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   DEPARTMENT OF DEFENSE 
     DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of:  ) 
 ) 
 ) ISCR Case No. 16-00159 
 ) 
Applicant for Security Clearance  ) 
Appearances 
For Government: Bryan Olmos, Esq., Department Counsel 
For Applicant: Pro se 
______________ 
Decision 
______________ 
MATCHINSKI, Elizabeth M., Administrative Judge: 
Applicant has been convicted of driving under the influence of alcohol (DUI) five 
times. He was discharged from the military for misconduct after testing positive for 
marijuana in 1998. In March 2006, he was caught driving on a revoked license. He has 
been paid for work performed for his stepfather’s business since 2005, and he has not paid 
income taxes on those earnings. His poor judgment in several adjudicative issue areas 
makes him an unacceptable security risk. Clearance is denied. 
Statement of the Case 
On October 7, 2016, the Department of Defense Consolidated Adjudications Facility 
(DOD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing the security 
concerns under Guideline E, personal conduct. The SOR explained why the DOD CAF was 
unable to find it clearly consistent with the national interest to grant or continue security 
clearance eligibility for him. The DOD CAF took the action under Executive Order (EO) 
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 for 
REDACTED
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Determining Eligibility for Access to Classified Information (AG) effective within the DOD on 
September 1, 2006. 
 
On November 14, 2016, Applicant answered the SOR allegations and requested a 
decision on the written record without a hearing before an administrative judge from the 
Defense Office of Hearings and Appeals (DOHA). On December 19, 2016, the 
Government submitted a File of Relevant Material (FORM) consisting of six exhibits (Items 
1-6). DOHA forwarded a copy of the FORM to Applicant on December 21, 2016, and 
instructed him to respond within 30 days of receipt. Applicant received the FORM on 
January 18, 2017. Applicant submitted an undated and unsigned response to the FORM, 
which was received by DOHA on or before February 22, 2017. Department Counsel did not 
object to the FORM. On October 1, 2017, I was assigned the case to determine whether it 
is clearly consistent with national security to grant or continue a security clearance for 
Applicant. I incorporated Applicant’s response into the record as an Applicant exhibit (AE 
A). 
 
While this case was pending a decision, Security Executive Agent Directive 4 was 
issued establishing National Security Adjudicative Guidelines (AG) applicable to all covered 
individuals who require initial or continued eligibility for access to classified information or 
eligibility to hold a sensitive position. The AG supersede the adjudicative guidelines 
implemented in September 2006 and are effective for any adjudication made on or after 
June 8, 2017. Accordingly, I have adjudicated Applicant’s security clearance eligibility 
under the new AG.1 
 
Summary of SOR Allegations 
 
 The SOR alleges under Guideline E that Applicant was fined for possession of 
alcohol offenses in December 1988 (SOR ¶ 1.a) and May 1989 (SOR ¶ 1.b); that he was 
charged with felony hit and run in August 1990 but pleaded guilty to a lesser offense (SOR 
¶ 1.c); that he was convicted of DUI offenses committed in March 1993 (SOR ¶ 1.d), May 
1993 (SOR ¶ 1.e), January 1994 (SOR ¶ 1.f), December 1998 (SOR ¶ 1.h), and July 2001 
(SOR ¶ 1.i); that he was given a general discharge from the U.S. military after testing 
positive for marijuana in January 1998 (SOR ¶ g); that he continued to drink and drive after 
his license was suspended and was convicted of a March 2006 driving with a revoked 
license charge (SOR ¶ 1.j); that he falsified his April 2015 security clearance application 
(SF 86) by not listing an employment held since 2005 (SOR ¶ 1.k); and that he has failed to 
report his earnings from that job to the state and federal government since 2005 (SOR ¶ 
1.l). 
 
 When he responded to the SOR allegations, Applicant admitted his alcohol-related 
arrests and convictions (SOR ¶¶ 1.a-1.f, 1.h-1.i), his general discharge for drug-related 
misconduct (SOR ¶ 1.g), and his conviction for driving with a revoked license (SOR ¶ 1.j). 
He admitted that he continued to drive after his license was suspended but denied that he 
continued to drink and drive. Applicant admitted that he had not listed on his SF 86 his 
                                                 
1 Application of the AGs that were in effect as of the issuance of the SOR would not change my decision in this 
case. 
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employment for his stepfather, but he added: 
 
[Company X] is owned by my step-father. I list as being employed on my 
resume. I don’t get a paycheck for the house I help out. I help with answering 
the phone and paying the bills. I list it on my resume to make my work history 
have no gaps. 
 
Applicant responded “I deny” to the allegation concerning his failure to report his earnings 
from that job to the state or federal government, and stated: Only collect[ed] money from 
Nov. 2014-Nov. 2015 when I was unemployed. Money was from my parents not [company 
X].” In rebuttal to the FORM, Applicant indicated that he was never paid any wages by 
company X so there was no reason to report his income to the federal government. He 
added that he used the wrong terminology when he referred to it as a part-time job. 
Concerning an apparent reference to getting “paid under the table,” Applicant explained 
that he should have paid more attention to what was reported in the summary of his 
interview for his background investigation. 
 
Findings of Fact 
 
 After considering the FORM, which includes Applicant’s response to the SOR (Item 
1), and Applicant’s rebuttal to the FORM (AE A), I make the following findings of fact. 
 
 Applicant is a 37-year-old senior mechanical engineer. He and his spouse married in 
in September 2008, and they have two sons now ages two and four. Applicant began 
working part time for a defense contractor (company X) in May 2003 while also attending a 
community college starting in September 2003. He was granted a DOD secret security 
clearance in December 2005. From January 2007 to December 2009, Applicant was a 
professional cyclist with a world-tour team. After his contact with the cycling team ended, 
he attended college while working part time for company X. He earned his associate’s 
degree in June 2011 and his bachelor’s degree in May 2012. In February 2014, Applicant 
began full-time employment in the civilian sector while continuing to maintain his part-time 
position with company X. (Items 2-3.) He purchased his current residence in December 
2012. (Item 2.) 
 
 On February 2, 2016, Applicant completed and certified to the accuracy of a 
Questionnaire for National Security Positions (SF 86) to renew his security clearance 
eligibility for his part-time work with company X. Applicant did not disclose any issues of 
potential security concern. (Item 2.) In June 2016, Applicant changed his full-time job. (Item 
3.) 
 
 On July 22, 2016, Applicant was interviewed by an authorized investigator for the 
Office of Personnel Management (OPM). Applicant indicated that he used marijuana one 
time in May 2016. He explained that he was with his supervisor, who provided him with an 
edible piece of caramel that contained marijuana. Applicant explained that marijuana use 
was legal in his state, but he knew that he is not to use any drugs while holding a DOD 
security clearance. He stated that he felt pressured by his supervisor to experiment with 
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the drug. He denied any other drug use and any intention to use marijuana again. Applicant 
indicated that, if required, he would inform his employer about his marijuana use. (Item 3.) 
  
 In response to the SOR, Applicant explained on November 28, 2016, that the edible 
containing the Indica variety of marijuana that he used in May 2016 was legal in his state of 
residence. He stated that he was told by a friend that it would help him relax, and he had “a 
number of life stresses going on at the time including changing jobs, and being separated 
from [his] wife.”2 Applicant added in part: 
 
I knew that I was not supposed to use the substance because of my security 
clearance. It was a mistake that I regret. Part of my justification at the time 
was based on the fact that I had just done my security clearance renewal 
and through I would not have to disclose the use for another ten years, at 
which time it would be legal federally and therefore forgivable. 
 
For my security clearance renewal there was a second interview, in person, 
after the use. During that interview, I chose to be honest and disclosed the 
single use. 
 
I am truly sorry for the momentary disregard for the federal stance on the use 
of marijuana. It has not happened since and will not happen again, even 
given [state] laws. (Item 1.) 
 
Policies 
 
The U.S. Supreme Court has recognized the substantial discretion the Executive 
Branch has in regulating access to information pertaining to national security,  emphasizing 
that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 
U.S. 518, 528 (1988). When evaluating an applicant’s suitability for a security clearance, 
the administrative judge must consider the adjudicative guidelines. In addition to brief 
introductory explanations for each guideline, the adjudicative guidelines list potentially 
disqualifying conditions and mitigating conditions, which are required to be considered 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 overall adjudicative goal is a fair, impartial, and 
commonsense decision. According to AG ¶ 2(a), 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 national security 
eligibility will be resolved in favor of the national security.” In reaching this decision, I have 
                                                 
2 The summary of Applicant’s July 22, 2016 interview does not mention any marital problems or marital 
separation. 
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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 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 
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. Section 7 of EO 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). 
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Analysis 
 
Guideline H: Drug Involvement and Substance Misuse 
 
The security concerns about drug involvement and substance misuse are articulated 
in AG ¶ 24: 
 
The illegal use of controlled substances, to include the misuse of prescription 
and non-prescription drugs, and the use of other substances that cause 
physical or mental impairment or are used in a manner inconsistent with their 
intended purpose 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. Controlled 
substance means any “controlled substance” as defined in 21 U.S.C. 802. 
Substance misuse is the generic term adopted in this guideline to describe 
any of the behaviors listed above. 
  
Applicant knowingly ingested marijuana in edible form on one occasion in May 2016. 
He had a security clearance at that time and knew that marijuana was not only illegal under 
federal law, but also against his security clearance eligibility. Disqualifying conditions 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,” apply. AG ¶ 25(c), “illegal 
possession of a controlled substance, including cultivation, processing, manufacture, 
purchase, sale, or distribution; or possession of drug paraphernalia,” is only minimally 
established. Applicant did not purchase the drug, although he had physical possession of 
the edible containing marijuana when he consumed it. 
 
 There is no evidence that Applicant has otherwise used marijuana or any other 
illegal drug. AG ¶ 26(a) has some applicability in mitigation in that it was “so infrequent.” 
AG ¶ 26(a) provides: 
 
(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. 
 
However, his use in knowing contravention of federal law and the obligations of his security 
clearance eligibility casts doubt on his reliability, trustworthiness, and judgment. 
 
 AG ¶ 26(b) provides for mitigation when an individual acknowledges his drug 
involvement and has no intention of future drug activity: 
 
(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: 
 
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(1) disassociation from drug-using associates and contacts; 
 
(2) changing or avoiding the environment where drugs were used; and 
 
(3) providing a signed 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 told the OPM investigator in July 2016 that his supervisor gave him the 
edible containing marijuana and that he felt pressured to experiment with it. He provided a 
slightly different version in November 2016 when he indicated that “a friend” gave him the 
edible containing marijuana to relax when he was dealing with the stress of changing jobs 
and marital separation. The summary of Applicant’s July 2016 interview makes no mention 
of any martial problems he may have had in May 2016, but it does note the change of his 
full-time job in June 2016. Given Applicant’s longtime part-time employment with company 
X, it would not be surprising if Applicant socialized with his supervisor, whom Applicant 
indicated in July 2016 could verify his drug use. Applicant did not indicate in July 2016 or in 
November 2016 that he had disassociated himself from the person involved in his 
marijuana use in May 2016. 
 
 Mitigation turns on whether Applicant can be believed when he asserts that he has 
no intention of using any marijuana or other illegal drug in the future. Applicant’s use of 
marijuana was recent and occurred after he had applied to renew his security clearance. It 
is clear that he thought he would get away with it in that he could not have to disclose until 
his security clearance again came up for renewal in ten years. He evidently did not 
anticipate that he would be interviewed. His candid disclosure of his recent marijuana use 
during his in-person interview reflects favorably on his credibility and allows me to accept 
as sincere his stated intention not to use any marijuana or other illegal drug as long as 
federal law prohibits the use. Applicant’s notarized response to the SOR, in which he 
stated that his marijuana use would not happen again, suffices to satisfy AG ¶ 26(b)(3). 
Applicant’s drug use appears to have been situational and not characteristic of his 
recreational or social activities. The drug involvement security concerns are mitigated. 
 
Guideline E: Personal Conduct  
  
The concerns about personal conduct are articulated in AG ¶ 15: 
 
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 or 
sensitive information. Of special interest is any failure to cooperate or provide 
truthful and candid answers during national security investigative or 
adjudicative processes. 
 
 Concerning the Government’s case for disqualification under the personal conduct 
guideline because of Applicant’s marijuana use and the fact that he used the drug while 
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holding a clearance (SOR ¶ 2.a), the DOHA Appeal Board has held that security-related 
conduct can be alleged under more than one guideline, and in an appropriate case, be 
given independent weight under each. See ISCR 11-06672 (App. Bd. Jul. 2, 2012). 
Applicant had an obligation as a clearance holder to comply with DOD policy, including the 
prohibitions against drug involvement. Applicant consumed an edible containing marijuana 
in May 2016, knowing that it was prohibited under federal law, although legal in his state, 
and in violation of his clearance obligations. His use of marijuana has security significance 
apart from whether he is reformed of his drug involvement because it shows a disregard of 
rules and regulations. 
 
 Applicant’s marijuana use in violation of his security clearance obligations is covered 
under AG ¶ 25(f) of Guideline H, so even though it may be considered inappropriate 
behavior and a rule violation, disqualifying condition AG ¶ 16(d) does not strictly apply. AG 
¶ 16(d) provides: 
 
(d) credible adverse information that is not explicitly covered under any other 
guideline and may not be sufficient in and of 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 individual 
may not properly safeguard classified or sensitive information. This includes, 
but is not limited to, consideration of: 
 
(1) untrustworthy or unreliable behavior to include breach of client 
confidentiality, release of proprietary information, unauthorized release of 
sensitive corporate or government protected information; 
 
(2) any disruptive, violent, or other inappropriate behavior; 
 
(3) a pattern of dishonesty or rule violations; and 
 
(4) evidence of significant misuse of Government or other employer’s time or 
resources. 
 
 His marijuana use in violation of his security clearance obligations is activity which 
could affect his professional standing with his employer under AG ¶ 17(e), which provides: 
 
(e) personal conduct, or concealment of information about one’s conduct, 
that creates a vulnerability to exploitation, manipulation, or duress by a 
foreign intelligence entity or other individual or group. Such conduct includes: 
 
(1) engaging in activities which, if known, could affect the person’s personal, 
professional, or community standing. 
 
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Additionally, AG ¶ 17(g), “association with persons involved in criminal activity,” could 
arguably apply if the person who gave him the marijuana held a security clearance. While 
the purchase may well have been legal in the state, it would be considered criminal 
conduct under federal law. 
 
 Similar to AG ¶ 26(a) under Guideline H, AG ¶ 17(c) under Guideline E provides for 
mitigation when the behavior of security concern is “so infrequent.” AG ¶ 17(c) states: 
 
(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. 
 
AG ¶ 17(c) applies because his use of marijuana was limited to a single occasion. Yet, his 
knowing contravention of federal law and the requirements of his security clearance was 
recent and casts doubt about his judgment and reliability. 
 
 AG ¶ 17(d) has some applicability in that Applicant informed the OPM investigator 
about his marijuana use. In response to the SOR, he expressed regret for his drug use and 
apologized for the behavior. AG ¶ 17(d) provides: 
 
(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 contributed to untrustworthy, unreliable, or 
other inappropriate behavior, and such behavior is unlikely to recur. 
 
Assuming Applicant took the marijuana to relax, there is no evidence that he obtained 
counseling to alleviate the stress that led him to consume the marijuana. Without some 
evidence of his present circumstances, especially regarding his marital separation, I cannot 
conclude that the stressful life circumstances that contributed to his marijuana use are 
behind him or unlikely to recur. Yet, the absence of any recurrence of marijuana use since 
May 2016 would indicate that Applicant is appropriately managing the stress in his life 
without resorting to substance use or misuse.  
 
 Applicant’s disclosure of his marijuana use to the OPM investigator is a positive step 
that reduces or eliminates his vulnerability to exploitation, manipulation, or duress under 
mitigating condition AG ¶ 17(e).  It is unclear whether he currently socializes with the 
person who provided him the marijuana edible. However, there is also no evidence that 
Applicant has been around marijuana since that occasion in May 2016. AG ¶ 17(g), 
“association with persons involved in criminal activities was unwitting, has ceased, or 
occurs under circumstances that do not cast doubt upon the individual’s reliability, 
trustworthiness, judgment, or willingness to comply with rules and regulations,” would apply 
in the absence of any evidence of ongoing association or activities conducive to illegal drug 
involvement. His knowing disregard of federal law and DOD clearance requirements is not 
condoned, but it is not likely to be repeated. 
 
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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 his conduct and 
all relevant circumstances in light of the nine adjudicative process factors listed at AG ¶ 
2(d).3 In making the overall commonsense determination required under AG ¶ 2(a), I have 
to consider Applicant’s circumstances when he used marijuana. He was 35 years old, the 
father of two young boys, a homeowner, and held full and part-time jobs as a mechanical 
engineer. Given his part-time employment was with a defense contractor, he may not have 
had regular access to classified information, but he knew that he was not supposed to use 
marijuana because of his security clearance. 
 
There is no evidence that Applicant has mishandled any classified information. The 
Appeal Board has repeatedly held that the government need not wait until an applicant 
mishandles or fails to safeguard classified information before denying or revoking security 
clearance eligibility. See, e.g., ISCR Case No. 08-09918 (App. Bd. Oct. 29, 2009, citing 
Adams v. Laird, 420 F.2d 230, 238-239 (D.C. Cir. 1969)). Applicant’s honesty about his 
drug use does not entitle him to retain his security clearance. As a clearance holder, he 
has an obligation of full candor, even with respect to conduct that could cost him his 
security clearance eligibility. At the same time, security clearance determinations are not 
intended as punishment for past wrongdoing. Rather, the security clearance adjudication 
involves an assessment of an applicant’s judgment, reliability, and trustworthiness in light 
of the security guidelines in the Directive. See ISCR Case No. 09-02160 (App. Bd. Jun. 21, 
2010). Applicant understands that he made a serious misjudgment, and he is resolved to 
not repeat it. His use of marijuana after he applied to renew his security clearance eligibility 
is not condoned, but it also appears to have been aberrational. For the reasons noted 
above, it is clearly consistent with the national interest to continue his security clearance 
eligibility. 
 
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 
 
Subparagraph 1.a:   For Applicant 
 
                                                 
3 The factors under AG ¶ 2(d) are as follows:  
  
(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. 
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Paragraph 2, Guideline E:  FOR APPLICANT 
 
Subparagraph 2.a:   For Applicant 
 
Conclusion 
 
In light of all of the circumstances, it is clearly consistent with the national interest to 
continue Applicant’s eligibility for a security clearance. Eligibility for access to classified 
information is granted. 
 
 
_____________________ 
Elizabeth M. Matchinski 
Administrative Judge