PSH-17-0059

*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 )
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Filing Date: August 25, 2017 ) Case No.: PSH-17-0059
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_________________________________________ )
Issued: January 8, 2018
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Administrative Judge Decision
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Wade M. Boswell, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (hereinafter referred to as “the
individual”) to hold an access authorization under the Department of Energy’s (DOE) regulations
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set forth at 10 C.F.R. Part 710 entitled “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 National Security Adjudicative
Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold
a Sensitive Position (June 8, 2017) (Adjudicative Guidelines), I conclude that the individual should
not be granted an access authorization.
I. Background
The individual is employed by a DOE contractor that requested a security clearance on his behalf.
While completing a Questionnaire for National Security Positions (QNSP) in December 2016, the
individual certified that, in the past seven years, he had not illegally used any drugs or controlled
substances. Ex. 10 at 10. In January 2017, during the course of an Office of Personnel Management
(OPM) investigation, an investigator asked the individual about any illegal drug use, and the
individual did not disclose any such use. Ex. 9 at 47; Tr. at 56. In April 2017, however, when OPM
confronted the individual with allegations of illegal drug use, the individual disclosed that he had
used marijuana on two to three occasions over a two month period in the spring of 2014. Id. When
the OPM investigator contacted the individual a third time in May 2017, the individual provided
additional information about his illegal drug use, disclosing six occasions of marijuana usage from
the spring of 2014 to the fall of 2015. Id. at 47-48. During a June 2017 Personnel Security Interview
(PSI), the individual stated that he did not disclose his illegal drug use for fear that “any drug use
would preclude [him] from getting a security clearance.” Ex. 4 at 20. He further indicated that he
felt that his “marijuana use was minor” and he did not believe that “any evidence of it would exist.” Id.
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On July 24, 2017, the Local Security Office (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 an access authorization. In an attachment to the Notification Letter, the LSO
explained that the derogatory information indicated that the individual had “deliberately omitted,
concealed, and falsified relevant facts from his personnel security questionnaire.” This falls within
the purview of Guideline E of the Adjudicative Guidelines.1
Upon 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 testified on his
own behalf, but chose not to submit any other testimonial evidence or exhibits into the record. The
DOE submitted twelve exhibits (Exhibits 1-12) into the record. The exhibits will be cited in the
Decision as “Ex.” followed by the appropriate numeric designation. The hearing transcript in the
case will be cited as “Tr.” followed by the relevant page number.2
II. Regulatory Standard
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
regulations require me, as the Administrative Judge, to issue a Decision that reflects my
comprehensive, common-sense judgment, made after consideration of all of 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). 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 granting
him 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.
1 The LSO did not specifically cite to Guideline E in the Notification Letter, but instead cited the language of Guideline E.
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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III. Notification Letter and Associated Security Concerns
As previously mentioned, the Notification Letter included a statement of derogatory information
that raised concerns about the individual’s eligibility for access authorization. The Notification
Letter stated that the individual “deliberately omitted, concealed, and falsified relevant facts from
his personnel security questionnaire…[and] deliberately provided false or misleading information
concerning relevant facts to an investigator during the security clearance process.”3 See Guideline
E, ¶¶ 15-16. As a basis for the listed security concerns, the LSO cited: (1) the individual’s
admissions that he used marijuana, despite his failure to disclose such usage on the QNSP; and (2)
his admission during a June 2017 PSI that the omission of his illegal drug use on the QNSP was
not accidental. This conduct describes the security concerns addressed within Guideline E.4
In light of the information available, the LSO properly invoked security concerns under Guideline E.
IV. Findings of Fact
The individual does not dispute the facts alleged in the Notification Letter, and at the hearing, he
stipulated as to the factual accuracy of the summary of security concerns attached to the
Notification Letter. Tr. at 8-9. In all areas where there are inconsistencies in the record, I have
carefully considered the totality of the record in reaching the findings of fact set forth below.
While a university student, the individual used marijuana six times from the spring of 2014 through
the fall of 2015. Tr. at 31; Ex. 9 at 47-48. During this time, the individual served on the university
judiciary at a university where such drug use violated the university honor code. Tr. at 40, 52.
Upon applying for a position on the university judiciary, the individual was asked if he used illegal
drugs, and he denied any such usage despite having used marijuana. Id. at 52-53. The individual
did not reveal his marijuana use in the application process as “it was expected that everyone would
say no.” Id. at 52.
In December 2016, when he completed the QNSP, the individual answered “no” to the Section 23
question, asking whether the individual has used illegal drugs in the past seven years. Ex. 10 at 10.
The individual understood that providing dishonest answers on the QNSP could result in fines,
imprisonment, or both. Tr. at 65. He further understood the Section 23 question and knew that,
given his past, the correct answer to the question was “yes.” Id. at 52-53. Nonetheless, the
individual answered “no” because he “wanted to see if” the QNSP was similar to his university
judiciary application in that “it was expected that everyone would say no.” Id. at 52. He also said
he believed his marijuana usage was “minor” and “did not qualify as something that was of interest
to DOE,” and he was “worried that DOE would see any drug use as major” and would disqualify
him from receiving a security clearance. Id. at 33-34.
3 As previously indicated in footnote 1, supra, the Notification Letter did not specifically cite to Guideline E; however,
it plainly described the security concerns contained within Guideline E.
4 During a prehearing conference call, the LSO stated that in using the language of Guideline E in the Notification
Letter, its intent was to clearly express that the security concerns at issue were those contained within Guideline E.
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However, as part of his deliberation over the answer to the Section 23 question, the individual
sought counsel from a friend, who was employed at another federal security agency, inquiring
whether or not there was a general pattern of behavior to be dishonest on the QNSP. Id. at 53. His
friend advised that it “was not common practice to disclose” marijuana usage on the QNSP. Id.
Ultimately, the individual felt “quite reluctant to reveal [his] marijuana usage” and, therefore,
chose not to “volunteer [the information] until confronted.” Id. at 29.
When interviewed by the OPM investigator in January 2017, he was provided the opportunity to
modify his answers on the QNSP; however, the individual declined. Id. at 28, 56. It was not until
he was confronted by the investigator about illegal drug use on two separate occasions that the
individual chose to disclose the entirety of his marijuana usage. Id.
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 granted. I cannot find that
granting 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.
In mitigation of the Guideline E security concerns, the individual advocates that this dishonesty
was uncharacteristic and a “serious mistake” that “came from a place of misunderstanding.” Tr. at
41, 45. The individual asserted that the LSO’s security concerns have been mitigated as his
dishonesty was the result of poor advice. Id. at 42. Further, he does not believe he can be exploited
or manipulated as he has now revealed his drug use and no longer associates with drug users. Id.
at 42-43; see Guideline E, ¶ 17(b) and 17(g).
The individual’s proffered mitigation diminishes the importance of a holder of (or applicant for)
DOE access authorization being candid and honest under all circumstances in his dealings with
the agency, especially with respect to information that might be personally adverse. Self-disclosure
is critical to the protection of national security as security officials can only assess and address
security risks if they receive timely and accurate information. For this reason, Guideline E
emphasizes as a “special interest … any failure to cooperate or provide truthful and candid answers
during national security or adjudicative processes.” Guideline E, ¶ 15.
In this case, the individual knowingly provided false information during the investigation of his
eligibility for access authorization, and reached out to other individuals for information to justify
his decision to knowingly provide false information to the agency. When the individual was given
the opportunity to correct the information, he initially declined to correct his responses. When later
confronted with information that he had deceived the investigators, he partially corrected his
answer but continued to provide false information. Only upon the investigator’s third inquiry did
the individual provide what he now states is the correct information. On these facts, I cannot
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conclude that the individual made a timely or good faith effort to correct his falsifications. Contra.
Guideline E, ¶ 17(a).
These falsifications all relate to information that is of critical importance in assessing one’s
eligibility for access authorization and have all occurred within approximately six months prior to
the hearing. Contra. Guideline E, ¶ 17(c). The individual offers no information that mitigates these
circumstances.
Based on the foregoing, I conclude that the individual has failed to mitigate the security concerns
arising under Guideline E.
VI. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE to raise serious security concerns under Guideline E. 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 find that the
individual has not brought forth sufficient evidence to resolve the security concerns associated
with that guideline. I therefore cannot find that granting 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 DOE should not grant the individual an access authorization at this time.
Wade M. Boswell
Administrative Judge
Office of Hearings and Appeals
Date: January 8, 2018