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        DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: ) 
)
) ISCR Case No. 18-00093 
)
Applicant for Security Clearance ) 
Appearances 
For Government: Kelly Folks, Esq., Department Counsel 
For Applicant: Eric A. Eisen, Esq. 
______________ 
Decision 
______________ 
LOUGHRAN, Edward W., Administrative Judge: 
Applicant mitigated the drug involvement and substance misuse security 
concerns. Eligibility for access to classified information is granted.  
Statement of the Case 
On January 24, 2018, the Department of Defense (DOD) issued a Statement of 
Reasons (SOR) to Applicant detailing security concerns under Guideline H, drug 
involvement and substance misuse. Applicant responded to the SOR on February 24, 
2018, and requested a hearing before an administrative judge.  
The case was assigned to another administrative judge on August 3, 2018, and 
reassigned to me on October 2, 2018. The Defense Office of Hearings and Appeals 
(DOHA) issued a notice of hearing on August 7, 2018, scheduling the hearing for 
November 14, 2018. The hearing was convened as scheduled. Government Exhibits 
(GE) 1 through 4 were admitted in evidence without objection. Applicant testified and 
submitted Applicant’s Exhibits (AE) A through G, which were admitted without objection.  
12/26/2018
 
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Findings of Fact 
 
 Applicant is a 36-year-old employee of a defense contractor. She has worked for 
defense contractors since 2010. She seeks to retain a security clearance, which she 
has held since 2011. She has a bachelor’s degree, which was awarded in 2014, and a 
master’s degree, which was awarded in 2009. She is married with an infant child.1 
 
Applicant smoked marijuana about five to seven times from 2001 to 2008. She 
was in college and graduate school at the time. She reported her marijuana use on the 
Questionnaire for National Security Positions (SF 86) she submitted in September 2010. 
During her background interview in October 2010, she stated that she regretted using 
marijuana and she did not intend to use marijuana or any other illegal drug in the 
future.2 
 
Applicant had surgery in 2013. She was in considerable pain and was prescribed 
narcotic painkillers. She had side effects from the narcotics, including constipation, 
headaches, vomiting, and a “fuzzy” head. She had another surgery in October 2015. 
She was again prescribed opioid painkillers. She completed the course of narcotics 
prescribed to her, but she was still in a great deal of pain. A friend offered her some 
marijuana for her pain. Applicant lives in a jurisdiction that permitted medical and 
recreational marijuana use. She chose to accept the marijuana from the friend because 
she received it immediately without having to wait for it to be prescribed by a doctor. 
Applicant used the marijuana over the course of a few weeks to alleviate her pain.3 
 
Applicant knew that her marijuana use was against federal law and contrary to 
her company’s and DOD’s policies, even though it was not illegal in her jurisdiction and 
even if it had been prescribed by a doctor. However, she did not realize the full 
ramifications of her actions.4 
 
Applicant reported her marijuana use on the SF 86 she submitted in February 
2016 and during her background interview in September 2017. She provided a signed 
statement of intent to abstain from all illegal drug use with the acknowledgment that any 
future involvement with illegal drugs would be grounds for revocation of her security 
clearance. She credibly testified that she will not use any illegal drugs, including 
marijuana for pain management, in the future.5 
 
Applicant submitted documents and letters attesting to her excellent job 
performance and strong moral character. She is praised for her professionalism, 
                                                          
1 Tr. at 15-18, 25-29; GE 1; AE A, D. 
 
2 Tr. at 25, 32-33; GE 2-4; AE  
 
3 Tr. at 20-26, 33-39; Applicant’s response to SOR; GE 1, 2; AE E.  
 
4 Tr. at 25-26, 30-32, 36-37; Applicant’s response to SOR.  
 
5 Tr. at 37-40; GE 1, 2; AE F. 
 
 
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judgment, loyalty, dependability, honesty, leadership, trustworthiness, work ethic, 
reliability, and integrity.6  
 
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 (AG), which became 
effective on June 8, 2017. 
 
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 to be used 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, administrative judges apply the guidelines in 
conjunction with the factors listed in the adjudicative process. The administrative judge’s 
overarching 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.”  
 
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.” 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 the applicant may deliberately or inadvertently fail to safeguard 
classified information. Such decisions entail a certain degree of legally permissible 
extrapolation of potential, rather than actual, risk of compromise of classified 
information. 
                                                          
6 AE B, C, G. 
 
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Section 7 of 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 and Substance Misuse 
 
 The security concern for drug involvement and substance misuse is 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. 
 
 The guideline notes several conditions that could raise security concerns under 
AG ¶ 25. The following are potentially applicable in this case:   
 
 (a) any substance misuse (see above definition);  
 
(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 possessed and used marijuana sporadically from 2001 through 2008, 
and again over the course of a few weeks in October 2015. She has held a security 
clearance since 2011. AG ¶¶ 25(a), 25(c), and 25(f) are applicable. 
 
 AG ¶ 26 provides conditions that could mitigate security concerns. 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 
 
 
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(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 experimented with marijuana while she was in college and graduate 
school. During her background interview in 2010, she stated that she regretted using 
marijuana and she did not intend to use marijuana or any other illegal drug in the future. 
She abstained from 2008 until she used marijuana to alleviate her pain in 2015. She 
knew that her marijuana use was against federal law and contrary to her company’s and 
DOD’s policies, even though it was not illegal under local law and even if it had been 
prescribed by a doctor. However, she did not realize the full ramifications of her actions. 
Having gone through this process, I am convinced that she does now.   
 
 Applicant provided a signed statement of intent to abstain from all illegal drug use 
with the acknowledgment that any future involvement with illegal drugs would be 
grounds for revocation of her security clearance. She credibly testified that she will not 
use any illegal drugs, including marijuana for pain management, in the future. She fully 
disclosed her drug use on her SF 86 and during her background investigation, which 
bolsters her credibility. I find that Applicant has abstained from illegal drug use for an 
appropriate period, and that illegal drug use is unlikely to recur. AG ¶¶ 26(a) and 26(b) 
are applicable. 
 
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 
 
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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 the facts and 
circumstances surrounding this case. I have incorporated my comments under 
Guideline H in my whole-person analysis. I also considered Applicant’s strong character 
evidence. 
 
Overall, the record evidence leaves me without questions or doubts about 
Applicant’s eligibility and suitability for a security clearance. I conclude Applicant 
mitigated the drug involvement and substance misuse 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:   For Applicant 
 
  Subparagraphs 1.a-1.b:   For Applicant 
   
Conclusion 
 
 It is clearly consistent with the national interest to grant Applicant eligibility for a 
security clearance. Eligibility for access to classified information is granted. 
 
 
 
________________________ 
Edward W. Loughran 
Administrative Judge