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       DEPARTMENT OF DEFENSE 
   DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: )
)
) ISCR Case No. 17-03746 
) 
Applicant for Security Clearance ) 
Appearances 
For Government: Tovah Minster, Esq., Department Counsel 
For Applicant: Jeffrey D. Billett, Esq. 
__________ 
Decision 
__________ 
RIVERA, Juan J., Administrative Judge: 
Applicant illegally possessed and used marijuana between 2002 and February 
2017. He used marijuana after submitting an application for a position of trust in 2013, 
serving in positions of trust in 2013 and 2015, participating in a drug screening test 
while in-processing for a position of trust in 2015, and after he was warned by a relative 
about the possible consequences of his illegal marijuana use. 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 security clearance application (SCA) on March 3, 2017. 
After reviewing the information gathered during the background investigation, the 
Department of Defense (DOD) issued Applicant a Statement of Reasons (SOR) alleging 
security concerns under Guideline H (drug involvement and substance misuse) on 
November 22, 2017. Applicant answered the SOR and requested a decision based on 
the record in lieu of a hearing on December 15, 2017. After receiving the Government’s 
File of Relevant Material (FORM) with the evidence supporting the security concerns 
03/15/2019
 
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and the clearance denial, Applicant requested a hearing before an administrative judge 
from the Defense Office of Hearings and Appeals (DOHA).  
 
DOHA assigned the case to me on July 19, 2018. The initial Notice of Hearing 
(NOH) was issued on November 13, 2018, setting a hearing for December 17, 2018. 
Applicant was granted a continuance to retain counsel on November 30, 2018, and the 
hearing was rescheduled for January 29, 2019. At the hearing, the Government offered 
two exhibits (GE 1 and 2). Applicant objected to the admissibility of GE 2 (two 
unauthenticated summaries of Applicant’s interviews conducted by background 
investigators) pursuant to Section 5 of the Directive. The Government withdrew GE 2, 
and the document was made part of the record, but it was not considered as evidence. 
Applicant testified and submitted six exhibits. (AE 1 through 6) All exhibits were 
admitted without objection. DOHA received the hearing transcript (Tr.) on February 7, 
2019. 
 
Findings of Fact 
 
In his Answer to the SOR, Applicant admitted the substance of the sole Guideline 
H allegation – that he illegally used marijuana between June 2002 and February 2017. 
In his Answer, he disputed the frequency of his use, the period during which he used it 
most frequently, and his recent diminishing use of marijuana. His admissions in his 
Answer to the SOR and at his hearing are incorporated herein as findings of fact. After a 
thorough review of the record evidence, Applicant’s demeanor while testifying, and his 
testimony, I make the following additional findings of fact:  
 
Applicant is a 34-year-old employee of a federal contractor. He graduated from 
high school in 2003, earned a bachelor’s degree in 2007, and completed a master’s 
degree in 2014. He married in 2012, and has two sons, born in 2016, and 2017. This is 
his first application for a clearance, but he had previously applied for and was granted 
eligibility for a position of trust in 2013. 
 
Applicant started illegally using marijuana during his last year of high school 
(2002). He continued using marijuana while in college, and after graduate school. He 
testified that his use was with a close group of friends at intimate party gatherings. (Tr. 
40) He averred that he never sought out marijuana, never purchased it, and that he no 
longer socializes with his marijuana-using friends. He estimated he used marijuana a 
couple of times a year. (Tr. 42) Applicant testified he tapered off his illegal use of 
marijuana around early 2009, when he was offered a job. He continued to use 
marijuana, but in an annual or semiannual basis. 
 
Applicant used marijuana once or twice a year until about 2016, when he started 
to cut down on his use. He claimed that he did not use marijuana during the two periods 
of nine months in 2013 and 2015, when he held positions of trust. A corporation hired 
Applicant for an internship position while he was a graduate student in about June 2013. 
He submitted a Questionnaire for Public Trust Positions (SF85P Format) in September 
2013. (GE 1) In his response to Section 21 (Illegal Drugs) he denied using any illegal 
 
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drugs, including marijuana, during the last year. In his response to Section 23 (Your Use 
of Illegal Drugs or Drug Activity), Applicant disclosed that: in the last seven years he had 
illegally used marijuana “a couple of times” and further qualified his use as “a few times 
while a student in college,” between August 2003 and May 2007.  
 
In August 2015, Applicant, while working for his current employer, was assigned 
to a position of trust with a federal agency. (Tr. 37) He was required to participate in a 
drug-screening test when he in-processed for his 2015 position. Applicant claimed that 
he did not use marijuana while working on the two positions of trust, because he did not 
want to use it while working in a privileged position, and he had a very busy school 
schedule, was married, and was working. 
 
After his assignment to the position of trust ended in 2016, Applicant claimed he 
illegally used marijuana only twice. Once in July 2016 during a summer barbecue party 
with family and friends, an “old family friend” offered him marijuana and he accepted it. 
He explained that had had a few beers, was not driving, had no other obligations, felt in 
control of himself, and took “a hit of the joint.” (Tr. 48)  
 
Applicant claimed that he regretted the incident immediately and began a period 
of reconsidering his behavior. He averred he did not feel great and the incident 
provoked him anxiety. His father learned about his illegal use of marijuana and asked 
him, “Is that really something you want to be doing at this point in your life?” His father 
suggested Applicant put his priorities in order and advised he did not use marijuana 
again. (Tr. 80) 
 
In February 2017, Applicant’s soon-to-be brother-in-law was having a three-day 
bachelor’s party in another state with friends and family. Applicant stated that he was 
encouraged by his friends to illegally use marijuana and he did. Applicant claimed that 
he no longer enjoys using marijuana and that he immediately regretted his illegal 
marijuana use. Applicant claimed he has no knowledge about his brother-in-law using 
marijuana again since the bachelor’s party.  
 
Applicant’s current employer, a federal contractor, hired him in August 2015. 
Applicant submitted an Electronic Questionnaire for Investigations Processing (SF86 
Format) in March 2017. (SCA, GE 1) In his response to Section 23 (Illegal Use of Drugs 
or Drug Activity), Applicant described his illegal use of marijuana as “used very 
sporadically . . . very infrequent use, roughly once a year,” between June 2002 and 
February 2017. He claimed that he did not intend to use drugs of any sort once granted 
a security clearance. 
 
Applicant has done well in his analyst position, and was promoted to consultant. 
He is currently pending further promotion to senior consultant. Both Applicant’s co-
worker and his counselor consider him to be honest, reliable, and an invaluable asset to 
his employer. He continuously receives outstanding feedback from clients, coworkers, 
and supervisors. He always conducts himself in a professional manner, works well with 
others, and frequently takes the initiative in complicated issues. Both references believe 
 
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Applicant is genuinely embarrassed and remorseful about his past use of drugs. They 
strongly recommended his eligibility for a clearance. I note that Applicant’s counselor 
did not seem to know the extent of his illegal marijuana use. She referred to his 17-year 
period of illegal marijuana use as “his mistake two years ago,” and “his brief lapse in 
judgment.” 
 
Applicant submitted a statement of intent promising never to use any illegal drugs 
again, and agreeing to the immediate termination of his clearance for any violation. He 
stated that in 2016, he started thinking about the choices he was making and before 
going to the bachelor’s party, he had decided to forego marijuana. He explained that the 
use of marijuana did not represent the person he wants to be or the lifestyle he wants to 
live. He noted that the demands on his life have increased as he got older. He now has 
two children, recently purchased a home, and has been promoted to a more demanding 
position. 
 
Applicant noted that he has been honest and forthcoming during the clearance 
process, disclosing his marijuana use in the 2013 application for eligibility for a trust 
position and in his 2017 SCA. Applicant claimed he was not aware whether his 
employer has a policy against the illegal use of drugs. However, he was aware that 
possession of marijuana is illegal under federal law. He claimed that the first instance 
he realized his illegal marijuana use could be a problem for his clearance was when he 
received the SOR. Applicant loves his work and the career opportunities it provides. He 
believes that he has been working hard to get to this point in his career. He would like to 
be trusted with a clearance and to continue his career progression. 
 
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.    
 
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 
 
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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 
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 2002 and February 2017, Applicant illegally possessed and used 
marijuana. He illegally possessed and used marijuana after getting married in 2012, 
after submitting his 2013 application for a public trust position and holding public trust 
positions in 2013 and 2015, after participating in an unscheduled drug screening test 
while in-processing for his 2015 public trust position, after the birth of his son in early-
2016, and after being counseled by his father about the possible adverse consequences 
 
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of his illegal marijuana possession and use in 2016. 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; 
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. 
 
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 
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.  
 
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“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 17-year history of illegal 
marijuana use. He started his possession and use of marijuana during high school 
(2002), and he continued using marijuana until February 2017. His marijuana use was 
recent, frequent, and did not occur under circumstances making recurrence unlikely. He 
knew that the possession of marijuana was illegal. Moreover, considering his education 
and job experience, he knew the illegal use of drugs was a concern for the Federal 
government because he was asked about it in his 2013 SF85P, and he was required to 
participate in a drug-screening test while in-processing for a position of trust in 2015. 
Notwithstanding, he continued his illegal marijuana use until February 2017.  
 
Applicant’s illegal use of marijuana after submitting an application for a position 
of trust 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 possession 
and use in his 2013 application for a position of trust and in his 2017 SCA. I also 
considered that he promised in his SCA and at his hearing to stop using marijuana in 
the future. 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 2013 position of trust application, 
when he participated in a drug screening test in 2015, and when he was counseled by 
his father about the possible consequences of his marijuana use in 2016. 
Notwithstanding, he was not dissuaded from using marijuana until at least in February 
2017.  
 
The DOHA Appeals Board has noted 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).  
 
Applicant provided a signed statement of intent to abstain from further illegal drug 
involvement. However, applicants who begin to address their security-significant 
conduct only when their personal interests are at stake may be lacking in judgment and 
reliability. See ISCR Case No. 16-01221 (App. Bd. May 30, 2018). His evidence is 
insufficient to show that he no longer associates with illegal marijuana users. In 2016, 
he associated with a college friend and family members during a barbecue and used 
marijuana in their presence. In 2017, he used marijuana with his now brother-in-law, 
family, and friends at a bachelor’s party. More mitigating evidence and additional time 
 
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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. 
 
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 and applied the adjudicative factors in AG ¶ 
2(d). Some of these factors were addressed under that guideline, but some warrant 
additional comment. 
 
Applicant, 34, has been employed with a federal contractor for about four years. 
His good performance has been noted. He is a successful and valuable employee and 
has been promoted accordingly. He disclosed his substance misuse in his 2013 
application for a position of trust and in his 2017 SCA. He stated his intent to abstain 
from further illegal drug involvement.  
 
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 2013 application for a position of trust, 
working on two position of trust in 2013 and 2015, participating in a drug screening test 
while in-processing for a position of trust in 2015, and after being counseled about the 
possible consequences of his use of marijuana by his father after he used marijuana 
during a family barbecue in 2016. Applicant has 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 
 
 
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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