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ISCR Case 23-02365 — CASE

ISCR Case 23-02365denied

Case Headnote

ISCR Case No. 23-02365

deniedNov 6, 2024· Hon. Erin C. Hogan· hearing

Summary

A 46-year-old employee of a Department of Defense contractor was denied a security clearance due to concerns under Guideline E (Personal Conduct) and Guideline H (Drug Involvement). The denial stemmed from the applicant's admitted illegal marijuana use while holding a sensitive position and a subsequent failed drug test.

Specifically, the applicant used marijuana with varying frequency from December 2018 through April 2019, and again from approximately April 2020 through November 2020, all while employed in a sensitive role. In about January 2021, the applicant failed a urinalysis test, testing positive for marijuana while working as a Defense Department civilian employee.

The administrative judge found that the applicant's continued illegal drug use, even after acknowledging its illegality under federal law and expressing intentions to abstain, raised significant security concerns. Despite the application of one mitigating condition, the security clearance was ultimately denied.

Why the Applicant Was Denied

The applicant admitted to using marijuana while in a sensitive position.
The applicant tested positive for marijuana during a required drug test for a promotion.
The applicant continued to use marijuana even after acknowledging its illegality under federal law.

Conditions Referenced

Disqualifying

AG ¶ 25(a)appliedAny Substance Misuse
AG ¶ 25(b)appliedTesting Positive for an Illegal Drug
AG ¶ 25(f)appliedAny Illegal Drug Use While Granted Access to Classified Information or Holding a Sensitive Position
AG ¶ 16(e)appliedPersonal Conduct That Creates a Vulnerability to Exploitation
AG ¶ 16(f)appliedViolation of a Written or Recorded Commitment Made by the Individual to the Employer

Mitigating

AG ¶ 26(b)appliedAcknowledgment of Drug Involvement and Evidence of Actions Taken to Overcome This ProblemThe applicant acknowledged his illegal drug use and signed a statement of intent to abstain from future use.

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedNov 29, 2023
Answer filedFeb 2, 2024
Hearing heldAug 1, 2024
Decision dateNov 6, 2024

Cite For

Security Concerns Under Guideline H Due to Illegal Drug Use
Security Concerns Under Guideline E Due to Personal Conduct
The Importance of Compliance with Federal Law Regarding Drug Use for Clearance Holders

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline E (Personal Conduct) · descriptive summary of a decided case

Posture: HearingDecided: denied

The judge found against the applicant on the personal conduct concerns related to illegal drug use. The applicant's admissions and explanations regarding his marijuana use and failed urinalysis test did not mitigate the security concerns raised under Guideline E.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
2.a	Applicant's illegal drug use and his failed urinalysis test as alleged in SOR ¶¶ 1.a and 1.b.	Against Applicant	Questionable Judgment General	—	Denied with Explanation	—	—	—

Descriptive standardized rendering of a decided public case (Guideline E). The verbatim source decision is shown in full below.

Standardized Decision Profile

SEAD-4 Guideline H (Drug Involvement) · descriptive summary of a decided case

Posture: HearingDecided: denied

The judge found that the applicant used marijuana with varying frequency while employed in a sensitive position and failed a urinalysis test, testing positive for marijuana. The applicant's conduct was deemed to raise significant security concerns, leading to a denial of his security clearance.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana with varying frequency from December 2018 through April 2019 and from approximately April 2020 through November 2020 while he was employed in a sensitive position.	Against Applicant	MarijuanaWHILE CLEARED	Frequent	Denied	—	—	—
1.b	Applicant failed a urinalysis test in about January 2021, testing positive for marijuana while working as a Defense Department civilian employee.	Against Applicant	Drug Test FailureWHILE CLEARED	Not Applicable	Admitted	—	—	—

Descriptive standardized rendering of a decided public case (Guideline H). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: ) ) [Name Redacted] ) ISCR Case No. 23-02365 ) ) Applicant for Security Clearance ) Appearances For Government: George A. Hawkins, Esq., Department Counsel For Applicant: Alan Edmunds, Esq. 11/06/2024

STATEMENT OF CASE

HOGAN, Erin C., Administrative Judge: On November 29, 2023, the Defense Counterintelligence and Security Agency Consolidated Adjudication Services (DCSA CAS) issued a Statement of Reasons (SOR) to Applicant detailing the security concerns under Guideline H, Drug Involvement; and Guideline E, Personal Conduct. The action was taken under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines (AG) implemented within the Department of Defense on June 8, 2017. On February 2, 2024, Applicant answered the SOR and requested a hearing before an administrative judge. The case was assigned to me on April 2, 2024. On July 3, 2024, a Notice of Hearing was issued, scheduling the hearing on August 1, 2024. The hearing was held as scheduled. During the hearing, the Government offered six exhibits, which were admitted without objection as Government (GE) Exhibits 1 - 6. Applicant testified and offered 25 exhibits, which were admitted without objection as Applicant Exhibits (AE) A - Y. The record was held open until August 7, 2024, to allow Applicant to submit additional exhibits. No additional documents were submitted. The transcript was received on August 15, 2024. Based upon a review of the case file, pleadings, and exhibits, eligibility for access to classified information is denied.

Procedural Issues On June 12, 2024, Department Counsel motioned to amend the SOR in accordance with the Directive ¶ E3.1.1.13, as follows: Replace subparagraph 1.a to state the following: You used marijuana with varying frequency from approximately December 2018 through April 2019 and again from approximately April 2020 through November 2020, while you were in a sensitive position, i.e., one that required a security clearance. There was no objection to the amended allegation SOR ¶ 1.a.

FINDINGS OF FACT

In his answer to the SOR, Applicant denied with explanations SOR ¶ 1.a and admitted the allegation in the SOR ¶ 1.b. Applicant is a 46-year-old employee of a DOD contractor who seeks a security clearance. He was granted and has held a security clearance since 2006. He has been employed with his current employer, Employer A, since 2021. Prior to that time, he worked as a civilian for the United States Air Force for 17 years. He earned a bachelor’s degree in February 2001 and a Master of Business Administration (MBA) in May 2009. He is married and has three children, ages 16, 14 and 9. (GE 1; GE 2; AE C; AE E; AE O; AE V; AE W) (Note: The facts in this decision do not specifically describe employment, names of witnesses, or locations in order to protect Applicant’s and his family’s privacy. The cited sources contain more specific information.)

Drug Involvement

Under the drug involvement security concern, the SOR alleged Applicant used marijuana with varying frequency from December 2018 through April 2019 and from approximately April 2020 through November 2020 while he was employed in a sensitive position, i.e., one that required a security clearance. (SOR ¶ 1.a: GE 1; GE 2; GE 6 at 2) It was also alleged that Applicant failed a urinalysis test in about January 2021, testing positive for marijuana while working as a Defense Department civilian employee. (SOR ¶ 1.b: GE 5) On November 8, 2019, Applicant completed an Electronic Questionnaire for Investigations Processing (e-QIP). In response to Section 23 – Illegal Use of Drugs or Drug Activity, he answered “yes” to the question, “In the last seven (7) years have you illegally used any drugs or controlled substances?” He listed that he used THC (marijuana) from approximately December 2018 to approximately April 2019. He indicated, “Tried Marijuana edibles a few times after recreational legalization in my state.” He answered, “yes,” in response to whether his use occurred while he

possessed a security clearance. He indicated that he did not intend to use marijuana in the future. His reason for doing so was described as, “Realization that legalization of Marijuana in my state does not change the legal status of it.” (AE 2, page 28 of 34; Tr. 27-28) On January 14, 2021, Applicant provided a urine sample as part of a requirement for a promotion to a new position that required a Top Secret clearance. His urine tested positive for Marijuana metabolites. (AE 4; AE 5) The offer of promotion was withdrawn. Applicant was notified of the upcoming urinalysis approximately one month in advance. He stopped using marijuana before the urinalysis at a time that he believed sufficient to test negative for marijuana. He tested positive anyway. (Tr. 28, 37-39) Applicant completed another e-QIP on May 12, 2022. He listed the same answer and explanations in his response to Section 23 on this security clearance application as he answered in response to Section 23 on his November 2019 e-QIP. (AE 1, page 29 of 35) In Response to Interrogatories, dated November 13, 2023, Applicant reviewed a summary of his interview dated October 14, 2022, with an authorized investigator for the Department of Defense who conducted his background investigation interview. He attested to the accuracy of the interview. During the interview, Applicant indicated he stopped using marijuana in April 2019, but started using again in March or April 2020. His reasons for using marijuana again were due to stress and anxiety. It occurred during the COVID-19 pandemic. His wife was laid off from work and his father passed away. Using marijuana helped him relax. He purchased marijuana from a legal dispensary in the state where he resides. He purchased 1/8 ounce of marijuana on average of two times a month. His preferred method of use was smoking it. His average marijuana use was three times a week or 10 times a month. He held a secret clearance during this time and was aware that marijuana remained illegal under federal law and he was breaking a rule. He did not think it was a big deal. He was never dependent on the drug. He occasionally used marijuana with his wife. He decided to stop using marijuana in November 2020, because he was applying for a promotion. In January 2021, he was asked to take a drug test as a requirement for the promotion. He tested positive for marijuana. As a result, the promotion offer was rescinded. (AE 3 at 9-10; Tr. 31-32, 34. 83) Applicant believed that he would not lose the promotion if it was discovered that he used marijuana. He assumed he would get a reprimand. In April 2021, he was reprimanded by his employer based on the positive drug test. He has not used any other illegal drugs. He was asked by DOD to have an assessment at a DOD medical center. The assessment was conducted via video-teleconference in April 2021. The assessment determined he did not need to receive any drug counseling or treatment. His wife and friends are aware of his marijuana use. (AE 3 at 10) Applicant also answered several questions listed in the November 2023 interrogatories. He denied using marijuana or any product containing THC since his personal subject interview conducted on October 14, 2022. He acknowledged that the use of marijuana or products containing THC was prohibited under federal law. He was

willing to provide a 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 signed a general statement of intent addressed “To Whom It May Concern” indicating that he promised to abstain from all illegal drug involvement and substance misuse, and acknowledged that any future use is grounds for revocation of his national security eligibility. (AE 3 at 5-8) In June 2023, Applicant completed an application for a life insurance policy. In response to one of the questions about substance use, he listed that he used marijuana in approximately June 2023. Under cross-examination, he admitted to using marijuana in June 2023. (AE Y; Tr. 46-49) When asked whether he used marijuana between June 2023 and December 2023, he responded: I may have. I don’t recall specifically. I can only confidentially [sic] say that from the time when this whole situation sort of came back to the surface around the October timeframe when I received the initial DOHA documentation I have absolutely abstained 100 percent from that period of time. (Tr. 56) During the hearing, Department Counsel asked Applicant when did he decide to finally stop using marijuana. He testified: It became very apparent to me that this is a very serious situation and I am potentially going to lose my clearance and thereby my career essentially. At this point I am the breadwinner in my house and at this point in my life I’m 46 years old. All of the professional qualities that I have to really capitalize on a career are best suited in the [Department of Defense]. (Tr. 57) He deeply regrets putting himself in this situation. (Tr. 57) On December 28, 2023, Applicant signed a notarized Statement of Intent. He declared that he would never misuse substances in the future, to include use or possession of any illegal drug or the use of a legal prescription drug without a valid prescription or in a manner inconsistent with their intended purpose. He acknowledged that any future involvement with illegal drugs and substance misuse is grounds for revocation of national security eligibility. (AE A) Applicant has taken several urinalysis tests for marijuana and other illegal drugs. They have all tested negative. (AE B; AE Q) He also completed a Drug Free World Online Course on February 29, 2024. (AE R) Personal Conduct Under the Personal Conduct security concern, the SOR cross-alleges Applicant’s illegal drug use and his failed urinalysis test as alleged in SOR ¶¶ 1.a and 1.b. The facts are the same as listed under the Drug Involvement and Substance Misuse section.

Whole-Person Factors Applicant submitted several character letters. Ms. D. has worked as a civilian employee for the Air Force for over 14 years. She has worked with Applicant. She states that during his 17 years of employment at the agency, he demonstrated his ability to go above and beyond the expected duties of every position he has held. He is a great supervisor to his employees and is an outstanding mentor to those who worked with and for him. Ms. D. also knows Applicant on a personal level. He is an amazing husband and father to the three wonderful children. He also drove her back and forth to work when she was unable to drive due to health reasons. He also helps out her sister who is a single mother with three children when she needs help around the house. She recommends Applicant for a security clearance. (AE D at i) Ms. R. is a retired GS-15. She held many positions during her over 43 years of government service. She worked with Applicant for 15 of those years. She observed his abilities, technical skills, and character. She witnessed his superior leadership amongst his peers and his guidance and mentorship to with numerous trainees. He has consistently provided exemplary quality service. She describes Applicant as always professional and helpful. He is viewed as a trusted agent to by all who worked with him. In his personal life, he is a caring father and husband. His family always come first. He and his wife fostered a little girl whom they recently adopted. He is compassionate towards others and someone you can trust. She says it is a grave mistake for the U.S. government to deny his security clearance. (AE D at ii) Ms. P. has known Applicant and his family for over ten years. They are neighbors and their children attend the same elementary school. She describes him as a positive role model for her two children, a supportive friend, and a great influence. He opened his home to Ms. P. and her two children when they were going through trying times. They lived with Applicant and his family for two years. Applicant and his family showed them great kindness and treated them as part of the family. Applicant guided her through the steps of purchasing her first home. His financial knowledge was extremely helpful during the process. He also helped with remodeling and repairs on her new home. He even built her daughter a bedroom. He also helped her mother with home emergencies and was the football coach for her and his son’s team. She states he is a truly wonderful man who deserves to be evaluated fairly and honestly during this process. (AE D at iii) Mr. N. is a retired USAF Major. Applicant is a close friend who he has indirectly worked with for over eight years. He describes Applicant as a person of strong moral character. In his work capacity, he was always professional, willing to contribute to the mission, and provided guidance where needed. On the personal side, he is a devoted and caring husband and a dedicated father of three children. He is a compassionate and caring individual to his friends as well. Mr. N. does not believe his character should be judged by this one mistake. He notes that Applicant has been committed to the U.S. Air Force, having served 17 years in greater, more demanding roles, showing himself to be passionate, dependable, and reliable throughout his career. It would be a disservice to not allow him to continue on his chosen professional path. (AE S)

Other co-workers also wrote letters on behalf of Applicant attesting to his work ethic, leadership, and trustworthiness as well as attributes as a loving husband and father. (AE T; AE U) Applicants’ past performance appraisals have all been outstanding, even after 2021 when he had the positive urinalysis. His most recent performance appraisal from review period from May 2023 to April 2024 was outstanding. (AE G; AE X) Applicant has received several promotions and awards for his positive contributions to his employer and has been recognized for his community service. (AE M; AE N)

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 for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are useful 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 over arching adjudicative goal is a fair, impartial and commonsense decision. According to AG ¶ 2(c), the entire process is a conscientious scrutiny 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. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The applicant 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 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 information.

Section 7 of EO 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information). DOD and Federal Government Policy on Marijuana Use On October 25, 2014, the Director for National Intelligence, issued a memorandum titled, “Adherence to Federal Laws Prohibiting Marijuana Use,” addressing concerns raised by the decriminalization of marijuana use in several states and the District of Columbia. The memorandum states that changes to state and local laws do not alter the existing National Security Adjudicative Guidelines. “An individual’s disregard for federal law pertaining the use, sale, or manufacture of marijuana remains adjudicatively relevant in national security determinations.” On May 26, 2015, the Director of the United States Office of Personnel Management (OPM) issued a memorandum titled, “Federal Laws and Policies Prohibiting Marijuana Use.” The Director of OPM acknowledged that several jurisdictions have decriminalized the use of marijuana, allowing the use of marijuana for medicinal purposes and/or for limited recreational use, but states that Federal law on marijuana remains unchanged. Marijuana is categorized as a controlled substance under Schedule I of the Controlled Substances Act. Thus, knowing or intentional marijuana possession is illegal, even if the individual has no intent to manufacture, distribute, or dispense marijuana. On December 21, 2021, the Director of National Intelligence signed the memorandum, Security Executive Agent Clarifying Guidance Concerning Marijuana for Agencies Conducting Adjudications of Persons Proposed for Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position. It emphasizes that federal law remains unchanged with respect to the illegal use, possession, production, and distribution of marijuana. Individuals who hold a clearance or occupy a sensitive position are prohibited by law from using controlled substances. Disregard of federal law pertaining to marijuana (including prior recreational marijuana use) remains relevant, but not determinative, to adjudications of eligibility. Agencies are required to use the “whole-person concept” stated under SEAD 4, to determine whether the applicant’s behavior raises a security concern that has not been mitigated. Guideline H, Drug Involvement The security concern relating to the guideline for Drug Involvement is set out in AG ¶ 24: The illegal use of controlled substances, to include the misuse of prescription drug 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. The guideline notes several disqualifying conditions that could raise security concerns. I find the following drug involvement disqualifying conditions apply to Applicant’s case. AG ¶ 25(a) any substance misuse; AG ¶ 25(b) testing positive for an illegal drug; AG ¶ 25(c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and AG ¶ 25(f) any illegal drug use while granted access to classified information or holding a sensitive position. The amended SOR alleges and Applicant admits he used marijuana from approximately December 2018 to April 2019 and then from approximately April 2020 to November 2020. Marijuana use is legal in the state where he resides, however, he is aware that marijuana use remains illegal under federal law. There is sufficient evidence to conclude that Applicant illegally used and possessed marijuana. AG ¶ 25(a) and AG ¶ 25(c) apply. Applicant tested positive for marijuana during a drug test that was a requirement for a promotion in January 2021. AG ¶ 25(b) applies. Applicant admits he held an active security clearance since 2006. He was also employed in a sensitive position. AG ¶ 25(f) applies. The Government’s substantial evidence and Applicant’s own admissions raise security concerns under Guideline H, Drug Involvement. The burden shifted to Applicant to produce evidence to rebut, explain, extenuate, or mitigate the security concerns. (Directive ¶ E3.1.15) An applicant has the burden of proving a mitigating condition, and the burden of disproving it never shifts to the Government. (See ISCR Case No. 02- 31154 at 5 (App. Bd. September 22, 2005)) Guideline H also includes examples of conditions that could mitigate security concerns arising from drug involvement. The following mitigating conditions potentially apply to the Applicant’s case: AG ¶ 26(a) the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; and

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. AG ¶ 26(a) does not apply. While the SOR allegation outlined illegal marijuana use up to November 2020, it was discovered during the hearing that Applicant used marijuana on various occasions up to late 2023. While not alleged in the SOR, I considered his illegal marijuana use after November 2020 up to late 2023 as matter in mitigation. Applicant’s marijuana use occurred over a period of years and his last use was less than one year before his security clearance hearing. Of particular concern, is that Applicant continued to use marijuana even after he acknowledged that marijuana use remained illegal under federal law. He first acknowledged this fact on his November 2019 security clearance application. While he indicated his intent to stop using marijuana, he continued to use marijuana. His illegal marijuana use resulted in a positive urinalysis and a loss of a promotion in January 2021. Despite this, he continued to use marijuana until late 2023.

AG ¶ 26(b) partially applies because Applicant acknowledged his illegal drug use and signed a statement of intent indicating he will not use marijuana in the future. He acknowledged any future illegal use could result in the revocation of his security clearance. However, this mitigating condition is given less weight because he made several assertions that he intended to stop using marijuana between 2019 to 2023 but continued to use marijuana. He initially said he was going to stop using marijuana on his November 2019 e-QIP. He then said he was going to stop using marijuana on his May 2022 e-QIP. He provided a signed statement of intent in response to DOHA Interrogatories in in November 2023. Finally in December 2023, he signed a statement of intent December 2023 that he was going to stop using marijuana. His repeated failure to abstain from marijuana use after expressly stating his intent to stop using illegal drugs, raises questions about his trustworthiness and reliability. Overall, Applicant did not meet his burden to mitigate the security concerns raised under Guideline H, Drug Involvement. Guideline E, Personal Conduct The security concern relating to the guideline for Personal Conduct is set out in 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 the national security or adjudicative processes. . . . The following disqualifying conditions under AG ¶ 16 potentially apply to Applicant’s case: AG ¶ 16(e) personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress by a foreign intelligence entity or other individual or group. Such conduct includes: (1) engaging in activities which, if known, could affect the person’s personal, professional, or community standing; and AG ¶ 16(f) violation of a written or recorded commitment made by the individual to the employer as a condition of employment. AG ¶ 16(e) applies. Despite his best intentions to abstain from illegal marijuana use, Applicant repeatedly continued to use marijuana although he was aware that marijuana remained illegal under federal law and incompatible with holding a security clearance. His decision to continue to use marijuana made him vulnerable to exploitation, manipulation, of duress by a foreign intelligence entity or other individual or group. AG ¶ 16(f) applies. While no evidence was submitted of his employer’s policy against illegal marijuana use, it is clear Appellant was made aware of this policy as early as November 2019, when he acknowledged that he was aware that marijuana use remained illegal under federal law even though it was legal in the state where he lives. His promotion in 2021 was conditional upon a clean urinalysis. He lost the position because his urine was positive for THC metabolites (i.e. marijuana) in January 2021. Under Guideline E, the following mitigating conditions potentially apply in Applicant’s case: AG ¶ 17(a) the individual made prompt, good-faith efforts to correct the omission, concealment or falsification before being confronted with the facts; 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 is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; AG ¶ 17(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that contributed to untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; and

AG ¶ 17(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress. AG ¶ 17(a), AG ¶ 17(c) do not apply to Applicant’s case. AG ¶ 17(d) partially applies in that when asked Applicant fully disclosed the extent of his illegal marijuana use. However, each time he disclosed his illegal marijuana use, he expressed his intention to stop using marijuana in the future. Despite this promise, he continued to use marijuana. While Applicant testified that he is now serious about ceasing illegal marijuana use because he finally realized how serious it was and that he could lose his security clearance, his intentions are given less weight based on his past conduct. Applicant’s failure to abstain from illegal marijuana use since November 2019, indicate an unwillingness to follow rules and standards of conduct required of a person entrusted with access to classified information. Security concerns under Personal Conduct 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 relevant circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(a): (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.

I considered Applicant’s performance awards and favorable character references. He is highly thought of, both as a supervisor, co-worker, and neighbor. However, his continued use of marijuana after stating he no longer intended to use marijuana raises questions about his judgement and reliability. If Applicant had followed through with his intent to stop using marijuana in his November 2019 e-QIP, there would have been strong mitigation. Yet, he continued to use marijuana which ultimately resulted in a positive urinalysis test which cost him a promotion in 2021. He still continued marijuana use after his positive urinalysis. He did not think it was a big deal and did not think that he would be severely punished for it. His failure to take seriously the prohibition against marijuana use for DOD employees and persons with access to 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.

_________________ classified information and employed in sensitive positions raise questions about his ability to follow the rules to protect classified or sensitive information. I considered the potentially disqualifying and mitigating conditions as well as the facts and circumstances surrounding this case. The security concerns under Drug Involvement and Personal Conduct 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 – 1.b: Against Applicant Paragraph 2, Guideline E: AGAINST APPLICANT Subparagraph 2.a: 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 eligibility for a security clearance. Eligibility for access to classified information is denied. ERIN C. HOGAN Administrative Judge