PSH-12-0049

* 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: May 4, 2012 )
) Case No.: PSH-12-0049
)
___________________________________ )
Issued: July 18, 2012
_______________
Hearing Officer Decision
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Kent S. Woods, Hearing Officer:
This Decision concerns the eligibility of XXXXXXX XXXXXXX (“the individual”) to hold a
Department of Energy (DOE) access authorization.1 As explained below, it is my decision that
the individual’s access authorization should be restored.
I. PROCEDURAL BACKGROUND
The individual is employed by a DOE contractor and has held a DOE access authorization for
several years. DOE Ex. 3 at 1. In November 2011, the individual informed the Local Security
Office (LSO) that she had been arrested and charged with aggravated driving while intoxicated
(Aggravated DWI) and possession of a prescription drug not prescribed to her. Id. The
individual participated in Personnel Security Interviews (PSI’s) in December 2011 and January
2012. DOE Exs. 7 and 8. In addition, in December 2011, the individual was evaluated by a
DOE-consultant psychologist (the DOE-consultant Psychologist), who provided the DOE with a
Report of Psychological Examination (the Report). DOE Ex. 4.
In March 2012, the LSO suspended the individual’s access authorization and issued a
Notification Letter informing the individual that there existed derogatory information that raised
security concerns. Specifically, Enclosure 2 of the Notification Letter finds that the individual
admitted taking a Schedule IV Drug not prescribed to her in November 2011 (one lorazepam
1 Access authorization, also known as a security clearance, is an administrative determination that an individual is
eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.
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pill), and that in the same month she was arrested for possession of a prescription drug not
prescribed to her (another lorazepam pill).2 It finds that this information raises a concern that the
individual may be an unlawful user of a controlled substance and disqualified from holding a
security clearance under 50 U.S.C. § 435c (hereinafter “the Bond Amendment”).3 It also finds
that this information raises a security concern under 10 C.F.R. § 710.8 (k) (hereinafter “Criterion
K”). See DOE Exhibit 1. The Notification Letter also informed the individual that she was
entitled to a hearing before a Hearing Officer in order to resolve the security concerns. Id.
The individual requested a hearing on this matter. DOE Ex. 2. The LSO forwarded her request
to the Office of Hearings and Appeals, and I was appointed the Hearing Officer. At the hearing,
the individual, who was represented by counsel, testified and presented the testimony of four
witnesses: her supervisor, her former division leader/personal friend, a work colleague/personal
friend, and a longtime friend. See Transcript of Hearing, Case No. PSH-12-0049 (cited herein as
“TR”). At the hearing, the individual introduced a sworn affidavit from her sister. Individual’s
Exhibit G. Following the hearing, the individual submitted a second sworn affidavit from her
sister, and a sworn affidavit from her general practitioner. 4
II. REGULATORY STANDARD
The regulations governing the individual’s eligibility for access authorization are set forth at
10 C.F.R. Part 710, “Criteria and Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material.” The regulations identify certain types of derogatory
information that may raise a question concerning an individual’s access authorization eligibility.
10 C.F.R. § 710.10(a). Once a security concern is raised, the individual has the burden of
bringing forward sufficient evidence to resolve the concern.
In determining whether an individual has resolved a security concern, the Hearing Officer
considers relevant factors, including the nature of the conduct at issue, the frequency or recency
of the conduct, the absence or presence of reformation or rehabilitation, and the impact of the
foregoing on the relevant security concerns. 10 C.F.R. § 710.7(c). In considering these factors,
the Hearing Officer also consults adjudicative guidelines that set forth a more comprehensive
listing of relevant factors. See Revised Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information (issued on December 29, 2005 by the Assistant to the President
for National Security Affairs, The White House) (the Adjudicative Guidelines).
2 The lorazepam pill was discovered by police when the individual was searched following her arrest in November
2011 for Aggravated DWI. Lorazepam is a prescription anxiolytic. Report at 4.
3 On August 12, 2009, the DOE Deputy Secretary issued DOE Notice 470.5, which implemented the Bond
Amendment in the DOE. In that Notice, the Deputy Secretary, among other things, asserted that persons subject to
the Bond Amendment (1) will continue to be processed for Administrative Review in cases where the agency is
unable to “waive” the Bond Amendment; and (2) will receive the same due process rights that existed before the
implementation of the Bond Amendment.
4 Affidavits were submitted from these persons in lieu of testimony because the individual’s general practitioner
was not available to testify on the hearing date, and because the individual’s sister was experiencing seizures
following surgery for a brain tumor. See June 12, 2012, e-mails from the individual’s counsel to the DOE Counsel
and the Hearing Officer.
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Ultimately, the decision concerning eligibility is a comprehensive, common-sense judgment
based on a consideration of all relevant information, favorable and unfavorable. 10 C.F.R.
§ 710.7(a). In order to reach a favorable decision, the Hearing Officer must find that “the grant
or restoration of access authorization to the individual would not endanger the common defense
and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.27(a).
“Any doubt as to an individual’s access authorization eligibility shall be resolved in favor of the
national security.” Id. See generally Dep’t of the Navy v. Egan, 484 U.S. 518, 531 (1988) (the
“clearly consistent with the interests of national security” test indicates that “security clearance
determinations should err, if they must, on the side of denials”).
III. ANALYSIS
A. The Individual’s Conduct Has Raised Security Concerns
The Bond Amendment precludes the grant of a security clearance to an individual who “is an
unlawful user of a controlled substance.” 50 U.S.C. § 435c(b). In addition, use of illegal drugs
or misuse of controlled substances raises security concerns under Criterion K. See Adjudicative
Guidelines, Guideline H, ¶ 24 (“Use 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.”). See also Personnel Security Hearing, Case No. TSO-0956
(2010); Personnel Security Hearing, Case No. TSO-0938 (2009).5 In the Notification Letter, the
LSO cited the individual’s admission that she consumed one lorazepam pill and was found to be
in possession of another lorazepam pill as a basis for invoking the Bond Amendment. The LSO
also invoked Criterion K, citing the individual’s admitted use and possession of the lorazepam
pills. I agree with the LSO’s conclusion that the individual’s admitted use and possession of
lorazepam raises concerns of unlawful use under the Bond Amendment and misuse of a
controlled substance under Criterion K. However, as discussed below, I find that the
individual’s explanation and supporting evidence concerning her use and possession of
lorazepam mitigate these concerns.
B. The Individual’s Testimony and Evidence Mitigates These Concerns
According to the Adjudicative Guidelines, among the factors that may serve to mitigate security
concerns raised by an individual’s illegal use of drugs are that “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.”
Adjudicative Guidelines, Guideline H, ¶ 26.
As discussed below, I find that the individual has mitigated the concerns raised by her misuse of
lorazepam in November 2011. The evidence in the record supports a finding that the
individual’s misuse of a controlled substance was confined to two lorazepam pills provided to
5 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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her by her sister to treat a legitimate medical condition, and that this is not indicative of a more
widespread problem with illegal drug use on the individual’s part.
The individual has consistently provided the following explanation for her use and possession of
lorazepam in November 2011. The individual testified that she suffers from chronic abdominal
pain caused by a malfunction of the bile duct. TR at 65. Her condition worsened about ten years
ago, and although she consulted numerous specialists, the only relief they could provide was the
regular use of pain medication. The individual testified that in 2010, she decided to stop the use
of pain medication through a pain management program at the Mayo Clinic where she was given
information concerning alternative life skills such as exercise and goal-setting aimed at dealing
with chronic pain. TR at 66-74. However, she testified that her father’s illness and death in the
summer of 2011 produced emotional and physical stress that aggravated her abdominal condition
and led her to resume the use of pain medication through September 2011. TR at 74-75.
The individual testified that her sister visited her in early November 2011, and that her sister had
recently been prescribed lorazepam to help with issues of sleep and anxiety relating to a brain
tumor. Her sister asked the individual if she would like to try a couple of lorazepam pills to see
if they might provide stress relief and ease the individual’s chronic abdominal problems. TR at
56. The individual testified that she accepted two lorazepam pills from her sister. The individual
stated that she took one of the pills at bedtime a couple days later, and placed the second pill in
her purse in one of her prescription bottles. She testified that this pill was discovered by police
at the time of her November 2011 DWI arrest. Id.
There is considerable evidence in the record to confirm the individual’s explanation for this
limited use and possession of lorazepam. In his Report, the DOE-consultant Psychologist stated
the individual’s medical history confirmed that she suffered from a chronic and painful
abdominal condition, that she had rejected the long-term use of narcotic pain medication, and
that she had made efforts to implement non-narcotic pain management therapies. Report at 5-6. 6
The DOE-consultant Psychologist opined that for some people, a police search revealing the
possession of an unprescribed lorazepam pill “could be the tip of a serious drug abuse problem.”
Id. at 4-5. However, in light of the individual’s medical condition, the DOE-consultant
Psychologist accepted the individual’s explanation and concluded that her admitted use and
possession of lorazepam “does not represent a problem with using illicit drugs or an intentional
disregard of DOE rules.” Id. at 5.7 In addition, the individual’s sister submitted two affidavits
which confirm that she had a prescription for lorazepam, and that she offered the individual two
pills to ease her abdominal condition without realizing that such an action was illegal. See June
6 The individual’s medical records confirming her medical condition and treatment can be found in DOE Exhibit 6
and in the individual’s exhibits E and F. See also June 22, 2012, Affidavit of the individual’s General Practitioner.
Individual’s June 27, 2012 submission.
7 The DOE-consultant Psychologist did find that the individual exhibited a “withholding and emotionally
constricted” demeanor at her psychological assessment that made it difficult to evaluate her fully and to assess her
honesty. Report at 6-7. At the hearing, however, the individual provided full, candid and credible testimony
concerning these issues. Based on her testimony and on the character evidence provided by her witnesses, I
conclude that the individual has provided complete and truthful information concerning her use of lorazepam.
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13 and June 21, 2012, affidavits of individual’s sister, Individual’s Exhibit G and Individual’s
June 27, 2012, submission.
Other testimony and evidence in the record also supports the individual’s contention that she is
not an abuser of prescription drugs. The individual testified that prior to November 2011
incident, she was subjected to four random workplace drug tests, and that she passed them all.
She also stated that for about the past two months, she has been subject to weekly drug testing,
which she has also passed. TR at 80-81. See Laboratory Reports, Individual’s Exhibit D. The
individual’s supervisor testified that she has had daily workplace contact with the individual for
the last ten years, and has had no concerns that the individual was abusing drugs. She also
asserted that the individual is honest and reliable, and has committed no security breaches. TR at
48-53. The individual’s work colleague/personal friend testified that he has worked with the
individual on a daily basis for nine years and also has had some limited social contacts with her.
He stated that the individual is totally honest, and that he has no concerns that she abuses drugs.
TR at 34-42. The individual’s former division leader/personal friend testified that she has known
the individual for 20 years in the workplace and through family social contacts. She stated that
she believes the individual to be honest and reliable, a very good mother to her children, and not
a drug or alcohol abuser. TR at 9-17. Finally, the individual’s longtime friend testified that she
has known the individual since 1985, that they have roomed together a couple of times, and that
they have shared interests that bring them together on a weekly to monthly basis. She stated that
the individual is wonderfully honest, and that she has never known the individual to abuse
prescription drugs or to use illegal drugs. TR at 23-32.
I accept the individual’s assertion that she did not consciously violate her commitments to the
DOE when she accepted the lorazepam pills from her sister. The individual testified that she did
not realize that sampling her sister’s medication was illegal. She stated that when her sister gave
her two lorazepam pills, she did not realize that lorazepam was a controlled substance. While
she acknowledged at the hearing that she had signed Security Acknowledgments indicating that
she would not misuse prescription drugs, she testified that when her sister offered her the
lorazepam pills, she did not “put the two together at the time.” TR at 59-60. The individual’s
former division leader/personal friend supported this testimony. She stated that when the
individual informed her she had accepted the lorazepam pills from her sister, the individual did
not say that she knew that accepting the pills was an illegal act. The division leader/personal
friend stated that she thought the individual’s failure to be aware of the illegality in this instance
was understandable. TR at 18-19.
I also accept the individual’s assertion that her experience following her misuse of lorazepam has
raised her awareness concerning the misuse of prescription medication, and that she will not do
so in the future. The individual testified that she regretted her decision to accept the pills, and
would never use another person’s prescription medication again. TR at 60. In addition, the
individual has presented evidence that there is no need to misuse prescription medication in order
to relieve her symptoms of anxiety and physical pain. The individual testified that following her
November 2011 arrest, she obtained a prescription for lorazepam from the medical practitioner at
her doctor’s office in order to establish that she had a medical condition that made it appropriate
for her to consume that medication. However, she stated that she ultimately disposed of the five
lorazepam pills prescribed to her, because her preferred methods of treating stress and pain with
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diet, exercise and other pain management techniques have been effective in controlling the stress
and pain associated with her abdominal condition. TR at 62-64. In addition, her General
Practitioner states in his Affidavit that he is available in the future to prescribe medications or
treat her medical issues if she is in need of help. See General Practitioner’s Affidavit attached to
Individual’s June 27, 2012, submission.
Accordingly, I conclude that the individual’s inadvertent misuse of her sister’s lorazepam
happened under unusual circumstances that are unlikely to recur in the future and, to the extent
that it raised security concerns under Criterion K, such concerns have been mitigated. I also find
that the individual has mitigated concerns that the Bond Amendment bars her from holding a
DOE access authorization. The Bond Amendment provides that “the head of a Federal agency
may not grant or renew a security clearance for a covered person who is an unlawful user of a
controlled substance or an addict . . . .” 50 U.S.C.A. § 435c(b). Because the individual’s misuse
of lorazepam in November 2011 was an isolated incident and is unlikely to recur, I find that the
individual is not now an “unlawful user” or “addict” within the meaning of the Bond
Amendment, and that the LSO’s concerns in this regard have been resolved. See Personnel
Security Hearing, Case No. TSO-1003 (2011) (concern raised by individual’s misuse of wife’s
prescription medication occurred under unusual circumstances unlikely to recur and was
mitigated by the passage of time). 8
IV. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
doubts regarding the individual’s eligibility for a security clearance under the Bond Amendment
and Criterion K of the Part 710 regulations. I also find that the individual has presented
sufficient information to resolve those concerns. Therefore, I conclude that restoring the
individual’s DOE access authorization “would not endanger the common defense and security
and would be clearly consistent with the national interest.” 10 C.F.R. § 710.7(a). Accordingly, I
find that the DOE should restore the individual’s access authorization.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth
at 10 C.F.R. § 710.28.
Kent S. Woods
Hearing Officer
Office of Hearings and Appeals
Date: July 18, 2012
8
This finding agrees with the guidance provided in DOE Notice 470.5, which states that “[u]ltimately, because of
the continued application of the [Adjudicative Guidelines], it is anticipated that the adjudicative determination on
any case with a Bond Amendment disqualifier will be the same under the Bond Amendment as it would have been
before the Bond Amendment was implemented.” Accordingly, neither Criterion K nor the Bond Amendment
preclude the individual from holding a security clearance based solely on her one-time misuse of a prescription
medication which is unlikely to recur. See Personnel Security Hearing, Case No. TSO-0926 (2010) at 6, ft. 4.