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               DEPARTMENT OF DEFENSE 
     DEFENSE OFFICE OF HEARINGS AND APPEALS 
 
 
 
 
In the matter of:  ) 
 ) 
    )   ISCR Case No. 17-02493 
   ) 
Applicant for Security Clearance  ) 
 
 
Appearances 
 
For Government: Ross Hyams, Esq., Department Counsel 
For Applicant: Pro se 
 
 
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Decision 
______________ 
 
 
CURRY, Marc E., Administrative Judge: 
 
Applicant’s last use of marijuana occurred less than two years ago, after he had 
been granted a security clearance. Consequently, although he deserves credit for reporting 
his most recent usage, it is too soon to conclude that he has mitigated the security 
concerns. Clearance is denied.   
 
Statement of the Case 
 
 On August 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, 
explaining why it was unable to find it clearly consistent with the interests of national 
security to grant or continue security clearance eligibility. 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 
National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified 
Information (AG) effective within the DOD on June 8, 2017. 
 
 
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On August 30, 2017, Applicant answered the SOR allegations, admitting all of the 
allegations except those alleged in Paragraph 2. He requested a decision on the written 
record instead of a hearing. On September 28, 2017, Department Counsel prepared a File 
of Relevant Material (FORM). Applicant received the FORM on November 11, 2017, and 
filed a response within the time allotted. The case was assigned to me on January 17, 
2018.  
 
Evidentiary Ruling 
 
 Item 6 in the FORM is a Report of Investigation (ROI) summarizing Applicant’s 
Personal Subject Interview conducted on September 22, 2014. In the FORM, Department 
Counsel informed Applicant that such reports are typically inadmissible without 
authenticating witnesses, and that he could either object to its admissibility, or clarify any 
inaccuracies Directive ¶ E3.1.20. Applicant did not address this issue in his response to the 
FORM. Consequently, I have considered this document in my disposition of this case.  
 
Findings of Fact 
 
 Applicant is a 30-year-old single man. He graduated from college in 2015, and 
works for a federal contractor as an engineer. He began working for his employer in 2014 
as a college intern. (Item 4 at 13) 
 
 In 2005, when Applicant was in high school, he had to undergo multiple oral 
surgeries. Applicant’s physician prescribed him an “overly generous portion of opioids, far 
in excess of what was needed to cope with the surgeries.” (Response at 1) Applicant’s 
parents did not dispose of the leftover opioids because they believed it was wasteful to 
throw away medicine. Subsequently, Applicant began to use the opioids recreationally, and 
to self-medicate, using them to cope with emotional problems related to his high school 
social life. Applicant gradually stopped abusing prescription medication after he began 
experiencing side effects such as bloating, constipation, and sluggishness. He stopped 
abusing the prescription pain medication completely in 2008 and has not used it in nearly 
ten years. (Item 6 at 4) 
 
 Applicant smoked marijuana from May 2005 to February 2013. His use was heaviest 
in high school and his first two years of college, when he smoked it two to three times per 
week. Gradually, his use diminished to a few times per month. Applicant received a 
security clearance at or about the time he began working for his current employer in 2014. 
His employer informed him that marijuana use was “absolutely incompatible with the job.” 
(Item 3 at 3) 
 
 In July 2016, Applicant traveled to an other state for vacation. Marijuana was legal in 
this state, and a marijuana dispensary was across the street from his hotel. Curious, he 
went to the dispensary, purchased some marijuana-infused cookies, and ate a few of them. 
(Item 4 at 36; Item 7 at 2) Applicant thought that it was acceptable to use this marijuana 
product because it was legal in the state where he was vacationing. When Applicant 
returned home, he told a coworker about his experience. The coworker told him that 
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marijuana use while working for their employer was forbidden regardless of its legality from 
state to state. Applicant then reported his use to his employer. (Item 7 at 3)  
 
 Applicant has not used marijuana since the episode on vacation. Although he 
remains baffled about the divergence between federal law and some states’ laws regarding 
the legality of marijuana use, he now understands “that there are special prohibitions 
specifically against people with a clearance using federal controlled substances regardless 
of the substances’ legality where it is consumed, and that these prohibitions have 
reasoning [sic] beyond avoiding illegal activity.” (Response at 1) 
 
 Applicant continues to associate with friends who use marijuana. He “has an 
understanding with [them] that [he does] not use marijuana and so they do not offer them 
any.” (Item 3 at 8) 
 
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. According to AG ¶ 2(a), the entire process is an evaluation 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 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. 
 
 
 
 
 
 
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Analysis 
 
Guideline H, Drug Involvement 
 
 The security concern under this guideline is as follows: 
 
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. (AG ¶ 24)  
 
 Applicant’s abuse of prescription drugs and use of marijuana, including one episode 
of marijuana use after the grant of a security clearance, triggers the application of the 
following disqualifying conditions under AG ¶ 25: 
 
 (a) any substance misuse; and  
 
 (f) any illegal drug use while granted access to classified information or 
holding a sensitive position. 
 
 The following mitigating conditions under AG ¶ 26 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, 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; 
(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; and 
(c) abuse of prescription drugs was after a severe or prolonged illness 
during which these drugs were prescribed, and abuse has since 
ended. 
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 Applicant’s prescription drug abuse occurred after he was over-prescribed drugs to 
ameliorate the pain related to multiple oral surgeries that he underwent as an adolescent. 
After he recovered from the surgeries, he stockpiled the extra pills, and began using them  
for their euphoric side effects. Once he began experiencing negative side effects, he 
stopped using them. He has not abused any prescription drugs in nearly ten years and has 
no intent to do so in the future. The passage of time since the last abuse and the unique 
circumstances surrounding his introduction to prescription pain medication, render the 
likelihood of recurrence unlikely. I conclude that AG ¶ 25(c) applies. Applicant has 
mitigated subparagraph 1.d. 
 Applicant’s heaviest marijuana use occurred ten years ago when he was in high 
school and during his first two years of college. It has become increasingly sporadic since 
then. After graduating from college, he became a full-time employee of his current 
employer where he had previously been interning. His most recent use of marijuana, 
however, occurred less than two years ago after the grant of a security clearance.  
 Applicant contends that he was unaware that marijuana use posed a security 
concern in a state where it is legal. This contention has minimal probative value given that 
his employer told him unequivocally that marijuana use was incompatible with the job. 
Under these circumstances, Applicant’s last use of marijuana is too recent to conclude that 
he has mitigated the security concern. 
 
Guideline E, Personal Conduct 
 
 Under this guideline, “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.” (AG ¶ 15) Paragraph 2 is merely a cross-allegation of the drug involvement 
allegations in Paragraph 1, and is sufficiently addressed in the drug involvement section of 
this decision, above. Therefore, I will not address it separately here.  
 
Whole-Person Concept 
 
In assessing the whole person, the administrative judge must consider the totality of 
an applicant’s conduct and all relevant circumstances in light of the nine adjudicative 
process factors in AG ¶ 2(d).1 The majority of Applicant’s marijuana use occurred several 
years ago. Any positive inference generated by this fact is undercut by his use of 
                                                 
1 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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marijuana, less than two years ago, after the grant of his security clearance. Under these 
circumstances, it is too soon to conclude Applicant has mitigated the security concerns. 
 
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:   AGAINST APPLICANT 
 
Subparagraphs 1.a – 1.c:   Against Applicant 
 
Subparagraph 1.d:    For Applicant 
 
Subparagraph 1.e:    Against Applicant 
 
Paragraph 2, Guideline E:   AGAINST APPLICANT 
 
Subparagraph 1.a:    Against Applicant 
 
Conclusion 
 
In light of all of the circumstances, it is not clearly consistent with the interests of 
national security to grant or continue Applicant’s eligibility for a security clearance. Eligibility 
for access to classified information is denied. 
 
 
_____________________ 
Marc E. Curry 
Administrative Judge