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ISCR 23-02577: Guideline F security clearance hearing, denied (2025) · CASE

ISCR Case 23-02577denied

Case headnote

ISCR Case No. 23-02577

deniedMay 1, 2025· Hon. Benjamin R. Dorsey· hearing

Synopsis

The applicant, a 37-year-old defense contractor employee, faced security concerns under Guideline F (financial considerations) and Guideline H (drug involvement and substance misuse). Despite mitigating the drug-related concerns, the applicant failed to sufficiently address significant financial delinquencies totaling over $100,000, leading to a denial of his security clearance application.

Why the applicant was denied

The applicant had 10 delinquent accounts totaling approximately $36,000 and two judgments totaling about $73,000, which he did not resolve.
The applicant did not provide sufficient evidence that he enrolled all debts with the debt-consolidation company, leading to ongoing financial delinquencies.
The applicant's financial issues were exacerbated by a business failure and unemployment, but he did not demonstrate responsible actions to resolve his debts.

Conditions referenced

Disqualifying

F1raisedInability to Satisfy Debts
F2raisedA History of Not Meeting Financial Obligations

Mitigating

F3rejectedThe Behavior Happened so Long Ago, Was so Infrequent, or Occurred Under Such Circumstances That It Is Unlikely to Recur
F4appliedThe Conditions That Resulted in the Financial Problem Were Largely Beyond the Person’s Control
F5rejectedThe Individual Has Received or Is Receiving Financial Counseling
F6rejectedThe Individual Initiated and Is Adhering to a Good-faith Effort to Repay Overdue Creditors

Key rule quoted

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

Procedural posture

SOR issuedDec 11, 2023
Answer filedJan 17, 2024First Answer to First SOR
Second SOR issuedJul 25, 2024
Second Answer filedSep 8, 2024Response to Second SOR
Hearing heldApr 8, 2025Via Microsoft Teams
Decision dateMay 1, 2025

Cite for

Failure to Mitigate Financial Considerations Under Guideline F
Ongoing Financial Delinquencies as a Disqualifying Factor
Successful Mitigation of Drug Involvement Under Guideline H Despite Financial Issues

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

From the decision

Facts this decision states, each with the exact sentence it comes from. Descriptive of the record, not an assessment.

Age at decision: 37: “Applicant is a 37-year-old employee of a defense contractor.”
Tenure: ~2 years: “He has worked for his current employer since about July 2023.”
Delinquent debt cited: $36,000 (on a payment plan): “In the Second SOR, the Government alleged that Applicant had 10 delinquent accounts totaling approximately $36,000 (Second SOR ¶¶ 1.a through 1.j).”

Standardized Decision Profile

SEAD-4 Guideline F · descriptive summary of a decided case

Posture: HearingDecided: denied

The judge found against the applicant on the financial allegations under Guideline F, which included 10 delinquent accounts totaling approximately $36,000. Despite the applicant's claims of engaging a debt-consolidation company and making payments towards some debts, the judge concluded that the financial issues were not sufficiently mitigated, resulting in a denial of eligibility for access to classified information.

The sub-allegation breakdown is part of the Professional plan. See what it includes.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation

Standardized Decision Profile

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

Posture: HearingDecided: denied

The judge found that the applicant had engaged in drug involvement and substance misuse, specifically using hallucinogenic mushrooms, LSD, and MDMA on various occasions between 2016 and 2022. Despite the applicant's claims of mitigation, the overall outcome was a denial of eligibility for access to classified information due to unresolved concerns regarding drug use.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation

Descriptive standardized rendering of a decided public case. 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: ) ) ) ISCR Case No. 23-02577 ) Applicant for Security Clearance ) Appearances For Government: Alison P. O’Connell, Esq., Department Counsel For Applicant: Brittany Forrester, Esq. 05/01/2025

STATEMENT OF CASE

DORSEY, Benjamin R., Administrative Judge: Applicant did not mitigate the financial considerations security concerns. He mitigated the drug involvement and substance misuse security concerns. Eligibility for access to classified information is denied. Statement of the Case On December 11, 2023, the Department of Defense (DOD) issued a Statement of Reasons (First SOR) to Applicant detailing security concerns under Guideline F (financial considerations). He responded to the First SOR on January 17, 2024 (First Answer). For reasons that are unclear from the record, on July 25, 2024, the DOD issued another SOR (Second SOR) detailing the same security concerns under Guideline F, including several additional delinquent accounts, and security concerns under Guideline H (drug involvement and substance misuse). Applicant responded to the Second SOR, through counsel, on September 8, 2024 (Second Answer), and requested a hearing before an administrative judge. The case was assigned to me on January 15, 2025.

The hearing was convened as scheduled on April 8, 2025, over the Microsoft Teams online network. Government Exhibits (GE) 1 through 17 and Applicant Exhibit (AE) K were admitted in evidence without objection. AE A through J were included in evidence as they are attachments to the Second Answer. At Applicant’s request, I left the record open until April 15, 2025, for either party to provide post-hearing documentation. After the deadline I provided for submitting post-hearing documents, Applicant provided AE L and M, which I admitted in evidence without objection. The Defense Office of Hearings and Appeals (DOHA) received a transcript (Tr.) of the hearing on April 15, 2025.

FINDINGS OF FACT

Applicant is a 37-year-old employee of a defense contractor. He has worked for his current employer since about July 2023. He earned a high school diploma and has taken about a year of college courses without earning an undergraduate degree. He plans to go back to school to complete an undergraduate degree in engineering. He was married from 2008 until a divorce in 2009. He has a five-year-old son. He served on active duty with the U.S. Army from 2008 until a discharge in 2009. The nature of his discharge from the Army is unclear, but Applicant’s reason is that he missed several scheduled medical appointments without providing what the Army considered to be an appropriate excuse. (Tr. 14-18, 38-40, 78-79; GE 1, 3) In the Second SOR, the Government alleged that Applicant had 10 delinquent accounts totaling approximately $36,000 (Second SOR ¶¶ 1.a through 1.j). It also alleged that he owed about $69,549 on a judgment entered against him in September 2018 (Second SOR ¶ 1.k), and about $4,600 on another judgment entered against him in September 2018 (Second SOR ¶ 1.l). He admitted the Guideline F Second SOR allegations with additional comments, except for the debt in Second SOR ¶ 1.i, which he denied because he claimed he paid that debt. The Guideline F Second SOR allegations are established through his admissions, the Government’s 2023, 2024, and 2025 credit reports, and its case information system records. (First SOR; Second SOR; First Answer; Second Answer; GE 3-7, 17) After his 2009 discharge from the Army until about 2015, Applicant consistently spent time volunteering to assist victims in areas affected by natural disasters at home and abroad. While he volunteered, he often was not earning a steady paycheck, causing him financial issues, including a period of homelessness. In 2016, he and a partner started a recreational cannabis business in State A, where the business was legal pursuant to State A’s laws. They applied for and obtained the requisite permits and licenses through State A’s licensing agency. He and his partner signed a commercial lease renting the space where the business was located. In February 2018, about three weeks before the business was set to open, Applicant’s partner, who became addicted to painkillers after an injury, entered the business and destroyed some of the

equipment, causing several of the investors of the business to withdraw their financial support. While Applicant’s business partner had a criminal record dating back to about 2012, there is no evidence that Applicant knew about this record until after his business partner damaged their equipment. (Tr. 18-27, 40-49, 57-58, 72-75; First Answer; Second Answer; GE 1, 3, 8-16) Ultimately, the business did not open, never made any money, and Applicant defaulted on the commercial lease. The collapse of his business also left him without an income. After his business failed, he worked as a consultant for several other companies, but his earnings were only sufficient to cover his basic living expenses until he found his current job in July 2023. He testified that once he decided to look for more stable employment, it took him a few months to find his current job. (Tr. 18-27, 40-58; First Answer; Second Answer; GE 1, 3, 8-16) About three months after he received the First SOR, in about February 2024, Applicant entered into an agreement with a debt-consolidation company (DCC) to help him resolve his financial delinquencies. He testified that he engaged the DCC at this time because it was the first time he was financially stable enough to do so, given the fact that he had been with his new employer for about six months. He has paid $590 per month into an account with the DCC from which the DCC has paid the settlement amounts it has negotiated on Applicant’s behalf. He provided documentary evidence corroborating that he enrolled the debts listed in Second SOR ¶¶ 1.a through 1.d, 1.g, and 1.h. He enrolled a total of about $38,800 in debt and has resolved about $14,130 of that enrolled debt. Evidence shows that some of the enrolled debts are listed in the Second SOR and some are not. Without providing documentary corroboration, he initially claimed he enrolled the debts listed in Second SOR ¶¶ 1.e, 1.f, and 1.jwith the DCC. On cross-examination, he was unsure whether the debts listed in Second SOR ¶¶ 1.e, 1.f, and 1.jwere, in fact, enrolled. He assumed they were. He did not enroll the two judgments described in Second SOR ¶¶ 1.kand 1.l. There is no evidence that the DCC provided him with any counseling or training on debt-related topics. (Tr. 18-27, 58-60; Second Answer; GE 1, 3-7, 17; AE L, M) The student loans alleged in Second SOR ¶¶ 1.a and 1.bfor about $6,120 and $10,127, respectively, are enrolled with the DCC. The DCC has not yet disbursed any payments to those accounts. (Tr. 18-21, 58-59, 83-84, 93-94; First Answer; Second Answer; GE 1, 3-5; AE L, M) The cell phone account alleged in Second SOR ¶ 1.cin the amount of about $964 is being resolved. Applicant provided documentation showing he enrolled this account with the DCC, which has disbursed about $621 towards a settlement amount of $951. (Tr. 23, 59; First Answer; Second Answer; GE 1, 3-5; AE K-M)

The car loan alleged in Second SOR ¶ 1.din the amount of about $11,220 is being resolved. Applicant provided documentation showing he enrolled this account with the DCC, which has disbursed about $5,000 towards a settlement amount of $8,000. (Tr. 21-23, 60, 62; First Answer; Second Answer; GE 1, 3-5, 17; AE L, M) The credit-card account alleged in Second SOR ¶ 1.e in the amount of about $404 has not been resolved. Applicant claimed that he enrolled this account with the DCC, but he provided no documentary evidence of this enrollment. (Tr. 23, 60-61; First Answer; Second Answer; GE 1, 3-5, 17) The medical account alleged in Second SOR ¶ 1.fin the amount of about $1,004 has not been resolved. Applicant claimed that he enrolled this account with the DCC, but he provided no documentary evidence of this enrollment. (Tr. 23-24, 61; First Answer; Second Answer; GE 3, 4) The cable account alleged in Second SOR ¶ 1.gin the amount of about $529 is enrolled with the DCC, but no payments have been disbursed to that account. Applicant provided documentation showing he enrolled this account with the DCC. (Tr. 24, 61-62; First Answer; Second Answer; GE 1, 3-5, 17; AE L, M) The medical account alleged in Second SOR ¶ 1.hin the amount of about $1,667 is enrolled with the DCC, but no payments have been disbursed to that account. Applicant provided documentation showing he enrolled this account with the DCC. (Tr. 24, 62; First Answer; Second Answer; GE 1, 3, 4, 17; AE L, M) The utility alleged in Second SOR ¶ 1.i in the amount of about $2,563 has been resolved. Applicant provided documentary evidence that he settled this account for a payment of $2,000 in April 2024. (Tr. 24, 62; First Answer; Second Answer; GE 1, 3, 5) The medical account alleged in Second SOR ¶ 1.jin the amount of about $1,438 has not been resolved. Applicant claimed that he enrolled this account with the DCC, but he provided no documentary evidence of this enrollment. (Tr. 24, 62-63; First Answer; Second Answer; GE 3, 5) The judgment entered in September 2018 on a commercial lease account in the amount of $69,549, listed in Second SOR ¶ 1.k, has not been resolved. This delinquency resulted from the aforementioned incident when Applicant’s business partner damaged business equipment, causing a chain of events that led to the failure of the business, and Applicant’s inability to make the required rental payments. Applicant did not attempt to resolve this judgment, nor did he take any legal action against his former business partner for causing the business to fail. He claimed he intends to satisfy this judgment but has been allocating the resources he has available to pay off other debts through the DCC. He testified that he will be able to pay a couple

of hundred dollars a month towards this debt beginning in the next couple of months. (Tr. 24-26, 40-49, 57, 63, 72-75; First Answer; Second Answer; GE 3, 6) The judgment entered in September 2018 on a residential lease account in the amount of $4,605 listed in Second SOR ¶ 1.lhas not been resolved. Applicant became delinquent on this lease about the time his business failed because he did not have adequate income to pay his $4,000 monthly rental payment. The majority of the judgment results from his failure to pay the last month’s rent because the lessor evicted him. He claimed that he contacted the lessor, and he owed about $3,000 on the account. He did not contend that he made any payments on this account and provided no documentary evidence to corroborate that the balance on the judgment is this lesser amount. (Tr. 27-28, 63-64; First Answer; Second Answer; GE 1, 3, 7) Applicant claimed that he had no financial delinquencies other than the accounts listed in the Second SOR. However, the Government’s 2025 credit report lists a debt that is 30-days past due in the approximate amount of $192. This debt is not alleged in the First SOR or the Second SOR and I will not consider it for disqualification purposes. I will use it for evidence regarding mitigation and in my whole-person analysis. (Tr. 27, 77-83; GE 17) In December 2024, Applicant moved from a home where the monthly rent was $1,700 per month to a home where the rent is $2,650 per month. He moved to the more expensive home so he could provide housing to a friend’s three-person family who otherwise would have been homeless. His friend is not contributing any funds towards rent or Applicant’s living expenses, but Applicant hopes his friend will in the future. Applicant claimed that he normally has about $1,000 to $2,000 in surplus funds at the end of each month, but that number was lower recently because he had to buy a new refrigerator and had to pay for car repairs. He had a checking account that had about $100 in it. Other than visiting his son back in State A, he has not taken any vacations recently. (Tr. 27, 77-83; GE 1, 3, 17) Between June 2016 and December 2021, Applicant used hallucinogenic mushrooms and LSD, with varying frequency. Between June 2016 and July 2022, he used “Molly,” with varying frequency. Molly is one of the street names for MDMA. He used hallucinogenic mushrooms about five times, LSD about six times, and Molly about five-to-six times. All these drugs are controlled substances and possessing them was illegal at all times relevant to this proceeding. He divulged these uses on his April 2023 security clearance application (SCA) and discussed his involvement with them with a DOD investigator during his June 2023 security interview (SI). In June 2024 and August 2024, he signed a statement of intent to abstain from all illegal drug involvement and substance misuse and acknowledged that any future involvement in illegal drug use may be grounds for revocation of national security eligibility. On May 30, 2024, he completed a four-hour drug and alcohol awareness class and a four-hour behavior

modification class. He testified that in May 2024, he passed a pre-employment urinalysis test for illegal substances. He no longer resides in State A, where he used illegal drugs, and he no longer associates with the individuals with whom he used illegal drugs. (Tr. 28- 31, 33-35, 64-67; Second Answer; GE 1, 3; AE B-E, G) In the Answer, Applicant admitted that, from about August 2015 until about October 2022, he was involved with different businesses that focused to some degree on cannabis extraction. He credibly testified that his business involvement with cannabis extraction was actually from August 2015 until 2018, and afterwards only involved hemp, cannabidiol (CBD), legal pharmaceuticals, and medical equipment, such as gloves and masks. He further credibly testified that he did not possess any cannabis after February 2016. While cannabis possession was legal pursuant to state law in State A, cannabis (and CBD products containing a concentration of tetrahydrocannabinol (THC) higher than .3%) possession was and remains illegal pursuant to federal law. He testified that he would not have become involved with cannabis or cannabis-related businesses if it were illegal pursuant to state law. Possessing hemp and CBD products containing a concentration of THC less than .3% has been legal under federal law since the passage of the Farm Bill in 2018. (Tr. 31-33, 43-58, 68-72, 86-87; First Answer; Second Answer; GE 3, 8-16) Applicant provided two character-reference letters. One was from a friend of over 15 years and the other was from a work colleague. Both cited his loyalty, strong work ethic, trustworthiness, and dedication. (Tr. 35-36, 66; Second Answer; GE 3; AE F)

POLICIES

This case is adjudicated 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 (AG), which became effective on June 8, 2017. When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are to be 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, administrative judges apply the guidelines 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(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.” 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 the applicant or proven by Department Counsel.” The applicant has the ultimate burden of persuasion to obtain 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 the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation of potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that adverse 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).

ANALYSIS

Guideline F, Financial Considerations The security concern for financial considerations is set out in AG ¶ 18: Failure to live within one’s means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified or sensitive information. Financial distress can also be caused or exacerbated by, and thus can be a possible indicator of, other issues of personnel security concern such as excessive gambling, mental health conditions, substance misuse, or alcohol abuse or dependence. An

individual who is financially overextended is at greater risk of having to engage in illegal or otherwise questionable acts to generate funds. The guideline notes several conditions that could raise security concerns under AG ¶ 19. The following are potentially applicable in this case: (a) inability to satisfy debts; and (b) a history of not meeting financial obligations. Applicant had 10 delinquent accounts totaling about $36,000, and two judgments entered against him in 2018 totaling about $73,000. The above disqualifying conditions are established. Conditions that could mitigate the financial considerations security concerns are provided under AG ¶ 20. The following are potentially applicable: (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; (b) the conditions that resulted in the financial problem were largely beyond the p

erson’s control (e.g., loss of employment, a business downturn, unexpected medical emergency, a death, divorce or separation, clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances; (c) the individual has received or is receiving financial counseling for the problem from a legitimate and credible source, such as a non-profit credit counseling service, and there are clear indications that the problem is being resolved or is under control; and (d) the individual initiated and is adhering to a good-faith effort to repay overdue creditors or otherwise resolve debts. While Applicant has enrolled many of his Second SOR debts with the DCC and has made significant progress on a few of them (including settling a debt without the help of the DCC), he did not provide sufficient evidence that he enrolled all the Second SOR debts. His testimony revealed that he did not have a firm grasp on which Second SOR debts were enrolled with the DCC, and which were not. Given that he had not addressed the commercial lease judgment entered against him in 2018, the vast

majority of his delinquent debt remains unresolved. Applicant’s financial delinquencies are ongoing. AG ¶ 20(a) does not apply. Applicant’s delinquencies were caused by unemployment because he chose to do volunteer work, underemployment while working as a consultant, and a business failure for which he was blameless. Some of these conditions can be seen as being beyond his control. For AG ¶ 20(b) to apply, he must also provide sufficient evidence that he acted responsibly under the circumstances. For AG ¶ 20(d) to apply, he must show that he has made a good-faith effort to resolve his debts. Entering into an agreement with the DCC and resolving some of the Second SOR debts provides some evidence of both acting responsibly under the circumstances and good-faith resolution. However, Applicant’s evidence in mitigation falls short on these fronts for a few reasons. First, the vast majority of his debt, in the form of a judgment entered in 2018 for $69,000, remains unaddressed. Second, he waited until after he received the First SOR to begin resolving his debts. An applicant who acts to mitigate security concerns only after his personal concerns are threatened, such as by the potential loss of his or her security clearance, may not be motivated to follow rules and regulations when his personal interests are not affected. Next, he continued to work as a consultant in a position that paid poorly from about 2018 until about 2023, instead of looking for better- paying work. The evidence that this was poor decision-making is bolstered by the fact that it only took him a few months to find his current job that has allowed him to begin addressing his debts. While it is a compassionate gesture, Applicant’s decision to rent a home that is almost $1,000 more per month so that a friend in need can stay with him, shows questionable financial decision-making, and siphons off funds that could be used to further address his delinquent debts. The fact that he had about $100 in his bank account the day of the hearing shows how crucial that extra $1,000 per month could be to his finances. His lack of knowledge of which debts were enrolled with the DCC also detracts from his mitigation efforts. For these reasons, I find that he presented insufficient evidence that AG ¶¶ 20(b) and 20(d) apply. While Applicant enrolled with the DCC in February 2024, there is no record evidence that he has received or is receiving financial counseling. AG ¶ 20(c) does not apply. 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 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. On October 25, 2014, the Director of National Intelligence (the Security Executive Agent (SecEA)) issued DNI Memorandum ES 2014-00674, “Adherence to Federal Laws Prohibiting M

arijuana Use,” which 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 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. On December 21, 2021, the SecEA promulgated clarifying guidance concerning marijuana-related issues in security clearance adjudications (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 states in pertinent part: [Federal] agencies are instructed that prior recreational marijuana use by an individual may be relevant to adjudications but not determinative. The SecEA has provided direction in [the adjudicative guidelines] to agencies that requires them to use a “whole-person concept.” This requires adjudicators to carefully weigh a number of variables in an individual’s life to determine whether that individual’s behavior raises a security concern, if at all, and whether that concern has been mitigated such that the individual may now receive a favorable adjudicative determination. Relevant mitigations include, but are not limited to, frequency of use and

whether the individual can demonstrate that future use is unlikely to recur, including by signing an attestation or other such appropriate mitigation. Additionally, in light of the long-standing federal law and policy prohibiting illegal drug use while occupying a sensitive position or holding a security clearance, agencies are encouraged to advise prospective national security workforce employees that they should refrain from any future marijuana use upon initiation of the national security vetting process, which commences once the individual signs the certification contained in the Standard Form 86 (SF-86), Questionnaire for National Security Positions. Finally, with regard to the topic of investments, agencies should note that an adjudicative determination for an individual’s eligibility for access to classified information or eligibility to hold a sensitive position may be impacted negatively should that individual knowingly and directly invest in stocks or business ventures that specifically pertain to marijuana growers and retailers while the cultivation and distribution of marijuana remains illegal under the Controlled Substances Act. Under [the adjudicative guidelines’] guidance for personal conduct (Reference B, Guideline E), a decision to invest in an activity, including a marijuana-related business, which the individual knows violates federal law could reflect questionable judgment and an unwillingness to comply with laws, rules, and regulations. That is, it is appropriate for adjudicative personnel to consider whether an individual is knowingly facilitating violations of the Controlled Substances Act by engaging in such investments. On the other hand, if the marijuana- related investment is not direct, such as an investment in a diversified mutual fund that is publicly-traded on a United States exchange, adjudicators should presume that individual did not knowingly invest in a marijuana-related business; thus, the indirect investment should not be considered relevant to adjudications. In some instances, the investment itself may be illegal, which is also relevant to [the adjudicative guidelines’] guidance for criminal conduct (Reference B, Guideline J), which by its very nature calls into question an individual’s ability or willingness to comply with laws, rules, and regulations. However, under the whole-person concept, any mitigating factors should be considered. For example, if an individual holds direct stock investments pertaining to marijuana growers and retailers, divestment of such activity or disassociation of such activity should be considered a mitigating factor when rendering an adjudicative decision. 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. Between June 2016 and December 2021, Applicant used hallucinogenic mushrooms and LSD, with varying frequency. Between June 2016 and July 2022, he used “Molly,” with varying frequency. These drugs are illegal controlled substances. The evidence showed that he was involved in a business as an employee that possessed, processed, and sold cannabis, a controlled substance, from August 2015 until February 2016. The above-referenced Guideline H disqualifying conditions are established. I find that Applicant did not possess, process, or sell cannabis after February 2016 because his failed business never received or sold cannabis, and his other businesses involved hemp and CBD. There is no evidence that the CBD with which Applicant was involved contained more than 0.3% THC. 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.

It has been about three years since Applicant used or was involved with illegal substances. He has twice submitted the signed statement of intent to abstain from all illegal drug involvement and substance misuse. He no longer lives near State A where all his illegal drug use occurred, and he no longer associates with the individuals with whom he used illegal drugs. He has not possessed, manufactured, or sold cannabis since 2016, and when he did so, he was in a state where possessing cannabis was legal pursuant to state law. For these reasons, AG ¶ 26(a) and AG ¶ 26(b) both apply. I find that he has mitigated the drug involvement and substance misuse security concerns.

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. 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. I have incorporated my comments under Guidelines F and H in my whole-person analysis. I have considered his military service, his positive character-reference letters, and his volunteer work. Overall, the record evidence leaves me with questions and doubts about his eligibility and suitability for a security clearance. I conclude Applicant did not mitigate the financial considerations security concerns. He mitigated the drug involvement and substance misuse security concerns.

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 F: AGAINST APPLICANT

________________________ Subparagraphs 1.a-1.b:

Against Applicant Subparagraphs 1.c-1.d:

For Applicant Subparagraphs 1.e-1.h

Against Applicant Subparagraph 1.i: For Applicant Subparagraphs 1.j-1.l:

Against Applicant Paragraph 2, Guideline H: FOR APPLICANT Subparagraphs 2.a-2.d: For Applicant

CONCLUSION

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. Benjamin R. Dorsey Administrative Judge