ISCR Case No. 25-01360

________ ________ DEFENSE LEGAL SERVICES AGENCY DEFENSE OFFICE OF HEARINGS AND APPEALS In the matter of: Applicant for Security Clearance ) ) ) ) ) ISCR Case No. 25-01360 Appearances For Government: George A. Hawkins, Esq., Department Counsel For Applicant: Daniel P. Meyer, Esq. 09/28/2026 Decision HARVEY, Mark, Administrative Judge: Security concerns under Guideline H (drug involvement and substance misuse) are not mitigated. Eligibility for access to classified information is denied. Statement of the Case Applicant submitted an Electronic Questionnaires for Investigations Processing (e- QIP) or security clearance application (SCA) on February 5, 2025. (Government Exhibit (GE 1)) On March 23, 2026, the Defense Counterintelligence and Security Agency (DCSA) issued a Statement of Reasons (SOR) alleging security concerns under Guideline H. (Hearing Exhibit (HE) 1) The 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 the adjudicative guidelines (AG) promulgated in Security Executive Agent Directive 4, National Security Adjudicative Guidelines (December 10, 2016), which became effective on June 8, 2017. On April 18, 2026, Applicant answered the SOR. (HE 2) On July 21, 2026, Department Counsel was ready to proceed, and on July 31, 2026, the case was assigned to me.

On August 5, 2026, the Defense Office of Hearings and Appeals (DOHA) notified Applicant that his hearing was scheduled to be conducted by video teleconference on September 4, 2026. (HE 3) The hearing was convened as scheduled. Department Counsel offered four exhibits; Applicant provided five exhibits; and all proffered exhibits were admitted into evidence without objection. (Tr. 18-21; GE 1-GE 4; Applicant Exhibit (AE) A-AE E) Applicant clarified that the PeTH test result he provided, AE E, showed the absence of binge alcohol consumption for up to five weeks, and it did not address the marijuana use alleged in the SOR. (Tr. 20-21; AE E) Applicant submitted one post-hearing exhibit, which was admitted without objection. (AE F) On September 11, 2026, the record closed. (Tr. 66) On September 21, 2026, DOHA received the transcript of the hearing. Statement of Facts In Applicant’s answer to the SOR, he admitted the allegations in SOR ¶¶ 1.a through 1.d. (HE 2) He also provided extenuating and mitigating information. (HE 2) Applicant is a 48-year-old data engineering manager, and he is a subject matter expert, who is focused on engaging and responding to incidents for major outages, and he manages a team that builds data platforms that help improve the performance and reliability of government information technology systems. (Tr. 23-24, 47; GE 1) He endeavors to improve system reliability and restore trust in the customer’s computer systems. (Tr. 26) He has been employed by a government contractor for 21 years. (Tr. 23) He has not served in the military. (Tr. 42) His resume and written personal statement provide additional information about his professional background and experience. (AE C) Applicant has held a security clearance since 2011. (Tr. 44-46) He completed SCAs in 2010, 2011, 2019, 2022, and 2025. (Tr. 44-46; GE 1) He currently has access to controlled unclassified information (CUI). (Tr. 24) There is no evidence of security violations. He has a bachelor’s degree in computer science. (Tr. 24) In 2017, he married, and he has a seven-year-old son. (Tr. 24, 42) Drug Involvement and Substance Misuse SOR ¶ 1.a alleges, and Applicant admitted, that from about January 2024 to about February 2026, he used marijuana with varying frequency. SOR ¶ 1.b alleges, and he admitted, that from about January 2024 to about January 2026, he purchased marijuana on various occasions. SOR ¶ 1.c alleges, and he admitted, that he used and purchased marijuana with varying frequency from about January 2024 to at least January 2026, while holding a sensitive position, i.e., one in which he held a security clearance. SOR ¶ 1.d alleges, and he admitted, that he intends to continue to use marijuana in the future. (HE 2) 2

In his SOR response, Applicant explained that he purchased marijuana from marijuana dispensaries; he used marijuana after work; and “since making this statement [he has] not used since February 8[,] 2026. [He] acknowledge[s] that marijuana remains illegal under federal law and commit[s] to ceasing all use.” (HE 2) On June 19, 2026, Applicant provided a written statement in which he stated: I used Marijuana at home from early January 2024 until February 8, 2026. Frequency of use was a few times a week at night while not working in an effort to relax after work. In addition to stopping use, it is no longer available in our household, and we do not associate with those who use it. I have scheduled an appointment with my primary care physician to discuss substance abuse and learn about counseling options, including alternative ways to relax and reduce stress, and [I am] willing to provide evidence of abstinence. (AE C at ¶ 5) Applicant has had security training over the years. (Tr. 27) On his February 5, 2025 SCA he disclosed that in the last seven years he used tetrahydrocannabinol (THC) from January 2024 to February 2025 three times a week, “recreationally at night while not working.” (GE 1 at 27) He said his marijuana use was while possessing a security clearance, and he intended to continue using marijuana on personal time. Id. Applicant used marijuana because of stressors at work, such as attrition of employees and structure changes. (Tr. 31, 48) He has changed his exercise routine to reduce stress. (Tr. 32) Applicant said that his marijuana “usage was only periodically at night in a controlled environment in my own house during nonworking hours.” (Tr. 30) He did not use marijuana three times every week as indicated in his SCA response. Sometimes he would skip a week or use marijuana once or twice in a week rather than three times a week. (Tr. 43) The marijuana he used “was purchased at a state-licensed dispensary,” and he limited his usage to when he was with his wife, who has also agreed to stop using marijuana. (Tr. 30) He considered his marijuana usage to be “infrequent” and of low dosages. (Tr. 30) He disclosed his marijuana use to his supervisor, family, friends, and his health-care provider. (Tr. 33-34) On June 26, 2026, Applicant’s primary care physician, whose expertise is as a Family Physician (AE F), wrote: Since discontinuation in February 2026 he has not experienced withdrawal or cravings and has had no difficulty with maintaining sobriety. At this time, I do not think it would be appropriate medically to engage in a Rehabilitation program for this issue. 3

We discussed what Marijuana Addiction/Disorder would look like and this simply does not reflect his life or reality. [Applicant] was pleasant and cooperative during the evaluation, and during prior visits. He expressed understanding of this situation and issue. He is aware of the consequences of continued marijuana use and leads a marijuana free life. He has removed marijuana from his home and life and is committed to continued sobriety from marijuana. (AE E) On July 16, 2026, Applicant provided a hair sample for drug testing, which was negative for all illegal substances, including THC. (AE E) On August 18, 2026, he provided a blood sample for PeTH testing, which was negative for alcohol content. (AE E) Applicant does not associate with marijuana users. (Tr. 35) He provided 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. (AE E) See AG ¶ 26(b)(3). He said he understands that “federal law trumps state law even despite it being legal in the state and, quite honestly, easy to purchase within the law of the state. Federal law comes first.” (Tr. 36) He has committed to not using marijuana in the future. (Tr. 39) He believes he should continue to have access to classified information, and he concluded: [M]y current usage, you know, does not impact my reliability or trustworthiness. And the work I do I’m proud of and I feel it’s extremely important for the reasons that I explained above. I -- again, my doctor said it wasn’t serious. While I understand it was legal in the state, I felt at the time I was acting within the law, that’s clear to me that it’s no longer true. The usage pattern, the frequency, the voluntary nature, I think those are all the large contributors saying why I should be granted access or maintain my eligibility. (Tr. 40) Character Evidence Applicant’s neighbor, manager, coworker, and his sister-in-law made statements on his behalf. (AE D) The general sense of their statements is that Applicant is conscientious, trustworthy, professional, intelligent, and diligent. He has sound judgment, and he has made important contributions to mission accomplishment. He received several awards from his employers. (AE C) 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 4

is sufficiently trustworthy” to have access to such information. Id. at 527. The President has authorized the Secretary of War or his designee to grant applicants 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. Eligibility for a security clearance is predicated upon the applicant meeting the criteria contained in the adjudicative guidelines. 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 overarching adjudicative goal is a fair, impartial, and commonsense 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 safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about 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 applicant concerned.” See Exec. Or. 10865 § 7. Thus, this decision should not be construed to suggest that it is based, in whole or in part, on any express or implied determination about applicant’s allegiance, loyalty, or patriotism. It is merely an indication the applicant has not met the strict guidelines the President, Secretary of War, and Director of National Intelligence 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- 5

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 Drug Involvement and Substance Misuse AG ¶ 24 provides the security concern arising from drug involvement and substance misuse stating: 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. AG ¶ 25 lists conditions that could raise a drug involvement and substance misuse security concern and may be disqualifying in this case including: (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; (f) any illegal drug use while granted access to classified information or holding a sensitive position; and (g) expressed intent to continue drug involvement and substance misuse, or failure to clearly and convincingly commit to discontinue such misuse. AG ¶¶ 25(a), 25(c), 25(f), and 25(g) are established. Discussion of the disqualifying conditions is in the mitigation section infra. AG ¶ 26 lists conditions that could mitigate drug involvement and substance misuse security concerns: (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; 6

(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; (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. In ISCR Case No. 10-04641 at 4 (App. Bd. Sept. 24, 2013), the DOHA Appeal Board concisely explained Applicant’s responsibility for proving the applicability of mitigating conditions as follows: Once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or maintenance of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government presents evidence raising security concerns, the burden shifts to the applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The standard applicable in security clearance decisions is that articulated in Egan, supra. “Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security.” Directive, Enclosure 2, [App. A] ¶ 2(b). SOR ¶¶ 1.a through 1.d allege, and Applicant admitted, that from about January 2024 to about January or February 2026, he purchased and used marijuana with varying frequency, while holding a sensitive position, i.e., one in which he held a security clearance. Marijuana use encompasses marijuana possession. Marijuana is currently listed on Schedule I of the Controlled Substances Act. See 21 U.S.C. § 812(c); Drug Enforcement Administration (DEA) listing at https://www.dea.gov/drug-information/drug-scheduling (information link on bottom of web page). His multiple possessions of marijuana are federal crimes. Drugs listed as Schedule 7

I Controlled Substances, have “no ‘currently accepted medical use in treatment.’ 21 U.S.C. § 812(a)(1)(B).” ISCR Case No. 24-01307 at 3 (App. Bd. July 17, 2025). See DEA website, supra; Executive Order, Increasing Medical Marijuana and Cannabidiol Research (December 18, 2025). The scheduling of marijuana is under DEA review, and it may be downgraded from Schedule I to Schedule III, which would permit marijuana possession and use based on prescriptions. Id. The Appeal Board provided a detailed discussion of the mitigating conditions pertaining to marijuana possession and use: In recognition of the changing landscape of marijuana law and in consideration of the Director of National Intelligence’s Clarifying Guidance Concerning Marijuana, the Board has noted that significant factual and legal differences may exist between an applicant’s state-compliant marijuana use and use of other illegal drugs, holding that such differences are an important aspect of the case that a reasonable person would expect to be addressed. See ISCR Case No. 22-02132 at 3 (App. Bd. Oct. 27, 2023). In initial eligibility determinations, if the record reflects such differences, the judge must articulate a rational basis for why, after consideration of those differences and the Clarifying Guidance, the conduct continues to cast doubt on the individual’s current reliability, trustworthiness, and good judgment. ISCR Case No. 23-02402 at 4 (App. Bd. Feb. 19, 2025) (internal footnotes omitted). See also ISCR Case No. 24-00914 at 3 (App. Bd. Apr. 9, 2025) (noting the “evolving landscape of marijuana law and policy,” “the resulting increasing prevalence of marijuana use,” and in some instances “recreational marijuana use deserves less, or even no negative inference on judgment.”). Several factors are important in the assessment of mitigation of possession and use of illegal drugs: the duration of abstinence; state law; company policy; use after completion of an SCA; use while holding a sensitive position; use while having access to classified information; types of other illegal drugs used; continued association with drug users; broken promises not to use in the future; and promises not to use in the future. See ISCR 24-01001 (App. Bd. Apr. 22, 2025) (affirming denial of security clearance; factors: one year of abstinence from marijuana use; used marijuana after completion of an SCA; and used marijuana after promising not to use marijuana on SCA and during an OPM interview); ISCR Case No. 24-01005 (App. Bd. Apr. 11, 2025) (denial of security clearance reversed; factors: two years of abstinence from marijuana use; no marijuana use while holding a security clearance or occupying sensitive position; marijuana possession and use were not illegal under state law; no marijuana use after notice that marijuana use was federally illegal; and no evidence of broken promises not to use marijuana). The factors in Applicant’s case are as follows: (1) his seven months of abstinence (February to September of 2026) are of relatively short duration; (2) he used marijuana 8

after completion of an SCA; (3) he used marijuana while holding a security clearance and occupying a sensitive position; (4) state law did not prohibit his possession and use of marijuana; (5) he did not use any other types of illegal drugs; (6) he does not currently associate with drug users; (7) he did not violate promises not to use marijuana; (8) there is no evidence that his marijuana use during off-duty time violated company policy; (9) there is no evidence he had access to classified information while using marijuana; (10) he promised not to use marijuana in the future; (11) he voluntarily disclosed his marijuana involvement on his SCA; and (12) he provided 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. Factors (1) through (3) weigh against grant of access to classified information, and factors (4) through (12) support grant of a security clearance. The Appeal Board has “never established a ‘bright line’ rule as to recency of drug use. The extent to which security concerns may have become attenuated through the passage of time is a question that must be resolved based on the evidence as a whole.” See ISCR Case No. 14-01847 at 3 (App. Bd. Apr. 9, 2015). See also ISCR Case No. 24- 01307 at 5 (App. Bd. July 17, 2025) (stating same). Applicant’s most recent marijuana use was in February of 2026. “The [DOHA Appeal] Board has ‘long held that applicants who use marijuana [or other illegal drugs] after having been placed on notice of the security significance of such conduct may be lacking in the judgment and reliability expected of those with access to classified information.’” ISCR Case No. 24-01001 (App. Bd. Apr. 22, 2025) (quoting ISCR Case No. 20-01772 at 3 (App. Bd. Sept. 14, 2021)). See also ISCR Case No. 24-00468 at 6 n.7 (App. Bd. Apr. 16, 2025). Applicant used marijuana after being granted a security clearance and while holding a sensitive position. Applicant established some mitigation under AG ¶¶ 26(a) and 26(b), see factors (4) through (12) supra. His voluntary disclosure of marijuana involvement on his SCA and elsewhere during the security clearance process, dissociation from drug users, and provision of 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 are all particularly important mitigation factors. SOR ¶¶ 1.a and 1.b are essentially incorporated in SOR ¶ 1.c. SOR ¶¶ 1.a and 1.b are mitigated as duplications of SOR ¶ 1.c. Applicant said in his SCA that he intended to continue his marijuana use; however, at his hearing, he credibly stated that he did not intend to use marijuana in the future. SOR ¶ 1.d is mitigated. Applicant did not demonstrate full mitigation for SOR ¶ 1.c because he did not establish a sufficient period of abstinence from marijuana possession and use while he was in a sensitive position. His decisions to possess and use marijuana while holding a security clearance may indicate he lacks the qualities expected of those with access to 9

national secrets and continue to cast doubt on his current reliability, trustworthiness, and judgment. 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(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), “[t]he ultimate determination” of whether to grant a security clearance “must be an overall commonsense judgment based upon careful consideration” of the guidelines and the whole-person concept. My comments under Guideline H are incorporated in my whole-person analysis. Some of the factors in AG ¶ 2(d) were addressed under that guideline but some warrant additional comment. Applicant is a 48-year-old data engineering manager, and he has been employed by a government contractor for 21 years. He has held a security clearance since 2011. There is no evidence of security violations. He has access to CUI during his current employment. He has a bachelor’s degree in computer science. His neighbor, manager, a coworker, and his sister-in-law made statements on his behalf. The general sense of their statements is that Applicant is conscientious, trustworthy, professional, intelligent, and diligent. He has sound judgment, and he has made important contributions to mission accomplishment. He received several awards from his employers. The disqualifying and mitigating information is discussed in the analysis section, supra. The reasons for denying Applicant’s security clearance are more persuasive than the reasons for granting his security clearance at this time. It is well settled that once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against granting a security clearance. See Dorfmont, 913 F. 2d at 1401. “[A] favorable clearance decision means that the record discloses no basis for doubt about an applicant’s eligibility for access to classified information.” ISCR Case No. 18-02085 at 7 (App. Bd. Jan. 3, 2020) (citing ISCR Case No. 12-00270 at 3 (App. Bd. Jan. 17, 2014)). 10

____________________ I have carefully applied the law, as set forth in Egan, Exec. Or. 10865, the Directive, the AGs, and the Appeal Board’s jurisprudence, to the facts and circumstances in the context of the whole person. Drug involvement and substance misuse security concerns are not mitigated at this time. 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 continued abstention from involvement with illegal drugs, he will be an eligible candidate for a security clearance. Formal Findings Formal findings For or Against Applicant on the allegations set forth in the SOR, as required by Section E3.1.25 of Enclosure 3 of the Directive, are: Paragraph 1, Guideline H: AGAINST APPLICANT Subparagraphs 1.a, 1.b, and 1.d: For Applicant Subparagraph 1.c: Against Applicant Conclusion Considering all of the circumstances presented by the record in this case, it is not clearly consistent with the interests of national security to grant Applicant eligibility for access to classified information. Eligibility for access to classified information is denied. Mark Harvey Administrative Judge 11