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       DEPARTMENT OF DEFENSE 
   DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: )
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[NAME REDACTED] )       ISCR Case No. 18-01483 
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Applicant for Security Clearance ) 
Appearances 
For Government: Aubrey DeAngelis, Esq., Department Counsel 
For Applicant: Pro se 
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Decision 
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MALONE, Matthew E., Administrative Judge: 
Applicant demonstrated exceedingly poor judgment by using marijuana while 
holding a security clearance; however, he is unlikely to repeat his past misconduct. 
Additionally, the information he presented about his current judgment, reliability, and 
trustworthiness was sufficient to mitigate the security concerns about his personal 
conduct. His request for a security clearance is granted. 
Statement of the Case 
On April 25, 2017, Applicant submitted an Electronic Questionnaire for 
Investigations Processing (e-QIP) to renew his eligibility for a security clearance required 
for his employment with a defense contractor. Based on the results of the ensuing 
background investigation, Department of Defense (DOD) adjudicators could not 
03/22/2019
 
 
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determine that it is clearly consistent with the interests of national security for Applicant 
to have a security clearance.1 
 
 On June 15, 2018, DOD issued a Statement of Reasons (SOR) alleging facts that 
raise security concerns under the adjudicative guidelines for drug involvement and 
substance misuse (Guideline H) and personal conduct (Guideline E).2 Applicant timely 
responded to the SOR (Answer) and requested a hearing.  
 
 I received the case on September 19, 2018, and convened the requested hearing 
on December 12, 2018. The parties appeared as scheduled. Department Counsel 
proffered Government Exhibits (GX) 1 – 3. Applicant testified and proffered Applicant 
Exhibit (AX) A. All exhibits were admitted without objection. I received a transcript of the 
hearing (Tr.) on January 2, 2019. 
 
Findings of Fact 
 
 Under Guideline H, the Government alleged Applicant used marijuana between 
August 2009 and August 2016, while holding a security clearance he received in April 
2009. (SOR 1.a). The same conduct was cross-alleged under Guideline E (SOR 2.a). In 
response, Applicant admitted both allegations and provided extensive explanatory 
remarks, as well as numerous documents attesting to his character, reliability, lifestyle 
and accomplishments. (Answer) In addition to the facts established by Applicant’s 
admissions, I make the following additional findings of fact. 
 
 Applicant is 33 years old and works as an engineer for a defense contractor. After 
graduating from college with a degree in electrical engineering in 2008, he was hired in 
February 2009 by a large defense contractor. He worked there until February 2017, when 
that company lost the contract on which he was working. Applicant then was hired by the 
company that took over the contract, working there until February 2018, when he was 
hired for the position he now occupies. (Answer; GX 1 – 3; Tr. 38) 
 
 After Applicant was hired for his first defense contractor job, he submitted an 
Electronic Questionnaire for Investigations Processing (e-QIP) on February 12, 2009. In 
April 2009, he was granted a security clearance, which he has held ever since. Applicant 
first tried marijuana in August 2009 and continued to use marijuana sporadically until 
August 2016. He disclosed his drug use when he submitted his most recent e-QIP for 
purposes of obtaining eligibility for top secret access with eligibility for access to sensitive 
compartmented information. He also discussed his drug use with a government 
investigator in August 2017. Applicant has never failed a workplace urinalysis or other 
drug screening test. There have been no breaks in the employment for which he requires 
                                                 
1 Required by Executive Order 10865, as amended, and by DOD Directive 5220.6 (Directive), as amended. 
 
2 The adjudicative guidelines were issued by the Director of National Intelligence on December 10, 2016, 
to be effective for all adjudications on or after June 8, 2017. 
 
 
 
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to have access to classified information. Applicant never bought, sold, or possessed 
marijuana. Rather, he used it when it was offered to him in social settings, such as 
camping trips, concerts, and house parties. In 2014 and 2015, Applicant had a girlfriend 
who frequently used marijuana for pain management, and Applicant used it a few times 
with her. Applicant is an avid outdoorsman and engages in a variety of sports and 
endurance events each year. He averred that he stopped using marijuana in 2016 for 
health reasons, particularly because he was diagnosed with asthma. He was given that 
diagnosis in 2012, but smoked marijuana on occasion thereafter. (Answer; GX 1 – 3; Tr. 
29 – 36, 40 – 42) 
 
 Applicant also claimed that he was not aware of any specific proscription against 
using marijuana as part of his employers’ drug policies; however, before he was hired for 
his jobs in 2009 and 2018, he had to pass a pre-employment drug screening. He also 
was aware that he could be fired if he tested positive for marijuana through workplace 
screening. Applicant never used marijuana at work or with any coworkers; nor did he ever 
use marijuana while traveling for work assignments. While he acknowledged that he did 
not consider the work or security ramifications of his marijuana use when it was offered 
to him, he has accepted full responsibility for his actions and has been candid and 
forthcoming to the best of his abilities about his misconduct. (Tr. 23 – 28, 37) 
 
 Applicant has an outstanding reputation among his current and past co-workers 
and supervisors, and others with whom he associates away from work. He submitted over 
20 letters of recommendation. Most of his character references were informed that he 
had used marijuana, yet still vouched for his character and reliability. Applicant no longer 
associates with anyone who uses illegal drugs, and he has a new girlfriend with whom he 
is in a committed relationship. She does not use drugs nor condone such conduct. Finally, 
Applicant has submitted a notarized statement of intent to abstain from illegal drug use in 
the future. (Answer; AX A) 
 
Policies 
 
 Each security clearance decision must be a fair, impartial, and commonsense 
determination based on examination of all available relevant and material information,3 
and consideration of the pertinent criteria and adjudication policy in the adjudicative 
guidelines (AG). Decisions must also reflect consideration of the factors listed in ¶ 2(d) of 
the guidelines. Commonly referred to as the “whole-person” concept, those factors are:  
 
  (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; 
                                                 
3 See Directive. 6.3. 
 
 
 
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(8) the potential for pressure, coercion, exploitation, or duress; and (9) the 
likelihood of continuation or recurrence. 
 
 The presence or absence of a disqualifying or mitigating condition is not 
determinative of a conclusion for or against an applicant. However, specific applicable 
guidelines should be followed whenever a case can be measured against them as they 
represent policy guidance governing the grant or denial of access to classified 
information. A security clearance decision is intended only to resolve whether it is clearly 
consistent with the national interest4 for an applicant to either receive or continue to have 
access to classified information.  
 
 The Government bears the initial burden of producing admissible information on 
which it based the preliminary decision to deny or revoke a security clearance for an 
applicant. Additionally, the Government must be able to prove controverted facts alleged 
in the SOR. If the Government meets its burden, it then falls to the applicant to refute, 
extenuate or mitigate the Government’s case. Because no one has a “right” to a security 
clearance, an applicant bears a heavy burden of persuasion.5 A person who has access 
to classified information enters 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 one who will 
protect the national interests as his or her 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.6 
 
Analysis 
 
Drug Involvement and Substance Misuse 
 
 Applicant illegally used marijuana with varying frequency between 2009 and 2016, 
at all times while he held a security clearance. This information reasonably raises a 
security concern about illegal drug use that is stated 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 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 
                                                 
4 See Department of the Navy v. Egan, 484 U.S. 518 (1988). 
 
5 See Egan, 484 U.S. at 528, 531. 
 
6 See Egan; AG ¶ 2(b). 
 
 
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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. 
 
 More specifically, the Government’s information requires application of the 
following AG ¶ 25 disqualifying conditions: 
 
(a) any substance misuse (see above definition); and 
 
(f) any illegal drug use while granted access to classified information or 
holding a sensitive position. 
 
 The record also supports application of the mitigating condition at AG ¶ 26(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. 
 
 On balance, I conclude Applicant is unlikely to engage in such conduct in the 
future. His drug use was sporadic, at most, and his circumstances have changed so as 
to make it increasingly unlikely he will use marijuana in the future. The security concerns 
under this guideline are mitigated. 
 
Personal Conduct 
 
 Applicant’s repeated willingness to engage in illegal drug use while holding a 
security clearance reasonably raises a security concern about his willingness or ability to 
adhere to rules and regulations while safeguarding sensitive information. That security 
concern is expressed, in relevant part, at AG ¶ 15: 
 
Conduct involving questionable judgment, lack of candor, dishonesty, or 
unwillingness to comply with rules and regulations can raise questions 
about an individual's reliability, trustworthiness, and ability to protect 
classified or sensitive information. Of special interest is any failure to 
cooperate or provide truthful and candid answers during national security 
investigative or adjudicative processes. 
 
 
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More specifically, the record evidence as a whole requires application of the 
disqualifying condition at AG ¶ 16(c): 
 
credible adverse information in several adjudicative issue areas that is not 
sufficient for an adverse determination under any other single guideline, but 
which, when considered as a whole, supports a whole-person assessment 
of questionable judgment, untrustworthiness, unreliability, lack of candor, 
unwillingness to comply with rules and regulations, or other characteristics 
indicating that the individual may not properly safeguard classified or 
sensitive information. 
 
By contrast, of the mitigating conditions listed under this guideline, only AG ¶ 17(c) 
(the offense is so minor, or so much time has passed, or the behavior is so infrequent, or 
it happened under such unique circumstances that it is unlikely to recur and does not cast 
doubt on the individual's reliability, trustworthiness, or good judgment) is pertinent here. 
 
Applicant’s use of marijuana while holding a security clearance raises broader 
doubts about his judgment. My assessment of all of the information probative of 
Applicant’s decision making in that regard leads me to conclude that either he knew he 
was not supposed to engage in such conduct and did so anyway, or at the very least, that 
he was willfully ignorant of his employer’s drug policies and his own responsibilities under 
those policies. If nothing else, Applicant knew or should have known that his conduct was 
a violation of federal law. Such conduct undermines confidence in Applicant’s willingness 
or ability to follow rules and regulations attendant to his duties as the government’s 
fiduciary in safeguarding sensitive information. Applicant either decided to engage in 
illegal drug use, or he did not consider that he bore responsibilities that his friends, who 
offered him marijuana, did not.  
 
Nonetheless, I am mindful of the overwhelmingly positive information produced 
about Applicant’s current judgment, reliability, and trustworthiness from persons who 
know about his drug use and have observed him in a variety of personal and professional 
circumstances, including classified work environments. Despite the adverse information 
about Applicant, each of his character references recommended him for a position of 
trust. That information, along with Applicant’s credible testimony that he takes full 
responsibility for his actions and understands the full scope of the government’s concerns, 
persuades me that Applicant’s use of marijuana is not indicative of his current judgment 
and reliability. Applicant no longer associates with anyone who uses illegal drugs, and he 
is in a committed relationship with a girlfriend who does not condone such conduct. I also 
have evaluated this record in the context of the whole-person factors listed in AG ¶ 2(d). 
 
Based on the foregoing, I conclude that AG ¶ 17(c) is applicable here, and that a 
fair and commonsense assessment of the record evidence as a whole shows that the 
security concerns raised by Applicant’s use of marijuana while holding a security 
clearance are mitigated. 
 
 
 
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Formal Findings 
 
 Formal findings 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 
 
 Subparagraph 1.a:  For Applicant 
 
Paragraph 1, Guideline E:  FOR APPLICANT 
 
 Subparagraph 2.a:  For Applicant 
 
Conclusion 
 
 In light of all of the foregoing, it is clearly consistent with the interests of national 
security for Applicant to have access to classified information. Applicant’s request for a 
security clearance is granted. 
 
 
 
                                        
MATTHEW E. MALONE 
Administrative Judge