ISCR Case No. 24-02307

______________ ______________ DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: Applicant for Security Clearance ) ) ) ) ) ISCR Case No. 24-02307 Appearances For Government: Cassie L. Ford, Esq., Department Counsel For Applicant: Pro se 12/22/2025

HOGAN, Erin C., Administrative Judge: The security concern raised under Guideline H, Drug Involvement and Substance Misuse, is not mitigated. Eligibility for access to classified information is denied. Statement of the Case Applicant submitted a security clearance application (SCA) on February 9, 2024. (Item 5) The Defense Counterintelligence and Security Agency (DCSA) issued Applicant a Statement of Reasons (SOR) on May 22, 2025, detailing security concerns under Guideline H. DCSA acted under Executive Order (Exec. Or.) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; Department of Defense (DOD) Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and Security Executive Agent Directive 4, National Security Adjudicative Guidelines, effective within the DOD as of June 8, 2017.

On June 13, 2025, Applicant answered the SOR and elected a decision on the written record by an administrative judge of the Defense Office of Hearings and Appeals (DOHA). On July 5, 2025, Department Counsel submitted the Government’s File of Relevant Material (FORM), including documents identified as Items 1 through 8. Applicant received the FORM on August 7, 2025. He was afforded 30 days after receiving the FORM to file objections and submit material in refutation, extenuation, or mitigation. He did not submit additional matters in response to the FORM. The case was forwarded to the DOHA Hearing Office on September 22, 2025, and assigned to me on December 17, 2025. Several names and other facts have been modified to protect Applicant’s privacy interests. More detailed facts can be found in the record.

In Applicant’s SOR response, he admits the allegations in SOR ¶¶ 1.a and 1.b. Applicant’s admissions are accepted as findings of fact. (Item 4) Applicant is 30 years old. He is being sponsored for a security clearance by his employer, a DOD contractor. He has worked for this employer since August 2021. He initially applied for a security clearance in November 2022 with the same employer as a sponsor. He was granted a secret security clearance on April 10, 2023. He has no military experience. His highest level of education is a bachelor’s degree. He is single and lives with a cohabitant. He has no children. (Item 5, Item 6, Item 8) The SOR alleges under Guideline H that Applicant used marijuana with varying frequency from about September 2013 to about July 2023 (SOR ¶ 1.a: Item 5 at 30-31; Item 6 at 30-31; Item 7 at 4-5, 9) ; and that he used marijuana in about July 2023, while holding a sensitive position, i.e. that requires a security clearance ev

en though he understood marijuana use remained illegal under Federal law. (SOR ¶ 1.b: Item 5 at 30- 31; Item 6 at 30-31; Item 8) On Applicant’s first security clearance application which was submitted on November 10, 2022, he indicated in response to Section 23, Illegal Use of Drugs or Drug Activity that he illegally used marijuana from approximately September 2013 to approximately January 2021. He smoked marijuana socially while in college and on an occasional basis after graduating college in December 2017. He indicated the last time he used marijuana was in January 2021, approximately six months before being hired by his current employer. Regarding his future use of marijuana, Applicant wrote: I reduced then stopped my use of marijuana as I transitioned into adulthood, and it became less common as

a social activity with my peers. I decided to quit fully in 2021 to pursue new job opportunities and never did it again. I do

not intend to use marijuana in the future now, primarily due to my current career goals. (Item 6 at 30-31) On April 10, 2023, Applicant was granted a secret security clearance related to his initial security clearance application and background investigation. (Item 8) On February 9, 2024, Applicant submitted a security clearance application in order to upgrade his security clearance to top secret. In response to Section 23, Illegal Use of Drugs and Drug Activity, he listed the same information provided on his November 2022 security clearance application, but added that after his state legalized the use of marijuana on a recreational basis, he used it on July 1, 2023, and has used it a few times after inside his home with his cohabitant. He noted that he used marijuana while possessing a security clearance. He also indicated that he does not intend to use marijuana in the future, stating: I now regret that I did once the state legalized it, as it is federally illegal still, but at the time did not see a national security issue or potential for sharing any controlled information while doing it within my residence and without contact other than my cohabitant [name redacted]. We certainly did not discuss anything work-related at the time. I do not intend to use marijuana in the future, primarily due to my current career goals including obtaining clearance levels required to support the efforts of [name of employer redacted]. (Item 5 at 30-31) In his response to DOHA interrogatories, dated February 27, 2025, Applicant indicated he used marijuana from approximately 2012 to July 2023. From 2012 to December 2018, he used marijuana on a weekly basis. After December 2018, he used marijuana occasionally. He was aware that marijuana was illegal during the entire time he used it. He does not intend to use marijuana in the future. His cohabitant still uses marijuana. She has a medical prescription for it. He claims that he is not usually in the same room when she uses marijuana. She is aware and considerate of his decision to abstain from marijuana use. Applicant does not intend to use marijuana in the future under any circumstance. He acknowledges that any illegal drug involvement or misuse of prescription drugs is grounds for revocation of national security eligibility. (Item 7 at 4-5, 9-11) In Applicant’s response to the SOR, dated June 13, 2025, he admits the SOR allegations. He believes he has made a huge mistake that he will regret for the rest of his life. His last use of marijuana occurred close to two years ago. His priorities have changed, and he intends to never engage in any activity that would raise questions about his character, reliability or trustworthiness to any employer or to the United States government. He has not been involved in any other criminal activity at any time in his life. He has learned his lesson from this situation and is resolved to complete his employment

requirements and support our military and service members to the best of his ability and pledges his allegiance to the United States. (Item 4)

It is well established that no one has a right to a security clearance. As the Supreme Court held, “the clearly consistent standard indicates that security determinations should err, if they must, on the side of denials.” Department of the Navy v. Egan, 484 U.S. 518, 531 (1988). The adjudicative 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(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 access to classified information will be resolved in favor of the national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. Likewise, I have avoided drawing inferences grounded on mere speculation or conjecture. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, an “applicant is responsible for presenting witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel, and has the ultimate burden of persuasion as to obtaining a favorable security decision.” A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk that an applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation as to potential, rather than actual, risk of compromise of classified information. 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 to 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 stated 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 federally 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 and Substance Misuse AG ¶ 24 expresses the security concern for drug involvement: The illegal use of controlled substances . . . 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. I have considered the disqualifying conditions for drug involvement and substance misuse under AG ¶ 25 and the following are potentially applicable:

AG ¶ 25(a) any substance misuse; 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. Both AG ¶¶ 25(a) and 25(c) apply. Applicant has a history of illegal marijuana use. He admits to using marijuana on various occasions for almost ten years starting approximately in September 2013 to about July 2023. He is aware that marijuana use remains illegal under federal law. He continued to use marijuana after submitting his November 2022 security clearance application. He admits to using marijuana in July 2023. He was granted a secret security clearance on April 10, 2023. While the record is unclear whether Applicant actually handled classified information, he worked in a sensitive position. For this reason, AG ¶ 25(f) applies. The Government’s substantial evidence and Applicant’s admissions raise security concerns under Guideline H. 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. Sept. 22, 2005)) The guideline also includes examples of conditions that could mitigate security concerns arising from drug involvement and substance misuse. The following mitigating conditions under AG ¶ 26 potentially apply: AG ¶ 26(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 AG ¶ 26(b) the individual acknowledges his or her drug involvement and substance misuse, provides evidence on 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.

Neither mitigating condition applies because of Applicant’s long history of illegal marijuana use and his decision to start using marijuana again after submitting his November 2022 security clearance application. Questions are raised about his reliability, trustworthiness, and judgment because of his conduct. He used marijuana even though he was aware that marijuana remained illegal under federal law. His decision to continue using marijuana after submitting his security clearance application reveals that he is not serious about discontinuing marijuana use despite indicating he was aware that it was illegal under federal law and not consistent with holding a security clearance. While he now states his intent to once again abstain from using marijuana, not enough time has passed to conclude he is serious about abstaining from marijuana use. His cohabitant continues to use marijuana, while she has a medical prescription in the state where they reside, marijuana remains illegal under federal law. The security concerns raised under Drug Involvement and Substance Misuse are not mitigated.

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 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. I have incorporated my comments under Guideline H and the AG ¶ 2(d) factors in this whole-person analysis. Because Applicant requested a determination on the record without a hearing, I had no opportunity to evaluate his credibility and sincerity based on demeanor. Insufficient time has passed since his last use of marijuana to overcome the extent and seriousness of his conduct. See ISCR Case No. 01-12350 at 3-4 (App. Bd. Jul. 23, 2003). I considered Applicant’s honesty when disclosing his history of marijuana use during his background investigations. However, questions remain because he continued

_____________________________ to use marijuana after submitting his first security clearance application in November 2022. Even though he indicated his intent to not use marijuana in the future, he used marijuana in July 2023. Considering his history of illegal marijuana use, not enough time has passed to conclude he is serious about his intention to refrain from illegal drug use. An additional concern is raised because his cohabitant continues to use marijuana in their household. While she has a “prescription” for medical marijuana in the state where they reside, marijuana remains illegal under federal law. After weighing the disqualifying and mitigating conditions under Guideline H and evaluating all the evidence in the context of the whole person, I conclude Applicant has not mitigated the security concerns raised by his conduct under Guideline H. This decision should not be construed as a determination that Applicant cannot or will not attain the state of reform necessary for award of a security clearance in the future. With more effort towards maintaining a drug-free lifestyle, he may well be able to demonstrate persuasive evidence of his security clearance worthiness.

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

In light of all of the circumstances presented, it is not clearly consistent with the interests of national security to grant Applicant’s eligibility for access to classified information. Eligibility for access to classified information is denied. Erin C. Hogan Administrative Judge