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   DEPARTMENT OF DEFENSE 
 DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: )
)
) ISCR Case No. 18-01961 
) 
Applicant for Security Clearance ) 
Appearances 
For Government: Nicholas T. Temple, Esq., Department Counsel 
For Applicant: Pro se 
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Decision 
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HARVEY, Mark, Administrative Judge: 
Applicant possessed and used marijuana once in August 2015 and once in August 
2017 while holding a security clearance. Guideline H (drug involvement and substance 
misuse) security concerns are not mitigated. Eligibility for access to classified information 
is denied.      
History of the Case 
On October 2, 2017, Applicant completed and signed a Questionnaire for National 
Security Positions (SF 86) or security clearance application (SCA). (Government Exhibit 
(GE) 1) On August 22, 2018, the Department of Defense (DOD) Consolidated 
Adjudications Facility (CAF) issued an SOR to Applicant pursuant to Executive Order 
(Exec. Or.) 10865, Safeguarding Classified Information within Industry, February 20, 
1960; DOD Directive 5220.6, and Security Executive Agent Directive 4, establishing in 
Appendix A the National Security Adjudicative Guidelines for Determining Eligibility for 
Access to Classified Information or Eligibility to Hold a Sensitive Position (AGs), effective 
June 8, 2017. (Hearing Exhibit (HE) 2) 
The SOR detailed reasons why the DOD CAF did not find under the Directive that 
it is clearly consistent with the national interest to grant or continue a security clearance 
for him, and recommended referral to an administrative judge to determine whether a 
clearance should be granted, continued, denied, or revoked. (HE 2) Specifically, the SOR 
set forth security concerns arising under Guideline H. 
04/23/2019
 
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On September 6, 2018, Applicant responded to the SOR, and he requested a 
hearing. (HE 3) On February 9, 2019, the case was assigned to me. On March 11, 2019, 
the Defense Office of Hearings and Appeals issued a notice scheduling Applicant’s 
hearing for March 28, 2019. (HE 1) The hearing was held as scheduled using video 
teleconference.  
  
Department Counsel offered two exhibits; Applicant provided a comprehensive 
SOR response with five attachments; there were no objections to the documents; and 
they were admitted into evidence. (Transcript (Tr.) 11, 14-17; GE 1-2; SOR response) On 
April 10, 2019, DOHA received a copy of the transcript of the hearing (Tr.).    
 
Findings of Fact1 
 
 In Applicant’s SOR response, he admitted the allegations in SOR ¶¶ 1.a and 1.b. 
(HE 3) He also provided extenuating and mitigating information. Applicant’s admissions 
are accepted as findings of fact. Additional findings of fact follow.  
 
Applicant is a 31-year-old mechanical engineer specializing in software, and a 
major defense contractor has employed him for the previous seven years. (Tr. 6, 19) In 
2006, he graduated from high school, and in 2010, he graduated Summa Cum Laude and 
received a bachelor’s degree in mechanical engineering. (Tr. 6; SOR response ¶ 3.2) In 
2014, he received a master’s degree in mechanical engineering. (Tr. 6) He earned two 
post-graduate certifications, and has an impressive professional work history. (SOR 
response ¶¶ 3.2-3.4) He has not served in the military. (Tr. 7) In 2010, he married, and 
his children are ages 2 and 5. (Tr. 7)   
 
Applicant provided character-reference statements from 16 colleagues who have 
worked with him for several years. (SOR response ¶¶ 3.5.1-3.5.16) His awards, 
performance evaluations, and character statements establish his integrity, 
professionalism, diligence, responsibility, trustworthiness, and contributions to mission 
accomplishment. (SOR response ¶¶ 3.5.1-3.9 and Attach. D, E)  
 
Drug Involvement and Substance Misuse  
 
Applicant did not timely disclose his marijuana use because he did not think about 
his duty to disclose that information to his security officer. (Tr. 25) In Appellant’s October 
2, 2017 SCA, he admitted use of marijuana on two occasions on float trips2 in August 
2015 and August 2017. (GE 1) He said he took one “hit” from a marijuana cigarette on 
both occasions, and he did not enjoy his marijuana use. (GE 1) Applicant’s statement 
during his Office of Personnel Management personal subject interview, in his SOR 
response, and at his hearing were all consistent with his disclosure of marijuana use in 
his October 2, 2017 SCA. (SOR response, GE 1, GE 2) 
 
                                            
1 Some details were excluded to protect Applicant’s right to privacy. Specific information is available 
in the cited exhibits. 
 
2 A “float trip” involves canoeing and rafting on a river. (Tr. 20) 
 
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Applicant used marijuana because of peer pressure and curiosity, and he 
acknowledged his marijuana use showed poor judgment. (Tr. 22, 24; SOR response) He 
disclosed the only times he used marijuana on his SCA. (Tr. 24) He does not associate 
with users of illegal drugs. (Tr. 26; SOR response ¶ 2.2.1.) He met with a counselor on 
two occasions for an evaluation; however, the counselor indicated there was no evidence 
of drug addiction, and therefore, no counseling was needed. (Tr. 26-27; SOR response 
¶¶ 2.2, 2.4) He has had opportunities to use marijuana after August 2017, and he declined 
the invitations to use marijuana. (Tr. 28-29)  
 
On August 31, 2018, Applicant’s hair was tested for the presence of the marijuana 
metabolite, and the result was negative, indicating no marijuana use in the previous 90 
days. (SOR response ¶ 2.1; Attach. A)  
 
Applicant “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. (SOR response, Attach. B); see 
AG ¶ 26(b)(3). Applicant does not intend to use marijuana in the future. (Tr. 30) He 
promised not to compromise national security. (Tr. 30)  
 
Policies 
 
The U.S. Supreme Court has recognized the substantial discretion of the Executive 
Branch in regulating access to information pertaining to national security emphasizing, 
“no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 
518, 528 (1988). As Commander in Chief, the President has the authority to control 
access to information bearing on national security and to determine whether an individual 
is sufficiently trustworthy to have access to such information.” Id. at 527. The President 
has authorized the Secretary of Defense or his designee to grant applicant’s eligibility for 
access to classified information “only upon a finding that it is clearly consistent with the 
national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within 
Industry § 2 (Feb. 20, 1960), as amended.  
 
Eligibility for a security clearance is predicated upon the applicant meeting the 
criteria contained in the adjudicative guidelines. These guidelines are not inflexible rules 
of law. Instead, recognizing the complexities of human behavior, these guidelines are 
applied in conjunction with an evaluation of the whole person. An administrative judge’s 
overarching adjudicative goal is a fair, impartial, and commonsense decision. An 
administrative judge must consider all available, reliable information about the person, 
past and present, favorable and unfavorable.  
 
The Government reposes a high degree of trust and confidence in persons with 
access to classified information. This relationship transcends normal duty hours and 
endures throughout off-duty hours. Decisions include, by necessity, consideration of the 
possible risk the applicant may deliberately or inadvertently fail to safeguard classified 
information. Such decisions entail a certain degree of legally permissible extrapolation 
about potential, rather than actual, risk of compromise of classified information. Clearance 
decisions must be “in terms of the national interest and shall in no sense be a 
determination as to the loyalty of the applicant concerned.” See Exec. Or. 10865 § 7. 
 
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Thus, nothing in this decision should be construed to suggest that it is based, in whole or 
in part, on any express or implied determination about applicant’s allegiance, loyalty, or 
patriotism. It is merely an indication the applicant has not met the strict guidelines the 
President, Secretary of Defense, and DNI have established for issuing a clearance. 
  
 Initially, the Government must establish, by substantial evidence, conditions in the 
personal or professional history of the applicant that may disqualify the applicant from 
being eligible for access to classified information. The Government has the burden of 
establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. 
“Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. 
Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines 
presume a nexus or rational connection between proven conduct under any of the criteria 
listed therein and an applicant’s security suitability. See ISCR Case No. 95-0611 at 2 
(App. Bd. May 2, 1996). 
 
Once the Government establishes a disqualifying condition by substantial 
evidence, the burden shifts to the applicant to rebut, explain, extenuate, or mitigate the 
facts. Directive ¶ E3.1.15. An applicant “has the ultimate burden of demonstrating that it 
is clearly consistent with the national interest to grant or continue his security clearance.” 
ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a 
mitigating condition never shifts to the Government. See ISCR Case No. 02-31154 at 5 
(App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if they must, 
on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).  
 
Analysis 
 
Drug Involvement and Substance Misuse 
 
AG ¶ 24 articulates the security concern for drug involvement: 
 
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. Substance misuse is the generic term adopted in 
this guideline to describe any of the behaviors listed above. 
 
Director of National Intelligence (DNI) Memorandum ES 2014-00674, “Adherence 
to Federal Laws Prohibiting Marijuana Use,” October 25, 2014, states: 
 
[C]hanges to state laws and the laws of the District of Columbia 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 
 
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national security determinations. As always, adjudicative authorities are 
expected to evaluate claimed or developed use of, or involvement with, 
marijuana using the current adjudicative criteria. The adjudicative authority 
must determine if the use of, or involvement with, marijuana raises 
questions about the individual’s judgment, reliability, trustworthiness, and 
willingness to comply with law, rules, and regulations, including federal 
laws, when making eligibility decisions of persons proposed for, or 
occupying, sensitive national security positions. 
 
AG ¶ 25 provides three conditions that could raise a security concern and may be 
disqualifying in this case: “(a) any substance misuse (see above definition)”; “(c) illegal 
possession of a controlled substance . . . .”; and “(f) any illegal drug use while granted 
access to classified information or holding a sensitive position.” Applicant possessed and 
used marijuana3 on a total of two occasions in August 2015, and August 2017, while 
holding a security clearance. AG ¶¶ 25(a), 25(c), and 25(f) are established.  
 
AG ¶ 26 details conditions that could mitigate security concerns: 
 
(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; 
 
(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. 
 
                                            
 3 Schedules I, II, III, IV, and V, as referred to in the Controlled Substances Act are contained in 
21 U.S.C. § 812(c). Marijuana is a Schedule (Sch.) I controlled substances. See Drug Enforcement 
Administration listing at http://www.deadiversion.usdoj.gov/21cfr/cfr/1308/1308 11.htm. See also Gonzales 
v. Raish, 545 U.S. 1 (2005) (discussing placement of marijuana on Schedule I). 
 
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The DOHA 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. “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).  
 
Applicant provided some mitigating information. He ended his marijuana 
possession and use in August 2017, and he does not associate with marijuana users. He 
submitted 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. He understands that marijuana involvement is inconsistent 
with holding a security clearance. He promised not to use marijuana in the future.  
 
There is no bright-line test for how much time must elapse after ending marijuana 
use while holding a security clearance to establish that future marijuana use “is unlikely 
to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or 
good judgment.” AG ¶ 26(a). The Appeal Board affirmed the denial of a security clearance 
for an Applicant holding a security clearance who abstained from marijuana use for 21 
months before his security clearance hearing. ISCR Case No. 14-03450 (App. Bd. Sept. 
11, 2015). In another case involving an Applicant with a history of frequent marijuana use, 
including while holding a security clearance, the Appeal Board affirmed denial of a 
security clearance after the passage of almost five years since the most recent marijuana 
use. ISCR Case No. 15-06277 at 2-3 (App. Bd. July 19, 2017) (“The extent to which 
security concerns have become mitigated through the passage of time is a question that 
must be resolved based on the evidence as a whole. See, e.g., ISCR Case No. 14-01847 
at 3 (App. Bd. Apr. 9, 2015). Applicant’s drug use after having completed a clearance 
application and after having been granted a clearance is a significant factor in evaluating 
his judgment and reliability. See, e.g., ISCR Case No. 14-03450 at 3 (App. Bd. Sep. 11, 
2015).”). See also ISCR Case No. 06-18905 at 3-5 (App. Bd. Nov. 16, 2007) (reversing 
grant of security clearance for Applicant who ended marijuana use while holding a 
security clearance 30 months before hearing).  
 
The evidence against mitigating drug involvement and substance misuse security 
concerns is substantial. Applicant possessed and used marijuana once in August 2015 
and once in August 2017 while holding a security clearance. Each time he possessed 
marijuana, he committed a federal crime. His marijuana use in August 2017 is recent. 
More time must elapse without possession and use of illegal drugs before security 
 
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concerns are alleviated. Drug involvement and substance misuse security concerns are 
not 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), “[t]he ultimate determination” of whether to grant a security 
clearance “must be an overall commonsense judgment based upon careful consideration 
of the guidelines” and the whole-person concept. My comments under Guideline H are 
incorporated in my whole-person analysis. Some of the factors in AG ¶ 2(d) were 
addressed under that guideline but some warrant additional comment. 
 
Applicant is a 31-year-old mechanical engineer specializing in software, and a 
major defense contractor has employed him for the previous seven years. In 2010, he 
graduated Summa Cum Laude and received a bachelor’s degree in mechanical 
engineering. In 2014, he received a master’s degree in mechanical engineering. He 
earned two post-graduate certifications, and has an impressive professional work history. 
Applicant provided character-reference statements from 16 colleagues who have worked 
with him for several years. His awards, performance evaluations, and character 
statements establish his integrity, professionalism, diligence, responsibility, 
trustworthiness, and contributions to mission accomplishment. He is credited with being 
an intelligent, honest, and dedicated professional mechanical engineer who has the 
potential of making significant future contributions to national security.   
 
Applicant voluntarily disclosed his marijuana use on his SCA. His voluntary 
disclosure enhances his credibility and increases his trustworthiness and reliability. His 
marijuana use on only two occasions tends to indicate he will not use marijuana in the 
future. He is not addicted to marijuana and drug counseling is unnecessary. He promised 
not to use marijuana in the future. 
 
The evidence against granting Applicant’s security clearance is more persuasive 
at this time. Applicant possessed and used marijuana on two occasions—August 2015 
and August 2017. His marijuana use is somewhat recent. Each time he possessed 
marijuana, he committed a federal crime. His marijuana possession and use “raise 
 
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questions about [his] ability or willingness to comply with laws, rules, and regulations.” 
AG ¶ 24.  
 
It is well settled that once a concern arises regarding an applicant’s security 
clearance eligibility, there is a strong presumption against the granting a security 
clearance. See Dorfmont, 913 F. 2d at 1401. Unmitigated drug involvement and 
substance misuse security concerns lead me to conclude that grant of a security 
clearance to Applicant is not warranted at this time. More time without misuse of illegal 
drugs is necessary to fully mitigate security concerns.  
 
I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, and the 
AGs, to the facts and circumstances in the context of the whole person. Guideline H 
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  
 
Subparagraphs 1.a and 1.b:   Against Applicant 
 
Conclusion 
 
In light of all of the circumstances in this case, it is not clearly consistent with the 
interests of national security to grant Applicant’s eligibility for a security clearance. 
Eligibility for access to classified information is denied. 
 
 
_________________________ 
Mark Harvey 
Administrative Judge