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       DEPARTMENT OF DEFENSE 
   DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: )
)
)    ISCR Case No. 18-00120 
) 
Applicant for Security Clearance ) 
Appearances 
For Government: Andre M. Gregorian, Esq., Department Counsel 
For Applicant: Mary K. Deon, Esq. 
______________ 
Decision 
______________ 
KILMARTIN, Robert J., Administrative Judge: 
Applicant mitigated the security concerns under Guideline H (drug involvement and 
substance misuse). Applicant’s eligibility for access to classified information is granted. 
     Statement of the Case 
Applicant submitted a security clearance application (SCA) on May 5, 2017. On 
February 16, 2018, the Department of Defense Consolidated Adjudications Facility (DOD 
CAF) issued Applicant a Statement of Reasons (SOR) detailing security concerns under 
Guideline H. The DOD CAF acted under Executive Order (EO) 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 (AGs) implemented by 
DOD on June 8, 2017. 
Applicant timely answered the SOR, admitting all of the SOR allegations. He 
admitted to using marijuana (MJ) with varying frequency since 2001; using LSD once; 
and hallucinogenic mushrooms twice, as alleged in SOR ¶¶ 1.a, 1.b, and 1.c. Applicant 
also requested a hearing before an administrative judge. The case was assigned to me 
on January 3, 2019. On February 21, 2019, the Defense Office of Hearings and Appeals 
04/25/2019
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(DOHA) notified Applicant that the video teleconference (VTC) hearing was scheduled for 
March 28, 2019. I convened the VTC hearing as scheduled.  
 
Government Exhibits (GE) 1 and 2 were admitted into evidence without objection. 
At the hearing, Applicant testified and submitted a packet of documents, which was 
marked as Applicant’s Exhibit A (AE A) and admitted without objection. (Tr. 20) It included 
five attachments to Applicant’s previous response to a file of relevant material (FORM) 
submitted by the Government. These will be referred to as attachments 1-5. DOHA 
received the transcript (Tr.) on April 11, 2019.  
 
  Findings of Fact1 
 
Applicant is 31 years old. He graduated from high school in 2005 and obtained his 
bachelor’s degree in 2012. He has been employed as a software engineer for a federal 
contractor since March 2017. He previously left graduate school to work for a major 
automobile manufacturer in Detroit from 2014 to 2017. He was married in 2013 and 
reports no children and no military service. Applicant has not previously held a security 
clearance. (Tr. 43)   
 
On May 5, 2017, Applicant completed a Security Clearance Application (SCA), and 
in section 23 (illegal use of drugs or drug activity) he responded “yes” to questions about 
illegal drug use and/or misuse of prescription drugs within the last seven years. He 
estimated his use of marijuana MJ was from 2001 with varying frequency and his last use 
was in 2017.2 He also disclosed that he used LSD once in 2016, and hallucinogenic 
mushrooms twice, in 2010 and 2015.3 He indicated that his spiritual and soul-searching 
experiences are over and he does not intend to use any controlled substances in the 
future. He also signed a statement promising to abstain from future use of illegal drugs 
and medicinal MJ and acknowledging any future use would be grounds for revocation of 
his national security eligibility. (AE A, attachment 1; Tr. 15) 
 
Applicant was forced to take medical leave from college in 2010 due to a 
devastating disease diagnosis. (Tr. 22) He required extensive surgery, removal of a large 
part of his intestine, and multiple transfusions. (Tr. 23) He provided a detailed summary 
of his medical conditions and treatments. (AE A, Attachment 4) He is coping with multiple 
life-threatening illnesses. He also required an ostomy bag (Tr. 26) Consequently, he 
suffered from anxiety and depression and complex post-traumatic stress disorder (PTSD) 
due to what he describes as a lack of adequate coping skills. (Tr. 28)  
 
Applicant described himself as a socially awkward youth. He smoked marijuana  
socially every couple of weeks during high school (HS) due to peer pressure. However, 
                                                          
1 Unless stated otherwise, the source of the information in this section is Applicant’s May 5, 2017 SCA (GE 
1).  
 
2 At the hearing, he testified that his last use of medical marijuana was in December 2018. 
 
3 GE 1, pp.  32-33. 
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he stopped using it early in HS when his mother caught him in 2003. He resumed using 
MJ in college, but never purchased MJ or sold it. (Tr. 31-32) He used MJ once every two 
or three months in college. (Tr. 57) He stopped using MJ socially once he started working 
full time after college as it no longer fit his lifestyle and he no longer associated with the 
same friends. (Tr. 31)  
 
The first time Applicant took hallucinogenic mushrooms was in 2010 after his initial 
diagnosis. (Tr. 32) They were a gift. (Tr. 52) A friend suspected Applicant was depressed 
and offered the mushroom suggesting it would help. The second time was when Applicant 
and his wife took mushrooms that were given to them as a proposed bonding experience. 
(Tr. 33) Neither one liked the effects nor will they ever use mushrooms again. (Tr. 33) 
Applicant also admitted to experimenting with LSD one time in 2016. (Answer, Tr. 33) It 
was offered to him in a social setting at a Spring festival. (Tr. 34) He did not enjoy it and 
will never try it, or any other illegal drug, again. He no longer associates with the festival 
attendees. (Tr. 34)  
 
Most of the pain management surrounding Applicant’s multiple surgeries was 
opiate based. (Tr. 35) He was prescribed medicinal MJ by a physician in April 2017 to 
help with stress and aid recovery. MJ was legalized in his state in 2008. (Tr. 60) He 
received a medical marijuana card. (AE A, attachment 5, Tr. 35) Applicant testified 
credibly that the medical MJ helped with his unique medical conditions. (Tr. 36) He last 
used MJ recreationally before he left college in 2014. He believed that his medical MJ 
use starting in 2017 was legal in his state, and he never shared it with anybody. Now, 
since receiving the SOR, he understands that the Federal Government considers all MJ 
use to be illegal. (Tr. 37) Applicant attributes his past drug use to untreated or poorly 
managed medical conditions. (Tr. 40) He is taking different medications now.   
 
  Applicant testified credibly that he informed his current employer about his medical 
MJ use. (Tr. 39) He was hired by a college friend who responded that it was fine so long 
as Applicant had the medical MJ certification. (Tr. 39) He concedes that his MJ use before 
2014 was illegal. (Tr. 52) Applicant stopped using medical MJ in December 2018 after 
enduring two more surgeries in 2017. (Tr. 66) That was about nine months after the SOR 
issued. (Tr. 65) He did not stop using sooner due to confusion about the interplay of 
options and laws surrounding MJ use. (Tr. 66) 
 
Applicant has never been diagnosed as having a substance-abuse disorder and 
he did not seek treatment. He has now disassociated from friends who use MJ 
recreationally. He last used MJ recreationally in 2014, and subsequent use was under 
physician’s care and for medicinal purposes only.   
 
                                            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, the adjudicative guidelines list potentially disqualifying 
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conditions and mitigating conditions, which are used 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, these guidelines are applied in conjunction with the 
factors listed in the adjudicative process. The administrative judge’s overarching 
adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), 
the adjudicative process is an examination of a sufficient period and a careful weighing 
of a number of variables of an individual’s life to make an affirmative determination that 
the individual is an acceptable security risk. This is 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 applicant or proven by Department Counsel, and has the 
ultimate burden of persuasion as to obtaining a favorable security 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 
that an applicant may deliberately or inadvertently fail to 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. 
 
       Analysis 
 
Guideline H, Drug Involvement and Substance Misuse 
 
          The security concern for drug involvement and substance misuse is set out in 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 
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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. 
 
          The guideline notes several conditions that could raise security concerns under AG 
 ¶ 25. The following are potentially applicable 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. 
  
            Applicant used MJ on sporadic social occasions while he was in high school and 
college. He experimented with mushrooms twice, and LSD once, when these drugs were 
given to him over three years ago. He resumed use of MJ, on a medicinal basis, in April 
2017, and ceased medical MJ use in December 2018 once he understood the impact on 
the security clearance process. The government provided sufficient evidence to establish 
that the disqualifying conditions above are applicable, and the burden shifts to Applicant 
to show mitigation.  
 
            AG ¶ 26 provides conditions that could mitigate security concerns. The following 
are potentially 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’s last recreational use of MJ was over five years ago. He did not use MJ 
continuously during the period from 2014-2017. He self-reported and he has 
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disassociated from friends who use illegal drugs, and provided a letter of intent to abstain 
in the future acknowledging that any future use will be grounds for revocation of his 
national security eligibility. He was confused about the laws in his state with respect to 
legalizing the use of MJ and medicinal use of MJ. There is considerable confusion 
surrounding the patchwork of state laws around the nation, legalizing MJ.4 
 
           Applicant’s recreational use of MJ and experimentation with mushrooms and LSD 
has been mitigated by the passage of time. He self-disclosed his illegal drug use in his 
May 2017 SCA. While, it is disturbing that Applicant continued to use medical MJ after he 
received the SOR, I am not convinced that he understood that his MJ use conflicted with 
federal law, until he consulted with counsel. Moreover, Applicant presented a compelling 
case that his medical conditions affected his physical and mental state, and probably 
compromised his judgment temporarily. I perceive his voluntary disclosure as candor and 
cooperation. The government would never know about his earlier illegal drug use but for 
his own disclosures. In any event, he now knows, and he has taken appropriate actions 
to overcome this disqualification including signing a statement of intent to abstain and 
disassociating from former friends. His conduct does not cast doubt on his reliability, 
trustworthiness, or good judgment. AG ¶¶ 26(a) and 26(b) apply and his self-reported 
drug use is mitigated.  
 
 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 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. 
 
 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.  
       
                                                          
4 The Director of National Intelligence (DNI) Memorandum ES 2014-00674, “Adherence to Federal Laws 
Prohibiting Marijuana Use,” October 25, 2014, states: Changes to state laws . . . pertaining to marijuana 
use do not alter the existing National Security Adjudicative Guidelines. . . . An individual’s disregard of 
federal law pertaining to the use, sale, or manufacture of marijuana remains adjudicatively relevant in 
national security determinations.  
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I considered the potentially disqualifying and mitigating conditions in light of all the 
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. Most importantly, Applicant was candid and cooperative 
throughout the security clearance process. He has overcome significant adversity. He 
resolved the specific violations alleged in the SOR, and he has unequivocally declared 
his intention to refrain from further use of illegal drugs.  
 
Applicant’s drug involvement no longer remains a security concern. These self-
reported offenses were committed under such unusual circumstances that they are 
unlikely to recur. There is sufficient evidence to conclude that Applicant has 
acknowledged the egregiousness of his drug involvement and taken steps to insure that 
such behavior does not recur. He has met his burden of persuasion. The record evidence 
leaves me with no questions or doubts as to Applicant’s suitability for a security clearance. 
For all these reasons, I conclude Applicant has mitigated the security concerns arising 
under Guideline H.  
 
     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:        FOR APPLICANT 
 
 Subparagraphs 1.a - 1.c:                     For Applicant 
 
      Conclusion 
 
 In light of all of the circumstances presented by the record in this case, it is clearly 
consistent with the interests of national security to grant Applicant a security clearance. 
Eligibility for access to classified information is granted. 
                           
    ________________________ 
                                                    Robert J. Kilmartin 
                                                  Administrative Judge