsafe Vehicle.  In approximately July 2013, you pled Guilty to
DUI[.]
The allegation went on to describe the sentence imposed upon Applicant for the offense of which
he was convicted.  In his Answer to the SOR, Applicant stated, “I admit the arrest took place.”   He
provided an explanation to the effect that he had a prescription for the drugs in question  but was not
in possession of the prescription at the time of his arrest.  He stated that this was probably why he
was charged only with DUI.  Applicant specifically admitted that during the time leading up to his
arrest he had been using marijuana to help him sleep.  This explanation does not explicitly refute or
deny the basis for his arrest or other facts set forth in the SOR.  Moreover, it is generally consistent
with the Judge’s findings, which, in any event, are independently supported by Applicant’s
admissions in the SCA, his clearance interview, his hearing testimony, and the security clearance
incident history.5  Even if there were some error in the challenged finding, in that Applicant’s
Answer to the SOR did not explicitly admit every aspect of the allegation, it would not likely have
exerted an effect on the outcome of the case.  The other challenged findings are based upon
substantial evidence or constitute reasonable inferences from the evidence.  Applicant has cited to
no harmful error in the Judge’s findings.  The Judge’s material findings are sustainable.  See, e.g.,
ISCR Case No. 12-03420 at 3 (App. Bd. Jul. 25, 2014).
Applicant challenges the Judge’s application of the pertinent Disqualifying Conditions.
Under Guideline E, he contends that there is no evidence that would show him to be vulnerable to
coercion.  However, the evidence, including Applicant’s testimony, shows that, after a hiatus of over
three decades, Applicant resumed using marijuana.  He did so while holding a clearance and at a
time when he was also taking oxycodone and morphine.  He testified that when he began using
marijuana, he did not advise his employer.  Tr. at 39.  This evidence is sufficient to raise in a
reasonable mind a concern that Applicant engaged in conduct which, had it become known, might
have imperiled his clearance, thereby rendering him vulnerable to coercion.  We find no reason to
disturb the Judge’s application of Disqualifying Condition 16(e).
Applicant also challenges the Judge’s treatment of the Guideline H Disqualifying Conditions.
Among other things, he notes that the Judge discussed Applicant’s having held a clearance while
using marijuana in his analysis both of the Disqualifying Conditions as well as the Mitigating ones.
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Applicant argues that, by doing so, the Judge improperly conflated the concepts of disqualification
and of mitigation, thereby impairing his ability to evaluate Applicant’s favorable evidence.  We find
no support for this argument.  The Judge correctly cited and quoted the pertinent passages of the
Directive in concluding that illegal drug use while holding a clearance raised a concern under
Guideline H, in that Applicant might be lacking in reliability and trustworthiness.  He also correctly
cited and quoted the pertinent Guideline H Mitigating Conditions.  Nowhere in his analysis does the
Judge appear to have mistaken the concepts of disqualification and mitigation for the other,
misstated the Directive, or entered contradictory findings.  Neither the Directive, general principles
of legal analysis, nor common sense prohibit consideration of the same piece of evidence both for
what it may reveal about the nature of an applicant’s security concerns and about whether the
applicant has met his burden of persuasion in mitigating them.  Indeed, holding a clearance may well
enhance the seriousness of drug abuse and is therefore relevant in determining whether a sufficient
period of time has elapsed to enable a conclusion that an applicant’s security-significant conduct is
behind him.  See, e.g., ISCR Case No. 14-01847 at 3 (App. Bd. Apr. 9, 2015) (Evidence that the
applicant used marijuana multiple times while holding a clearance supported the Judge’s conclusion
that not enough time had passed to show that the applicant’s misconduct was unlikely to recur).  The
Directive presumes a nexus between admitted or proven conduct under any of the Guidelines and
an applicant’s eligibility for a clearance.  See, e.g., ISCR Case No. 14-04648 at 3 (App. Bd. Sep. 9,
2015).  Applicant’s arguments are not enough to rebut the presumption of nexus.  
We have considered Applicant’s challenge to the Judge’s mitigation analysis as well as his
application of the whole-person factors.  We find persuasive Department Counsel’s contention that
Applicant’s arguments are, in essence, a disagreement with the Judge’s weighing of the evidence,
which is not enough to show that the Judge weighed the evidence in a manner that was arbitrary,
capricious, or contrary to law.  See, e.g., ISCR Case No. 14-06440 at 4 (App. Bd. Jan. 8, 2016).  The
Judge examined the relevant data and articulated a satisfactory explanation for the decision.  The
decision is sustainable on this record.  “The general standard is that a clearance may be granted only
when ‘clearly consistent with the interests of the national security.’”  Department of the Navy v.
Egan, 484 U.S. 518, 528 (1988).  See also Directive, Enclosure 2 ¶ 2(b):  “Any doubt concerning
personnel being considered for access to classified information will be resolved in favor of the
national security.”
Order
The Decision is AFFIRMED.  
Signed: Michael Ra’anan       
Michael Ra’anan
Administrative Judge
Chairperson, Appeal Board
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Signed: Jean E. Smallin        
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: James E. Moody      
James E. Moody
Administrative Judge
Member, Appeal Board