PSH-17-0018

*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 27, 2017 ) Case No.: PSH-17-0018
)
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Issued: May 25, 2017
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (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 not be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. On October 5, 2016, the individual tested positive for cocaine during a
random drug and alcohol test. Because this incident raised security concerns, the local security
office (LSO) summoned the individual for a Personnel Security Interview (PSI) in December
2016.
On March 1, 2017, after reviewing the transcript of the PSI and the individual’s personnel
security file, the LSO sent the individual a letter (Notification Letter) advising him that the DOE
possessed reliable information that created substantial doubt regarding his eligibility to hold
access authorization. In an attachment to the Notification Letter, the LSO explained that the
derogatory information fell within the purview of 50 U.S.C. § 3343(b) (the Bond Amendment)
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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and Guidelines E and H of the Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information (December 29, 2005) (the Guidelines).
Upon his receipt of the Notification Letter, the individual exercised his right under the Part 710
regulations by requesting an administrative review hearing. The Director of the Office of
Hearings and Appeals (OHA) appointed me the Administrative Judge in the case, and I
subsequently conducted an administrative hearing in the matter. At the hearing, the individual
presented the testimony of one witness and testified on his own behalf. The DOE Counsel did
not present any witnesses. The LSO submitted seven exhibits into the record; the individual
tendered two exhibits. The DOE’s exhibits will be cited in the Decision as “Ex.” followed by a
numeric designation and the individual’s exhibits will be cited as “Ex.” followed by an
alphabetic designation. The hearing transcript in the case will be cited as “Tr.” followed by the
relevant page numbers.2
II. Regulatory Standards
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
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
2 OHA decisions are available on the OHA website at www.energy.gov. A decision may be accessed by entering the
case number in the search engine at www.oha.gov/search.htm.
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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 Associated Security Concerns
As previously mentioned, the Notification Letter included a statement of derogatory information
that raised concerns about the individual’s continued eligibility for access authorization. The
information in the letter specifically cites the Bond Amendment and Guidelines E and H.
The Bond Amendment provides, in pertinent part, 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. 50 U.S.C. § 3343(b). As support of its invocation of this amendment, the Notification
Letter cites the results of the individual’s random drug test, in which he tested positive for
cocaine, and the individual’s admission that he snorted two piles of cocaine on October 2, 2016.
Guideline E addresses “[c]onduct involving questionable judgment, lack of candor, dishonesty,
or unwillingness to comply with rules and regulations,” as this “can raise questions about an
individual’s reliability, trustworthiness and ability to protect classified information.” Guideline E
at ¶ 15. Among the conditions set forth in the Guidelines that could raise a disqualifying security
concern is “personal conduct or concealment of information about one’s conduct, that creates a
vulnerability to exploitation, manipulation, or duress.” Guideline E at ¶ 16 (e). The Guidelines
note that this can include “engaging in activities which, if known, may affect the person’s
personal, professional, or community standing[.]” Guideline E at ¶ 16 (e)(1). As a basis for
invoking Guideline E, the Notification letter cites the individual’s decision to snort two piles of
cocaine.
Guideline H concerns, in pertinent part, the illegal use of controlled substances.
Guideline H at ¶ 24. The illegal use of controlled substances “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.” Id. Among the conditions set forth in the Guidelines that could raise
disqualifying security concerns are “testing positive for illegal drug use” and “any illegal
drug use after being granted a security clearance.” Guideline H at ¶ 25 (b) and (g). The
Notification Letter supports the use of Guideline H, citing the individual’s random drug
analysis, which tested positive for cocaine, and the individual’s admissions during the PSI
that he ingested cocaine and knew, that as a clearance holder, cocaine use was a violation
of DOE policy.
IV. Findings of Fact
On October 5, 2016, the individual was randomly selected for drug and alcohol testing. Ex. 5 at
3. On October 10, 2016, the individual was notified that his urine sample tested positive for
cocaine. Ex. 6 at 1. As a result of the positive drug test, the individual was suspended from work
for 30 days and required to complete a drug treatment program. Ex. 6 at 1. The individual
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successfully completed an outpatient treatment program and additionally attended 14 group
support meetings. Ex. 5 at 6-7; Ex. A.
In December 2016, the individual participated in a PSI. During the PSI, the individual admitted
to snorting two piles of cocaine offered to him at a party three days prior to his random testing.
Ex. 7 at 20. The individual claimed he had never before used cocaine or any other illegal drug.
Ex. 7 at 24, 46-53. Additionally, the individual stated that he had not shared the events
surrounding the cocaine use or drug test with his wife. Ex. 7 at 60.
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 not be restored. I
cannot 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.
A. Guideline H: Drug Use and the Bond Amendment
At the hearing, the individual did not dispute the allegations in the Notification Letter pertaining
to his drug use. Tr. at 44. Instead, he attempted to demonstrate, through his testimony and that of
his witness, that this incident was a single lapse of judgment and would not occur again. Id. at
43.
The individual acknowledged that he did use cocaine within a week of taking the drug test;
however, he asserted that he has never used illegal drugs on any other occasion and does not
knowingly associate with illegal drug users. Id. at 24-25, 28. According to the individual, it was
merely “by chance” that he was selected for a random drug test within a week of his first use of
an illegal drug. Id. at 29. He stated that he did not know what inspired him to use the drug
indicating that it was “in the heat of the moment” at a party in celebration of his long-time friend.
He explained that he had just turned fifty years old and thought of doing “something out of the
norm.” Id. at 31, 50, 52. The individual described the behavior as “boys being boys.” Id. at 36.
While the individual asserted that this conduct was “totally out of [the] norm” for him, he did not
present any witnesses who were able to speak to his normal behavior in a social setting and
corroborate his testimony. Id. at 17, 38. However, providing credence to his assertion, there is no
evidence in the record indicating that the individual has ever tested positive for drugs in the past.
He testified that he has been randomly drug tested a number of times in the past four years since
working for his employer, and that he has never tested positive for illegal drugs. Id. at 27.
Furthermore, the Occupational Medicine Department at the individual’s employment confirmed
that the individual has been randomly drug tested on three occasions in the past three years and
that the individual’s drug screens were all negative. Ex. B. The individual’s supervisor also
testified that, in nearly four years of working with the individual, he has never suspected the
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individual of drug use. Id. at 9-10. Finally, the individual described himself as a “special case,”
as he was not diagnosed with a drug abuse disorder in the psychiatric evaluation portion of his
drug treatment program, nor did he test positive on any of the random urinalysis testing
administered during the program. Id. at 55; Ex. A. He described his experiences in the drug
treatment program and the support group meetings as “eye-awakening.” Id. at 54.
Considering these facts, I conclude that the individual’s use of cocaine happened under an
unusual circumstance that is unlikely to occur in the future; and to the extent that the behavior
raised security concerns under Guideline H, I conclude that such concerns have been
successfully resolved. I further conclude, for the same reasons, that the individual is not “an
unlawful user of a controlled substance or an addict,” within the meaning of the Bond
Amendment. See Guideline H; Personnel Security Hearing, Case No. PSH-14-0003.
B. Guideline E: Personal Conduct
Notwithstanding the conclusion that the individual resolved the security concerns under
Guideline H, I must still consider whether the individual poses a risk to national security under
Guideline E. The key issue under Guideline E is whether the individual brought forth sufficient
evidence to demonstrate that he is reliable, trustworthy, and no longer vulnerable to exploitation,
manipulation, or duress as a result of his conduct. See Guideline E at ¶ 15.
Under Guideline E, conditions that may mitigate security concerns include the individual making
prompt and good faith efforts “to correct the omission, concealment, or falsification before being
confronted with the facts,” and taking “positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress.” Id. at ¶ 17 (a) and (e).
During the hearing, the individual testified that, aside from his supervisor, he had not voluntarily
told anyone about the incident, including his wife of twenty years or his children. Tr. at 40, 58.
While the individual stated both during the PSI and at the hearing that he would eventually tell
his wife, he stated that this was a “need-to-know” situation, and he did not want his family to
know about the drug use or the positive drug test. Id. at 40, 47, 57; Ex. 7 at 64. The individual
admitted that while he was suspended from work and attending the drug treatment program, he
told his wife that he had suffered an injury, was unable to work, and was seeking medical
treatment. Id. 40, 57. In spite of his lack of honesty with his wife, the individual stated that he did
not believe this affected his trustworthiness, nor did he think he was susceptible to blackmail. Id.
41-42.
Based upon the foregoing, the individual has not met his burden to show that he is not a security
risk under Guideline E. In keeping this information from his wife and family, the individual
makes himself vulnerable to exploitation, manipulation, and duress. The individual did not
demonstrate any evidence that he has taken any steps to reduce or eliminate his risk of
exploitation and did not show any indications of planning to do so in the near future. To the
contrary, the individual made it clear that he did not want anyone to know about this incident or
these administrative proceedings, stating “this is between me and the people that know. And I’d
like to try to keep it that way, please.” Tr. at 57. Therefore, I find that the individual has not
resolved the security concern under Guideline E.
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VI. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raises serious security concerns under Guidelines E and H. After
considering all 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 Guideline H. However, the individual has not brought forth
sufficient evidence to resolve the security concerns associated with Guideline E. I therefore
cannot find that restoring the individual access authorization will not endanger the common
defense and is clearly consistent with the national interest. Accordingly, I have determined that
the DOE should not restore the individual’s 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.
Kimberly Jenkins-Chapman
Administrative Judge
Office of Hearings and Appeals
Date: May 25, 2017