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      DEPARTMENT OF DEFENSE 
 DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: ) 
) 
) ISCR Case No. 16-02708 
) 
) 
Applicant for Security Clearance ) 
Appearances 
For Government: Adrienne Driskill, Esq., Department Counsel 
For Applicant: Catie E. Young, Esq. 
March 28, 2018 
______________ 
Decision 
______________ 
MOGUL, Martin H., Administrative Judge: 
Statement of the Case 
On January 3, 2017, in accordance with Department of Defense (DoD) Directive 
5220.6, as amended (Directive), the DoD issued Applicant a Statement of Reasons 
(SOR) alleging facts that raise security concerns under Guidelines H. and E.1 The SOR 
further informed Applicant that, based on information available to the government, DoD 
adjudicators could not make the preliminary affirmative finding it is clearly consistent 
with the national interest to grant or continue Applicant’s security clearance. 
On March 6, 2017, Applicant submitted a written reply to the SOR (RSOR), and 
requested a hearing before an administrative judge. The case was assigned to me on 
April 19, 2017. The Defense Office of Hearings and Appeals (DOHA) issued a notice of 
hearing on April 19, 2017, setting the hearing for June 7, 2017. The hearing was 
convened as scheduled on that date.  
1 I considered the previous Adjudicative Guidelines, effective September 1, 2006, as well as the new 
Adjudicative Guidelines, effective June 8, 2017. My decision would be the same if the case was 
considered under the previous Adjudicative Guidelines, effective September 1, 2006. 
 
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At the hearing, the Government offered Exhibits 1 through 3, which were 
admitted without objection. Applicant testified on his own behalf and presented 
documents, which were identified and entered into evidence without objection as 
Exhibits A through L. One additional witness testified on behalf of Applicant. DOHA 
received the transcript of the hearing (Tr) on June 16, 2017. Based upon a review of the 
pleadings, exhibits, and the testimony of Applicant and the witness, eligibility for access 
to classified information is granted.  
 
Findings of Fact 
 
 After a thorough and careful review of the pleadings, and exhibits, I make the 
following findings of fact:  
 
Applicant is 25 years old. He is married, and he has no biological children, but 
one stepdaughter. He is a high school graduate. Applicant served in the United States 
Navy from 2009 to 2013, and he received an Honorable Discharge. Applicant is 
employed by a defense contractor as a Linux Systems Administrator, and he seeks a 
DoD security clearance in connection with his employment in the defense sector.  
 
Guideline H - Drug Involvement   
 
 The SOR lists four allegations (1.a. through 1.d.) under Adjudicative Guideline H.  
 
 1.a. The SOR alleges that Applicant used marijuana with varying frequency from 
approximately June 2006 to June 2008. Applicant admitted this allegation in his RSOR. 
He wrote that he experimented with marijuana use when he was 16 or 17 years of age, 
while he was living in Vietnam. He described two occasions when he used the 
marijuana. He further wrote that he has not consumed marijuana in almost 10 year, nor 
does he knowingly associate with any individual who does use it.  
 
 At the hearing, Applicant testified that he used marijuana on two occasions, once 
in in about 2006 when he was living with his family in Vietnam, and once in the United 
States in 2008, when he was about 16 or 17. Upon further examination, Applicant 
remembered on additional use in 2007. Applicant credibly testified that he has not used 
marijuana since 2008, and he has no intention to use it in the future. (Tr at 44-48, 65.) 
Applicant also submitted a signed written statement, indicating his intent to never use 
any illegal drugs in the future, subject to immediate revocation of his security clearance. 
(Exhibit A.)    
 
1.b. The SOR alleges that Applicant used Oxycodone one time in February 2011, 
after he was granted a security clearance. Applicant admitted this allegation in his 
RSOR. He wrote that he used it one time without a prescription for a previous injury. 
Applicant further wrote that he has not used any prescription medication without a 
proper prescription since that time in 2011.  
 
 
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At the hearing, Applicant testified that he was granted a security clearance when 
he was 18, in 2009, shortly after he joined the Navy. He has retained his clearance 
since that time. (Tr at 35-36.) Applicant testified that while he was in the Navy, he 
injured his knee after physical training and he asked a friend if he had something to help 
him with the pain. The friend gave him one Oxycodone pill which he took. Thereafter, 
Applicant never took another Oxycodone pill without a prescription. He intends to never 
use a prescription drug in the future if it is not prescribed. (Tr at 52-55.)  
  
1.c. The SOR alleges that Applicant used Spice with varying frequency from July 
2012 to October 2012, after he was granted a security clearance. Applicant admitted 
this allegation in his RSOR. He wrote that he used Spice on two occasions in 2012. He 
contended that he was never aware that the use of Spice was prohibited while he was 
in the Navy, and he did not learn that it was prohibited until long after he left the Navy in 
2013. Since 2013, he has not been associated with the individuals with whom he used 
the Spice.  
 
At the hearing, Applicant testified that since his friend purchased the Spice at a 
tobacco store, he was not aware that it was illegal. Applicant did not like the effect of the 
Spice on him, and he has never used it since 2012. (Tr at 56-58.)  
 
1.d. The SOR alleges that Applicant purchased marijuana one time in 
approximately March 2007. Applicant admitted this allegation in his RSOR. He wrote 
that he purchased the marijuana on one occasion when he was 16 and living in 
Vietnam. He added that this was nearly 10 years ago, and he still regrets the decision to 
purchase the marijuana.  
 
At the hearing Applicant testified that he and his friends spent about $10 for the 
marijuana that they purchased on that one occasion. (Tr at 45.)  
 
Applicant testified that his last use of any illegal substance was in 2012, and he 
has no intention of using any illegal substance in the future. (Tr at 59.) He explained that 
he did not believe he was violating the rules regarding holding a security clearance 
when he used the Oxycodone and Spice, since he used the Oxycodone one time to 
help him with an injured knee, and he did not even know that the Spice was illegal. He 
testified that he now recognizes how important it is to only take legally prescribed 
prescription medication for injuries and to make certain if a substance is illegal, and not 
use it if it is illegal. (Tr at 59-60.)   
 
Guideline E - Personal Conduct 
 
 The SOR lists three allegations (2.a. through 2.c.) regarding Personal Conduct, 
under Adjudicative Guideline E. 
 
2.a. The SOR alleges that Applicant deliberately falsified material facts on an 
Electronic Questionnaires for Investigations Processing (e-QIP) that he executed on 
October 22, 2009. He was asked questions regarding his use of any illegal drugs within 
the last seven years and he answered “No.” He failed to identify the usage of marijuana 
 
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as alleged in 1.a., above, which he did identify on his 2014 e-QIP. Applicant admitted 
this allegation in his RSOR. He wrote that he was advised by his Navy recruiter to be 
less than candid regarding his previous marijuana usage.  
 
Applicant testified that when he first met the Navy recruiter about enlisting in the 
Navy, Applicant informed the recruiter that he had previously used marijuana. Applicant 
claimed that the recruiter informed Applicant that it would be in Applicant's best interest 
to not disclose the information about his marijuana usage. Applicant stated that, based 
on the recruiter’s advice, he did not disclose his past marijuana use on his e-QIP. After 
Applicant was separated from the Navy in 2012. When he completed a second e-QIP in 
2014, he decided that he should include his previous marijuana usage, which he did.  
When he was subsequently interviewed by a government investigator about his 
previous drug usage, Applicant testified that he was completely honest, and he would 
continue to be in the future. (Tr at 38- 43.)  
 
2.b. The SOR alleges that Applicant deliberately falsified material facts on an 
Electronic Questionnaires for Investigations Processing (e-QIP) that he executed on 
October 22, 2009. He was asked questions regarding his illegal possession, purchase, 
manufacture, trafficking, production, transfer, shipping, receiving, handling or sale of 
any controlled substance within the last seven years and he answered “No.” He failed to 
identify the purchase of marijuana as alleged in 1.d., above, which he did identify on his 
2014 e-QIP. Applicant admitted this allegation in his RSOR. He wrote that he was 
advised by his Navy recruiter to be less than candid regarding his one-time marijuana 
purchase.  
 
2.c. The SOR alleges that Applicant’s conduct as alleged in paragraph 1, above, 
also constitutes personal conduct concerns.  
 
Mitigation 
 
 Applicant submitted several documents in mitigation. These included but were 
not limited to: the results of a drug test prior to his beginning his current employment, 
confirming he was not under the influence of any illegal drug (Exhibit B); five positive 
and laudatory character letters (Exhibit E); Applicant's DD Form 214 (Exhibit H); and 
awards and certificates Applicant has earned (Exhibit I). Finally, a friend and co-worker 
of Applicant testified that except for what he was told by Applicant, he has never 
personally seen or been aware of Applicant's using any illegal substance. (Tr at 19-30.)  
  
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. 
 
 
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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 AG ¶ 2 describing the adjudicative process. The 
administrative judge’s overarching 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 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 
responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or 
mitigate facts admitted by the applicant or proven by Department Counsel, and has the 
ultimate burden of persuasion as to obtaining a favorable clearance decision.”  
 
 A person who applies for access to classified information seeks to enter 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 Executive Order (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 
 
 AG ¶ 24 expresses the security concern pertaining to Drug Involvement: 
 
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 judgment and because it raises questions about a person’s ability 
or willingness to comply with laws, rules, and regulations.  
 
 
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 I have considered all of the evidence in this case and the disqualifying conditions 
under Drug Involvement AG ¶ 25, and the following are potentially applicable:  
 
(a) any substance misuse;   
 
(c) Illegal possession of a controlled substance, including cultivation, 
processing, manufacture, purchase, sale, or distribution; or possession of 
drug paraphernalia; and  
 
(f) any illegal drug use while granted access to classified information or 
holding a sensitive position.  
 
 Applicant used marijuana on three occasions before holding a DoD security 
clearance, and Oxycodone one time and Spice two times, while holding a DoD security 
clearance. The Government presented sufficient information to support the factual 
allegations under SOR ¶ 25. (a), (c), and (f).  
 
 I have also considered all of the mitigating conditions under Drug Involvement 
AG ¶ 26, and the following are potentially applicable:  
 
(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; 
and 
 
(b) the individual acknowledges his or her drug involvement and 
substance misuse. . . and has established a pattern of abstinence . . .  
 
Applicant only used marijuana three times before holding a security clearance 
and he has not used any illegal substance while holding a security clearance since 
2012, more than 5 years ago. He also testified credibly that he intends to never use any 
illegal substance in the future and to never use a prescribed medication without a 
proper prescription, and he exhibited sincere remorse for his past usage. He also 
offered into evidence his letter of intent never to use illegal substances again. Finally, I 
considered Applicant's very positive letters of recommendation and other mitigating 
documents. Because of these reasons, I find that mitigating factors ¶ 26. (a) and (b) are 
applicable and controlling in this case. I therefore find Guideline H for Applicant.  
 
Guideline E, Personal Conduct  
 
The security concern for the personal conduct guideline 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 information. Of special interest is any failure to provide truthful 
 
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and candid answers during the security clearance process or any other 
failure to cooperate with the security clearance process. 
 
 AG ¶ 16 describes conditions that could raise a security concern and may be 
disqualifying. The following disqualifying condition is applicable: 
 
(a) deliberate omission, concealment, or falsification of relevant facts from 
any personnel security questionnaire, personal history statement, or 
similar form used to conduct investigations, determine employment 
qualifications, award benefits or status, determine security clearance 
eligibility or trustworthiness, or award fiduciary responsibilities. 
 
 Appellant failed to disclose his drug usage and purchase on his 2009 e-QIP. The 
Government presented sufficient information to support the factual allegations under 
disqualifying condition AG ¶ 16(a). However Applicant did list all of his drug use on his 
2014 e-QIP. Also, I find that Applicant’s explanation that he was instructed by his Navy 
recruiter to be less than candid is credible, based on previous information about certain 
military recruiters’ practices, and I do not believe that Applicant's primary goal was to 
mislead the Government. Therefore, I find mitigating condition AG ¶ 17(b), “the . . .  
concealment was caused or significantly contributed to by advice of legal counsel or of 
a person with professional responsibilities for advising or instructing the individual 
specifically concerning security processes” is applicable in this case. Guideline E is 
found for Appellant.   
 
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(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. 
 
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 
facts and circumstances surrounding this case. I have incorporated my comments under 
Guidelines H and E in my whole-person analysis.  
 
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Overall, the record evidence leaves me with no significant questions and doubts 
as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, 
I conclude Applicant has mitigated the Drug Involvement and Personal Conduct security 
concerns under the whole-person concept. 
 
Formal Findings 
 
 Formal findings for or against Applicant on the allegations set forth in the SOR, 
as required by ¶ E3.1.25 of the Directive, are: 
 
Paragraph 1, Guideline H:   FOR APPLICANT 
 
  Subparagraph 1.a.-1.d.:    For Applicant 
 
Paragraph 2, Guideline E:   FOR APPLICANT 
 
  Subparagraph 2.a.-2.c.:    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 national security eligibility 
for a security clearance. Eligibility for access to classified information is granted. 
 
 
 
 
Martin H. Mogul 
Administrative Judge