DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
--------------------------------- )       ISCR Case No. 14-04560
)
)
Applicant for Security Clearance )
Appearances
For Government: Jeff A. Nagel, Department Counsel
For Applicant: Catie E. Young, Attorney At Law, Griffith, Young & Lass
February 2, 2016
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Decision
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LOKEY ANDERSON, Darlene D., Administrative Judge:
Applicant submitted his Electronic Questionnaire for Investigations Processing
dated June 18, 2012.  (Government Exhibit 1.)  On October 17, 2014, the Department of
Defense (DoD) issued a Statement of Reasons (SOR) detailing the security concerns
under Guideline H for Applicant. 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) effective within the Department of Defense after
September 1, 2006. 
Applicant responded to the SOR on January 14, 2015, and he requested a
hearing before a Defense Office of Hearings and Appeals Administrative Judge.  This
case was assigned to this Administrative Judge on June 23, 2015.  A notice of hearing
was issued on August 12, 2015, scheduling the hearing for September 22, 2015. At the
hearing the Government presented one exhibit, referred to as Government Exhibit A.
Applicant presented six exhibits, referred to as Applicant’s Exhibits A through G.  He
also testified on his own behalf.  The record remained open until close of business on
October 7, 2015, to allow Applicant to submit additional supporting documentation.
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Applicant resubmitted Exhibit A though G with two supplemental exhibits H and I, which
were admitted without objection.  The official transcript (Tr.) was received on September
30, 2015.  Based upon a review of the pleadings, exhibits, and testimony, eligibility for
access to classified information is granted.
FINDINGS OF FACT
Applicant is 44 years old and is married with one child.  He has a Bachelor’s
degree in Aerospace Engineering and is working on his Master’s degree.  He is
employed by a defense contractor as a Systems Engineer.  He is applying for a security
clearance in connection with his employment.
Paragraph 1 (Guideline H - Drug Involvement). The Government alleges that the
Applicant is ineligible for clearance because he abused illegal drugs.
Applicant admitted allegations 1.a., and 1.c., and denied allegation 1.b.,  set forth
under this guideline.  (See Applicant’s Answer to the SOR.)  Applicant has used
marijuana on two occasions, once in 2009 and once in 2011.  He explained that from an
early child, he suffered from severe migraines.  His parents frequently took him to the
hospital emergency room for pain treatment.  Despite this debilitation, Applicant
excelled in school, and eventually graduated from college with a 3.8 grade point
average in Aerospace Engineering, and qualified for two honor societies.  (Applicant’s
Exhibit F.)  In 1997, Applicant began working for his current employer.  His job requires
extensive worldwide travel.  He obtained a security clearance in September 2002.  
In 2008, Applicant was diagnosed with a massive cancerous brain tumor, ranked
at a Grade 3 or 4.   Applicant took a medical leave from work and underwent surgery.
He believes his physician to be the number one neurosurgeon in the world.  In 2009,
Applicant started a 13 month chemotherapy regime.  (Tr. p. 34.)  The experience was
horrible.  He explained that he would throw up every night for about 45 minutes.  As the
chemotherapy sessions continued, the intense vomiting subsided.  In addition to
medication to handle his GI tract problems, he was given pain killers to prevent
constipation, and anti-nauseous medication.  Applicant stated that he did not handle the
treatment well, because he was not eating.  This was a very difficult time for Applicant,
as his body was suffering.    
In May 2009, while on medical leave from work, Applicant’s roommate, who saw
the suffering that Applicant was going through, gave Applicant two brownies that
contained marijuana to eat.  A friend of Applicant’s roommate had a medical
prescription for the marijuana, and felt sympathy for Applicant.              
In January 2011, Applicant was working in Israel for a short period.  While
walking home from work he slipped on black ice and broke three bones in his ankle and
lower leg that required surgery.  A metal rod with 13 screws was placed in this leg to
hold it together.  He had to walk with a cane and was in a lot of pain.  In April 2011,
Applicant was deployed to work in Israel on an extended stay.  Although he had been
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going to physical therapy in the United States up to that point, he was still in a lot of
pain.  In Israel, Applicant did not have a physician, and so he started using a pain
medication he bought at a local pharmacy there.  This medication made him tired,
constipated, and disturbed his stomach.  
In June 2011, while on vacation visiting his girlfriend in Amsterdam, Applicant
shared a marijuana cigarette with her that she purchased at a coffee shop.  Applicant
explained that the marijuana provided a welcome relief from the pain in his leg.
Applicant realizes that, despite the facts that he was on vacation and that marijuana use
is legal in Amsterdam, it is not legal in the United States and it is against DoD policy
while holding a DoD security clearance.  Applicant acknowledges that his decision to
use marijuana was stupid. He seriously regrets his past conduct and assures that it will
never happen again.
      
Applicant states that he is no longer in contact with his girlfriend from
Amsterdam, nor does he have any regular contact with anyone who uses marijuana or
any other illegal drug.  While working in Israel, Applicant met a woman that he
eventually married, and they recently had their first child, a daughter.  His wife does not
use illegal drugs.  Applicant credibly testified that he will never use marijuana again.  He
explained that if he is ever confronted with his illness again, in the future, he will be
better prepared to handle his pain issues.  He will be more insistent with his doctors to
obtain and use the medication they prescribe, and to find something that is compatible
with his system.  Furthermore, with the advancements in chemotherapy over the last six
years, if he ever has to undergo chemotherapy again, he hopes that it will have a milder
effect on his body.
After using marijuana in 2008 and in 2011, Applicant reported this use to his
employer’s security department, and also disclosed it in his SF-86.  (Government
Exhibit 1.)  His family and friends are also aware of his past drug use.  He understands
that his company has a ‘no drug tolerance’ policy and that the DoD clearly prohibits its
use.  He understands that marijuana is illegal and he promises never to use it again.  
In January 2015, Applicant’s oncologist stated that he has complete confidence
that Applicant has beaten cancer.  Applicant recently celebrated his six year anniversary
in January, which is a longer survival rate than 50 percent of the people with his
condition. 
Applicant submitted a letter of intent dated September 22, 2015, indicating that
he will never use illegal drugs again.  Should there be a violation, he consents to
automatic revocation of his security clearance.  (Applicant’s Exhibit A.)  Applicant also
underwent a Hair Follicle 5 Panel Drug Test dated September 14, 2015,  with negative
results.  (Applicant’s Exhibit B.)
Letters of recommendation from professional associates, coworkers, and his wife
indicate that Applicant is quite accomplished at work, and is the nicest husband and
father at home.  He is said to be extremely intelligent, a natural leader, organized and a
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capable engineer.  He is responsible and trustworthy.  He is highly respected by all who
know him and considered to be an asset to the company.  (Applicant’s Exhibit D.)    
A letter from Applicant’s Manager dated October 2, 2015, indicates that Applicant
is reliable and trustworthy.  He has a positive attitude and is most knowledgeable in his
field.  He is highly recommended for a security clearance. (Applicant’s Exhibit H.)
Applicant’s performance appraisals for the years 2012, 2013, and 2014, are all
favorable.  (Applicant’s Exhibit E.)  
POLICIES
Enclosure 2 and Section E.2.2. of the Directive sets forth adjudication policies
divided into "Disqualifying Factors" and "Mitigating Factors."  The following Disqualifying
Factors and Mitigating Factors are found to be applicable in this case:
Guideline H (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.
Conditions that could raise a security concern:
25.(a) any drug abuse; 
25.(c) illegal drug possession, including cultivation, processing, manufacture,
purchase, sale or distribution; or possession of drug paraphernalia, and 
25.(g) any illegal drug use after being granted a security clearance.
Conditions that could mitigate security concerns:
26.(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) demonstrated intent not to abuse drug in the future, such as:
 
(3) an appropriate period of abstinence;
(4) a signed statement of intent with automatic revocation of clearance for any
violation.
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In addition, as set forth in Enclosure 2 of the Directive at pages 18-19, in
evaluating the relevance of an individual’s conduct, the Administrative Judge should
consider the following general factors:
a.  The nature, extent, and seriousness of the conduct;
b. The circumstances surrounding the conduct, to include knowledgeable
participation;
c.  The frequency and recency of the conduct;
d.  The individual’s age and maturity at the time of the conduct;
e.  The extent to which participation is voluntary;
f.  The presence or absence of rehabilitation and other permanent behavioral
changes;
g.  The motivation for the conduct; 
h. The potential for pressure, coercion, exploitation or duress; and 
i.  The likelihood of continuation or recurrence.
The eligibility criteria established in the DoD Directive identify personal
characteristics and conduct, which are reasonably related to the ultimate question,
posed in Section 2 of Executive Order 10865, of whether it is “clearly consistent with
the national interest” to grant an applicant’s request for access to classified information.
The DoD Directive states, “The adjudicative process is an examination of a
sufficient period of a person’s life to make an affirmative determination that the person
is an acceptable security risk.  Eligibility for access to classified information is
predicated upon the individual meeting these personnel security guidelines.  The
adjudicative process is the careful weighing of a number of variables known as the
whole-person concept.  Available, reliable information about the person, past and
present, favorable and unfavorable should be considered in reaching a determination.”
The Administrative Judge can draw only those inferences or conclusions that have
reasonable and logical basis in the evidence of record.  The Judge cannot draw
inferences or conclusions based on evidence which is speculative or conjectural in
nature.  Finally, as emphasized by President Eisenhower in Executive Order 10865,
“Any determination under this order . . . shall be a determination in terms of the
national interest and shall in no sense be a determination as to the loyalty of the
Applicant concerned.”
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CONCLUSIONS
In the defense industry, the security of classified industrial secrets is entrusted
to civilian workers who must be counted upon to safeguard such sensitive information
twenty-four hours per day, seven days per week.  The Government is therefore
appropriately concerned when available information indicates that an applicant for
clearance may be involved in illegal drug abuse that demonstrates poor judgment or
unreliability.
It is the Government’s responsibility to present substantial evidence to support
the finding of a nexus, or rational connection, between the applicant’s conduct and the
continued holding of a security clearance.  If such a case has been established, the
burden then shifts to the applicant to go forward with evidence in rebuttal, explanation
or mitigation, which is sufficient to overcome or outweigh the Government’s case.  The
applicant bears the ultimate burden of persuasion in proving that it is clearly consistent
with the national interest to grant him a security clearance.
In this case the Government met its initial burden of proving that Applicant has
engaged in drug involvement (Guideline H).  The totality of this evidence indicates poor
judgment, unreliability and untrustworthiness on the part of Applicant.  Because of the
scope and nature of Applicant's conduct, I conclude there is a nexus or connection with
his security clearance eligibility.  Considering all of the evidence, Applicant has
introduced persuasive evidence in rebuttal, explanation, or mitigation that is sufficient
to overcome the Government's case under Guideline H of the SOR.  
First of all, the use of marijuana is illegal under Federal law, and also against
DoD policy, while holding a security clearance.  Under normal circumstances this
conduct is disqualifying for security clearance.  In this case, however, Applicant’s use
of marijuana on two occasions in his life, was not done for recreational purposes, but to
handle excruciating pain involved in two life threatening, catastrophic medical
conditions.   After using marijuana, he reported his use to his company security
department.  He also disclosed it on his SF-86.  He understands that his use of
marijuana was against the law, against DoD policy, and his company policy.  This
misconduct normally raises serious questions about one’s judgment, reliability and
trustworthiness.  In this case however, Applicant is not a recent college graduate,
without sufficient experience or the know-with-all to comprehend the seriousness of his
actions.  He is, instead, a 44-year-old, intelligent, educated, well-respected engineer,
who has worked in the defense industry for over 18 years.  He has not used marijuana
in over four years.  He understands the responsibilities required of him in holding a
security clearance.  He knows the law, admits to making a serious mistake, and has no
intention of ever using any illegal drug again, no matter the extent of his future pain and
discomfort.  His demeanor and testimony was credible and convincing. 
Under Guideline H, Drug Involvement, Disqualifying Conditions 25.(a) any drug
abuse; and 25.(c) illegal drug possession, including cultivation, processing,
manufacture, purchase, sale or distribution; or possession of drug paraphernalia apply.
Mitigating Conditions 26.(a) the behavior happened so long ago, was so infrequent, or
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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 (b)
demonstrated intent not to abuse drug in the future, such as: (3) an appropriate period
of abstinence; (4) a signed statement of intent with automatic revocation of clearance
for any violation are also applicable.
 
I have also considered the “whole-person concept” in evaluating Applicant’s
eligibility for access to classified information.  In this case, Applicant has demonstrated
the level of maturity, responsibility, and characteristics expected of an employee who
works for the defense industry and can be trusted with access to classified information.
Applicant’s illegal conduct was out of character, and occurred during two serious life
crises.
  
Under the particular facts of this case, the totality of the conduct set forth under
all of the guidelines viewed as a whole, supports a whole-person assessment of good
judgment, trustworthiness, reliability, candor, and a willingness to comply with rules and
regulations, and/or other characteristics indicating that the person may properly
safeguard classified information.  I am convinced that Applicant will never use any
illegal drug again.  
A security clearance is a privilege, not a right.  In order to meet the qualifications
for access to classified information, it must determined that Applicant is, and has been,
sufficiently trustworthy on the job and in his everyday life to adequately protect the
Government’s national interest.  Based upon the conduct outlined here, this applicant
has demonstrated that he is trustworthy, and he does meet the eligibility requirements
for access to classified information.       
On balance, it is concluded that Applicant has overcome the Government's case
opposing his request for a security clearance.  Accordingly, the evidence supports a
finding for Applicant as to the factual and conclusionary allegations expressed in
Paragraph 1 of the SOR.
FORMAL FINDINGS
Formal findings For or Against the applicant on the allegations in the SOR, as
required by Paragraph 25 of Enclosure 3 of the Directive are:
Paragraph 1: For Applicant.
    Subpara.  1.a.: For Applicant.
    Subpara.  1.b.: For Applicant.
        Subpara.  1.c.: For Applicant.
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DECISION
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 a security clearance for
Applicant.
Darlene Lokey Anderson
Administrative Judge