1 
 
 
 
               DEPARTMENT OF DEFENSE 
     DEFENSE OFFICE OF HEARINGS AND APPEALS 
 
 
 
 
In the matter of:  ) 
 ) 
    )   ISCR Case No. 17-03447 
   ) 
Applicant for Security Clearance  ) 
 
 
Appearances 
 
For Government: Andre M. Gregorian, Esq., Department Counsel 
For Applicant: Francis J. Flanagan, Esq. 
 
 
______________ 
 
Decision 
______________ 
 
 
MATCHINSKI, Elizabeth M., Administrative Judge: 
 
Applicant used marijuana approximately 11 times between July 2011 and February 
2016 after she had been granted a secret clearance. She disclosed her drug involvement 
on her May 2016 security clearance application, but she has yet to demonstrate that she 
understands the importance of complying with her security responsibilities. Clearance is 
denied. 
 
Statement of the Case 
 
 On October 27, 2017, the Department of Defense Consolidated Adjudications 
Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing a security 
concern under Guideline H, drug involvement and substance misuse, which explained why 
it was unable to find it clearly consistent with the national interest to grant or continue 
security clearance eligibility for her. 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 (AG) effective June 8, 2017, to all adjudications for national security eligibility or 
eligibility to hold a sensitive position. 
 
2 
 
On November 15, 2017, Applicant answered the SOR allegation and requested a 
hearing before an administrative judge from the Defense Office of Hearings and Appeals 
(DOHA). On January 9, 2018, the case was assigned to me to conduct a hearing to 
determine whether it is clearly consistent with the national interest to grant or continue a 
security clearance for Applicant. On January 11, 2018, I scheduled a hearing for February 
7, 2018. On January 22, 2018, Counsel for Applicant entered his appearance and 
requested a continuance to give him time to prepare his representation. On January 23, 
2018, I cancelled the hearing for February 7, 2018, with no objection from the Government. 
On February 27, 2018, I rescheduled the hearing for March 21, 2018. 
 
I convened the hearing as scheduled. Two Government exhibits (GEs 1-2) and four 
Applicant exhibits (AEs A-D) were admitted into evidence without objection. A December 
11, 2017 letter forwarding discovery of the then proposed GEs to Applicant and a list of the 
GEs were incorporated in the record as hearing exhibits I and II respectively, but not 
admitted as evidence. Applicant testified, as reflected in a transcript (Tr.) received on 
March 28, 2018. 
 
I held the record open until April 4, 2018, for post-hearing submissions from 
Applicant. No documents were received and so the record closed on that date. 
 
Findings of Fact 
 
 The SOR alleges that Applicant used marijuana from July 2011 to February 2016 
after being granted a security clearance in August 2006 (SOR ¶ 1.a). When Applicant 
responded to the SOR allegation, she admitted the drug involvement as alleged, but she 
also indicated that her use was in a small quantity and at very infrequent intervals, and also 
that she had not accessed sensitive information since late 2006. She added that she was 
no longer associated with the persons involved in her marijuana use, and that she intended 
to abstain from any future drug involvement. She expressed regret about her decision to 
use marijuana and indicated that, in hindsight, she realizes that she should have reported 
her marijuana use immediately after the first incident. (Answer.) 
 
 After considering the pleadings, exhibits, and transcript, I make the following 
findings of fact. 
 
Applicant is a 45-year-old senior manufacturing engineer. She has a bachelor’s 
degree in industrial engineering awarded in December 1997. She is not married but has 
been in a cohabitant relationship since approximately August 2002. She owns her home, 
which has served as her and her cohabitant’s residence since approximately September 
2003. (GEs 1-2, Tr. 19-20, 27.) 
 
In 1999, Applicant began working as a temporary contract employee for her current 
employer, a defense contractor. Her intention was to pay for graduate studies that she then 
did not complete. She became a direct hire in June 2000. Applicant passed drug screens 
taken when she began working as a contract employee and again when she was hired as a 
full-time employee. (Tr. 32.) 
3 
 
Applicant was granted a secret clearance in August 2006, after completing a 
security clearance application in May 2006 on which she was asked about any illegal drug 
involvement. (Tr. 28.) She was working in a test laboratory and the software was classified. 
She has not handled classified information since then. (Tr. 39.) 
 
On May 31, 2016, Applicant completed and certified to the accuracy of a 
Questionnaire for National Security Positions (SF 86) to renew her security clearance 
needed to be a backup manufacturing engineer for a classified program. (Tr. 39.) She 
responded affirmatively to an inquiry concerning any illegal use of a drug or controlled 
substance in the last seven years and indicated that she had used “THC” recreationally 
approximately 11 times from July 2011 and February 2016. She answered “Yes” to 
whether that drug use occurred while possessing a security clearance, but “No” regarding 
any intention to use the drug in the future. She added the following: 
 
Do not intend to use in the future due to a couple of instances of allergic type 
reactions (i.e., runny nose, sneezing, itchy eyes). I am unsure if the allergic 
reaction was caused by marijuana, however symptoms manifested 
immediately after use. 
 
Applicant responded “No” to an inquiry concerning any illegal purchase, manufacture, 
cultivation, trafficking, production, transfer, shipping, receiving, handling or sale of any drug 
or controlled substance. (GE 1; Tr. 29.) 
 
 On July 21, 2017, Applicant was interviewed by an authorized investigator for the 
Office of Personnel Management (OPM). She disclosed that her marijuana use was with 
her cohabitant significant other and others whose names she could not recall. She used 
the drug in the homes of the other people, and it was there when she arrived. She 
indicated that she used marijuana because she wanted to try it, but she stopped because it 
did not work for her. Applicant denied any intention to use marijuana in the future. (GE 2.) 
 
 On March 20, 2018, Applicant executed an affidavit expressing her intention to 
abstain from all drug involvement and substance misuse and acknowledging that any 
future drug involvement would be grounds to revoke her security clearance eligibility. (AE 
A.) At her hearing on March 21, 2018, Applicant testified on direct examination that she did 
not realize she was placing her continued employment with the defense contractor at risk 
by using marijuana while she held a security clearance until she was faced with the SF 86 
inquiry in 2016. She had considered responding negatively to the drug inquiry because she 
already put her marijuana use behind her, but telling the truth was the right thing to do. (Tr. 
24.) As for the circumstances of her marijuana use, Applicant indicated that all her use 
occurred at the same house while socializing with friends of one of her significant other’s 
friends. She explained that she initially went there with the purpose of playing volleyball but 
was then offered marijuana. (Tr. 26, 33.) No pressure was placed on her to smoke the drug 
then or on ten subsequent occasions. (Tr. 37.) 
 
 After Applicant used marijuana in February 2016, she discussed with her significant 
other whether they should maintain these social ties, given marijuana’s illegality. The last 
4 
 
time that they went there, which was “probably” in February 2016, she said to him, “Do we 
really like these people?” She has not been to the home or associated with the persons 
since then. To her knowledge, neither has her significant other. She does not believe her 
significant other currently uses any marijuana, but she is not certain. He had used 
marijuana regularly when he was in high school. (Tr. 34.) She has not seen him use 
marijuana or smelled it on him. Shortly after Applicant completed her May 2016 SF 86, she 
states that told her significant other that she cannot have anything to do with marijuana. 
Applicant expressed her intention to have absolutely no involvement with marijuana in the 
future. (Tr. 33-39.) 
 
  Applicant knew marijuana use was illegal under federal law when she used it. (Tr. 
28.) Asked why she decided to try using marijuana at age 38, Applicant responded, “It was 
a stupid decision. I had no reason to try it. I really had no interest to try it.” She testified that 
she did not consider when she first used marijuana in 2011 that she might be putting her 
job at risk because she had not handled classified information since 2006, and so it was 
not at the forefront of her mind. She also acknowledged that she knew her employer had a 
drug-free workplace policy and would not condone marijuana use. (Tr. 30-31.) When asked 
to explain her repeated use of marijuana despite that knowledge, Applicant responded that 
her marijuana use was “very, very, very minimal.”1 (Tr. 31.) Applicant also acknowledged 
that she knew using marijuana with a security clearance would be grounds to revoke her 
security clearance eligibility (Tr. 30), although she later testified that, if her security 
clearance had been at the forefront of her mind, it would not have happened. (Tr. 38.) 
 
 Applicant likes her job with the defense contractor. (Tr. 21.) In terms of her work 
performance, she has met or exceeded the requirements of her position. She has 
consistently shown initiative, commitment, technical skill, and an ability to get work done, at 
times in demanding conditions. Her attention to detail and excellent program support have 
made her a valued team member. A highly-motivated hard worker, stress management has 
been an issue for her since at least 2004, although she has made some improvements in 
balancing workload and time management in recent years. (AE D.) 
  
Character References 
 
 A longtime close friend of both Applicant and her significant other provided a 
character reference for Applicant. A registered nurse, she lives nearby and visits them a 
few times a week. She considers Applicant to be “one of the most intelligent, sincere, 
committed, and honest people [she has] ever had the privilege to know.” In her opinion, 
                                                 
1 When asked why she repeatedly used marijuana knowing that she could jeopardize her job and her 
clearance, Applicant responded: 
 
Many of the times when I did use it, I don’t believe I consumed enough to really even feel an 
effect from it. I have a lot of food allergies so I’ve become every accustomed to very carefully 
trying things. It could be something minuscule in it that would lead me to days of stomach 
discomfort and not being able to leave. So it was very, very, very minimal. (Tr. 31.) 
 
 
5 
 
Applicant is “brutally honest, almost honest to a fault.” She has never known Applicant to 
sacrifice her integrity. (AE B.) 
 
 Another friend, who has known Applicant since they were high school juniors, has 
had periodic contact with her for the past 30 years. He attests “without question that 
[Applicant] is one of the most trustworthy and self-aware persons [he has] known.” He 
considers her to be “honest, often to a fault.” (AE C.) 
 
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. The administrative judge’s overall 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 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. 
 
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 safeguard classified information. 
Such decisions entail a certain degree of legally permissible extrapolation about potential, 
rather than actual, risk of compromise of classified information. Section 7 of EO 10865 
provides that decisions shall be “in terms of the national interest and shall in no sense be a 
6 
 
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 about drug involvement and substance misuse are set forth 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. 
  
Applicant used marijuana approximately 11 times between July 2011 and February 
2016 at social gatherings with the same “friends of a friend” of her significant other. She 
held a DOD secret clearance when she used marijuana. Disqualifying conditions AG ¶ 
25(a), “any substance misuse (see above definition),” and AG ¶ 25(f), “any illegal drug use 
while granted access to classified information or holding a sensitive position,” apply. 
Whereas Applicant never purchased marijuana, and there is no evidence that she 
contributed any money towards its cost, the security concerns addressed in AG ¶ 25(c), 
“illegal possession of a controlled substance, including cultivation, processing, 
manufacture, purchase, sale, or distribution; or possession of drug paraphernalia,” are not 
well established. 
 
 AG ¶ 26(a) provides for mitigation when the drug involvement and substance misuse 
“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.” Applicant’s marijuana use on 11 occasions over 4.5 
years may reasonably considered as infrequent, but her last use in February 2016 was 
recent as of her May 2016 SF 86. Moreover, the circumstances under which her marijuana 
use occurred, with her significant other at house parties with friends of his friend, were not 
so unusual as to implicate AG ¶ 26(a). 
 
 AG ¶ 26(b) provides for mitigation when an individual acknowledges his or her drug 
involvement and has no intention of future drug activity: 
 
7 
 
(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. 
 
 Applicant submits that she has been drug free since February 2016; that she has 
not associated with the persons with whom she smoked marijuana since February 2016; 
and that she has no intention of using any illegal drug in the future. Her stated reason for 
ceasing her marijuana use is primarily that she had unpleasant affects from using 
marijuana in a couple of instances and does not see any benefit to be gained from using 
marijuana again. She provided the statement of intent to abstain required under AG ¶ 
26(b)(3).  
 
There is no evidence to suggest that Applicant’s marijuana use was other than 
recreational, on sporadic occasions, and in a social context that no longer exists. She did 
not purchase marijuana or possess the drug other than when she used it at house parties 
with the same people, whom she has not seen since February 2016. When asked whether 
the drug was freely provided to her and her significant other at those parties, Applicant 
responded, “It was there.” She had abstained for over two years as of her hearing. 
 
However, AG ¶ 26(b) is not fully established in some aspects. Applicant is not 
certain whether her significant other has stopped using marijuana. He was apparently a 
regular user of marijuana in high school, and her drug use occurred while socializing with 
him and people she met through him. She has told him that she cannot use marijuana any 
longer, although she provided no corroboration. Applicant admits that she used marijuana 
“in small quantities at infrequent intervals,” but she did not provide a consistent, credible 
explanation for why she repeatedly used marijuana as a mature adult while she held a 
security clearance. She testified that she had no interest in trying it and yet also that no one 
pressured her to use it. She reports having had unpleasant effects that she associated with 
marijuana and deriving no benefit from the drug, but she continued to use the drug beyond 
a couple of occasions. Applicant asserts that she first realized the risk to her clearance and 
job when she was faced with the SF 86 inquiry in 2016. However, she admitted on cross-
examination that she had completed a security clearance application ten years earlier and 
was asked then about any illegal drug use. She had also taken two drug screens for her 
job in 1999 and 2000. It is inconceivable that she did not realize before her recent SF 86 
that she risked her clearance and her job by engaging in prohibited drug activity. Applicant 
knew marijuana was illegal and contrary to her employer’s drug-free workplace policy. 
Applicant has not met her burden of mitigating the serious doubts about her judgment and 
reliability caused by her marijuana use while possessing a security clearance. 
8 
 
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 her conduct and 
all relevant circumstances in light of the nine adjudicative process factors listed at AG ¶ 
2(d).2 In making the overall commonsense determination required under AG ¶ 2(c), 
Applicant’s contributions to her employer weigh in her favor.  She has met, and in some 
years exceeded her job requirements. She is valued by her team for her knowledge and 
dedication. Her candor on her SF 86 about her drug involvement is also viewed positively. 
However, neither her work contributions nor her candor about her drug involvement on her 
latest SF 86 entitle her to a security clearance. The DOD might not have learned about 
Applicant’s drug use from another source, but the Government can reasonably expect 
persons granted security clearance to comply with their obligations. Applicant was 
entrusted with a security clearance based on certain criteria and conditions, including that 
she abide by the drug laws and remain abstinent from illegal drugs while maintaining her 
security clearance. Applicant was also obligated to report any transgressions as soon as 
practicable. See ISCR Case No. 11-12165 (App. Bd. Jan. 29, 2014). Applicant indicates 
that, in hindsight, she realizes she should have reported her marijuana use immediately 
after she first used marijuana in 2011. Yet, she is either unwilling to acknowledge or does 
not understand her security responsibilities. When asked why she repeatedly used 
marijuana knowing that she could jeopardize her job and clearance, she responded that 
she did not believe she consumed enough marijuana to feel an effect. 
 
Security clearance decisions are not intended to punish applicants for past 
transgressions. Yet it is well settled that once a concern arises regarding an applicant’s 
security clearance eligibility, there is a strong presumption against the grant or renewal of a 
security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990). The 
Government must be able to rely on those persons granted security clearance eligibility to 
fulfill their responsibilities consistent with laws, regulations, and policies, and without regard 
to their personal interests. For the reasons discussed, Applicant has raised enough doubt 
in that regard to where I am unable to conclude that it is clearly consistent with the national 
interest to continue her eligibility for a security clearance. 
 
 
Formal Finding 
 
Formal finding for or against Applicant on the allegation set forth in the SOR, as 
required by section E3.1.25 of Enclosure 3 of the Directive, is: 
                                                 
2 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. 
9 
 
 
Paragraph 1, Guideline H:   AGAINST APPLICANT 
 
Subparagraph 1.a:   Against Applicant 
 
Conclusion 
 
In light of all of the circumstances, it is not clearly consistent with the national 
interest to continue Applicant’s eligibility for a security clearance. Eligibility for access to 
classified information is denied. 
 
 
_____________________ 
Elizabeth M. Matchinski 
Administrative Judge