PSH-17-0004

United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: February 2, 2017 ) Case No.: PSH-17-0004
)
_________________________________________ )
Issued: May 10, 2017
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (“the Individual”) for access
authorization under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R. Part 710,
Subpart A, 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 access authorization should be restored at this time.
I. Background
The Individual is employed by the DOE in a position that requires him to hold a DOE security
clearance. The Local Security Office (LSO) received potentially derogatory information regarding
the Individual’s past drug use. In order to address that concern, the LSO summoned the Individual
for an interview (PSI) with a personnel security specialist in August 2015.
On December 6, 2016, the LSO sent a letter (Notification Letter) to the Individual advising him
that it possessed reliable information that created a substantial doubt regarding his eligibility to
hold a security clearance. See 10 C.F.R. § 710.21. After receipt of the Notification Letter, the
Individual exercised his right under the Part 710 regulations to request an administrative review
hearing. The LSO forwarded this request to the Office of Hearings and Appeals (OHA), and the
OHA Director appointed me as the Administrative Judge. At a hearing convened pursuant to
10 C.F.R. § 710.25 (d), (e), and (g), I took testimony from the Individual and two other witnesses.
See Transcript of Hearing, Case No. PSH-17-0004 (Tr.). The LSO submitted eight exhibits
1 Access authorization, also known as a security clearance, is an administrative determination that an individual is
eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.
2
marked as DOE exhibits (DOE Ex.) 1 through 8. The Individual submitted three exhibits marked
as Individual’s Exhibits (Ind. Ex.) A through C.
II. Regulatory Standard
The procedures for determining eligibility for security clearances set forth at 10 C.F.R. Part 710
dictates 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 and 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 [or her] 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). This standard implies
that there is a presumption against granting or restoring a security clearance. 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); see also Dep’t of the Navy v.
Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national interest” standard indicates
“that security determinations should err, if they must, on the side of denials”).
III. Notification Letter and Associated Security Concerns
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security
clearance. That information pertains to Guidelines E and H of the Revised Adjudicative Guidelines
for Determining Eligibility for Access to Classified Information, The White House (December 29,
2005) (December 29, 2005) (Adjudicative Guidelines or Guidelines). Under Guideline E, the LSO
alleges that the Individual has engaged in conduct involving questionable judgment, lack of
candor, dishonesty, or unwillingness to comply with rules and regulations. Such conduct can raise
questions about an individual’s reliability, trustworthiness, and ability to protect classified
information. Among those conditions set forth in the Guidelines that could raise a disqualifying
security concern are “deliberate omission, concealment, or falsification of relevant facts from any
personnel security questionnaire, personal history statement, or similar form used to conduct
investigations, determine employment qualifications, award benefits or status, determine security
clearance eligibility or trustworthiness, or award fiduciary responsibilities” and “personal conduct
or concealment of information about one's conduct, that creates a vulnerability to exploitation,
manipulation, or duress.” Guideline E at ¶ 16 (a), (b), and (e). As support for its security concerns
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under Guideline E, the LSO cites the Individual’s failure to disclose on his February 2011
Questionnaire for National Security Positions (QNSP) that he had used marijuana in December
2010. In addition, the LSO cites the Individual’s use, purchase, and distribution of marijuana,
Lysergic acid diethylamide (LSD), and Methylenedioxymethamphetamine (MDMA) while
holding an active security clearance.2
Under Guideline H, the LSO alleges that the Individual has used an illegal drug, which can raise
questions about the Individual’s reliability and trustworthiness. Among the conditions set forth in
the Guidelines that could raise a disqualifying security concern are “illegal drug possession,
including cultivation, processing, manufacturing, purchase, sale, or distribution” and “any illegal
drug use after being granted a security clearance.” Guideline H at ¶ 25 (c) and (g). As support for
its security concerns under Guideline H, the LSO cites the Individual’s use and distribution of
marijuana, LSD, and MDMA between December 2010 and October 2012.
I find that there is derogatory information in the possession of the DOE sufficient to raise serious
security concerns under Guidelines E and H.
IV. Hearing Testimony and Evidence
The Individual was hired for summer internship employment during his first year in college, when
he was 18 years of age. Tr. at 48. As a result of that employment, he completed a QNSP in
February 2011. DOE Ex. 8. At that time, he denied all illicit drug use within the previous seven
years. Id. He was granted an access authorization and began working for the DOE in late May
2011. Tr. at 48; DOE Ex. 5 at 13. He continued to work for the DOE during the summer and
winter breaks from college. Tr. at 65; DOE Ex. 5 at 13. After graduating from college, the
Individual was hired for a full-time position at the DOE and completed another QNSP in October
2014. DOE Ex. 6. On the October 2014 QNSP, the Individual stated that he used marijuana on
three occasions, between December 2010 and December 2011. Id. at 26. He stated that those
dates were estimates. Id. He admitted that he held a security clearance when he used the
marijuana.3 Id. at 27. Also on the October 2014 QNSP, the Individual admitted he used MDMA
approximately six times at concerts. Id. at 28. He estimated his dates of usage as June 2011 to
October 2012. Id. at 27. Finally regarding his usage on the October 2014 QNSP, the Individual
admitted that he used LSD four times between June 2011 and October 2012. Id. at 28.
Also on the October 2014 QNSP, the Individual answered in the positive when asked whether he
had been involved in the “illegal purchase, manufacture, cultivation, trafficking, production,
transfer, shipping, receiving, handling or sale of any drug or controlled substance” within the
previous seven years. DOE Ex. 6 at 28. The Individual stated that he never purchased marijuana
for his own use, but would “pick it up for [his] friends who smoked.” Id. at 29. He did admit to
purchasing LSD three times for his own usage and MDMA approximately four times, again for
his own usage. Id. at 29-30. In addition, the Individual admitted to picking up LSD twice and
2 The Individual denies purchasing marijuana, even for his own use. He did admit that he purchased LSD and MDMA
for his own use.
3 Although the Individual was not working for the DOE during the academic year, he maintained his security clearance
during that time.
4
MDMA three times for his friends. Id. at 29-30. On the October 2014 QNSP, he stated that he
knew the drug dealer, who was a member of his fraternity, and would pick the drugs up for friends
to “be a nice guy.” Id. at 29-30. He confirmed this at the hearing. Tr. at 63. He testified that his
friends would text the drug dealer first, and other than delivering the money and then the drugs, he
received no compensation for the activity. Tr. at 35. Like his usage, the Individual admitted that
he held a security clearance when engaging in these activities, which he estimated spanned the
dates of January 2011 to August 2012. Id. at 29-30.
At the hearing, the Individual was asked about the confusion regarding his dates of illegal drug
usage. Tr. at 31-32. On the February 2011 QNSP, he denied all illicit drug use within the previous
seven years; however, on the October 2014 QNSP, the Individual listed his illegal drug activity
for marijuana, LSD, and MDMA as December 2010 to August 2012.4 DOE Ex. 6 at 27-30. At
the PSI, the Individual stated that “nothing has happened since I’ve been out of college, or even in
the last two years of college.” DOE Ex. 5 at 4. Also at the PSI, when asked to pinpoint his use of
MDMA, the Individual began by saying “summer.” DOE Ex. 5 at 7. When the personnel security
specialist conducting the interview suggested June as the date, the Individual stated that June 2011
was “believable.” Id. At the hearing, the Individual was questioned regarding what he told the
personnel security specialist. “Q. Okay. But you also told [the personnel security specialist] while
you were under oath that you first used that during the Summer of 2011? A. Yes, May is -- May
was summer to me; we get out of school in May, at the beginning of May.” Tr. at 49. At the PSI,
the Individual stated that he was not sure when he first used marijuana. He stated that it was
sometime during his first year of college, but he was not sure of the exact date. DOE Ex. 5 at 16.
Q. Do you remember what you said to that, when he asked you when the first time
was, that you used Marijuana?
A. I do.
Q. All right. What was that answer?
A. I said I didn't really know; I had to sit there and kind of think about it.
Q. So why is your answer today different than it was a year and a half ago?
A. I just had time to think about it now. I found [the personnel security specialist]
very intimidating and scary, I guess you could say. I didn't even know what that
meeting was going to be about. And then I kind of just walked into a buzz saw. But
after, you know, having time to think about it not under as much pressure, I realized
that I was wrong.
Tr. at 32. The Individual stated that the last day of his illegal drug usage was October 28, 2012.
Tr. at 57. See also, DOE Ex. 5 at 8.
At the hearing, the Individual did not dispute that he used marijuana one time prior to completing
his February 2011 QNSP. Tr. at 30. In addition, he does not dispute that he used marijuana, LSD,
and MDMA on a number of occasions while he held an active security clearance. Tr. at 30. In
fact, the Individual admitted to his drug use on his October 2014 QNSP. DOE Ex. 6 at 31. At the
hearing, he testified that he used marijuana in December 2010, approximately two months prior to
completing his first February 2011 QNSP. Tr. at 31. He stated that he did not list his marijuana
use on the February 2011 QNSP because he did not intend to use marijuana again. Tr. at 31.
4 These dates span all drug activity, including usage and distribution.
5
As to his later use of marijuana, LSD, and MDMA, the Individual testified that he never used or
handled those illegal substances while he was working at the DOE. Tr. at 65. He stated that he
did realize he still held an active security clearance, but since he did not have access to any secured
information, he did not realize it mattered and he was just “stupid.” Tr. at 65; DOE Ex. 5 at 13.
Further, the Individual stated at the PSI that he did not use drugs during the summer because he
was away from college. DOE Ex. 5 at 14. He stated his drug use was limited to when he was on
campus. Tr. at 65; DOE Ex. 5 at 14. The Individual expounded on his statement that he distributed
illegal drugs, testifying that there was a brother in his fraternity who dealt drugs. Tr. at 34, 37. He
stated that, if he was heading to his fraternity, very occasionally someone in his dormitory would
indicate that the drug dealer was holding drugs for the Individual to pick up and bring back to the
dormitory for the other person’s use. Tr. at 34, 37. He asserted that at no time did he initiate a
transaction, Tr. at 34, 37, and that the person asking the Individual to pick up the drugs would text
the dealer in advance. Tr. at 54, 56. On his October 2014 QNSP, during the PSI, and at the
hearing, the Individual avowed that he never received compensation for delivering the illegal
drugs, but rather was doing a favor for friends. DOE Ex. 6 at 29-30; DOE Ex. 5 at 6, 19; Tr.at 35.
Further, he stated that he was only 18 or 19 at the times he was involved in any type of illegal drug
activity. The Individual is presently 24 years old and has matured since his first and second years
in college. Tr. at 31. He asserted that he stopped using and distributing illegal drugs because he
“stopped hanging out with . . . bad influence type of people.” DOE Ex. 5 at 7. See also, Tr. at 35,
37, 40, 48, 62. He further asserted that he has never done illegal drugs with his girlfriend, with
whom he lives. Tr. at 45-46. At the PSI, the Individual stated that he stopped because he grew up
and became more mature, continuing, “I also have a girlfriend. She straightened me out.” DOE
Ex. 5 at 9.
The Individual presented the testimony of his supervisor and another co-worker who attested to
his truthfulness and reliability. Tr. at 11, 21-22. However, when confronted with the fact that the
Individual may have been involved in distributing illegal drugs, the Individual’s supervisor
indicated that he may have trouble trusting the Individual in the future. Tr. at 14, 16-17. That
witness did complete his testimony by saying “I haven't had any problem, no, he's been -- I mean,
as an . . . employee, he's exactly the kind of person you're looking for. He's very -- very good at
what he does.” Tr. at 17. The Individual’s co-worker testified, “What they do in school,
unfortunately, and part of the growing-up process and being immature and -- is -- like I say, is very
unfortunate. Does that mean they're always -- you know, because they make bad judgment case
in something like that, are they always going to be a bad person? And -- I don't think so.” Tr. at
28.
V. Administrative Judge’s Findings and 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 access authorization should be restored at this time. I find that
restoring the Individual’s DOE security clearance will not endanger the common defense and
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security, and is 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.
I found the Individual to be credible, honest, and forthcoming in his testimony. His demeanor
indicated to me that he was telling the truth at the hearing. He was straight forward and did not
waiver in his answers. He made eye contact with me and the attorneys questioning him. He did
not appear to be edgy or agitated. While he was not relaxed, the Individual did not seem overly
nervous while testifying. He admitted that he made mistakes while in college. The fact that he
could not pinpoint the exact dates of his usage on the QNSP and for the Personnel Security
Specialist could be of some concern, but for the fact that these events happened over five years
ago at a time when he was in a stressful situation in a competitive college atmosphere. At the time
of his various illegal drug activities, they were not important enough for the Individual to retain
them in his memory. Further, other than some discrepancies in dates, the Individual’s memory of
what and where events occurred has rarely varied.
A. Guideline E
The LSO listed the Individual’s December 2010 marijuana use and his failure to provide that
information on his February 2011 QNSP, along with his subsequent illegal drug use while holding
an active DOE security clearance, to show that he engaged in conduct involving questionable
judgment, lack of candor, dishonesty, or unwillingness to follow rules and regulations. The LSO
properly raised the security concern because the Individual deliberately failed to disclose his
marijuana use on his QNSP.5 Further, he admitted that he knew he held an active security
clearance when he used marijuana, LSD, and MDMA between May 2011 and October 2012. Such
behavior shows that the Individual fails to follow rules, laws, and/or regulations. I find that there
is sufficient evidence in the record to support these claims. The Individual admitted to his drug
use on his October 2014 QNSP, during an August 2015 PSI, and at the hearing. He testified that
when he used the illicit drugs, he had no access to security information, because he was not
working at the DOE facility at the time. In addition, he stated that he has matured since his drug
use, which occurred during his first and second years of college, when he was 18 and 19 years of
age.
The Adjudicative Guidelines provide a number of potential conditions which can mitigate this type
of security concern, including that “the individual made prompt, good-faith efforts to correct the
omission, concealment, or falsification before being confronted with the facts.” Adjudicative
Guidelines ¶ 17 (a). In this case, the Individual disclosed his drug involvement on his own, prior
to being confronted with the facts. Although there was a discrepancy in his memory between the
October 2014 QNSP and hearing and the PSI, as stated above, I found the Individual to be credible
and candid in his testimony. In fact, it is because he was honest on the October 2014 QNSP that
the Individual has had his security clearance suspended. His use occurred while he was in college,
over five years prior to the hearing when he was 18 and 19 years old. He no longer associates with
those people with whom he did drugs. The Individual testified that his current girlfriend made
5 At the PSI, the Individual could not pinpoint the date of his first marijuana usage other than during his first year in
college. On the October 2014 QNSP and at the hearing, he confirmed the date as December 2010, two months prior
to completing the February 2011 QNSP.
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him realize he should not be engaging in illegal drug activity. Therefore, the Individual has
resolved the security concerns of the LSO, pursuant to Adjudicative Guidelines ¶ 17 (a).
Another possible mitigating factor is that “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.”
Adjudicative Guidelines ¶ 17 (c). A significant amount of time has passed since the Individual’s
last use of an illegal drug in October 2012. Further, the Individual has graduated from college,
started studying for an advanced degree, and obtained full-time employment. In previous cases,
an Administrative Judge has taken testimony that an individual’s brain does not mature until he is
in his early twenties. Personnel Security Decision, Case No. PSH-13-0012 (2013). In that case,
an Individual’s psychologist emphasized the importance of considering the developmental stages
of the brain regarding judgment and decision-making. Id. at 6. She testified:
The prefrontal lobe, the largest part of the brain, houses the prefrontal cortex, which
mediates the capacity to exercise good judgment and is one of the last brain regions
to reach maturation, due to the developmental stages tending to occur in the back-
to-front pattern. Brain research indicates brain development is not complete until
sometime in the twenties due to the increase in myelin (lipid sheath covering axons
that promotes connectivity). As myelin increases, there is a heightened flow of
information between regions, whereby, the prefrontal cortex is gradually enabled
to oversee and regulate behavioral responses initiated by more primitive limbic
structures, which are the source of emotional behaviors. During the teen-age-years,
individuals are not thinking about the effects of their behavior on others; this
process requires insight and insight requires fully connected frontal lobes.
Therefore adolescents rely more on input from the limbic system (primitive and
emotional) for information to govern behaviors. The maturation of the judgment,
decision-making, problem-solving, and behavioral regulation of [the individual’s]
frontal lobes has progressed in the last six years considerably, enabling an adult’s
processing.
Id. at 6. When taking into consideration that the Individual was 18 or 19 when he last engaged in
the behavior which raised the security concern five years prior to the hearing, I find that the
Individual has resolved the security concerns of the LSO, pursuant to Adjudicative Guidelines
¶ 17 (c).
The Adjudicative Guidelines also provide for mitigation where “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,” id. at ¶ 17 (d), or where
“association with persons involved in criminal activities has ceased or occurs under circumstances
that do not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness
to comply with rules and regulations.” Id. at ¶ 17 (f). The Individual’s illegal drug use occurred
during his first two years of college. Further, the Individual’s drug usage occurred only while he
was at college. He has completed his degree and is no longer in that environment. His drug
involvement is unlikely to recur out of the college setting. He testified that he no longer associates
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with the Individuals with whom he used drugs in the past, and stopped associating with them at
least two years prior to his college graduation. For the reasons set forth herein, I find that the
Individual has resolved the security concerns of the LSO, pursuant to Adjudicative Guidelines
¶ 17 (d) and (f).
B. Guideline H
With respect to Guideline H, the LSO’s allegation of security concerns is justified by the
Individual’s illegal drug use and distribution of illegal drugs. Such illegal drug use can impair
judgement and may raise questions about a person’s ability or willingness to comply with laws,
rules, and regulations. Adjudicative Guidelines ¶ 24.
The record shows that the Individual used and distributed illegal drugs, even after being granted a
security clearance. In response, the Individual testified that, although he knew his security
clearance was active, he was not working at the DOE and had no access to secured information.
Further, as to the LSO concern that he was distributing illegal drugs, the Individual does not deny
that he picked up illegal drugs and delivered them to other individuals. He testified that he received
no remuneration for carrying the drugs for the drug dealer to his friends. He also admitted that he
purchased LSD and MDMA for his personal use. The Individual does not deny the concerns raised
by the LSO. Therefore, I find that there is sufficient evidence in the record to support the concerns
raised by the LSO under Guideline H.
In considering whether the Individual has resolved a Guideline H security concern, I must look to
paragraph 26 of the Adjudicative Guidelines which provides that mitigating conditions include:
(a) 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;
(b) a demonstrated intent not to abuse any drugs in the future, such as:
(1) dissociation from drug-using associates and contacts;
(2) changing or avoiding the environment where drugs were used;
(3) an appropriate period of abstinence;
Adjudicative Guidelines ¶ 26 (a) and (b).
As stated above regarding Guideline E, the Individual last used and distributed illegal drugs during
his first and second years of college, when he was 18 and 19 years old. He is now 24 years old.
Further, he testified that he no longer associates with those people with whom he used the illegal
drugs and stopped associating with them two years prior to his college graduation. The Individual
testified that his significant other, with whom he cohabitates, does not use illegal drugs nor have
they ever used illegal drugs together. In fact, he testified that his girlfriend “straightened [him]
out.” When asked about returning to college for parties, the Individual responded that he has not
been to a party at his college since before he graduated. When he returned to school after
graduation, it was for a wedding and a funeral. Due to the Individual’s maturation discussed in
regard to Guideline E above, I find that the Individual has resolved the security concerns of the
LSO, pursuant to Adjudicative Guidelines ¶ 29 (a) and (b).
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Based on the foregoing, I find that the Individual has resolved the concerns raised by the LSO,
pursuant to Adjudicative Guideline H.
VI. Conclusion
In the above analysis, I have found that there was derogatory information in the possession of the
DOE that was sufficient to raise serious security concerns under Guidelines E and H. After
considering all of 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 brought forth sufficient evidence to resolve the
security concerns associated with those Guidelines. I therefore find that restoring the Individual’s
access authorization will not endanger the common defense and is clearly consistent with the
national interest. Accordingly, I have determined that the Individual’s access authorization should
be restored. The parties may seek review of this Decision by an Appeal Panel under the regulations
set forth at 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals
Date: May 10, 2017