1 
                                         
 
   DEPARTMENT OF DEFENSE 
       DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
    )  ISCR Case No. 15-04242 
  ) 
Applicant for Security Clearance  ) 
 
 
Appearances 
 
For Government: Douglas Velvel, Esq., Department Counsel 
For Applicant: Pro se 
 
 
___________ 
 
Decision 
___________ 
 
Tuider, Robert J., Administrative Judge: 
 
 Applicant’s statement of reasons (SOR) alleges and the record establishes that 
Applicant used marijuana twice in the previous ten years with his most recent marijuana 
use in April 2014, and once each year from 1986 to 1989. He self-reported his 
marijuana use. He provided a signed statement of intent not to use illegal drugs with 
automatic revocation of clearance for any violation. Drug involvement and personal 
conduct security concerns are mitigated. Access to classified information is granted.      
  
History of the Case 
  
On November 5, 2014, Applicant completed and signed a Questionnaire for 
National Security Positions (SF-86). On March 8, 2016, the Department of Defense 
Consolidated Adjudications Facility (DOD CAF) issued an SOR to Applicant pursuant to 
Executive Order (Exec. Or.) 10865, Safeguarding Classified Information Within Industry, 
dated February 20, 1960, as amended; DOD Directive 5220.6, Defense Industrial 
Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as 
amended; and the Adjudicative Guidelines for Determining Eligibility for Access to 
Classified Information (AG), which became effective on September 1, 2006.    
 
The SOR detailed reasons why the DOD CAF could not make the affirmative 
finding under the Directive that it is clearly consistent with the national interest to grant 
or continue a security clearance for him, and recommended referral to an administrative 
judge to determine whether a clearance should be granted, continued, denied, or 
 
2 
                                         
 
revoked. Specifically, the SOR set forth security concerns arising under AGs H (drug 
involvement) and E (personal conduct).  
  
On March 21, 2016, Applicant responded to the SOR and requested a hearing. 
On May 4, 2016, Department Counsel was ready to proceed. On May 9, 2016, the case 
was assigned to me. On May 19, 2016, the Defense Office of Hearings and Appeals 
(DOHA) issued a notice of hearing, setting the hearing for June 9, 2016. (HE 1) His 
hearing was held as scheduled. During the hearing, Department Counsel offered 2 
exhibits and Applicant offered 10 exhibits. (Transcript (Tr.) 11-13; Government Exhibits 
(GE) 1-2; Applicant Exhibits (AE) A-J) Applicant’s Office of Personnel Management 
(OPM) personal subject interview was admitted with corrections and clarifications 
provided by Applicant. (Tr. 12; GE 2; AE D) There were no other objections, and all 
proffered exhibits were admitted into evidence. (Tr. 12-13; GE 1-2; AE A-J) On June 16, 
2016, I received a transcript of the hearing. Applicant provided one post-hearing exhibit, 
which was admitted without objection. (AE K) The record closed on July 8, 2016. (Tr. 
34)  
  
Findings of Fact1 
 
 In Applicant’s SOR response, he admitted the allegation in SOR ¶ 1.a, and he 
denied the remaining allegations. He also provided extenuating and mitigating 
information. Applicant’s admissions are accepted as findings of fact.  
 
Applicant is a 51-year-old mechanical design engineer, who is seeking a security 
clearance. (Tr. 11, 13-14; GE 1) The same defense contractor has employed him since 
June 2014. (Tr. 14) He previously worked for another defense contractor for 24 years at 
the same location where he currently works. (Tr. 14) In 1983, he graduated from high 
school, and in 1988, he received a bachelor of science degree in mechanical 
engineering. (Tr. 16-17) In 1996, he was awarded a master’s of science degree in 
advanced solid mechanics. (Tr. 18) He has taken several courses towards an additional 
degree. (Tr. 18-19)  
 
In 1989, Applicant married, and in 1991, he divorced. (Tr. 19) In 1998, he 
married, and in 2014, he divorced. (Tr. 19) His children are ages 8 and 10 years old. 
(Tr. 20) He did not serve in the U.S. military. (Tr. 21; GE 1) He has never held a security 
clearance. (Tr. 15) 
 
Personal Conduct and Drug Involvement 
 
In the previous 10 years, Applicant used marijuana once or twice. (Tr. 22-24; GE 
1) His most recent marijuana use was in April 2014 at a festival. (Tr. 22, 38) He first 
used marijuana when he was in high school. (Tr. 24) He used marijuana in the 1986 to 
1989 time period about once per year. (Tr. 23; GE 1) Applicant has many 
                                            
1
Some details have been excluded in order to protect Applicant’s right to privacy. Specific 
information is available in the cited exhibits.  
 
 
3 
                                         
 
acquaintances that use marijuana, and he continues to associate with them. (Tr. 25, 37, 
40) His company has a policy against illegal drug use, and his company provides 
rehabilitation for those who use illegal drugs. (Tr. 39) Applicant refused to provide the 
names of the person or persons with whom he used illegal drugs. (Tr. 40-42)2  
 
When Applicant completed his November 5, 2014 SF-86, he was asked about 
illegal drug use in the previous seven years, and he said he used marijuana once or 
twice in the previous 10 years; his first marijuana use was in 1986; and his most recent 
marijuana use was in April 2014. (Section 23, GE 1)  
 
Applicant provided a signed statement of intent not to use marijuana or any other 
illegal drug with automatic revocation of clearance for any violation. (Tr. 32-34; AE K) 
See AG ¶ 26(b)(4), infra. 
 
Character Evidence 
 
Applicant’s manager, a colleague from work, and two friends provided character 
statements. (AE E-AE H) The general sense of the letters is that Applicant is 
enthusiastic, dedicated to his family and employer, diligent, professional, trustworthy, 
competent, and patriotic. (AE E-AE H) He received the highest possible rating for his 
2015 performance review, and he makes important contributions to the accomplishment 
of his company’s goals. (AE J) 
   
Policies 
  
The U.S. Supreme Court has recognized the substantial discretion of the 
Executive Branch in regulating access to information pertaining to national security 
emphasizing, “no 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 
applicant’s 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 meeting the 
criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules 
of law. Instead, recognizing the complexities of human behavior, these guidelines are 
                                            
2
Department Counsel did not move to amend the SOR to allege a concern under AG ¶ 15(b), 
which provides that a personal conduct security concern is raised by a “refusal to provide full, frank and 
truthful answers to lawful questions of investigators, security officials, or other official representatives in 
connection with a personnel security or trustworthiness determination.” Applicant was not advised that the 
names of witnesses who have knowledge of his illegal drug use are necessary information because it 
allows investigators to conduct follow-up interviews to verify the scope of an applicant’s illegal drug use. 
Applicant was not warned of the potential applicability of AG ¶ 15(b). Applicant’s failure to provide lawfully 
requested information will not be considered in this decision.  
 
4 
                                         
 
applied 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, 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 the applicant may deliberately or inadvertently fail to safeguard classified 
information. Such decisions entail a certain degree of legally permissible extrapolation 
about potential, rather than actual, risk of compromise of classified information. 
Clearance decisions must be “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. 
This decision is not based, in whole or in part, on any express or implied determination 
about applicant’s allegiance, loyalty, or patriotism. Thus, any 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. 95-0611 
at 2 (App. Bd. May 2, 1996). 
 
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 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). The burden of 
disproving a mitigating condition never shifts to the Government. See ISCR Case No. 
02-31154 at 5 (App. Bd. Sep. 22, 2005). “[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 
 
Drug Involvement 
 
AG ¶ 24 articulates the security concern concerning drug involvement: 
 
[u]se 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. 
 
5 
                                         
 
AG ¶ 25 describes two drug-involvement disqualifying conditions that could raise 
a security concern and may be disqualifying in this particular case: “(a) any drug 
abuse;”3 and “(c) illegal drug possession.” AG ¶¶ 25(a) and 25(c) apply because in the 
previous 10 years, Applicant used marijuana once or twice; his most recent marijuana 
use was in April 2014; and he used marijuana in the 1986 to 1989 time period about 
once per year.4 Consideration of mitigating conditions is required.  
 
The Appeal Board concisely explained Applicant’s responsibility for proving the 
applicability of mitigating conditions as follows: 
 
Once a concern arises regarding an Applicant’s security clearance 
eligibility, there is a strong presumption against the grant or maintenance 
of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th 
Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government 
presents evidence raising security concerns, the burden shifts to the 
applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The 
standard applicable in security clearance decisions is that articulated in 
Egan, supra. “Any doubt concerning personnel being considered for 
access to classified information will be resolved in favor of the national 
security.” Directive, Enclosure 2 ¶ 2(b). 
 
ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013).  
  
  AG ¶ 26 provides for potentially applicable drug involvement mitigating 
conditions:  
 
(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; 
 
(b) a demonstrated intent not to abuse any drugs in the future, such as:  
 
(1) disassociation from drug-using associates and contacts; 
 
                                            
3
AG ¶ 24(b) defines “drug abuse” as “the illegal use of a drug or use of a legal drug in a manner 
that deviates from approved medical direction.” 
 
4
AG ¶ 24(a) defines “drugs” as substances that alter mood and behavior, including: 
 
(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.  
 
Schedules I, II, III, IV, and V, as referred to in the Controlled Substances Act are 
contained in 21 U.S.C. § 812(c). Marijuana is a Schedule (Sch.) I controlled substance. 
See Sch. I(c)(9). See also Gonzales v. Raish, 545 U.S. 1 (2005) (discussing placement 
of marijuana on Schedule I). 
 
6 
                                         
 
(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; 
 
(c) abuse of prescription drugs was after a severe or prolonged illness 
during which these drugs were prescribed, and abuse has since ended; 
and 
 
(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. 
 
AG ¶ 26(a) can mitigate security concerns when drug offenses are not recent. 
There are no “bright line” rules for determining when such conduct is “recent.” The 
determination must be based “on a careful evaluation of the totality of the record within 
the parameters set by the directive.” ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 
2004). For example, the Appeal Board determined in ISCR Case No. 98-0608 (App. Bd. 
Aug. 28, 1997), that an applicant’s last use of marijuana occurring approximately 17 
months before the hearing was not recent. If the evidence shows “a significant period of 
time has passed without any evidence of misconduct,” then an administrative judge 
must determine whether that period of time demonstrates “changed circumstances or 
conduct sufficient to warrant a finding of reform or rehabilitation.”5 
                                            
5
 ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). In ISCR Case No. 04-09239 at 5 (App. 
Bd. Dec. 20, 2006), the Appeal Board reversed the judge’s decision denying a clearance, focusing on the 
absence of drug use for five years prior to the hearing. The Appeal Board determined that the judge 
excessively emphasized the drug use while holding a security clearance, and the 20 plus years of drug 
use, and gave too little weight to lifestyle changes and therapy. For the recency analysis the Appeal 
Board stated:  
 
Compare ISCR Case No. 98-0394 at 4 (App. Bd. June 10, 1999) (although the passage 
of three years since the applicant's last act of misconduct did not, standing alone, compel 
the administrative judge to apply Criminal Conduct Mitigating Condition 1 as a matter of 
law, the Judge erred by failing to give an explanation why the Judge decided not to apply 
that mitigating condition in light of the particular record evidence in the case) with ISCR 
Case No. 01-02860 at 3 (App. Bd. May 7, 2002) (“The administrative judge articulated a 
rational basis for why she had doubts about the sufficiency of Applicant's efforts at 
alcohol rehabilitation.”) (citation format corrections added). 
 
In ISCR Case No. 05-11392 at 1-3 (App. Bd. Dec. 11, 2006) the Appeal Board, considered the recency 
analysis of an administrative judge stating: 
 
The administrative judge made sustainable findings as to a lengthy and serious history of 
improper or illegal drug use by a 57-year-old Applicant who was familiar with the security 
clearance process. That history included illegal marijuana use two to three times a year 
from 1974 to 2002 [drug use ended four years before hearing].  It also included the illegal 
purchase of marijuana and the use of marijuana while holding a security clearance. 
 
7 
                                         
 
Applicant used marijuana about once a year from 1986 to 1989, and twice from 
2004 to April 2014. His most recent marijuana use in April 2014 was 25 months before 
his hearing. He recognizes the adverse impact on his life of drug abuse. These actions 
create some certitude that he will continue to abstain from drug use. AG ¶ 26(a) applies 
to his marijuana-related offenses.6    
 
Applicant has completed a sustained period of abstinence, and he provided “a 
signed statement of intent [not to use illegal drugs] with automatic revocation of 
clearance for any violation.” AG ¶ 26(b) partially applies. AG ¶¶ 26(c) and 26(d) are not 
applicable because Applicant did not abuse drugs after being issued a prescription that 
is lawful under federal law. He did not provide proof of satisfactory completion of a 
prescribed drug treatment program, including rehabilitation and aftercare requirements, 
and a favorable prognosis by a duly qualified medical professional.    
 
In sum, the only evidence of Applicant’s marijuana use is his self-report during the 
security clearance process. He provided a signed statement of intent not to use illegal 
drugs with automatic revocation of clearance for any violation. He credibly described his 
marijuana use, and he sincerely promised not to use marijuana in the future. He has 
abstained from marijuana use for 25 months, demonstrating a sufficient track record of 
no drug abuse to mitigate drug involvement security concerns.    
 
Personal Conduct 
 
AG ¶ 15 expresses the security concern pertaining to personal conduct: 
 
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. 
 
AG ¶ 16 describes three conditions that could raise a security concern and may 
be disqualifying in this case: 
 
(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, lack of candor, unwillingness to comply with rules and 
regulations, or other characteristics indicating that the person may not 
properly safeguard protected information; 
 
                                            
6
In ISCR Case No. 02-08032 at 8 (App. Bd. May 14, 2004), the Appeal Board reversed an 
unfavorable security clearance decision because the administrative judge failed to explain why drug use 
was not mitigated after the passage of more than six years from the previous drug abuse. 
 
8 
                                         
 
(d) credible adverse information that is not explicitly covered under any 
other guideline and may not be sufficient by itself for an adverse 
determination, but which, when combined with all available information 
supports a whole-person assessment of questionable judgment, 
untrustworthiness, unreliability, lack of candor, unwillingness to comply 
with rules and regulations, or other characteristics indicating that the 
person may not properly safeguard protected information. This includes 
but is not limited to consideration of: (1) untrustworthy or unreliable 
behavior . . . ; or (3) a pattern of dishonesty or rule violations; and  
 
(e) personal conduct, or concealment of information about one's conduct, 
that creates a vulnerability to exploitation, manipulation, or duress, such 
as (1) engaging in activities which, if known, may affect the person's 
personal, professional, or community standing, or (2) while in another 
country, engaging in any activity that is illegal in that country or that is 
legal in that country but illegal in the United States and may serve as a 
basis for exploitation or pressure by the foreign security or intelligence 
service or other group.  
 
Marijuana possession and use is thoroughly addressed under Guideline H, and 
accordingly, AG ¶ 16(c) does not apply. AG ¶ 16(e)(2) does not apply because the SOR 
does not allege Applicant’s marijuana use in locations outside of the United States. 
  
AG ¶¶ 16(d)(1), 16(d)(3), and 16(e)(1) apply because Applicant used marijuana 
which is a violation of federal law and his company’s policy prohibiting illegal drug use.  
His marijuana use reflects adversely on his professionalism and creates a vulnerability 
to exploitation, manipulation, or duress. Marijuana use reflects “questionable judgment . 
. . or unwillingness to comply with rules and regulations [and raises] questions about 
[his] reliability, trustworthiness and ability to protect classified information.” See AG ¶ 15.  
 
AG ¶ 17 provides three potentially applicable personal conduct mitigating 
conditions in this case:  
 
(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; 
 
(d) the individual has acknowledged the behavior and obtained counseling 
to change the behavior or taken other positive steps to alleviate the 
stressors, circumstances, or factors that caused untrustworthy, unreliable, 
or other inappropriate behavior, and such behavior is unlikely to recur; and 
 
(e) the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress.  
 
 
9 
                                         
 
AG ¶¶ 17(c), 17(d), and 17(e) apply. The disqualifying conduct alleged in the 
SOR under Guidelines H and E is identical. The mitigating facts discussed under 
Guideline H are applicable to mitigate personal conduct security concerns. His most 
recent marijuana use was in April 2014, and it happened under unique circumstances 
that are unlikely to recur and do not cast doubt on Applicant’s continued reliability, 
trustworthiness, or good judgment. He disclosed his marijuana use to security officials, 
and he is not vulnerable to exploitation, manipulation, or duress. Personal conduct 
security concerns are mitigated.  
   
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 have incorporated my comments 
under Guidelines H and E in my whole-person analysis. Some of the factors in AG ¶ 
2(a) were addressed under those guidelines, but some warrant additional comment.  
 
Applicant is a 51-year-old mechanical design engineer, who is seeking a security 
clearance. The same defense contractor has employed him since June 2014. He 
previously worked for another defense contractor for 24 years at the same location 
where he currently works. In 1996, he was awarded a master’s of science degree in 
advanced solid mechanics. He has taken several courses towards an additional degree. 
The general sense of statements from Applicant’s manager, a colleague from work, and 
two friends is that Applicant is enthusiastic, dedicated to his family and employer, 
diligent, professional, trustworthy, and competent. He received the highest possible 
rating for his 2015 performance review, and he makes important contributions to the 
accomplishment of his company’s goals.  
 
Applicant used marijuana about four times from 1986 to 1989, and twice from 
2004 to April 2014. He self-reported his marijuana use. He provided a signed statement 
of intent with automatic revocation of clearance for any violation. He ended his 
marijuana use in April 2014, and his marijuana use is not recent. He sincerely and 
credibly assures he will not use marijuana in the future, and he provided a signed 
 
10 
                                         
 
statement of intent not to use illegal drugs with automatic revocation of clearance for 
any violation.  
  
 I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, the 
Directive, and the AGs, to the facts and circumstances in the context of the whole 
person. Drug involvement and personal conduct security concerns are mitigated.   
 
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:   FOR APPLICANT  
 
Subparagraphs 1.a and 1.b: For Applicant 
 
Paragraph 2, Guideline E:   FOR APPLICANT  
 
Subparagraph 2.a:   For Applicant 
 
Conclusion 
 
In light of all of the circumstances presented by the record in this case, it is 
clearly consistent with national security to grant Applicant’s eligibility for a security 
clearance. Eligibility for access to classified information is granted. 
 
 
_________________________ 
Robert J. Tuider 
Administrative Judge