PSH-13-0069

*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 30, 2013 ) Case No.: PSH-13-0069
)
_________________________________________ )
Issued: October 11, 2013
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Hearing Officer Decision
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Kimberly Jenkins-Chapman, Hearing Officer:
This Decision concerns the eligibility of xxxxxxxxxxxxxxxxxxxxx (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 be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. On March 4, 2013, he tested positive for amphetamines during a random
drug test. Because this incident raised security concerns, the local security office (LSO)
summoned the individual for a Personnel Security Interview (PSI) in April 2013.
On April 29, 2013, after reviewing 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
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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hold an access authorization. In an attachment to the Notification Letter, the LSO explained that
the derogatory information fell within the purview of 50 U.S.C. § 435c (the Bond Amendment)
and two potentially disqualifying criteria set forth in the security regulations at 10 C.F.R. §
710.8, subsections (k) and (l) (Criteria K and L, 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 presented his own testimony and that of nine witnesses, including an Employee
Assistance Program (EAP) psychologist, his treating psychotherapist, three managers, a co-
worker, two friends and his wife. The DOE counsel did not present any witnesses. Both the
DOE Counsel and the individual submitted a number of written exhibits prior to 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 the Bond Amendment and Criteria K and L.
The Bond Amendment provides, in pertinent part, that 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. § 435c(b). As support of its invocation of this amendment, the Notification
Letter cites the individual’s misuse of his wife’s prescription drug Adderall, a controlled
substance, on three occasions within the last year.2
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 he unlawfully used his wife’s prescription, Adderall, on three
occasions within the last year and that further, during a random drug test administered on March
4, 2013, he tested positive for amphetamines.
Under Criterion (L), information is derogatory if it tends to show that the individual has engaged
in unusual conduct or is subject to circumstances which tend to show that she is not honest,
reliable or trustworthy; or which furnishes reason to believe that she may be subject to pressure,
coercion, exploitation or duress which may cause her to act contrary to the best interests of
national security. Under this Criterion, the Notification Letter also cites the individual’s
admission that he unlawfully used his wife’s prescription of Adderall.
2 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.
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This derogatory information adequately justifies the DOE’s invocation of Criteria (K) and (L),
and raises significant security concerns. Conduct involving questionable judgment,
untrustworthiness, or unwillingness to abide by rules and regulations could indicate that a person
may not properly safeguard classified information. In addition, improper or illegal involvement
in drugs may also indicate that a person may be unable to safeguard such information. See
Revised Adjudicative Guidelines for Determining Eligibility for Access to Classified Information,
The White House (December 19, 2005), Guidelines H and J (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
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 and that of his witnesses, that this behavior is
unlikely to recur.
Criteria (K) and (L) and the Bond Amendment
The Adjudicative Guidelines that pertain to the individual’s improper usage, on three occasions,
of his wife’s prescription drug 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 H and J.
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During the hearing, the individual acknowledged that he took a portion of his wife’s prescription
of Adderall on three separate occasions between mid-2012 and March 2013. Transcript of
Hearing (Tr). at 178. According to the individual, on the first two occasions, he had been
travelling and returned home exhausted. He testified that he was under a great deal of pressure
to complete his projects at work. The individual’s wife noticed his fatigue and was concerned
about him driving to work in a tired state. He stated that his wife encouraged him to take a small
portion of her prescription Adderall to address his fatigue. Similarly, on the third occasion, the
individual testified that he had just returned home from a four-day ski trip, was exhausted and
needed to prepare for several significant projects at work. Id. at 196 and 197. On all three
occasions, the individual states that when he took a small portion of his wife’s prescription
Adderall, he did not know it was illegal or that it violated the conditions of his security
clearance. The individual stated that on the occasions he took his wife’s Adderall, he did not
experience any negative effects and that the effect was almost identical to drinking coffee,
without experiencing “jitters.” He further testified that he now has his own prescription, five
milligrams, of Adderall, the lowest dosage, because his doctor believes that he could have
Attention Deficit Hyperactivity Disorder (ADHD). Id. at 177. However, he has not taken it nor
does he anticipate taking it in the future. He noted that he has never had any cravings for
Adderall, nor has he developed a dependence on the medication. Id. at 179.
The individual reiterated that he did not know that it was illegal to use his wife’s prescription
medication and testified that he has no memory of receiving written or oral training on illegal use
of prescription medication. Id. at 185. He stated that when he took a random drug test in March
2013, it did not “register” with him that he would test positive or that his wife’s medication was
an amphetamine. He stated that all of his family, friends and co-workers know about the positive
drug test and that he is not subject to coercion or blackmail. Id. at 186. The individual indicated
at the hearing that, other than the three occasions at issue, he has never used illegal drugs or
misused prescription drugs. 3 With respect to his future intentions, the individual testified that he
will never use another person’s prescription medication or any illegal drug in the future. Id. at
177.
The individual’s testimony was supported by that of his wife, an EAP psychologist, and his
psychotherapist. His wife corroborated the individual’s testimony that he took a portion of her
prescription medication on three separate occasions. Id. at 73. She has been prescribed Adderall
for about eight years for adult ADHD. Id. at 72. The wife described the circumstances
surrounding the individual’s use of her medication. She testified that she offered the individual a
portion her medication on three separate occasions when she noticed that he was “extremely
tired,” and suggested that he take the medication so that he could stay awake while driving. Id.
at 75. Specifically, the individual’s wife stated that on each occasion, she opened one of her
medication capsules and poured about a quarter of the “beads” or about 20 milligrams into the
individual’s hand. Id. at 76 and 77. She testified that after the individual took the medication, he
told her that he felt more alert. Id. at 78. The individual’s wife asserted that she is not aware of
any other time when her husband has taken her prescription medication, stating that he does not
have a drug habit or use illegal drugs. Id. at 82. She testified that her husband usually drinks
coffee to stay alert, but stopped drinking it because it made him go to the bathroom frequently.
Id. at 83. She indicated that during the time period her husband used some of her medication, he
3 The individual testified that he experimented with marijuana in his teen years. Id. at 181.
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was not drinking coffee. Id. The individual’s wife further asserted that neither she nor her
husband knew that it was illegal to take someone else’s prescription medication. She added that
she only gave her husband a very small amount of one capsule of medication on each occasion
because she needs her full dose to address her ADHD symptoms. Id. at 86.
The EAP psychologist who monitored the individual’s rehabilitation and compliance with the
agreement the individual made with his employer following his positive drug test in March 2013,
testified that the individual does not meet the definition of an addict and does not have a
substance abuse problem. Id. at 43. She testified that after assessing the individual, she
determined that he only needed the lowest level of treatment which consists primarily of
increasing his knowledge and understanding of his behavior. Id. at 44. She believes the
individual’s misuse of his wife’s medication was incidental and that he did not know that his use
was illegal. The EAP psychologist further testified that the individual is very reliable and
possesses high accountability. Likewise, the individual’s psychotherapist4, who has been
treating the individual on a weekly basis since his positive drug test and was referred by the EAP
psychologist, testified that she conducted an evaluation of the individual which included
psychological testing. She determined that the individual is not an addict or a substance abuser.
Id. at 109. The psychotherapist believes the individual is fully invested in understanding what he
did and that he will never misuse medication again. She testified that the individual’s prognosis
is excellent for not abusing drugs in the future. She stated that she continues to treat the
individual for stress and anxiety. Id. at 110.
Considering these facts, I conclude that the individual’s use of his wife’s prescription 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, for the same reasons, that the individual is not
“an unlawful user of a controlled substance or an addict,” within the meaning of the Bond
Amendment. See id.; Personnel Security Hearing, Case No. TSO-0938 (2010).
Similarly, the concerns raised under Criterion L are each tied to the individual’s improper use of
his wife’s prescription medication on three occasions which, as noted above, occurred under
unusual circumstances unlikely to recur in the future. There is ample evidence in the record
establishing that the individual is a very honest, reliable, and trustworthy person, both
professionally and personally, who can be relied upon to exercise good judgment, and who
follows laws and rules. See, e.g., Tr. at 16, 96, 117 and 131 (testimony of individual’s managers,
co-workers and friends). In addition, the individual testified that he now has his own
prescription for Adderall if he determines that he needs it and has no future intention of ever
using another person’s prescription medication. Again, in this case, the individual is remorseful
for his conduct and his behavior occurred under such unusual circumstances that his behavior is
unlikely to recur. Adjudicative Guideline J at ¶ 32 (a). After considering the “whole person,” I
am convinced that the DOE can rely on the individual’s ability to make sound judgment calls
regarding the safeguarding of classified information. See Adjudicative Guidelines at ¶ (2)a. I
therefore find that the individual has sufficiently mitigated the LSO’s concerns under Criterion
L.
4 The individual’s psychotherapist is a licensed psychologist who has been practicing since 2002. She has met with
the individual for about 20 sessions.
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V. Conclusion
I find that no valid security concerns remain regarding the Bond Amendment and Criteria (K)
and (L). I therefore conclude that the individual has demonstrated that restoring his access
authorization would not endanger the common defense and would be clearly consistent with the
national interest. Accordingly, the individual’s security clearance should be restored. Any party
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: October 11, 2013