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______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: )

)

)

ISCR Case No. 24-02155

) Applicant for Security Clearance )

Appearances For Government: Andrew Henderson, Esquire, Department Counsel For Applicant: Pro se 06/25/2025

CEFOLA, Richard A., Administrative Judge: On June 25, 2020, and again on September 27, 2023, Applicant submitted her Electronic Questionnaires for Investigations Processing (e-QIP). On January 3, 2025, the Defense Counterintelligence and Security Agency Consolidated Adjudication Services (DCSA CAS) issued Applicant a Statement of Reasons (SOR) detailing security concerns under Guideline H (Drug Involvement and Substance Misuse). The action was taken under Executive Order 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 effective June 8, 2017.

Applicant answered the SOR (Answer) in writing on January 7, 2025, and requested a hearing before an administrative judge. The Defense Office of Hearings and Appeals (DOHA) received the request on March 28, 2025. I received the case assignment on April 3, 2025. DOHA issued a Notice of Hearing on April 14, 2025, and I convened the hearing as scheduled on May 22, 2025. The Government offered Exhibits (GXs) 1 through 5, which were received into evidence without objection. Applicant testified and submitted Exhibits (AppXs) A and B, which were received into evidence without objection. She also asked that the record be kept open until June 20, 2025, for the receipt of additional documentation. On May 23, 2025, Applicant submitted a closing statement. DOHA received the transcript of the hearing (TR) on June 2, 2025. Based upon a review of the pleadings, exhibits, and testimony, eligibility for access to classified information is denied.

In her Answer to the SOR Applicant admitted the factual allegations of the SOR, with explanations. She also provided additional information to support her request for eligibility for a security clearance. Applicant is 32 years old, unmarried, and has no children. She has a bachelor’s degree in business and finance. She works for a defense contractor as a Scheduler. (TR at page 5 line 10 to page 6 line 1, and at page 16 line 7 to page 19 line 10.) Guideline H – Drug Involvement and Substance Misuse 1.a. and 1.c. Applicant admits that she used marijuana with varying frequency from about February 2007 until her last usage in September of 2023, a period of about 16 years. “Over the last seven years,” she avers she only used marijuana with friends in March 2019, and in October 2021; and with friends and their parents in September of 2023. Applicant also purchased marijuana with varying frequency from about February 2007 until her last purchase in December 2021, about three and a half years ago. (TR at page 19 line 11 to page 31 line 23.) She has submitted an undated letter 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.” (AppX A.) 1.band 1.

d. In her Answer to the SOR, Applicant admits to using and purchasing marijuana, from about October 2020 until September 2023, while employed in sensitive positions (one requiring a security clearance). At her hearing, however, Applicant recanted this admission. (TR at page 20 line 24 to p age 21 line 5.) This recantation is suspect, at best. Applicant submitted an e-QIP in June of 2020, changed employers, and again submitted an e-QIP in November of 2024. At a bare minimum, Applicant knew she

made these submissions, yet used and purchased the Federally designated illegal substance in March of 2019, and again in October 2021.

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, administrative judges apply the guidelines in conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The administrative judge’s overarching adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), 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. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable clearance 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 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 Executive Order 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).

Guideline H - Drug Involvement and Substance Misuse The security concern relating to the guideline for Drug Involvement and Substance Misuse is set forth at 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. The guideline at AG ¶ 25 contains seven conditions that could raise a security concern and may be disqualifying. Three conditions are established: (a) any substance misuse (see above definition); (c) illegal possession of a controlled substance, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; and (f) any illegal drug use while granted access to classified information or holding a sensitive position. Appellant used marijuana over a period of 16 years, to include twice while holding a sensitive position. Therefore, AG ¶ 25 (a), (c), and (f) are established.

The guideline at AG ¶ 26 contains five conditions that could mitigate security concerns. Two conditions may be 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. Although Applicant has submitted a statement of intent as to future drug `involvement, in light of her fairly recent September 2023 usage, while holding a position of trust, I find it is too soon to rule out future drug involvement. Drug Involvement and Substance Misuse is found against Applicant. This should not dissuade Applicant, however, from applying for a security clearance in the future, after a further period of abstinence.

Under the whole-person concept, the administrative judge must evaluate an applicant’s eligibility for a security clearance by considering the totality of an 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. AG ¶ 2(b) requires each case must be judged on its own merits. 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 considered the potentially disqualifying and mitigating conditions in light of all the facts and circumstances surrounding this case. Applicant performs her job well, as evidenced by her two most recent work appraisals. (AppX B.) Overall, however, at precent the record evidence leaves me with questions and doubts as to Applicant’s eligibility and suitability for a security clearance. For all these reasons, I conclude Applicant failed to mitigate the security concerns arising from her drug involvement and substance abuse.

Formal findings for or against Applicant on the allegations set forth in the SOR, as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline H: AGAINST APPLICANT Subparagraphs 1.a~1.d:

Against Applicant

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 national security eligibility for a security clearance. Eligibility for access to classified information is denied. Richard A. Cefola Administrative Judge