PSH-15-0068

*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 )
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Filing Date: August 26, 2015 ) Case No.: PSH-15-0068
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Issued: January 19, 2016
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Administrative Judge Decision
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Robert B. Palmer, 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 individual’s
security clearance should not be restored at this time. 2
I. BACKGROUND
The individual is employed by a Department of Energy (DOE) contractor, and was granted a
security clearance in 1989 in connection with his employment. In July 2014, the individual tested
positive for marijuana usage during a random drug screening. Because of this result, the local
security office (LSO) summoned the individual for an interview with a personnel security
specialist. After this Personnel Security Interview (PSI) revealed additional information that
raised security concerns, the LSO determined that derogatory information existed that cast into
doubt the individual’s eligibility for access authorization. It informed the individual of this
determination in a letter that set forth the DOE’s security concerns and the reasons for those
concerns. I will hereinafter refer to this letter as the Notification Letter. The Notification Letter
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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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 12
exhibits into the record of this proceeding. The individual introduced 23 exhibits and presented
the testimony of five witnesses, in addition to testifying himself.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the Notification Letter included a statement of derogatory information that
created a substantial doubt as to the individual’s eligibility to hold a clearance. This information
pertains to paragraphs (k) and (l) of the criteria for eligibility for access to classified matter or
special nuclear material set forth at 10 C.F.R. § 710.8, and to the Bond Amendment (section
1072 of the National Defense Authorization Act for Fiscal Year 2008).
Criterion (k) defines as derogatory information tending to show that the individual has “sold,
transferred, possessed, used, or experimented with a . . . 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, . . . etc.) except as prescribed or administered
by a physician” or otherwise authorized by federal law. Under this criterion, the Letter cites the
individual’s positive drug test results and statements that he made during his 2014 PSI indicating
that he used marijuana repeatedly over a twenty year period while holding a security clearance
despite knowing that such usage was forbidden, and that he used marijuana on a weekly basis
over a two to three year period while remodeling his home and purchased it every two to three
weeks to smoke after his grandson’s death in August 2013.
Criterion (l) refers to information indicating that the individual has engaged in criminal or any
other unusual conduct or is subject to any circumstances which tend to show that he is not
honest, reliable or trustworthy, or that he may be subject to pressure, coercion, exploitation or
duress which may cause the individual to act contrary to the best interests of national security.
Such conduct or circumstances also include violation of any commitment or promise upon which
the DOE previously relied to favorably resolve an issue of clearance eligibility. As support for its
invocation of this criterion, the Notification Letter cites the individual’s usage of marijuana
mentioned above and statements that he made during the 2014 PSI indicating that he continues to
associate with friends who use marijuana, and that he violated a DOE Drug Certification that he
signed in 1989. 3
The Bond Amendment prohibits federal agencies from granting or renewing the security
clearances of persons who are addicted to, or unlawful users of, illegal drugs. In this regard, the
3 This Drug Certification was not submitted into evidence by the LSO. However, DOE Drug
Certifications generally require the signatory to agree that he or she will not use or be associated
with any illegal drug (as listed in the Controlled Substances Act of 1970) while holding a
security clearance, unless lawfully prescribed by a licensed physician. They also generally
provide that if the signatory violates this commitment even once, he or she could lose his or her
access authorization.
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Letter alleges that the individual “has used marijuana within the last 12 months while holding an
access authorization, which is a Bond Act violation.”
The derogatory information set forth above adequately justifies the DOE’s invocation of the
Bond Amendment and criteria (k) and (l), and it raises significant security concerns. Use of an
illegal drug raises doubts about an individual’s reliability and trustworthiness, both because such
usage may impair judgment and because it calls into question a person’s ability or willingness to
comply with laws, rules, and regulations. An unwillingness to comply with rules and regulations
can also raise questions about an individual’s reliability, trustworthiness, and ability to protect
classified information. See Revised Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information, The White House (December 19, 2005), Guidelines E, H and J
(Adjudicative Guidelines).
III. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710
dictate that in these proceedings, 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 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). 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 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. ANALYSIS
A. Criterion (k) and The Bond Amendment
During the PSI, the individual described his history of marijuana usage. He started in 1973, when
he was 21 years old. He used marijuana on a weekly basis, often during fishing trips with his
friends. From 1979 to 1983, his usage dropped considerably because he was in college and did
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not have the money to purchase the drug. After leaving college and getting a job in 1983, he
began “a chronic [marijuana] use pattern at that point” because he was “making regular money.”
DOE Exhibit (Ex.) 9 at 69. After leaving that job in late 1987 or early 1988, he decided to stop
smoking marijuana in case he was drug tested for any new job. Id. He was then hired by his
current employer.
At the hearing, the individual testified about his marijuana usage after receiving his security
clearance. He said that he remained abstinent until approximately 1995. At that time, he became
the primary caregiver for his father, who was terminally ill. Tr. at 163. This was especially
stressful for the individual because his father had sexually abused him from the age of 14 years
old until he left home at 17. Tr. at 152-155. He explained that he did not want the last few years
of his father’s life “to be full of strife and wrought with arguments and all that kind of thing.” To
the individual, “the marijuana helped . . . sort out the bitterness that I had towards my dad,” and
helped him “process the notion that I could treat him and be with him and not be bitter.” Tr. at
163. His father died in 1998. Tr. at 165. He also said that using marijuana right at bedtime helped
him to sleep. He had had problems with sleep and nightmares since childhood, but using
marijuana allowed him “to have a perfectly sound night of sleep,” and wake up the next morning
“without remembering a single dream.” Tr. at 164. When he would take sleep medications, they
would not produce a dreamless sleep. Id. From then until 2008, the individual’s marijuana usage
was “intermittent.” Tr. at 168. From 2008 to 2010, he was remodeling his house with the
assistance of friends, and he would use marijuana with them on weekends. Tr. at 230-231. From
2010 to 2011, he returned to his “intermittent” pattern of use. He explained that he was “an
opportunist.” He purchased marijuana “maybe a couple of times a year,” and his other usages
would occur when friends would visit and bring marijuana with them. He said that those visits
“were not all that frequent.” Tr. at 232.
In 2011, the Management and Operations contractor at the facility at which the individual was
employed changed, and the individual stopped using marijuana because he suspected that he
might be tested for illegal drug usage. Id. He began using marijuana again shortly after the death
of his grandson in 2013. The individual was very close to his grandson, who lived with him, and
he had trouble sleeping after his grandson’s death. He used marijuana as a “nightcap” for the
same reason that he did so while he was caring for his father: so that he could sleep soundly and
without having nightmares. Tr. at 169. He stopped again in May 2014 because he “heard” that
his employer “did random drug screens.” Id. The individual used marijuana again on July 3,
2014, with friends, one of whom was visiting from another state. That was his last usage of the
drug. Tr. at 170. He testified that he is now in treatment for the trauma caused by his father’s
sexual abuse, that he is no longer suppressing that abuse and trauma, and that he no longer uses
marijuana to suppress his dreams. Tr. at 198. When he has a bad dream about his father’s abuse,
he now can go to his therapist to discuss it. Tr. at 200. He added that he no longer associates with
his drug-using friends. Tr. at 197. This testimony was confirmed by the individual’s wife. Tr. at
75. The individual concluded by saying that he is now coming to terms with the things that have
bothered him for most of his adult life, and that it was these things, i.e., his father’s abuse and the
loss of his grandson, that led him to use marijuana. There is nothing else in his character that
should concern the DOE, and his marijuana usage is the “single aberration” in his life. Tr. at 207.
It is his intention to permanently refrain from future marijuana use. Tr. at 144, Ind. Ex. V.
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The individual’s psychiatrist submitted a report (Ind. Ex. B) and also testified at the hearing. In
his report, he opined that the individual used marijuana for medicinal purposes, i.e., to deal with
the trauma caused by his father’s abuse, and the deaths of his mother and grandson, rather than
for recreation. Ind. Ex. B at 10-11. He concluded that the individual self-medicated with
marijuana rather than seeking counseling due to shame associated with his father’s sexual abuse.
Id. at 11. The individual’s psychiatrist diagnosed the individual as suffering from Post-Traumatic
Stress Disorder (PTSD), due to his father’s abuse, and Unspecified Cannabis-Related Disorder.
He concluded that the Cannabis-Related Disorder was in sustained full remission, due to the
individual’s abstention from marijuana usage since July 2014. Id. at 12. At the hearing, he
testified that the individual’s usage of marijuana while taking care of his father in 1995 was not a
deliberate, conscious act, but was instead “a pre-conscious act,” driven by emotion, “where a
person goes ahead and does something without a full cognitive knowledge of why they are doing
it.” Tr. at 248. According to the psychiatrist, it was a means of coping with the very stressful
situation of taking care of the father who had abused him. Tr. at 250. Based on what he knows
about the individual and his treatment, he believes that the individual’s stated intent to abstain
from all future marijuana use is very realistic. Tr. at 265.
The individual’s therapist also submitted a written report and testified at the hearing. In her
report, the therapist diagnosed the individual as suffering from Cannabis Use Disorder, Moderate
(by history) and PTSD. She stated that he participated in, and successfully completed, two
sessions of group therapy designed to address, respectively, his substance use disorder and
relapse prevention. She opined that his diagnosed conditions do not presently impair his
judgment and reliability, and that his prognosis for continued abstinence from marijuana is
“good.” Ind. Ex. H. At the hearing, the individual’s therapist said that the individual sought her
out after he tested positive for marijuana in 2014. She recommended that he participate in
treatment for his substance use disorder and for PTSD, but the individual was treated only for
substance use at that time because he wanted to return to work as soon as possible. He informed
her that he might come back for additional treatment at a later date. Tr. at 116. In May 2015, he
began seeing her again for treatment for PTSD. Since then, they have focused on the trauma
caused by his father’s sexual abuse and by the sudden and unexpected demise of the individual’s
grandson. Tr. at 117. The individual has “definitely” progressed in addressing these traumatic
events. Tr. at 124. He used marijuana at least in part to deal with these issues, she opined, and as
he learns to address them in other ways, the impulse for him to use drugs, illegal or prescribed,
will decrease. Tr. at 124-125. Based on her knowledge of the individual, she estimated his
chances of relapsing as being “very low.” Tr. at 127.
The individual also submitted an alcohol and drug assessment from a local substance treatment
facility and laboratory test results. The treatment facility concluded that the individual is not
currently suffering from any substance use disorder, and the laboratory results indicate that the
individual has not used any illegal drugs with the last 12 months. Ind. Exs. C and D.
After reviewing this evidence, I find that the individual has adequately addressed the DOE’s
security concerns regarding his use of marijuana. First, the individual has demonstrated an intent
to not use marijuana in the future. See Adjudicative Guidelines, ¶ 26(b) (a demonstrated intent
not to abuse any drugs in the future is a potentially mitigating circumstance). Specifically, the
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evidence shows that he has disassociated himself from his drug-using friends, has definitively
stated his intent to refrain from all future use of marijuana, and had abstained from all illegal
drug usage for over one year as of the date of the hearing. Second, the individual has
satisfactorily completed a drug treatment program, and has been given positive prognoses by
both his therapist and his psychiatrist. See Adjudicative Guidelines, ¶ 26(d) (completion of a
prescribed drug treatment program, including rehabilitation and aftercare requirements, with a
favorable prognosis by a duly qualified medical professional, is a potentially mitigating factor).
For these same reasons, I conclude that the individual is no longer addicted to, or an unlawful
user of, illegal drugs. Consequently, I conclude that no significant security concerns remain
under criterion (k), and that the Bond Amendment does not stand as a bar to restoring the
individual’s access authorization.
B. Criterion (l)
I reach a different conclusion, however, with regard to criterion (l). The individual’s repeated
and knowing violations of the law, of DOE security requirements, and of his drug certification
raise serious doubts about his judgment and reliability. Moreover, the individual’s intentional
provision of false information about his drug usage on his 2004 and 2014 Questionnaires for
National Security Positions (QNSPs), Tr. at 213-215, raises significant security concerns about
his honesty and trustworthiness. 4
The individual and his witnesses attempted to address these concerns at the hearing. The
individual testified that he didn’t tell the DOE the truth about his marijuana usage because if he
had, he would have had to come to terms with his father’s abuse and address those issues with
the DOE, and he was not prepared to do that. Tr. at 183. Other than in this one area of his life, he
added, he has been “a good person and trustworthy.” Id. He has not had any criminal charges
brought against him except for driving with an open container of alcohol, which he reported on
his 1993 QNSP. Tr. at 193-195. He further stated that he pays his taxes on time, does not speed,
and that he carries this respect for laws and rules over into the workplace. Tr. at 200-201.
The individual’s psychiatrist testified that the individual’s feelings of shame associated with his
father’s abuse kept him from reporting his marijuana usage to the DOE. Tr. at 243-247. The
individual’s supervisor said that individual follows rules at work, successfully protects classified
information, and has not exhibited any dishonest or untrustworthy behavior. . Tr. at 21-27, 42.
The individual’s wife testified that he is an honest, reliable and trustworthy person. Tr. at 98-99.
The individual’s therapist stated that he was very open and honest with her during their sessions.
Tr. at 132.
Despite this testimony, I continue to have serious doubts about the individual’s honesty,
judgment and reliability. As an initial matter, I did not find credible the individual’s contention
that he did not reveal his marijuana usage to the DOE because he was not prepared to address the
4 The LSO did not cite the individual’s falsifications of his QNSPs in the Notification Letter.
However, the individual was put on notice that his honesty and trustworthiness would be at issue
in this matter by the LSO’s invocation of criterion (l). Moreover, the DOE provided those
QNSPs to the individual in agency exhibits 8 and 10. My consideration of these falsifications
therefore does not raise due process concerns.
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issues that he claimed caused that usage with the DOE. The record clearly indicates that the
individual’s pattern of marijuana usage during the period of time leading up to his current
employment, and during the approximately 20 years that he used marijuana while holding a
security clearance, was that when he was apprehensive about his usage being detected, he
stopped, and when he believed that his usage would probably go undetected, he resumed. As
previously stated, the individual indicated during his PSI that he stopped smoking marijuana
during the late 1980s in anticipation of being drug-tested in connection with any new job. DOE
Ex. 9 at 69. At various times during his tenure at his current workplace, his usage depended on
his perception of the likelihood of being tested at that time. Tr. at 168-170, 233-234. This pattern
strongly suggests that the primary reason that the individual did not reveal his drug usage to the
DOE was not to avoid having to come to terms with the traumas in his life, but because he feared
losing his security clearance and his job.
Much of the individual’s testimony and that of his expert witnesses was devoted to
demonstrating that the individual used marijuana to “self-medicate” because of the effects of the
traumas associated with his father’s sexual abuse and his grandson’s sudden death. While I have
no doubt that these events were very traumatic, I note that much of the individual’s usage was
recreational in nature, with no direct connection to any of the apparent effects of the abuse or of
his grandson’s untimely death. As previously mentioned, during at least a two-year period in the
late 2000s, the individual used marijuana on a weekly basis with friends who were helping him
remodel his home. From 2010-2011, he was a self-described “opportunist,” purchasing
marijuana perhaps once or twice a year and using the drug when his friends would bring it with
them during their visits. See Adjudicative Guidelines, ¶ 17(c) (mitigating circumstance that the
offense was so minor, or so much time has passed, or the behavior was so infrequent, or it
happened under such unique circumstances that it is unlikely to recur and does not cast doubt on
the individual’s reliability, trustworthiness, or good judgment not applicable).
However, even if all of the individual’s marijuana usage could properly have been described as
“self-medication,” it would not change the fact that that usage was a violation of federal law, of
DOE security requirements, and of the individual’s drug certification. For a period of over 20
years, the individual used marijuana while holding a DOE security clearance. On at least several
occasions during this period, he calculated the risks associated with getting caught, weighed
them against the “benefits” of continued use, and decided either to continue using the drug or to
resume his usage after a period of abstinence. This violation of the DOE’s trust outweighs the
testimony of the individual and his witnesses regarding the individual’s judgment, reliability and
trustworthiness, and leads me to conclude that the DOE’s security concerns under criterion (l)
remain unresolved.
V. CONCLUSION
For the reasons set forth above, I find that the individual has mitigated the DOE’s security
concerns under criterion (k), but has not adequately addressed the DOE’s concerns under
criterion (l). Consequently, he has failed to convince me that restoring his access authorization
would not endanger the common defense and would be clearly consistent with the national
interest. Accordingly, I find that the DOE should not restore the individual’s security clearance at
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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: January 19, 2016