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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
[Name Redacted]  )  ISCR Case No. 14-01113 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Stephanie C. Hess, Esquire, Department Counsel 
For Applicant: Pro se 
 
 
______________ 
 
Decision 
______________ 
 
 
HOGAN, Erin C., Administrative Judge: 
 
Applicant submitted an application for a security clearance (e-QIP) on October 
16, 2013. On May 30, 2015, the Department of Defense (DOD) issued Applicant a 
Statement of Reasons (SOR) detailing security concerns under Guideline H, Drug 
Involvement; and Guideline E, Personal Conduct. 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 June 17, 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 January 15, 2016. The FORM was forwarded to Applicant on January 19, 
2016.  Applicant received the FORM on January 28, 2016. He had 30 days to submit a 
response to the FORM. He timely submitted a response to the FORM on February 10, 
2016. Department Counsel did not object to Applicant’s response to the FORM. On 
February 24, 2016, the FORM was forwarded to the Hearing Office and was assigned to 
me on March 1, 2016. Based upon a review of the case file, pleadings, and exhibits, 
eligibility for access to classified information is denied. 
 
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Findings of Fact 
 
 In his answer to the SOR, Applicant admits to the allegations in SOR ¶¶ 1.a – 1.h 
and denies the allegation in SOR ¶ 2.a. (Item 3) I incorporate Applicant’s admissions as 
facts. After a thorough review of the pleadings, exhibits, and submissions, I make the 
following additional findings of fact.  
 
Applicant is a 28-year-old employee of a Department of Defense contractor. He 
was hired in October 2013 and has been employed with his company since November 
2013. This is his first time applying for a security clearance. He is a high school 
graduate, completed some college credits, and received a degree from a technical 
program. He is single and has no children. (Item 4; Item 5)     
 
Guideline H – Drug Involvement 
 
 Applicant started using illegal drugs at the age of 17. He used marijuana on a 
daily basis from 2005 to July 2012. He would smoke one marijuana cigarette a day. He 
used Oxycontin on several occasions without a prescription between 2005 and 2008. 
On average, he would take one Oxycontin pill three times a week. He denies being 
involved in the sale, distributing or manufacture of Oxycontin. From 2007 to 2008, he 
used heroin on various occasions. (Item 5 at 5-6; Item 6 at 2) 
 
 In October 2007, Applicant voluntarily enrolled in a substance abuse treatment 
program. His presenting problem was the use of Heroin/Oxycontin. It was noted that he 
had been arrested within the past 30 days on a charge of “Interfering w/Police.” The 
intake interview indicated that Applicant used heroin on 20 of the previous 30 days. The 
amount used was four bags. His date of last use was three days before entering 
treatment. He also used other opiates on one occasion within the last month. Applicant 
indicated that he had spent $500 on drugs within the past 30 days.  His use of illegal 
drugs caused trust issues. (Item 9) 
 
 In response to the question “ Has Your Use of Substances Caused Any Negative 
Consequences in Your Life?” Applicant listed “Yes” under the sub-question “Financial” 
and stated “I was dealing.”  He also listed “Yes” under the sub-question “Physical” and 
stated “Withdrawals.”  He said “I will try to get out of AA/NA what I can.” He also wrote, 
“I do not have a higher power.” In another section of the intake interview the counselor 
wrote that Applicant “Started using at 16, was dealing Oxy’s beforehand.”  It was also 
noted that Applicant has a court date in 30 days and that he will need a letter for the 
court after completion of the program. (Item 9) Applicant attended his first inpatient 
rehabilitation program for less than one month. He claimed the treatment did not help 
him. (Item 5 at 6)  
 
 In May 2008, Applicant was arrested for possession of marijuana.  Applicant 
stated that the charge was reduced to misdemeanor “Creating a Public Disturbance.” 
(Item 5 at 4-5; Item 8 at 2) 
 
 From June 2008 to August 2008, Applicant enrolled himself in an inpatient 
substance abuse treatment program that was located out of state. He was treated for 
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Opioid Dependence and Cannabis Abuse. No records from Applicant’s inpatient 
treatment were provided.  Applicant claims the treatment changed his life. He claims he 
has not used illegal drugs after completing treatment in 2008. Since that time, he has 
maintained full-time employment and completed a technical training program to become 
a welder. (Item 3; Item 5 at 6) 
 
 In July 2012, Applicant was cited for Possession of Marijuana. In a personal 
subject interview conducted on January 7, 2014, Applicant indicated that he was at a 
party in the woods when police arrived on the scene.  Applicant told police he had some 
marijuana in his pocket. The police officer issued him a ticket for Possession of 
Marijuana, less than one gram. Subject mailed in the ticket and paid a $150 fine. (Item 5 
at 5) 
 
 He was cited for possession of marijuana again on December 24, 2013. He was 
driving in car with his friend when he was pulled over by police. Upon a search of his 
car, police found marijuana. Applicant claims that it was the same marijuana that was 
the issue in the July 2012 incident. He was given another ticket and fined $150, which 
he intended to pay on January 14, 2014, when he gets paid. (Item 5 at 5) 
 
 On May 29, 2014, Applicant authenticated the summary of the personal subject 
interview, dated January 7, 2014, and adopted it as accurately reflecting his interview. 
(Item 5 at 9) In his response to the SOR, dated June 17, 2015, Applicant claims that the 
marijuana found in his vehicle during the July 2012 incident did not belong to him. He 
also claims that marijuana in his car on the occasion of his citation on December 24, 
2013, did not belong to him either. (Item 3) 
 Applicant was not arrested for Possession of Marijuana in the incidents on July 
2012 and December 2013.  The state where he resides decriminalized the possession 
of small amounts of marijuana in July 2011. He was issued the equivalent of a traffic 
citation and fined. The statute reads as follows:   
Sec. 21a-279a. Penalty for illegal possession of small amount of 
cannabis-type substance. (a) Any person who possesses or has under 
his control less than one-half ounce of a cannabis-type substance, as 
defined in section 21a-240, except as authorized in this chapter, shall (1) 
for a first offense, be fined one hundred fifty dollars, and (2) for a 
subsequent offense, be fined not less than two hundred dollars or more 
than five hundred dollars. 
(b) The law enforcement officer issuing a complaint for a violation of 
subsection (a) of this section shall seize the cannabis-type substance and 
cause such substance to be destroyed as contraband in accordance with 
law. 
(c) Any person who, at separate times, has twice entered a plea of nolo 
contendere to, or been found guilty after trial of, a violation of subsection 
(a) of this section shall, upon a subsequent plea of nolo contendere to, or 
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finding of guilty of, a violation of said subsection, be referred for 
participation in a drug education program at such person’s own expense. 
(Hearing Exhibit I) 
 
 On February 25, 2013, Applicant had his hair tested for drugs. No cocaine 
metabolites, opiates, phencyclidine, amphetamines, baribituates, benzodiazepines, 
methadone, propoxyphene were detected. He was not tested for tetrahydrocannabinol 
(THC) which is a metabolite of marijuana. (Item 11) Applicant did not provide a recent 
evaluation and prognosis of his substance abuse problem by a duly qualified medical 
professional. His current prognosis is unknown.  
 
Guideline E – Personal Conduct  
 
In response to Section 23: Illegal Use of Drugs or Drug Activity on his October 
16, 2013 e-QIP application, Applicant listed that he used opiods on a weekly basis from 
June 2007 to June 2008. He did not list his marijuana use from 2005 to July 2012 nor 
his heroin use from 2007 to 2008. SOR ¶ 2.a alleges Applicant deliberately failed to 
report his marijuana and heroin use on his e-QIP application. In response to questions 
in Section 22: Police Record of the e-QIP application, Applicant listed a May 2008 arrest 
for Creating a Public Disturbance/Possession < 1 Gram of Marijuana, and a July 2012 
Possession of Marijuana Offense. (Item 4)  
  
In his response to the SOR, dated June 17, 2015, Applicant explains that he 
believed the term opiod included heroin.  Heroin is an opiate. When explaining the 
omission of his marijuana use, he claimed that he did not believe the question referred 
to marijuana use, “I was just thinking Drugs.”  He claimed he did not think he 
intentionally omitted his heroin or marijuana use as they are referenced in other parts of 
the security clearance questionnaire. (Item 3) 
 
Applicant claims that he changed his lifestyle after completing his inpatient 
substance abuse program from June 2008 to August 2008. Upon completion of the 
program he has been employed full-time in various positions. From February 2009 to 
October 2013, he worked full-time at a big box store. He attended technical training to 
become a welder from January 2012 to November 2012.  In November 2013, he was 
hired in his current position. His parents work at the same facility. He has a strong work 
ethic and receives positive reviews every six months. He did not provide a copy of the 
reviews. Applicant says he is a trustworthy and reliable person. He purchased a home 
in January 2014 and believes his life is on track. (Item 3)     
 
In his response to the FORM, Applicant states that he would like to clarify that his 
drug use occurred at a time in his life when he was young and became involved with the 
wrong people. He realized the path he was on was not what he wanted in life so he 
enrolled voluntarily in a drug rehabilitation program. Upon completion of the eight week 
program, he came home to his supportive friends and family and changed his life. He 
mentions that he did not know the term “opiates” did not include all forms of drugs 
including heroin. He had nothing to hide, because he knew the clearance investigation 
included looking into his past drug treatment. With regard to the omission of his 
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marijuana use, Applicant listed his marijuana possession arrests and assumed that 
would cover his marijuana use. He did not intend to mislead with any of his answers and 
made clarifications when he was interviewed. Applicant states he is a reliable and 
trustworthy person and hopes that his past is considered his past and the decision will 
be in his favor. (Item 12)  
   
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 
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 
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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.  
 
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; 
 
Drug abuse is the illegal use of a drug or use of a legal drug in a manner 
that deviates from approved medical direction. 
 
The guideline notes several disqualifying conditions that could raise security 
concerns. I find the following drug involvement disqualifying conditions 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 admits to using marijuana on a daily basis from 2005 to July 2012. He 
used marijuana on a recreational basis, smoking one marijuana cigarette a day. From 
2005 to 2008, Applicant use Oxycontin without a prescription on average of three times 
a week. From 2007 to 2008, Applicant used heroin on a weekly basis. All of these 
substances are identified as controlled substances in the Controlled Substances Act of 
1970. Applicant’s use of these substances was illegal. Applicant possessed these drugs 
while using them.  AG & 25(a) and AG & 25(c) apply. 
  
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))  
  
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Guideline H also includes examples of conditions that could mitigate security 
concerns arising from drug involvement. The following mitigating conditions potentially 
apply to 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);  
  
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 
appropriate period of abstinence; and (4) a signed statement of intent with 
automatic revocation of clearance for any violation); and 
 
AG & 26(c) (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).   
   
 Applicant’s last use of an illegal drug apparently occurred in July 2012. However,  
I cannot apply AG ¶ 26(a) because of Applicant’s significant history of polysubstance 
abuse.  While Applicant should be commended for ending his heroin use after attending 
inpatient treatment in the summer 2008, by his own admission, he did not remain drug 
free after completing treatment. He continued to use marijuana on various occasions, 
often on a daily basis until July 2012.   
 
 Applicant’s conflicting stories about his two citations for marijuana possession in 
2012 and 2013 raise further questions about his credibility.  He told the investigator 
conducting his background investigation during an interview on January 7, 2014, that he 
was ticketed for possession of marijuana while leaving a party in the woods in July 
2012. He told the police officer that he had some marijuana in his pocket.  Applicant 
also volunteered that he was ticketed for possession of marijuana on December 24, 
2013, when he was pulled over while driving. A friend was in the car with him. During a 
subsequent search, the police found a small amount of marijuana in his car. Applicant 
claims the marijuana was the same marijuana involved in the July 2012 incident. This 
incident occurred about two months after he submitted his security clearance 
application on October 16, 2013.  
 
 In subsequent interrogatories, Applicant reviewed the summary of his interview 
and attested to it as being an accurate. In front of a notary, he swore that he read the 
summary of the interview conducted on January 7, 2014, he found the interview to be 
accurate, and he swore that the entries were true and correct to the best of his 
knowledge and belief. 
 
 In his response to the June 2015 SOR, Applicant claimed that marijuana found 
by police during the July 2012 incident was not his. He stated: “ the one gram of 
marijuana found in my vehicle was not mine. I do realize that I am guilty by association 
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and the Officer gave the infraction to the driver as it was in my vehicle.”  Regarding the 
December 2013 incident, Applicant states, “I admit and truthfully this one really upset 
me that I had left the marijuana in the car from a previous time and the Officer issued 
me the infraction. I am now choosing my company of friends more carefully.”  
 
 Applicant’s conflicting responses to his two possession of marijuana citations 
raise concerns about his credibility. He initially admitted to the investigator conducting 
his background investigation that the marijuana was his during the July 2012 incident (in 
fact, it was in his pocket). Regarding the December 2013 incident, while not expressly 
saying it was his marijuana, he does not expressly state that it was someone else’s 
marijuana in his car. In his Answer to the SOR, he claims the marijuana belonged to 
someone else in both incidents.  
 
 Also troubling is Applicant’s contention that the July 2012 and December 2013 
incidents involved the same marijuana. The state statute requires the law enforcement 
officer to confiscate the marijuana at the time the citation is issued. (HE I) A reasonable 
person would conclude the officer confiscated the marijuana during the July 2012 
incident.  As such, it is likely, Applicant possessed additional marijuana in December 
2013. This occurred after he was hired by his current employer and after he submitted 
his security clearance application.   
 
 For these reasons, I cannot apply AG ¶ 26(a). Considering Applicant’s lengthy 
history of substance abuse as well as his conflicting statements about his July 2012 and 
December 2013 citations for possession of marijuana, doubts remain about his 
reliability, trustworthiness, and good judgment.  
 
 AG ¶ 26(b) does not apply because Applicant continued to associate with friends 
who use illegal drugs after he was hired in his current position, and after he applied for a 
security clearance. He was cited for possession of marijuana two and half months after 
submitting his security clearance application. He did not submit a signed statement of 
intent to stop using illegal drugs with automatic revocation of clearance for any violation.  
 
 AG ¶ 26(d) does not apply, Although Applicant provided some of his treatment  
records, they were incomplete. There was no information on Applicant’s prognosis when 
he completed his second drug rehabilitation program in August 2008. No information 
was provided about whether the rehabilitation facility suggested aftercare requirements 
for Applicant. Of even greater concern, is Applicant’s continued habitual use of 
marijuana after completing his drug rehabilitation program in 2008. Applicant admits to 
using marijuana on a daily basis until July 2012, four years after the completion of his 
drug rehabilitation program. While Applicant provided medical records from his primary 
care physician indicating that he passed a drug test in a hair sample provided on 
February 25, 2013, the sample was not tested for THC, a metabolite of marijuana.   
  
 Applicant has made great progress in turning his life around. However, absent a 
recent favorable prognosis by a duly qualified medical professional, I cannot conclude 
Applicant’s history of substance abuse is in the past.  Applicant did not meet his burden 
to mitigate the security concerns raised under Guideline H, Drug Involvement.  
 
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Guideline E, Personal Conduct 
 
The security concern relating to the guideline for Personal Conduct is set out in AG &15: 
 
Conduct involving questionable judgment, lack of candor, dishonesty, or 
unwillingness to comply with rules and regulations can raise questions 
about an individual’s reliability, trustworthiness and ability to protect 
classified information. Of special interest is any failure to provide truthful 
and candid answers during the security clearance process or any other 
failure to cooperate with the security clearance process.  
 
 The following disqualifying condition applies to Applicant’s case: 
 
AG ¶ 16(a) (deliberate omission, concealment, or falsification of relevant 
facts from any personnel security questionnaire, personal history 
statement, or similar form used to conduct investigations, determine 
employment qualifications, award benefits or status, determine security 
clearance eligibility or trustworthiness, or award fiduciary responsibilities). 
  
 Applicant is alleged to have deliberately omitted his illegal heroin use and 
marijuana use in response to Section 23 of his e-QIP application dated October 16, 
2013. Applicant listed his “Opiod” use in response to the question. Heroin is considered 
an “Opiod.”  For this reason, I find Applicant did not intentionally omit his heroin use on 
his security clearance application. I cannot say the same for his omission of his 
marijuana use on a daily basis between 2005 to July 2012. His listing of two arrests for 
marijuana possession in response to another question on the security clearance 
application did not put the government on notice about his extensive marijuana use.  
 
 In Applicant’s case, the following mitigating condition applies: AG ¶ 17(a) (the 
individual made prompt, good-faith efforts to correct the omission, concealment, or 
falsification before being confronted with the facts).  Applicant volunteered his marijuana 
use during his background investigation interview. While he intentionally omitted his 
marijuana use on the e-QIP application, he cured the omission by providing full 
disclosure during his background investigation interview.  
   
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 
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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. Although Applicant claims to have 
stopped the illegal use of Oxycontin in 2008, the illegal use of heroin in 2008, and the 
illegal use of marijuana in July 2012, he has a long history of drug abuse. Absent a 
recent favorable prognosis by a duly qualified medical professional, I cannot conclude 
the concerns related to his history of illegal drug abuse are mitigated.  Applicant’s 
conflicting statements regarding his marijuana possession citations in July 2012 and 
December 2013 raise further issues about his credibility. For these reasons, Applicant 
has not met his burden to overcome the security concerns raised by his illegal drug use.     
 
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 
 
  Subparagraphs 1.a – 1.h:   Against  Applicant 
  
Paragraph 2, Guideline E:    FOR APPLICANT 
 
  Subparagraph 1.a:    For 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