PSH-14-0008

*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: February 10, 2014 ) Case No.: PSH-14-0008
____________________________________)
Issued: May 19, 2014
______________________
Administrative Judge Decision
______________________
Shiwali G. Patel, Administrative Judge:
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 not grant the
individual access authorization at this time.2
I. BACKGROUND
The individual is an employee of a contractor and is an applicant for a security clearance. During his
Office of Personnel Management (OPM) background investigation, the individual was summoned
for two interviews (PRSI) with an investigator on July 11, 2012, and January 10, 2013. Based on
information revealed during the background investigation, the Local Security Office (LSO)
determined that there was derogatory information that cast into doubt the individual’s eligibility for
access authorization. The LSO informed the individual of this determination in a letter that set forth
the DOE’s security concerns and the reasons for those concerns. DOE Exhibit (Ex.) 1. The
Notification Letter also informed the individual that he was entitled to a hearing before an
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.
2 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
http://www.energy.gov/oha.
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Administrative Judge 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 the
OHA Director appointed me the Administrative Judge.3 The DOE introduced nine exhibits into the
record of this proceeding (Exs. 1-9). The individual did not introduce any exhibits into the record. At
the hearing, only the individual and one other witness testified. See Transcript of Hearing, Case No.
PSH-14-0008 [hereinafter cited as “Tr.”].
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, 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 and
unfavorable, that has a bearing on the question of whether restoring 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. NOTIFICATION LETTER AND ASSOCIATED SECURITY CONCERNS
The Notification Letter cited information pertaining to subsections (k)4 and (f)5 of the criteria for
eligibility for access to classified matter or special nuclear material set forth at 10 C.F.R. § 710.8,
3 Effective October 1, 2013, the titles of attorneys in the Office of Hearings and Appeals (OHA) changed from Hearing
Officer to Administrative Judge. See 78 Fed. Reg. 52389 (Aug. 23, 2013). The title change was undertaken to bring
OHA Hearing Officers in line with the title used at other federal agencies for officials performing identical or similar
adjudicatory work. See Personnel Security Hearing, Case No. PSH-13-0114 at 1, n.1.
4
Criterion (k) defines as derogatory information when an individual has “[t]rafficked in, sold, transferred, possessed,
used, or experimented with a drug or other substance listed in the Schedule of Controlled Substances established pursuant
to section 202 of the Controlled Substances Act of 1970 (such as marijuana, cocaine, amphetamines, barbiturates,
narcotics, etc.) except as prescribed or administered by a physician licensed to dispense drugs in the practice of medicine,
or as otherwise authorized by Federal law.” 10 C.F.R. § 710.8(k).
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and the Bond Amendment. Ex. 1. The Bond Amendment prohibits federal agencies from granting or
renewing the security clearances of persons who are addicted to, or are unlawful users of, illegal
drugs. Under criterion (k), the LSO cited the following: (1) the individual tested positive for cocaine
during a random urinalysis on April 15, 2012, while working part time at his previous job, and when
he was informed of the drug test results on May 5, 2012, he did not deny using illegal drugs; 2) the
individual possessed a security clearance at the time he tested positive for cocaine and consequently,
his security clearance from his previous job was suspended on June 2, 2012; 3) the individual was
separated from his previous job; and 4) on May 24, 2012, the individual completed his SF-86
(Questionnaire for National Security Positions) for his application for a position with a DOE
contractor, just a month after he tested positive for cocaine. Id. Under criterion (f), the LSO cited
the following misrepresentations by the individual: 1) his failure to report on his SF-86 that he has
used illegal drugs within the last seven years, his outstanding debt and judgment for $1,982.49 for
medical expenses, and his arrest in mid-2005 for pulling a fire alarm at a high school; 2) his failure
to disclose during his July 11, 2012, PRSI that he used illegal drugs and that his security clearance
was suspended by his previous job; 3) his denial of using illegal drugs during his January 10, 2013,
PRSI, and his statement that he was eligible for rehire at his previous job and that his clearance was
ending, even though it was already suspended; and 3) his failure to list his 2005 arrest on the SF-86
that he submitted on May 7, 2009. Id.
The use of illegal drugs raises questions about an individual's reliability, trustworthiness and ability
to protect classified information because it may impair judgment and it demonstrates that a person
may not be willing to comply with laws, rules, and regulations. See Revised Adjudicative Guidelines
for Determining Eligibility for Access to Classified Information, The White House, Guideline H
(December 19, 2005) [hereinafter Adjudicative Guidelines]. The failure to provide truthful and
candid answers during a security clearance process also raises questions about an individual’s
reliability, trustworthiness and ability to protect classified information. Id., Guideline E. Thus, the
above information adequately justifies the LSO’s invocation of criteria (f) and (k) and the Bond
Amendment, and raises significant security concerns.
IV. FINDINGS OF FACT AND ANALYSIS
A. Criterion (k) and the Bond Amendment
The individual is 26 years old, and received a clearance for his previous job in May 2009. Three
years later, in March 2012, he began working for a DOE contractor while working part time for his
previous employer. On April 15, 2012, the individual tested positive for cocaine during a random
urinalysis that was given by his previous employer. Ex. 8. When he was informed of the results on
May 5, 2012, he signed a “Statement of Suspect/Witness/Complainant,” with the following
5 Criterion (f) defines as derogatory information when an individual has “[d]eliberately misrepresented, falsified, or
omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive (or 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.” 10 C.F.R. § 710.8(f).
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declaration: “I have been advised that I am suspected of the following offenses: Failed Urinalysis
Drug Test Reduction Program (Cocaine).” Id. On that form, he initialed next to a box indicating that
he was not providing a statement. Id. As set forth above, the individual’s cocaine usage implicates
the Bond Amendment and raises substantial security concerns under criterion (k) and Adjudicative
Guideline H.6
At the hearing, the individual claimed that he never ingested cocaine and that his body building
supplements may have created a false positive on the drug test or that the night before his drug test,
while he was at a bar with his friends, someone may have slipped cocaine into his beverage. Tr. at
24, 67-69. However, the individual did not provide any evidence – through documentation or
witness testimony other than his own – in support of either proposition for why he tested positive for
cocaine. For example, he neither provided the packages containing the supplements to ascertain
whether any of the ingredients in the supplements could have contributed to a false positive for
cocaine, nor presented the testimony of any witnesses to support his claim that he was unknowingly
given cocaine at the bar the night before his drug test. Regarding the possibility that cocaine was
slipped into his drink without his knowledge, the individual testified that when he was the bar, he did
not feel any of the physical symptoms associated with cocaine use, i.e., elevated mood, high energy,
feeling “high.” Tr. at 69.
Furthermore, at the hearing, the individual did not dispute signing the “Statement of
Suspect/Witness/Complainant” on May 5, 2012, informing him that he tested positive for cocaine.
Ex. 7; Tr. at 33-34. Yet, during his PRSI on January 10, 2013, the individual stated that he was not
informed of what narcotic for which he tested positive. Ex. 4 (Dec. 19, 2012 – Jan. 11, 2013
Investigation) at 2. In addition, the individual testified that when confronted about the urinalysis
results, he disputed the results, claiming that he never ingested cocaine. Tr. at 21. On the other hand,
he also testified that he did not dispute the drug test results because he was advised not to. Tr. at 30.
Despite his assertions to the contrary, the information gathered during the individual’s background
investigation establishes that he was administratively discharged from his previous job because of his
drug use.7 Nonetheless, the individual claimed that he requested to be discharged during his
background investigation. In consideration of the individual’s inconsistent testimony and statements
at the hearing and his background investigation, and in the absence of corroborating evidence in his
favor, I cannot conclude that he never ingested cocaine, particularly in light of the strong probative
6 Among the conditions listed in the Adjudicative Guidelines ¶ 25 that “could raise a security concern and may be
disqualifying” are 1) any illegal use of a drug; 2) testing positive for illegal drug use; and 3) any illegal drug use after
being granted a security clearance.”
7 The individual’s previous supervisor informed the investigator that in May or June 2012, the individual was
administratively discharged from his job because he tested positive for drugs. Ex. 4 (Jul 11, 2012 – Jul. 24, 2012
Investigation) at 15. The supervisor approached the individual about his positive drug test result, informing him that he
would be administratively discharged as a result of the test results. Id. The investigator’s notes indicate that the
individual apologized to his supervisor for “letting source [supervisor] down” and “did not offer any explanation
regarding his positive urinalysis.” Id. at 16. Another individual, who was also in a supervisory position (“manager”) and a
witness at the hearing, informed the investigator that the individual tested positive for cocaine on a random urinalysis. Id.
(Dec. 13, 2012 – Dec. 18, 2012 Investigation) at 1. The manager told the investigator that on June 2, 2012, the
individual’s security clearance was suspended as a result of the urinalysis. Id. At the hearing, the manager confirmed that
the individual did not dispute the positive drug test results when he was notified of the results. Tr. at 78.
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evidence relied upon by the LSO, namely, the positive urinalysis.
As the individual did not present sufficient evidence, I cannot ascertain how recently or frequently
the individual uses illegal drugs, or whether he associates with anyone who uses illegal drugs.
Adjudicative Guidelines ¶ 26(a) & (b). Similarly, he has not presented any evidence indicating that
the chances of future usage are remote or that he was abstinent for any period of time. Id., ¶ 26(b).
Upon consideration of these factors, and the record as a whole, I must conclude that the individual is
an unlawful user of a controlled substance under the Bond Amendment. Additionally, he has failed
to demonstrate that he mitigated the concerns associated with his drug usage, and therefore, the
security concerns remain under criterion (k).
B. Criterion (f)
The individual’s failure to list his previous arrest, his security clearance suspension, and his
outstanding debt in his SF-86 forms raises serious security concerns under criterion (f) and
Adjudicative Guideline E. At the hearing, the individual admitted that sometime around June 2005,
he was arrested for pulling a fire alarm in his school, pled guilty to that offense and was subsequently
assessed a fine. Tr. at 53-54. His arrest was expunged from his records as it occurred before he
turned 18 years old. However, in the SF-86 that he completed on May 7, 2009 (2009 SF-86), which
was four years after he was arrested, he answered “no” to the question: “Have you ever been arrested
by any police officer, sheriff, marshal, or any other type of law enforcement officer [in the past seven
years?”]. Ex. 5 (emphasis added). The SF-86 also specified that the individual should report the
arrest even if it was expunged from his records. Id. Moreover, in his SF-86 that he completed on
May 24, 2012 (2012 SF-86), just seven years after his arrest, the individual again answered “no” for
that same question. Ex. 3. In addition, the individual failed to list a $1,982.49 judgment for past
medical expenses that was entered on April 16, 2009, on his 2012 SF-86, which asked him to list any
judgment from the previous seven years. Ex. 3. During his PRSI on January 10, 2013, the individual
acknowledged that he was aware of the unpaid medical bill in early 2012 that resulted in the
judgment against him, yet he still failed to list it in his 2012 SF-86. Ex. 4 (Dec. 29, 2012 – Jan. 10,
2013) at 1.
In addition, the individual misrepresented the circumstances regarding his departure from his
previous job. In his 2012 SF-86, he answered “no” when asked whether he ever had a security
clearance denied, suspended or revoked. However, as revealed during his background investigation,
the individual’s security clearance at his previous job was suspended on June 2, 2012. Id. During
his PRSI on July 11, 2012, he failed to disclose that his security clearance was suspended, instead
stating that he left that job on favorable circumstances, and at his PRSI on January 10, 2013, he
stated that he left his previous job for personal reasons, and falsely claimed that he was eligible for
rehire. Id.; Ex. 4 (Jul. 11, 2012 – Jul. 24, 2012). He was also asked during his PRSI whether he left
a job under unfavorable circumstances, and he said no. Ex.4 (Jul. 11, 2012 – Jul. 24, 2012). Yet, the
record clearly demonstrates that he was released from his previous job because of the positive drug
test results. In his 2012 SF-86, the individual further indicated that he never illegally used or
otherwise has been involved with a controlled substance while possessing a security clearance, which
I cannot find honest in light of the results of the urinalysis. Ex. 4 (Dec. 29, 2012 – Jan. 10, 2013) at
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1. Hence, I find that the individual deliberately misrepresented, falsified and omitted significant
information from his personnel security questionnaire and during his background investigation.
At the hearing, the individual acknowledged that he failed to disclose his arrest, security clearance
suspension, outstanding debt and drug test result on his SF-86 forms. He admitted to falsifying his
answer regarding his arrest in his 2007 and 2012 SF-86s, stating that he “didn’t think it would come
up in the investigation,” and that “I guess I figured because it was so long ago, I didn’t think that it
would be an issue or come up.” Tr. at 41, 57. Regarding his failed drug test, he had a similar
response, stating “I didn’t know that it would show up as a failed urinalysis.” Tr. at 42. While he
admitted that his security clearance was suspended because of the drug test and as he signed the
“Statement of Suspect/Witness/Complainant” on May 5, 2012, indicating that he tested positive for
cocaine, he still failed to disclose this information on his 2012 SF-86. Tr. at 44. He also admitted
that he made additional misrepresentations when he told the investigator that he did not have any
problems at his previous job, explaining, “I just – honestly, I just didn’t – I didn’t think that what was
brought to her attention would be brought to her attention, I guess.” Tr. at 48. With regards to the
outstanding debt, the individual stated that he did not list it in his 2012 SF-86 because he did not
know the status of the judgment, stating: “I hadn’t heard anything about it in quite some time,” and
“I guess I kind of knew it was out of sight, out of mind kind of thing.” Tr. at 52. Hence, the
individual repeatedly acknowledged that he failed to disclose information during his background
investigation, even falsifying and deliberately misrepresenting information at times, because he did
not believe that the DOE would later discover this information, which I find particularly troubling.
His misrepresentations were not unintentional or even minor. They were, in fact, deliberately made
to conceal significant information that raised multiple security concerns.
Accordingly, I cannot conclude that the individual has mitigated the concerns associated with
criterion (f). His answers on his personnel security questionnaire and during his background
investigation were deliberately misleading in order to conceal information that he believed would not
be discovered by the DOE. Indeed, he consistently explained that he failed to be honest in his SF-86
regarding his outstanding debt, arrest, drug test result and security clearance suspension because he
did not think those issues “would come up.” Tr. at 60, 61. He now acknowledges that he should
have been forthright, but he never made any good-faith efforts to correct the concealments or
falsification before this proceeding began. Adjudicative Guidelines ¶ 17(a). Moreover, considering
the grave consequences for providing false and misleading answers in the personnel security
questionnaire and during his background investigation, I find that the individual has demonstrated
poor judgment and is unreliable. For all these reasons, I cannot find that the individual has mitigated
the security concerns raised under criterion (f) associated with his lack of honestly, reliability and
trustworthiness.
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 (k) and (f) of the Part 710 regulations.
After considering all the relevant information, favorable and unfavorable, in a comprehensive
common-sense manner, including weighing the testimony and other evidence presented at the
hearing, I have found that the individual has not brought forth sufficient evidence to fully resolve the
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security concerns at issue. I therefore cannot find that granting the individual DOE access
authorization will not endanger the common defense and is clearly consistent with the national
interest. Accordingly, I have determined that the DOE should not grant the individual access
authorization. The parties may seek review of this Decision by an Appeal Panel under the
regulations set forth at 10 C.F.R. § 710.28.
Shiwali G. Patel
Administrative Judge
Office of Hearings and Appeals
Date: May 19, 2014