PSH-13-0022

* 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 )
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Filing Date: February 27, 2013 ) Case No.: PSH-13-0022
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Issued: May 22, 2013
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 grant the
individual access authorization.
I. BACKGROUND
The individual is an applicant for access authorization. Because of concerns raised by the
individual’s association with users of illegal drugs, the LSO determined that derogatory information
existed that cast into doubt the individual’s eligibility for access authorization. Exhibit 3. The LSO
informed the individual of this determination in a Notification 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 access authorization.
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 seven exhibits into the record of this
proceeding. The individual introduced five exhibits and presented the testimony of five witnesses,
in addition to his own testimony.
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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II. 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’s 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).
III. FINDINGS OF FACT AND ASSOCIATED SECURITY CONCERNS
The Notification Letter cited derogatory information within the purview of one potentially
disqualifying criteria set forth in the security regulations at 10 C.F.R. § 710.8, subsection (l)
(hereinafter referred to as Criterion L). Exhibit 1.2 Specifically, the LSO cited the individual’s past
and present association “with persons engaged in illegal drug use and possession in his presence.”
Id. The Notification Letter also states that the individual “signed a Security Acknowledgment on
November 30, 2011, acknowledging he is aware that any involvement with illegal drugs could result
in the loss of his DOE access authorization.” Id.
The individual does not dispute the allegations in the Notification Letter, with one exception. The
LSO alleged that, as the result of a friendship with an illegal drug user, the individual “allowed
illegal drug use and possession in his home on up to four occasions in June 2009.” Id. (citing
Exhibit 6 at 122-31; Exhibit 7 at 46). In his response to the Notification Letter, the individual stated
that “it was not in my home that the drug use and possession occurred, it was [the user]’s. At the
time, I was financially unable to pay a deposit on an apartment, and I stayed at his home for about
two months.” Exhibit 2 at 2.
Because the information cited to support this allegation was provided by the individual himself in
2 Criterion L defines as derogatory information indicating that the 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. § 710.8(l).
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Personnel Security Interviews (PSIs), and the cited portions of the PSIs are consistent with the
individual’s response to this allegation, I find the statement in his response to be credible. See
Exhibit 7 at 46 (March 23, 2012 PSI at 46) (“I didn’t really have my own place”); Exhibit 6 at 127
(July 13, 2012 PSI). Aside from this, I find that the allegations in the Notification Letter are
supported by the evidence in the record, and are therefore valid. See 10 C.F.R. § 710.27(c)
(requiring that Hearing Officer “make specific findings based upon the record as to the validity of
each of the allegations” in the Notification Letter).
I further find that the allegations in the Notification Letter adequately justify the DOE’s invocation
of Criterion L, and raise valid security concerns. Any association with persons involved in criminal
activity can create a vulnerability to exploitation, manipulation, or duress, such that it raises
questions about an individual’s reliability, trustworthiness and ability to protect classified
information. See Revised Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information (Adjudicative Guidelines), The White House (December 19, 2005) at ¶ 16(g).
IV. ANALYSIS
The Adjudicative Guidelines provide that security concerns arising from association with persons
involved in criminal activity can be mitigated where “association with persons involved in criminal
activities has ceased or occurs under circumstances that do not cast doubt upon the individual's
reliability, trustworthiness, judgment, or willingness to comply with rules and regulations.” Id. at
¶ 17(f); see also id. at ¶ 17(e) (“the individual has taken positive steps to reduce or eliminate
vulnerability to exploitation, manipulation, or duress”).
The Notification Letter references twelve individuals who have used illegal drugs and with whom
the individual has been associated at various times since 1998. Exhibit 1 at ¶ B (since 2011), ¶ C
(2010 to January 2012), ¶ D (2010 to January 2012), ¶ E (1998 to October 2011), ¶ F (December
2008 to July 2009), ¶ G (June 2009), ¶ H (2002 or 2003 to 2008), ¶ I (May 2003 to 2007), ¶ J (May
2003 to May 2005), ¶ K (2001 to 2002); ¶ L (2000 to 2001 or 2002); ¶ M (2001). The individual,
whose statements in PSIs were the source of all of these allegations, testified credibly that he no
longer has contact with all but three of these individuals. Tr. at 50-52; see also Exhibit 2
(individual’s response to Notification Letter).
Of those three, two testified at the hearing in this matter, one provided a written statement, and all
three submitted recent drugs tests, the results of which were negative. Exhibits A through D. One
friend testified that he had not used illegal drugs “since the early part of 2011, maybe late 2010.” Tr.
at 44. He explained that he “recently got married in September. I made a promise to myself before I
asked her and before we had kids or anything to completely stay away from any sort of drugs.” Id.
In the written statement, another friend of the individual acknowledged his prior use of marijuana,
but stated that he no longer uses it. “I am now in an administrative position for a quickly growing
company that offers me the employment that I desire and a drug-free lifestyle which I thoroughly
enjoy. . . . I have no desire to use marijuana ever again.” Exhibit E.
The individual’s girlfriend testified that she began dating the individual two years ago, at which time
she used marijuana occasionally, though she never smoked in the presence of the individual. Tr. at
13-14. She stated that, after the individual’s March 2012 PSI, he informed her that “he couldn't even
associate with me if he knew that I used illegal substances.” Id. at 14. She testified that he asked
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her to not use marijuana, and she had no problem with that. “It was more of a situational thing
anyway. It had to do with the person I was living with at the time.” Id. at 14-15; see also Exhibit A
(girlfriend’s negative drug test taken on April 4, 2013). In addition, the individual’s girlfriend
confirmed that the individual “[a]bsolutely” does not associate with people who use illegal drugs.
Id. at 13.
Finally, the statements of the individual in his March 2012 PSI indicate that he was surprised to
learn that the term “involvement with any illegal drug” in the Security Acknowledgment that he
signed in November 2011 was meant to include the use of illegal drugs by those with whom the
individual associated. Exhibit 7 at 51. He testified at the hearing that “it hadn't entered my mind
that my involvement included whether or not people I knew were involved,” and that he did not
recall anyone explaining this to him prior to the March 2012 PSI. Tr. at 56-57. The individual’s
testimony as to his understanding is credible, particularly given that the form in question does not
explain or define what is meant by “involvement” with illegal drugs. Exhibit 4. Equally credible is
the individual’s testimony as to his current understanding that “I am not permitted to associate with
persons who are involved with illegal activity of any kind, and this is to include their use of
marijuana or other illegal drugs.” Id. at 62.
V. CONCLUSION
The record in this case clearly supports a finding that the individual no longer associates with
persons who use illegal drugs or engage in any other illegal activity. Nor is there any basis in the
record for a concern that the individual will have such associations in the future. As such, I find that
the individual had amply resolved the DOE’s security concerns under Criterion L. Therefore, the
individual has demonstrated that granting him access authorization would not endanger the common
defense and would be clearly consistent with the national interest. Accordingly, I find that the DOE
should grant the individual a security clearance. 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: May 22, 2013