PSH-16-0048

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disclosure under 5 U.S. C. § 552. Such material has been deleted from this copy and replaced
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United States Department of Energy
Office of Hearings and Appeals
In the Matter of Personnel Security Hearing )
)
Filing Date: June 9, 2016 ) Case No.: PSH-16-0048
)
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Issued: August 29, 2016
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Administrative Judge Decision
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William M. Schwartz, Administrative Judge:
This Decision concerns the eligibility of XXX XXX XXX (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
discussed below, after carefully considering the record before me in light of the relevant
regulations and 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), I have determined that
the individual’s access authorization should be restored.
I. Background
The individual works for a DOE contractor in a position that requires that he hold a DOE
security clearance. While holding a security clearance, he used marijuana on one occasion in
August 2014, during a visit to a long-time friend in a distant city. In August 2015, the individual
completed an e-QIP, the electronic version of the Questionnaire for National Security Positions
(QNSP). Responding to two questions on the form, the individual indicated that he had not
illegally used any drugs or controlled substances in the past seven years, nor illegally used any
drugs or controlled substances while holding a security clearance. During subsequent interviews,
however, he admitted that he had smoked marijuana in 2014.
On May 17, 2016, the local security office (LSO) sent a letter (Notification Letter) to the
individual advising him that it had reliable information that created a substantial doubt regarding
his eligibility to hold a security clearance. In the attachment to the Notification Letter, the LSO
1 Access authorization is defined as “an administrative determination that an individual is eligible for access to
classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). Such
authorization will be referred to variously in this Decision as access authorization or security clearance.
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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(f), (k), and (l)
(hereinafter referred to as Criteria F, K, and L, respectively).2 The LSO also stated that the
individual’s use of marijuana indicates that he is an unlawful user of a controlled substance or an
addict and is subject to the provisions of the Bond Amendment, 50 U.S.C. § 3343(b), which
provides that a federal agency may not grant or renew a security clearance for a covered person
who is an unlawful user of a controlled substance or an addict.
Upon receipt of the Notification Letter, the individual exercised his right under the Part 710
regulations to request an administrative review hearing, and I was appointed the Administrative
Judge in the case. At the hearing, the individual presented the testimony of one witness, a long-
time friend, and testified on his own behalf. There were no witnesses for the LSO, but it
submitted seven numbered exhibits into the record. The individual submitted one exhibit, which
I labeled as Exhibit A. The exhibits will be cited in this Decision as “Ex.” followed by the
appropriate numeric or letter designation. The hearing transcript in the case will be cited as “Tr.”
followed by the relevant page number.
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).
The individual must come forward at the hearing with evidence to convince the DOE that
restoring his access authorization “will not endanger the common defense and security and will
2 Criterion F concerns information that indicates that the individual has “deliberately 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….” 10 C.F.R. § 710.8(f). Criterion K relates to information that a person “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, …) 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). Criterion L concerns information that indicates that the individual has “engaged in any
unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or
trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion,
exploitation, or duress which may cause the individual to act contrary to the best interests of the national security.
Such conduct or circumstances include, but are not limited to, criminal behavior….” 10 C.F.R. § 710.8(l).
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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). Hence, 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 administrative review of the
individual’s eligibility for security clearance, Criteria F, K, and L, as well as the Bond
Amendment. Use of an illegal drug can raise questions about an individual’s reliability and
trustworthiness, both because it may impair judgment and because it creates doubt about a
person’s ability or willingness to comply with laws, rules, and regulations. Adjudicative
Guidelines at Guideline H, ¶ 24. Moreover, it is well established that conduct involving
dishonesty or lack of candor can raise questions about an individual's trustworthiness to protect
classified information. Of special interest is any failure to provide truthful and candid answers
during the security clearance process, or any other failure to cooperate with the security
clearance process. Adjudicative Guidelines at Guideline E, ¶ 15.
In support of its security concerns under Criterion K and the Bond Amendment, the LSO stated
that the individual admitted during a Personnel Security Interview (PSI) conducted on March 3,
2016, that he had smoked marijuana in August 2014. Ex. 1.
The LSO’s security concerns under Criterion F arose when it realized that the individual had
made inconsistent statements regarding his marijuana use. Completing his August 2015 QNSP,
the individual answered “No” to two questions, one asking whether he had illegally used any
drugs or controlled substances in the past seven years, and one asking whether he had illegally
used any drugs or controlled substances while holding a security clearance. The LSO noted,
however, that during the March 2016 PSI the individual admitted that he had in fact smoked
marijuana in August 2014. Id.
As for its security concerns under Criterion L, the LSO relied on the individual’s use of
marijuana while holding a security clearance and his failure to comply with reporting
requirements when he did not report that use in a timely manner. Id.
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I find that there is ample information in the Notification Letter to support the LSO’s reliance on
Criteria F, K, and L and the Bond Amendment. The individual’s smoking of marijuana could
impair his judgment and, as illegal drug use, may indicate that he is unwilling to comply with
laws, rules, and regulations. His failure to comply with reporting requirements placed on
security clearance holders may indicate a similar frame of mind. Finally, his inconsistent
statements reflect a failure to provide truthful and candid answers during the security clearance
process and raise questions about his reliability, trustworthiness and ability to protect classified
information.
IV. Findings of Fact
The individual has held a DOE security clearance for about six years. Tr. at 30. In early August
2014, he and a close friend (Friend #1) took a vacation to visit a mutual friend (Friend #2) who
lives in a distant city. One evening, Friend #2 purchased some marijuana and began smoking a
marijuana cigarette at his home, in the presence of the visitors. He then offered it to them, and
they each smoked some. For the individual in particular, this was the first time he had ever
smoked marijuana. He took a single inhalation from the marijuana cigarette. He then decided
that he would not use marijuana in the future. Id. at 25-27. Friend #1 corroborated these facts in
the testimony he provided at the hearing. He has been the individual’s best friend since middle
school, was present when the individual used the marijuana in August 2014, knows the
individual never to have used illegal drugs before or since that evening, and was the person
whom the individual told the next morning of his decision to refrain from future marijuana use.
Id. at 14-16, 20.
In late August 2015, the individual completed a QNSP in which he answered “No” to questions
asking whether he had illegally used any drugs or controlled substances in the past seven years or
while holding a security clearance. Ex. 5, Section 23. At the hearing, he testified that his
misrepresentation was an isolated incident and that he had not intended to mislead the LSO, and
he offered the following explanation. He stated that at the time he was answering those
questions, he felt that neither “Yes” nor “No” applied to his situation as a one-time, one-
inhalation user. Tr. at 28. Faced with the two options, he chose “No” because he believed a
“Yes” response would lead the LSO to infer that he used drugs routinely. Id. at 35. He noted
that the form lacked a place to submit comments or explanations to those responses.3 Id. at 36.
He knew, however, that he would have a personal interview when the Office of Personnel
Management (OPM) conducted his background investigation, and he intended to explain his
responses during that interview. Id. at 53 (co-workers had explained the process to him). In
November 2015, during his interview, the OPM investigator reviewed each of his QNSP
responses with him. When they reached the questions regarding illegal drug use, the individual
volunteered that he had in fact used marijuana on one occasion in August 2014. Id. at 47.
The inconsistency between the individual’s QNSP responses and the information he revealed to
the OPM investigator raised questions for the LSO. The LSO conducted its own interview, the
3 At the hearing, the DOE Counsel pointed out to the individual that the QNSP does in fact have a section for
additional comments at the very end of the form. The individual replied that he had not noticed that section at the
time he was completing the form, and acknowledged that that would have been an appropriate place to explain his
answers. Id. at 36.
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PSI in March 2016, to inquire into the individual’s drug use and forthrightness. Ex. 6. At the
PSI, the individual again volunteered that he had used marijuana, and described the incident in a
manner consistent with his testimony at the hearing. Id. at 9, 12-20.
At the hearing, the individual acknowledged that he clearly understood the questions on the
QNSP regarding drug use. He acknowledged that he had committed an error by answering them
as he did, and in the future he would answer them in the affirmative. Tr. at 28-29, 50.
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) and the Adjudicative Guidelines. After due
deliberation, I have determined that the individual’s DOE security clearance should be restored.
I 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.
As an initial observation, I find that the individual was a very credible witness. His recounting
of relevant events remained consistent throughout the access authorization process and was
effectively corroborated by the testimony of Friend #1. Consequently, I will give considerable
weight to his testimony at the hearing and his statements during his OPM interview and his PSI.
A. Criterion K and the Bond Amendment: Marijuana Use
The facts that support the LSO’s security concern under Criterion K and the Bond Amendment
relate to the individual’s single inhalation of a marijuana cigarette on one evening in early
August 2014. Nothing in the record supports finding that the individual had ever used any illegal
drug before that evening or that he has done so since that evening. The individual has committed
to not using illegal drugs in the future. I conclude that his use of marijuana in August 2014 was
an isolated incident that is highly unlikely to recur.
The Adjudicative Guidelines set forth conditions that could mitigate security concerns arising
from drug involvement. One of those conditions applies most appropriately to these
circumstances: the behavior happened so long ago, was so infrequent, or happened under such
circumstances that it is unlikely to recur or does not cast doubt on the individual’s current
reliability, trustworthiness, or good judgment. Adjudicative Guidelines at Guideline H, ¶ 26(a).
Although his marijuana use did not occur very long ago, it did take place under unusual
circumstances, in a distant city, with an old friend whom he sees rarely. Moreover, it was an
isolated incident; the individual had never used marijuana before and has not used marijuana
since. I find that the individual has resolved the LSO’s security concern under Criterion K.
The derogatory facts surrounding the Bond Amendment concern are identical to those described
above. As stated in the Background section, the Bond Amendment prohibits a federal agency
from granting or renewing a security clearance for a covered person who is an unlawful user of a
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controlled substance or an addict. The term “addict,” as it applies to the Bond Amendment,
refers to a person “who habitually uses any narcotic drug so as to endanger the public morals,
health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the
power of self-control with reference to his addiction.” 21 U.S.C. § 802. The individual clearly
does not meet this definition. In contrast to the term “addict,” the Bond Amendment does not
define “unlawful user of a controlled substance.” However, because the individual’s usage was
an isolated event that is unlikely to recur, the individual does not fall within the parameters of
any reasonable definition of that term. Due to the isolated nature of the incident and the
individual’s commitment to abstain from illegal drugs in the future, I have determined that he is
neither an addict nor an unlawful user of drugs for the purposes of the Bond Amendment.
Consequently, I find that he has resolved the LSO’s security concern under the Bond
Amendment.
B. Criterion F: Misrepresentation, Falsification or Omission
The Criterion F concern centers on the individual’s misrepresentations in his QNSP: that he
certified that he had not illegally used any drugs in the past seven years, and that he had not ever
illegally used any drugs while holding a security clearance. The individual has admitted that he
intentionally answered these questions in the negative, feeling that positive responses would
imply that he was a regular drug user, and knowing that he would be able to explain the
circumstances of his one-time marijuana use at his upcoming interview. The Adjudicative
Guidelines provide a list of conditions that could mitigate this type of security concern,
including:
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
(b) the refusal or failure to cooperate, omission, or concealment was caused or
significantly contributed to by improper or inadequate advice of authorized
personnel or legal counsel advising or instructing the individual specifically
concerning the security clearance process. Upon being made aware of the
requirement to cooperate or provide the information, the individual
cooperated fully and truthfully;
(c) the offense is so minor, or so much time has passed, or the behavior is 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;
(d) the individual has acknowledged the behavior and obtained counseling to
change the behavior or taken other positive steps to alleviate the stressors,
circumstances, or factors that caused untrustworthy, unreliable, or other
inappropriate behavior, and such behavior is unlikely to recur.
Adjudicative Guidelines at Guideline E, ¶ 17(a)-(d).
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After considering the facts underlying the Criterion F concern and the mitigating factors listed
above, I have concluded that the individual has resolved this concern. Regarding the first factor
listed above, the individual volunteered the information about his one-time marijuana use during
his interview with the OPM background investigator. He offered this information before the
investigator confronted him with any evidence of his drug use; in fact, it was highly unlikely that
the investigator could possibly have known of the incident had he not reported it to her.
Although the individual does not precisely meet all the conditions of the remaining three factors,
he does meet portions of each one and, when considered as a whole, his behavior mitigates the
LSO’s concerns in a number of ways. Ever since providing incorrect answers on the QNSP, the
individual has consistently disclosed the full extent of his involvement with marijuana. He now
clearly acknowledges that he should have answered the questions “Yes,” even if he had not been
offered the opportunity to explain his answers. In addition, the morning following his marijuana
use, he committed himself to abstain from using marijuana, and nothing in the record disputes
his testimony that he has abided by his commitment. Moreover, in light of his testimony and that
of his long-time friend, the individual’s one-time marijuana use and misrepresentation on his
QNSP do not cast doubt, in my opinion, on his reliability, trustworthiness, or good judgment.
Accordingly, I find that these factors, and the record’s reflection of the individual’s whole
person, adequately resolve the concern.
A. Criterion L: Failure to Report Marijuana Use
The Criterion L concern focuses on the individual’s marijuana use and his failure to report that
use as required of him as a security clearance holder. The concern regarding his one-time
marijuana use has been addressed and resolved above. The remaining issue is his failure to report
that use in a timely manner as required. The applicable mitigating factors are those set forth in
the above section. When asked about this failure at the hearing, the individual responded that it
was not intended to mislead at all, but rather that reporting would not allow him to explain
himself fully. He again emphasized that he voluntarily disclosed the full details of his marijuana
use at his background investigation interview, which took place less than three months after the
incident. Tr. at 29-30. While I cannot condone his failure to comply with reporting
requirements, I find that his intention to explain himself fully when offered the opportunity to do
so at a one-on-one interview (with the OPM investigator) mitigates his behavior to some degree.
Adjudicative Guidelines at Guideline E, ¶ 17(a). The fact that he did so, even though he believed
that, but for his self-reporting, the incident would likely never have been discovered, speaks well
of his character. In addition, the individual now fully understands his responsibilities as a holder
of access authorization, and I am convinced that he will comply with all security requirements in
the future. Id. at ¶ 17(c). I therefore find that his failure to report the marijuana incident, given
the circumstances of this case, does not case doubt on his reliability, trustworthiness, or good
judgment. As above, I find that these factors, and the record’s reflection of the individual’s
whole person, adequately resolve this concern.
VI. Conclusion
Upon consideration of the entire record in this case, I find that there was evidence that raised
doubts regarding the individual’s eligibility for a security clearance under Criteria F, K, and L of
the Part 710 regulations and under the Bond Amendment. I also find that the individual has
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presented sufficient information to fully resolve those concerns. Therefore, I conclude that
restoring the individual’s DOE 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). Accordingly,
I find that the DOE should restore the individual’s DOE access authorization.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth
at 10 C.F.R. § 710.28.
William M. Schwartz
Administrative Judge
Office of Hearings and Appeals
Date: August 29, 2016