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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 15-02918 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Chris Morin, Esq., Department Counsel 
For Applicant: Eric Eisen, Esq. 
 
 
______________ 
 
Decision 
______________ 
 
 
HESS, Stephanie C., Administrative Judge: 
 
This case involves security concerns raised under Guideline H (Drug 
Involvement) and Guideline E (Personal Conduct). Applicant’s illegal drug use is recent 
and his stated intention of no future use is insufficient to mitigate the concerns. Eligibility 
for access to classified information is denied. 
 
Statement of the Case 
 
Applicant submitted a security clearance application (e-QIP) on August 14, 2014. 
On November 12, 2015, the Department of Defense Consolidated Adjudications Facility 
(DOD CAF) sent him a Statement of Reasons (SOR) alleging security concerns under 
Guidelines B, C, H and E. The DOD CAF acted under Executive Order 10865, 
Safeguarding Classified Information within Industry (February 20, 1960), as amended; 
DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review 
Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines 
(AG) implemented by the DOD on September 1, 2006.  
 
 Applicant answered the SOR on December 20, 2015, and requested a hearing 
before an administrative judge. Department Counsel was ready to proceed on February 
9, 2016, and the case was assigned to me on March 16, 2016. On March 23, 2016, the 
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Defense Office of Hearings and Appeals (DOHA) notified Applicant that the hearing was 
scheduled for April 12, 2016. Counsel for Applicant entered his appearance on March 
24, 2015. I convened the hearing as scheduled. Government Exhibits (GX) 1 and 2 
were admitted in evidence without objection. Applicant’s Exhibits (AX) A-C and E were 
admitted in evidence without objection. The document identified as AX D is discussed 
below. Hearing Exhibit 1 is Department Counsel’s discovery letter which is appended to 
the record for administrative purposes. DOHA received the transcript (Tr.) on April 21, 
2016. 
Procedural Matters 
 
 The SOR originally also contained allegations under Guidelines B and C. 
However, on Department Counsel’s motion and without objection, I amended the SOR 
by striking ¶¶ 1 and 2. Applicant’s counsel offered Hearing Exhibit 2, which is a 
document that explains the basis of the mitigation of Guidelines B and C, which I 
appended to the record without objection.  
 
 Applicant’s counsel requested that I take judicial notice of AX D. AX D is a 
compilation of a magazine article and two newspaper articles. The magazine article 
focuses on the attitudes of individuals, aged 30 and under, about the use of marijuana. 
One of the newspaper articles is an editorial which Applicant’s counsel characterized as 
stating “that unlimited government develops an appetite for intervening in society’s 
dynamics” and that the editorial makes the “point that the marijuana laws…are due for 
reexamination and reform.” (Tr. 18-19.) The other newspaper article is about individual 
state laws regarding marijuana. (Tr. 19.)  Department Counsel objected to AX D, stating 
that the subject matter was inappropriate for judicial notice, and on the basis of 
relevance. I sustained the objections. 
On October 25, 2014, the Director of National Intelligence issued a memorandum 
entitled, “Adherence to Federal Laws Prohibiting Marijuana Use.” That memorandum 
states, in part, “Changes to state laws and the laws of the District of Columbia 
pertaining to marijuana use do not alter the existing National Security Adjudicative 
Guidelines... An individual’s disregard of federal law pertaining to the use, sale or 
manufacture of marijuana remains adjudicatively relevant in national security 
determinations.”  
Findings of Fact 
 
The SOR, as amended, alleges that Applicant used marijuana between February 
2007 and October 2013; routinely purchased marijuana between July 2007 and July 
2013; used mushrooms twice between April and June 2012; used cocaine a few times 
between August 2012 and January 2013; and that in April 2009 he was arrested for and 
later pled guilty to sale and distribution of marijuana. In his Answer, Applicant admitted 
each of these allegations. He also described the circumstances under which he used 
marijuana once in September and once in October of 2015, and explained that the 2009 
conviction was expunged. The SOR also cross-alleges the Guideline H allegations 
under Guideline E. Applicant neither admitted nor denied the Guideline E allegation, so I 
deem that he has denied it.  
 
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Applicant is a 27-year-old computer analyst employed by a defense contractor in 
his current job since June 2014. He received a bachelor’s degree in 2011 and a 
master’s degree in 2014, both in mechanical engineering. (GX 1, Tr. 30.) In their 
reference letters, Applicant’s supervisor, program director, and former professor, for 
whom Applicant worked as a teaching assistant, stated that Applicant is well-liked and 
considered to be professional, capable and trustworthy. (AX A; AX B.) Applicant stated 
that he told each of these individuals that the reason he needed the reference letters 
was because of his past drug use, however, he did not disclose his September and 
October 2015 uses to them. (Tr. 57-58.)  
 
 Applicant began occasionally using marijuana in high school in February 2007.  
He continued to use marijuana in college and graduate school and purchased it 
between 2007 and 2013. (GX 1.) In April 2009, he was arrested in his dormitory room 
and charged with sale and distribution of marijuana. He claims that his roommate, not 
he, was selling marijuana. However, at the advice of his attorney, Applicant pled guilty 
and was sentenced to six months’ probation. Following this event, he took a semester 
off school, during which time he lived with and worked for his best friend’s parents in 
their historic house renovating business. His friend’s parents each provided a letter of 
reference. (AX C.) He then transferred to the university from which he ultimately 
received his degrees.  (Tr. 27-30.)  
  
Applicant stated on his e-QIP, “I have used marijuana recreationally for a few 
years, but stopped during my last year of graduate school.” In response to why he either 
intended or did not intend to use marijuana in the future, he wrote, “I am no longer 
interested in it.” (GX 1.) In his personal subject interview (PSI) on November 14, 2014, 
he again stated that he had no future intent of using illegal drugs. (GX 2.)  
 
Applicant’s use of cocaine, between 2012 and 2013, and mushrooms, between 
2011 and 2012, occurred when he was in college. He stated on his e-QIP and in his PSI 
that he has no intention of using either of these substances in the future. (GX 1; GX 2.)  
 
In about September 2015, the Government sent Applicant interrogatories 
requesting that he verify the accuracy of his PSI and make any necessary additions or 
deletions to it. He stated that the PSI was not accurate and made several additions, 
deletions, and updates. He amended his original statement that he had “[N]o ongoing 
contact with anyone engaged in drug usage,” by stating, “some friends/family may still 
use” drugs. He did not make any changes, corrections, or amendments regarding his 
own drug use. On October 21, 2015, he signed the interrogatory responses, verifying 
under oath, that subject to his changes, the information was accurate. (GX 2.)  
 
Since submitting his e-QIP, being interviewed by a DOD investigator, and starting 
employment with a DOD contractor, Applicant used marijuana on September 25, 2015, 
while at a musical festival with his best friend, and on October 31, 2015, while at 
another music festival with “new acquaintances.” (Answer.) The October 31, 2015, use 
was ten days after he completed his responses to interrogatories. (GX 2.) 
 
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At the hearing, in response to the question, “Do you associate with people who 
use marijuana at this point?” Applicant stated, “I can’t be sure.” (Tr. 34.) However, 
although his best friend lives in another state, Applicant continues to associate with him 
and sees him several times a year. He also maintains contact through social media with 
the acquaintances he used marijuana with in October 2015. (Tr. 44-45.) 
 During the hearing, Applicant expressed the following opinions about marijuana 
use:  
I just think as long as it is done in moderation, and moderation is a relative 
term, it is fine. There are no problems with it. I don’t think it has any effect 
on judgment, or the ability to keep government secrets…as opposed to 
alcohol where, you are over a certain limit, your lips are flying. So I think 
there is, definitely, some hypocrisy here. (Tr. 47.) It is around. Friends 
have it, I don’t ask for it, they just - - it is pretty much a staple in my 
generation’s idea of relaxing…Just like beer. (Tr. 33-34.)  
 Concerning his 2015 marijuana use after his 2014 stated intent not to use in the 
future on his e-QIP and during his PSI, Applicant stated, “In my opinion, that was not a 
promise to never do it again. I truthfully did intend not to do it, at that time. 
Circumstances sometimes change, and I’m not saying what I did was right. But at the 
moment, and at that time, I do [sic] not intend to do it. And now, after signing the 
statement that I have signed, it will never, it won’t happen again.” (Tr. 49.)  
Policies 
 
 “[N]o one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 
484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to 
“control access to information bearing on national security and to determine whether an 
individual is sufficiently trustworthy to have access to such information.” Id. at 527. The 
President has authorized the Secretary of Defense or his designee to grant applicants 
eligibility for access to classified information “only upon a finding that it is clearly 
consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified 
Information within Industry § 2 (Feb. 20, 1960), as amended.  
 
Eligibility for a security clearance is predicated upon the applicant’s meeting the 
criteria contained in the AG. These guidelines are not inflexible rules of law. Instead, 
recognizing the complexities of human behavior, an administrative judge applies these 
guidelines in conjunction with an evaluation of the whole person. An administrative 
judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. An 
administrative judge must consider all available and reliable information about the 
person, past and present, favorable and unfavorable. 
 
 The Government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. Decisions include, by necessity, consideration of the 
possible risk that the applicant may deliberately or inadvertently fail to safeguard 
classified information. Such decisions entail a certain degree of legally permissible 
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extrapolation about potential, rather than actual, risk of compromise of classified 
information. 
Clearance decisions must be made “in terms of the national interest and shall in 
no sense be a determination as to the loyalty of the applicant concerned.”  See Exec. 
Or. 10865 § 7. Thus, a decision to deny a security clearance is merely an indication the 
applicant has not met the strict guidelines the President and the Secretary of Defense 
have established for issuing a clearance. 
 
 Initially, the Government must establish, by substantial evidence, conditions in 
the personal or professional history of the applicant that may disqualify the applicant 
from being eligible for access to classified information. The Government has the burden 
of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. 
“Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the 
criteria listed therein and an applicant’s security suitability. See ISCR Case No. 92-1106 
at 3, 1993 WL 545051 at *3 (App. Bd. Oct. 7, 1993).  
 
 Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. 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. Sep. 22, 2005).  
 
An applicant “has the ultimate burden of demonstrating that it is clearly consistent 
with the national interest to grant or continue his security clearance.” ISCR Case No. 
01-20700 at 3 (App. Bd. Dec. 19, 2002). “[S]ecurity clearance determinations should err, 
if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).  
 
Analysis 
 
Guideline H (Drug Involvement) 
 
The concern under this guideline is set out in AG ¶ 24: AUse 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 in AG ¶ 24(a)(1) as A[d]rugs, 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).”  
 
Applicant’s admissions, corroborated by the record evidence, establish the 
potentially disqualifying conditions under this guideline:  
 
AG ¶ 25(a): any drug abuse, defined in AG ¶ 24(b) as “the illegal use of a 
drug or use of a legal drug in a manner that deviates from approved 
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medical direction”;  
 
AG ¶ 25(c): illegal drug possession, including cultivation, processing, 
manufacture, purchase, sale, or distribution; or possession of drug 
paraphernalia; 
 
 The following mitigating conditions are potentially relevant: 
 
AG ¶ 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; 
 
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. 
 
 AG ¶ 26(a) is not established. Applicant’s use of illegal drugs is recent. He used 
marijuana at two music festivals in 2015, with individuals with whom he maintains 
contact. His use after completing the e-QIP, being interviewed by a DOD investigator, 
and after completing the interrogatory responses casts doubt on his judgment. Conduct 
not alleged in an SOR may be considered: (a) to assess an applicant's credibility; (b) to 
evaluate an applicant's evidence of extenuation, mitigation, or changed circumstances; 
(c) to consider whether an applicant has demonstrated successful rehabilitation; (d) to 
decide whether a particular provision of the Adjudicative Guidelines is applicable; or (e) 
to provide evidence for whole person analysis under Directive Section 6.3. Id.; ISCR 
Case No. 00-0633 at 3 (App. Bd. Oct. 24, 2003). 
 
 AG ¶ 26(b) is not established. Applicant associates with individuals who use 
drugs and frequents environments where marijuana is present. He has only been 
abstinent for less than seven months. The Directive does not define "recent," and there 
is no "bright-line" definition of what constitutes "recent" conduct. ISCR Case No. 03-
02374 at 4 (App. Bd. Jan. 26, 2006). The Judge is required to evaluate the record 
evidence as a whole and reach a reasonable conclusion as to the recency of an 
applicant's conduct. ISCR Case No. 03- 02374 at 4 (App. Bd. Jan. 26, 2006). This short 
period of abstinence, compared to the eight years that Applicant used marijuana and 
experimented with other illegal drugs, combined with his overall accepting attitude about 
marijuana use, is insufficient to mitigate the concern.   
Applicant previously attested to the Government his intention not to use illegal 
drugs in the future August 2014, when he certified the accuracy of his e-QIP; again in 
November 2014, during his PSI, when he agreed to tell the truth; and finally in October 
2015, when he signed his interrogatory responses, affirming their accuracy. Yet, after 
these avowals, he used marijuana.  
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Accordingly, Applicant’s April 2016 signed and notarized statement of intent not 
to use illegal drugs in the future carries little weight and does not establish AG ¶ 26(b). 
His claim that the statement of intent is a genuine promise, as opposed to the previous 
avowals, is unconvincing. Given his overall attitude about marijuana use, his continued 
purchasing and use following his 2009 arrest, the recentness of his last use, his ongoing 
association with people who use marijuana, the availability of marijuana in his current 
social circle, and his previous avowals not to use illegal drugs in the future on which he 
reneged, it is simply too soon to unequivocally conclude that Applicant has changed his 
pattern of behavior and will never use marijuana again.  
Guideline E (Personal Conduct) 
 
 The concern under this guideline 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.   
 
Applicant’s use of marijuana in 2015, after having completed the security 
clearance process, to include responding to interrogatories, raises concerns about his 
willingness to comply with rules and regulations and lack of judgment. As with the other 
Guidelines, the disqualifying conditions listed for Guideline E are illustrative only, not 
exhaustive and exclusive. See, e.g., ISCR Case No. 07-0085 at 4 (App. Bd. May 27, 
2008). The Guideline addresses conduct that shows, among other things, a lack of 
judgment, raising questions about an applicant’s reliability, trustworthiness, and ability to 
protect classified information. Directive, Enclosure 2 ¶ 15. ISCR Case No. 12-01698 at 4 
(App. Bd. June 13, 2014). None of the mitigating conditions are established. 
 
Whole-Person Concept 
 
 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. In applying the whole-
person concept, an 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. An 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 
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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.  
 
 I have incorporated my comments under Guidelines H and E in my whole-person 
analysis and I have considered the factors in AG ¶ 2(a). Some of the factors in AG ¶ 
2(a) were addressed under those guidelines, but I have also considered the following: 
 
 Applicant’s self-reporting his uses of marijuana in 2015 demonstrates a level of 
maturity and honesty. However, his overall cavalier attitude about the illegal act of using 
marijuana is not consistent with the high degree of trust the government needs to have 
in individuals with access to classified information.  
 
 After weighing the disqualifying and mitigating conditions under Guidelines H and 
E, and evaluating all the evidence in the context of the whole person, I conclude 
Applicant has not mitigated the security concerns raised by his drug use. Accordingly, I 
conclude he has not carried his burden of showing that it is clearly consistent with the 
national interest to grant him eligibility for access to classified information. 
 
Formal Findings 
 
As required by section E3.1.25 of Enclosure 3 of the Directive, I make the 
following formal findings on the allegations in the SOR: 
  
 Paragraph 1, Guideline C (Foreign Preference): WITHDRAWN  
 
 Paragraph 2, Guideline B (Foreign Influence):  WITHDRAWN 
 
Paragraph 3, Guideline H (Drug Involvement):  AGAINST APPLICANT 
 
  Subparagraph 1.a – 1.c:    Against Applicant 
 
 Paragraph 4, Guideline E (Personal Conduct):  AGAINST APPLICANT 
 
  Subparagraph 1.a:     Against Applicant 
 
Conclusion 
 
 I conclude that it is not clearly consistent with the national interest to grant 
Applicant’s eligibility for a security clearance. Eligibility for access to classified 
information is denied. 
 
 
 
Stephanie C. Hess 
Administrative Judge