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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 15-06044 
  ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Alison O’Connell, Esq., Department Counsel 
For Applicant: Jacob Ranish, Esq. 
 
 
__________ 
 
Decision 
__________ 
 
 
RIVERA, Juan J., Administrative Judge: 
 
Applicant illegally used marijuana between 2007 and 2010 while possessing a 
clearance. He disclosed his substance misuse in his 2015 security clearance application 
(SCA). There is no evidence of substance misuse after 2010. He is committed to not 
using any illegal drugs in the future. He signed a statement of intent to abstain from 
illegal drug involvement, and understands that any future illegal drug involvement would 
be grounds for revocation of his clearance eligibility. Guideline H security concerns are 
mitigated. Clearance is granted. 
 
Statement of the Case 
 
Applicant submitted an SCA on January 2, 2015. After reviewing it and the 
information gathered during a background investigation, the Department of Defense 
(DOD) issued him a Statement of Reasons (SOR) alleging security concerns under 
Guideline H (drug involvement and substance misuse) on March 4, 2016. Applicant 
answered the SOR on April 4, 2016, and requested a hearing before an administrative 
judge from the Defense Office of Hearings and Appeals (DOHA).  
 
DOHA assigned the case to me on August 12, 2016. DOHA issued a notice of 
hearing on January 6, 2017, setting the hearing for January 25, 2017. At the hearing, 
 
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the Government offered two exhibits (GE 1 and 2). Applicant testified, presented the 
testimony of an expert witness, and submitted two exhibits (AE A and B). All exhibits 
were admitted without objections. DOHA received the hearing transcript (Tr.) on 
February 2, 2017. 
 
Findings of Fact 
 
Applicant partially admitted SOR ¶ 1.a. He admitted to illegally using marijuana 
once. He denied that he intends to use marijuana in the future (SOR ¶ 1.b). His SOR 
and hearing admissions are incorporated as findings of fact. After a thorough review of 
the record evidence, and having considered Applicant’s testimony and his demeanor 
while testifying, I make the following additional findings of fact:  
 
Applicant is a 35-year-old employee of a federal contractor. He graduated from 
high school in 2000, and attended college for four years, but did not complete a degree. 
He married in 2014, but as of his hearing, they were living separately. He has no 
children.  
 
Applicant’s work history indicates that he has worked for federal contractors 
since 2002. His current employer and clearance sponsor, a federal contactor, hired him 
in August 2014, and he has worked there since. He has possessed a secret clearance 
since 2005. 
 
Applicant disclosed in Section 23 (Illegal Use of Drugs or Drug Activity) of his 
2015 SCA that he illegally used marijuana. He estimated that his first use of marijuana 
was in December 2007, and his most recent use was in August 2010. He stated he 
used Ecstasy once in September 2010. He described his marijuana use as 
“Casual/social use, less than once per year, probably only 4-5 times since 2007.” He 
used marijuana and Ecstasy while possessing a security clearance. He claimed no 
interest in using Ecstasy ever again. He stated his intent to use marijuana in the future 
as follows:  
 
I do not intend to restrict my use in social settings beyond my current level 
of use as stated above. I do not intend, nor have I ever intended to 
purchase for myself any delivery vehicle for THC while it remains federally 
illegal. If in a situation where my employer performed random or regular 
drug tests for THC, I would abstain completely.  
 
 Applicant testified during cross-examination that he illegally used marijuana while 
in high school and during college. (Tr. 43-49) In August 2010, Applicant visited his 
future spouse in another state. He used marijuana with his future spouse and his 
spouse’s roommates during the visit. He has known his spouse for more than 10 years. 
After the visit, Applicant and his spouse started living together. They married about 
three years ago. Applicant testified his last use of marijuana was in August 2010. To his 
knowledge, his spouse no longer uses marijuana, but he is not sure because, at the 
time of the hearing, they were not living together. (Tr. 57) The last time Applicant was 
 
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around people using marijuana was at a party in early summer 2016. His cousin and 
friends were using marijuana. Applicant testified that he and his spouse were at the 
party, but did not use marijuana. 
 
 Applicant explained that when he completed his 2015 SCA, he did not 
necessarily intend to use marijuana in the future, but he could not say he would never 
use it because he had not fully committed to not using it again in the future. Applicant 
credibly testified that after his attorney made him realize the adverse security clearance 
consequences of using illegal drugs, he changed his mind and he is now committed to 
not using any illegal drugs in the future. To substantiate his commitment, Applicant 
signed a statement of intent to abstain from illegal drug involvement, and acknowledged 
that any future illegal drug involvement would be grounds for revocation of his clearance 
eligibility. 
 
Applicant’s supervisor has known him for 15 years. He recommended Applicant 
for his current job and has been his supervisor since 2014. Applicant’s supervisor and 
his references consider Applicant to be a model employee with exemplary performance 
and character. He is reliable, dependable, honest, and has a strong moral compass. He 
has consistently received positive performance evaluations. He is well-liked by his 
employer and coworkers. All of his references endorsed his eligibility for a clearance. 
 
Policies 
 
The SOR was issued under Executive Order (Exec. Or.) 10865, Safeguarding 
Classified Information Within Industry (February 20, 1960), as amended; DOD Directive 
5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive) 
(January 2, 1992), as amended; and the Adjudicative Guidelines for Determining 
Eligibility for Access to Classified Information (AG), implemented by the DOD on 
September 1, 2006.  
 
While the case was pending a decision, the Security Executive Agent 
implemented Security Executive Agent Directive (SEAD) 4, National Security 
Adjudicative Guidelines (AG), effective June 8, 2017, which replaced the 2006 AG. I 
decided this case under the current AGs implemented by SEAD 4. 
 
Eligibility for access to classified information may be granted “only upon a finding 
that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, § 2. The 
U.S. Supreme Court has recognized the substantial discretion of the Executive Branch 
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). 
 
The AG list disqualifying and mitigating conditions for evaluating a person’s 
suitability for access to classified information. Any one disqualifying or mitigating 
condition is not, by itself, conclusive. However, the AG should be followed where a case 
can be measured against them, as they represent policy guidance governing access to 
 
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classified information. Each decision must reflect a fair, impartial, and commonsense 
consideration of the whole person and the factors listed in SEAD 4, App. A ¶¶ 2(d) and 
2(f). All available, reliable information about the person, past and present, favorable and 
unfavorable, must be considered.  
 
Security clearance decisions resolve whether it is clearly consistent with the 
national interest to grant or continue an applicant’s security clearance. The Government 
must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, 
the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. The 
applicant bears the heavy burden of demonstrating that it is clearly consistent with the 
national interest to grant or continue his or her security clearance.  
 
Persons with access to classified information enter into a fiduciary relationship 
with the Government based on trust and confidence. Thus, the Government has a 
compelling interest in ensuring each applicant possesses the requisite judgment, 
reliability, and trustworthiness of those who must protect national interest as their own. 
The “clearly consistent with the national interest” standard compels resolution of any 
reasonable doubt about an applicant’s suitability for access in favor of the Government. 
“[S]ecurity clearance determinations should err, if they must, on the side of denials.” 
Egan, 484 U.S. at 531; SEAD 4, ¶ E(4); SEAD 4, App. A, ¶¶ 1(d) and 2(b). Clearance 
decisions are not a determination of the loyalty of the applicant concerned. They are 
merely an indication that the applicant has or has not met the strict guidelines the 
Government has established for issuing a clearance. 
 
Analysis 
 
Drug Involvement and Substance Misuse 
 
AG ¶ 24 articulates the security concern for the illegal use of drugs:  
 
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.  
 
Between 2007 and 2010, Applicant illegally used marijuana four to five times, 
while possessing a security clearance granted to him in 2005. In his 2015 SCA, he 
expressed his intent to continue to use marijuana in the future. AG ¶ 25 provides 
disqualifying conditions that could raise a security concern and may be disqualifying in 
this case:  
 
 
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(a) any substance misuse (see above definition); 
 
(c) illegal possession of a controlled substance, including cultivation, 
processing, manufacture, purchase, sale, or distribution; or possession of 
drug paraphernalia; 
 
(f) any illegal drug use while granted access to classified information or 
holding a sensitive position; and 
 
(g) expressed intent to continue drug involvement and substance misuse, 
or failure to clearly and convincingly commit to discontinue such misuse. 
 
The record established the disqualifying conditions under AG ¶¶ 25(a), (c), (f), 
and (g) requiring additional inquiry about the possible applicability of mitigating 
conditions under 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; 
 
(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 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; 
 
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 
 
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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).  
 
The above two mitigating conditions apply. The illegal marijuana use happened 
between 2007 and 2010. There is no additional evidence of any substance misuse or 
issues of concern after 2010. It has been over seven years since Applicant’s last 
substance misuse.  
 
In his 2015 SCA, Applicant stated his intent to continue to use marijuana in the 
future. At hearing, Applicant credibly testified that after his attorney made him realize 
the adverse security clearance consequences of substance misuse, he changed his 
mind and is now committed to no future use. To substantiate his commitment, Applicant 
signed a statement of intent to abstain from illegal drug involvement, and acknowledged 
that any future illegal drug involvement would be grounds for revocation of his clearance 
eligibility. 
 
I note that Applicant continues to associate with some drug-using associates and 
relatives. However, I believe that going through the clearance process has educated 
Applicant and he has learned his lesson. He now understands the adverse impact such 
contacts will have on his eligibility to continue holding a clearance and his job. I 
anticipate he will disassociate from drug-using associates and relatives, and will avoid 
environments where illegal drugs are used. 
 
Whole-Person Concept 
 
 I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case, and under the whole-person 
concept. SEAD 4, App. A, ¶¶ 2(a), 2(d) and 2(f). I have incorporated my comments 
under Guideline H in my whole-person analysis. Some of these factors were addressed 
under that guideline, but some warrant additional comment. 
 
Applicant is a 35-year-old employee of a federal contractor. He has worked for 
his employer since 2014, and has held a clearance since 2005. He is highly regarded by 
his supervisor and peers for his honesty, integrity, and dependability. Applicant 
disclosed his substance misuse in his 2015 SCA. There is no evidence of any 
substance misuse after 2010. He credibly testified that he is committed to not using any 
illegal drugs in the future. To substantiate his commitment, he signed a statement of 
intent to abstain from illegal drug involvement, and acknowledged that any future illegal 
drug involvement would be grounds for revocation of his clearance eligibility. The 
substance misuse security concerns are mitigated. 
 
 
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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:      FOR APPLICANT 
 
  Subparagraphs 1.a and 1.b:    For Applicant 
 
Conclusion 
 
In light of all the circumstances presented by the record in this case, it is clearly 
consistent with the national security interests of the United States to continue 
Applicant’s eligibility for a security clearance. Clearance granted. 
 
 
 
____________________________ 
JUAN J. RIVERA 
Administrative Judge