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                           DEPARTMENT OF DEFENSE 
         DEFENSE OFFICE OF HEARINGS AND APPEALS 
           
             
 
 
In the matter of: ) 
 ) 
  )  ISCR Case No. 18-01477  
  ) 
 ) 
Applicant for Security Clearance ) 
 
 
Appearances 
 
For Government: Tara Karoian, Esquire, Department Counsel 
For Applicant: Pro se 
 
February 11, 2019 
 
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Decision 
______________ 
 
 
CEFOLA, Richard A., Administrative Judge: 
 
On May 2, 2017, Applicant submitted his Electronic Questionnaire for 
Investigations Processing (e-QIP). On July 6, 2018, the Department of Defense 
Consolidated Adjudications Facility (DODCAF) issued Applicant a Statement of 
Reasons (SOR) detailing security concerns under Guideline H. The action was taken 
under Executive Order 10865, Safeguarding Classified Information within Industry 
(February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense 
Industrial Personnel Security Clearance Review Program (January 2, 1992), as 
amended (Directive); and the Adjudicative Guidelines effective June 8, 2017.   
 
 Applicant answered the SOR in writing on August 7, 2018, and subsequently 
requested a hearing before an administrative judge. The Defense Office of Hearings 
and Appeals (DOHA) received the request on or about August 29, 2018. I received the 
case assignment on August 30, 2018. DOHA issued a Notice of Hearing on September 
11, 2018, and I convened the hearing as scheduled on October 2, 2018. The 
Government offered Exhibits (GXs) 1 through 3, which were received into evidence 
without objection. Applicant testified and submitted Exhibits (AppXs) A and B, without 
 
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objection. He also asked that the record be kept open until November 2, 2018, for the 
receipt of additional documentation. On October 28, 2018, Applicant also submitted 
AppX C, which was received into evidence without objection.  DOHA received the 
transcript of the hearing (TR) on October 11, 2018. Based upon a review of the 
pleadings, exhibits, and testimony, eligibility for access to classified information is 
denied. 
 
Findings of Fact 
 
 In his Answer to the SOR Applicant admitted the factual allegations in Paragraph 
1 of the SOR, with explanations He also provided additional information to support his 
request for eligibility for a security clearance.   
 
 Applicant is 50 years old, divorced, but remarried. (TR at page 17 line 6 to page 
18 line 16, at page 34 line 10 to page 35 line 4, and GX 1 at page 5.) He works for a 
defense contractor, but does not currently have a security clearance. (Id.)  
 
Guideline H – Drug Involvement  
 
 1.a. Applicant began using marijuana, at the age of 18, in about 1987; and used 
the illegal substance for about ten years, “mostly on weekends,” until about 1996. (TR at 
page 18 line 17 to page 29 line 4.) He resumed his marijuana use in about 2010 “when . 
. . [his] divorce was in full swing and . . . [Applicant] felt sad . . . [and] alone.” (Id.) He 
used marijuana, “two or three times a week,” until his last usage in June of 2017, to 
treat his “anxiety.” (TR at page 18 line 17 to page 29 line 4, and at page 36 lines 
11~17.) 
 
 1.b. During a June 2017 interview with an investigator for DOD, Applicant 
averred that he would continue to use marijuana until his self-diagnosed anxiety, and 
related stress, subsided. (TR at page 29 line 9 to page 31 line 6.) At his hearing, 
Applicant recanted this averment. (TR at page 31 line 7 to page 34 line 9.) 
 
 Subsequent to his hearing, Applicant offered a letter of recommendation from a 
“close friend” of “over 30 years.” (AppX C.)   
 
Policies 
 
 When evaluating an applicant’s suitability for a security clearance, the 
administrative judge must consider the adjudicative guidelines (AG). 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, administrative judges apply the guidelines in 
conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The 
 
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administrative judge’s overarching 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. 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, 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 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. 
  
Section 7 of Executive Order 10865 provides that 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 relating to the guideline for Drug Involvement and 
Substance Misuse is set forth at 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 
 
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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 at AG ¶ 25 contains seven conditions that could raise a security 
concern and may be disqualifying. Two conditions are established: 
 
(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. 
 
 Appellant smoked marijuana for about 17 years, from about 1987~1996, and 
from about 2010~2017. Therefore, AG ¶ 25 (a), and (c ) are established.  
 
The guideline at AG ¶ 26 contains four conditions that could mitigate security 
concerns. Two conditions may be 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; 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 ceased his marijuana use about 18 months ago, only after being 
interviewed by a DOD investigator. However, during that interview Applicant averred 
that he intended to use the illegal substance in the future. I find that not enough time 
has passed to believe that Applicant will now adhere to his new averment. Guideline H 
is found against Applicant.  
 
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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 an applicant’s 
conduct and all the 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; (8) the potential for pressure, coercion, exploitation, or 
duress; and (9) the likelihood of continuation or recurrence.  
 
 AG ¶ 2(b) requires each case must be judged on its own merits.  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. Overall, the record evidence leaves 
me with questions and doubts as to Applicant’s eligibility and suitability for a security 
clearance. For all these reasons, I conclude Applicant has not mitigated the security 
concerns arising from his drug involvement and substance abuse.  
 
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:   AGAINST APPLICANT 
 
  Subparagraph 1.a:    Against Applicant 
Subparagraph 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 national security eligibility 
for a security clearance.  Eligibility for access to classified information is denied. 
 
 
                                                     
_________________ 
Richard A. Cefola 
Administrative Judge