PSH-12-0025

* The original of this document contains information which is subject to withholding from disclosure
under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the matter of Personnel Security Hearing )
)
Filing Date: March 28, 2012 ) Case No.: PSH-12-0025
)
____________________________________)
Issued: August 7, 2012
______________________
Hearing Officer Decision
______________________
Steven J. Goering, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXX (hereinafter referred to as “the
individual”) for access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled
“Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special
Nuclear Material.”1 For the reasons set forth below, I conclude that the DOE should not grant the
individual an access authorization at this time.
I. BACKGROUND
The individual is an employee of a DOE contractor and an applicant for an access authorization. To
address concerns related to the individual’s past use of alcohol and marijuana, other prior criminal
conduct, and certain discrepancies in the record regarding the individual’s conduct, a Local Security
Office (LSO) summoned the individual for an interview (PSI) with a personnel security specialist on
August 29, 2011. Exhibit 10. After the PSI, the LSO determined that derogatory information
existed that cast into doubt the individual’s eligibility for access authorization. The LSO informed
the individual of this determination in a letter that set forth the DOE’s security concerns and the
reasons for those concerns. Exhibit 1. The Notification Letter also informed the individual that he
was entitled to a hearing before a hearing officer in order to resolve the substantial doubt concerning
his eligibility for an access authorization.
1 An access authorization is an administrative determination that an individual is eligible for access to classified
matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to in this Decision as access
authorization or a security clearance.
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The individual requested a hearing in this matter. The LSO forwarded this request to OHA, and I
was appointed the hearing officer. The DOE introduced ten exhibits into the record of this
proceeding. The individual introduced one exhibit, and presented the testimony of four witnesses, in
addition to his own testimony.
II. DEROGATORY INFORMATION AND THE
ASSOCIATED SECURITY CONCERNS
The Part 710 regulations require that I “make specific findings based upon the record as to the validity of
each of the allegations” in the Notification Letter. 10 C.F.R. § 710.27(c). In this case, the Notification
Letter cites paragraphs (f) and (l) of the criteria for eligibility for access to classified matter or special
nuclear material set forth at 10 C.F.R. § 710.8. Exhibit 1. I address below the validity of the
allegations set forth in the Notification Letter in support of the cited criteria.
A. Criterion (f)
Under criterion (f),2 the Notification Letter cites statements it alleges the individual made during an
October 13, 2011, interview with a psychologist (hereinafter referred to as “the DOE psychologist”)
to whom the individual was referred by the LSO for an evaluation.3 Specifically, the Notification
Letter alleges that the individual admitted in the interview that he did not report his last use of
marijuana in the August 29, 2011, PSI because “that is what would make him look good.” Exhibit 1
at 1 (quoting Exhibit 6 at 3). The Notification Letter further alleged that the individual admitted in
the October 13, 2011, interview that he did not admit at the PSI that he had purchased a fake
identification, even though he did recall doing so. Id. (citing Exhibit 6 at 4). At the hearing, the
individual testified that he did not recall what he told the DOE psychologist, and specifically that he
did not remember telling him that he incorrectly reported his marijuana use in the PSI in order to
“look good.” Hearing Transcript (Tr.) at 28, 59.
With respect to whether the individual made the statements ascribed to him by the report of the DOE
psychologist, weighing the near-contemporaneous report of the DOE psychologist against the
individual’s lack of recollection, I find that the individual likely did make the statements cited in the
Notification Letter. Exhibit 6 at 3-4 (October 16, 2011 report of DOE Psychologist discussing, inter
alia, October 13 interview).4
2 Paragraph (f) defines as derogatory information that an individual has an has “[d]eliberately misrepresented,
falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive (or
National Security) Positions, a personnel qualifications statement, a personnel security interview, written or oral
statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for
DOE access authorization, or proceedings conducted pursuant to §710.20 through §710.31.” 10 C.F.R. § 708.8(f).
3 The individual was referred to the DOE psychologist for an opinion as to whether there were concerns meeting
criteria (h) and/or (j), pertaining to mental illness and alcohol use, respectively. Exhibit 6 at 1-2. The DOE psychologist
did not render a diagnosis that would constitute derogatory information under either criterion, and did not testify at the
hearing in this matter. Id. at 8-9.
4 At the hearing, Counsel for the individual asked that I exclude from the record, as hearsay, statements
attributed to the individual by the DOE psychologist’s report, in part because of a purported discrepancy between alleged
statement that the individual misrepresented facts in the PSI in order to “look good,” and a statement by the DOE
psychologist that the individual is “basically an honest person.” Tr. at 8-10. Counsel argued that, “without our ability to
examine this witness,” the discrepancy could not be resolved. Id. at 10. I ruled that these statements would not be
excluded from the record, Tr. at 11, noting that, as a general matter, hearsay is not, per se, excluded from the record of
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The Notification Letter further cites, also under criterion (f), court records showing that the
individual was arrested and charged with possession of controlled substance on June 20, 2003, but
notes that he omitted this charge from a Questionnaire for National Security Positions (QNSP) he
completed on May 19, 2011. Exhibit 1 at 1. At the hearing, the individual did not deny that he
omitted this charge from his QNSP, but testified that he was not arrested on this occasion, only
issued a citation. Tr. at 60-61. Here, the record supports a finding that the individual was charged
with possession of controlled substance on June 20, 2003, and that this charge was omitted from the
individual’s QNSP, Exhibit 9, but does not support a finding that the individual was arrested on that
date, as the evidence of the court records presented references only a charge, not an arrest. Exhibit 7
(page from OPM investigative report regarding court records).
,
B. Criterion (l)
Under criterion (l),5 the Notification Letter lists a number of alleged charges brought against the
individual, including one traffic violation in 2009, two in 2005, two in 2004, two in 2003, and one in
2000. Also cited are charges of possession of marijuana, possession of tobacco, DUI-metabolite,
and counterfeit driver’s license on one occasion in 2004, and the 2003 charge of possession of
controlled substance discussed above. Finally, the Notification Letter alleges that, while serving in
the U.S. military, the individual received an Article 92 under the Uniform Code of Military Justice
(UCMJ) in 2006 after being cited for underage drinking and failure to obey a lawful order, and that
in 2007 he received an Article 112A under the UCMJ and received a “Captain’s Mast” punishment
after he failed a drug test while on active duty and holding an active security clearance, and
subsequently received an “Other Than Honorable Discharge.” Exhibit 1 at 2-3.
In his hearing testimony, the individual affirmed the accuracy of the allegations cited in the
Notification Letter under criterion (l). Tr. at 34. There being no dispute at to these allegations, I find
them to be valid. The individual also testified that he cannot account for why he tested positive for a
controlled substance, and had not used any controlled substance that would show up on a drug test.
Tr. at 36-37. I address this below is discussing whether the concern raised by the positive drug test
has been resolved.
C. The Security Concerns
The allegations in the Notification Letter discussed above, adequately justify the DOE’s invocation
of criteria (f) and (l), and raise significant security concerns. Failure to provide truthful and candid
these proceedings, but rather accorded appropriate weight, such as in the case of the hearsay statements found in Office
of Personnel Management (OPM) investigative reports that are routinely admitted into the record of Part 710 cases. Id. at
11-12. I also noted that, at the pre-hearing conference in this matter, I offered to issue a subpoena for the testimony of
the DOE Psychologist if the individual was disputing the veracity of the statements the psychologist made in his report.
Id. at 11. In response, Counsel for the individual neither requested a subpoena for the testimony of the DOE psychologist
nor stated that it was disputing the factual accuracy of the relevant statements in his report. Memorandum to File, Case
No. PSH-12-0025 (June 4, 2012). Finally, I do not find the “discrepancy” noted by Counsel for the individual when
considering the following full statement of the DOE psychologist in his report: “I believe that he is basically honest but
has willfully misrepresented some facts due to wanting to enhance his chances of obtaining a clearance.” Exhibit 6 at 7.
5 Paragraph (l) defines as derogatory information that an individual has “[e]ngaged in any unusual conduct or is
subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which
furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may
cause the individual to act contrary to the best interests of the national security.” 10 C.F.R. § 708.8(l).
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answers during the security clearance process, of concern under criterion (f), demonstrates
questionable judgment, lack of candor, dishonesty, and/or unwillingness to comply with rules and
regulations. Revised Adjudicative Guidelines for Determining Eligibility for Access to Classified
Information, The White House (December 19, 2005) (Adjudicative Guidelines), Guideline E. While
the individual disputes that he intentionally misrepresented or omitted information in the QNSP or
PSI, the allegations that I found above to be valid clearly are sufficient to raise a concern as to the
individual’s intent. Under criterion (l), the individual’s undisputed criminal activity creates doubt
about his judgment, reliability and trustworthiness, as it calls into question a person's ability or
willingness to comply with laws, rules and regulations. Id. at Guideline J.
III. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710 dictate
that in these proceedings, a hearing officer must undertake a careful review of all of the relevant
facts and circumstances, and make a “common-sense judgment . . . after consideration of all relevant
information.” 10 C.F.R. § 710.7(a). I must therefore consider all information, favorable and
unfavorable, that has a bearing on the question of whether granting the individual a security
clearance would compromise national security concerns. Specifically, the regulations compel me to
consider the nature, extent, and seriousness of the individual’s conduct; the circumstances
surrounding the conduct; the frequency and recency of the conduct; the age and maturity of the
individual at the time of the conduct; the absence or presence of rehabilitation or reformation and
other pertinent behavioral changes; the likelihood of continuation or recurrence of the conduct; and
any other relevant and material factors. 10 C.F.R. § 710.7(c).
A DOE administrative proceeding under 10 C.F.R. Part 710 is “for the purpose of affording the
individual an opportunity of supporting his eligibility for access authorization.”
10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising
security concerns, the burden is on the individual to produce evidence sufficient to convince the
DOE that granting or restoring access authorization “will not endanger the common defense and
security and will be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The
regulations further instruct me to resolve any doubts concerning the individual’s eligibility for
access authorization in favor of the national security. 10 C.F.R. § 710.7(a).
IV. ANALYSIS
For the reasons discussed below, I find that the valid concerns in this case raised under criterion (l)
have been largely, if not completely, resolved. However, there remain serious concerns, under
criterion (f), regarding the individual’s responses in his QNSP and PSI, and it is for this reason
primarily that I cannot find that the individual should be granted a security clearance at this time.
First, there a number of factors that mitigate the concerns raised under criterion (l). The individual
was born in July 1985. Exhibit 9 at 1. Thus, the transgressions at issue took place when the
individual was 15 (speeding ticket), 17 (speeding and possession of controlled substance), 18
(possession of marijuana, possession of tobacco, DUI-metabolite, counterfeit driver’s license,
driving an unsafe vehicle, no proof of insurance), 19 (careless driving, leaving scene of and failing to
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report accident, speeding), 20 (underage drinking and failure to obey order), 21 (failed drug test and
other than honorable discharge), and 23 or 24 (driving without registration).
Applying the factors set forth at 10 C.F.R. § 710.7(c) cited above, while I note the frequency of the
concerning conduct, particularly in the 2003 to 2005 period, I also must take into consideration the
relatively young age of the individual (17 to 19 years old) when the activity of most frequency and
concern took place. By contrast, only one incident cited under criterion (l) (driving without
registration) took place in the over five years since he was discharged from the military.
The individual is now 27 years old. He has a two-year-old daughter and is engaged to be married.
His mother and fiancée testified persuasively at the hearing as to how the individual has matured,
worked hard, is a good father, and primarily associates with other parents. See, e.g., Tr. at 94, 100,
106-107, 109. Taking all of the above into account, I find that the concerns raised under criterion (l)
have been, in large part, resolved.
There remains, however, under criterion (l), the fact that the individual tested positive for an
unspecified controlled substance in 2007. While not denying this, the individual stated in his PSI
and his interview with the DOE psychologist, and testified at the hearing, that he was tested again
three or four days after the positive test, and the second time tested negative. Id. at 37; Exhibit 6
at 4; Exhibit 10 at 54. In a letter submitted after the hearing, Counsel for the individual referenced a
statement by the DOE psychologist in his report that “[r]esearch has indicated that up to 10% of
[drug] tests can result in false positive findings.” Letter from Counsel for individual to Steven
Goering (July 10, 2012) (quoting Exhibit 6 at 8). The letter asks that I consider that the individual
“was forthright about his prior drug use and that no reason exists to believe he would not have
admitted any use in the [military] if it were true.” Id.
First, the statement of the DOE psychologist cited by Counsel for the individual supports a finding
that there is a very high likelihood (90% or greater), in the absence of evidence to the contrary, that
the positive drug test revealed a controlled substance used by the individual, i.e., not a false positive.
In this case, the evidence to the contrary is a negative test taken three days later and the individual’s
assertion that he did not use a controlled substance. The DOE psychologist concluded that
“[b]ecause of his denial, the subsequent negative test, and the possibility of a false result, there is no
compelling evidence that his marijuana has ever interfered with his work.” Exhibit 6 at 8.
The DOE psychologist made this statement, however, in the context of finding that the individual
could not be diagnosed with Cannabis Dependence or Abuse. It is reasonable to conclude that the
DOE psychologist found that the likelihood that the individual used marijuana prior to his drug test
was reduced (below 90%) to the point where the positive test was not “compelling” evidence of
marijuana use, sufficient for a diagnosis made to a reasonable degree of medical certainty. Yet,
there is no statement in the DOE psychologist’s report reflecting an opinion that the individual likely
did not use marijuana (or another controlled substance) prior to the test.
Even if there were such a statement, the DOE psychologist’s opinion was based, in part, on the
individual’s denial of use, and therefore the psychologist’s assessment of the credibility of that
denial. I cannot substitute that assessment for my own, which is less favorable. In particular, as I
discuss in more detail below, I disagree with the statement of Counsel for the individual that the
individual has been “forthright about his prior drug use” and that he has no reason to deny his use of
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a controlled substance while serving in the military. Based on the evidence in the record and my
assessment of the credibility of the individual’s denial, I find it more likely than not that the
individual did, in fact, use a controlled substance prior to the positive drug test. If he did, over five
years has passed since his last use of any illegal drugs, which mitigates to an extent the concern
raised by that use under criterion (l). However, without knowledge of the circumstances of this most
recent use, and a denial of use that I find to be not credible, I cannot find that the concerns raised in
the Notification Letter under criterion (l) have been sufficiently resolved.
In any case, there are, in my view, much more serious unresolved concerns in this case under
criterion (f). These concerns are based on allegations of very recent behavior, an intentional
omission from a May 2011 QNSP and false statements in an August 2011 PSI, and these allegations
bear directly on the trustworthiness and reliability of the individual in his dealings with the DOE.
In his PSI, the individual stated that the last time he used marijuana was in 2003 or 2004. Exhibit 10
at 10. Contradicting this statement is the individual’s response, on a QNSP completed on
September 30, 2005, in connection with his enlistment in the military, that his last use of marijuana
was on April 1, 2005. Exhibit 8 at 8 (QNSP referred to in record by reference to its form number,
SF-86). I find this statement, against the interest of the individual and closer in time to his use of
marijuana, to be the most reliable evidence of the date of his actual last use of the drug. Thus, I also
find the individual’s response in his August 2011 PSI to be false.
Under criterion (f), however, a false statement in a PSI is considered derogatory only if made
“[d]eliberately.” 10 C.F.R. § 708.8(f). The individual testified that he was truthful in the PSI, and
therefore clearly denies any deliberate falsification. Id. at 30; see also Exhibit 2 at 2 (individual’s
response to Notification Letter). There is, however, evidence that the individual intentionally sought
to minimize the extent of his marijuana use in reporting it to the DOE.
First, there is the statement made by the individual to the DOE psychologist that he did not correctly
report his last use of marijuana “because that is what would make him ‘look good.’” Exhibit 6 at 3.
Further, I note that, in his 2005 QNSP, the individual stated that he used marijuana from July 15,
1999, to April 1, 2005, Exhibit 8 at 8, whereas in his 2011 QNSP he estimated that his use spanned
only from February 2003 to March 2004. Exhibit 9 at 9. There is also the fact, discussed separately
below, that the individual omitted from his 2011 QNSP that he was charged with possession of a
controlled substance in June 2003. Based on all of this evidence, and on my assessment of the
credibility of his hearing testimony, I find it likely that the individual’s statement in the PSI
regarding his last use of marijuana was not only false, but deliberately so.
Similarly, I find that the individual deliberately made a false statement in the August 2011 PSI,
when he denied that he had ever purchased a fake identification. Exhibit 10 at 43-44. The
individual admitted at the hearing that he had, in fact, purchased a fake identification. Tr. at 31.
There is evidence of the individual’s intent, again, in the report of the DOE psychologist, which
states that individual admitted that, at the PSI, he remembered purchasing a fake identification, but
nonetheless denied doing so. Exhibit 6 at 3. At the hearing, the individual testified that he had more
than one fake identification, including one that he purchased and one that he found, and that his
denial in the PSI was with respect to the fake identification that he found. Tr. at 29.
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The individual admits that the first time he told the DOE that he had more than one fake
identification was at the hearing in this matter, and has no explanation why he did not disclose this
in response to the questions posed in the PSI. Id. at 48, 51. Aside from this, the individual’s account
of having more than one fake identification, as an explanation for denying at the PSI that he had
purchased one, strains logic and credulity, particularly in light of a plain reading of the relevant
portion of the PSI transcript. Exhibit 10 at 43-44.
Finally, there is the individual’s omission of his June 2003 charge for possession of a controlled
substance from his May 2011 QNSP. The individual testified that when he “was filling out the
questionnaire, I completely just forgot about it. It just slipped my mind. It was just another traffic
citation, because the marijuana ticket got dropped, so I just completely forgot about it until” it was
brought up at the PSI. Tr. at 33. Even though this incident occurred nearly eight years before he
completed the 2011 QNSP, I find it difficult, on its face, to believe that the individual forgot
something as significant as the first time, and one of only two, that he was stopped by law
enforcement while in the possession of marijuana.
Further undermining the credibility of his hearing testimony are the individual’s statements in his
PSI. First, when asked about any “drug related contact with law enforcement authorities,” the
individual reported only one. Exhibit 10 at 20-21. Later, and only after being asked specifically
about an incident in 2003, the individual admitted that he received a “marijuana ticket” that year.
Exhibit 10 at 29. When asked why he did not report this charge in his 2011 QNSP or earlier in the
PSI, he first stated it was because he “assumed all that was dropped.” Id. at 30. Pressed further, he
responded that, because the charge occurred when he was under 18, he did not think it needed to be
reported. Id. Neither of these two explanations is consistent with his statement at the hearing that
the charge “slipped his mind.” Because of the lack of a consistent explanation, and the inherent lack
of credibility of the explanation that he settled on at the hearing, I find it more likely than not that
the individual deliberately omitted this 2003 charge from his May 2011 QNSP.
As to whether the concerns raised by the individual’s deliberate omission and false statements
remain unresolved, hearing officers have generally taken into account a number of factors, including
whether the individual came forward voluntarily to renounce his falsifications, the timing of the
falsification, the length of time the falsehood was maintained, whether a pattern of falsification is
evident, and the amount of time that has transpired since the individual’s admission. Personnel
Security Hearing, Case No. TSO-0307 (2007), and cases cited therein.6 None of these mitigating
factors, nor any of those set forth in the relevant Adjudicative Guideline, Adjudicative Guidelines at
Guideline E, apply in the present case. Considering this, and the entirety of the record, including
testimony attesting to the individual’s honesty and trustworthiness, see, e.g., Tr. at 86, 107-08, 114-
15, I must conclude that the very serious concerns raised under criterion (f) have not been resolved.
Adjudicative Guidelines at Guideline E.
V. CONCLUSION
For the reasons set forth above, I conclude that the individual has not resolved the DOE’s security
concerns under criteria (f) and (l). Therefore, the individual has not demonstrated that granting him
6 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
http://www.oha.doe.gov. The text of a cited decision may be accessed by entering the case number of the decision in the
search engine located at http://www.oha.doe.gov/search.htm.
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access authorization would not endanger the common defense and would be clearly consistent with
the national interest. Accordingly, I find that the DOE should not grant the individual a security
clearance at this time. Review of this decision by an Appeal Panel is available under the procedures
set forth at 10 C.F.R. § 710.28.
Steven J. Goering
Hearing Officer
Office of Hearings and Appeals
Date: August 7, 2012