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ISCR Case 08-10547.h1 — CASE

ISCR Case 08-10547.h1denied

Case Headnote

ISCR Case No. 08-10547.h1

deniedJun 30, 2009· Hon. Mark W. Harvey· hearing

Summary

A 28-year-old defense contractor employee was denied a security clearance under Guideline H (Drug Involvement) due to recent drug use. The Statement of Reasons detailed her use of marijuana 10-15 times between 1999 and February 2008, cocaine three to five times from March to May 2006, and ecstasy twice in October 2005. These allegations raised disqualifying conditions under Adjudicative Guidelines paragraphs 25(a) and 25(c).

Despite the applicant's claims of disassociating from drug-using associates and providing a signed statement of intent to abstain, the judge found these insufficient to mitigate security concerns. Mitigating conditions under Adjudicative Guidelines paragraphs 26(a) and 26(b) were considered but ultimately not applied.

The denial was primarily based on the recency of her last marijuana use in February 2008, which was deemed too close to the hearing date. Additionally, the applicant failed to provide evidence of a favorable prognosis from a qualified medical professional regarding her drug use. The judge concluded that her history of drug involvement raised significant questions about her reliability and trustworthiness, leading to the denial of her security clearance.

Why the Applicant Was Denied

The applicant's last use of marijuana was in February 2008, which was deemed too recent to mitigate security concerns.
The applicant did not provide evidence of a favorable prognosis from a qualified medical professional regarding her drug use.
The applicant's history of drug use raised questions about her reliability and trustworthiness.

Conditions Referenced

Disqualifying

AG ¶ 25(a)raisedAny Drug Abuse
AG ¶ 25(c)raisedIllegal Drug Possession

Mitigating

AG ¶ 26(a)rejectedBehavior Happened so Long Ago, Was so Infrequent, or Happened Under Such Circumstances That It Is Unlikely to RecurThe applicant's last marijuana use was too recent to apply this mitigating condition.
AG ¶ 26(b)appliedDemonstrated Intent Not to Abuse Drugs in the FutureThe applicant provided a signed statement of intent to abstain from drug use.

Key Rule Quoted

“Eligibility for a security clearance is predicated upon the Applicant meeting the criteria contained in the revised adjudicative guidelines (AG).”

Procedural Posture

SOR issuedMar 18, 2009
Answer filedApr 16, 2009
Hearing heldJun 9, 2009
Decision dateJun 30, 2009

Cite For

Recent Drug Use Impacting Security Clearance Eligibility
Disassociation From Drug-using Associates as a Mitigating Factor
Signed Statement of Intent to Abstain From Drug Use as a Mitigating Condition

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 H (Drug Involvement) · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found that the applicant's drug involvement raised security concerns under Guideline H. The applicant used marijuana, cocaine, and ecstasy, with the marijuana use being too recent to mitigate. The judge ruled against the applicant on the marijuana use allegation, while finding in favor of the applicant on the cocaine and ecstasy allegations. Ultimately, the applicant's eligibility for a security clearance was denied.

¶	Allegation	Finding	Substance / event	Use level	Response	Disqualifying (¶25)	Mitigating applied (¶26)	Mitigation
1.a	Applicant used marijuana 10-15 times between 1999 and February 2008	Against Applicant	Marijuana	Occasional	Admitted	(a) any substance misuse (c) illegal possession, cultivation, manufacture, purchase, sale, or distribution; or paraphernalia	—	—
1.b	Applicant used cocaine three to five times between March 2006 and May 2006	For Applicant	Cocaine	Occasional	Admitted	—	—	—
1.c	Applicant used ecstasy twice in October 2005	For Applicant	MDMA	Experimental	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: ) ) ----------------- ) ISCR Case No. 08-10547 SSN: ----------- ) ) Applicant for Security Clearance )

For Government: Candace L. Le’i, Esquire, Department Counsel For Applicant: Pro Se

June 30, 2009 __________

STATEMENT OF CASE

__________

HARVEY, Mark, Administrative Judge:

Applicant used marijuana, ecstasy and cocaine. Her marijuana usage until February 2008 is too recent to be mitigated at this time. Eligibility for access to classified information is denied.

Statement of the Case

On May 2, 2008, Applicant completed an Electronic Questionnaires for Investigations Processing (e-QIP) or security clearance application (SF-86) (Government Exhibit (GE) 1). On March 18, 2009, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant, pursuant to Executive Order 10865, Safeguarding Classified Information Within Industry, dated February 20, 1960, as amended and modified, and Department of Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (Directive), dated January 2, 1992, as amended and modified. The revised adjudicative guidelines (AG) promulgated by the President on December 29, 2005, are effective within the Department of Defense for SORs issued after September 1, 2006. The SOR alleges security concerns under Guideline H (Drug Involvement) (GE 8). The SOR detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant, and recommended referral to an administrative judge to determine whether a clearance should be granted, continued, denied, or revoked.

On April 16, 2009, Applicant responded to the SOR allegations (GE 9). Department Counsel was ready to proceed on May 14, 2009, and the case was assigned to me of May 15, 2009. At the hearing held on June 9, 2009, Department Counsel offered six exhibits (GE 1-6) (Transcripts (Tr.) 19). There were no objections, and I admitted GE 1-6 (Tr. 19). Applicant provided six exhibits (Tr. 44-45; AE A-F). Department Counsel did not object, and I admitted AE A-F (Tr. 45). I also admitted the hearing notice (GE 7), the SOR (GE 8), and Applicant’s SOR response (GE 9). I held the record open until June 9, 2009, to permit Applicant to submit additional evidence. I received the transcript on June 17, 2009. Applicant provided one document after the hearing, which was admitted as AE G.

Findings of Fact1

In Applicant’s response to the SOR, she admitted the allegations in SOR ¶¶ 1.a to 1.c (GE 9). Her admissions are incorporated herein as findings of fact. After a complete and thorough review of the evidence of record, I make the following additional findings of fact.

Applicant is a 28-year-old employee of a defense contractor (Tr. 7). She is a high school graduate, and has attended college from 1999 to 2000 (Tr. 7). She has never held a security clearance (Tr. 8). She was working as a waitress and met several contractor employees (Tr. 39-40). The contractor employees advised her that an administrative position was available (Tr. 39-40). They suggested she apply for the job (Tr. 40). On April 21, 2008, she started working for the government contractor (Tr. 38). She married in 2000 and divorced in 2006 (GE 1). She is not married. Her children were born in 2000, 2003 and 2007 (GE 1). She has never served in the military (GE 1). She does not have a police record (GE 1).

Drug involvement (SOR ¶¶ 1.a to 1.c)

Applicant used marijuana 10-15 times between 1999 and February 2008 (SOR ¶ 1.a; Tr. 49-59; GE 1, GE 9). She used cocaine three to five times between March 2006 and May 2006 (SOR ¶ 1.b; Tr. 60, 64; GE 1, GE 9). She used ecstasy twice in October 2005 (SOR ¶ 1.c; Tr. 61-63; GE 1, GE 9). She admitted her drug use on her May 2, 2008, security clearance application (GE 1). Applicant first used marijuana in college (Tr. 49). Her use of illegal drugs was sporadic (Tr. 54). A year might pass between her uses of illegal drugs (Tr. 54). Her former husband introduced her to illegal drugs (Tr. 49-50). She also used illegal drugs with her roommate (Tr. 49-50). After five years of marriage, she told her husband that they needed to get illegal drugs out of their lives (Tr. 51). He told her he quit, and then later she found out he still used illegal drugs (Tr. 51). She finally divorced him because of his drug abuse (Tr. 52). She was separated from her husband in 2005, and the divorce was final in August 2006 (Tr. 52). Her drug use was at social functions and was never around her children (Tr. 52-53). Her ex-boyfriend was also a marijuana user (Tr. 57). She had a daughter from her relationship with her ex-boyfriend (Tr. 58). Her relationship with her ex-boyfriend ended because he consumed too much alcohol (Tr. 58). The last time she used marijuana was at a Super Bowl party in February 2008 (Tr. 53). She inhaled some marijuana smoke from a pipe being passed around the room (Tr. 57). She immediately regretted using the marijuana and did not use more marijuana from the pipe the next time it was passed to her (Tr. 57).

Applicant has dissociated herself from known drug users (Tr. 54, 66-67). She primarily associates on a social basis with co-workers at her government contractor employment (Tr. 59). She still associates with her ex-boyfriend when he visits their daughter, which is every other weekend (Tr. 59). She emphasized that she wanted to protect her children and using drugs placed them at risk (Tr. 55, 67). She is the sole support for her three children, and their welfare was very important to her (Tr. 56). Her current employment is the best employment she has had (Tr. 55-56). She and her children will have a better future if she can retain her current employment (Tr. 56).

The contractor informed Applicant that using illegal drugs while working for the contractor was not permitted (Tr. 41). Before she began her employment with the contractor, she received a urinalysis test, which was negative for the presence of illegal- drug-related metabolites (Tr. 42).

Applicant has never received any drug therapy or treatment (Tr. 65). She promised not to use illegal drugs in the future (Tr. 65-67). On July 2, 2008, an Office of Personnel Management (OPM) investigator interviewed Applicant about her drug use (GE 2). Her description of her drug involvement was consistent with her statement at her hearing (GE 2).

On June 9, 2009, Applicant provided a statement in accordance with AG ¶ 26(b) to demonstrate her intent not to abuse illegal drugs in the future (AE G). She provided “a signed statement of intent with automatic revocation of [her] clearance for any violation” (AE G).

Character evidence

A retired U.S. Marine Corps field grade officer (S), who has been an intelligence officer for 17 years of his military service, is currently Applicant’s supervisor (Tr. 25). S has supervised her for about seven months (Tr. 31). S is a program manager for her employer (Tr. 27). S described her as a diligent, responsible and trustworthy employee (Tr. 25, 34, 37). S was unsure about whether the contractor had an active urinalysis testing program to detect illegal drug use (Tr. 28, 33). If S’s employer has a urinalysis- drug testing program, testing is infrequent (Tr. 28). For example, S had only been tested once in the last 18 months, and that was shortly before starting his employment with the contractor (Tr. 28, 32-33). Applicant’s current responsibility is in administration and as an assistance operations coordinator (Tr. 30). She is also a deputy deployment coordinator, which entails processing personnel to deploy to Afghanistan and Iraq (Tr. 35). She also assists with resolving the needs of deployed individuals once they are deployed (Tr. 35-36). A clearance makes her job easier because it enables her to enter restricted areas at various locations with less escort/in-processing issues (Tr. 30). However, if her clearance is denied, she will not be fired (Tr. 31). S did not know the basis for the government’s security concern (Tr. 32).

Applicant disclosed her drug abuse in general terms to the authors of three letters of recommendation/character references (Tr. 46; AE A-B, F). The authors of two letters are supervisors employed by the contractor that employs Applicant (AE A-B). These three letters describe her as honest, reliable, and competent. She has excellent attention to detail, strong integrity and is very dependable. She is trustworthy and performs beyond expectations. She would regard her responsibilities as a security clearance holder very seriously and conscientiously.

The author of one letter is a former counterintelligence agent (C) (AE B). Since January 2008, C has known Applicant at work and socially. C describes her as a superb employee, who is completely trustworthy (AE B). C recommends Applicant for a position of trust and responsibility (AE B).

Other contractor employees laud her work ethic and professionalism (AE C). They recommend Applicant for a security clearance (AE C). Some character witnesses have known Applicant for up to 20 years and compliment her for her love of her family, strong leadership, solid character, and superb dedication to work and family (AE D, E).

POLICIES

The U.S. Supreme Court has recognized the substantial discretion of the Executive Branch in regulating access to information pertaining to national security emphasizing, “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has the authority to control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to have access to such information.” Id. at 527. The President has authorized the Secretary of Defense or his designee to grant Applicant’s eligibility for access to classified information “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960), as amended and modified. Eligibility for a security clearance is predicated upon the Applicant meeting the criteria contained in the revised adjudicative guidelines (AG). These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with an evaluation of the whole person. An administrative judge’s over-arching adjudicative goal is a fair, impartial and common sense decision. An administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable.

The government reposes a high degree of trust and confidence in persons with access to classified information. This relationship transcends normal duty hours and endures throughout off-duty hours. Decisions include, by necessity, consideration of the possible risk the Applicant may deliberately or inadvertently fail to 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. Clearance decisions must be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the [A]pplicant concerned.” See Exec. Or. 10865 § 7. See also Executive Order 12968 (Aug. 2, 1995), Section 3. Thus, nothing in this Decision should be construed to suggest that I have based this decision, in whole or in part, on any express or implied determination as to Applicant’s allegiance, loyalty, or patriotism. It is merely an indication the Applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Initially, the government must establish, by substantial evidence, conditions in the personal or professional history of the Applicant that may disqualify the Applicant from being eligible for access to classified information. The government has the burden of establishing controverted facts alleged in the SOR. See Egan, 484 U.S. at 531. “Substantial evidence” is “more than a scintilla but less than a preponderance.” See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994). The guidelines presume a nexus or rational connection between proven conduct under any of the criteria listed therein and an Applicant’s security suitability. See ISCR Case No. 95-0611 at 2 (App. Bd. May 2, 1996).

Once the government establishes a disqualifying condition by substantial evidence, the burden shifts to the Applicant to rebut, explain, extenuate, or mitigate the facts. Directive ¶ E3.1.15. An Applicant “has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his [or her] security clearance.” ISCR Case No. 01-20700 at 3 (App. Bd. Dec. 19, 2002). The burden of disproving a mitigating condition never shifts to the government. See ISCR Case No. 02-31154 at 5 (App. Bd. Sep. 22, 2005). “[S]ecurity clearance determinations should err, if they must, on the side of denials.” Egan, 484 U.S. at 531; see AG ¶ 2(b).

ANALYSIS

Upon consideration of all the facts in evidence, and after application of all appropriate legal precepts, factors, and conditions, I conclude the relevant security concern is under Guidelines H (Drug Involvement) with respect to the allegations set forth in the SOR.

Drug Involvement

AG ¶ 24 articulates the security concern concerning drug involvement:

[u]se of an illegal drug or misuse of a prescription drug can raise questions about an individual’s reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations.

AG ¶ 25 describes eight drug involvement-related conditions that could raise a security concern and may be disqualifying. Two drug involvement disqualifying conditions could raise a security concern and may be disqualifying in this particular case. AG ¶ 25(a), indicates, “any drug abuse,”2 and AG ¶ 25(c) states, “illegal drug possession,” could raise a security concern and may be disqualifying in Applicant’s case.

AG ¶¶ 25(a) and 25(c) apply. The other disqualifying conditions listed in AG ¶ 25 are not applicable. These disqualifying conditions apply because Applicant used and possessed marijuana, cocaine and ecstasy.3 She disclosed her drug abuse in her SF- 86, her responses to DOHA interrogatories, her SOR response, and at her hearing. She possessed marijuana, cocaine and ecstasy before she used these substances.

AG ¶ 26 provides for potentially applicable drug involvement mitigating conditions:

(a) the behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; (b) a demonstrated intent not to abuse any drugs in the future, such as:

(1) disassociation from drug-using associates and contacts;

(2) changing or avoiding the environment where drugs were used;

(3) an appropriate period of abstinence; and

(4) a signed statement of intent with automatic revocation of clearance for any violation;

(c) abuse of prescription drugs was after a severe or prolonged illness during which these drugs were prescribed, and abuse has since ended; and

(d) satisfactory completion of a prescribed drug treatment program, including but not limited to rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional.

Security concerns can be mitigated based on AG ¶ 26(a) by showing that the drug offenses happened so long ago, were so infrequent, or happened under such circumstances that they are unlikely to recur or do not cast doubt on the individual’s current reliability, trustworthiness, or good judgment. There are no “bright line” rules for determining when conduct is “recent.” The determination must be based “on a careful evaluation of the totality of the record within the parameters set by the directive.” ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). If the evidence shows “a significant period of time has passed without any evidence of misconduct,” then an administrative judge must determine whether that period of time demonstrates “changed circumstances or conduct sufficient to warrant a finding of reform or rehabilitation.”4 Applicant used marijuana 10-15 times between 1999 and February 2008. She used cocaine three to five times between March 2006 and May 2006. She used ecstasy twice in October 2005. Applicant’s last marijuana use was recent because it was 17 months before her hearing. She recognizes the adverse impact on her life of drug abuse. These actions create some certitude that she will continue to abstain from drug use. AG ¶ 26(a) partially applies to her drug-related offenses.5

AG ¶ 26(b) lists four ways Applicant can demonstrate her intent not to abuse illegal drugs in the future. She has disassociated from her drug-using associates and contacts, except for her ex-boyfriend who visits their daughter every two weeks. She has broken her patterns of drug abuse, and she has changed her life with respect to illegal drug use. She has abstained from drug abuse for almost 17 months. Applicant provided “a signed statement of intent with automatic revocation of clearance for any violation.” AG ¶ 26(b) fully apples.

AG ¶¶ 26(c) and 26(d) are not applicable because Applicant did not abuse prescription drugs after being prescribed those drugs for an illness or injury. Marijuana, cocaine and/or ecstasy were never prescribed for her. She did not satisfactorily complete a prescribed drug treatment program. Moreover, she cannot receive full credit because she did not provide “a favorable prognosis by a duly qualified medical professional, including rehabilitation and aftercare requirements.”

In conclusion, Applicant ended her drug abuse in February 2009, about 17 months ago. Aside from her marijuana use, all of her other illegal drug use ended in May 2006 or earlier.6 The motivations to stop using illegal drugs are evident. She understands the adverse results from drug abuse.7 She has shown or demonstrated a sufficient track record of no drug abuse to partially, but not completely, mitigate drug involvement as a bar to her access to classified information. If she continues to refrain from drug abuse and other misconduct for 12 additional months after the date of this decision, she would have shown a sufficient period of rehabilitation to warrant approval of her security clearance.

WHOLE PERSON CONCEPT

Under the whole person concept, the administrative judge must evaluate an Applicant’s eligibility for a security clearance by considering the totality of the Applicant’s conduct and all the circumstances. The administrative judge should consider the nine adjudicative process factors listed at AG ¶ 2(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.

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 Guideline H in my whole person analysis. Some of the factors in AG ¶ 2(a) were addressed under those guidelines, but some warrant additional comment.

There is some evidence supporting approval of Applicant’s clearance. Applicant was relatively young and immature when she began using illegal drugs. Applicant admitted that she used illegal drugs on her SF-86. She continued to admit her drug use in her OPM interview, response to DOHA interrogatories, response to the SOR, and at her hearing. All of her statements were consistent. Her admissions of drug use are a positive sign that Applicant is taking responsibility for her drug use in the context of her security clearance. There were no police records describing her drug involvement. She stopped using illegal drugs in February 2008. She knows the consequences of drug abuse. Applicant contributes to her company and the Department of Defense. There is no evidence of any disciplinary problems at work. For example, there is no evidence she used illegal drugs at work. There is no evidence of disloyalty or that she would intentionally violate national security. Her good character and superb work performance are established by her character witness and the statements she provided. Her strong work performance shows significant responsibility, rehabilitation and mitigation. Her supervisors evidently support her or she would not have been able to retain her employment after her security clearance was called into question. Even more importantly, her employer intends to continue her employment even if her security clearance is not approved.

The evidence against approval of Applicant’s clearance is more substantial at this time. Applicant used marijuana 10-15 times between 1999 and February 2008. She used cocaine three to five times between March 2006 and May 2006. She used ecstasy twice in October 2005. She has not received drug counseling or treatment. Each time she used illegal drugs, she possessed the illegal drugs before she used them. Each time she possessed illegal drugs, she committed a state and federal crime. Most of her drug use involved use in a social setting with drug-using friends. Essentially she gave in to peer pressure and accepted and used drugs she received from other drug users. She knew what she was doing was wrong, and did it anyway. Her poor judgment placed her family at risk and she was exposed to possible civil sanctions.

In conclusion, I am impressed with Applicant’s sincerity and commitment to refrain from using illegal drugs. She has not used illegal drugs for 17 months. If she can continue to abstain from illegal drug use for a year after the date of this decision, and avoids any other conduct that raises a security concern, a security clearance should be approved for her. I conclude that if these conditions are met, by July 1, 2010, her drug involvement will be fully mitigated by the passage of time.

After weighing the disqualifying and mitigating conditions, and all the facts and circumstances, in the context of the whole person, I conclude she has not mitigated the security concerns pertaining to drug involvement at this time.

I take this position based on the law, as set forth in Department of Navy v. Egan, 484 U.S. 518 (1988), my “careful consideration of the whole person factors”8 and supporting evidence, my application of the pertinent factors under the adjudicative process, and my interpretation of my responsibilities under the Guidelines. Applicant has not fully mitigated or overcome the government’s case. For the reasons stated, I conclude she is not eligible for access to classified information at this time.

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

Subparagraph 1.a: Against Applicant Subparagraphs 1.band 1.c: For Applicant

CONCLUSION

In light of all of the circumstances presented by the record in this case, it is not clearly consistent with national security to grant Applicant eligibility for a security clearance at this time. Eligibility for access to classified information is denied.

_________________________ MARK HARVEY Administrative Judge

FOOTNOTES

1 Some details have not been included in order to protect Applicant’s right to privacy. Specific information is available in the cited exhibits. 2AG ¶ 24(b) defines “drug abuse” as “the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.”

3 AG ¶ 24(a) defines “drugs” as substances that alter mood and behavior, including: (1) Drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens), and (2) inhalants and other similar substances. Schedules I, II, III, IV, and V, as referred to in the Controlled Substances Act are contained in 21 U.S.C. § 812(c). Marijuana and ecstasy or 3,4 methylenedioxymethamphetamine are Schedule (Sch.) I controlled substances. See Sch. I(c)(9) and I(c)(10), respectively. See also Gonzales v. Raish, 545 U.S. 1 (2005) (discussing placement of marijuana on Schedule I); United States v. Crawford, 449 F.3d 860, 861 (8th Cir. 2006) (ecstasy). Cocaine is a Sch. II Controlled Substance. See Sch. II(a)(4) (cocaine). 4 ISCR Case No. 02-24452 at 6 (App. Bd. Aug. 4, 2004). In ISCR Case No. 04-09239 at 5 (App. Bd. Dec. 20, 2006), the Appeal Board reversed the judge’s decision denying a clearance, focusing on the absence of drug use for five years prior to the hearing. The Appeal Board determined that the judge excessively emphasized the drug use while holding a security clearance, and the 20 plus years of drug use, and gave too little weight to lifestyle changes and therapy. The Appeal Board addressed the recency of drug use, stating: Compare ISCR Case No. 98-0394 at 4 (App. Bd. June 10, 1999) (although the passage of three years since the applicant's last act of misconduct did not, standing alone, compel the administrative judge to apply Criminal Conduct Mitigating Condition 1 as a matter of law, the Judge erred by failing to give an explanation why the Judge decided not to apply that mitigating condition in light of the particular record evidence in the case) with ISCR Case No. 01-02860 at 3 (App. Bd. May 7, 2002) (“The administrative judge articulated a rational basis for why she had doubts about the sufficiency of Applicant's efforts at alcohol rehabilitation.”) (citation format corrections added). In ISCR Case No. 05-11392 at 1-3 (App. Bd. Dec. 11, 2006) the Appeal Board, considered the recency analysis of an administrative judge stating: The administrative judge made sustainable findings as to a lengthy and serious history of improper or illegal drug use by a 57-year-old Applicant who was familiar with the security clearance process. That history included illegal marijuana use two to three times a year from 1974 to 2002 [drug use ended four years before hearing]. It also included the illegal purchase of marijuana and the use of marijuana while holding a security clearance.

5 In ISCR Case No. 02-08032 at 8 (App. Bd. May 14, 2004), the Appeal Board reversed an unfavorable security clearance decision because the administrative judge failed to explain why drug use was not mitigated after the passage of more than six years from the previous drug abuse.

6 The Appeal Board has reversed decisions granting a clearance because the administrative judge considered individual acts of misconduct one-by-one and determined the isolated acts were mitigated. ISCR Case No. 07-03431 at 4 (App. Bd. June 27, 2008); ISCR Case No. 06-08708 at 3-4 (App. Bd. Dec. 17, 2007); ISCR Case No. 04-07714 at 5-7 (App. Bd. Oct. 19, 2006). Here, Applicant used marijuana 10- 15 times and stopped using marijuana in February 2008. She used cocaine three to five times between March 2006 and May 2006. She used ecstasy twice in October 2005. Her repeated abuse of these particular drugs is relevant in the whole person analysis, but individually, as listed in the SOR, the abuse of two of the three illegal drugs more than three years ago is insufficiently aggravating to cause denial of her clearance. In ISCR Case No. 07-03431 at 4 (App. Bd. June 27, 2008), the Appeal Board explained it is the overall conduct that determines whether a clearance should be granted stating: The Judge's analysis of the numerous acts of misconduct in this record failed to reflect a reasonable interpretation of the record evidence as a whole. By analyzing each category of incidents separately, the Judge failed to consider the significance of the “evidence as a whole” and Applicant's pattern of conduct. See, e.g., Raffone v. Adams, 468 F.2d 860, 866 (2d Cir. 1972)(taken together, separate events may have a significance that is missing when each event is viewed in isolation). Under the whole person concept, a Judge must consider the totality of Applicant's conduct when deciding whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. See, e.g., ISCR Case No. 98-0350 at 3 (App. Bd. Mar. 31, 1999). The Judge’s piecemeal analysis of Applicant's overall conduct did not satisfy the requirements of ¶ E2.2 of the Directive. See also ISCR Case No. 04-07714 at 5-7 (App. Bd. Oct. 19, 2006), see Whole Person Concept at pages 9-10, infra.

7 Approval of a security clearance, potential criminal liability for possession of drugs and adverse health, employment, and personal effects resulting from drug use are among the strong motivations for remaining drug free. 8See ISCR Case No. 04-06242 at 2 (App. Bd. June 28, 2006).