PSH-12-0031

* 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: April 5, 2012 ) Case No.: PSH-12-0031
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Issued: July 17, 10012
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Decision and Order
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Robert B. Palmer, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXX (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 individual’s security clearance
should be restored. 2
I. BACKGROUND
The individual is employed by a Department of Energy (DOE) contractor, and was granted a
security clearance in connection with that employment. After undergoing a period of turmoil in her
relationships with her now ex-husband and their children, on October 23, 2011, the individual took
1An 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 also be
referred to in this Decision as a security clearance.
2 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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four hydrocodone tablets that had been prescribed to her father and swallowed them. After obtaining
the pills but before swallowing them, she called several people and indicated to them that she was
going to commit suicide. At least one of those people called the local police, and the individual was
taken first to a local hospital, and then to a local mental health facility. After it was determined that
she was not a danger to herself or to others, she was released the next day with instructions to see
a local therapist.
Upon learning of this incident, the local security office (LSO) initiated an investigation. As part of
this investigation, LSO summoned the individual for an interview with a personnel security
specialist in December 2011. After this Personnel Security Interview (PSI) failed to successfully
address the LSO’s security concerns, the individual was referred to a local psychologist (hereinafter
referred to as “the DOE psychologist”) for an agency-sponsored evaluation. The LSO reviewed the
DOE psychologist’s written report, the transcript of the PSI, and the rest of the individual’s
personnel security file, and determined that derogatory information existed that cast into doubt the
individual’s eligibility for access authorization. They informed the individual of this determination
in a letter that set forth the DOE’s security concerns and the reasons for those concerns. I will
hereinafter refer to this letter as the Notification Letter. The Notification Letter also informed the
individual that she was entitled to a hearing before a Hearing Officer in order to resolve the
substantial doubt concerning her eligibility for access authorization.
The individual requested a hearing on this matter. The LSO forwarded this request to the Office of
Hearings and Appeals, and I was appointed the Hearing Officer. The DOE introduced five exhibits
into the record of this proceeding. The individual introduced eight exhibits and presented the
testimony of five witnesses at the hearing, in addition to testifying herself.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the Notification Letter included a statement of derogatory information that
created a substantial doubt as to the individual’s eligibility to hold a clearance. This information
pertains to Title 50 of the United States Code, section 435c (hereinafter referred to as “the Bond
Amendment”), and paragraph (k) of the criteria for eligibility for access to classified matter or
special nuclear material set forth at 10 C.F.R. § 710.8.
The Bond Amendment prohibits a federal agency from granting or renewing a security clearance
for a person who is an unlawful user of a controlled substance or an addict. Under criterion (k),
information is derogatory if it indicates that the individual has “sold, transferred, possessed, used,
or experimented with a . . . substance listed in the Schedule of Controlled Substances established
pursuant to section 202 of the Controlled Substances Act of 1970 (such as marijuana, cocaine,
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amphetamines, . . . etc.) except as prescribed or administered by a physician” or otherwise
authorized by federal law. As support for its invocation of both of these provisions, the Letter cites
the individual’s statements during her PSI, in which she admitted taking hydrocodone, a controlled
substance, that was prescribed to her father, even though she knew her actions to be illegal.
This derogatory information adequately justifies the DOE’s invocation of the Bond Amendment and
criterion (k), and raises significant security concerns. Illegal drug usage can raise questions about
an individual’s reliability and trustworthiness, both because such usage may impair judgement and
because it raises questions about a person’s ability or willingness to comply with laws, rules, and
regulations. See Revised Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information, The White House (December 19, 2005), Guideline H (Adjudicative
Guidelines).
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 or
unfavorable, that has a bearing on the question of whether granting or restoring 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). See
Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed by
OSA, 1996), and cases cited therein. 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).
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IV. FINDINGS OF FACT AND ANALYSIS
Based on the record in this matter, I find that the individual is not an “addict” or an unlawful user
of a controlled substance within the meaning of the Bond Amendment. I also find that the individual
has mitigated the DOE’s security concerns under criterion (k). My reasons for these conclusions are
set forth below.
The Bond Amendment incorporates by reference the definition of “addict” set forth at
21 U.S.C. § 802. As so defined, “addict” refers to a person “who habitually uses any narcotic drug
so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use
of narcotic drugs as to have lost the power of self-control with reference to his addiction.” The
individual clearly does not meet this definition. As an initial matter, she is not an habitual user of
hydrocodone or any other controlled substance. As I shall discuss in greater detail below, the usage
was an isolated incident that is unlikely to be repeated. Furthermore, both of the mental health
professionals who have examined the individual opined that she does not suffer from a substance
use disorder.
In her report, the DOE psychologist concluded that the individual does not suffer from substance
abuse or dependence. DOE Exhibit (DOE Ex.) 4 at 2. She further stated that the individual’s
behavior “does not reflect a clinical pathology” and “is unlikely to ever occur again.” Id. at 4. 3 The
individual’s therapist, who is also a licensed substance abuse counselor, testified that, based on her
interview with the individual and the results of two diagnostic tests that she administered (the
Substance Abuse Subtle Screening Inventory and the Drug Abuse Screening Test), she also
concluded that the individual does not suffer from a substance use disorder. Hearing Transcript (Tr.)
at 50-51. I therefore find that the individual is not an “addict” as that term is used in the Bond
amendment.
3 The DOE psychologist also concluded that the individual does not suffer from any other illness or
mental condition that could cause a serious defect in her judgement or reliability. Her ingestion of
the four hydrocodone tablets “was an impulsive and manipulative action that had no chance of
causing her death,” DOE Ex. 4 at 3, and “appears to have been primarily motivated to make an
impact on others rather than a genuine attempt to die.” DOE Ex. 4 at 5. The DOE psychologist
agreed with the diagnosis of Adjustment Reaction with Depressed Mood given to the individual by
the local mental health facility on the day of her discharge, but added that the emotional instability
and poor judgement that she demonstrated in taking the pills were not likely to continue.
Consequently, she concluded that this condition was not one that would cause serious defects in the
individual’s judgement or reliability in the future. Id.
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In contrast to the term “addict,” the Bond Amendment does not define “unlawful user of a controlled
substance.” However, because the usage was an isolated event that is unlikely to recur, the
individual no longer falls within the parameters of any reasonable definition of that term.
The individual indicated at the hearing that, other than the incident at issue here, she has never used
illegal drugs or misused prescription drugs. Tr. at 27-28. Her testimony in this regard was supported
by that of her current husband, her therapist, a co-worker and two friends. Tr. at 19, 49, 62, 68, 79.
She also submitted the results of random drug screenings administered by her employer in March
2010 and May 2011. Both tests were negative for illegal or unprescribed drugs. See Individual’s
Exhibit D.
My conclusion that the incident is unlikely to recur is based on the unique circumstance that it was
a suicide gesture, not a usage for recreational purposes, and that the individual has undergone
therapy designed to assist her in handling the stressors that led to the incident in a more constructive
manner. At the hearing, the individual testified about the events that led up to her ingestion of the
four hydrocodone tablets. She said that her eldest son, a 17 year-old who had been an honor student
and an interscholastic athlete, became “argumentative,” and started making really bad choices. Tr.
at 29. He began staying out late at night and cutting classes. Id. He also moved out of the
individual’s residence and moved in with his 19 year-old girlfriend. DOE Ex. 4 at 2. A younger son,
a high school freshman, got suspended from school for a week and was thrown off the football team.
Tr. at 29. Then, the night before the incident in question, the younger son called his paternal
grandmother, who resides in another state, and complained about his situation, including the
individual and her rules. Tr. at 30. According to the individual, the grandmother invited the younger
son to come live with her, without consulting with the individual. DOE Ex. 4 at 3. During the
following afternoon, the individual’s older son drove to the individual’s residence and left with the
younger son. The individual assumed that he was taking the younger son to his grandmother’s house.
Id. At this point, the individual felt that she had lost control and that her sons were making poor
choices, and this “terrified” her. Tr. at 30. She telephoned her father, told him that she had injured
her back doing yard work, and got the pills from him that she would ingest later that day. Tr. at 32.
It is apparent that the individual’s act was triggered by conflict between herself and her sons, and
her need to exercise some level of control in the face of that conflict. The individual and her
therapist testified that these were among the issues that the two of them have addressed during their
sessions. The individual testified that her therapy has helped her “figure out [that] sometimes you
can’t control every situation,” and that sometimes “you have to let it unfold the way it’s intended
to unfold and hope for the best.” Tr. at 26. She added that counseling has been “eye-opening,” and
has given her “better coping skills,” and that being in control is not as important to her as it once
was. Tr. at 38.
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The individual’s therapist also testified about her counseling sessions with the individual. She stated
that her goals going into therapy were to (i) look at how the individual deals with highly emotional
issues and to help her develop better skills for managing strong emotions, (ii) help the individual
develop better communication skills, particularly with her family members, (iii) examine the
individual’s relationships with her sons and how they became so emotionally charged, (iv) help the
individual learn some of the skills and principles of authoritative parenting, and (v) to help her
develop and use better self-care techniques. Tr. at 48. According to the therapist, at this point in the
individual’s counseling, they have accomplished approximately eighty percent of these goals. Since
beginning therapy, the individual has learned
to reflect on her behavior with less defensiveness . . . .She’s able to identify ways to
cope with strong emotions, and she’s utilizing those strategies. She’s able to
understand and depersonalize her son’s behavior, so now it isn’t all about her, it’s
about them being teenagers . . . . She’s also able to identify better and more
diplomatic ways of communicating and how to listen more actively and less
defensively.
Tr. at 53. Because of these changes, she testified that it was “pretty unlikely” that the individual
would react in the manner that she did if faced with a comparable situation in the future. Tr. at 54.
That the individual’s ingestion of hydrocodone was an isolated incident that is unlikely to be
repeated also serves as sufficient mitigation for the DOE’s security concerns under criterion (k). See
Adjudicative Guideline H (usage that “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 judgement” is a mitigating factor).
V. CONCLUSION
For the reasons set forth above, I find that the individual has successfully addressed the DOE’s
security concerns under criterion (k). I therefore conclude that restoring her access authorization
would not endanger the common defense and would be clearly consistent with the national interest.
Accordingly, I find that the individual’s security clearance should be restored. The DOE may seek
review of this Decision by an Appeal Panel under the procedures set forth at 10 C.F.R. § 710.28.
Robert B. Palmer
Hearing Officer
Office of Hearings and Appeals
Date: July 17, 2012