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       DEPARTMENT OF DEFENSE 
   DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: )
)
) ISCR Case No. 18-01496 
) 
Applicant for Security Clearance ) 
Appearances 
For Government: Andre M. Gregorian, Esq., Department Counsel 
For Applicant: Pro se 
__________ 
Decision 
__________ 
RIVERA, Juan J., Administrative Judge: 
Applicant illegally used marijuana between 2005 and May 2018. He used 
marijuana after he submitted his security clearance application (SCA) in May 2017, and 
after he was questioned about his illegal marijuana use during a background interview 
in December 2017. The passage of time so far is insufficient to demonstrate his 
reliability, trustworthiness, ability to comply with the law, rules and regulations, and his 
ability to protect classified information. Drug involvement and substance misuse security 
concerns are not mitigated. Clearance denied.  
Statement of the Case 
Applicant submitted a SCA on May 23, 2017. He was interviewed by a 
government investigator on December 13, 2017. After reviewing the information 
gathered during the background investigation, the Department of Defense (DOD) issued 
a Statement of Reasons (SOR) alleging security concerns under Guideline H (drug 
involvement and substance misuse) on June 18, 2018. Applicant answered the SOR on 
June 25, 2018, and requested a decision based on the record in lieu of a hearing. 
A copy of the Government’s file of relevant material (FORM), submitting the 
evidence supporting the security concerns, was provided to Applicant by letter dated 
02/28/2019
 
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August 10, 2018. Applicant received the FORM on August 15, 2018. He was allowed 30 
days to submit any objections to the FORM and to provide material to refute, extenuate, 
and mitigate the concerns. Applicant did not respond to the FORM. The case was 
assigned to me on December 10, 2018. Lacking any objections, I admitted and 
considered the Government’s proposed evidence.  
 
Findings of Fact 
 
Applicant admitted the sole SOR allegation under Guideline H. In his SOR 
answer he noted that he disclosed his marijuana use in his 2017 SCA, and that his use 
of marijuana was legal in his state of residence. He promised to discontinue using 
marijuana if required for his job or clearance eligibility. His admission is incorporated as 
a finding of fact. After a thorough review of the record evidence, I make the following 
additional findings of fact:  
 
Applicant is a 30-year-old employee of a federal contractor. He graduated from 
high school in 2006, earned a bachelor’s degree in 2010, and received a doctorate 
degree (Ph.D.) from a prestigious U.S. university in 2017. He is engaged to be married. 
He has no children.  
 
Between 2010 and 2016, Applicant worked as a research assistant at the 
university where he earned his doctorate degree. His current employer and clearance 
sponsor, a federal contactor, hired him in 2016, and he has worked there ever since. In 
his response to Section 23 (Illegal Use of Drugs or Drug Activity) of his May 2017 SCA, 
Applicant disclosed that he illegally used marijuana between June 2005 and April 2017. 
He stated that had not participated in substance-abuse counseling.  
 
During his December 2017 background interview with a government investigator, 
Applicant confirmed that he illegally used marijuana about weekly during social 
occasions, and for pain management for sports-related injuries, between 2005 and 
December 2017. He noted that his fiancée, siblings, and friends were aware of his 
marijuana use. He told the investigator that he was not marijuana dependent. He 
promised to stop using marijuana if required for his job or clearance eligibility. In his 
response to DOHA interrogatories, Applicant stated that his most recent use of 
marijuana occurred on May 26, 2018. 
 
Policies 
 
The SOR was issued under Executive Order (Exec. Or.) 10865, Safeguarding 
Classified Information Within Industry (February 20, 1960), as amended; DOD Directive 
5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive) 
(January 2, 1992), as amended; and the National Security Adjudicative Guidelines for 
Determining Eligibility for Access to Classified Information or Eligibility to Hold a 
Sensitive Position (AGs), applicable to all adjudicative decisions issued on or after June 
8, 2017.    
 
 
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Eligibility for access to classified information may be granted “only upon a finding 
that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, § 2. The 
U.S. Supreme Court has recognized the substantial discretion of the Executive Branch 
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). 
 
The AG list disqualifying and mitigating conditions for evaluating a person’s 
suitability for access to classified information. Any one disqualifying or mitigating 
condition is not, by itself, conclusive. However, the AG should be followed where a case 
can be measured against them, as they represent policy guidance governing access to 
classified information. Each decision must reflect a fair, impartial, and commonsense 
consideration of the whole person and the factors listed in SEAD 4, App. A ¶¶ 2(d) and 
2(f). All available, reliable information about the person, past and present, favorable and 
unfavorable, must be considered.  
 
Security clearance decisions resolve whether it is clearly consistent with the 
national interest to grant or continue an applicant’s security clearance. The Government 
must prove, by substantial evidence, controverted facts alleged in the SOR. If it does, 
the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the facts. The 
applicant bears the heavy burden of demonstrating that it is clearly consistent with the 
national interest to grant or continue his or her security clearance.  
 
Persons with access to classified information enter into a fiduciary relationship 
with the Government based on trust and confidence. Thus, the Government has a 
compelling interest in ensuring each applicant possesses the requisite judgment, 
reliability, and trustworthiness of those who must protect national interest as their own. 
The “clearly consistent with the national interest” standard compels resolution of any 
reasonable doubt about an applicant’s suitability for access in favor of the Government. 
“[S]ecurity clearance determinations should err, if they must, on the side of denials.” 
Egan, 484 U.S. at 531; SEAD 4, ¶ E(4); SEAD 4, App. A, ¶¶ 1(d) and 2(b). Clearance 
decisions are not a determination of the loyalty of the applicant concerned. They are 
merely an indication that the applicant has or has not met the strict guidelines the 
Government has established for issuing a clearance. 
 
Analysis 
 
Drug Involvement and Substance Misuse 
 
AG ¶ 24 articulates the security concern for the illegal use of drugs:  
 
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.  
 
Between 2005 and May 2018, Applicant illegally used marijuana. He illegally 
used marijuana after submitting his May 2017 SCA, and after being questioned about 
his illegal marijuana use during a background interview in December 2017. Moreover, 
he continued to use marijuana at least until he answered DOHA interrogatories in May 
2018. AG ¶ 25 provides disqualifying conditions that could raise a security concern 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 
 
The record established the disqualifying conditions under AG ¶¶ 25(a) and (c), 
requiring additional inquiry about the possible applicability of mitigating conditions under 
AG ¶ 26: 
 
(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; 
 
(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. 
 
The Appeal Board concisely explained Applicant’s responsibility for proving the 
applicability of mitigating conditions as follows:  
 
Once a concern arises regarding an Applicant’s security clearance 
eligibility, there is a strong presumption against the grant or maintenance 
 
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of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th 
Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government 
presents evidence raising security concerns, the burden shifts to the 
applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The 
standard applicable in security clearance decisions is that articulated in 
Egan, supra. “Any doubt concerning personnel being considered for 
access to classified information will be resolved in favor of the national 
security.” Directive, Enclosure 2 ¶ 2(b).  
 
ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013).  
 
None of the mitigating conditions apply. Applicant has a long history of illegal 
marijuana use. Applicant started his illegal use of marijuana during high school (2006), 
and he continued using marijuana until at least May 2018. He knew that the possession 
of marijuana was illegal. Moreover, he knew the illegal use of drugs was a concern for 
the Federal government because he was asked about it in his May 2017 SCA, and 
during his December 2017 background interview. Notwithstanding, he continued his 
illegal marijuana use until May 2018.  
 
Applicant’s long-term illegal use of marijuana after submitting a SCA and 
knowing about the concerns raised by it cast doubts on his current reliability, 
trustworthiness, good judgment, ability or willingness to comply with laws, rules, and 
regulations, and suitability to hold a clearance. 
 
I considered that Applicant self-reported his past illegal marijuana use in his 2017 
SCA. I also considered that he promised in his SCA and during his background 
interview to stop illegally using marijuana, if required for his job and his clearance 
eligibility. I consider Applicant’s promises to be lacking weight and credibility. Applicant 
knew the possession of marijuana is illegal under Federal law. He became aware of the 
security concerns it raised when he submitted his SCA and when he was questioned 
about his illegal use of marijuana during his background interview. Notwithstanding, the 
notice that he received concerning the security concern about marijuana, he was not 
dissuaded from using marijuana until at least May 2018.  
 
The DOHA Appeals Board has stated that “Drug involvement after having 
completed an SCA draws into serious questions the applicant’s judgment, reliability, and 
willingness to follow rules and regulations, insofar as it placed the applicant on notice of 
the consequences of such misconduct. ISCR Case No. 16-02877, at 3 (App. Bd. Oct. 2, 
2017). Additionally, Applicant’s evidence is insufficient to show that he no longer 
associates with illegal marijuana users or dealers. More mitigating evidence and 
additional time without recurrence of substance misuse is needed for Applicant to 
establish his reliability, trustworthiness, his ability to comply with laws rules and 
regulations, and his suitability for a clearance. 
 
 
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Whole-Person Concept 
 
 I considered the potentially disqualifying and mitigating conditions in light of all 
the facts and circumstances surrounding this case, and under the whole-person 
concept. SEAD 4, App. A, ¶¶ 2(a) and 2(d). I have incorporated my comments under 
Guideline H in my whole-person analysis. Some of these factors were addressed under 
that guideline, but some warrant additional comment. 
 
Applicant is a 30-year-old employee of a federal contractor. He attended 
prestigious U.S. universities and achieved a Ph.D. He has worked for a federal 
contractor since 2016. Applicant disclosed his substance misuse in his 2017 SCA. He 
stated his intent to not use marijuana illegally if required for his job or clearance 
eligibility.  
 
The factors against granting a clearance are more substantial. Applicant’s lack of 
judgment and his unwillingness to comply with the law, rules, and regulations continue 
to raise questions about his current reliability, trustworthiness, and ability to protect 
classified or sensitive information. His lack of judgment is demonstrated by his 
continued use of marijuana after submitting his 2017 SCA, and after being questioned 
about his use of marijuana during a background interview in December 2017, until at 
least May 2018. He demonstrated an inability or unwillingness to follow Federal law. 
The substance misuse security concerns are not mitigated. 
 
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 
 
  Subparagraph 1.a:      Against Applicant 
 
Conclusion 
 
In light of all the circumstances presented by the record in this case, it is not 
clearly consistent with the national security interests of the United States to continue 
Applicant’s eligibility for a security clearance. Clearance is denied. 
 
 
 
____________________________ 
JUAN J. RIVERA 
Administrative Judge