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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 15-01791 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Nicole A. Smith, Department Counsel 
For Applicant: Pro se  
 
 
______________ 
 
Decision 
______________ 
 
 
CREAN, THOMAS M., Administrative Judge: 
 
Based on a review of the pleadings, Applicant failed to mitigate drug involvement 
and personal conduct security concerns. Eligibility for access to classified information is 
denied. 
 
Statement of the Case 
 
Applicant submitted an Electronic Questionnaire for Investigations Processing (e-
QIP) on May 7, 2014, to obtain a security clearance required for a position with a 
defense contractor. (Item 3) After an investigation conducted by the Office of Personnel 
Management (OPM) on July 15, 2014 (PSI), the Department of Defense (DOD) could 
not make the affirmative findings required to issue a security clearance. (Item 4) On 
December 13, 2015, DOD issued Applicant a Statement of Reasons (SOR) detailing 
security concerns for drug involvement (Guideline H) and personal conduct (Guideline 
E). 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 in the Department of Defense on September 1, 2006.  
2 
 
 Applicant answered the SOR on December 18, 2015. He admitted the one 
allegation of drug use under Guideline H, but denied the one allegation of drug use 
while holding a security clearance under Guideline E. Department Counsel sent 
Applicant interrogatory questions concerning his drug use. Applicant responded on 
September 11, 2015. (Item 4)1 He elected to have the matter decided on the written 
record. (Item 2) Department Counsel submitted the Government’s written case on 
February 2, 2016. Applicant received a complete file of relevant material (FORM) on 
February 10, 2016, and was provided the opportunity to file objections and to submit 
material to refute, extenuate, or mitigate the disqualifying conditions. Applicant filed a 
timely response on March 9, 2016. I was assigned the case on June 9, 2016.  
 
Findings of Fact 
 
 I thoroughly reviewed the case file. I make the following findings of fact.   
 
 Applicant is 36 years old. He received a bachelor’s degree in May 2002 and a 
master’s degree in May 2009. He married in May 2008 and has two children at home. 
He was employed as a management business consultant by a Government contractor 
from September 2009 until May 2014. He had been granted eligibility for access to 
classified information as required by his work on some classified matters. At the time, 
he submitted his e-QIP, Applicant had been selected by a different defense contractor 
as a business architect consultant. The defense contractor is his sponsor for a renewed 
security clearance. It appears that Applicant has been employed in this position since 
submitting his e-QIP in May 2014. (Item 3, e-QIP, dated May 7, 2014; Item 4, Personal 
Subject Interview, dated July 15, 2014) 
 
The SOR alleges, and Applicant admits, that he used marijuana on two 
occasions in May 2013 (SOR 1.a). Applicant noted the May 2013 marijuana use in 
response to drug use questions on the May 2014 e-QIP. He also admitted the May 2013 
marijuana use in response to drug use interrogatory questions. (Item 4) Applicant 
denied that he held a security clearance when he used marijuana in May 2013. (SOR 
2.a) 
 
Applicant informed the OPM security investigator in the PSI that he used 
marijuana about 25 times between 1995 and 2005.2 He also admitted that he again 
used marijuana twice in May 2013. He knew at the time that use of marijuana was 
illegal and against Government policy. He used marijuana at this time because he felt 
like he wanted to use marijuana. He informed the investigator that he does not intend to 
use marijuana again. When he used marijuana, he got light headed with no other side 
effects. In addition to his admissions to the OPM investigator, Applicant’s replied to an 
interrogatory on drug use that he used cocaine three times from July 2002 until January 
2003, and mushrooms five times from January 1996 until January 2003.  
 
                                                          
1 In the interrogatory, Applicant was requested to verify the accuracy of the PSI. He made some minor 
corrections. He did not object to the use of the PSI.  
2 In his response to the FORM, Applicant amended the date of use of marijuana from 2005 to 2003.  
3 
 
In his reply to the SOR, Applicant stated that his two-time use of marijuana in 
May 2013 was within a short period of two weeks. He used the marijuana with his 
brother on one occasion and with a friend on the other occasion. He did not seek out 
the marijuana, but it was offered to him. He used the marijuana in a safe environment 
and not while driving a car or in public. He called his use of marijuana in May 2013 a 
lapse in judgment. This experimental use reinforced in him that drugs have no place in 
his or his family’s life. He says he is capable of discontinuing his use of marijuana and 
never thinks of it again. He claims to now have surrounded himself in a Christian 
environment so he so he no longer associates with people who use illegal drugs. He 
knows others that use marijuana but he can discontinue his use no matter how 
frequently he is exposed to the drug. However, since he knows many people that used 
marijuana or illegal drugs, he does not feel the need to disassociate himself from those 
people solely because they use drugs. (Response to SOR, dated December 18, 2015; 
Item 6, Response to FORM, dated March 9, 2016) 
 
Applicant denied in his response to the SOR that when he used marijuana in May 
2013 he had an active DOD Industrial Security Clearance. The Joint Personnel 
Adjudication System (JPAS) reveals that Applicant had an active security clearance in 
May 2013. Applicant was informed verbally and in an e-mail exchange between 
Applicant and his company’s security officer in May 2014 that his clearance was 
terminated in February 2013 because he no longer needed a clearance for his job. (Item 
2, Answer to SOR, dated December 18, 2015) In his response to the FORM, Applicant 
again emphasized that to the best of his knowledge, he did not have a security 
clearance in May 2013, when he used marijuana. He pointed out that he left a job in 
early 2011 that required him to have a security clearance. He believed his security 
clearance went inactive at that time. In May 2013, when he used marijuana, he did not 
think about having a security clearance. His use of the drug was with his brother and a 
friend in a safe place with no risk or harm to anyone. His intent was not malicious or 
deliberate to disobey authority. (Item 5, JPAS Entry, dated February 1, 2016; Item 6, 
Response to FORM, dated March 9, 2016) 
 
Applicant also noted that he started consuming alcohol in approximately 1994 
when he was 15 or 16 years old. He would consume ten beers a week until he was 25-
years-old (2004), and since then he consumes two or three alcoholic beverages per 
week. He reported that he has been intoxicated about 100 times since 1995 after 
reaching the age of 15 or 16. He also reported that he was arrested and convicted of 
driving while intoxicated in 2009. In addition to having to pay a fine, Applicant was 
required to receive alcohol counseling. He completed the counseling in 2010. (Item 4, 
Response to Interrogatory, dated September 11, 2015, PSI, dated July 15, 2014)  
 
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the Administrative Guidelines. In addition to brief 
introductory explanations for each guideline, the adjudicative guidelines list potentially 
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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 common sense 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. 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, 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 burden of persuasion 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 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 
 
The use of an illegal drug can raise questions about an individual’s reliability and 
trustworthiness, because it may impair judgment and raises questions about a person’s 
ability or willingness to comply with laws, rules, and regulations. Drug abuse is the 
illegal use of a drug or use of a legal drug in a manner that deviates from approved 
medical direction. Drugs are defined as mood and behavior altering substances, 
including drugs material and other chemical compounds identified and listed in the 
Controlled Substances Act of 1970. Marijuana or cannabis is included in the Schedule 1 
list. (AG ¶ 24)  
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Applicant admits using marijuana twice in May 2013. He also admits using 
marijuana approximately 25 times from 1995 until 2003. He denied using marijuana 
after being granted a security clearance. Applicant's use of marijuana raises the 
following Drug Involvement Disqualifying Condition under AG ¶ 25 (a) (any drug use) 
While it may be unclear whether Applicant was still holding a security clearance when 
he used marijuana in May 2013, the information is sufficient to raise disqualifying 
condition AG¶ 25 (g) (any illegal drug use after being granted a security clearance). 
 
 I considered the following Drug Involvement Mitigating Conditions under AG ¶ 
26: 
 
(a) the behavior happened so long ago, was so infrequent, or happened 
under such unusual circumstances that it is unlikely to recur or does not 
cast doubt on the individual’s current reliability, trustworthiness, or good 
judgment;  
 
(b) a demonstrated intent not to abuse 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); and 
 
(d) satisfactory completion of a prescribed drug treatment program, 
including but not limited to rehabilitation and aftercare requirement, 
without recurrence of abuse, and a favorable prognosis by a duly qualified 
medical professional. 
 
While there is no "bright line" rule for determining when conduct is recent or 
sufficient time has passed since the incidents, a determination whether past conduct 
affects an individual's present reliability and trustworthiness must be based on a careful 
evaluation of the totality of the evidence. If the evidence shows a significant period of 
time has passed without evidence of drug involvement, there must be an evaluation 
whether that period of time demonstrates changed circumstances or conduct sufficient 
to indicate a finding of reform or rehabilitation. 
 
 These mitigating conditions do not apply. Applicant used marijuana in his teens 
and early 20s. It appears that he stopped using marijuana for about ten years from 2003 
until 2013. But, he purposely used marijuana in 2013, only about three years ago. There 
was a long period of time that he did not use marijuana but he recently voluntarily and 
purposely went back to using marijuana. His statement of intent to not use marijuana in 
the future is not strong and firm. His use of marijuana in the past was with his brother 
and friends. His use of marijuana in May 2013 was with his brother and a friend so it is 
can likely recur. Applicant has not been in a drug abuse treatment program or received 
counseling for drug abuse. He did receive alcohol counseling after his arrest for driving 
while intoxicated.  
 
6 
 
 Applicant has a long history of substance abuse. He consumed alcohol at an 
early age, was intoxicated over 100 times, and arrested for driving while under the 
influence of alcohol. In addition to using marijuana in his teens and early 20s, he used 
other illegal substances. Applicant may have been substance abuse free for ten years, 
but he did abuse marijuana in May 2013. He knew it was illegal and against 
Government policy but he used the illegal drug anyway. Applicant’s substance abuse 
history shows that he could easily slip back to substance abuse. Applicant has not met 
his burden to establish that he will not abuse illegal drugs in the future. There has not 
been an appropriate period of abstinence and change of lifestyle and circumstance to 
establish that Applicant will not use illegal drugs in the future. Applicant has not 
mitigated security concerns for drug involvement.  
 
Personal Conduct 
 
 Personal conduct is a security concern because conduct involving questionable 
judgment, untrustworthiness, unreliability, or unwillingness to comply with rules and 
regulations can raise questions about an individual’s reliability, trustworthiness, and 
ability to protect classified and sensitive information. Personal conduct is always a 
security concern because it asks whether the person’s past conduct justifies confidence 
the person can be trusted to properly safeguard classified or sensitive information. (AG 
¶ 15)  
 
 Applicant used marijuana in May 2013 while holding a security clearance. Even 
though Applicant did not believe that he had an active valid security clearance in May 
2013, the JPAS entry establishes that he did have a valid security clearance at the time. 
The circumstances of this use raises Personal Conduct Disqualifying Condition AG ¶ 16 
(c) (credible adverse information in several adjudicative issue areas that is not sufficient 
for an adverse determination under any other single guideline, but which, when 
considered as a whole, supports a whole-person assessment of questionable judgment, 
untrustworthiness, unreliability, or other characteristics indicating that the person may 
not properly safeguard protected information).  
 
 I considered Personnel Conduct Mitigating Conditions under AG ¶ 17(c) (the 
offense is so minor, or so much time has passed, or the behavior is so infrequent, or it 
happened under such unique circumstances that it is unlikely to recur and does not cast 
doubt on the individual’s reliability, trustworthiness, or good judgment). As noted above, 
the circumstances of Applicant’s May 2013 marijuana use can likely happen again. He 
can be offered marijuana by his brother or a friend. In May 2013, he had eligibility for 
access to classified information. He did not know at the time that his eligibility for access 
to classified information had possibly been terminated. He did not learn of the 
termination until a year later in May 2014. He knew he was eligible for access to 
classified information in the immediate past, and he did not think about his security 
circumstance status when offered marijuana. He just took and used the marijuana 
without thinking of the circumstances and ramifications. Applicant has not mitigated 
personal conduct security concerns for his use of marijuana while holding a security 
clearance.  
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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 the 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. Applicant admitted using marijuana 
from 1995 until 2003. He again used marijuana twice in 2013. He had eligibility for 
access to classified information at the time. Overall, these facts leave me with questions 
and doubts about Applicant’s judgment, reliability, trustworthiness, and eligibility and 
suitability for access to classified information. For all these reasons, I conclude that 
Applicant has not mitigated drug involvement and personal conduct security concerns. 
Eligibility for access to classified information is denied. 
 
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 
 
 Paragraph 2, Guideline E:   AGAINST APPLICANT 
 
  Subparagraph 2.a:   Against Applicant 
 
 
 
 
 
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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. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge