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DEPARTMENT OF DEFENSE 
DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
 [REDACTED] )  ISCR Case No. 15-05251 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Braden M. Murphy, Esq., Department Counsel 
For Applicant: Pamela B. Stuart, Esq. 
 
 
______________ 
 
Decision 
______________ 
 
 
HESS, Stephanie C., Administrative Judge: 
 
Applicant mitigated the potential security concerns raised by his marijuana use 
from 1979 to 1984 and from November 2013 to June 2014, while holding a security 
clearance. Eligibility for access to classified information is granted. 
 
Statement of the Case 
 
Applicant submitted a security clearance application (e-QIP) on December 10, 
2014. On March 1, 2016, the Department of Defense (DOD) sent him a Statement of 
Reasons (SOR), alleging security concerns under Guideline H. The DOD acted under 
Executive Order (Ex. Or.) 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 DOD on September 1, 2006.  
  
Applicant submitted his Answer to the SOR on March 18, 2016, and requested a 
hearing before an administrative judge. Department Counsel was ready to proceed on 
April 18, 2016, and the case was assigned to me on September 26, 2016. On December 
21, 2016, the Defense Office of Hearings and Appeals (DOHA) notified Applicant through 
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counsel that the hearing was scheduled for January 11, 2017. I convened the hearing as 
scheduled. Government Exhibits (GX) 1 and 2 were admitted into evidence without 
objection. GX 3 through 5 were admitted over Applicant’s counsel’s objections. Applicant 
testified and Applicant’s Exhibit (AX) A was admitted without objection. DOHA received 
the transcript (Tr.) on January 23, 2017. 
 
 The SOR was issued under the AG implemented on September 1, 2006. The DOD 
implemented the amended AG on June 8, 2017, while this decision was pending. This 
decision will be decided based on the amended AG effective June 8, 2017. The outcome 
of this case would have been the same if decided based on the former AG.  
 
Findings of Fact 
 
Applicant is a 65-year-old meteorological equipment specialist employed by a 
defense contractor since 1984. He served on active duty in the U.S. Air Force from March 
1978 until March 1984. He received an associate’s degree in electronic technology in May 
1996. He was granted his first secret security clearance in 1978. (GX 1; GX 2; Tr. 37.)  
 
Under Guideline H, the SOR alleges that Applicant used marijuana on numerous 
occasions from 1979 until 1984, and between November 2013 and June 2014, while 
holding a security clearance. The SOR further alleges that Applicant tested positive for 
marijuana use in October 1983 while on active duty in the Air Force and in June 2014 
while employed by a defense contractor. Applicant admits each of the SOR allegations.  
 
While stationed abroad on active duty in the Air Force between 1979 and 1984, 
Applicant recreationally used marijuana with other members of his squadron, including 
while attending weekend and holiday parties. (Tr. 79-80.) After he tested positive for 
marijuana during a random urinalysis in 1984, he was discharged from the military, 
receiving a general discharge under honorable conditions. During his 1986 background 
investigation, Applicant disclosed the circumstances surrounding his discharge from the 
Air Force, but denied his marijuana usage. (GX 4.) Subsequently, he was forthcoming 
about using marijuana while on active duty. Neither his discharge for marijuana usage 
nor his initial denial of that usage affected Applicant’s ability to maintain a security 
clearance. At the time of his discharge, Applicant’s squadron commander informed 
Applicant that if he stayed out of trouble, his discharge would be converted to an 
honorable discharge. (Tr. 61.) Applicant received a Certification of Military Service, dated 
August 20, 2014, which reflects his honorable discharge. (AX A.) 
 
Applicant did not use marijuana between 1984 and November 2013. During the 
entire course of his employment as a defense contractor since 1984, Applicant was 
subjected to random drug screening. He underwent random screenings in 1986, 1989, 
and 1992, and passed each of these tests. 
 
As a meteorologist equipment specialist, Applicant’s job requires him to climb 54- 
foot and 200-foot towers, as well as drive for hours to off-road sites. Beginning in 2010, 
Applicant began having difficulty sleeping and started experiencing neck stiffness during 
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the workday. He attributed his stiff neck to improper positioning during sleep. Unable to 
sleep comfortably at night, Applicant was often sleepy during work, which began to 
concern began to concern Applicant and his supervisor about Applicant’s ability to 
perform his job safely. (Tr. 38-41; Tr. 46-53.)  
 
At some point in 2012 or 2013, Applicant sought medical treatment for his sleep 
issues and neck pain. According to Applicant, the doctor determined that Applicant’s neck 
pain was the result of incorrect body-positioning while sleeping, and prescribed 
hydrocodone for the neck pain. Applicant was aware of the high rate of addiction to 
hydrocodone and was concerned about taking it. Additionally, he understood that while 
the hydrocodone could alleviate his pain, it would do nothing to resolve its underlying 
cause. Applicant chose not to use the hydrocodone on a regular basis, and “began to 
insist to the doctor that he send [Applicant] somewhere” to properly diagnose the source 
of Applicant’s pain. (Tr. 48-49.)  
 
Applicant continued to have difficulty sleeping, which resulted in his increased 
concern over being able to safely perform his job duties. In November 2013, while 
continuing to pursue an accurate diagnosis and treatment for his neck pain and resolve 
his difficulty sleeping, Applicant began smoking marijuana nightly to induce sleep.  
 
But knowing that it would let me get to sleep that’s when I started taking it 
mainly because I was afraid to climb and drive when I was in such a sleepy 
state because I could drop off… So it was bad enough driving, but the 
climbing was bad because if somebody else got hurt I couldn’t trust myself 
to aid them correctly. So that’s why I started smoking marijuana because I 
knew it would let me get some sleep. (Tr. 48-49.) 
 
Applicant obtained the marijuana through neighborhood acquaintances who purchased it 
from third parties unknown to Applicant. (Tr. 69-70.) 
 
Applicant continued to seek resolution through his doctor. In April 2014, after again 
complaining to his doctor of pain and sleeplessness, Applicant’s doctor sent Applicant for 
a magnetic resonance imaging (MRI) exam of his cervical spine. Applicant underwent a 
second MRI exam and an x-ray in May 2014. The exams revealed extensive damage to 
two cervical discs. Applicant was referred to a specialist and then to an orthopedic 
surgeon. In July 2014, Applicant underwent an anterior cervical discectomy infusion, 
wherein the two severely damaged discs were permanently removed and replaced with 
spacers and a plate. Following the surgery, Applicant was required to wear a neck brace 
and participate in physical therapy for approximately three months. Despite the discomfort 
from the surgery and the fact that Applicant “had to sleep sitting up in a chair, [he] was 
still getting more sleep than [he] did before [he] took the marijuana.” (Tr. 52-54.) 
 
In June 2014, approximately two weeks before Applicant’s scheduled surgery, he 
was subjected to a random drug screening by his employer, which he failed. (Tr. 54.) He 
immediately informed his supervisor. (Tr. 59; AX A.) Applicant was placed on medical 
leave and agreed to participate in an employee assistance program for substance abuse. 
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(GX 3.) The treatment program consisted of two-hour group counseling sessions every 
Thursday for three months, as well as intake and outgoing drug screening. Applicant 
successfully completed the treatment program in September 2014, and no further 
treatment was recommended. (AX A; GX 3.) 
 
Applicant’s supervisor, who has known applicant for over 26 years and has been 
his supervisor for 17 years, states that Applicant “is highly trustworthy, loyal to the United 
States, exhibits strong ethics, and should be granted a clearance at the secret level.” 
Applicant’s supervisor has been aware for years of Applicant’s prior marijuana use and 
military discharge. Upon failing the random drug screening, Applicant self-reported to his 
supervisor. Applicant’s supervisor states: 
 
Having been informed of these things by [Applicant], I have no concerns 
regarding his continued suitability for clearance to handle classified 
information. The incidents he reported to me appear to be isolated 
infractions and not indicative of any pattern of questionable behavior or 
judgment. In the 26 years that I have been working with him, I have not 
noticed any pattern of questionable judgment or behavior…Knowing all of 
these facts and [Applicant], I recommend him for a secret level security 
clearance without hesitation. (AX A.) 
 
Applicant unequivocally stated that he has no intent to use marijuana in the future. 
(Tr. 54; AX A; Answer.) He further testified that if a medical condition again caused him 
significant pain, he would be more forceful in seeking medical treatment. (Tr. 73.) 
Applicant testified that his November 2013 to June 2014 self-medicating with marijuana 
was wrong. He no longer associates with people who use or sell marijuana, and avoids 
social settings where marijuana is being used. (Tr. 56; Tr. 74-75.) Although Applicant 
explained that his marijuana use was solely to help him sleep, he did not justify his 
conduct or make excuses for it. Applicant has not had any security incidents with his 
current employer of more than 33 years. He was sincere, candid, and contrite while 
testifying. 
 
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 
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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 
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).  
 
 
 
 
 
 
 
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Analysis 
 
Guideline H, Drug Involvement and Substance Misuse  
 
The concern under this guideline is set out in AG ¶ 24:  
 
 The illegal use of controlled substances . . . can raise questions about an 
individual’s reliability and trustworthiness, both because such behavior may lead to 
physical or psychological impairment and because it raises questions about a person’s 
ability or willingness to comply with laws, rules, and regulations.  
 
Applicant’s admissions, corroborated by the record evidence, establish the 
potentially disqualifying conditions under this guideline:  
 
AG ¶ 25(a) any substance misuse; and 
 
AG ¶ 25(f) any illegal drug use while granted access to classified information or 
holding a sensitive position. 
 
The following mitigating conditions may also apply: 
 
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) the individual acknowledges his or her drug involvement and substance 
misuse, provides evidence of actions taken to overcome this problem, and has 
established a pattern of abstinence, including, but not limited to: 
 
 (1) disassociation from drug-using associates and contacts; 
 
 (2) changing or avoiding the environment were drugs were used; and 
 
(3) providing a signed a statement of intent to abstain from all drug 
involvement and substance misuse, acknowledging that any future 
involvement or misuse is grounds for revocation of national security 
eligibility. 
 
 Applicant’s marijuana use can be characterized as having occurred under two 
distinct sets of circumstances and does not constitute a pattern. Applicant’s marijuana 
use over 30 years ago occurred when he was stationed overseas and recreationally used 
marijuana. He got caught, was disciplined, quit using marijuana, and moved on with his 
life. This conduct happened under circumstances that are unlikely to recur and do not 
cast doubt on his current reliability, trustworthiness, or good judgment. 
 
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However, Applicant’s prior marijuana use must be considered when evaluating the 
potential security significance of his November 2013 to June 2014 marijuana use. 
Specifically, Applicant had empirical knowledge of the negative impact that using 
marijuana could have on his employment and security clearance. Despite this knowledge, 
Applicant opted to use marijuana for approximately seven months. 
 What distinguishes these two periods of marijuana use is Applicant’s motivation. 
When Applicant used marijuana as a young airman, he was partying with friends. 
However, when Applicant used marijuana from November 2013 until June 2014, he was 
seeking relief for a medical condition. Applicant began seeking medical treatment for his 
neck pain in 2011 or 2012. As his condition worsened, he was no longer able to sleep 
comfortably. Due to the physical demands of Applicant’s job, he became concerned that 
his lack of sleep could endanger his coworkers and himself. He was prescribed 
hydrocodone for pain, however, he was concerned about becoming addicted. He 
recognizes that his decision to use marijuana was a mistake.  
Applicant’s last use of marijuana in June 2014 is not recent. 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).  Applicant has successfully completed a treatment program, does not associate 
with people who use marijuana, and avoids social settings where marijuana is being used. 
He will not use marijuana in the future. Applicant has mitigated the Guideline H concern. 
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(d):  
 
(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.  
 
 I have incorporated my comments under Guideline H in my whole-person analysis. 
Some of the factors in AG ¶ 2(d) were addressed under that guideline, but I have also 
considered the following: 
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 Applicant’s supervisor, who has worked with Applicant for more than 26 years, is 
aware of Applicant’s periods of marijuana use. He thinks that Applicant is trustworthy and 
should maintain his security clearance. Applicant accepts responsibility for his conduct 
and acknowledges that it was wrong. He has worked for the same employer without any 
security incidents since 1984. Applicant’s testimony was credible and sincere. His 
credibility was further bolstered by the fact that he passed three random drug screenings 
between 1984 and 1992, a period when Applicant states he did not use marijuana. 
 
 After weighing the disqualifying and mitigating conditions under Guideline H, and 
evaluating all the evidence in the context of the whole person, I conclude Applicant has 
mitigated the security concerns raised by his illegal drug use. Accordingly, I conclude he 
has 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 H (Drug Involvement):  FOR APPLICANT 
 
  Subparagraphs 1.a – 1.b:    For Applicant 
 
Conclusion 
 
 I conclude that it is clearly consistent with the national interest to grant Applicant’s 
eligibility for a security clearance. Eligibility for access to classified information is granted. 
 
 
 
Stephanie C. Hess 
Administrative Judge