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                              DEPARTMENT OF DEFENSE
               DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
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)       ISCR Case No. 14-02556
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)
Applicant for Security Clearance )
Appearances
For Government: Caroline E. Heintzelman, Esquire, Department Counsel
For Applicant: Ryan C. Nerney, Esquire
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Decision
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WHITE, David M., Administrative Judge:
Applicant has infrequently used marijuana for more than 30 years, including while
holding a security clearance since 2008. He knew that the drug abuse violated Federal
law, security clearance requirements, and his employer’s policies. The evidence is
insufficient to mitigate resulting security concerns. Based upon a review of the
pleadings, testimony, and exhibits, eligibility for access to classified information is
denied. 
Statement of the Case
Applicant submitted a security clearance application (SF 86) on November 26,
2012. On December 22, 2014, the Department of Defense (DoD) issued a Statement of
Reasons (SOR) to Applicant, detailing 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 for
Determining Eligibility for Access to Classified Information, effective within the
Department of Defense after September 1, 2006. 
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Applicant answered the SOR in writing (AR) on April 20, 2015, and requested a
hearing before an administrative judge. Department Counsel was prepared to proceed
on June 29, 2015. The case was assigned to me on July 9, 2015. DOHA issued a
Notice of Hearing on July 21, 2015, and I convened the hearing, as scheduled, on
August 13, 2015. The Government offered Exhibits (GE) 1 through 3, which were
admitted without objection. The Government also offered three summaries of Office of
Personnel Management (OPM) interviews from Reports of Investigations (ROI), GE 4
through 6, to which Applicant objected. No witness authenticated these ROI, and they
were not admitted, although Applicant answered some questions concerning them
during the hearing. Applicant offered Exhibit (AE) A, which was admitted without
objection, and testified on his own behalf. I granted Applicant’s request to leave the
record open until August 27, 2015, to permit submission of additional evidence. DOHA
received the transcript of the hearing (Tr.) on August 21, 2015. On August 27, 2015,
Applicant submitted AE B, which was admitted without objection and the record closed. 
Findings of Fact
Applicant is a 51-year-old part-time employee of a defense contractor, where he
has worked as a software engineer with a security clearance since October 2007. Until
about May 2011 this position involved working full time. He has never married, and has
no children. He earned a bachelor’s degree in 1990, and has no history of military
service. He held a security clearance from about 1998 through 2000 while employed by
a different defense contractor. (GE 1; GE 2; GE 3; Tr. 22-23, 34-35.) 
In his response to the SOR, Applicant admitted the truth of the allegations set
forth in SOR ¶¶ 1.a and 1.b, with some clarification of terminology that he considered to
be, “vague and misleading,” and with six pages of additional commentary about his
marijuana use. Applicant’s admissions and comments are incorporated in the following
findings.
Applicant started using marijuana in the early 1980s with friends. He used it only
occasionally on a recreational basis, but did not like the bad side-effects that he
experienced. There were some periods as long as five or six years between uses. He
has developed a number of physical ailments that sometimes cause him substantial
pain. Smoking marijuana gives him some temporary relief from some of these
symptoms, but he resorts to it infrequently because he still suffers adverse side-effects
from smoking it. His testimony and earlier disclosures on security clearance applications
were inconsistent concerning some dates and details, but he appeared to be attempting
to honestly disclose his drug use. My findings are based on evaluation of all the
evidence presented by Applicant concerning this history. (AR; GE 1; GE 2; GE 3; AE B;
Tr. 25-29.)
Applicant first applied for a security clearance in 1998. On that SF 86 he
disclosed that he had used marijuana 12 times from 1980 through 1995. In response to
Department Counsel’s question concerning the subsequent OPM interview, Applicant
agreed that he told the investigator that marijuana made him feel sleepy. Department
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Counsel next asked Applicant whether he remembered saying that he didn’t like the
effects of marijuana, similar to his hearing testimony, and that at that time he had no
intention to use marijuana in the future. Applicant responded, “No,” to that awkwardly
worded question, but that response seemed intended to communicate agreement that
he said he did not intend to use marijuana in the future. His subsequent SF 86 indicated
that his employment with that defense contractor ended in late 2000, and available
evidence consistently shows that he did not use marijuana during that employment or
while holding that security clearance. (GE 2; GE 3; Tr. 37-38, 57.) 
On his 2007 SF 86, Applicant disclosed that he used marijuana about seven
times between January 2001 and August 2003, but that he could not remember the
exact circumstances or dates. Applicant testified that during his subsequent OPM
interview he told the investigator that he had no intention to use marijuana in the future,
because it made him sleepy and didn’t make him feel well. He said, “It’s not part of my
habit. It’s not something I do normally.” (GE 2; Tr. 58.) 
After being granted his security clearance in 2008 in connection with his present
employment, Applicant was fully aware that marijuana use would be a violation of both
Federal law and his employer’s policy against drug abuse. Nevertheless, he admitted to
voluntarily using marijuana, that was shared with him by acquaintances in efforts to
achieve pain relief, on at least two occasions in about 2010 and 2012. He first disclosed
this on his November 2012 SF 86, in which he admitted using it while holding a security
clearance and said, “My lifetime usage frequency is about one instance/occasion every
two years. It is listed here mostly in the name of complete disclosure.” He also stated
that he did not intend to use marijuana in the future because, “it usually just makes me
feel like I have heartburn or I am going to throw up.” (GE 1; Tr. 24-29, 40-55.)
Applicant testified during his hearing that he had no intention to use marijuana in
the future. When asked if he would do so if his pain became really bad again and a
friend offered to give him some, he replied that maybe he would use it if the pain was
really bad and no medical help was available. (Tr. 31, 58.) 
Applicant submitted the results of a urinalysis test for which he submitted a
sample on July 22, 2015. The test was negative for amphetamines, cocaine
metabolites, marijuana metabolites, opiates, and phencyclidine. (AE A.) He also
submitted the results of a substance abuse evaluation and chemical dependency
assessment that he underwent, at a state-certified chemical dependency treatment
center, on August 3, 2015. He provided another sample for urinalysis testing in
connection with this evaluation. It also yielded negative results. The case manager and
clinical director involved in this assessment found no signs or symptoms of a substance
use disorder, and no indication that any detoxification, biomedical, or treatment services
were needed. However, this report states that Applicant reported his last use of
marijuana was in 2013 - the year following the last use he had previously disclosed. (AE
B.)  
Applicant admitted that he did not report his drug use to his Facility Security Officer when it happened, but1
has an unusual work arrangement as the sole representative of a geographically remote subcontractor, so
his failure to do so was satisfactorily explained. Tr. 48-50, 59-60.
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Other than Applicant’s SF 86 descriptions of the circumstances under which he
was fired or resigned from previous jobs under unfavorable circumstances in 1993,
2005, 2006, and 2007, the record lacks any evidence concerning the quality of his
professional performance, the level of responsibility his duties entail, or his track record
with respect to handling sensitive information and observation of security procedures.1
No character witnesses provided statements describing his judgment, trustworthiness,
integrity, or reliability. I considered his testimony to be a credible reflection of his often
imperfect recollection of past events, without dissimulation or dishonesty.  
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 (DCs) and mitigating conditions (MCs), which are to be used 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s
overarching adjudicative goal is a fair, impartial, and commonsense decision. According
to AG ¶¶ 2(a) and 2(c), the entire process is a conscientious scrutiny of applicable
guidelines in the context 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 the 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. Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, “[t]he applicant is
responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or
mitigate facts admitted by the applicant or proven by Department Counsel, and has the
ultimate burden of persuasion as to obtaining a favorable clearance decision.” Section 7
of Executive Order 10865 provides: “[a]ny determination under this order adverse to an
applicant 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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A person applying for access to classified information seeks to enter 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 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.
Analysis
Guideline H, 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.
Drug abuse is defined as, “the illegal use of a drug or use of a legal drug in a manner
that deviates from approved medical direction.
AG ¶ 25 describes conditions that could raise a security concern and may be
disqualifying. The DCs supported by the evidence in this case are:
(a) any drug abuse; and
(g) any illegal drug use after being granted a security clearance.
Applicant admitted that he has used marijuana about every other year from the
early 1980s through 2012 or 2013. Some years he used more than once, and
sometimes he went as long as five or six years between incidents. Applicant has held a
security clearance since 2008, during which time he used marijuana at least twice while
knowing that it was illegal under Federal law, contrary to his company’s drug-free policy,
and in violation of personnel security guidelines.
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;
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(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; 
(4) a signed statement of intent with automatic revocation of
clearance for any violation;
(c) abuse of prescription drugs was after a severe or prolonged illness
during which these drugs were prescribed, and abuse has since ended; 
(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.
The last incident of drug abuse about which Applicant testified was in 2012,
although he reported that his most recent marijuana use was in 2013 while undergoing
his August 2015 chemical dependency assessment. In either case, this drug use is a
recent continuation of a pattern of infrequent usage over more than 30 years. Applicant
failed to convincingly demonstrate that this drug use is unlikely to recur, or that it does
not cast doubt on his current reliability, trustworthiness, or judgment. Mitigation was not
established under AG ¶ 26(a). 
Applicant’s equivocal testimony that he had no intention to use marijuana in the
future, but that he might do so under circumstances similar to his previously disclosed
incidents, was insufficient to demonstrate a commitment to remain abstinent. This
conclusion is buttressed by his pattern of previous declarations of intent not to use
marijuana in the future because he does not like its effects, after which he abused the
drug on multiple occasions. Mitigation was not established under AG ¶ 26(b).
Applicant acknowledged that marijuana is not a prescription medication, although
he claimed that numerous medical treatment providers had hinted to him that it might
ease some of his pain. In any event, he did not demonstrate that such abuse has
ended, so mitigation under AG ¶ 20(c) was not established.
Applicant has not undergone any drug treatment program, and was evaluated as
exhibiting no signs or symptoms of a substance abuse disorder. He simply chooses to
use marijuana on rare occasions. He failed to convincingly demonstrate that he would
not do so again, whenever he decides that he wants to. No mitigation under AG ¶ 26(d)
was established.
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Finally, Applicant failed to convincingly establish either remorse for, or mitigation
of, his disregard for the security implications of his voluntary drug abuse while holding a
security clearance, and the demonstrated unwillingness to comply with laws, rules, and
regulations inherent in those choices.
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
pertinent facts and circumstances surrounding this case. Applicant infrequently but
voluntarily chose to use marijuana a number of times over more than 30 years. His most
recent incidents of drug abuse occurred while holding a security clearance; and with full
knowledge that such conduct was both illegal and violated the policies of his employer
and the U.S. Government. He is a mature and experienced individual who is
accountable for such choices. 
` Applicant stated that he has no intention to abuse drugs in the future, but has
made that assertion several times previously without following through. The absence of
demonstrated rehabilitation or of permanent behavioral changes support continuing
concerns about his judgment, reliability, and trustworthiness. He says that he does not
like the side effects of marijuana, but uses it to ease symptoms of chronic medical
conditions. Those conditions have not changed, and he testified that they might cause
him to use marijuana again. Recurrence was not shown to be unlikely.
Applicant’s illegal conduct while holding a position of trust and confidence
subjects him to ongoing potential for coercion, exploitation, and duress. Overall, the
record evidence creates ongoing doubt as to his present eligibility and suitability for a
security clearance.
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Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline H: AGAINST APPLICANT
Subparagraph 1.a: Against Applicant
Subparagraph 1.b: 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.
                                              
DAVID M. WHITE
Administrative Judge