PSH-17-0045

United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: July 17, 2017 )
_________________________________________ ) Case No.: PSH-17-0045
Issued: October 6, 2017
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Administrative Judge Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (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 granted.2
I. BACKGROUND
On September 21, 2015, the Individual submitted a Questionnaire for National Security Positions
(QNSP) to the Local Security Office (LSO), in which he reported that he had used hallucinogenic
mushrooms while holding a DOE security clearance. The Individual had failed to report his use of
hallucinogenic mushrooms on six QNSPs. Because this information raised concerns regarding the
Individual’s eligibility to hold a security clearance, the LSO conducted a Personnel Security
Interview (PSI) of the Individual on April 18, 2017. The PSI did not resolve the security concerns
raised by the Individual’s hallucinogenic mushroom use and failure to report that on six QNSPs.
Accordingly, the LSO began the present administrative review proceeding by issuing a Notification
Letter to the Individual, dated June 5, 2017, 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 Individual’s request to the OHA. The Director of OHA appointed me as the
Administrative Judge in this matter on July 18, 2017. At the hearing I convened pursuant to 10
C.F.R. § 710.25(d), (e) and (g), I took testimony from the Individual, his first and second level
supervisors, a former coworker, his Alcoholics Anonymous (AA) sponsor (the Sponsor), his
certified peer support worker (the CPSW), and a fellow AA member. See Transcript of Hearing,
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.
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Case No. PSH-17-0045 (hereinafter cited as “Tr.”). The LSO submitted eleven exhibits, marked
as DOE Exhibits 1 through 11 (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 Guideline E of the Adjudicative Guidelines for Determining Eligibility
for Access to Classified Information (December 29, 2005) (the Guidelines). Guideline E provides:
“Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply
with rules and regulations can raise questions about an individual's reliability, trustworthiness, and
ability to protect classified or sensitive information.” Guideline E at § 15.
The LSO alleges that the Individual failed to report his hallucinogenic mushroom use on six QNSPs
that he filed on November 22, 2006, November 1, 2007, November 7, 2008, October 7, 2009,
November 3, 2009, and November 4, 2010, in which he reported that he had not engaged in illegal
drug use during the previous seven years or while possessing a DOE security clearance. In addition
the LSO alleges that the Individual failed to report his 1990 marijuana use on a QNSP that he
submitted on June 21, 1995. Guideline E provides that “any failure to cooperate or provide truthful
and candid answers during national security investigative or adjudicative processes” is “of special
interest.” Guideline E at § 15. The Individual’s repeated failures to report his illegal drug use
adequately justify the LSO’s invocation of Guideline E.
The LSO further alleges, under Guideline E, that the Individual used hallucinogenic mushrooms
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 used
hallucinogenic mushrooms on four occasions while holding a security clearance adequately
justifies the LSO’s invocation of Guideline E.
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
The Individual maintained a DOE security clearance from September 1995, until December 2013,
when it was revoked as a result of his Alcohol Dependence. Ex. 4 at 34, 36; Ex. 11 at 11-12, 147.
On June 21, 2014, the Individual requested reconsideration of his clearance status. Ex. 11 at 17.
On August 8, 2015, the LSO approved his request for a reconsideration. Ex. 11 at 17. On
December 14, 2016, the Individual submitted a QNSP to the LSO. In this QNSP, the Individual
admitted that he had used hallucinogenic mushrooms while he had maintained a DOE security
clearance on four occasions between 2006 and 2009. Ex. 4 at 32. The Individual submitted six
QNSPs on November 22, 2006, November 1, 2007, November 7, 2008, October 7, 2009, November
3, 2009, and November 4, 2010, in which he reported that he had not engaged in illegal drug use
during the previous seven years or while possessing a DOE security clearance. On June 21, 1995,
the Individual submitted a QNSP in which he reported that he had not engaged in illegal drug use
during the previous seven years or while possessing a DOE security clearance. The Individual
subsequently admitted that he had used marijuana in the fall of 1990. Ex. 11 at 120.
On April 18, 2017, the LSO conducted a PSI of the Individual. During this PSI, the Individual
acknowledged that he had consumed hallucinogenic mushrooms while maintaining a DOE security
clearance on four occasions during the period beginning in September 2006 and ending in June
2009. Ex. 11 at 114, 135, 160, 189. The Individual also reported that he had used marijuana in
1990. Ex. 11 at 120, 147-48. The Individual stated that he had no intent to use illegal drugs in the
future and that he had no association with illegal drug users and no intent to do so in the future.
Ex. 11 at 152-154. The Individual indicated that he had reported his hallucinogenic mushroom use
because he believes that it is important for him to be honest. Ex. 11 at 162. He attributed his need
to be honest to his becoming sober, and the importance of honesty to his AA treatment program.
Ex. 11 at 163, 186, 215. The Individual indicated that he did not previously disclose his illegal
drug use and omitted his illegal drug use from seven QNSPs because he was concerned about losing
his job and security clearance, and that he was trying to conceal his alcohol problem. Ex. 11 at
174-177, 189, 208-213, 218-220, 224. The Individual stated that his alcohol problem contributed
to the poor judgment that led him to conceal his illegal drug use. Ex. 11 at 174. The Individual
also admitted he failed to report his 1990 marijuana use on his June 21, 1995, QNSP, because he
did not want to lose his opportunity to obtain a security clearance. Ex. 11 at 199-202.
V. ANALYSIS
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At the hearing, the Individual presented testimony of his first and second level supervisors, a former
coworker, the Sponsor, his CPSW, and a fellow AA member, to successfully show that he is now
striving to be person of integrity and to maintain his sobriety. This testimony has convinced me
that the Individual has realized that his integrity and honesty are vital to his continuing sobriety.
The record further shows that, through his AA program and counseling, the Individual has
developed the judgment, reliability and trustworthiness necessary to maintain a DOE security
clearance.
The Sponsor testified on the Individual’s behalf at the hearing. The Sponsor testified that “honesty
is everything in Alcoholics Anonymous,” and that sobriety cannot be obtained or maintained
without honesty, according to AA doctrine. Tr. at 35. The Sponsor testified that the Individual has
taken the AA’s teachings concerning the importance of honesty to heart. Tr. at 36. The Sponsor
testified that the Individual had asked him whether he should disclose his previous use of
hallucinogenic mushrooms to the DOE, and that he had advised the Individual to make the
disclosure. Tr. at 36. The Sponsor testified that he had advised the Individual that he had to put
his sobriety first, which requires honesty. Tr. at 36-37. The Sponsor testified that the Individual is
now honest, because he recognizes its importance. Tr. at 39.
The CPSW testified at the hearing on the Individual’s behalf. She testified that “A certified peer
support worker is somebody that has been trained . . . to work with alcoholics and recovering
addicts, to help support them in getting back into . . . the workforce or being more productive.” Tr.
at 41. She testified that she was meeting with the Individual in order to help him maintain his
sobriety and improve his relationships. Tr. at 42. The CPSW testified about the importance of
integrity and honesty in maintaining sobriety. Tr. at 42-43. She testified that the Individual has
learned to be self-aware and honest as part of his recovery. Tr. at 43. The CPSW testified that the
Individual had talked with her, at an AA meeting, before deciding to disclose his hallucinogenic
mushroom use to DOE. Tr. at 44, 49.
A fellow AA member testified on the Individual’s behalf at the hearing. The fellow AA member
testified that he had formed a friendship with the Individual. Tr. at 52-53. The Individual testified
about how he had observed the Individual make progress with his sobriety. Tr. at 56-57. The
fellow AA member testified that AA teaches that no progress can be made without honesty. Tr. at
57-58. The fellow AA member testified that he has observed the Individual’s commitment to
honesty. Tr. at 58-59.
The Individual testified on his own behalf at the hearing. The Individual testified that his problem
with alcohol led to his November 2012 arrest for Driving While Intoxicated, which in turn led to
him losing his DOE security clearance. Tr. at 65-67. The Individual testified that he disclosed his
illegal drug use because he found it comforting to know he was “doing the right thing.” Tr. at 69.
He further testified that he had made the disclosure after talking with his previous sponsor (who
has since passed away). Tr. at 69. The Individual testified that he realized that disclosing his illegal
drug use would also reveal his previous failures to report his illegal drug use. Tr. at 71-73. He
testified that he was more afraid of losing his sobriety than of not obtaining his security clearance.
Tr. at 72. The Individual also spoke of his need to rebuild his trustworthiness which began on his
sobriety date in January 2013. Tr. at 74. The Individual testified that he saw his past deceitfulness
as a symptom of his alcoholism. Tr. at 75-76. The Individual testified that he does not regret
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disclosing his past illegal drug use and sees his disclosure as an “opportunity to clean up my past
and to clear the record.” Tr. at 79.
The Individual’s repeated falsifications on his QNSPs violated DOE security policies and
unambiguously exhibited that he lacked the trustworthiness, reliability, and judgment necessary to
maintain a DOE security clearance. Moreover, the Individual’s 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, raised further questions about his judgment, reliability, and
trustworthiness as well as his willingness to comply with rules and regulations. Guideline E at
§ 16(d)(3). However, the Individual’s last falsification occurred on November 4, 2010, six years
and ten months prior to his hearing. During that period, the Individual has made important changes
in his life: discontinuing the use of alcohol, acknowledging his alcoholism, actively participating
in AA, maintaining his sobriety since January 2013, and obtaining counseling.
Guideline E sets forth six conditions which may mitigate security concerns arising under that
Guideline, three of which are relevant to the present case. Specifically, Guideline E provides that
security concerns can be mitigated when “the individual made prompt, good-faith efforts to correct
the omission, concealment, or falsification before being confronted with the facts.” Guideline E at
§ 17(a). In the present case the Individual has clearly made good-faith efforts to correct the
omission, concealment, or falsification before being confronted with the facts. While the
Individual’s past falsifications occurred years before he disclosed them to DOE, he promptly
disclosed his falsifications when he reapplied for his security clearance.
Guideline E further 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, in the form of immersing himself in the AA program and
obtaining counseling to alleviate the stressors, circumstances, or factors (specifically his Alcohol
Dependence) 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 “. . . so much time has
passed . . . that it is unlikely to recur and does not cast doubt on the individual's reliability,
trustworthiness, or good judgment.” Guideline E at § 17(c). As discussed above, the Individual’s
last falsification occurred on November 4, 2010, six years and 10 months before this hearing, and
the Individual has now demonstrated reliability, trustworthiness, and good judgment by disclosing
his past illegal drug use and falsifications.
Moreover, I find that the Individual’s self-reporting of his past illegal drug use and falsifications,
participation in the AA program, achievement of sobriety, participation in counseling, and
subsequent conduct during the present proceeding, shows that his judgment, reliability, and
trustworthiness have improved greatly since November 2010 and now suffices to allow him to
maintain a DOE security clearance. Accordingly, I find that the security concerns raised under
Guideline E have been resolved.
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VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Guideline 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 Guideline E.
Accordingly, the Individual has demonstrated that granting 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 granted 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: October 6, 2017