DEPARTMENT OF DEFENSE
         DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 15-04661
)
)
Applicant for Security Clearance )
Appearances
For Government: Andrew Henderson, Esquire, Department Counsel
For Applicant: Leon J. Schachter, Esquire
February 3, 2017
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Decision
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MOGUL, Martin H., Administrative Judge:
On February 5, 2016, the Department of Defense (DoD) issued a Statement of
Reasons (SOR) detailing the security concerns under Guideline H for Applicant. 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 within the
Department of Defense for SORs issued after September 1, 2006. 
 
Applicant, through counsel, replied to the SOR (RSOR) in writing on March 8,
2016, and he requested that his case be decided by a hearing before an Administrative
Judge. I received the case assignment on April 19, 2016. DOHA issued a notice of
hearing on May 4, 2016, and I convened the hearing as scheduled on June 21, 2016. 
At the hearing, the Government offered Exhibits 1 and 2, which were received
without objection. Applicant testified on his own behalf, and submitted Exhibits A
through P, which were also received without objection. Three additional witnesses
testified on behalf of Applicant. The record was kept open until July 8, 2016, to allow
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Applicant to submit additional evidence. Three letters that were timely received have
been identified and entered into evidence without objection as Exhibits Q, R, and S.
DOHA received the transcript of the hearing (Tr) on June 29, 2016. Based upon a
review of the pleadings, exhibits, and the testimony of Applicant and the other
witnesses, eligibility for access to classified information is granted.
Findings of Fact
After a complete and thorough review of the evidence in the record, including
Applicant's RSOR, the admitted documents, and the testimony of Applicant and the
other witnesses, and upon due consideration of that evidence, I make the following
findings of fact: 
Applicant is 24 years old. He is unmarried, and he has no children. Applicant
received a Bachelor of Science degree in Mechanical Engineering and Aerospace
Engineering in 2014. Applicant is employed by a defense contractor, and he seeks a
DoD security clearance in connection with employment in the defense sector. (Tr at 35-
36.) 
Guideline H - Drug Involvement 
The SOR lists seven allegations concerning drug usage and purchase (1.a.
through 1.g.) under Adjudicative Guideline H. The allegations will be discussed in the
same order as they were listed on the SOR:
1.a. The SOR alleges that Applicant, “used marijuana approximately 40 times
between June 2010 and January 2014.” Applicant admitted this allegation in his RSOR. 
At the hearing, Applicant confirmed that he used marijuana approximately 40
times from June 2010 to January 2014, so about once a month for 42 months. (Tr at
54.) He used the marijuana in his hometown, and at the two houses in which he was
living while he was in college. (Tr at 56.)  
1.b. The SOR alleges that Applicant, “used cocaine approximately 15 times
between February 2013 and June 2014.” Applicant admitted this allegation in his RSOR.
During his testimony, Applicant confirmed the amount and frequency of his usage
as alleged in the SOR. His cocaine usage occurred at his college house. (Tr at 55-56.) 
1.c. The SOR alleges that Applicant, “used MDMA approximately 3 times
between December 2013 and July 2014.” Applicant admitted this allegation in his
RSOR.
Applicant also confirmed his MDMA or ecstacy usage on three occasions, at his
college house or at a music festival. (Tr at 56-57.) 
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1.d. The SOR alleges that Applicant, “used Adderall without a prescription with
varying frequency between June 2011 and October 2014.” Applicant admitted this
allegation in his RSOR.
Applicant also testified that he used Adderall without a prescription. (Tr at 57-58.)
He stated that he had previously been prescribed Adderall to help him focus while
taking tests, but he did not want to continue having to go to a doctor to get a
prescription, and his health insurance would not pay for the prescription, so he got the
Adderalll from a friend. (Tr at 62-63.) 
1.e. The SOR alleges that Applicant, “used Xanax without a prescription
approximately 3 times between May 2014 and June 2014.” Applicant admitted this
allegation in his RSOR.
Applicant also testified that he used Xanax without a prescription on three
occasions at his college house. (Tr at 57.) 
1.f. The SOR alleges that Applicant, “purchased marijuana, cocaine, MDMA,
Adderall, and Xanax from approximately June 2010 to October 2014.” Applicant
admitted in part and denied in part this allegation in his RSOR. 
He did not have an estimate as to the amount he spent for the purchase of drugs,
but he did testify that it was just through available funds, and it did not cause him any
financial problems. (Tr at 69.) 
1.g. The SOR alleges that Applicant, “continues to associate with friends who
use illegal drugs.” Applicant denied this allegation in his RSOR.
Applicant testified that most of his usage of illegal drugs, or drugs without a
prescription, occurred while he was a student. He did use Adderall without a
prescription and MDMA one time while he was an intern at his present employer, before
he became a full-time employee. He was still a student at this time. (Tr at 65-66, 70.)
Applicant confirmed that around October 2014, during his fifth year in college, he
stopped using all drugs. (Tr at 21-22.) 
Mitigation
Applicant submitted a signed a letter, dated June 5, 2016, in which he wrote that
he has no future intent to use any illegal controlled substance or abuse prescription
drugs in the future, and he willingly will submit to random drug testing and to unqualified
revocation of his security clearance in the event of any future drug usage. (Exhibit A.)    
Applicant also talked about some of the activities in which he is engaged that are
not compatible with his drug usage. These include rock climbing, running, and other
forms of exercise. Applicant submitted evidence showing he has engaged in a 4 mile
walk/run and also that he has joined a gym. Applicant also averred that he has made
new friends during his fitness activities who do not, to his knowledge, abuse illegal
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drugs. (Tr at 27-32, Exhibits D, E.) Exhibit F establishes that Applicant was a volunteer
for one day at a food bank.
As reviewed above, three witnesses testified on Applicant’s behalf. Two of the
witnesses were co-workers and the third was a longtime friend. All of the witnesses
believe that Applicant will not be using any illegal drugs in the future. (Tr at 77-92.) The
witnesses also submitted character letters as well. (Exhibits N, O, P.)  Several other
positive and laudatory character letters were also submitted on Applicant’s behalf.
(Exhibits G, H, L.)  
A Biopsychosocial Assessment, prepared by a Licensed Social Worker (LSW),
was offered into evidence. (Exhibit M.) This person opined “that although [Applicant] is
two years out of college, he is sincere in his avowal to not engage in the use of mood or
mind-altering substances in his life again.” There was some concern that this LSW did 
not know, or refer to in her report, the full extent of Applicant’s drug use history.
However, upon careful review I find that the report was quite complete and thorough,
specifically in paragraph nine of her report, Substance Abuse History, where most of
Applicant’s drug history was discussed.
During Applicant’s testimony he conceded that his parents were not fully aware
of his previous drug usage. After the hearing, he submitted letters, dated June 30, 2016,
and signed by both of Applicant’s parents, in which they acknowledged that theat they
are aware of the allegations in the SOR regarding Applicant’s drug history. They further
wrote that while they are disappointed by his previous conduct, they do believe he has
matured and they believe very highly in him. (Exhibit B.)
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the revised 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 AG ¶ 2(a) describing 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
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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 the applicant or proven by Department Counsel. . . .” The
applicant has the ultimate burden of persuasion as to obtaining a favorable clearance
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.
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
applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites
for access to classified or sensitive information).   
Analysis
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 judgement and because it raises questions about a
person’s ability or willingness to comply with laws, rules and regulations.
With respect to Guideline H, the Government has established its case.
Applicant's improper and illegal drug abuse, specifically the use of marijuana
approximately 40 times and as recently as October 2014, while he was working for his
current employer as an intern, is of great concern, especially in light of his continued
desire to have access to the nation's secrets. Applicant's overall conduct pertaining to
his illegal substance abuse clearly falls within Drug Involvement ¶ 25(a) “any drug
abuse;” and (c) “illegal drug possession, including cultivation, processing, manufacture,
purchase, sale, or distribution.”
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However, I find credible his testimony and his written statement that he intends to
abstain from using marijuana or any illegal drug in the future. I also considered that
Applicant stopped using any illegal drug before he became a full-time employee of his
current employer.
Therefore, I conclude that ¶ 26(a) is applicable since “the behavior . . . was so
infrequent” and “happened under such circumstances that it is unlikely to recur.”  Also, ¶
26(b) “a demonstrated intent not to abuse any drugs in the future,” including (3) “an
appropriate period of abstinence;” and (4) “a signed statement of intent with automatic
revocation of clearance for any violation,” is applicable and mitigating.
In this case, the Government has met its initial burden of proving that Applicant
has used illegal drugs under Guideline H. Applicant, on the other hand, has introduced
persuasive evidence in rebuttal, explanation, or mitigation, which is sufficient to
overcome the Government's case against him.  Accordingly, Guideline H of the SOR is
concluded for Applicant.
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. Based on all of the reasons cited
above as to why the mitigating conditions are applicable and controlling, I find that the
record evidence leaves me with no significant questions or doubts as to Applicant’s
eligibility and suitability for a security clearance under the whole-person concept. For all
these reasons, I conclude Applicant has mitigated the security concerns. 
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Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline H: FOR APPLICANT
Subparagraph 1.a.: For Applicant
Subparagraph 1.b.: For Applicant
Subparagraph 1.c.: For Applicant
Subparagraph 1.d.: For Applicant
Subparagraph 1.e.: For Applicant
Subparagraph 1.f.: For Applicant
Subparagraph 1.g.: For Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is 
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is granted.
                                              
Martin H. Mogul
Administrative Judge
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