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       DEPARTMENT OF DEFENSE 
   DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: )
)
) ISCR Case No. 17-04287 
) 
Applicant for Security Clearance ) 
Appearances 
For Government: Kelly Folks and Nicole A. Smith, Esq., Department Counsels 
For Applicant: Aileen B. Xanakis, Esq.  
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Decision 
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CREAN, THOMAS M., Administrative Judge: 
Based on a review of the pleadings, exhibits, and testimony, I find that Applicant 
failed to mitigate drug involvement and substance abuse security concerns. Eligibility for 
access to classified information is denied. 
Statement of the Case 
Applicant submitted an Electronic Questionnaire for Investigations Processing (e-
QIP) on March 28, 2016, to retain a security clearance required for her duties with a 
defense contractor. Applicant reported on this e-QIP that she occasionally used 
marijuana from June 1979 until June 2013. She also reported experimental use of 
marijuana in September 2014. Applicant also reported that she was granted eligibility for 
access to classified information in May 2009.   
On April 4, 2018, the Department of Defense (DOD) issued Applicant a 
Statement of Reasons (SOR) detailing security concerns for drug involvement and 
substance misuse (Guideline H). These actions were taken under Executive Order 
10865, Safeguarding Classified Information within Industry (February 20, 1960), as 
amended; Department of Defense Directive 5220.6, Defense Industrial Personnel 
02/26/2019
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Security Clearance Review Program (January 2, 1992), as amended (Directive); and the 
adjudicative guidelines (AG) effective in the Department of Defense on June 8, 2017.  
 
 Applicant answered the SOR on April 26, 2018. She admitted the two allegations 
of drug involvement and substance misuse. She noted that her marijuana use was 
sporadic, and she did not use marijuana between 2009 and 2014. She admitted that 
she used marijuana one time in 2014 and again one time in September 2017. 
Department Counsel was prepared to proceed on June 1, 2018, and the case was 
assigned to me on September 10, 2018. The Defense Office of Hearings and Appeals 
(DOHA) issued a Notice of Hearing on September 12, 2018, scheduling a hearing for 
November 7, 2018. I convened the hearing as scheduled. The Government offered two 
exhibits were marked and admitted into the record as Government Exhibits (GX) 1 and 
2, and were admitted without objection. Applicant testified, and offered four exhibits 
which I marked and admitted into the record without objection as Applicant Exhibits (AX) 
A through D. DOHA received the transcript of the hearing (Tr.) on November 16, 2018. 
 
Findings of Fact 
 
 Applicant’s admissions are included in my findings of fact. After a thorough 
review of the pleadings, transcript, and exhibits, I make the following additional findings 
of fact. Applicant is 59 years old. She graduated from high school. She received an 
associate’s degree in May 1982. She has taken some college courses but has not 
received a degree. She has received computer-based certifications. Applicant first 
married in December 1978 and divorced in June 1981. She married a second time in 
June 1981 and divorced in June 1989. She married a third time in September 1990 and 
divorced in June 2005. She has one child from her third marriage. Applicant has worked 
supporting various companies and defense contractors as a project manager or 
director. Her hobby is to do bead work on dresses. (Tr. 16-22; Gov. Ex. 1, e-QIP, dated 
March 28, 2016; GX 2, Response to Interrogatories and Personal Subject Interview, 
dated March 23, 2018; AE A, Resume, undated; AE B, Transcript, dated August 24, 
2015)  
 
 The SOR alleges that Applicant used marijuana, with varying frequency, from 
about 1980 through at least September 2017 (SOR 1.a); and used marijuana after being 
granted a DOD security clearance in June 2014 (SOR 1.b).  
 
 Applicant received her first eligibility for access to classified information while 
supporting a United States Army command in 2009. Her clearance was renewed in 
June 2014. (Tr. 27-30) 
 
 Applicant first used marijuana in 1982 when she was 23 years old. She was 
dating her future second husband who was a marijuana user. He asked her to try the 
drug and she did. There was occasional use, about once or twice a year, in the 
following eight or nine years she was married to her second husband. After they 
divorced in 1989, she did not use marijuana again until 2014. She characterized her use 
as infrequent. (Tr. 30-33; 43-44) 
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 Applicant did not use marijuana when married to her third husband from 1990 to 
2005. Applicant had a significant other living with her from 2009 until 2014. During this 
time, she used marijuana once or twice. Her significant other, who was a heavy 
marijuana user, smoked the drug in her presence. While she used marijuana only 
infrequently, she believes she inhaled marijuana from the second-hand smoke from her 
significant other. (Tr. 33-34, 44, 53-55) 
 
 In 2014, Applicant had a friend visiting her who had not previously used 
marijuana. She suggested to the visiting friend that they use the marijuana left over from 
her significant other. Applicant and her friend smoked the marijuana once using a pipe. 
She used the drug voluntarily. She told her security office about this use of marijuana a 
few months later when she had a periodic review for her security clearance. (Tr. 33-37, 
44-45)  
 
 On Labor Day weekend in 2017, Applicant was visiting a friend in a state where 
marijuana is legal. She attended a party with her friend and tried a piece of candy laced 
with marijuana. A significant number of people attending the party were using the 
candy. Applicant’s friend did not force her to use the marijuana candy, and Applicant did 
not buy the marijuana candy. The individual is still Applicant’s friend, but Applicant now 
stays with her brother and his family when she visits the state. Her brother is not a 
marijuana user. (Tr. 37-38) 
 
 Applicant knew the candy had marijuana in it, She knew she had a security 
clearance at the time. From 2009, she knew that the use of marijuana was against 
security rules and regulations. She characterized her use of the marijuana candy as bad 
judgment on her part. She used the marijuana candy because she was in an 
environment where the rules were different and marijuana was legal. The people she 
knew at the party were using marijuana because it was legal. She did it as an 
experiment to gain knowledge of the effects of the marijuana candy. Her security 
clearance was an issue and she knew she had to report her use to her security officer 
when she returned. (Tr. 38-40; 45-47. 49-50) 
 
 Applicant reported her use of the marijuana candy to her security officer on her 
return from the trip. She has never taken a drug test with her company. Her company 
was in the middle of a review of security clearances for their employees. If the company 
had not been involved in the review process, Applicant would have reported her use of 
marijuana candy at her next security review. The security personnel would not have 
known about her use of marijuana if she did not report it herself. (Tr. 40-43, 50-53) 
 
Applicant presented four affidavits of recommendation for granting her eligibility 
for access to classified information from friends, fellow workers, and her security 
manager. The writers attest to her dedication, work ethic, knowledge and excellent work 
performance. They did not believe the allegations reflect Applicant’s character, respect 
for law and rules, or willingness and ability to protect classified information. They found 
Applicant to be responsible and trustworthy. (AE C)  
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Applicant also submitted her statement of intent not to use illegal substances or 
abuse prescription drugs in the future. She agrees to be randomly drug tested. If a drug 
test is positive, she agrees to immediate and unqualified revocation of her security 
clearance. (AE D)  
 
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the Administrative Guidelines. In addition to brief 
introductory explanations for each guideline, the adjudicative guidelines list potentially 
disqualifying conditions and mitigating conditions, which are useful 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 over-arching 
adjudicative goal is a fair, impartial and common sense 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 access to 
classified information 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. Likewise, I have avoided drawing inferences 
grounded on mere speculation or conjecture. 
 
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 burden of persuasion to obtaining 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 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. 
 
 
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Analysis 
 
Drug Involvement and Substance Misuse 
 
The use of an illegal drug or misuse of a prescription drug can raise questions 
about an individual’s reliability and trustworthiness, because it may impair judgment and 
raises questions about a person’s ability or willingness to comply with laws, rules, and 
regulations. Drug abuse is the illegal use of a drug or use of a legal drug in a manner 
that deviates from approved medical direction. Drugs are defined as mood and behavior 
altering substances, including drug material and other chemical compounds identified 
and listed in the Controlled Substances Act of 1970. Marijuana is included in the 
Schedule 1 list. (AG ¶ 24)  
 
Applicant used marijuana occasionally from 1980 until May 2014. She was 
granted eligibility for access to classified information in June 2014. In September 2017, 
she knowingly consumed a marijuana infused candy. Applicant’s admissions and the 
available evidence is sufficient to raise the following Drug Involvement and Substance 
Abuse Disqualifying Conditions under AG ¶ 25: 
 
(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.  
 
 I considered the following Drug Involvement Mitigating Conditions under AG ¶ 
26: 
 
(a) the behavior happened so long ago, was so infrequent, or happened 
under such unusual 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 the 
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 
 
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(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. 
 
While there is no "bright line" rule for determining when conduct is recent or 
sufficient time has passed since the incidents, a determination whether past conduct 
affects an individual's present reliability and trustworthiness must be based on a careful 
evaluation of the totality of the evidence. Based on an evaluation of the evidence 
presented at the hearing and in the case file, I conclude that the mitigating conditions do 
not apply.  
 
Applicant used marijuana occasionally from 1982 until 1989 with her second 
husband. She did not use marijuana from 1989, when she divorced her second 
husband, until she used again a few times while living with a significant other from 2009 
until 2014. Her significant other was a heavy marijuana user and she also inhaled 
second-hand marijuana smoke. Applicant used marijuana once in May 2014. She was 
granted access to classified information in June 2014. She used marijuana in the form 
of a candy in 2017.  
 
The majority of Applicant’s use of marijuana was infrequent and occasional. 
However, her use of marijuana was under circumstances that are likely to recur. While 
the use was infrequent and occasional, her marijuana use was over an extended period 
of time. She would stop for a while, then use marijuana again. She knowingly and 
continually lived with marijuana users for a number of years. She even introduced a 
friend to marijuana and provided the illegal drug. The circumstances of her use were not 
unusual but voluntary, under normal circumstances, and could recur.  
 
After being granted eligibility for access to classified information, she used 
marijuana in the form of candy. She knew the candy contained marijuana, she knew she 
had a clearance, and she knew that security clearance and government workplace rules 
prohibited the use of marijuana. Applicant did not present evidence of enrollment in or 
attendance at a drug treatment program.  
 
Her last use was only about 18 months ago. Under these circumstances, there 
has not been an appropriate period of abstinence. Even though Applicant provided a 
statement that she does not intend to use drugs in the future and her security clearance 
could be revoked if she did use illegal drugs, she has not established sufficient 
circumstances that indicate a change in lifestyle and environment. Applicant failed to 
mitigate security concerns for drug involvement.  
 
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 
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conduct and all the circumstances. The administrative judge should consider the nine 
adjudicative process factors listed at AG ¶ 2(a):  
 
(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 
the facts and circumstances surrounding this case. I considered the recommendations 
of Applicant’s friends and coworkers that she is reliable and trustworthy and should be 
granted eligibility for access to classified information. The allegations under Guideline H, 
as established by the government’s evidence, reflect a lack of good judgment by 
Applicant. The evidence shows a use of marijuana even while having eligibility for 
access to classified information. Applicant’s statement of intent not to use marijuana in 
the future has little impact because of her previous history of voluntary use. These facts 
leave me with questions and doubts about Applicant’s judgment and her suitability for 
access to classified information. For all these reasons, I conclude that Applicant has not 
mitigated drug involvement security concerns. Eligibility for access to classified 
information is denied. 
 
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.b:  Against Applicant 
 
 
 
 
 
 
 
 
 
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Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the national interest to grant Applicant eligibility for a security 
clearance. Eligibility for access to classified information is denied. 
 
 
 
_________________ 
THOMAS M. CREAN 
Administrative Judge