PSH-18-0041

*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: May 16, 2018 ) Case No.: PSH-18-0041
)
__________________________________________)
Issued: July 12, 2018
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXX (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 National
Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information
or Eligibility to Hold a Sensitive Position (June 8, 2017) (Adjudicative Guidelines or Guidelines),
I conclude that the individual’s access authorization should not be granted.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. While investigating his background, an Office of Personnel Management
(OPM) investigator discovered that the individual used marijuana three times in 2011. Ex. 8 at 14.
The information regarding his drug use conflicted with the 2013 and 2017 Questionnaires for
National Security Positions (QNSP) the individual completed where he indicated that he had not
used illegal drugs during the previous seven years. Ex. 8 at 56–58.
Because the individual’s behavior raised security concerns that were not allayed by the PSI, the
Local Security Office (LSO) began the present administrative review proceeding by issuing a
Notification Letter to the individual informing him that it possessed reliable information that
created substantial doubt regarding his eligibility to hold a security clearance and that his security
clearance had been suspended. In an attachment to the Notification Letter, the LSO explained that
the derogatory information raised security concerns under “Guideline E: Personal Conduct” of the
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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Adjudicative Guidelines (Guideline E). Ex. 1. The Notification Letter also informed the individual
that he was entitled to a hearing before an Administrative Judge in order to resolve the substantial
doubt regarding his eligibility to hold 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 Office of
Hearings and Appeals (OHA). The Director of OHA appointed me as the Administrative Judge in
this matter on May16, 2018. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e) and
(g), I took testimony from the individual and five witnesses. See Transcript of Hearing, Case No.
PSH-18-0041 (hereinafter cited as “Tr.”). The LSO submitted nine exhibits, marked as Exhibits 1
through 9 (hereinafter cited as “Ex.”).
II. Regulatory Standards
A DOE administrative review proceeding under Part 710 requires 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
or restoring 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.
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 his eligibility for a security clearance.
That information pertains to Guideline E of the Adjudicative Guidelines. Guideline E relates to
conduct involving questionable judgment, lack of candor, or unwillingness to comply with rules
and regulations, which raises questions about an individual’s reliability, trustworthiness and ability
to protect classified information. Any failure to provide truthful and candid answers during the
security clearance process is of particular concern. See Adjudicative Guidelines at ¶ 15. With
respect to Guideline E, the LSO cited the individual’s denials of illegal drug use in his 2013 and
2017 QNSPs and his subsequent admission of illegal drug use in the PSI. Also cited were the
individual’s statements during the PSI that he was not forthcoming about his drug use in the 2013
and 2017 QNSPs because he feared it would hurt his career and that he intentionally failed to
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disclose his drug use on his 2017 QNSP because of his prior failure to disclose his drug use on his
2013 QNSP.
IV. Findings of Fact and Hearing Testimony
At the hearing, I took testimony from the individual, his girlfriend, his friend, his former supervisor,
a current colleague, and his current supervisor.
During his January 2018 PSI, the individual admitted to his drug use and stated that he had
originally lied about his drug use in the 2013 QNSP because he was afraid that it would affect his
career, that he would not be able to progress in his job, or that he may not get the job. Ex. 8 at 58,
60. The individual admitted that he knew providing false information on his QNSP was illegal.
Ex. 8 at 57. He further stated that military acquaintances in 2013 informed him that his drug use
could prevent him from getting a clearance and that it could adversely affect the jobs available to
him. However, he acknowledged that they did not directly tell him to falsify his QNSP. Ex. 8 at 60.
The individual stated that many other people told him that if he used drugs, he should omit this fact
from his QNSP because his job prospects would be lessened. Tr. at 58.
The individual testified that his lack of candor was a bad decision. Tr. at 60. He stated that he lied
again on his 2017 QNSP for the same reasons that he did on his 2013 QNSP, and because he felt
trapped by the first lie. Ex. 8 at 61; Tr. at 57. The individual testified that, with regard to the 2017
QNSP, he felt like he was already “too deep into it” to tell the truth. Ex. 8 at 61; Tr. at 57.
The individual testified that he regrets having lied on his QNSPs and that he does not intend to lie
in the future. Tr. at 49–50. He considers himself to be an honest person, preferring to tell the truth
immediately, and he stated that he has learned from this experience. Tr. at 50, 56. The individual
stated that he was relieved that everything was out in the open now, and that he has nothing more
to hide. Tr. at 50. He testified that he feels uncomfortable lying to people and that he is not a good
liar. Tr. at 50.
The individual further testified that it was his best friend who provided OPM with information
about the individual’s prior drug use. Tr. at 53. The individual continued that they are still friends
and that he has nothing against the friend, because the friend simply “told the truth, he did what
was right.” Tr. at 53. The individual accepts responsibility for his mistake. Tr. at 49.
The individual’s former supervisor testified that the individual is honest and trustworthy, stating
that he followed company rules and never lied at work. Tr. at 12. The individual’s current
supervisor echoed that testimony, adding that the individual had “shown nothing but good
integrity” since starting his job. Tr. at 28. The individual’s colleague testified that, both at work
and outside work, the individual is honest. Tr. at 21–23. The colleague continued that the individual
is both reliable and honest, and operated the evening shift by himself. Tr. at 22–23. The colleague
concluded that the individual proactively discloses problems and takes responsibility for his few
mistakes. Tr. at 22–23.
The individual’s friend, who has known him since middle school, testified that the only person he
trusts more than the individual is his own his wife. Tr. at 34, 36. He described how the individual
has, since a young age, held his friends accountable and encouraged them to do the right thing. Tr.
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at 36–37. He indicated that the individual has always been honest and forthcoming, and that his
lack of candor on the QNSPs was out of character. Tr. at 37–39.
The individual’s girlfriend testified that the individual is one of the most upstanding men she has
ever met. Tr. at 46. She continued that he has never lied to her or misled her. Tr. at 46. She, too,
was surprised by the individual’s lack of candor on the QNSP. Tr. at 46. She described the
individual as “absolutely” reliable and testified that she would trust him with her life. Tr. at 46–47.
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.
As an initial matter, I note that legitimate security concerns exist under Guideline E as a result of
the individual’s falsifications on his two QNSPs and during the security clearance process.
Guideline E provides that the following conditions (in relevant part) may mitigate Personal
Conduct security concerns: (1) the individual made prompt, good-faith efforts to correct the
omission, concealment, or falsification before being confronted with the facts; (2) the offense is so
minor, or so much time has passed, or the behavior is so infrequent, or it happened under such
unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s
reliability, trustworthiness, or good judgment; (3) 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 contributed to untrustworthy, unreliable, or other
inappropriate behavior, and such behavior is unlikely to recur; and (4) association with persons
involved in criminal activities was unwitting, 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. Adjudicative Guidelines at ¶ 17(a), (c), (d), (g).
After reviewing the evidence before me, I find that none of the Guideline E mitigating factors are
applicable in this case. The individual did not make prompt efforts to correct his falsification and,
because lack of candor during security investigations is of special interest, I cannot consider the
offense minor. He maintained his lie for several years and his falsifications are relatively recent as
evidenced by his falsification on his 2017 QNSP. There is not an underlying cause of his lie that
can be remedied by therapy or abandoning old associations. He was afraid of the consequences that
the truth might bring and chose to maintain his lie up until the very moment it was exposed. While
I believe that the individual is generally an honest man in many situations, he has demonstrated a
willingness to mislead security officials to avoid negative consequences. Given these findings, I
cannot conclude that the Guideline E security concerns have been resolved.
VI. Conclusion
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Upon consideration of the entire record in this case, I find that there was evidence that raised
concerns regarding the individual’s eligibility for a security clearance under Guideline E of the
Adjudicative Guidelines. I further find that the individual has not succeeded in fully resolving those
concerns. Therefore, I cannot conclude that granting DOE access authorization to the individual
“will not endanger the common defense and security and is clearly consistent with the national
interest.” 10 C.F.R. § 710.7(a). Accordingly, I find that the DOE should not grant an access
authorization to the individual. The parties may seek review of this Decision by an Appeal Panel,
under the regulation set forth at 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals