PSH-18-0005

*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: January 10, 2018 ) Case No.: PSH-18-0005
)
_________________________________________ )
Issued: March 19, 2018
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Administrative Judge Decision
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Gregory S. Krauss, Administrative Judge:
This Decision concerns the eligibility of XXXX XXXX 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, I conclude that
the individual’s security clearance should be restored.2
I. Background
The individual is an employee of a DOE contractor in a position that requires her to hold a security
clearance. She has held a security clearance since 2011. In 2017, the Office of Personnel
Management (OPM) was in the process of conducting a reinvestigation of the individual’s
eligibility for a security clearance. During an interview for that investigation on June 7, 2017, the
individual indicated that she had used her husband’s Xanax, a prescription medication, on multiple
occasions since 2008. Exhibit (“Ex.”) 8 at 49, 51. The individual further stated that she had received
a prescription of Lexapro, an anti-depressant medication, from a physician in 2014. Ex. 8 at 51. In
a Personal Security Interview (PSI) subsequently conducted by the DOE on September 27, 2017,
the individual provided similar information regarding her use of Xanax and Lexapro. With respect
to her Xanax use, she stated that had used her husband’s Xanax about once or twice a year starting
around 2008 and continuing until around 2016. Ex. 7 at 50-51, 59-60, 109-110.
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 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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Xanax, also known as alprazolam, is a controlled substance under 21 U.S.C. § 802(6). See also
21 C.F.R. § 1308.14 (defining alprazolam as a Schedule IV drug). The individual’s admission that
she had used a controlled substance that had not been prescribed to her raised security concerns
that her PSI did not resolve. In addition, the individual’s statements regarding her use of Xanax
and Lexapro appeared to have been inconsistent with information she submitted in 2011 and 2016
when completing the Questionnaire for National Security Positions (QNSP). Accordingly, the LSO
began the present administrative review proceeding by issuing a Notification Letter to the
individual informing her that information in the DOE’s possession had created a substantial doubt
concerning her eligibility for a security clearance. The Notification Letter also informed her that
her security clearance had been suspended and that, pursuant to 10 C.F.R. § 710.21, she was
entitled to a hearing before an Administrative Judge.
The individual requested a hearing and the LSO forwarded the individual’s request to the Office of
Hearings and Appeals (OHA). The Director of OHA appointed me as the Administrative Judge in
this matter on January 11, 2018. On February 15, 2018, I convened a hearing on this matter pursuant
to 10 C.F.R. § 710.25(d), (e) and (g). At the hearing, I took testimony from the individual, her
husband, a close friend, her supervisor, a security official for her employer, and from four other
colleagues and friends. The LSO submitted eight exhibits, marked as DOE Exhibits 1 through 8.
The individual submitted four Exhibits, marked as Exhibits A through D.
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 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 denial”); 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
or restoring her 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 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.
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III. 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 her eligibility for a security
clearance. The LSO described its security concerns in a “Summary of Security Concerns” attached
to the Notification Letter. In that document, the LSO indicated that its concerns pertained to the
Bond Amendment, codified at 50 U.S.C. § 3343(b), and to Guidelines H and E of 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”).
The Bond Amendment provides that agencies “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). In its Summary of Security Concerns, the LSO stated that it had identified security
concerns under the Bond Amendment because the individual had admitted during her PSI to the
unlawful use of Xanax, a controlled substance, about once or twice a year between 2008 and 2016.
Ex. 1 at 1. The LSO did not allege that the individual is an addict. See Ex. 1.
Guideline H of the Adjudicative Guidelines is titled “Drug Involvement and Substance Misuse.”
This Guideline provides that “[t]he illegal use of controlled substances, to include the misuse of
prescription and non-prescription drugs, and the use of other substances that cause physical or
mental impairment or are used in a manner inconsistent with their intended purpose, can raise
questions about an individual’s reliability and trustworthiness, both because such behavior may
lead to physical or psychological impairment and because it raises questions about a person’s
ability or willingness to comply with laws, rules, and regulations.”3 Guideline H at ¶ 24. As support
for its application of Guideline H, the LSO cited the individual’s admission during her PSI that she
had used a controlled substance, Xanax, which was not prescribed to her, once or twice year
between 2008 and 2016. The LSO also referred to the individual’s admission that she had taken
the Xanax while holding a security clearance between 2011 and 2016. Ex. 1 at 2.
Guideline E of the Adjudicative Guidelines is titled “Personal Conduct.” Under Guideline E,
“[c]onduct 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. In
citing Guideline E, the LSO identified as a security concern the individual’s failure to report her
unlawful use of Xanax while she held a security clearance between 2011 and 2016, as well as a
statement she made during her PSI that she had not been forthright about her Xanax use. Ex. 1 at
1. The LSO also pointed out inconsistencies between the individual’s statements in her PSI and her
responses in the QNSPs she submitted on August 9, 2016 (“2016 QNSP”), and June 14, 2011
(“2011 QNSP”). First, the LSO noted that, although the individual admitted in her PSI to the
unlawful use of Xanax between 2008 and 2016, she had certified in both QNSPs that she had not
intentionally engaged in the misuse of prescription drugs. Second, the LSO cited the individual’s
certification in her 2016 QNSP that in the previous seven years she had not consulted with a health
care professional regarding an emotional or mental health condition. The LSO indicated that this
3 A controlled substance means “any controlled substance” as defined in 21 U.S.C. § 802. Guideline H at ¶ 24. As
noted, Xanax, or alprazolam, is a “controlled substance” under 21 U.S.C. § 802(6).
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statement raised security concerns because the individual admitted during her PSI to consulting
with a physician in 2014 and receiving an anti-depressant medication.4 Ex. 1 at 2.
Based on the evidence available to the LSO, the above security concerns were sufficient to invoke
the Bond Amendment and Guidelines H and E.
IV. Findings of Fact
A. Use of Xanax
Around 2008, a physician gave the individual a prescription of Xanax to treat her anxiety. Tr. at
163-164. She initially received 30 pills at a dose of 0.25 milligrams. Tr. at 165. She does not recall
whether she used all of the medication or when the prescription expired. Tr. at 165. She never
renewed the prescription. Tr. at 165.
The individual’s husband also had a Xanax prescription. Tr. at 17; Ex. 2 at 1. As early as 2008,
possibly while her own Xanax prescription was still valid, she began occasionally accepting her
husband’s offers to provide her his Xanax when she was unable to sleep. Tr. at 171; Ex. 7 at 59-
60. Her husband’s dosage was higher than her own had been and ranged from 0.5 milligrams to 1.0
milligram. Tr. at 171. Before providing her the Xanax, her husband would break off a small piece
for her to take, around a quarter of the pill and always less than a half. Tr. 173-174, 216; Tr. at 65.
On most of the occasions when her husband offered her Xanax, the individual refused it because
she preferred not to rely on medication for sleep. Tr. at 172-173. She did not obtain her own
prescription because she took her husband’s medication so infrequently and she thought that
making the medication more accessible could increase the risks of addiction. Tr. at 176. When she
did decide to accept her husband’s Xanax, her focus was on relieving her anxiety and on whether
her symptoms were severe enough to merit taking the medication. Tr. at 178. She has claimed that
she did not consider whether taking her husband’s Xanax was against the law. Tr. at 177; Ex. 7 at
63. She has attributed her inattention to the “legal side” of taking her husband’s medication to the
private setting where she took the medication, usually in her own home and bedroom, as well as
her close relationship with her husband, someone with whom she says that she shares everything.
Tr. at 178, 204, 227; Ex. 7 at 62; Ex. 2 at 1. She testified that she may have recognized the
unlawfulness of taking another person’s prescription medication if the medication had belonged to
someone other than her husband. Tr. at 178.
The individual has stated that that it was not until her OPM interview in June 2017 that she fully
considered the legal implications of taking her husband’s Xanax and decided to stop the practice.
Ex. 7 at 56, 59-60; Tr. at 203-204. Her OPM interviewer did not tell her it was against the law, but
she recognized that taking her husband’s medication “really is wrong” once she had said aloud
what she had done. Ex. 7 at 74. It now appears “obvious” to her that she should not have taken her
husband’s prescription medication. Tr. at 203; Ex. 7 at 113.
4 The anti-depressant medication that the LSO referred to here is, presumably, Lexapro.
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With respect to the timing and frequency of her use of her husband’s Xanax, the individual has
provided slightly varying accounts. The OPM report records her as stating that she took her
husband’s Xanax about two to three times annually between 2008 and 2015. Ex. 8 at 51. During
her PSI, she described the frequency as more like one or two times a year. Ex. 7 at 57. She agreed
in her PSI that it “sounds reasonable” that her use of her husband’s Xanax took place between 2008
and 2015. Ex. 7 at 59. At a different point in that interview, she indicated that her last use had been
around 2016; specifically, she stated that it had been “at least a year” before her OPM interview in
June 2017 since she had taken it. Ex. 7 at 109-110; see also Ex. 7 at 56.
After receiving the Notification Letter, the individual submitted a response in which she stated that
the last time she had used her husband’s Xanax was in April 2017, while on a trip she took to run
in a marathon. Ex. 2 at 1. She testified at the hearing that she took the Xanax while on a red-eye
flight to her destination because she wanted to relieve her anxiety and get some sleep in anticipation
of activities the next morning. Tr. at 180-81. Her husband also testified that this was the last date
on which she had taken his Xanax. Tr. at 18. When asked why she did not mention, in her PSI in
September 2017, her use of her husband’s Xanax in April 2017, the individual explained that during
the PSI she had been recalling only the times when she had taken the medication in her own home
and had not been thinking of her uses while traveling. Tr. at 223-224. She added that she did not
remember the instance in April 2017 until she was preparing her request for a hearing. Tr. at 224.
She testified that she was “guessing at dates” during her PSI and that she was not thinking sharply.
Tr. at 170, 225.
The individual has not recalled any other specific instances when she took her husband’s Xanax,
other than the instance in April 2017. Tr. at 180. She did generally recall that she never took her
husband’s Xanax immediately prior to work, and she believes she never took it at night when she
was scheduled to work the next day. Tr. at 225-226. In her response to the Notification Letter, she
stated that, during her PSI, she had probably overestimated her use of her husband’s Xanax. Ex. 2
at 1-2. She now estimates that she took her husband’s Xanax around five times total and seven
times at the most. Ex. 2 at 2; Tr. at 227. Although she may have taken her husband’s Xanax as early
as 2008, she also believes it is possible, even likely, that her first use did not occur until after signing
her QNSP in 2011. Tr. at 169; Ex. 2 at 4.
B. Lexapro Use and Reporting
As noted, the individual has stated that a physician prescribed her Lexapro, an anti-depressant
medication, in 2014. Tr. at 160; Ex. 7 at 13-14, 18. At the time, she was temporarily experiencing
feelings of depression due to changes in her work and private life. Ex. 2 at 3. She used the
medication every day for about a year and then discontinued her use of it. Tr. at 162. She reported
her use of this drug to her supervisor and to a security manager for her employer.5 Tr. at 161.
According to the individual, the security manager told her that it was unnecessary to report to the
DOE her use of Lexapro. Tr. at 198.
5 At the hearing, her security manager did not recall being informed by the individual about the individual’s use of
Lexapro. Tr. at 63. Her supervisor did recall that she had told him about her use of this medication around 2014 or
2015. Tr. at 135, 137, 141.
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In her 2016 QNSP, the individual was asked whether she had “consulted with a health care
professional regarding an emotional or mental health condition . . . .” Ex. 5 at 29. The question
directed her to “[a]nswer ‘No’” if the counseling” fell into one of two categories.6 Ex. 5 at 29. The
individual responded “No” despite having received a Lexapro prescription in 2014. Tr. at 190; Ex.
5 at 29. She has explained that she answered in this way because she read the question as concerning
only counseling by mental health care professionals for an emotional or mental health condition,
and she had not received counseling from the physician who prescribed her Lexapro. Tr. at 192-
193; Ex. 2 at 3. She added that she answered her 2016 QNSP quickly and did not read the question
carefully enough. Tr. at 191, 193. She has emphasized that she was forthcoming about her Lexapro
use with the OPM investigator. Tr. at 192; Ex. 2 at 3-4.
C. Reporting of Xanax Use
Another question on the individual’s 2011 QNSP and 2016 QNSP asked: “In the past seven years,
have you intentionally engaged in the misuse of prescription drugs, regardless of whether or not
the drugs were prescribed for you or someone else?” Ex. 5 at 30, Ex. 6 at 27. She answered “No”
to this question in both instances. Ex. 5 at 30; Ex. 6 at 27.
The individual testified that she did not answer this question affirmatively in 2016 because she did
not yet recognize that her use of her husband’s Xanax was a “misuse.” See Tr. at 186, 188. She
interpreted “misuse” as referring to the use of a drug for a purpose other than the one it was intended
for, such as taking a medication “to feel good and not to eliminate pain.” Tr. at 186, 214. She
asserted that when she used her husband’s Xanax, she used it for its intended purpose.7 Tr. at 186.
As to her 2011 QNSP, she indicated that her answer to the question may have been accurate because
she may not have taken her husband’s Xanax until after she completed this QNSP on June 14, 2011.
Ex. 2 at 4.
The individual has explained that, separately from the QNSP, she never reported her misuse of
Xanax to DOE security because she did not regard her use of her husband’s Xanax to be a misuse.
Tr. at 188. She never took the step of inquiring about whether she needed to report her use of the
medication, as she did with Lexapro, because the use was so infrequent and she assumed she might
only need to report medications that she took routinely. Tr. at 184, 186-87, 200; Ex. 7 at 133.
Additionally, after reporting her Lexapro use to her employer’s security manager in 2014, she
believed she did not need to report any of her prescription drug use to the DOE because the security
manager had told her she did not need to report her Lexapro use. Tr. at 198; Ex. 7 at 133.
In her PSI, the individual described not being “forthright” about her use of her husband’s Xanax.
Ex. 7 at 134. At the hearing, the individual was asked whether this word choice revealed that she
had, in fact, recognized that taking her husband’s Xanax constituted misuse and that she had made
6 Specifically, the question stated that she should answer “no” if the counseling related to certain marital or family
grief or if the counseling was related to adjustments following a military combat experience. Ex. 5 at 29.
7
The individual believes that her use of her husband’s Xanax was safe. In her PSI, she suggested that her educational
background in biochemistry and the prescription she had previously received for Xanax made her confident that taking
it infrequently and in small doses would not present a health risk. See Ex. 7 at 63-65. She testified that she did not use
her husband’s Xanax during the year when she took Lexapro in order to avoid mixing medications. Tr. at 181.
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a conscious decision not to inform the DOE about this misuse. See Tr. at 214. She replied that her
use of the word “forthright” should not be given such an interpretation. Tr. at 212, 214. She
explained that when she mentioned not being forthright, she was describing a decision not to share
with her co-workers, not the DOE, her use of her husband’s Xanax because she did not want to
give them the impression that the use was frequent. Tr. at 199, 212.
At the hearing, at least three of the individual’s colleagues testified that they were aware that taking
another person’s prescription medication is prohibited and is something that a holder of a security
clearance should report to the DOE. Tr. at 71, 88, 99, 203. A few colleagues suggested that their
employer had distributed information stating that it was necessary for security clearance holders to
report the taking of another person’s prescription medication. Tr. at 70, 100, 123. One witness also
described new procedures that have been put in place by the individual’s employer that require
employees to internally report to their employer their prescription drug use. Tr. at 119-120. No
witness, however, could verify that the individual would have received clear instructions from her
employer, prior to April 2017, not to take another person’s prescription medication and to report
such conduct. Tr. at 70-71, 105, 123-124. Her supervisor further stated that he was “probably not”
aware of such a reporting requirement until the hearing. Tr. at 138.
D. Additional Evidence
Each witness at the hearing described the individual as honest, reliable, trustworthy, and in
possession of good judgment. Tr. at 49, 98, 117-118, 132, 150-151. One colleague called her “a
very honest person, almost to a flaw.” Tr. at 86. None of the individual’s witnesses recalled her
being under the influence of any drug at work. See Tr. at 61-62, 133.
The individual has provided support for her assertion that she will not take her husband’s Xanax or
misuse prescription drugs in the future. First, there is no evidence in the record that she is addicted
to any drugs. To eliminate any such concerns, the individual consulted with a therapist, who
provided her a letter stating that the individual “does not meet any criteria associated with having
a drug problem.” Ex. D at 1; see also Tr. at 183. Second, the individual visited a certified clinical
nurse, who provided the individual with her own 0.5 milligram prescription of alprazolam. Ex. C
at 2; Tr. at 182. The individual plans to maintain a valid prescription and use the medication a few
times year. Tr. at 219-220. Third, she has learned new relaxation techniques to assist with her
anxiety and reduce the need for any prescription medication. Tr. at 220. Fourth, the individual’s
husband no longer has a Xanax prescription. Tr. at 35. He testified he would suggest to her that she
visit a doctor if in the future she needed anti-anxiety medication but did not have her own
prescription. See Tr. at 35.
The individual has made a promise not to misuse prescription drugs and has provided a signed
statement acknowledging that her security clearance could be revoked if she engages in future drug
involvement or misuse. Ex. A; Tr. at 182. She testified that “there is just no possible way that I will
ever do that [misuse a prescription drug] again, because of who I am, because of the promises that
I made, and because now I understand what I did wrong very clearly.” Tr. at 184. In the event she
were to misuse a prescription drug, she is aware of her obligation to report that misuse. Tr. at 188.
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V. Analysis
A. Bond Amendment and Guideline H
The LSO raised security concerns under the Bond Amendment and Guideline H regarding the
individual’s use of her husband’s Xanax, including during years when she held a security clearance.
With respect to the Bond Amendment, there is no evidence that the individual is currently “an
unlawful user of a controlled substance or an addict” within the meaning of the Bond Amendment.
Her testimony and her husband’s testimony establish that she last used her husband’s Xanax in
April 2017. There is no evidence or even an allegation that she is an addict. Accordingly, the Bond
Amendment does not operate in this case to prevent the individual from having her security
clearance restored.
As to Guideline H, conditions apply that mitigate the security concerns that the LSO has raised.
Guideline H provides that one such condition applies when the behavior “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). Here,
the evidence indicates that the individual’s use of her husband’s Xanax was less frequent than she
initially indicated in her OPM interview and her PSI. In all, she may have used her husband’s
Xanax about five times and may have first used her husband’s Xanax much later than 2008. This
limited frequency, compared with what she initially disclosed, helps to mitigate the concerns that
the LSO raised under Guideline H.
More importantly, her use of another person’s prescription medication happened under
circumstances that are unlikely to recur. These circumstances include her husband’s repeated offers
of Xanax, a medication she had previously been prescribed herself, and her failure to consider the
unlawfulness of taking her husband’s prescription medication for the reasons she identified in her
testimony. These circumstances have changed. The individual now has her own prescription of
Xanax and her husband does not have one. Moreover, she is now aware that it is unlawful for her
to use his prescription medication. She and her husband are highly unlikely to repeat the same
mistake. The unusualness of the circumstances surrounding her use of a controlled substance also
suggests that her decision-making in this instance should not cast doubt on her overall reliability,
trustworthiness, or good judgment.
A second condition that may mitigate security concerns raised under Guideline H occurs when “the
individual acknowledges his or her drug involvement and substance misuse” and has taken actions
such as “providing a signed statement of intent to abstain from all drug involvement and substance
misuse, acknowledging that any future involvement or misuse is grounds for revocation of national
security eligibility.” Guideline H at ¶ 26(b). Here, the individual has acknowledged her misuse of
prescription drugs and has provided such a signed statement, thus mitigating the security concerns
raised under Guideline H.
For the above reasons, I find that the individual has resolved the security concerns that the LSO
identified pertaining to her misuse of prescription drugs.
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B. Guideline E
The LSO raised security concerns under Guideline E regarding the answers the individual provided
in her QNSPs in 2011 and 2016, as well as her failure to report to DOE security, while holding a
security clearance, her use of a controlled substance not prescribed to her.
As noted, Guideline E provides that conduct can raise security concerns if it involves “questionable
judgment, lack of candor, dishonesty, or unwillingness to comply with rules or regulations.”
Guideline E at ¶ 15. The evidence indicates that although the individual may have exercised poor
judgment by completing her QNSPs in a careless manner, she has not attempted to be dishonest or
less than candid regarding her use of Xanax and Lexapro. The individual has offered a persuasive
explanation for misinterpreting the question on her 2011 QNSP that could have revealed her
Lexapro prescription. Her reporting of her Lexapro use to her supervisor and a security manager
for her employer further suggests that she did not intend to conceal the consultation with the
physician that resulted in this prescription. Moreover, she has explained that she certified that she
did not intentionally misuse prescription drugs in her 2016 QNSP and 2011 QNSP, nor report her
misuse to the DOE, because she did not recognize her use of her husband’s Xanax as misuse. She
did not identify her conduct as misuse because, among other reasons, she believed she was using
the medication for its intended purpose and she had not considered the unlawfulness of her actions.
In addition, she now believes that she may not have first used her husband’s Xanax until after
completing her 2011 QNSP. If this chronology is accurate, then any security concerns arising from
her answer to this question on her 2011 QNSP would be completely resolved.
It is notable that it was the individual herself who revealed, during her OPM interview and again
in her PSI, that she had used her husband’s Xanax and that she had been prescribed Lexapro in
2014. Her willingness to report this information when asked questions framed in a different manner
suggests that the individual has attempted to be truthful. Furthermore, a condition that may mitigate
security concerns raised under Guideline E is 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). Here, the individual corrected the omissions before being confronted with
the facts, thereby contributing to the mitigation of the security concerns raised by the LSO.
Although the individual stated in her PSI that she had not been “forthright” regarding her use of
her husband’s Xanax, she explained in her testimony that her use of this word did not refer to an
unwillingness to report misuse of prescription drugs to the DOE or an awareness that her conduct
amounted to misuse, but merely that she preferred not to share this personal detail with colleagues
at work. Further, while the individual neglected to recall during her June 2017 OPM interview or
her September 2017 PSI that she had last taken her husband’s Xanax in April 2017, I do not
attribute her failure to report this detail to a lack of candor. Her inability to recall this information
must be considered in light of her overall attempt to be forthcoming during her OPM interview and
her PSI by revealing her use of her husband’s Xanax and her Lexapro use. During her PSI, she also
apparently overstated the frequency of her use of her husband’s Xanax and the length of that use.
I do not believe it is likely that she would have simultaneously overstated the amount of her misuse
yet attempted to conceal information about her last date of use.
Security concerns raised under Guideline E may be mitigated if the conduct “happened under such
unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s
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reliability, trustworthiness, or good judgment.” Guideline E at ¶ 17(c). For the reasons discussed
in the above analysis under Guideline H, the individual’s misuse of prescription drugs occurred
under unique circumstances that are unlikely to recur. Given that the underlying conduct is unlikely
to recur, it is unlikely that the individual would again fail to report such conduct. Her employer’s
new internal prescription drug reporting requirements should further help ensure that the individual
accurately reports her prescription drug use to the DOE on any questionnaire(s) or in the unlikely
event that a misuse were to occur. Witness testimony regarding the individual’s character also helps
establish that her failure to make required disclosures should not cast doubt on her overall
reliability, trustworthiness, and good judgment.
In short, I find that the individual has presented sufficient evidence to mitigate the security concerns
raised under Guideline E.
VI. Conclusion
In the above analysis, I have found that the LSO had sufficient derogatory information to invoke
the Bond Amendment and Guidelines H and E. However, after considering all of the evidence, both
favorable and unfavorable, in a common sense manner, I find that the individual has sufficiently
mitigated the security concerns that the LSO has raised. Accordingly, the individual has
demonstrated that restoring her 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 parties may seek review of this Decision by an Appeal Panel
under the procedures set forth at 10 C.F.R. § 710.28.
Gregory S. Krauss
Administrative Judge
Office of Hearings and Appeals