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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 15-08068 
  )   
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Andrew Henderson, Esq., Department Counsel 
For Applicant: Leon J. Schachter, Esq. 
 
June 2, 2017 
______________ 
 
Decision 
______________ 
 
 
MOGUL, Martin H., Administrative Judge: 
 
Statement of the Case 
 
On June 17, 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; and the adjudicative guidelines (AG), effective within the 
Department of Defense for SORs issued after September 1, 2006.  
  
 On July 13, 2016, Applicant replied to the SOR (RSOR) in writing, and he 
requested a hearing before an Administrative Judge (AJ). The case was assigned to 
this AJ on August 31, 2016. The Defense Office of Hearings and Appeals (DOHA) 
issued a notice of hearing on September 14, 2016, and the hearing was convened as 
scheduled on November 8, 2016.  
 
 At the hearing, the Government offered Exhibits 1 through 2, which were 
received without objection. Applicant testified on his own behalf and submitted Exhibits 
 
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A through H, which were also admitted without objection. Three additional witnesses 
testified on behalf of Applicant. The record was kept open until November 18, 2016, to 
allow Applicant to submit additional evidence. No additional documents were received. 
DOHA received the transcript of the hearing (Tr) on December 9, 2016. Based upon a 
review of the pleadings, exhibits, and the testimony of Applicant and the additional 
witnesses, eligibility for access to classified information is denied.  
  
Findings of Fact 
 
 After a complete and thorough review of the evidence in the record as described 
above, and upon due consideration of that evidence, I make the following findings of 
fact:  
 
 Applicant is 42 years old.  He has been married since September 2014, and he 
has no children. Applicant received a Master’s degree in Engineering in 2002, and a 
Bachelor’s degree in Mechanical Engineering in 1998. Applicant has been employed by 
a Government contractor since 2002. He began as an entry level engineer, and he 
currently works as a Systems Director, in which he supervises nine people. Applicant 
seeks a DoD security clearance in connection with his employment in the defense 
sector. 
 
Guideline H - Drug Involvement   
 
 The SOR lists two allegations (1.a. and 1.b.) under Adjudicative Guideline H, 
which will be reviewed below:  
 
 1.a. The SOR alleges, and Applicant admitted in his RSOR, that he, “used 
marijuana with varying frequency from approximately January 2007 to August 2014.” 
 
 At the hearing, Applicant testified that he first used marijuana in approximately 
2007, when he was 33 and he started “hanging out” with his cousin and his friends, who 
were using marijuana. He described his marijuana usage as infrequent and in social 
settings. He also stated that he has never purchased the marijuana that he used, but 
rather it was always given to him or passed around at a social setting. His frequency of 
use stayed the same from 2007 through 2010. After some additional questioning by 
Department Counsel, Applicant estimated that his marijuana use was approximately 5 
times a year for the years 2007 through 2010. In 2011 or 2012, he began spending less 
time with the people with whom he used marijuana; and in 2012 or 2013, he met his 
future wife, who did not enjoy spending time with the people who were using marijuana. 
Both of these events resulted in him using marijuana less frequently. He estimated that 
since he met his future wife he has only used marijuana two or three times. It was 
estimated that Applicant used marijuana approximately 35 times in total, all during the 
period when he held a security clearance. (Tr at 30-33, 48-49.) 
 
 Applicant testified that the last time he ever used marijuana was at his bachelor 
party, which was “a couple of weeks before [his] wedding.”  The wedding was held on 
September 13, 2014. Since that time he has been at events where he has been offered 
 
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marijuana, but he has always declined, and he indicated that he has no difficulty in 
refusing marijuana. Applicant cited several reasons why he is motivated to never use 
marijuana in the future. They include the following: marijuana makes him less 
motivated, which is counter to his character; he is dedicated to being a good husband to 
his wife; he is now in a management position, and he has nine supervisees who count 
on him to set a good example; and finally, his mother-in-law is moving in with them, and 
she is another person who will rely on him. (Tr at 33-39.)  
 
 1.b. The SOR alleges, and Applicant admitted in his RSOR, that “he used illegal 
drugs after being granted a security clearance in March 2005.”  
 
 Applicant confirmed that he started working at his present employer in 2002, and 
he first received his security clearance in March 2005. (Tr at 42-43.) As has been 
reviewed above, Applicant used marijuana approximately 35 times while holding a 
security clearance, which continued from 2007 to August 2014.  
 
Applicant conceded that he made a poor decision by using illegal drugs while 
holding a security clearance. He also admitted that he knew that not only does the DoD 
mandate that an individual with a security clearance not use illegal drugs, including 
marijuana, but his employer also has a policy that its employees must not use illegal 
drugs. He averred that he knows it was a mistake to use drugs while holding a security 
clearance and he would never use any illegal drugs in the future. (Tr at 25-26, 50.)  
 
Mitigation 
 
 Applicant submitted a statement signed by him under penalty of perjury on 
September 28, 2016, in which he wrote that he is not addicted to marijuana; he never 
intends to use marijuana or any other illegal drugs again, whether or not he holds a 
security clearance; and he agrees to random drug testing for as long as he holds a 
security clearance. Further if he had any violation with regard to illegal drug use, he 
would consent to automatic revocation of his security clearance. (Exhibit H.) 
            
 As reviewed above, three witnesses testified on behalf of Applicant. They 
included his direct supervisor, and his supervisor’s supervisor. Both of them testified 
that Applicant was a very, good employee. (Tr at 65-95.) Upon a direct question from 
me, his direct supervisor testified that Applicant told him that he used marijuana on just 
a few occasions and for a really short amount of time, after which he quit. (Tr at 81.)  
The third witness was Applicant's wife. She testified that she was not aware before they 
were married that Applicant had used marijuana, but he subsequently told her he had 
used marijuana during his bachelor’s party. She stated that he never told her about any 
other usage by him of marijuana. She indicated that she highly objects to drug usage, 
and she did not believe her husband would use any illegal drugs in the future. (Tr at 96-
103.)  
 
Applicant also submitted a number of exhibits in mitigation including: extremely 
positive Performance Evaluations (Exhibits A through C) and his current curriculum 
vitae. (Exhibit D.)  
 
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Four character letters were also submitted. (Exhibit E.) One of the letters was 
written by Applicant's spouse. In the letter she wrote that she had reviewed the 
Statement of Reasons in this case and was aware of the specific nature of the 
government’s security concerns. What is of concern is that when his wife testified, she 
indicated that she was only aware of one use of marijuana by her husband at his 
bachelor’s party. If she had, in fact, read the SOR, then she would certainly be aware 
that Applicant was alleged to have used marijuana from 2007 to August 2014. Either 
she did not read the SOR, as she wrote in her letter, or she was not being truthful about 
what the Applicant told her. Therefore, I do not give any credibility to her letter or any of 
her testimony. Another letter was from Applicant's supervisor, who, as reviewed above, 
testified that Applicant only indicated he used marijuana on just a few occasions for a 
very short period of time. However, in his letter, he wrote that he also had reviewed the 
Statement of Reasons in this case and was aware of the specific nature of the 
government’s security concerns. Therefore, he also should have been aware of the 
allegations of Applicant's marijuana usage, and I therefore, do not give any credibility to 
his letter or testimony. I also considered that, based on both of these witnesses 
testimony, Applicant did not give them a full history of his marijuana usage.  
 
Finally, Applicant submitted a letter from a Licensed Substance Abuse 
Professional and Licensed Social Worker, who opined that Applicant is “not at risk of 
relapse, or return to his previous behavior.” (Exhibit G.) However, nowhere in the letter 
does it indicate what Applicant told her about his history of marijuana abuse. Based on 
the discrepancies with his reporting his substance abuse to his supervisor and his wife, I 
do not feel confident that this person based her opinion on all of the facts. Therefore, I 
have not used this letter in helping me to reach my decision.  
 
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 to be used 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, administrative judges apply the guidelines in 
conjunction with the factors listed in the adjudicative process. The administrative judge’s 
overarching 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 
 
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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 the applicant or proven by Department Counsel.” The 
applicant has the ultimate burden of persuasion to obtain 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. 
 
Section 7 of EO 10865 provides that adverse 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 35 times for seven years, and as recently as August 2014, while he was 
holding a security clearance, 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.” ¶ 25(g) is also applicable because of Applicant’s “illegal 
drug use after being granted a security clearance.” 
 
Applicant did testify and offer his written statement that he intends to abstain 
from using marijuana or any illegal drug in the future Howeve, Applicant used marijuana 
 
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as recently as August 2014, and for approximately 35 times while he was holding a 
security clearance, and there is real concern about Applicant's honesty regarding his 
providing information to his witnesses about his marijuana history, Accordingly, I find 
that at this time I cannot  make the determination that Applicant will not use drugs in the 
future. Therefore, I cannot conclude that any of the mitigating conditions are applicable 
at this time. 
 
 In this case, the Government has met its initial burden of proving that Applicant 
has used illegal drugs under Guideline H, especially while holding a security clearance. 
Applicant, on the other hand, has not introduced persuasive evidence in rebuttal, 
explanation, or mitigation, which is sufficient to overcome the Government's case 
against him.  If Applicant is able to establish in the future a longer pattern of abstention 
from the use of any illegal drug, the outcome could be different, but at this time 
Guideline H of the SOR is concluded against 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 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 
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. I have incorporated my comments 
under Guideline H in my whole-person analysis. There are significant unresolved 
concerns about Applicant’s years of marijuana usage, especially while holding a 
security clearance.  
 
Overall, the record evidence leaves me with questions and doubts as to 
Applicant’s eligibility and suitability for a security clearance. For all these reasons, I 
conclude Applicant has not mitigated the Drug Involvement security concerns under the 
whole-person concept.  
 
 
 
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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.-1.b.:   Against 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. 
 
 
 
 
Martin H. Mogul 
Administrative Judge