PSH-14-0087

*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: September 16, 2014 ) Case No.: PSH-14-0087
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Issued: December 2, 2014
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Administrative Judge Decision
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Robert B. Palmer, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (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 individual
should not be granted a security clearance at this time. 2
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
1An 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
also be referred to in this Decision as a security clearance.
2 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA
website located at http://www.oha.doe.gov . The text of a cited decision may be accessed by
entering the case number of the decision in the search engine located at
http://www.oha.doe.gov/search.htm.
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The following facts are undisputed. In 1990, the individual was arrested as a result of a joint
“reverse sting” operation by state law enforcement and Drug Enforcement Administration
officials, and was charged with, and subsequently convicted of, Marijuana Trafficking and Using
and Carrying a Firearm While Drug Trafficking. DOE Exhibit (DOE Ex.) 7 at 22, 25. After
being convicted of these offenses and just prior to his incarceration, the individual was arrested
for DUI after attending a “going away” party in 1992. Id. at 85. The individual was imprisoned
as a result of his drug and firearm convictions from October 1992 to December 1997. In 2008,
the individual tested positive for marijuana usage on a drug screening administered by his
employer, and was fired. Id. at 52-54.
B. Procedural Background
A subsequent employer, a DOE contractor, requested a security clearance on the individual’s
behalf. During the ensuing background investigation, the individual disclosed the above
information about his incarceration, and the local security office determined that it raised valid
and significant security concerns. In an attempt to resolve those concerns, the LSO summoned
the individual for an interview with a personnel security specialist in March 2014. After this
Personnel Security Interview (PSI) failed to resolve the concerns, the LSO determined that the
individual was subject to the provisions of 50 U.S.C. § 3343, hereinafter referred to as “the Bond
Amendment” or “the Amendment.”
The Bond Amendment states, in pertinent part, that a federal agency may not grant or renew a
security clearance for a “covered person” who has been convicted of a crime, was sentenced to a
term of imprisonment of more than one year for that crime, and was incarcerated as a result of
that sentence for not less than one year. 50 U.S.C. § 3343(c)(1)(A). The Amendment further
provides for the granting of a “meritorious waiver” in appropriate circumstances.
50 U.S.C. § 3343(c)(2). A meritorious waiver was denied by the DOE’s Office of Departmental
Personnel Security on April 28, 2014, and the LSO initiated this Administrative Review by
issuing to the individual a letter that set forth the DOE’s security concerns and the reasons for
those concerns. See DOE Order 472.2, Appendix E. I will hereinafter refer to this letter as the
Notification Letter. The Notification Letter also informed the individual that he was entitled to a
hearing before an Administrative Judge in order to resolve the substantial doubt concerning his
eligibility for access authorization.
The individual requested a hearing on this matter. The LSO forwarded this request to the Office
of Hearings and Appeals, and I was appointed the Administrative Judge. The DOE introduced
eight exhibits into the record of this proceeding. The individual introduced 20 exhibits and
presented the testimony of two witnesses, in addition to testifying on his own behalf.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the LSO concluded in the Notification Letter that derogatory information
exists that creates a substantial doubt as to the individual’s eligibility to hold a security clearance.
That information pertains to the Bond Amendment and to the information about the individual’s
convictions and incarceration outlined above.
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This circumstance adequately justifies the DOE’s invocation of the Bond Amendment, and it
raises significant security concerns. Illegal activity, by its very nature, calls into question a
person’s ability or willingness to comply with laws, rules and regulations, and creates doubt
about his or her judgment, reliability and trustworthiness. See Revised Adjudicative Guidelines
for Determining Eligibility for Access to Classified Information, The White House (December 19,
2005), (Adjudicative Guidelines), Guideline J.
III. STATUTORY AND REGULATORY STANDARDS
In making a determination as to an individual’s eligibility for access authorization, the
Adjudicative Guidelines require me to undertake a careful review of all of the relevant facts and
circumstances, and make a “common-sense judgment” based on a consideration of the “whole
person.” Adjudicative Guidelines, ¶ 2(c). 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 national security concerns, including 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. Id. at ¶ 2(a).
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 “is clearly consistent with the interests of
national security.” Adjudicative Guidelines, ¶ 2(c). See Personnel Security Hearing, Case No.
VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed by OSA, 1996), and cases cited therein.
The Adjudicative Guidelines further instruct me to resolve any doubts concerning the
individual’s eligibility for access authorization in favor of the national security. Id. at ¶ 2(b).
IV. ANALYSIS
As noted above, Adjudicative Guideline J concerns criminal conduct on the part of security
clearance holders and applicants. That Guideline sets forth potentially disqualifying and
mitigating conditions that I must consider in determining whether the individual has successfully
mitigated the security concerns outlined in the Notification Letter. Adjudicative Guideline J, ¶ 31
and ¶ 32.
Of the five potentially disqualifying conditions listed, I find two to be applicable to the
individual. First, the individual committed “a single serious offense or multiple lesser offenses.”
Id. at ¶ 31(a). In fact, the record indicates that the individual committed multiple serious
offenses. During his March 2014 PSI, the individual provided further information about the
criminal conduct that led up to his 1990 arrest. He admitted that, from 1987 to 1990, he
supported himself and his wife by selling marijuana, making enough to pay his bills and to buy
“a couple” of racehorses. DOE Exhibit (DOE Ex.) 7 at 26. He started out by selling all of the
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marijuana produced from a field of the drug for a friend. Id. at 24. Consequently, he engaged in a
series of significant criminal acts during this period, in addition to the crimes for which he was
arrested. Furthermore, he was arrested for Driving Under the Influence in 1992 after becoming
intoxicated at a “going away” party just before his imprisonment. Id. at 85.
The second potentially disqualifying factor is an “admission of criminal conduct, regardless of
whether the person was formally charged, formally prosecuted, or convicted.” Adjudicative
Guideline J, ¶ 31(c). The individual has admitted to an extensive history of illegal drug usage,
culminating in a 2008 incident during which he smoked marijuana, tested positive on a drug
screening administered by his employer, and was fired. DOE Ex. 7 at 10-22; 52-54.
I also conclude that two of the four mitigating factors set forth under Adjudicative Guideline J
are applicable in this case. The first is that “so much time has passed since the criminal behavior
happened, . . . that it is unlikely to recur . . . .” Adjudicative Guideline J at ¶ 32(a). There is no
indication in the record that the individual has engaged in drug trafficking or the illegal
possession of a firearm since his arrest in 1990. There is also no evidence of the individual being
arrested subsequent to his 1992 DUI, a period of approximately 22 years. However, the
mitigating value of these circumstances is significantly lessened by the fact that the individual
engaged in illegal conduct and violated his employer’s drug usage policy when he tested positive
for marijuana usage in 2008. Nevertheless, there is no other evidence in the record of significant
illegal activity on the part of the individual since his 1992 DUI. The passage of time is a
mitigating factor in this case.
The second applicable mitigating factor is that “there is evidence of successful rehabilitation;
including but not limited to the passage of time without recurrence of criminal activity, remorse
or restitution, job training or higher education, good employment record, or constructive
community involvement.” Id. at ¶ 32(d). The testimony and evidence offered by the individual at
the hearing was primarily designed to demonstrate that he has been successfully rehabilitated.
The individual testified that he was very unhappy just prior to his 1990 arrest because he realized
that his behavior at that time could only produce two possible outcomes, death or imprisonment,
and that he was actually relieved when he got arrested. Hearing transcript (Tr.) at 35-36. During
his time in prison, he added, he decided that his old life was over, and that he was going to focus
on what he needed to do to “make a clean, new life happen.” Tr. at 35. Towards that end, he
“really got healthy physically,” and increased his involvement in religion. Tr. at 36. After his
release in 1997, he completed a drug rehabilitation program. Tr. at 40-41. He continued that he
has not been arrested since his release. Tr. at 41.
The individual then discussed his 2008 marijuana usage that resulted in a positive drug test and
loss of his employment. He explained that he was emotionally distraught because his father had
recently been diagnosed with stage three lung cancer, and because his son had run away from
home. Tr. at 42-43. One evening, he was in the back lot behind his house, and his next door
neighbor was in his backyard smoking marijuana. The neighbor came up to the fence and the two
started talking, and the individual asked the neighbor if he could share the marijuana cigarette
with him. Tr. at 43; DOE Ex. 7 at 52. The neighbor acquiesced, and the individual took “a few
hits off of it.” Tr. at 43. Shortly thereafter, the individual was tested for illegal drug usage, and
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the test results came back positive for marijuana. The individual added that he had not used
illegal drugs since before his 1990 arrest, and that he has not used illegal drugs since 2008. Tr. at
44.
Regarding his current employment, the individual testified that he has worked on many
“mission-critical” projects, often assuming a leadership role. Tr. at 46. He does not knowingly
associate with anyone who uses illegal drugs or engages in any other criminal conduct, does not
own a firearm, and has no intention of ever using illegal drugs again. Tr. at 49-50; 63-69.
Two of the individual’s co-workers also testified. One said that the individual was an honest and
trustworthy person, and that he had never seen any signs of illegal drug usage or any instances in
which the individual violated workplace regulations. Tr. at 13-14. The other testified that he was
impressed with the individual’s work, and that he had never seen any indications of illegal drug
usage or any other significant illegal activity in the eight or nine years that he had known him.
Tr. at 22-23. The individual also submitted Letters of Commendation, Certificates of
Recognition, and awards that he has received for his job performance. Individual’s Exhibits 10-
20.
Despite this mitigating evidence, I harbor substantial doubts about the individual’s judgment,
reliability and trustworthiness. As an initial matter, the record indicates that for a period of three
years, the individual engaged in an ongoing criminal enterprise that involved multiple sales of an
illegal drug. Even if his vague and unsupported assertion that the “Supreme Court” determined
that his firearm offense was a “non-violent crime” is true, DOE Ex. 2, the fact that he was armed
at the time of his arrest strongly suggests that he was ready and willing to use deadly force in
furtherance of his illegal behavior. Moreover, since the individual was in his late twenties during
the period of time in question, he cannot use youthful indiscretion as an excuse for his choice of
vocation.
Although approximately 22 years have passed since the individual’s last arrest, the mitigating
value of this factor is significantly lessened by the individual’s 2008 marijuana usage. That the
individual would again use illegal drugs after completing two drug rehabilitation programs (in
1984, DOE Ex. 7 at 15-16, and after his release from prison), and after resolving while in prison
to turn his life around, casts substantial doubt on his judgment and reliability, and on his ability
to conform his conduct to the requirements of the law and of his employer. The individual
testified that that instance was the only time that he used illegal drugs after his 1990 arrest.
However, in the absence of adequate supporting evidence, I am skeptical of the individual’s
claim that the one instance that he used illegal drugs in the 24 years since that arrest just
happened to take place right before the drug test that led to his 2008 termination.
The prolonged and very serious nature of the individual’s criminal activity, when coupled with
the individual’s 2008 marijuana usage, lead me to conclude that the disqualifying conditions set
forth above outweigh the mitigating evidence presented by the individual. I therefore conclude
that serious security concerns remain under Adjudicative Guideline J.
V. CONCLUSION
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For the reasons set forth above, I find that the individual has failed to demonstrate that granting
him access authorization would be clearly consistent with the interests of national security.
Accordingly, I find that the DOE should not grant the individual a security clearance at this time.
Review of this decision by an Appeal Panel is available under the procedures set forth at 10
C.F.R. § 710.28.
Robert B. Palmer
Administrative Judge
Office of Hearings and Appeals
Date: December 2, 2014