PSH-13-0004

* 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: January 10, 2013 ) Case No.: PSH-13-0004
)
_________________________________________ )
Issued: July 1, 2013
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Hearing Officer Decision
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Kimberly Jenkins-Chapman, Hearing Officer:
This Decision concerns the eligibility of xxxxxxxxxxxxx (hereinafter referred to as “the
individual”) to hold an access authorization1 under the Department of Energy’s (DOE)
regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled, “General Criteria and Procedures
for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.” As
fully discussed below, after carefully considering the record before me in light of the relevant
regulations and Adjudicative Guidelines, I have determined that the individual’s access
authorization should not be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. In February and April 2012, as part of a background investigation, the Local
Security Office (LSO) conducted Personnel Security Interview (PSIs) of the individual to
address concerns about his alcohol, drug use and falsifications. In addition to the PSIs, the LSO
requested the individual’s medical records and recommended a psychiatric evaluation of the
individual by a DOE consultant psychiatrist (DOE psychiatrist). The DOE psychiatrist examined
the individual in May 2012 and memorialized his findings in a report (Psychiatric Report).
According to the DOE psychiatrist, the individual suffers from Alcohol Dependence.
1 Access authorization is defined as “an administrative determination that an individual is eligible for access to
classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). Such
authorization will be referred to variously in this Decision as access authorization or security clearance.
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On December 17, 2012, after reviewing the DOE psychiatrist’s report, the transcript of the PSI,
and the rest of the individual’s personnel security file, the LSO sent the individual a letter
(Notification Letter) advising him that the DOE possessed reliable information that created
substantial doubt regarding his eligibility to hold an access authorization. In an attachment to the
Notification Letter, the LSO explained that the derogatory information fell within the purview of
four potentially disqualifying criteria set forth in the security regulations at 10 C.F.R. § 710.8,
subsections (h), (j), (k) and (f) (Criteria H, J, K and F, respectively).
Upon receipt of the Notification Letter, the individual filed a request for a hearing. The LSO
transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA), and
the OHA Director appointed me as the Hearing Officer in this case. At the hearing, the
individual testified on his own behalf. The DOE counsel presented the testimony of the DOE
psychiatrist. Both the DOE Counsel and the individual submitted a number of written exhibits
prior and after the hearing.
II. The Notification Letter and the Associated Security Concerns
As previously mentioned, the Notification Letter included a statement of derogatory information
that raised concerns about the individual’s continued eligibility for access authorization. The
information noted in the letter specifically cites to Criteria H, J, K and F.
Criterion (H) defines as derogatory information indicating that an individual has an illness or
mental condition which, in the opinion of a psychiatrist, or licensed clinical psychologist, causes
or may cause a significant defect in his judgment or reliability. In this case, the Notification
Letter cites that, in November 2011, a psychiatrist diagnosed the individual with Bipolar II
Disorder and Attention Deficit Hyperactivity Disorder and reported the individual’s prognosis as
“guarded.” The Notification Letter also refers to the diagnosis of the DOE psychiatrist that the
individual suffers from Alcohol Dependence, as well as the DOE psychiatrist’s opinion that the
individual’s consumption of an over-the-counter cold medication to get a “buzz” supports a
Substance Use Disorder.
Criterion (J) defines as derogatory information indicating that the individual has been, or is a
user of alcohol habitually to excess, or has been diagnosed by a psychiatrist or a licensed clinical
psychologist as alcohol dependent or as suffering from alcohol abuse. Under this Criterion, the
Notification Letter refers to the diagnosis of the DOE psychiatrist that the individual suffers from
Alcohol Dependence.
Criterion (K) pertains to information indicating that the individual has transferred, possessed or
used a drug listed in the Schedule of Controlled Substances established pursuant to Section 202
of the Controlled Substances Act of 1970, except as prescribed or administered by a physician or
otherwise authorized by federal law. In support of this Criterion, the Notification Letter cites the
individual’s admission that in 2011, that he purchased K2 (synthetic cannabis) on the internet
and used it on three occasions, his admission to using Robitussin DM on five or six occasions
between 2010 and 2011, for the purpose of achieving a “buzz,” and the DOE psychiatrist’s
opinion that this use supports a Substance Use Disorder. The Notification Letter also cites
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information reported from a protected source that the individual smoked K2 in the fall of 2010
and purchased large quantities of cold medicine in the form of pills. Lastly, the Notification
Letter cites the individual’s admission to using marijuana in high school on a couple of
occasions, with his last use occurring in 1981.
Under Criterion (F), information is derogatory if it indicates that the individual deliberately
misrepresented, falsified, or omitted significant information from a Personnel Security
Questionnaire, a Questionnaire for 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. Under this
Criterion, the Notification Letter cites the fact that the individual failed to list on a 2011 QNSP
that he did not file and pay 2010 Federal taxes. The Notification Letter also cites several
inconsistent statements made by the individual during an April 2012 PSI regarding his actual
alcohol consumption, his use of the substance K2 and his abuse of over-the-counter drugs.
This derogatory information adequately justifies the DOE’s invocation of Criteria (H), (J), (K)
and (F), and raises significant security concerns. Conduct involving questionable judgment,
unreliability, untrustworthiness, or unwillingness to abide by rules and regulations could indicate
that a person may not properly safeguard classified information. Improper or illegal involvement
in drugs may also indicate that a person may be unable to safeguard such information.
Emotional and mental disorders are security concerns because they may indicate a defect in
judgment, reliability, or stability. Also, excessive consumption of alcohol is a security concern
because this behavior can lead to the exercise of questionable judgment and the failure to control
impulses. See Revised Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information, The White House (December 19, 2005), Guidelines E, G, H, and I
(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 the national security. 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 material factors. 10 C.F.R. § 710.9(c).
The purpose of a DOE administrative proceeding under 10 C.F.R. Part 710 is to provide the
individual an opportunity to submit information in support of her 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
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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. Findings of Fact and Analysis
At the hearing, the individual did not dispute the allegations in the Notification Letter. Instead,
he attempted to demonstrate, through his testimony, that he does not suffer from a significant
defect in judgment and reliability and that he is a trustworthy individual.
A. Criteria (H) and (J)
The Adjudicative Guidelines describe factors that could mitigate security concerns involving
psychological conditions. Those factors include information indicating that: (i) the condition is
readily controllable with treatment, and the individual has demonstrated ongoing and consistent
compliance with the treatment program; (ii) the individual has voluntarily entered into, and is
participating in, a counseling or treatment program for a condition that is amenable to treatment,
and has received a favorable prognosis by a duly qualified mental health professional; (iii) there
is a recent opinion by a duly qualified mental health professional retained by, or acceptable to,
the U.S. Government that the individual’s condition is under control, or in remission, and has a
low probability of recurrence; (iv) the individual’s condition is temporary and has been resolved,
with the individual showing no current signs of emotional instability; and (v) there is no
indication of a current problem. See Adjudicative Guidelines, Guideline I, ¶ 29.
At the outset, I note that the favorable testimony of the DOE psychiatrist establishes the
existence of mitigating factors (iii) and (v), and, along with the testimony of the individual,
convinces me that he has adequately addressed the DOE’s security concerns under Criteria (H)
with respect to his diagnosis of Bipolar II Disorder and ADHD. In 2007, the individual met with
a psychiatrist to help him cope with the death of a close family member. After meeting with the
psychiatrist, the individual was diagnosed with Bipolar II and ADHD. His treating psychiatrist
prescribed Strattera (for the treatment of ADHD), Lamictal (for the treatment of Seizures), and
Seroquel (for the treatment of Bipolar II). However, according to the individual, the medications
did not help him, noting that the medications made him feel either very hyper or “zombie-like,”
and he stopped taking them in September 2011. Transcript of Hearing (Tr.) at 48. During the
hearing, the individual testified that he only met with the psychiatrist so that she could check on
the effectiveness of his medication. Id. at 50. He testified that the dosages of his medications
were too strong, and that the psychiatrist told him he could break the pills in half to decrease the
dosage. The individual stated that, after his last meeting with his psychiatrist, he stopped taking
the medication. Id. According to the individual, the last time he met with the psychiatrist was in
June 2011 as a follow-up after attending a substance abuse treatment. In a June 201l letter
addressed to his employer, the psychiatrist indicated that the individual “is psychiatrically stable
and is free of active psychiatric symptoms.” See DOE Exhibit 6. The individual stated during
the hearing that since seeing the psychiatrist in 2011, he has not sought additional treatment for
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his conditions. Tr. at 51. He testified that other than having problems sleeping, he does not now
have any symptoms of Bipolar II, noting that he does not get angry or have mood swings. Id.
With respect to the individual’s diagnoses of Bipolar II and ADHD, the DOE psychiatrist
testified that, after evaluating the individual, he did not see evidence of ADHD. Although he
noted that the individual has some hyperactivity, he does have the ability to concentrate. Id. at
111. He further noted that a Bipolar II diagnosis is marked by periods of depressions, and that in
evaluating the individual, he did not hear any evidence of the individual experiencing periods of
depression. Id. at 113. He opined that the individual does not need to seek treatment for either
of these two conditions. Id. at 114. After reviewing the DOE psychiatrist’s testimony, I am
persuaded that, with respect to the individual’s diagnoses of Bipolar II and ADHD, there is no
indication of a current problem. For this reason, I find that the individual has successfully
addressed the DOE’s security concern under Criteria H, specifically with respect to the diagnoses
of Bipolar II and ADHD.
Likewise, with respect to the individual’s diagnosis of Alcohol Dependence, the favorable
testimony of the DOE psychiatrist establishes the existence of mitigating factor (iii), and, along
with the testimony of the individual, convinces me that he has adequately addressed the DOE’s
remaining security concerns under Criteria (H) and (J). The individual has a past history of
alcohol use. DOE Exh. 3. According to the individual, he first began consuming alcohol at
approximately 20 years old, stating that he would drink one or two beers in a social setting.
However, after he got married at the age of 23, the individual stated that he would rarely drink
for the next 18 years. Id. The individual and his wife divorced in 2008. From 2009 to 2010, the
individual was engaged to be married and living with his fiancée, but his fiancée terminated the
relationship, and he moved out of their home in September 2010. Id. According to the
individual, this was “emotionally upsetting,” and his drinking began to escalate. He reported that
he would consume two mixed drinks at bedtime, with each drink consisting of “two fingers” of
whiskey in a 12-ounce cup with Coca-Cola. He further reported that he would drink to help him
fall asleep. DOE Exh. 1.
In November 2010, the individual was charged with two counts of Driving under the Influence
(DUI), one count of Driving While Impaired (DWI), and failure to remain at the scene of an
accident. Id. He reported that prior to his arrest, he was celebrating his friend’s birthday and
consumed three large glasses of sweet tea flavored vodka. Id. After falling asleep for a while,
he left his friend’s house to go to a McDonald’s restaurant. While in the drive-thru, he took his
foot off his brake and bumped the car in front of him. Id. He was subsequently pulled over by a
police officer in the parking lot. Id. After appearing in court, the individual was convicted of
two counts of DUI, received two years of probation before judgment and was required to
complete 80 hours of community service. Id. As a condition of his probation, he was required to
totally abstain from alcohol and the use of illegal substances. Id. The individual completed 13
weeks of Substance Abuse treatment as well as a 26-week individual substance abuse treatment
program. Id. However, during a February 2012 Personnel Security Interview (PSI), the
individual admitted to consuming alcohol in moderation during the time between his arrest in
November 2010 and his court date on June 6, 2011, during his probation and during his alcohol
treatment. Id.
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During the hearing, the individual acknowledged his past alcohol use and testified that he used
alcohol to fall asleep. He further testified that he stopped drinking alcohol “cold turkey,” stating
that his last drink was in December 2012. Id. at 69. The individual testified that he now takes
Unisom (a sleeping aid) to help him fall asleep. Id. at 74. He stated that he does not struggle
with abstaining from alcohol and has never had cravings, adding that he drank because he chose
to drink. Id. at 73. The individual also testified that he stopped drinking for health reasons.
Finally, the individual acknowledged that he violated his probation. Id. at 75.
After listening to the individual’s testimony, the DOE psychiatrist testified that while he
recommends that the individual participate in a setting that reinforces and maintains his
commitment not to drink over the long term, ie. Alcoholics Anonymous (AA), he believes the
individual’s prognosis is good and that he is in early remission. Id. at 117, 122 and 123. He
noted that although the individual has a vulnerability or predisposition to drinking, the
individual’s drinking took place in stressful circumstances. The DOE psychiatrist testified that
as long as the individual is not drinking, there is no significant defect in his judgment and
reliability. Id. at 125.
After reviewing all of the testimony, I am persuaded by the DOE psychiatrist’s opinion that the
individual is in remission, albeit early remission, and that he individual’s condition does not
cause a significant defect in his judgment and reliability. As an initial matter, the individual
credibly testified that he no longer uses alcohol as a sleep aid and has substantially reduced the
stressors in his life that led him to drink. He further testified that does not have the urge to drink
and is committed to abstaining from alcohol and participating in an alcohol program as the DOE
psychiatrist recommends. I am convinced that the individual’s past alcohol consumption was
linked to stressful events in his life at the time and his inability to sleep which is now managed.
For these reasons, I find that the individual has successfully addressed the DOE’s security
concerns under Criteria (H) and (J).
B. Criterion (K)
I reach a similar conclusion with regard to Criterion (K). The Adjudicative Guidelines that
pertain to the individual’s improper usage of illegal substances, including marijuana and K2
(synthetic cannabis), as well as over-the-counter medications all provide that the isolated nature
of the conduct, unusual circumstances leading up to the conduct, and the likelihood that the
conduct will not be repeated, can act as mitigating factors. See Adjudicative Guidelines E, H and
J.
In a February 2012 email received by DOE from a protected source, the protected source
reported that the individual smoked a substance known as K2 (synthetic cannabis) in the fall of
2010 and purchased large quantities of cold medicine in the form of pills. DOE Exh. 1. During
an April 2012 PSI, the individual admitted to purchasing K2 (synthetic cannabis) on the internet
on approximately three occasions for personal use and using it on three occasions in 2010. Id.
He also admitted that he used Robitussin DM on five or six occasions between 2010 and 2011,
for the purpose of achieving a “buzz,” either by taking pills or consuming up to a half of a bottle.
Finally, the individual admitted that he used marijuana while in high school on a couple of
occasions, with his last use occurring in 1981. Id. During the hearing, the individual
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acknowledged his use of all of these substances, although he disagreed as to whether or not K2 is
considered illegal. The individual testified that his minimal marijuana use occurred in high
school. He further testified that his use of K2 and Robitussin DM occurred during a stressful
time in his life in 2010 and 2011. He admitted to his use being “stupid” and stated that he was
embarrassed by his behavior in light of his age and professional background. Id. at 46. He
reiterated that he was in a “really, emotionally . . . place and admitted that he could have used
better outlets at that time. The individual testified that he has not used K2 or Robitussin DM
since the limited occasions in 2010 and 2011, and further that he has no intention to ever use K2
or misuse over-the-counter medication in the future. Id. at 46 and 47. Considering these facts, I
conclude that the individual’s use of K2 and misuse of cold medication happened under unusual
circumstances that are unlikely to recur in the future; and to the extent that the behavior raised
security concerns under Criterion K, I conclude that such concerns have been successfully
mitigated. I further conclude that the individual’s use of marijuana in high school has been
mitigated by the passage of time.
C. Criterion F
The Criterion F concerns are based on allegations of very recent behavior, an intentional
omission from a 2011 QNSP, a false statement in a January 2012 Office of Personnel
Management interview as well as a number of false statements made during an April 2012 PSI.
These allegations bear directly on the trustworthiness and reliability of the individual in his
dealings with the DOE. Under Criterion F, however, a false statement is considered derogatory
only if made “[d]eliberately.” 10 C.F.R. § 708.8(f).
First, on a 2011 QNSP, the individual failed to list that he did not file and pay his 2010 Federal
taxes. During the hearing, the individual testified that he did not list his 2010 Federal taxes
because he believed the taxes would be paid before his investigation. However, when
questioned, he acknowledged that he intentionally misrepresented this information. Tr. at 92.
Based on this evidence, and my assessment of the individual’s credibility of his hearing
testimony, I find that the individual deliberately misrepresented this information on his QNSP.
With respect to the individual’s alcohol consumption and drug use, the record reflects a number
of inconsistencies. During a 2010 OPM interview, the individual stated that he had not
consumed alcohol since his November 2010 DUI arrest. However, during his April 2012 PSI,
the individual admitted to currently consuming at least six beers a week and further admitted that
he was in violation of his probation. At the hearing, the individual readily acknowledged that
this statement was an intentional misrepresentation. Id. Similarly, during his April 2012 PSI,
the individual was questioned regarding information received from a protected source in
February 2012 that he “would go to the liquor store and purchase alcohol which included at least
a 5th of liquor and beer every day and drink all of it.” After initially denying this information, he
later admitted that he consumed one or two shots of liquor a day. The individual stated that he
did not report this information because “it did not look good.” Again, during the hearing, the
individual admitted that he was embarrassed by this information and intentionally
misrepresented his alcohol consumption. Id. at 93. In addition, during his April PSI, after being
questioned about his use of synthetic, designer and chemically enhanced drugs, the individual
initially denied that he had ever used or purchased K2. However, when confronted with the
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information, he admitted his involvement with K2. Likewise, when questioned about his use of
over-the-counter drugs as a means to get “high,” the individual initially denied abusing
Robitussin cold medicine, but later in his PSI admitted to abusing it to obtain a “buzz.” Id. at 94.
The individual acknowledged, during the hearing, that these instances were intentional
misrepresentations as well. Id. Based on the evidence, I find that all of these statements were
deliberate misrepresentations.
As to whether the concerns raised by the individual’s deliberate false statements remain
unresolved, I have considered the relevant factors set forth in Adjudicative Guideline E. 2 I find
that none of the relevant factors apply in this case. Specifically, the individual did not meet ¶
17(a) because the individual did not make prompt, good-faith efforts to correct his falsifications
before being confronted with facts during his April 2012 PSI. He did not meet ¶ 17(c) because
the individual’s verified falsifications were serious and relatively recent. The individual’s
behavior at the time of his PSI did not occur under such unique circumstances that it is unlikely
to recur. In addition, the individual did not meet ¶ 17(e). Although he acknowledged during the
hearing that his misrepresentations were a result of bad judgment, Tr. at 95, he has not
demonstrated that he has taken positive steps to reduce or eliminate vulnerability to exploitation,
manipulation, or duress. Finally, the individual did not meet ¶ 17(f) because I was not convinced
that the information regarding the individual that the DOE received from a protected source was
from a source of questionable reliability. See Adjudicative Guidelines at Guideline E.
Considering this, and the entirety of the record, I must conclude that the very serious concerns
raised under Criterion F have not yet been resolved.
V. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raised serious security concerns under Criteria H, J, K and F. After
considering all of the relevant information, favorable and unfavorable in a comprehensive
common-sense manner, including weighing all the testimony and other evidence presented at the
hearing, I find that the individual has brought forth convincing evidence to mitigate the security
concerns associated with Criteria H, J and K. However, I cannot find that the individual has
brought forth convincing evidence to mitigate security concerns associated with Criterion F. I
therefore cannot find that restoring the individual’s access authorization would not endanger the
common defense and security and would be consistent with the national interest. Accordingly, I
2 Guideline E Paragraph 17 outlines the conditions that could mitigate security concerns raised under Criterion F.
Paragraph 17(a) states that “the individual made prompt, good-faith efforts to correct the omission, concealment, or
falsification before being confronted with the facts,.” Paragraph 17(c) states that “the offense is so minor, or so
much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is
unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment.”
Paragraph 17(e) states that “the individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress.” Finally, Paragraph 17(f) states that the information was unsubstantiated or
from a source of questionable reliability. The Adjudicative Guidelines at Guideline E.
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find that the individual’s access authorization should not be restored. The parties may seek
review of this Decision by an Appeal Panel under the regulations set forth at 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Hearing Officer
Officer of Hearings and Appeals
Date: July 1, 2013