Circa March 1997 Applicant began to have problems with his marriage. Work obligations over the November 1997 to March 1998 time frame required three extended trips by Applicant, to include a period of absence from the family residence in January 1998 during which his family experienced a power outage lasting twelve days. His spouse of almost twenty years became involved in an extra-marital affair, further exacerbating his marital problems.

Experiencing anxiety and depression related to the deterioration of his marital relationship, Applicant in mid April 1998 sought treatment from his physician, a Doctor of Osteopathy, who prescribed the anti-depressant Zoloft as well as a short course of Xanax for insomnia and anxiety. The Zoloft medication was discontinued in early July 1998, only to be resumed in November 1998 due to ongoing marital stress exacerbated by his spouse's filing for divorce.

At the referral of his employer's Employee Assistance Program (EAP), Applicant in April 1998 also sought counseling from a therapist at a local clinic for issues dealing with the dissolution of his marriage. For the first two months, Applicant consulted with this mental health professional on a weekly basis, then their sessions declined to once every two to three weeks.

Sometime in late April/early May 1998, Applicant learned that his father was suffering from a terminal illness. Torn between visiting his father and trying to save his marriage, Applicant asked his spouse for support which came in the form of an offer to smoke marijuana with her. On four or five occasions over the April/May 1998 time frame, they smoked marijuana together which she provided.

Suspicious of an extra-marital relationship by his spouse, one evening Applicant followed her to the home of the individual with whom she was having an affair. When Applicant called to her from outside the residence, the man involved with his spouse physically assaulted Applicant and told him to "go home and take another pill." His pride wounded, Applicant stopped taking his anti-depressant medication. In an effort to then gain relief from his stress and anxiety, Applicant had his cousin purchase an ounce of marijuana for him in May 1998 at a cost of $200.00. Applicant smoked the marijuana on a daily basis after work while he was out on his 45 acre property building a road. This daily marijuana abuse continued until July 9, 1998, the day before he was subjected to a random urinalysis test at his place of employment. Applicant informed his counselor at the clinic that he was using cannabis, but his drug abuse was not addressed as a problem.

On learning in July 1998 that he was being called in a random drug test, Applicant notified his security officer and unit manager that there was going to be a problem as he had been using marijuana for the last couple of weeks trying to calm himself. The company's physician was notified, and during an interview, Applicant admitted he had been smoking marijuana daily to help him sleep and cope with anxiety and depression. When the test conducted on July 10, 1998, returned positive for marijuana, Applicant was placed on medical leave of absence until he passed two successive drug screenings, attended four Alcoholics Anonymous meetings, and was evaluated by a psychiatrist and psychologist through the employee assistance program (EAP).

While he was out on medical leave, as required by his employer, Applicant was evaluated by a psychiatrist who recommended he go back on his anti-depressants. Not wishing to take the medication, Applicant requested that he be allowed to deal with his problems on his own subject to a re-evaluation. In addition to continuing counseling sessions at the local clinic,⁽³⁾ Applicant began treatment with a psychologist on July 15, 1998. Applicant has continued in therapy with this psychologist on a regular basis since, usually weekly. As of late December 1998, the psychologist had detected no evidence of ongoing cannabis abuse or related disorder. In this psychologist's professional opinion, Applicant was still having difficulty accepting the insoluble nature of his marital problems, but his prognosis was favorable.

Applicant returned to work after two weeks of leave with his continued employment conditioned on compliance with an evaluation and treatment through the employee assistance program (EAP) and follow-up drug tests for one year. Applicant was subjected to twelve random drug tests between August 9, 1998 and March 1999, all of which were negative for drugs.

Applicant has no intent to use any marijuana in the future. He has been working out five to six times per week at the gym since mid July 1998 and been attending yoga class since late October 1998 in an effort to reduce stress. In September 1998, he began a karate class with his twelve year old son who suffers from autism with the intent to strengthen their relationship and assist in his son's flexibility.

Applicant and his spouse are currently in divorce proceedings. Applicant is seeking legal custody of their twelve year old son and their daughter, age eighteen. He attends a divorce care class to help him with the impending breakup of his marriage and is an active member of a church which requires total abstinence from all drugs, alcohol and tobacco.

Applicant has not committed any violations of security at his present place of employment. He has security responsibilities for a secured area at the workplace with no adverse incidents. Applicant's current supervisor and the facility security officer are aware of Applicant's recent marijuana use over the April/May 1998 to July 1998 time frame. They recommend Applicant be permitted to retain his security clearance based on his valuable and unique skills essential to the test team and his positive efforts to deal with his personal problems through means other than drug use.

POLICIES

The adjudication process is based on the whole person concept. All available, reliable information about the person, past and present, is to be taken into account in reaching a decision as to whether a person is an acceptable security risk. Enclosure 2 to the Directive sets forth adjudicative guidelines which must be carefully considered according to the pertinent criterion in making the overall common sense determination required. Each adjudicative decision must also include an assessment of the seriousness, recency, frequency and motivation for an applicant's conduct; the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the circumstances or consequences involved; the age of the applicant; the absence or presence of rehabilitation, the potential for coercion or duress, and the probability that the conduct will or will not recur in the future. See Directive 5220.6, Section F.3. and Enclosure 2. Because each security case presents its own unique facts and circumstances, it should not be assumed that the factors exhaust the realm of human experience or that the factors apply equally in every case. Moreover, although adverse information concerning a single criterion may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility or emotionally unstable behavior.

Considering the evidence as a whole, this Administrative Judge finds the following adjudicative guidelines to be most pertinent to this case:

DRUG INVOLVEMENT

Improper or illegal involvement with drugs raises questions regarding an individual's willingness or ability to protect classified information. Drug abuse or dependence may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information.

Drugs are defined as mood and behavior altering:

(a) 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

(b) inhalants and other similar substances

Drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.

Conditions that could raise a security concern and may be disqualifying include:

(1) any drug abuse

(2) illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution

Conditions that could mitigate security concerns include:

(3) a demonstrated intent not to abuse any drugs in the future

* * *

Under the provisions of Executive Order 10865 as amended and the Directive, a decision to grant or continue an applicant's clearance may be made only upon an affirmative finding that to do so is clearly consistent with the national interest. In reaching the fair and impartial overall common sense determination required, the Administrative Judge can only draw those inferences and conclusions which have a reasonable and logical basis in the evidence of record. In addition, as the trier of fact, the Administrative Judge must make critical judgments as to the credibility of witnesses. Decisions under the Directive include consideration of the potential as well as the actual risk that an applicant may deliberately or inadvertently fail to properly safeguard classified information.

Burden of Proof

Initially, the Government has the burden of proving any controverted fact(s) alleged in the Statement of Reasons. If the Government meets its burden and establishes conduct cognizable as a security concern under the Directive, the burden of persuasion then shifts to the applicant to present evidence in refutation, extenuation or mitigation sufficient to demonstrate that, despite the existence of criterion conduct, it is clearly consistent with the national interest to grant or continue his security clearance.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. Where the facts proven by the Government raise doubts about an applicant's judgment, reliability or trustworthiness, the applicant has a heavy burden of persuasion to demonstrate that he is nonetheless security worthy. As noted by the United States Supreme Court in Department of Navy v. Egan, 484 U.S. 518, 531 (1988), "the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials." As this Administrative Judge understands the Court's rationale, doubts are to be resolved against the Applicant.

CONCLUSIONS

Having considered the evidence of record in light of the appropriate legal precepts and factors, and having assessed the credibility of those who testified, this Judge concludes the following with respect to criterion H:

Applicant presents with two distinct periods of marijuana use: from spring 1968 to 1979 when he was a student and then during his initial defense-related employ, and more recently from about late April to July 9, 1998, when he used marijuana, for the most part daily, to cope with depression and the dissolution of his marriage. While Applicant used mescaline when he resided near a Native American reservation during the 1970/71 time frame, the absence of any recurrence of that abuse for some twenty-seven years renders it of little current security significance. In contrast, Applicant's recent abuse of marijuana after almost twenty years drug-free engenders serious security concerns because of the risk of disclosure of classified information when one is under the influence and the substantial doubts it raises as to Applicant's judgment and reliability.

Under the Directive, the abuse of a controlled dangerous substance such as marijuana is potentially mitigated if the drug involvement was not recent (MC 1), was isolated or infrequent (MC 2), there is demonstrated intent not to abuse any drugs in the future (MC 3), or successful completion of a drug treatment program prescribed by a credentialed medical professional (MC 4). Applicant's abuse of marijuana between about late April 1998 and July 9, 1998, was too recent and extensive to apply either MC 1 or MC 2 to that abuse, even though it spanned only a three month time frame.

Whereas Applicant has no intent to use any marijuana in the future, MC 3 must be afforded serious consideration. That mitigating guidelines requires more than merely a statement of intent not to use drugs in the future; the intent must be demonstrated by concrete actions taken in reform. Since testing positive for marijuana during a random urinalysis on July 10, 1998, Applicant has been subjected to twelve random urinalysis, all of which have been negative for substances tested, to include marijuana. While these negative test results serve as some confirmation of his ability to abide by his stated resolve, it is Applicant's efforts to deal with the root cause of his marijuana abuse which are significant in reform.

Applicant saw a physician in April 1998 to help him deal with insomnia and anxiety and began treatment with a counselor at a local clinic. These therapeutic interventions did not prevent Applicant from accepting his spouse's offer to use marijuana with her in late April/early May 1998 or rejecting his Zoloft medication in favor of daily marijuana abuse from mid May 1998 to July 9, 1998. However, when faced with the potential loss of a job which he clearly enjoys, Applicant complied with the requirements levied by his employer, including attending four AA meetings and evaluation by a psychiatrist. He has continued to pursue counseling with a psychologist beyond that required by his employer to assist him to cope with the dissolution of his marriage. This ongoing therapy with the psychologist is at his own cost. In November 1998, he went back on his Zoloft medication after his spouse served him with the divorce papers. In contrast to the May to July 1998 time frame, he is currently taking his medication as prescribed, no longer allowing his pride to come in the way of what is best for him medically and/or psychologically. While Applicant has not given up hope that his marriage may be saved, he has become involved in a divorce care group to help him cope with the impending dissolution of his marriage. Applicant has also instituted positive lifestyle changes conducive to a drug-free lifestyle. During his two week leave of absence from work, he joined a gym where he has since engaged in physical workouts on an almost daily basis when he is in town. In September 1998, he began karate classes with his son and since October 1998, he has been taking yoga. Although Applicant is not free of anxiety and stress, he has in place more constructive means to deal with his problems.

Applicant's daily abuse of marijuana while he had important security responsibilities at work raises serious security concerns which are not overcome by his employer's need for his continued services or even by Applicant's valuable contributions to the Nation's defense. However, security clearance decisions are not designed to punish individuals for past wrongdoings, but rather involve an assessment of potential risk. Those efforts which Applicant has made to deal with the underlying causes of his recent marijuana involvement and his desire to retain his defense-related position with his employer serve as significant deterrents to any future abuse of illegal drugs. Favorable findings are warranted with respect to subparagraphs 1.a., 1.b., 1.c., 1.d., 1.e., 1.f. and 1.g.⁽⁴⁾ of the SOR.

FORMAL FINDINGS

Formal Findings as required by Section 3. Paragraph 7 of Enclosure 1 of the Directive are hereby rendered as follows:

Criterion H: FOR THE APPLICANT

Subparagraph 1.a.: For the Applicant

Subparagraph 1.b.: For the Applicant

Subparagraph 1.c.: For the Applicant

Subparagraph 1.d.: For the Applicant

Subparagraph 1.e.: For the Applicant

Subparagraph 1.f.: For the Applicant

Subparagraph 1.g.: For the Applicant

DECISION

In light of all the circumstances presented by the record in this case, it is clearly consistent with the national interest to grant or continue a security clearance for Applicant.

Elizabeth M. Matchinski

Administrative Judge

1. Applicant indicated in 1977 that he used marijuana on a monthly basis. In 1998, he reported his abuse as almost daily throughout the 70's. At his hearing, he described occasional use of marijuana in the 1970's. Applicant's account in 1977 is considered as most credible as it was current.