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      DEPARTMENT OF DEFENSE 
     DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: )
)
)       ISCR Case No: 18-02282 
) 
Applicant for Security Clearance ) 
Appearances 
For Government: Jeff A. Nagel, Esquire, Department Counsel 
For Applicant: Pro se 
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Decision 
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Dam, Shari, Administrative Judge: 
Applicant failed to mitigate the security concerns raised under the guideline for 
drug involvement and substance misuse, relating to his illegal use of marijuana and 
prescription drugs. He used marijuana after receiving a security clearance. Based upon 
a review of the pleadings and exhibits, national security eligibility is denied.  
Statement of Case 
On October 9, 2018, the Department of Defense Consolidated Adjudications 
Facility (DOD CAF) issued to Applicant a Statement of Reasons (SOR), detailing security 
concerns under Guideline H (Drug Involvement and Substance Misuse). Applicant 
responded to the SOR on October 17, 2018, and requested his case be decided by an 
administrative judge on the written record without a hearing.   
On November 18, 2018, Department Counsel submitted the Government’s written 
case. A complete copy of the File of Relevant Material (FORM), containing three Items, 
was mailed to Applicant and received by him on November 28, 2018. The FORM notified 
Applicant that he had an opportunity to file objections and submit material in refutation, 
extenuation, or mitigation within 30 days of receipt of the FORM. Applicant did not 
respond to the FORM or object to Items 1 through 3. Hence, all Items are admitted into 
03/05/2019
 
 
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evidence. On February 7, 2019, the Defense Office of Hearings and Appeals (DOHA) 
assigned the case to me.  
 
Findings of Fact  
 
 Applicant admitted the five SOR allegations contained in Paragraph 1. (Item 1) His 
admissions are incorporated into these findings of fact. 
 
 Applicant is 24 years old, a college graduate, and unmarried. He has worked for a 
defense contractor since August 2017. He received an interim security clearance in 
October 2017. (Items 1, 2)  
 
 In August 2017, Applicant submitted a security clearance application (SF-86). In it 
he disclosed the following information related to past illegal drug use: he illegally used 
with varying frequency marijuana between June 2012 and January 2018; he purchased 
marijuana from September 2013 to April 2016; he used cocaine once in 2014; and he 
misused two prescriptions, Adderall and Vyvanse, from November 2013 to December 
2014, while in college. During a background interview in March 2018, Applicant admitted 
that he illegally used marijuana in early January 2018, after having received an interim 
security clearance in October 2017. He said he used marijuana for social reasons and 
took the prescription drugs to help him study while in college. He used marijuana with 
friends. (Item 3) 
 
 During the March 2018 interview, Applicant stated he does not intend to use illegal 
drugs or marijuana in the future. (Item 3) There is no information indicating that Applicant 
has participated in treatment for substance abuse or other information confirming that he 
no longer illegally uses marijuana or other drugs; or that he no longer associates with 
people who use illegal drugs. No other relevant information was provided by Applicant. 
  
Policies 
 
The national security eligibility action was taken under Executive Order 10865, 
Safeguarding Classified Information within Industry (February 20, 1960), as amended; 
DoD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program 
(January 2, 1992), as amended (Directive); and the Adjudicative Guidelines for 
Determining Eligibility for Access to Classified Information (AG), which became effective 
within the DOD on June 8, 2017. 
 
 When evaluating an applicant’s suitability for national security eligibility, the 
administrative judge must consider the AG. In addition to brief introductory explanations 
for each guideline, the AG list potentially disqualifying conditions and mitigating 
conditions, which are to be used in evaluating an applicant’s eligibility for access to 
classified information. 
 
 
 
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 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 AG ¶ 2 describing the adjudicative process. The administrative judge’s 
overarching adjudicative goal is a fair, impartial, and commonsense decision. The entire 
process is a conscientious scrutiny of applicable guidelines in the context 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. I have not drawn inferences based on mere speculation or 
conjecture.  
 
 Directive ¶ E3.1.14 requires the Government to 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 applying for national security eligibility seeks to enter 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 national 
security eligibility. 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 or sensitive information.  
  
 Finally, as emphasized in Section 7 of Executive Order 10865, “[a]ny determination 
under this order adverse to an applicant shall be a determination in terms of the national 
interest and shall in no sense be a determination as to the loyalty of the applicant 
concerned.” See also Executive Order 12968, Section 3.1(b) (listing multiple prerequisites 
for access to classified or sensitive information.) 
 
Analysis 
 
Guideline H: Drug Involvement and Substance Misuse 
 
AG ¶ 24 describes the security concerns related to this guideline: 
 
The illegal use of controlled substances, to include the misuse of 
prescription and non-prescription drugs, and the use of other substances 
 
 
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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. Substance misuse is the generic term adopted in 
this guideline to describe any of the behaviors listed above. 
 
AG ¶ 25 sets out conditions that could raise security concerns and may be 
disqualifying in this case. Three are potentially applicable: 
 
(a) any substance misuse (see above definition);   
 
(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. 
 
 Applicant illegally used marijuana from 2012 to 2018 and purchased it from 2013 
to 2016. He used marijuana after he received an interim security clearance in October 
2017. He illegally used cocaine and prescription medication between 2013 and 2014. The 
evidence raised the above disqualifying conditions, thereby shifting the burden to 
Applicant to rebut, extenuate, or mitigate those concerns.  
 
AG ¶ 26 lists conditions that could mitigate security concerns raised under this 
guideline. They are as follows: 
 
(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; and 
 
(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 
 
 
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involvement or misuse is grounds for revocation of national security 
eligibility; 
 
(c) abuse of prescription drugs was after a severe or prolonged illness 
during which these drugs were prescribed, and abuse has since ended; and 
 
(d) satisfactory completion of a prescribed drug treatment program, 
including, but not limited to, rehabilitation and aftercare requirements, 
without recurrence of abuse, and a favorable prognosis by a duly qualified 
medical professional. 
 
 There is insufficient evidence to establish mitigation under any of the above 
mitigating conditions. Applicant’s illegal drug use occurred from 2012 to 2018 and 
occurred with sufficient frequency to raise ongoing concerns about Applicant’s current 
reliability, trustworthiness, and judgment. The evidence does not establish mitigation 
under AG ¶ 26(a). Applicant honestly disclosed and acknowledged his history of illegal 
drug and marijuana use. In March 2018, he said he did not intend to use illegal substances 
in the future. However, that statement is insufficient evidence to establish mitigation under 
AG ¶ 26(b) because there is no evidence to substantiate that he has taken actions to stop 
using marijuana or other illegal drugs; that he has established a pattern of abstinence; or 
that he no longer associates with friends with whom he used drugs. Applicant used 
prescription medications that were not prescribed for him. There is no evidence his 
misuse was related to an illness. AG ¶ 26(c) does not apply. Applicant has neither 
successfully participated in nor completed a substance abuse treatment program, as 
required to establish mitigation under AG ¶ 26(d). 
 
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 
conduct and all relevant 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.  
 
 According to 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 applicable guidelines and the whole-person concept. 
 
 
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   I considered the potentially disqualifying and mitigating conditions in light of all 
pertinent facts and circumstances surrounding this case. I have incorporated my 
comments under Guideline H in my whole-person analysis. Some of the factors in AG ¶ 
2(d) were addressed under that guideline, but some warrant additional comment. 
 
 Applicant honestly and voluntarily disclosed to the Government his history of 
abusing marijuana and prescription drugs. He stated in March 2018 that he does not 
intend to use marijuana or other drugs in the future. While his disclosure and statement 
are some evidence that he is committed to not engaging in similar misconduct in the 
future, they are insufficient to conclude that he has successfully overcome his long-term 
use of illegal drugs. In August 2017, Applicant completed his SF-86, which put him on 
notice that any illegal drug use was a security concern. He was subsequently granted an 
interim security clearance and continued to illegally use marijuana. Although some of his 
conduct may be attributable to youthful indiscretion, Applicant’s decision to use marijuana 
after he received an interim security clearance is recent, and raises questions about his 
present judgement and commitment to not use illegal drugs in the future. Overall, the 
record evidence leaves me with doubt as to Applicant’s eligibility for a security clearance. 
He did not meet his burden to mitigate the security concerns arising under the guideline 
for drug involvement and substance misuse. 
 
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 
 
     Subparagraphs 1.a through 1.e:            Against Applicant 
 
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 access to classified 
information. National security eligibility is denied. 
 
                                                   
 
SHARI DAM 
Administrative Judge