PSH-16-0062

*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 6, 2016 ) Case No.: PSH-16-0062
)
__________________________________________)
Issued: September 29, 2016
______________________
Administrative Judge Decision
______________________
Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (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, I have determined that the DOE should
restore the Individual’s access authorization.
I. Background
The Individual is employed by DOE in a position that requires him to possess a DOE security
clearance. In November 2015, the Individual completed a Questionnaire for National Security
Positions (QNSP). Exhibit (Ex.) 5. In the QNSP, the Individual admitted to using a controlled
substance, Adderall2, for which he was not prescribed, as well as using marijuana on two
occasions. Ex. 5 at 14. The Individual also admitted purchasing and selling Adderall on a number
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 Adderall is a prescription medication consisting of a combination of dextroamphetamine and amphetamine. See
https://medlineplus.gov/druginfo/meds/a601234.html (visited September 8, 2016).
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of occasions in the fall of 2014. Ex. 15 at 15. The local security office (LSO) conducted a personnel
security interview (PSI) with the Individual in January 2016. Ex. 6. The PSI did not resolve the
concerns arising from the Individual’s use, purchase, and sale of Adderall or his admission that he
had used marijuana, while possessing a security clearance from another agency. Consequently, in
a May 2016 letter (Notification Letter), the LSO informed the Individual that it had reliable
information that created a substantial doubt regarding his eligibility to hold a security clearance.
Ex. 1. Specifically, the Notification Letter stated that the LSO possessed information falling within
the purview of the potentially disqualifying criterion set forth in the security regulations at 10
C.F.R. § 710.8, subsections (k) and (l) (Criteria K and L respectively).3 The Notification Letter
also stated that the Individual’s use of a controlled substance prohibited him from possessing an
access authorization pursuant to the Bond Amendment, codified at 50 U.S.C. § 3343(b).
Upon his 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. The LSO submitted six Exhibits (Exs. 1-6) into the record.4 At the hearing, the
Individual presented his own testimony along with the testimony of his significant other
(Significant Other), his supervisor (Supervisor) and a licensed therapist (Therapist) and submitted
two Exhibits (Ex. A-B). See Transcript of Hearing, Case No. PSH-16-0062 (“Tr.”).
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 (1998) (“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).
3 Criterion K describes information demonstrating that an individual has “[t]rafficked in, sold, transferred, possessed,
used, or experimented with a drug or other substance listed in the Schedule of Controlled Substances established
pursuant to section 202 of the Controlled Substances Act of 1970 (such as marijuana, cocaine, amphetamines,
barbiturates, narcotics, etc.) except as prescribed or administered by a physician licensed to dispense drugs in the
practice of medicine, or as otherwise authorized by Federal law.” 10 C.F.R. § 710.8(k). Criterion L refers to
information that suggests that an individual has “[e]ngaged 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.” 10 C.F.R. § 710.8(l).
4 The LSO originally stated that it would submit seven Exhibits but subsequently decided not to submit proposed
Exhibit 7 – an Office of Personnel Management Report regarding the Individual.
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An individual must come forward with evidence to convince the DOE that 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 or her 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. In considering these factors, the Administrative Judge also consults
Adjudicative Guidelines that set forth a more comprehensive listing of relevant factors and
considerations. See Revised Adjudicative Guidelines for Determining Eligibility for Access
Classified Information, The White House (December 19, 2005) (Adjudicative Guidelines).
III. The Notification Letter and the Security Concerns at Issue
The LSO cites the Individual’s admissions in the QNSP and PSI that he had used, purchased and
sold Adderall, a controlled substance as Criteria K and L derogatory information. It also cited the
Individual’s use of marijuana as additional Criteria K and L derogatory information. Given these
admissions, the LSO had sufficient ground to invoke both Criteria K and Criteria L. Use of an
illegal drug or illegal use of a prescription drug can raise questions about an individual's reliability
and trustworthiness, both because it may impair judgment and because it raises questions about a
person's ability or willingness to comply with laws, rules, and regulations. Adjudicative
Guidelines, Guideline H, at ¶ 24. Conduct involving unwillingness to comply with rules and
regulations can raise questions about an individual's reliability, trustworthiness and ability to
protect classified information. Adjudicative Guidelines, Guideline E, at ¶ 15.
In the Notification Letter, the LSO also cites the Bond Amendment as a grounds to disqualify the
Individual from possessing a security clearance. The Bond Amendment provides that agencies
“may not grant or renew a security clearance for a covered person who is an unlawful user of a
controlled substance or an addict.” 50 U.S.C. § 3343(b).
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IV. Findings of Fact
In the summer of 2014, the Individual was an intern working for a contractor to another federal
agency. Tr. at 68-69. As a requirement of that position, the Individual was granted a security
clearance. Tr. at 69. When the Individual was informed that he had been granted a security
clearance he was informed that he would be given a briefing about the security clearance. Tr. at
69. Despite the individual attempting to schedule the briefing, he did not receive any security
briefing before he left his position in September 2014. Tr. at 69. When he left the position, he
believed that his clearance had been terminated. Tr. at 70.
When he returned to college, the Individual enrolled in six classes, the maximum allowed, in order
to complete a Bachelor’s degree and a Master’s degree. Tr. at 72. Additionally, the Individual was
attempting to complete the original research project required for his Master’s degree. Tr. at 72. He
initially attempted to work more hours without sleep by using caffeinated drinks. In an attempt to
remain awake longer, the Individual purchased two Adderall tablets from a friend. Tr. at 73-74. At
his university, the selling and using of Adderall tablets were very common. Tr. at 73. Later, he
found a prescription bottle containing Adderall in a classroom. Tr. at 74. Overall, the Individual
believes that he consumed approximately 9-10 tablets during the period November 2014 to January
2015. Tr. at 76-77. He has not used Adderall since January 2015.Tr. at 75, 78.
The Individual became aware that one of his friends needed help in staying awake to complete
coursework. The Individual sold this friend two tablets for $10. Tr. at 75-76. He did not intend to
profit by selling the tablets but did so because it was a standard practice at his university. Tr. at
73-74. The Individual testified that “it [selling Adderall] was just the standard interaction that
people did when they were giving Adderall to someone else.” Tr. at 75. He believes that his
decision to sell two tablets of Adderall to his friend was “a really dumb idea” and that he did not
intend to profit from the sale. He also provided his Significant Other several Adderall tablets. Tr.
at 74. He disposed of all of his Adderall tablets in January 2015 because he did not want to use
Adderall as a “crutch” and because he felt guilty for selling the two tablets. Tr. at 75. The Individual
found that Adderall, while helping him to stay awake, did not enhance his performance. Tr. at 78-
79.
The Individual used marijuana on two occasions in 2014. Tr. at 79. On both occasions, the
Individual was at a friend’s residence and he tried marijuana when it was offered to him. On one
occasion, the Individual became ill after using the marijuana. On the other occasion, he did not
feel any effect from the marijuana. Tr. at 80. After these two uses, the Individual had no desire to
further use marijuana and never sought to purchase or sell marijuana. Tr. at 80-81.
In 2015, the Individual accepted a position at the DOE facility. He has been working at the DOE
facility for approximately one year. When the Individual accepted his position at the DOE facility,
the Individual he was informed that he would need a security clearance. Later he was surprised to
discover that he had an active security clearance from his former internship. He subsequently
received a security briefing at the DOE facility. In November 2015, the Individual was asked to
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complete a Questionnaire for National Security Position (QNSP). Tr. at 81. In the QNSP, the
Individual reported his involvement with Adderall and marijuana. Tr. at 81-82. In responding to
the questions, the Individual did not believe that he needed to hide his involvement with Adderall
and marijuana and believed that reporting this in the QNSP would be the best way for him to
inform the DOE. Tr. at 82.
The Individual believes that he would not have used either Adderall or marijuana if he had known
that his prior security clearance was still active. Tr. at 84. He now has a better understanding of
his responsibilities as a clearance holder. Tr. at 85 As a result of his experience he believes that he
could be an advocate against such conduct on a college campus. Tr. at 87. He no longer associates
with anyone who uses illegal drugs. Tr. at 87.
The Significant Other has known the Individual for six years and in 2014 they began to date. Tr.
at 45. In July 2015, they began to share the same residence. Tr. at 45. She met the Individual in
college and in November 2014 both of them were studying to complete multiple degrees. Tr. at
46. Both of them attempted to use caffeine to try stay awake to complete course work and research.
Tr. at 47. During this period, both were under a great deal of stress to complete their degree
programs. Tr. at 47. Both tried to use caffeine to be awake longer to complete their courses and
research. Tr. at 47. However, caffeine was not effective in helping them stay awake. Tr. at 47. At
their university, the use and purchase of Adderall was a part of the campus culture. Tr. at 49-50.
Because of caffeine’s ineffectiveness the Individual decided to try Adderall. Tr. at 47. Many of the
students at their university had prescriptions for Adderall and its use was increasingly becoming
part of the university environment. Tr. at 47. The Individual purchased two tablets on two
occasions from a friend, and the Significant Other and the Individual each consumed one tablet
apiece on each occasion. Tr. at 47. When they used the Adderall they did not think about the
illegality of their use but were motivated by their short-term motivation to complete their
coursework. Tr. at 50-51.
The Significant Other also testified that after this use of Adderall, the Individual found a bottle
containing 20 Adderall tablets. Tr. at 47-48. The Significant Other believes that the Individual sold
one or two of these tablets. Tr. at 48. The Individual has told the Significant Other that he regretted
the decision to keep the bottle of Adderall he found. Tr. at 48. Since January 2015, the Significant
Other has not observed the Individual using Adderall. Tr. at 51. Since that time, the Individual and
Significant Other no longer had the need to use Adderall despite the pressure of completing their
course work. Tr. at 52-53. The Significant Other has not had any further discussions about using
Adderall or marijuana. Tr. at 53.
According to the Significant Other, in 2014, the Individual was offered marijuana and used it on
two occasions while visiting friends. Tr. at 54. On the first occasion that the Individual used
marijuana he became ill. Tr. at 55. On the second occasion, the Individual did not feel any effect
from the marijuana. Tr. at 55. The Significant Other testified that Marijuana is not a part of their
lifestyle. The Individual has never sought marijuana nor attempted to purchase it. Tr. at 56. The
friends that offered the Individual marijuana have moved away and their current friends do not use
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marijuana. Tr. at 57. Their current lifestyle consists of outdoor activities and the Individual’s work
in rehabilitating a boat they purchased. Tr. at 57-58. The Significant Other characterized the
Individual as a “by the book” follower of rules as demonstrated by the Individual’s insistence that
all repairs to the boat be performed in a careful and proper manner. Tr. at 58. The Significant Other
is committed to support the Individual in maintaining a lifestyle consistent with the requirements
of holding a security clearance. Tr. at 59.
The Individual’s Supervisor testified that he first met the Individual in May 2015 and that the
Individual began to work at the DOE facility in September 2015. Tr. at 11. He usually speaks to
the Individual at least once a week. Tr. at 11. He finds the Individual to be reliable, diligent and
self-motivated. The Individual is a “natural leader” and shows exceptionable ability. Tr. at 13-14.
The Supervisor has given the Individual an exceptionable level of responsibility for an employee
of his youthful age. Tr. at 14. He has no concerns regarding the Individual’s ability to safeguard
classified material and finds that the Individual is very reliable and trustworthy. Tr. at 17. In his
observation of the Individual, he finds that the Individual is very attentive to rules at the workplace.
Tr. at 17-18.
The Therapist testified that he conducted an evaluative examination of the Individual in July 2016
for substance abuse or dependency problems.5 Tr. at 28. After examining the Individual, the
Therapist found no evidence that the Individual had any type of substance misuse problem. Tr. at
28. The Individual used Adderall to increase his performance and did not use it in an on-going
basis or for recreational purposes. Tr. at 29-30. In explaining the Individual’s involvement with
Adderall in college, the Therapist believed that it was connected to the cultural atmosphere where
use of Adderall was accepted and that questions regarding the illegality of its use were not
considered. Tr. at 31-32. The Therapist believes that the Individual will not use Adderall or
marijuana in the future. This conclusion is supported by the Therapist’s assessment of the
Individual’s candor in completing the QNSP and the Individual’s candor during the Therapist’s
examination as well as the Individual’s personality trait suggesting obsessive-compulsiveness
regarding rules and procedures. Tr. at 32-33. The Individual’s methodical restoration of his boat
is an example of this trait. Tr. at 35. The Therapist also believes that the Individual has internalized
the realization that he made a “bad choice” regarding his prior involvement with illegal drugs. Tr.
at 37.
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 security clearance should be restored.
5 The Therapist has a Master’s Degree in Counselling, is a Clinical Supervisor at a treatment facility, and is an adjunct
professor in classes dealing with substance abuse. Ex. A.
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A. Criterion K and the Bond Amendment
The Criterion K concerns center around the Individual’s use of Adderall and marijuana. After
considering the evidence, I find that the Individual has resolved the Criterion K concerns arising
from his prior use of Adderall and marijuana. I found the Therapist’s testimony convincing
regarding his determination that the Individual’s use of these substances was limited and that he
does not suffers from any type of substance abuse or dependency pathology. Further, the Therapist
opined that the risk of the Individual using these substances again is minimal. The Therapist’s
assessment is also supported by the testimony of the Individual’s Significant Other establishing
the unique circumstances leading to the Individual’s use of Adderall and his isolated experimental
use of marijuana. Additionally, the Individual submitted a report of the results of an October 2015
(post-employment) drug test which indicates no illegal drug use. Ex. B.
I find that the following mitigating factors are present with regard to the concerns raised by the
Individual’s illegal drug use. I find that the Individual’s use of Adderall was prompted by unique
circumstances, the need to complete his university course work and research, which are unlikely
to be repeated. Further, his use of marijuana was isolated and limited. See Adjudicatory Guideline,
Guideline H at ¶ 26(a). I find the hearing testimony sufficiently compelling to support a finding
that the Individual has demonstrated an intent not to engage in such conduct in the future. The
Individual has demonstrated an appropriate period of abstinence, has dissociated himself from
associates who used illegal drugs, and no longer lives in the environment where his drug use
occurred. See Adjudicatory Guideline, Guideline H at ¶ 26(b)(1), (2), and (3). Consequently, I find
that the evidence presented at the hearing has resolved the Criterion K derogatory information
recorded in the Notification Letter.
I also find that the Individual is not now a user of illegal drugs nor is an addict. I found the
Therapist’s testimony to this effect to be convincing. Consequently, the Bond Amendment does
not operate in this case to prevent the Individual from having his clearance restored.
B. Criterion L
The Criterion L derogatory information consists of the Individual’s admitted use of Adderall and
marijuana. Additionally, Criterion L concerns are raised by the fact that on two occasions the
Individual sold one tablet of Adderall to a friend. To the extent that Criterion L concerns are raised
by the Individual’s use of Adderall and marijuana, I find that the concerns are resolved as discussed
above.
However, the Individual’s selling of prescription Adderall represents a serious error in judgment
and a disregard for law. The Individual’s Therapist as well as the Individual’s Significant Other
provided testimony that the use and selling of Adderall at colleges represented a cultural norm of
conduct. Even if this is true, such an explanation, by itself, does not fully resolve the Criterion L
concern. Nonetheless, the record indicates that the Individual only sold one Adderall tablet twice
to a friend for a relatively small amount of money. There is no evidence that the Individual sought
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to make money with regard to these two transactions. I find that the Individual’s conduct in selling
Adderall was isolated. Further, I find that the Individual’s relative youth, approximately 23 years
old, is a mitigating factor along with his openness in disclosing his involvement to the LSO. I also
find that the testimony supports Individual’s expressed intent to refrain from any involvement with
illegal drugs.
I also find that the following Adjudicatory Guideline mitigating factors apply to the Individual.
The Individual’s criminal activity with regard to Adderall and marijuana is unlikely to recur.
Adjudicatory Guidelines, Guideline J at ¶ 32(a). I also find that the Individual has demonstrated
evidence of successful rehabilitation as demonstrated by his cooperation with LSO officials in
disclosing his prior conduct and his exemplary work history where the Individual has demonstrated
good judgment and has carried out his employment assignments in a very responsible manner.
Consequently, I find that the Individual has resolved the security concerns arising from the
Criterion L derogatory information recorded in the Notification Letter.
VI. Conclusion
In the above analysis, I found that there was reliable information that raised substantial doubts
regarding the Individual’s eligibility for a security clearance under Criteria K and L of the Part 710
regulations and the Bond Amendment. After considering all of the relevant information, favorable
and unfavorable, in a comprehensive, common-sense manner, including weighing all of the
testimony and other evidence presented at the hearing, I find that the Individual has presented
sufficient information to resolve the security concerns raised by the Criteria K and L derogatory
information recorded in the Notification Letter and that the Individual is not barred by the Bond
Amendment from possessing a security clearance. Thus, I conclude that restoring the Individual’s
suspended DOE access authorization “will not endanger the common defense and is clearly
consistent with the national interest.” 10 C.F.R. § 710.7(a). Consequently, I find that the
Individual’s access authorization should be restored.
Richard A. Cronin, Jr.
Administrative Judge
Official of Hearings and Appeals
Date: September 29, 2016