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                            DEPARTMENT OF DEFENSE                                                  
             DEFENSE OFFICE OF HEARINGS AND APPEALS                               
           
             
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 17-03019 
  ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Tara Karoian, Esq. 
For Applicant: Todd Hinnen, Esq. 
 
08/27/2018 
______________ 
  
Decision 
______________ 
 
DAM, Shari, Administrative Judge: 
 
 Applicant used marijuana with varying frequency from December 1971 to August 
2015. He did not hold a security clearance during his involvement with marijuana. He 
mitigated the resulting security concerns. Based upon a review of the record as a whole, 
national security eligibility for access to classified information is granted. 
 
History of Case 
 
On September 15, 2015, Applicant submitted his first application for a security 
clearance (SCA). On September 29, 2017, the Department of Defense Consolidated 
Adjudications Facility (DOD CAF) issued Applicant a Statement of Reasons (SOR) 
detailing security concerns under Guideline H (Drug Involvement and Substance Misuse). 
Applicant answered the SOR in writing on November 3, 2017 (Answer), and requested a 
hearing before an administrative judge. 
 
 The Defense Office of Hearings and Appeals (DOHA) assigned the case to me on 
January 26, 2018. DOHA issued a Notice of Hearing on March 14, 2018, setting the 
hearing for April 14, 2018. Department Counsel offered Government Exhibits (GE) 1 and 
2 into evidence. Applicant testified and offered Applicant Exhibits (AE) A through E into 
evidence. All exhibits were admitted. DOHA received the hearing transcript (Tr.) on May 
3, 2018.  
 
 
 
 
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Findings of Fact 
 
 Applicant is 61 years old. He has been married since 1985. He and his wife have 
two adult children. In 1982, he earned a bachelor’s degree; in 1996, he earned a master’s 
degree; and in 2006, he completed a doctorate degree. He has consistently lived in his 
current state since about 1996, and for some times before that. (GE 1)  
 
 From 1996 to 2008, Applicant held a position of significant responsibility.  From 
2008 to 2011, he was a senior officer in a regional corporation. From 2011 to 2015, he 
was a senior officer for a company and taught part-time. In July 2015, he accepted a 
leadership position within a large organization. He also serves on federal and local 
commissions. (Tr. 19-24; GE 1) 
 
 Applicant disclosed in his September 2015 SCA that he used marijuana from 
December 1971 to August 2015. He reported that he had “one or two puffs on the 
weekend.” He stated that he intended to use marijuana moderately in the future because 
it was legal in his state, unless he was “prohibited from using it in order to qualify for a 
security clearance.” (GE 1 at 28-29.)  
 
 On June 22, 2017, Applicant was interviewed by an investigator from the Office of 
Personnel Management (OPM). He told the investigator that after filling out the SCA, he 
has thought more carefully about using marijuana and has not used it since August 2015, 
and does not intend to use it in the future. (Tr. 24-26; GE 2; AE A) Applicant values 
honesty, and based on that principle, he disclosed his history of marijuana use to the 
federal government and his employer. (Tr. 49) 
  
 Applicant began using marijuana when he was 14 years old and in high school. He 
continued using it over the years once or twice a week on the weekend, but not every 
weekend. He used it to relax. There were long periods of time when he did not use it. He 
did not use it for four or five years in the late 1980s and early 1990s, while working in a 
high-pressure position and having small children. He did not use it between 1998 and 
2003, while working for his employer. During his tenure as a senior officer for a private 
company, between 2008 and 2012, he did not use marijuana because his employer had 
a zero tolerance policy for substance abuse. (Tr. 34-39, 42-43) 
 
 Applicant purchased marijuana while he was in high school, but never since then. 
He grew it in the early 1990’s, when he was about 30 years old. Subsequently, he 
received it from friends. He no longer associates with people who use marijuana. (Tr. 35-
38) Applicant’s state has had an on and off history of prohibiting and permitting marijuana 
possession and use. He thought that sometime between 2006 and 2015, marijuana was 
legal in his home state. (Tr. 36)  
 
 Applicant voluntarily took three drug tests: in December 2017, March 2018, and 
April 2018. All were negative. (AE C) He submitted a March 2017 affidavit, in which he 
stated that he has not used marijuana since August 2015, a month before submitting his 
SCA. He has no intention to use it or other controlled substances in contravention of 
 
 
 
 
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federal or state law in the future. He recognizes the potential adverse significance and 
problems of using marijuana. He agreed to an automatic revocation of his clearance if it 
were determined that he used it in the future. (AE B)  
 
 Applicant has given serious thought to his past use of marijuana since starting his 
current position and completing the SCA. He acknowledged that his possession and use 
of marijuana was an error in judgment and inappropriate because of his professional 
responsibilities. He does not want to jeopardize his employer’s ability to carry out its 
mission. He is committed to not possessing or using marijuana in the future. Marijuana is 
not an important part of his life. (Tr. 27, 46, 48) He is willing to submit to random drug 
screenings in the future, although his employer does not have a policy about drug testing. 
(Tr. 29, 40) His wife is aware of this situation. (Tr. 47) 
 
 Applicant submitted four letters of recommendation. Two are from retired military 
officers who have known Applicant for many years, and two are from former employers 
in private industry. All authors unequivocally state that Applicant demonstrates a high 
level of integrity, ethics, and honesty. They have no reservations about Applicant holding 
a security clearance. (Answer; AE E) 
 
Policies 
 
This case is adjudicated 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 effective within the DOD 
on June 8, 2017. 
 
 When evaluating an applicant’s national security eligibility, the administrative judge 
must consider the adjudicative guidelines (AG). In addition to brief introductory 
explanations for each guideline, the adjudicative guidelines (AG) list potentially 
disqualifying conditions and mitigating conditions, which are useful in evaluating an 
applicant’s national security 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s 
overarching adjudicative goal is a fair, impartial, and commonsense decision. According 
to AG ¶¶ 2(b) and 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 
 
 
 
 
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contained in the record. Likewise, I have avoided drawing inferences grounded on mere 
speculation or conjecture. 
 
According to Directive ¶ E3.1.14, the Government must present evidence to 
establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “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 national security eligibility 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 eligibility 
for access to classified information or assignment in sensitive duties. 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 EO 10865 provides, “Any determination under this order adverse to 
an applicant shall be a determination 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 and Substance Misuse  
 
 The security concerns under the guideline for drug involvement and substance 
misuse are set out 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. 
 
 
 
 
 
 
 
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AG ¶ 25 describes two conditions that could raise security concerns and may be 
disqualifying in this case: 
 
(a) any substance misuse (see above definition); and 
 
(c) illegal possession of a controlled substance, including cultivation, 
processing, manufacture, purchase, sale, or distribution; or possession of 
drug paraphernalia. 
 
Applicant possessed and used marijuana from December 1971 to August 2015. 
The evidence establishes security concerns under both of the above disqualifying 
conditions. 
 
AG & 26 provides two conditions that could possibly mitigate the drug-related 
security concerns raised in this case based on Applicant’s evidence: 
 
(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; 
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) can mitigate security concerns when drug use is not recent. There are 
no “bright line” rules for determining when such conduct is “recent.” The determination 
must be based “on a careful evaluation of the totality of the record within the parameters 
set by the directive.” The Appeal Board further stated that if the evidence shows “a 
significant period of time has passed without any evidence of misconduct,” then an 
administrative judge must determine whether that period of time demonstrates “changed 
circumstances or conduct sufficient to warrant a finding of reform or rehabilitation.” ISCR 
Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004).1 
                                            
1 In ISCR Case No. 04-09239 at 5 (App. Bd. Dec. 20, 2006), the Appeal Board reversed the judge’s decision 
denying a clearance, focusing on the absence of drug use for five years prior to the hearing. The Appeal 
Board determined that the judge excessively emphasized the drug use while holding a security clearance, 
 
 
 
 
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 Applicant’s most recent admitted use of marijuana was in August 2015, a month 
before he submitted his SCA. At that time, marijuana was legal in his state, but marijuana 
possession was a violation of federal law. Prior to that month, he used it for many years 
and abstained periodically for several years, in particular when it was a violation of his 
employer’s policy. Applicant’s drug abuse was frequent over the years and did not occur 
under unusual circumstances. However, there is evidence of Applicant’s consistent and 
successful professional achievements and standing during the years he used marijuana, 
which diminish doubts concerning his current reliability, trustworthiness, and good 
judgment. Mitigation is established under AG & 26(a) because his marijuana use is not 
recent. 
 
Applicant forthrightly disclosed and acknowledged his past illegal use, possession, 
and purchase of marijuana. For the past three years, he established a pattern of 
abstinence and credibly asserted, verbally and in writing, that he has no intention to use 
marijuana in the future, regardless of its legality in his state. He expressed a strong 
commitment to his employer and does not want to jeopardize its mission. He no longer 
associates with people who use marijuana. His wife and employer are aware of his history 
of marijuana use. He accordingly established mitigation under AG ¶ 20(b). Other potential 
mitigating conditions are inapplicable in the absence of prescription drug abuse or any 
form of drug treatment.      
 
Whole-Person Concept 
 
 Under the whole-person concept, the administrative judge must evaluate an 
applicant’s national security eligibility 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; 
                                            
and the 20 plus years of drug use, and gave too little weight to lifestyle changes and therapy. For the 
recency analysis the Appeal Board stated: 
  
Compare ISCR Case No. 98-0394 at 4 (App. Bd. June 10, 1999) (although the passage of 
three years since the applicant's last act of misconduct did not, standing alone, compel the 
administrative judge to apply Criminal Conduct Mitigating Condition 1 as a matter of law, 
the Judge erred by failing to give an explanation why the Judge decided not to apply that 
mitigating condition in light of the particular record evidence in the case) with ISCR Case 
No. 01-02860 at 3 (App. Bd. May 7, 2002) (“The administrative judge articulated a rational 
basis for why she had doubts about the sufficiency of Applicant's efforts at alcohol 
rehabilitation.”) (citation format corrections added). 
 
 
 
 
 
 
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(8) the potential for pressure, coercion, exploitation, or duress; and (9) the 
likelihood of continuation or recurrence.  
 
According to AG ¶ 2(c), the ultimate determination of whether to grant national security 
eligibility must be an overall commonsense judgment based upon careful consideration 
of the applicable guidelines and the whole-person concept. 
 
 I considered the potentially disqualifying and mitigating conditions in light of all 
pertinent facts and circumstances surrounding this case. I incorporated my comments 
under Guideline H in this whole-person analysis. Some of the factors in AG ¶ 2(d) were 
addressed under that guideline, but some warrant additional comment. 
 
 After listening to his testimony and observing his demeanor, I find Applicant to be 
truthful and straightforward. He exhibited remorse and embarrassment over his history of 
marijuana abuse. He understands that the possession of marijuana violates federal law 
and constitutes criminal conduct. He presented strong letters of recommendation 
attesting to his trustworthiness and ethics from people who have known and worked with 
him. He has not used marijuana for three years, and did not consistently use it from 1971 
to 2015. He explained that he did not use or possess marijuana for numerous years 
because of his work environment or employer’s drug policies. Although federal law has 
consistently criminalized marijuana, Applicant’s state has a history of decriminalizing and 
recriminalizing it. These are significant mitigating factors in analyzing this case. However, 
the most persuasive fact in reaching a favorable decision is that Applicant fully and 
voluntarily disclosed his long history of illegal marijuana possession and use on his 2015 
SCA, which disclosure led to this investigation and hearing. There is no other derogatory 
information in the file that would lead me to believe Applicant will break his commitment 
not to use marijuana in the future. His wife and employer are aware of the facts in this 
case, such that the potential for pressure or duress related to his past conduct is 
diminished and a recurrence is unlikely. Overall, the evidence does not create sufficient 
doubt as to Applicant’s judgment, reliability, eligibility, and suitability for a security 
clearance. He met his burden to mitigate the security concerns arising under the guideline 
for drug involvement and substance misuse. 
 
Formal Findings 
 
 Formal findings for or against Applicant on the allegations set forth in the SOR, as 
required by ¶ E3.1.25 of Enclosure 3 of the Directive, are: 
 
 Paragraph 1, Guideline H:         FOR APPLICANT 
 
  Subparagraph 1.a:              For Applicant 
 
 
 
 
 
 
 
 
 
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Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is clearly 
consistent with the interests of national security to grant Applicant a security clearance. 
National security eligibility is granted. 
 
                                                   
 
SHARI DAM 
Administrative Judge