PSH-14-0003

United States Department of Energy
Office of Hearings and Appeals
In the Matter of Personnel Security Hearing )
)
Filing Date: January 15, 2014 ) Case No.: PSH-14-0003
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_________________________________________ )
Issued: On April 30, 2014
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of xxxxxxxxxxxxxxxxx (hereinafter referred to as “the
individual”) to hold an access authorization 1 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 September 10, 2013, the individual used one pill of his wife’s
prescription Oxycodone to address pain associated with a hernia and kidney stones. He
subsequently self-reported this incident to DOE. Because this incident raised security concerns,
the local security office (LSO) summoned the individual for a Personnel Security Interview (PSI)
in October 2013.
On December 12, 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
hold an access authorization. In an attachment to the Notification Letter, the LSO explained that
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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the derogatory information fell within the purview of 50 U.S.C. § 435c (the Bond Amendment)
and one potentially disqualifying criterion set forth in the security regulations at 10 C.F.R.
§ 710.8, subsections (k) (Criterion K).
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 Administrative Judge in this case. At the hearing, the
individual presented his own testimony and that of five witnesses, including his supervisor, three
colleagues 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 Criterion K.
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, Oxycodone, on September 10,
2013.2
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 despite being told by a nurse practitioner to use Tylenol for his pain
associated with a hernia and kidney stones, he elected to use his wife’s prescription Oxycodone
on September 10, 2013. The Notification Letter also states that the individual acknowledged that
he understood it is illegal to use someone else’s prescription medication but did so anyway. See
Infra, Footnote 3.
This derogatory information adequately justifies the DOE’s invocation of Criterion (K), 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).
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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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, an Administrative Judge 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.
Criterion (K) and the Bond Amendment
The Adjudicative Guidelines that pertain to the individual’s improper usage of his wife’s
prescription drug 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.
During the hearing, the individual acknowledged that he took one pill of his wife’s prescription
of Oxycodone on September 10, 2013. Transcript of Hearing (Tr). at 106. According to the
individual, on September 5, 2013, he began to experience significant pain in his lower abdomen.
Id. at 99. By the next day, the individual was in excruciating pain and on September 7, 2013, he
visited an urgent care facility where he was diagnosed as having a hernia and kidney stones. Id.
The individual testified that he was told to take Tylenol for the pain and that no other medication
was prescribed. Id. Doctors at the urgent care facility advised the individual to follow up with
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an ultrasound evaluation on the following Monday. Prior to leaving for his appointment on
Monday, the individual testified that his wife expressed concern for him because he was in a
great deal of pain. She gave the individual her bottle of prescription Oxycodone. According to
the individual, after his appointment on Monday, he did not feel well, but managed to drive a
number of hours to work for a late afternoon meeting. Id. at 100. The individual further testified
that once he arrived at work he was still in excruciating pain, although he had taken Tylenol. At
noon, he decided to take one of his wife’s prescription pills to help with his pain and so that he
could continue his work day. Id. at 106. The individual explained that after the pill began to
relieve his pain, he went to talk to a co-worker who had previously expressed her concern about
his hernia pain. Id. He told his co-worker that he felt better and showed her the bottle of what
he had taken. Id. at 109. The co-worker looked at the bottle, noticed the individual’s wife’s
name on it and asked the individual if the medication was his wife’s prescription. When the
individual told the co-worker that the medication was that of his wife’s, the co-worker informed
him that his use had to be reported to his employer.
The individual testified that he immediately self-reported his one-time use of his wife’s
prescription Oxycodone. He stated that he was surprised and did not know that his use of his
wife’s medication was a reportable offense, although he acknowledged that he had taken a
security training. Id. at 107 and 124. The individual further testified that he did not know that
the use of his wife’s medication was illegal and reiterated that he was unaware of the serious
nature of his action, also adding that he did not know that Oxycodone is on the Controlled
Substance list. Id. at 11l and 112. 3 He stated that now that he is aware that it is illegal, he will
never take anyone’s prescription medication again. Id. at 111. The individual further testified
that the day after he reported the use of his wife’s prescription, he visited his doctor who
confirmed that he had a hernia and kidney stones. He was prescribed ibuprofen for the pain and
he had surgery about three weeks later. Id. at 116. After the surgery, the individual’s doctor
prescribed Oxycodone to help with the pain. Id. at 117. The individual testified that he has
never exceeded his doctor’s recommended dosage of the medication, nor has he ever used the
medication recreationally. Id. at 118. He testified that he has never abused drugs, does not
associate with people who use illegal drugs and is not an addict. Id. at 119. Finally, the
individual reiterated that he will never again take anyone’s prescription medication or any illegal
drug in the future. Id. at 125, Indiv. Exhibit J.
The individual’s testimony was supported by his wife, his direct supervisor, and three colleagues.
His wife corroborated the individual’s testimony that he is not a drug user or an addict. Id. at 18.
She testified that the individual was in excruciating pain when she offered him her prescription
medication. Id. at 15. According to the individual’s wife, her husband did not know it was
illegal to take someone else’s prescription medication, nor did she know it was illegal when she
offered the medication to him. Id. at 17. The individual’s colleague, who informed him of the
3 During the hearing the individual explained that at the time of use, he thought it was “medically unethical” to take
someone else’s medication because of the side effects, but he did not know that it was “illegal” to do so. Id. at 135-
137. While the Notification Letter states that the individual acknowledged during the PSI that he understood that is
illegal to use someone else’s prescription medication and still did so, a review of the PSI and the context of the
question suggests that the individual was stating that he was aware only at the time of the PSI that it was “illegal” to
use the medication and not at the time of use. DOE Exh. 7 at 19. I therefore find the individual’s hearing testimony
to be consistent with his statement during the PSI that he understood, only at the time of his PSI and not at the time
of use, that it was illegal to use someone else’s prescription medication.
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reporting requirement, testified that the individual is an honest and trustworthy individual. Id. at
45. She recalled that the individual came to her office and told her he was feeling better and had
taken some of his wife’s medication. Id. at 47. The individual’s colleague testified that when
she told the individual about his duty to report his use, he was surprised. She stated that she
believed from the individual’s reaction that he was sincere and that he did not know it was illegal
to use his wife’s prescription. Id. at 48. The individual’s colleague believes that the individual
made a mistake and does not believe that the individual is a drug user. Id. at 55. Likewise, the
individual’s supervisor and other two colleagues all testified that the individual is an honest and
trustworthy individual and all believed the individual when he stated that he did not know that
taking someone else’s prescription medication was illegal. Id. at 34, 62 and 77.
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 does not cast
doubt on the individual’s current reliability, trustworthiness, or good judgment. 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 34, 45, 62 and 77 (testimony of the individual’s
wife, supervisor and colleagues). In addition, the individual has demonstrated an intent not to
abuse drugs in the future. During the hearing, the individual testified that he does not associate
with individuals who use illegal drugs. He also testified and signed a statement of intent that he
will never use illegal drugs in the future. Again, in this case, the individual’s behavior occurred
under such unusual circumstances that his behavior is unlikely to recur. Adjudicative Guideline
H at ¶ 26 (a) and (b). 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).
V. Conclusion
I find that no valid security concerns remain regarding the Bond Amendment and Criterion (K).
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
Administrative Judge
Officer of Hearings and Appeals
Date: On April 30, 2014
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