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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
In the matter of: ) 
 ) 
 [Name Redacted]  )  ISCR Case No. 16-03460 
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Julie Mendez, Esquire, Department Counsel 
Brittany Muetzel, Esquire, Department Counsel 
For Applicant: Jesse Winograd, Esquire 
 
 
______________ 
 
Decision 
______________ 
 
 
HOGAN, Erin C., Administrative Judge: 
 
Applicant submitted an application for a security clearance (e-QIP) on March 18, 
2015. On January 7, 2017, the Department of Defense Consolidated Adjudications 
Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant detailing the 
security concerns under Guideline H, Drug Involvement; and Guideline E, Personal 
Conduct. 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) 
implemented within the Department of Defense on September 1, 2006.  On June 8, 
2017, new AG were implemented, which supercede the AG implemented on September 
1, 2006. My decision would be the same under either guideline.  
  
 On March 2, 2017, Applicant answered the SOR and requested a hearing before 
an administrative judge. Department Counsel was ready to proceed on March 23, 2017. 
I was assigned the case on October 10, 2017. On October 11, 2017, a Notice of 
Hearing was issued, scheduling the hearing for November 30, 2017. The hearing was 
held as scheduled. During the hearing, the Government offered one exhibit which is 
admitted as Government (Gov) Exhibit 1. Applicant testified, called two witnesses and 
offered one exhibit which is admitted as Applicant Exhibit (AE) A, without objection. An 
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additional document was offered after the hearing and was admitted as AE B without 
objection. The transcript was received on December 8, 2017. Based upon a review of 
the case file, pleadings, and exhibits, eligibility for access to classified information is 
granted. 
 
Findings of Fact 
 
 In his answer to the SOR, Applicant admits to the allegations.    
 
Applicant is a 40-year-old employee for a DOD contractor who seeks a security 
clearance. He has been employed with the DOD contractor since March 2015. This is 
his first time applying for a security clearance. He has a law degree. He is married and 
has two daughters, ages three and one. (Tr.12-13; Gov 1) (Note: The facts in this 
decision do not specifically describe employment, names of witnesses, or locations in 
order to protect Applicant and his family’s privacy. The cited sources contain more 
specific information.)  
 
On March 18, 2015, Applicant submitted an electronic questionnaire for 
investigations processing (e-QIP). This was his first time applying for a security 
clearance.  In response to Section 23 – Illegal Use of Drugs or Drug Activity, Applicant 
listed that he used and purchased marijuana on a recreational basis from April 1994 to 
February 2015.  He noted he used marijuana occasionally throughout his adult life. (Gov 
1, section 23) Applicant stated this in regarding his intent to use marijuana in the future: 
 
I do not intend to use marijuana in the future. I understand the importance 
of refraining from using marijuana with my new position, and I do not want 
to jeopardize my security clearance by continuing to use marijuana.  
 
Applicant did not use marijuana from March 2015 to some time in the summer of 
2015. He started using marijuana to relax after work. He would take one or two hits after 
getting home from work. He occasionally used marijuana with friends and relatives. (Tr. 
43-45; Response to SOR) 
 
In April 2016, Applicant was asked to complete a security questionnaire for a 
project.  (Note: This appears to have been the DOD contractor’s personal security 
eligibility evaluation form and not an e-QIP).  One of the questions on the form asked 
about marijuana consumption within the past year. Applicant answered that he had 
used marijuana earlier that same month. The contractor security team asked for further 
explanation. Applicant responded in an e-mail that he has not purchased marijuana 
since July 2014.  He used marijuana during the current month. He intended not to use 
marijuana after March 2015, but resumed usage in the summer 2015. He was not 
aware that he was prohibited from using marijuana while his security clearance 
application was being processed. He only used marijuana in the jurisdiction where he 
lives, which has very permissive marijuana laws. (Response to SOR) 
 
Applicant admits his poor judgment in resuming marijuana use after submitting 
his security clearance application.  Once he discovered his mistake, Applicant stopped 
using marijuana and has not used marijuana since April 2016. (Tr. 14, 31-34) 
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During the hearing, Applicant testified that he was not addicted to marijuana. His 
marijuana usage never created problems in his life. He testified that he was not aware 
that he was required to stop using marijuana after he submitted his security clearance 
application. Once he learned it was a problem, he stopped using marijuana. It was easy 
for him to stop using marijuana. Applicant’s primary focus is his family, including his two 
young children. He does not intend to use marijuana again. Since he stopped using 
marijuana, he feels more clear-headed. He admits to making a mistake by not taking 
seriously the requirement to refrain from using marijuana after submitting his security 
clearance application. (Tr. 30-34) 
 
Applicant began using marijuana at age 17. He describes his marijuana use in 
high school as experimental. During his college years, between 1995 to 1999, he used 
marijuana every other week. After college, he used marijuana several times a month. 
He worked for a few years and began law school in 2006. He occasionally had periods 
where he did not use marijuana, but sometimes he would use marijuana daily. He 
describes his daily use as taking two to three hits.  After law school, he used marijuana 
on an occasional basis. He occasionally used marijuana with friends and family. He 
would use a little bit of marijuana to relax. He now avoids situations where there is a 
potential for marijuana use.  (Tr. 36-41) 
 
Applicant understood that marijuana use would be a problem if he held a security 
clearance.  He understood that his marijuana use was illegal at the federal level. He 
never thought marijuana use was a serious crime. He never thought his marijuana use 
would have an impact on his career. He has never been arrested. (Tr. 47-50)  
  
On March 2, 2017, Applicant submitted a statement indicating his intent to refrain 
from any future drug use. He accepts that his security clearance will be revoked if he 
violates this pledge.  (AE A) Applicant intends to follow the standards applied by federal 
law. His activities and motivations are now different. He will do everything in his power 
to be a law-abiding citizen and take care of his family. (Tr. 52-53)   
 
Whole-Person Factors 
 
 Applicant’s wife testified on his behalf. She met Applicant eleven years ago while 
they attended law school. They have been married seven years. She is a stay-at-home 
mother. She is aware of Applicant’s marijuana use. She believes he stopped using 
marijuana two years ago. Applicant cares about their two children and is concerned 
about his job.  In his leisure time, he plays drums with several of his classmates from 
law school. None of them use marijuana. She recalls Applicant used marijuana on a 
daily basis during his last year in law school. He started to smoke less marijuana when 
they began to have children. She used to use marijuana, but no longer uses it. (Tr. 12 – 
20; AE B) 
  
  One of Applicant’s team members testified on his behalf. He has worked with 
Applicant since March 2015. He describes Applicant as one of the better performers in 
the office. Clients request that Applicant be assigned to their cases.  He is aware of the 
issues in the SOR and maintains that the quality of Applicant’s work has remained 
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consistent. Applicant works with sensitive information involving high profile cases. He 
has had no security violations.  (Tr. 21-29) 
 
DOD and Federal Government Policy on Marijuana Use  
 
  On October 25, 2014, the Director for National Intelligence, issued a 
memorandum titled, “Adherence to Federal Laws Prohibiting Marijuana Use” addressing 
concerns raised by the decriminalization of marijuana use in several states and the 
District of Columbia. The memorandum states that changes to state and local laws do 
not alter the existing National Security Adjudicative Guidelines. “An individual’s 
disregard for federal law pertaining the use, sale, or manufacture of marijuana remains 
adjudicatively relevant in national security determinations.”  
 
  On May 26, 2015, the Director of the United States Office of Personnel 
Management (OPM) issued a memorandum titled, “Federal Laws and Policies 
Prohibiting Marijuana Use.” The Director of OPM acknowledged that several 
jurisdictions have decriminalized the use of marijuana, allowing the use of marijuana for 
medicinal purposes and/or for limited recreational use but states that Federal law on 
marijuana remains unchanged. Marijuana is categorized as a controlled substance 
under Schedule I of the Controlled Substances Act. Thus knowing or intentional 
marijuana possession is illegal, even if the individual has no intent to manufacture, 
distribute, or dispense marijuana.  
    
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 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 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 national security 
eligibility will be resolved in favor of the national security.” In reaching this 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 
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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 as to obtaining 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 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).   
 
 
Guideline H, Drug Involvement 
 
The security concern relating to the guideline for Drug Involvement is set out in 
AG & 24:       
  
The illegal use of controlled substances, to include the misuse of  
prescription drug 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 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.  
 
The guideline notes several disqualifying conditions that could raise security 
concerns. I find the following drug involvement disqualifying conditions apply to 
Applicant’s case.  
 
AG & 25(a) any substance misuse; and 
 
AG & 25(c) illegal possession of a controlled substance, including 
cultivation, processing, manufacture, purchase, sale, or distribution; or 
possession of drug paraphernalia. 
 
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Applicant used marijuana with varying frequency from 1976 to the summer of 
2016. He occasionally purchased marijuana for his personal use. AG & 25(a) and AG & 
25(c) apply.   
  
The Government’s substantial evidence and Applicant’s own admissions raise 
security concerns under Guideline H, Drug Involvement. The burden shifted to Applicant 
to produce evidence to rebut, explain, extenuate, or mitigate the security concerns. 
(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. September 22, 2005))  
  
Guideline H also includes examples of conditions that could mitigate security 
concerns arising from drug involvement. The following mitigating conditions potentially 
apply to the Applicant’s case:  
 
AG ¶ 26(a) the behavior happened so long ago, was so infrequent, or 
occurred under such circumstances that it is unlikely to recur and does not 
cast doubt on the individual=s current reliability, trustworthiness, or good 
judgment; and  
  
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 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.  
   
 AG ¶ 26(a) does not apply because of Applicant’s long history of marijuana use. 
His most recent usage occurred after he submitted his security clearance application in 
March 2015, which raised questions about his judgment. However, Applicant has not 
used marijuana for close to two years and he was completely honest about his 
marijuana use, which shows trustworthiness.  
 
 AG ¶ 26(b) applies. Applicant stopped using marijuana in April 2016, when he 
discovered that DOD was serious about illegal marijuana use. Admittedly, he should 
have been aware that marijuana use was not condoned when applying for a security 
clearance, but this was his first time applying for a security clearance, and he lives in a 
jurisdiction with permissive marijuana laws. In April 2017, he provided a signed 
statement of intent to refrain from marijuana use. Applicant was truthful about his 
marijuana use and demonstrated an appropriate pattern of abstinence. He is now more 
focused on supporting his family and raising his two daughters.  
 
 Applicant met his burden to mitigate the security concerns raised under Guideline 
H, Drug Involvement. Applicant is warned that any future illegal marijuana use may 
result in the revocation of his security clearance.  
 
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Guideline E, Personal Conduct 
 
 The security concern relating to the guideline for Personal Conduct is set out 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 the national 
security or adjudicative processes.  
 
 The following disqualifying conditions potentially apply to Applicant’s case: 
 
AG ¶ 16(c) credible adverse information in several adjudicative issue 
areas that is not sufficient for an adverse determination under any other 
single guideline, but which, when considered as a whole, 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.   
  
 AG ¶ 16(c) applies to Applicant’s history of marijuana use as well as his decision 
to continue using marijuana after submitting a security clearance application in March 
2015. On that same application, he stated that he did not intend to use marijuana. 
Applicant’s past conduct raises issues about his judgment, reliability, and willingness to 
comply with rules and regulations. This raises doubts as to Applicant’s ability to protect 
classified information.   
 
 Under Guideline E, the following mitigating conditions potentially apply in 
Applicant’s case: 
 
AG ¶ 17(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 is unlikely to recur and does not cast doubt on the 
individual’s reliability, trustworthiness, or good judgment; and 
   
AG ¶ 17(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.  
 
 Both mitigating conditions apply. While Applicant’s resumption of marijuana use 
several months after submitting a security clearance application demonstrated poor 
judgment, Applicant was honest about his marijuana use and once he understood that 
his marijuana use was an issue, he stopped. He has not used marijuana for close to two 
years. Applicant is now a father to two young daughters.  He realizes his focus should 
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be on raising them and he no longer uses marijuana. He demonstrated that he is 
reliable, trustworthy, and has good judgment.   
 
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.        
 
There are reasons that support not granting a security clearance to Applicant. 
Applicant is aware that he violated federal criminal statutes pertaining to the use and 
purchase of marijuana. His continued use of marijuana after submitting his March 2015 
security clearance application and after expressing an intent to stop using marijuana on 
his security clearance application raises serious questions about Applicant’s judgment, 
reliability and trustworthiness.   
 
I find the mitigating reasons outweigh the disqualifying reasons in Applicant’s 
case.  His honesty in disclosing his marijuana use during the security clearance process 
supports that he is trustworthy. He is a first-time applicant for a security clearance and 
did not appear to appreciate the seriousness of using marijuana. Once he understood 
the significance of the incompatibility of marijuana use and holding a security clearance, 
he stopped using marijuana and has not used marijuana for close to two years. He 
signed a statement of intent to refrain from using marijuana in the future and 
acknowledged that he would lose his security clearance if he is discovered using 
marijuana in the future. Applicant has a wife and two young daughters to support. His 
outlook has changed. The favorable reviews of one of his project leads indicate that his 
job performance is excellent.    
 
I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case. Applicant has learned a significant 
lesson.  His expressed intent to refrain from illegal marijuana use is credible. Concerns 
raised by Applicant’s illegal marijuana use are mitigated with the warning that any future 
illegal marijuana use may result in the revocation of Applicant’s security clearance.   
 
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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 – 1.b:   For Applicant 
 
 Paragraph 2, Guideline E:     FOR APPLICANT    
   
  Subparagraph 2.a:    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.  Applicant is warned 
that any future use of illegal substances may result in the revocation of his security 
clearance.  
 
                                                
_________________ 
ERIN C. HOGAN 
Administrative Judge