PSH-17-0017

*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: March 22, 2017 )
) Case No.: PSH-17-0017
Issued: May 31, 2017
Administrative Judge Decision
Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXX XXXXX XXXXX (hereinafter referred to as
“the Individual”) for access authorization under the Department of Energy’s (DOE) 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, after
carefully considering the record before me in light of the relevant regulations and the
Adjudicative Guidelines, I conclude that the Individual’s security clearance should be restored.2
I. BACKGROUND
On December 2, 2016, the Individual submitted an Electronic Questionnaire for Investigations
Processing (eQIP) to the Local Security Office (LSO). In his eQIP, the Individual reported that he
had been using marijuana during a time period in which he held a DOE security clearance. This
information raised concerns regarding the Individual’s eligibility to hold a security clearance. In
order to address those concerns, the LSO conducted a Personnel Security Interview (PSI) of the
Individual on January 5, 2017. Because the PSI did not resolve the security concerns raised by the
Individual’s marijuana use, the LSO began the present administrative review proceeding by issuing
a Notification Letter to the Individual informing him that he was entitled to a hearing before an
Administrative Judge, in order to resolve the substantial doubt regarding his eligibility for a security
clearance. See 10 C.F.R. § 710.21. The Individual requested a hearing and the LSO forwarded the
1 Under the Regulations, “Access authorization” means 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 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.energy.gov/OHA.
**This document contains information which is subject to withholding from disclosure
under 5 U.S.C.
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Individual’s request to the OHA. The Director of OHA appointed me as the Administrative Judge
in this matter on March 24, 2017. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e)
and (g), I took testimony from the Individual. See Transcript of Hearing, Case No. PSH-17-0017
(hereinafter cited as “Tr.”). The LSO submitted four exhibits, marked as DOE Exhibits A through
D (hereinafter cited as “Ex.”). The Individual submitted no exhibits.
II. THE NOTIFICATION LETTER AND THE 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 Adjudicative Guidelines for Determining
Eligibility for Access to Classified Information (December 29, 2005) (the Guidelines).
The LSO alleges, under Guideline H, that the Individual used marijuana several times during the
time period beginning in December 2013, and continuing until July 2016. Use of an illegal 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. Guideline H at ¶ 24. Under the Guidelines, marijuana is considered
to be an “illegal drug.” Guideline H at ¶ 24(a)(1). The LSO further alleges that the Individual’s
use of a controlled substance prohibits him from possessing an access authorization pursuant to the
Bond Amendment, codified at 50 U.S.C. § 3343(b), which states that security clearances cannot be
maintained by a “person who is an unlawful user of a controlled substance….” The Individual’s
admission that he used marijuana from 2013 until July 2016 adequately justifies the LSO’s
invocation of Guideline H and the Bond Amendment.
The LSO alleges, under Guideline E, that the Individual used marijuana while maintaining a DOE
security clearance. Use of an illegal drug while maintaining a security clearance exhibits an
unwillingness or inability to comply with rules and regulations which can in turn raise questions
about that individual’s judgment, reliability, trustworthiness, and ability to protect classified
information. Guideline E at ¶ 15. The Individual’s admission that he repeatedly used marijuana
while holding a security clearance adequately justifies the LSO’s invocation of Guideline H.
III. REGULATORY STANDARDS
The Administrative Judge's role in this proceeding is to evaluate the evidence presented by the
agency and the Individual, and to render a decision based on that evidence. See 10 C.F.R.
§ 710.27(a). The regulations state that:
The decision on an access authorization request is a comprehensive, common-sense
judgment, made after consideration of all relevant information, favorable and
unfavorable, as to whether the granting or continuation of access authorization will
not endanger the common defense and security and is clearly consistent with the
national interest. Any doubt as to an individual’s access authorization eligibility
shall be resolved in favor of the national security.
10 C.F.R. §§ 710.7(a). In rendering this opinion, I have considered the following factors:
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The nature, extent, and seriousness of the conduct; the circumstances surrounding
the conduct, to include knowledgeable participation; the frequency and recency of
the conduct; the age and maturity of the individual at the time of the conduct; the
voluntariness of participation; the absence or presence of rehabilitation or
reformation and other pertinent behavioral changes; the motivation for the conduct;
the potential for pressure, coercion, exploitation, or duress; the likelihood of
continuation or recurrence; and other relevant and material factors.
See 10 C.F.R. § 710.7(c). The discussion below reflects my application of these factors to the
testimony and exhibits presented by both sides in this case.
IV. FINDINGS OF FACT
On December 14, 2016, the Individual submitted an eQIP to the LSO. In this eQIP, the Individual
admitted that he had “either smoked or ingested edible marijuana on a few separate, very isolated
occasions.” Ex. B at 26. The Individual’s eQIP indicates that his marijuana use occurred during a
period beginning in December 2012, and ending in June 2016.3 The Individual reported that he
used marijuana while holding a security clearance. Ex. B at 27. The Individual also stated that he
does not intend to engage in illegal drug use in the future. Ex. B at 27.
On January 5, 2017, the LSO conducted a PSI of the Individual. During this PSI, the Individual
acknowledged that he had used marijuana and other illegal drugs frequently as a teenager and
young adult, but had given them up until about a year after he received his security clearance. Ex.
C at 3-8. The Individual then described a history of sporadic marijuana use as an access authorized
employee of a DOE contractor. Ex. C at 9-12. The Individual reported that his last use of marijuana
occurred on the Fourth of July weekend of 2016. Ex. C at 10. The Individual admitted that he
used marijuana at times when he was less likely to get caught. Ex. C at 10. He further admitted
that he realized he was putting his security clearance at risk by using marijuana. Ex. C at 17. When
the Individual was asked why he reported his marijuana use, he stated that he wanted to be “honest”
and did not want to have “secrets going forward.” Ex. C at 24.
V. ANALYSIS
At the hearing, only one witness testified: the Individual. The Individual testified that he had a
difficult childhood which led him to use drugs and alcohol from the age of 14 until 19, when he
began dating his future spouse. Tr. 13-15. At the age of 19, he and his future wife moved to
another town, where the Individual maintained a drug-free lifestyle. Tr. at 13. The Individual
moved back to his hometown and began working for a DOE contractor in a position that required
him to have a security clearance. Tr. at 14. However, returning to his hometown resulted in the
Individual experiencing an “identity crisis” which led to his marijuana use. Tr. at 14. As the
Individual testified at the hearing:
I was now internally struggling with which version of myself I was; the upstanding,
confident leader I had become or the teenager that smoked pot all the time and got
3 The Notification Letter alleges that the Individual’s marijuana use began in 2013 and concluded in July 2016.
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in trouble. I was associating with old friends again, and none of whom were aware
of the changes I had made during my time in [another town]. I believe it was this
struggle that led to my desire to occasionally smoke pot while having my clearance.
I justified it as not being very often, or by telling myself that I was on vacation and
it was okay to do, or by thinking that it would eventually be legalized anyway. The
truth that I've come to realize is that I was only lying to myself.
Tr. at 14-15. The Individual further testified that in working through some of the tribulations he
was facing in his life, he learned the value of honesty and realized that he needed to be honest about
his marijuana use. Tr. at 15-16. The Individual testified that he has chosen to abstain from future
marijuana use, and that his decision was motivated by his desire to preserve his career. Tr. at 25.
The Individual further testified that he has not used marijuana for ten months4 and that he no longer
associates with anyone who uses marijuana, except for family members who understand that they
cannot use marijuana around him. Tr. at 16. The Individual testified that his family members who
use marijuana know that he has decided to abstain from marijuana use and support his decision to
abstain.5 Tr. at 19-20. He further noted that he has never failed a drug test.6 Tr. at 17, 22. The
Individual recognized that he had been “dishonest and deceptive” in the past and apologized for
this behavior. Tr. at 17. The Individual testified that he had not tried to conceal his marijuana use
from the LSO. Tr. at 25. The Individual testified that he was unaware of his obligation to report
his illegal drug use prior to his submission of his eQIP. Tr. at 18.
Criterion H and Bond Amendment Concerns
As an initial matter, I note that, but for the Individual’s honesty when completing his eQIP, the
LSO would not have known about his marijuana use. The Individual’s candor exhibited exactly
the type of good judgment, reliability, and trustworthiness expected of a DOE security clearance
holder. Guideline H sets forth four conditions that can mitigate security concerns arising from
illegal drug use, two of which are relevant to the present case. Guideline H at ¶ 26. The first of
these conditions exists when an individual’s illegal drug use “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.” Guideline H at ¶ 26 (a).
While it cannot be said that the Individual’s illegal drug use “happened so long ago,” I am
convinced that the Individual is unlikely to use marijuana in the future and that the Individual is
currently trustworthy and reliable, and that he exhibits good judgment.
A second mitigating condition exists when an individual has established “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; [and] (3) An appropriate period
of abstinence.” Guideline H at ¶ 26(b). The Individual has convincingly testified that he intends
to abstain from future marijuana use. Moreover, he testified that he has disassociated himself from
4 The Individual testified that he last used marijuana in 2016, during the Fourth of July weekend. Tr. at 24.
5 These family members live in a state where the state government has legalized the recreational use of marijuana. Tr.
at 18, 20.
6 The Individual testified that he had been randomly tested for illegal drugs on four or five occasions while holding his
security clearance. Tr. at 23.
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drug-using associates and contacts, and is avoiding the environment where drugs were used. He
has also established a ten-month period of abstinence.
Accordingly, I find that the security concerns raised under Guideline H by the Individual’s
marijuana use have been resolved. Moreover, since I have found that the Individual is no longer a
“user” of illegal drugs, the security concerns raised by the LSO under the Bond Amendment are
also resolved.
Criterion E Concerns
The Notification Letter accuses the Individual of concealing his marijuana use. First, the
Notification Letter states that the Individual used marijuana when he was least likely to get caught.
However, that fact does not provide any additional concern about the Individual’s judgment,
reliability, and trustworthiness that was not raised under Guideline H. More problematic for the
Individual is his repeated use of an illegal drug while maintaining a security clearance, and while
he was aware that illegal drug use violated both the law and DOE security policies. The
Individual’s willingness to repeatedly disregard the law and DOE policy raises questions about his
judgment, reliability, and trustworthiness as well as his willingness to comply with rules and
regulations. Guideline E at ¶ 16(d)(3).
Guideline E sets forth six conditions which may mitigate security concerns arising under Guideline
E, two of which are relevant to the present case. Specifically, Guideline E provides that security
concerns can be mitigated when “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.” Guideline E at ¶17(d) (emphasis added). As discussed
above, the Individual has acknowledged the behavior, has changed his behavior and has taken
positive steps to alleviate the stressors, circumstances, or factors that caused his untrustworthy,
unreliable, or other inappropriate behavior, and I am convinced such behavior is unlikely to recur.
Guideline E further provides that security concerns can be mitigated when “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.” Guideline E at ¶ 17(g). As discussed above, the Individual has testified
that he no longer associates with people who use illegal drugs other than family members (who
have agreed not to use illegal drugs in his presence).7
Moreover, I find that the Individual’s self-reporting of his marijuana use, and subsequent conduct
during the present proceeding, shows that his judgment, reliability, and trustworthiness have
improved greatly since July 2016 and now suffice to allow him to maintain a DOE security
clearance. Accordingly, I find that the security concerns raised under Guideline E have been
resolved.
7 I find that the Individual’s continued association with these relatives under these circumstances does not cast doubt
upon the individual's reliability, trustworthiness, judgment, or willingness to comply with rules and regulations.
Guideline E at ¶ 17(g).
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VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Guidelines H and E.
After considering all the evidence, both favorable and unfavorable, in a common sense manner, I
find that the Individual has sufficiently mitigated the security concerns raised under Guidelines H
and E. Accordingly, the Individual has demonstrated that restoring his security clearance would
not endanger the common defense and would be clearly consistent with the national interest.
Therefore, the Individual’s security clearance should be restored at this time. The Local Security
Office may seek review of this Decision by an Appeal Panel under the procedures set forth at 10
C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals
Date: May 31, 2017