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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
[Name Redacted]  )  ISCR Case No. 15-01554 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Tovah Minster, Esquire, Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
HOGAN, Erin C., Administrative Judge: 
 
Applicant submitted an application for a security clearance (e-QIP) on June 3, 
2014. On September 1, 2015, the Department of Defense (DOD) issued a Statement of 
Reasons (SOR) to Applicant detailing the security concerns under Guideline H, Drug 
Involvement. 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) implemented within the Department of Defense on September 1, 2006.  
  
 On October 1, 2015, Applicant answered the SOR and requested his case be 
decided on the written record. Department Counsel prepared a File of Relevant Material 
(FORM) on November 29, 2015. The FORM was forwarded to Applicant on November 
30, 2015.  Applicant received the FORM on December 10, 2015. He had 30 days to 
submit a response to the FORM. He timely submitted a Response to the FORM which is 
admitted as Item 4. Department Counsel had no objection. (Item 5) On January 21, 
2016, the FORM was forwarded to the Hearing Office and was assigned to me on 
January 22, 2016.  
 
On January 27, 2016, I sent both parties an e-mail informing them that I was 
taking administrative notice of a 2006 state statute in the state where Applicant resides 
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which legalized medical marijuana. I also took administrative notice of the policy 
memorandum from the Director of National Intelligence, Adherence to Federal Laws 
Prohibiting Marijuana Use, dated October 25, 2014. I gave the parties an opportunity to 
comment on my proposed administrative notice documents by February 5, 2016. No 
comments were received by either party. A copy of the e-mail is marked as 
Administrative Exhibit (Admin Ex) I.  
 
Based upon a review of the case file, pleadings, and exhibits, eligibility for access 
to classified information is denied. 
 
Rulings on Evidence  
 
 Item 3 of the FORM is a portion of the Report of Investigation (ROI) from the 
background investigation of Applicant. The eight-page document is a summary of an 
interview of Applicant on July 24, 2014, in conjunction with his background investigation. 
DODD 5220.6, enclosure 2, ¶ E3.1.20 states, “An ROI may be received with an 
authenticating witness provided it is otherwise admissible under the Federal Rules of 
Evidence.” (See ISCR Case No. 11-13999 (App. Bd., February 3, 2014)). Item 4 is not 
authenticated. Department Counsel noted in footnote 1 that Applicant may object to this 
requirement without citing ¶ E3.1.20 of the Directive.  
 
Although Applicant, who is representing himself, has not raised the issue via an 
objection, I am raising it sua sponte. Applicant’s failure to mention this issue in a 
response to the FORM is not a knowing waiver of the rule.  Waiver means “the 
voluntary relinquishment or abandonment – express or implied – of a legal right or 
advantage. The party alleged to have waived a right must have had both knowledge of 
the existing right and the intention of forgoing it.” Black’s Law Dictionary 1717 (Bryan A. 
Garner, 9th ed., West 2009).  
 
While the Government attempted to explain why Applicant could object to the 
admissibility of Item 3, I cannot conclude Applicant was expressly informed of the 
requirement in ¶ E3.1.20 of the Directive because it was explained in a footnote. It is not 
unusual for Applicants to forego reading footnotes in a FORM. I cannot conclude 
Applicant expressly waived this rule because he did not mention it in his response to the 
FORM. There is no way to conclude that Applicant was aware of the requirement in ¶ 
E3.1.20.  I find Item 3 is not admissible and will not be considered in this decision.   
  
Findings of Fact 
 
 In his answer to the SOR, Applicant admits to all of the allegations in the SOR. 
(Item 1) His admissions are incorporated into the Findings of Fact. 
 
Applicant is a 29-year-old employee of a Department of Defense contractor. He 
has worked for this employer since May 2014. This is his first time applying for a 
security clearance. He is a high school graduate and has some college credit. He is 
single and has no children. (Item 2)   
 
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In response to section 26 – Illegal Use of Drugs or Drug Activity, on his security 
clearance application dated, June 3, 2014, Applicant admits to using and purchasing 
marijuana from December 2003 to May 2014. In 2003, he used marijuana three to four 
times per week. From June 2003 to June 2004, he underwent drug treatment related to 
his marijuana use. As of May 2014, he used marijuana daily for medical reasons. He 
indicated the marijuana was medically prescribed to him. (Item 2, section 23)  
 
In his Response to the FORM, Applicant provided a letter from his doctor 
indicating that he is prescribed marijuana. The doctor notes:  
 
[Applicant] has been prescribed medicinal marijuana for treatment of his 
medical conditions. He has been fully instructed in proper usage of this 
medication to keep himself and others safe, and is competent not to 
endanger anyone. (Item 4) 
 
 The state where Applicant resides recognized medical marijuana in 2006. I have 
taken administrative notice of several documents citing to the state’s medical marijuana 
laws which are marked as HE III.  
 
Under federal law, use of marijuana remains unlawful. On October 25, 2014, the 
Director of National Intelligence issued a policy memorandum titled, Adherence to 
Federal Laws Prohibiting Marijuana Use. The memo cites guidance from the 
Department of Justice that makes clear “no state can authorize violations of federal law, 
including violations of the Controlled Substance Act.” The memorandum also refers to 
the Intelligence Reform and Terrorism Prevention Act (IRTPA), as amended, 50 U.S.C. 
3343 (2008), which prohibits a federal agency from granting or renewing a clearance to 
an unlawful user of a controlled substance or an addict. (HE II) 
  
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the adjudicative guidelines (AG). 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 commonsense 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 
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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 as 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 grants access to 
classified information. Decisions include, by necessity, consideration of the possible risk 
that 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. 
  
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 as to the loyalty of the 
applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites 
for access to classified or sensitive information).   
 
Guideline H, Drug Involvement 
 
The security concern relating to the guideline for Drug Involvement is set out in 
AG & 24:       
  
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.  
 
(a) Drugs are defined as mood and behavior altering substances, and 
include:  
 
(1)  Drugs, materials, and other chemical compounds identified and 
listed in the Controlled Substances Act of 1970, as amended, 
(E.g., marijuana or cannabis, depressants, narcotics, stimulants, 
and hallucinogens), and  
 
(2) inhalants and other similar substances; 
 
(b) Drug abuse is the illegal use of a drug or use of a legal drug in a 
manner that deviates from approved medical direction. 
 
 
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The guideline notes several disqualifying conditions that could raise security 
concerns. I find the following drug involvement disqualifying conditions may apply to 
Applicant’s case.  
 
AG & 25(a) any drug abuse; and 
 
AG & 25(c) illegal drug possession, including cultivation, processing, 
manufacture, purchase, sale, or distribution; or possession of drug 
paraphernalia.  
 
Applicant used marijuana recreationally in 2003 at least 3-4 times a week. He 
has been using medical marijuana on a daily basis since May 2014. AG & 25(a) and AG 
& 25(c) apply.  
  
While the state where Applicant resides recognizes medical marijuana, it remains 
illegal under federal law as outlined in the October 25, 2014, Director of National 
Intelligence policy memorandum titled, Adherence to Federal Laws Prohibiting 
Marijuana Use. The memo cites guidance from the Department of Justice that makes 
clear “no state can authorize violations of federal law, including violations of the 
Controlled Substance Act.” (Admin Ex II) 
 
The Intelligence Reform and Terrorism Prevention Act (IRTPA), as amended, 50 
U.S.C. 3343 (2008) prohibits a federal agency from granting or renewing a clearance to 
an unlawful user of a controlled substance or an addict, and under federal law, use of 
marijuana remains unlawful. For the above reasons, AG & 25(h) applies, because even 
though Applicant is legally prescribed medicinal marijuana under state law, his use of 
marijuana remains illegal under federal law.    
 
The Government’s substantial evidence and Applicant’s own admissions raise 
security concerns under Guideline H, Drug Involvement. The burden shifted to Applicant 
to produce evidence to rebut, explain, extenuate, or mitigate the security concerns. 
(Directive ¶ E3.1.15) An applicant has the burden of proving a mitigating condition, and 
the burden of disproving it never shifts to the Government. (See ISCR Case No. 02-
31154 at 5 (App. Bd. September 22, 2005))  
  
Guideline H also includes examples of conditions that could mitigate security 
concerns arising from drug involvement. The following mitigating conditions potentially 
apply to the Applicant’s case:  
 
AG ¶ 26(a) the behavior happened so long ago, was so infrequent, or 
occurred under such circumstances that it is unlikely to recur and does not 
cast doubt on the individual=s current reliability, trustworthiness, or good 
judgment; and  
  
AG & 26(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 
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appropriate period of abstinence; and (4) a signed statement of intent with 
automatic revocation of clearance for any violation.  
   
 None of these mitigating conditions apply. Applicant began using marijuana 
recreationally in 2003. It resulted in him attending drug treatment from June 2003 to 
June 2004. Since May 2014, Applicant has been prescribed marijuana for medicinal 
reasons by his doctor. While the state where he resides recognized medical marijuana 
in 2006, it was not legally recognized back in 2003 when he first used marijuana. Even 
though medicinal marijuana is legal under state law, the use of marijuana remains 
unlawful under federal law. Applicant uses marijuana on a daily basis. There is no 
indication that he will discontinue the use of marijuana in the future.  
 
 Applicant did not meet his burden to mitigate the security concerns raised under 
Guideline H, Drug Involvement.  
  
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 relevant 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 Applicant disclosed his   
marijuana use on his security clearance application and has been forthcoming about the 
extent of his marijuana use. Although legal under state law, the use of marijuana 
remains a violation of federal law.  For this reason, Applicant did not mitigate the drug 
involvement security concern.     
 
 
 
 
 
 
 
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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:    AGAINST APPLICANT 
 
  Subparagraph 1.a:    Against Applicant 
      
Conclusion 
 
In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the national interest to grant Applicant eligibility for a security 
clearance.  Eligibility for access to classified information is denied. 
 
                                                
_________________ 
ERIN C. HOGAN 
Administrative Judge