PSH-14-0067

*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: July 11, 2014 )
) Case No.: PSH-14-0067
__________________________________________)
Issued : September 26, 2014
__________________________
Administrative Judge Decision
__________________________
Wade M. Boswell, Administrative Judge:
This Decision concerns the eligibility of XXXXX (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 at this time.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold
DOE access authorization. As a holder of access authorization, the individual is subject to
periodic reinvestigations to determine his continued eligibility to maintain access
authorization. During the most recent reinvestigation of the individual, information was
received with respect to: inaccurate information on the Questionnaire for National
Security Positions signed and certified by the individual on January 30, 2013 (QNSP);
misuse by the individual of medications prescribed for himself and his spouse; and
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.
2
several financial matters (including non-filing and non-payment of income taxes,
mortgage foreclosures, a vehicle repossession and collection accounts). See Exhibit 1;
Exhibit 3. Upon receipt of this information, the Local Security Office (LSO) conducted a
personnel security interview with the individual on October 31, 2013 (PSI) and the
individual was evaluated by a DOE consulting psychiatrist on January 23, 2014. See
Exhibit 6; Exhibit 4.
On May 30, 2014, the LSO advised the individual in a letter (Notification Letter) that it
possessed reliable information that created substantial doubt regarding his eligibility to
hold a security clearance. In an attachment to the Notification Letter, the LSO explained
that the derogatory information fell within the purview of three potentially disqualifying
criteria set forth in the security regulations at 10 C.F.R. § 710.8, subsection (f), (k), and
(l) (hereinafter referred to as Criterion F, Criterion K and Criterion L, respectively).2 See
Exhibit 1.
Upon his receipt of the Notification Letter, the individual exercised his right under the
Part 710 regulations by requesting an administrative review hearing. See Exhibit 2. The
Director of the Office of Hearings and Appeals (OHA) appointed me the Administrative
Judge in the case and, subsequently, I conducted an administrative hearing in the matter.
At the hearing, the LSO presented no witnesses; the individual presented the testimony of
three witnesses, including that of himself. The LSO introduced seven numbered exhibits
into the record; the individual tendered one lettered exhibit (Exhibit A). The exhibits will
be cited in this Decision as “Ex.” followed by the appropriate numeric or alphabetic
designation. The hearing transcript in the case will be cited as “Tr.” followed by the
relevant page number.3
II. Regulatory Standard
A. Individual’s Burden
A DOE administrative review proceeding under Part 710 is not a criminal matter, where
the government has the burden of proving the defendant guilty beyond a reasonable
doubt. Rather, the standard in this proceeding places the burden on the individual because
it is designed to protect national security interests. This is not an easy burden for the
individual to sustain. The regulatory standard implies that there is a presumption against
granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S.
518, 531 (1988) (“clearly consistent with the national interest” standard for granting
security clearances indicates “that security determinations should err, if they must, on the
side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied,
499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).
2
See Section III below.
3 OHA decisions are available on the OHA website at www.oha.doe.gov. A decision may be accessed by
entering the case number in the search engine at www.oha.gov/search.htm.
3
An individual must come forward with evidence to convince the DOE that granting or
restoring his 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
individual is afforded a full opportunity to present evidence supporting his eligibility for
an access authorization. The Part 710 regulations are drafted so as to permit the
introduction of a very broad range of evidence at personnel security hearings. Even
appropriate hearsay evidence may be admitted. 10 C.F.R. § 710.26(h). Thus, an
individual is afforded the utmost latitude in the presentation of evidence to mitigate the
security concerns at issue.
B. Basis for the Administrative Judge’s Decision
In personnel security cases arising under Part 710, it is my role as the Administrative
Judge to issue a Decision that reflects my comprehensive, common-sense judgment,
made after consideration of all the relevant evidence, favorable and unfavorable, as to
whether the granting or continuation of a person’s access authorization will not endanger
the common defense and security and is clearly consistent with the national interest.
10 C.F.R. § 710.7(a). I am instructed by the regulations to resolve any doubt as to a
person’s access authorization eligibility in favor of the national security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cited three criteria as the basis for suspending the
individual’s security clearance: Criterion F, Criterion K and Criterion L. Criterion F
refers to information that a person has “deliberately misrepresented, falsified, or omitted
significant information from a Personnel Security Questionnaire, a Questionnaire for
Sensitive National Security Positions, a personnel qualifications statements, 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 [Part 710 administrative review] proceedings….” 10 C.F.R. § 710.8(f).
Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to
comply with rules and regulations can raise questions about an individual’s reliability,
trustworthiness, and ability to protect classified information. Any failure to provide
truthful and candid answers during the security clearance process is of particular concern.
See Guideline E of the Revised Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information, issued on December 29, 2005, by the Assistant to the
President for National Security Affairs, The White House (Adjudicative Guidelines).
With respect to Criterion F, the LSO alleges omissions on the individual’s QNSP with
respect to an employment reprimand, misuse of medications prescribed for himself and
his spouse, and the existence of 11 collection accounts. Ex. 1 at 3 – 4.
Criterion K concerns information that a person 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....” 10 C.F.R. § 710.8(k). Use of an illegal drug or misuse of a
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prescription drug raises concerns about an individual’s reliability and trustworthiness, as
well as a person’s ability or willingness to comply with laws, rules and regulations. See
Adjudicative Guidelines at Guideline H. With respect to Criterion K, the LSO relies
upon the individual’s statements during the PSI and the psychiatric evaluation that (1)
from 2008 to May 2013, he misused two controlled substances, Oxycodone and Opana,
by taking larger quantities of such drugs than had been prescribed for him; (2) from 2008
to 2010, he illegally used a controlled substance, Oxycodone, by taking one to two 15
milligram tablets of his wife’s prescription Oxycodone every other month; and (3) in
2008, he illegally used a controlled substance, Lortab, by taking his wife’s prescribed
Lortab on one occasion. Ex. 1 at 4.
Criterion L concerns information that an individual has engaged in conduct “which tends
to show that the individual is not honest, reliable, or trustworthy….” 10 C.F.R. § 710.8(l).
Conduct reflecting questionable judgment, lack of candor, dishonesty, or unwillingness to
comply with rules and regulations raises questions about an “individual’s reliability,
trustworthiness and ability to protect classified information.” Adjudicative Guidelines at
Guideline E. With respect to Criterion L, the LSO alleges that: (1) the individual failed to
file his federal and state income taxes for 2012; (2) he failed to refile his federal income
tax return for 2010 or repay an erroneously claimed tax refund, as requested by the
Internal Revenue Service following a tax audit; (3) he has delinquent debt associated with
a home foreclosure, a vehicle repossession and 12 collection accounts; and (4) he
engaged in criminal conduct by using his spouse’s prescription medications between
2008 and 2010. Ex. 1 at 5 – 6.
In light of the information available to the LSO, the LSO properly invoked Criterion F,
Criterion K and Criterion L.
IV. Findings of Fact
Although the individual expressed some concern that he was misrepresented in some of
the DOE exhibits, the factual occurrences were largely undisputed. See Tr. at 7. In those
areas of disputed facts, I have carefully considered the arguments presented by both the
individual and the LSO in reaching the findings of fact set forth below.
Prescription Drug Use/Misuse. The individual first had knee surgery in approximately
2003; due to complications and additional injuries, he subsequently had multiple
surgeries on both knees, for a total of 11 surgeries over an approximately five-year
period. Ex. 4 at 3. Following his initial knee surgery, he was prescribed opioids for pain.
Tr. at 99. He developed tolerance for the medication and continued to experience pain.
Ex. 4 at 6; Tr. at 50. The dosages prescribed for the individual were within commonly
prescribed amounts for a patient in such circumstances. Ex. 4 at 6.
Between 2008 and May 2013, the individual frequently took larger quantities of the
opioids than prescribed and would finish his prescription prior to the date on which it
could be refilled. Id. at 3; Tr. at 34. At times, the individual experienced withdrawal
symptoms while waiting to re-fill his prescription. Ex. 4 at 3. He discussed his usage
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patterns with his physician, who did not counsel him to change his practice. Ibid.; Tr. at
36, 38 – 39, 46 – 47.
Approximately once every other month during the period between 2008 and 2010, the
individual received one or two 15 milligram tablets of Oxycodone (which was one of the
opioids for which he then had a prescription) from his spouse, who also had a
prescription for Oxycodone. Ex. 6 at 55 – 57. Once in 2008, the individual received
Lortab (which is a controlled substance for which the individual had previously had a
prescription for the management of knee pain) from his spouse, who had a prescription
for Lortab. Id. at 52, 58, 75. He and his spouse separated in 2010 and he has received no
drugs or prescription medications from her since their separation. Id. at 56.
The individual last used prescription opioids in May 2013. Tr. at 50 – 51. Subsequently,
he has used over-the-counter treatments for management of his knee pain and has
declined prescription pain medication when it was offered following a severe injury
resulting from a pit bull bite. Id. at 48, 51. His intent is to not use prescription pain
medication in the future. Id. at 51, 81. The DOE consulting psychiatrist evaluated the
individual in January 2014 and diagnosed the individual with Opioid Dependence in
Early Full Remission, “nearing the point of Sustained Full Remission.”4 Ex. 4 at 7. The
psychiatrist opined that, although the individual had not undergone any formal treatment,
the individual had evidenced adequate reformation of his opioid dependence and did not
have an illness or mental condition which causes or may cause a significant defect in his
judgment or reliability. Id. at 7 – 8.
At the time that the individual received prescription medication from his wife, he was
unaware that it was illegal to do so. Tr. at 32 – 33. At the time of the hearing, he was
unaware that taking his own prescription medication in quantities greater than prescribed
was illegal. Id. at 36, 40. The individual completed and certified his QNSP in January
2013, on which he stated that he had not been involved with a drug or controlled
substance while possessing a security clearance and that he had not intentionally engaged
in the misuse of prescription drugs, regardless of whether prescribed for himself or
someone else. Ex. 5 at 29.
Financial and Income Tax Matters. The individual and his spouse separated in 2010 and
are contesting, between themselves, responsibility for numerous financial accounts. Ex. 6
at 130 – 135, 139; Tr. at 56 – 57, 68 – 71. The individual did not learn of several
liabilities incurred by his wife until after they separated. Id. at 68. The individual stated
that his wife has claimed exclusive rights to the marital home and that he vacated the
property in 2010. Id. at 62 – 65. That property is subject to both first and second
mortgages (aggregate outstanding principal amount of $272,347), is in foreclosure and
presently vacant. Ex. 7 at 5; Tr. at 62 – 66. The individual was at least 60 days in arrears
4 The DOE consulting psychiatrist stated that the individual would be deemed to have achieved “sustained
full remission” when he had been without use or symptoms for one year. Ex. 4 at 7. At the time of the
hearing, the individual had been abstinent from opioids for 15 months; however, there has been no
psychiatric evaluation of the individual subsequent to his completing one year of abstinence. Tr. at 50 – 51.
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on his mortgage payments when he vacated the home and he has made no payments on
his mortgages subsequent to vacating the property. Id. at 64.
In December 2012, the individual realized that he could not afford one of his vehicles and
surrendered it to his lender. Ex. 6 at 121 – 123. At the time, the outstanding balance on
his car loan was $17,874; his lender subsequently sold the vehicle for an amount in
excess of the balance due on the loan and paid the surplus to the individual. Ex. 7 at 7; Tr.
at 66 – 67. The individual had a history of late payments on a second vehicle and, in
November 2013, surrendered it to his lender; the amount due on that car loan and the
status of any liquidation of that vehicle are unknown. Id. at 74 – 78.
The individual has 12 outstanding collection accounts, aggregating $8,153. Ex. 1 at 5 – 6;
Ex. 7. He has made no attempt to contact the creditors or resolve the outstanding
balances, and has no intent to do so until after he and his spouse resolve their financial
differences. Tr. at 73 – 74, 68 – 69. Eleven of these collection accounts were omitted
from his QNSP which he signed and certified in January 2013. See Ex. 5. In completing
his QNSP, he was assisted and advised by a security specialist in the employment of his
employer. Ex. 6 at 134, 139 – 140; Tr. at 41 – 45.
The individual’s federal income tax return for 2010 was audited by the Internal Revenue
Service, which subsequently directed him to return an approximately $16,000 tax refund
that had been paid to him and to refile his 2010 income tax return. Tr. at 58, 60. While
the individual believes his 2010 federal income tax return has been refiled, no
documentation was presented to confirm such filing; no repayment of the excessive
federal tax refund has been made. Id. at 58, 60 – 62. The individual has not filed his
federal or state income tax returns for 2012 or 2013, or requested extension of the filing
deadlines, which have now passed.
Employment Reprimand. The individual received written counseling from his supervisor
on April 13, 2011. Ex. 6 at 30 – 31, 38. This counseling related to attendance and an
“attendance tracking” procedure implemented pursuant to such counseling has been
completed. Id. at 38; Tr. at 18, 31 – 32. On the individual’s January 2013 QNSP, the
individual certified that, in the last seven years, he had not received a written warning,
been officially reprimanded, suspended or disciplined for misconduct in the workplace,
such as a violation of security policy. Ex. 5 at 12.
V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions
tendered in this case and the testimony of the witnesses presented at the hearing. In
resolving the question of the individual’s eligibility for access authorization, I have been
guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c)5 and the Adjudicative
5 Those factors include the following: the nature, extent, and seriousness of the conduct, the circumstances
surrounding the conduct, to include knowledgeable participation, the frequency and recency of the conduct,
the age and maturity at the time of the conduct, the voluntariness of his participation, the absence or
presence of rehabilitation or reformation and other pertinent behavioral changes, the motivation for the
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Guidelines. After due deliberation, I have determined that the individual’s access
authorization should not be restored at this time. I cannot find that restoring the
individual’s DOE security clearance will not endanger the common defense and security
and is clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific
findings that I make in support of this decision are discussed below.
A. Mitigating Evidence
In mitigation of the security concerns relating to the alleged omissions in his QNSP, the
individual testified that (1) with respect to the written counseling that he received from
his supervisor, the individual did not interpret the counseling as a reprimand or the
question on the QNSP as covering the counseling (Tr. at 31 – 32); (2) with respect to
misuse of prescription medication, he did not understand at the time he was misusing the
opioids that it was illegal as he had (or had had) prescriptions for the same drugs (Id. at
32 – 33, 36); and (3) with respect to the collection accounts, the contractor security
specialist who assisted employees in completing their security forms advised him that,
since he had listed so many financial delinquencies, he should omit the balance and he
could discuss them if he was interviewed (Id. at 41 – 45). The individual stated
consistently in both the PSI and his testimony that the person assisting in completing his
QNSP added a note about additional accounts; however, that note does not appear in the
certified copy of the QNSP. Ex. 6 at 134, 139 – 140; Tr. at 44 – 45.
The individual argues that his misuse of prescription opioids, which he did not realize
was illegal at that time, resulted from his addiction to medication that had been
prescribed to assist in the management of pain associated with chronic knee problems and
11 associated surgeries. Ex. 4 at 3. Further, he had tried to discuss the addiction with his
physician without success and his physician was aware of the individual’s pattern of
taking the opioids. Id.; Tr. at 36, 38 – 39, 46 – 47. Since his physician discontinued all
prescribed opioids 15 months prior to the hearing, the individual has used none. Id. at
50 – 51. He now manages his pain through increased endurance and use of over-the-
counter medications. Having previously been addicted to prescription medications, he is
intent on not using prescribed opioids in the future. Id. at 51, 81.
He believes that his spouse, from whom he has been separated for nearly four years,
incurred many of the debts listed in his credit reports without his knowledge. In light of
the legal posture between them, he is unable and unwilling to resolve these matters until
they have legally divided their assets and liabilities as part of a finalized divorce decree.
Id. at 56 – 57; 68 – 73. He is confident that he has the means to satisfy whatever
liabilities are assigned to him as part of the divorce process. Id. at 70.
B. Administrative Judge Evaluation of Evidence
conduct, the potential for pressure, coercion, exploitation, or duress, the likelihood of continuation or
recurrence, and other relevant and material factors.
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Omissions from QNSP. To constitute a security concern under Criterion F, the individual
must have “deliberately misrepresented, falsified or omitted significant information”
from his QNSP. 10 C.F.R. § 710.8(f) (emphasis added); PSH-14-0015 at 5. The specific
concern raised in the Notification Letter is that the individual answered “no” to a question
about his present employment that asked: “have you received a written warning, been
officially reprimanded, suspended, or disciplined for misconduct in the workplace, such
as a violation of security policy.” Ex. 5 at 12. The individual acknowledges receiving
written counseling from his supervisor in April 2011 relating to an attendance matter and
has candidly discussed the details of that counseling both during the PSI and the hearing.
The individual credibly testified that he did not knowingly omit the counseling from his
QNSP response, but that he did not believe it was a reprimand or was covered by the
scope of the question asked on the QNSP. Tr. at 31 – 32. In light of the individual’s
understanding of the question when he was completing the QNSP, arising potentially
from differences in the terminology used by his employer and that used on the QNSP, the
individual’s omission of the written counseling from his QNSP lacked deliberativeness to
mislead the government. I find that the individual has mitigated the Criterion F security
concerns with respect to the omission of his written counseling from this QNSP.
With respect to the individual’s use of his spouse’s prescription medications, the
individual credibly testified that, at the time he took his spouse’s medications, he did not
realize that it was illegal to do so. Id. at 32. He further testified that, by the time that he
certified his QNSP in January 2013, he understood that taking someone else’s
prescription medication was illegal and he can only explain his failure to disclose it as an
oversight on his part. Id. at 38 –39. While the individual was undeniably careless in
completing his QNSP with respect to his misuse of another person’s prescription drugs,
carelessness is insufficient to constitute a Criterion F security concern in the absence of a
deliberate attempt to mislead the government about relevant, significant information. The
individual’s characterization of the omission as an “oversight” is reinforced by his candor
during the PSI and the hearing in discussing his opioid use and addiction. The
individual’s omission of his use of his spouse’s prescription medication lacked the
deliberativeness required to constitute a security concern under Criterion F and,
therefore, I find that the individual has mitigated the Criterion F security concerns with
respect to such omission from this QNSP.
During the individual’s testimony, he seemed genuinely mystified that taking his own
prescribed medications in different quantities than prescribed was inappropriate or illegal.
Id. at 36. He repeated during his testimony that he discussed such practice with his
physician who never advised that he should discontinue the practice. Ex. 4 at 3; Tr. at 36,
38 – 39, 46 – 47. While such confusion may raise concerns about an individual’s
reliability and trustworthiness under Criterion L, those are not enumerated factors under
Criterion F. In addition to the individual’s confusion, I again note his candor in disclosing
information about his opioid use and addiction once he became aware that it was relevant
to the reinvestigation; such candor is inconsistent with having deliberately attempted to
deceive the government during the reinvestigation process. Cf. Adjudicative Guidelines at
Guideline E ¶ 17(a). I find that the individual has mitigated the Criterion F security
concerns with respect to the omission of his misuse of opioids prescribed for him.
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The individual acknowledges that he failed to disclose 11 collection accounts, which
aggregated $4,275. He stated that the contractor security specialist who assisted him and
other contractor personnel in completing their security questionnaires advised him that, in
light of his other disclosed financial delinquencies, he could explain the remaining
accounts if he was called for an interview. Tr. at 41 – 43. He also recalled that the advisor
included a note on the QNSP to that effect, although such annotation does not appear in
the final certified version. Id. at 44 – 45. His testimony on this point was credible and
consistent with his responses during the PSI ten months earlier. See Ex. 6 at 134,
139 – 140. His testimony is also consistent with his having disclosed his larger financial
delinquencies in the QNSP. He disclosed his 2010 federal tax delinquency of $16,254; a
$16,000 credit card debt that had been delinquent and paid following a notice of intent to
garnish; a delinquent credit card in the amount of $3,878; foreclosure proceedings on is
first mortgage in the amount of $280,000; and voluntary surrender of a vehicle that had
an outstanding balance of $17,621. Ex. 5 at 33 – 34, 36 – 38. In light of the disclosure
made on the QNSP, it is unlikely that he was trying to deceive the government about the
state of his finances by omitting collection debt aggregating $4,275. While the omissions
were deliberate, they were made in reliance upon guidance from his employer’s
personnel security specialist who assists and advises employees in completing their
security questionnaires. Under the Adjudicative Guidelines, security concerns arising
from such omissions are subject to mitigation where omissions result from following the
improper advice of authorized personnel advising an individual about the security
clearance process. Adjudicative Guidelines at Guideline E ¶ 17(b). I find the individual
has sufficiently mitigated the Criterion F security concerns arising from his omission of
collection accounts from his QNSP.
Prescription Drug Use/Misuse. The individual disclosed during the re-investigation
process that between 2008 and May 2013 he misused Oxycodone and Opana, two
medications for which he had a prescription, by taking the drugs in different quantities
than prescribed. Ex. 6 at 52 – 55. He stated that Oxycodone is a fast acting, short term
pain medication that he would take in larger quantities than prescribed early in his
prescription cycle and, if he was running out of Oxycodone as he neared the date on
which he could re-fill the prescription, he would increase his use of Opana, a slower
acting, longer term pain medication. Id. at 27 – 29, 60, 79. He also disclosed that once in
2008 he used his spouse’s prescription Lortab (a drug that had been previously prescribed
for him), and that from 2008 to 2010 he took one to two of his spouse’s prescription 15
milligram Oxycodone tablets about every other month (a drug for which he also had a
prescription at that time).6 Id. at 52, 55 – 58, 75, 77 – 78.
6 The Notification Letter also states that the individual “admitted he knew [taking his spouse’s prescription
drugs] was illegal.” Ex. 1 at 4, 6. The strongest support for this admission is in the DOE psychiatrist’s
written evaluation; however, the section of the psychiatrist’s evaluation cited by the LSO is the
psychiatrist’s summary of the written materials submitted to him by the LSO, not the psychiatrist’s
interview with the individual. See Ex. 4 at 3. The other source cited by the LSO to support this admission is
the PSI where the individual was asked directly if he was aware of the illegality of taking his spouse’s
prescription medication and responded “Um, I guess.” Ex. 6 at 78. In light of the lack of specificity of the
individual’s response, I cannot reach the conclusion that the individual acknowledged that he was aware of
the illegality of his actions contemporaneously with those actions. Further, he credibly testimony that his
comment during the PSI was intended to acknowledge that at the time of the PSI he was aware of the
illegality of such behavior. Tr. at 54.
10
Such misuse of prescription drugs explicitly raises a security concern under Criterion K.
10 C.F.R. § 710.8 (k). The individual began using these drugs when they were prescribed
for pain in the course of his having 11 surgical procedures on his knees over a five-year
period of time. Ex. 4 at 3. He received these medications through only one physician, to
whom he disclosed his usage patterns. Ex. 6 at 77; Ex. 4 at 3; Tr. at 36, 38 – 39, 46 – 47.
The DOE psychiatrist opined in his evaluation that “These medications were prescribed
for a legitimate medical purpose but [the individual] developed a physical dependence.
This is not an unusual occurrence.” Ex. 4 at 6. The DOE psychiatrist further noted that
the individual “was not using these in an abusive manner for a ‘high’ but rather for
purposes of pain control and developed a rapid tolerance towards these.” Id. at 7.
The individual discontinued use of opioids in May 2013 and has subsequently declined
similar medication when offered prescriptions (e.g., following a severe dog bite). He is
now managing pain through increased tolerance of such pain or over-the-counter
medications. Tr. at 48, 50 – 51. The DOE psychiatrist diagnosed the individual with
Opioid Dependence in Early Full Remission, nearing the point of Sustained Full
Remission, with adequate evidence of reformation and made no recommendations for
further treatment or abstinence to evidence rehabilitation or reformation. Ex. 4 at 7 – 8.
Under these circumstances, the individual has adequately mitigated the security concerns
arising from his misuse of prescription drugs. See Adjudicative Guidelines at Guideline H
¶ 26(c) (security concern arising from abuse of prescription drugs can be mitigation if
such abuse occurred after a severe or prolonged illness during which the drugs were
prescribed and the abuse has since ended).
The LSO also cited the individual’s use of his wife’s prescription drugs between 2008
and 2010 as criminal conduct disqualifying under Criterion L. See Ex. 1 at 6. The LSO
cited no other criminal conduct by the individual. As previously noted, the individual has
acknowledged such conduct and candidly discussed his behavior both during the PSI and
the hearing. He credibly testified that at the time he used his wife’s prescription drugs, he
was unaware that it was illegal. Tr. at 34 – 35. At the time, he was addicted to pain
medication following his prolonged treatment for knee pain and numerous associated
surgeries. Ex. 4 at 3. The DOE consulting psychiatrist has concluded that the individual
evidenced adequate reformation of his opioid dependence. Id. at 7. In light of these
factors, the individual has sufficiently mitigated the Criterion L security concerns arising
from his illegal use of his wife’s prescription medications. See Adjudicative Guidelines at
Guideline J at ¶ 32(a) (security concern arising from drug involvement can be mitigated
where such behavior happened so long ago or under such circumstances that it is unlikely
to recur).
Financial Matters. The individual acknowledges that his finances are in disarray and
attributes this disarray to liabilities incurred by his spouse from whom he has been
separated for four years and is seeking a divorce. He has expressed that he is either
unable or unwilling to resolve these outstanding financial matters until completion of the
legal proceedings between him and his spouse, at which time he believes these matters
will be legally allocated between him and his spouse. Tr. at 56 – 57; 68 – 73.
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Notwithstanding the individual’s view that these matters cannot be resolved prior to the
legal dissolution of his marriage, I cannot agree. There is no moratorium on financial
responsibility when a couple decides to divorce. Even during the pendency of a divorce,
creditors have the right to expect that debtors will continue to honor their obligations and
the DOE has the right to expect that holders of access authorization will exercise
appropriate trustworthiness, judgment and reliability in discharging their financial
obligations so as not to create security vulnerabilities.
The individual’s argument ignores his personal role and responsibility for these financial
matters. He has not filed federal or state incomes taxes for 2012 or 2013,7 or requested
extensions with respect to such years. Id. at 55 – 57, 59. He received an excessive federal
tax refund for 2010 (approximately $16,000) and has not complied with requests from the
Internal Revenue Service to repay the tax refund. Id. at 58, 60 – 62. While his situation
may be complicated by the pending dissolution of his marriage, these are clear violations
of tax laws, for which the individual offered no credible explanation. Failure to comply
with laws creates security concerns as it raises concerns about selective compliance with
security regulations. See Adjudicative Guidelines at Guideline J ¶ 30.
With respect to his former home which is in foreclosure, he argued that his wife through
her lawyer had claim exclusive rights to the house and had failed to maintain the
mortgage subsequently. Tr. at 62 – 63. No evidence was submitted with respect any
novation of the mortgages which would relieve the individual of financial responsibility
thereon and the individual acknowledged that both he and his wife were still legally liable
for the mortgages. Id. at 64. Further, the mortgages were 60 days delinquent at the time
the individual vacated the home, his wife having previously vacated. Id. at 64 – 65.
The individual acknowledges making no attempt to contact or resolve financial matters
subsequent their being raised by the LSO and offered no explanation other than waiting
for legal resolution of his marriage dispute. Id. at 74. Such explanation does not address
the financial delinquencies that he acknowledges existed prior to his separation from his
wife and does not mitigate the Criterion L security concerns arising from his delinquent
and collection debt. It also does not address the failure to pay certain collection accounts,
such the veterinarian bill for pet care incurred prior to his separation from his wife. Id. at
71 – 72. Additionally, the individual has “turned in” to lenders two different vehicles
within an 11-month period after deciding that those purchases had been imprudent and, at
least in one case, that the loan payments no longer were within his financial means. Id. at
66 – 67, 74 – 78. While such acts may have avoided a technical “repossession,”
surrendering collateral does not constitute fulfillment of one’s financial obligations under
a loan agreement.
The individual’s inability or unwillingness to pay his debts in a timely manner
demonstrates financial irresponsibility, which is a disqualifying security concern under
Criterion L. See Adjudicative Guidelines, Guideline F ¶ 19(a). On the evidence presented,
7 The Notification Letter referenced the individual’s non-filing of income tax returns for 2012 ; however,
during testimony the individual acknowledged his failure to file, or request extensions, with respect to his
2013 income tax returns. Tr. at 56 – 57, 59.
12
the individual has demonstrated a clear, consistent and sustained pattern of financial
irresponsibility. The evidence does not support that the individual has reformed his
pattern of financial irresponsibility. Cf. Adjudicative Guidelines, Guideline F ¶ 20(a)
(mitigation possible if the behavior happened so long ago, was so infrequent or occurred
under such circumstances that it is unlikely to recur).
In prior cases involving financial irresponsibility, Administrative Judges have held that
“[o]nce an individual has demonstrated a pattern of financial irresponsibility, he or she
must demonstrate a new, sustained pattern of financial responsibility for a period of time
that is sufficient to demonstrate that a recurrence of the past pattern is unlikely.” See
Personnel Security Hearing, Case No. PSH-13-0046 (2013); Personnel Security Hearing,
Case No. PSH-12-0103 (2012); Personnel Security Hearing, Case No. PSH-11-0015
(2011); Personnel Security Hearing, Case No. TSO-1078 (2011); Personnel Security
Hearing, Case No. TSO-1048 (2011); Personnel Security Hearing, Case No. TSO-0878
(2010); Personnel Security Hearing, Case No. TSO-0746 (2009). As of the date of the
hearing, any period of reformation has yet to commence as the individual’s pattern of
financial irresponsibility continues unabated.
Based on the foregoing, I find that the individual has not mitigated the security concerns
associated with Criterion L arising from his tax and financial matters.
V. Conclusion
In the above analysis, I have found that the individual has sufficiently mitigated the
security concerns arising under Criterion F, Criterion K and certain of the matters alleged
with respect to Criterion L. Notwithstanding the foregoing, other derogatory information
in the possession of the DOE raises additional security concerns under Criterion L and,
after considering all 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 have found that the individual has not brought forth
sufficient evidence to mitigate all these security concerns. Accordingly, I have
determined that the individual’s access authorization should not be restored at this time.
The parties may seek review of this Decision by an Appeal Panel under the regulations
set forth at 10 C.F.R. § 710.28.
Wade M. Boswell
Administrative Judge
Office of Hearings and Appeals
Date: September 26, 2014