PSH-18-0049

*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: June 22, 2018 ) Case No.: PSH-18-0049
)
__________________________________________)
Issued: September 13, 2018
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXX (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 restored.
I. Background
The Individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. The Individual has held a security clearance since 2008, when it was granted
by the Department of Homeland Security (DHS) in conjunction with the Individual’s position as
a reservist with the United States Coast Guard. Ex. 9 at 11-15. In January 2017, DOE granted the
Individual an “L” clearance, on a reciprocal basis for his “secret” clearance with DHS. Ex. 9 at 13.
Also in January 2017, the Individual completed a Questionnaire for National Security Positions
(QNSP) as part of his application for a “Q” clearance. Ex. 8 at 1; Ex. 9 at 12. The QNSP and
subsequent investigation revealed derogatory information regarding the Individual’s personal
conduct and involvement with marijuana. The Local Security Office (LSO) conducted a Personnel
Security Interview of the Individual and issued a Letter of Interrogatory, which the Individual
answered on January 14, 2018. Ex. 9; Ex. 7.
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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Because the Individual’s behavior raised security concerns that were not allayed by the PSI or the
Individual’s interrogatory responses, the 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” (Guideline E) and “Guideline H: Drug Involvement” of the Adjudicative
Guidelines (Guideline H). Ex. 1 at 1–2. 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 June 22, 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 three witnesses. See Transcript of Hearing, Case
No. PSH-18-0049 (hereinafter cited as “Tr.”). The LSO submitted ten exhibits, marked as Exhibits
1 through 10 (hereinafter cited as “Ex.”). The Individual submitted four exhibits, marked as
Exhibits A through D.
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.
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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 his eligibility for a security
clearance. That information pertains to Guidelines E and H 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 allowing an
uncleared person to enter a limited access area without an escort in November 2017. Ex. 1 at 1.
Also cited were the Individual’s admissions that (1) he used marijuana during 2010 to 2014 while
possessing a security clearance and that he did not intend to report his illegal drug use to the Coast
Guard; (2) he intentionally violated the Coast Guard’s zero tolerance drug policy; (3) in 2014, a
state agency investigated him for abuse after he struck a patient in his charge as a caregiver; (4) in
2013, the health facility employing him as a caregiver issued him a written warning for failing to
administer prescription medication to a patient in accordance with company policy; (5) he was
terminated from his employment for gross negligence in 2009 after consuming cookies he had not
purchased; and (6) he was terminated from his employment in 2005 after speaking to his boss in a
negative tone. Id. at 1-2.
Guideline H relates to security risks arising as a result of an Individual’s use of illegal drugs. Illegal
drug use raises concerns about an Individual’s reliability and trustworthiness because such drug
use may impair a person’s judgment and because using drugs illegally raises questions about a
person’s ability or willingness to comply with laws, rules, and regulations. See Adjudicative
Guidelines at ¶ 24. With respect to Guideline H, the LSO cited the Individual’s admissions that he
used marijuana one or two times per year from 2010 to 2014 while possessing a security clearance.
Ex. 1 at 2.
IV. Findings of Fact and Hearing Testimony
At the hearing, I took testimony from the Individual, his sister, his girlfriend, and one of his current
supervisors. All of the Individual’s witnesses described him as trustworthy. Tr. at 17, 26, 40. The
Individual’s sister testified that she was only aware of one instance in which the Individual used
marijuana but admitted that there could have been other times of which she was not aware. Id. at
11, 19. The Individual’s girlfriend testified that, prior to this proceeding, the Individual told her
that he had used marijuana after high school. Id. at 27. She claimed that the Individual has not used
any illegal drug in the two years she has known him. Id. at 26, 28. The Individual’s supervisor
asserted that he has never known the Individual to be under the influence of an illegal substance.
Id. at 55.
The Individual testified that he used marijuana about eight times—but no more than 12 times—
between 2010 and 2013. Id. at 113. He claimed that he did not experience cravings and that he had
never purchased marijuana. Id. at 116, 119. He stated that he only used marijuana when visiting
his sister and that he did not use marijuana at all during his Coast Guard deployment in 2011 and
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2012. Id. at 118. There were several inconsistencies between the Individual’s descriptions of his
marijuana use at his PSI, at the hearing, and on his QNSP. However it is undisputed that the
Individual ingested edible marijuana products and smoked marijuana. Id. at 131-44.When asked
about his stated intent to not inform the Coast Guard about his drug use, the Individual asserted
that he only said that because he was upset during his PSI. Id. at 145. Nevertheless, as of his
hearing, the Individual still had not disclosed his marijuana use to the Coast Guard. Id. He
maintained that he did not believe he had an affirmative duty to disclose his drug use. The
Individual, nevertheless, testified that he would disclose his marijuana use if asked or if presented
with a policy stating his affirmative duty to disclose it. Id. at 145-46. The Individual also testified
that he used marijuana while holding a security clearance because he was experimenting and that
he regretted doing so. Id. at 139.
The Individual testified that in 2005 he spoke sharply to his employer, which resulted in his
termination. He stated that he regrets the way he spoke to his manager. Id. at 69. The Individual
asserted that he regrets the circumstances surrounding his 2009 termination where he consumed
cookies without paying for them. Id. at 74. He stated that it was a mistake and a “dumb decision.”
Id. at 74-75. The Individual claimed that he had intended to pay for the item the following morning,
since he could not pay the night before because the cash registered were closed. Id. at 76. However,
he later testified that he did not pay for the item the following morning because when he arrived
at the store he was told he was being placed on administrative leave. Id. at 82-83.
The Individual testified that, while working as a caregiver, he once forgot to administer a patient’s
afternoon medication. Id. at 92. He asserted that he proactively disclosed the missed dose to his
supervisor and received a written warning. Id. While with the same company, the Individual was
investigated for alleged abuse of another patient. Id. at 104-09. He testified that the investigation
showed that he had not abused the patient but rather had unintentionally harmed the patient while
attempting to ward off the patient’s attack. Id. Again, the Individual proactively disclosed the
incident. Id. The Individual asserted that he stayed with the company for several years after both
incidents. Id. at 94-96.
The Individual testified that, while at he was guarding an interior gate that required a clearance to
pass through, he allowed an uncleared person to enter a limited access area to retrieve his
credentials. Id. at 152-53. He stated that a vehicle approached the gate with two passengers,
including the driver who did not have a clearance and needed an escort to enter the limited access
area. Id. The Individual claimed that after a conversation with the other passenger, he believed that
the person held a security clearance but had left his credentials inside the restricted area. Id. at 148.
The Individual testified that he allowed the second person to enter the limited access area alone to
retrieve his identification. Id. at 149. Upon the person’s return, the Individual reviewed his
credentials and realized that the person did not hold a security clearance. Id. at 149, 152. At that
point, he called for an escort for the driver and passenger. Id. at 149.
The Individual claimed a lack of training as the reason he allowed a person without any credentials
into the limited access area. Id. at 151–52. However, when asked about the site’s policy for
handling people without visible credentials, the Individual testified that he knew the correct policy;
he would challenge the person to produce their credentials and, if they could not do so, would call
a supervisor to handle the situation. Id. at 157. He also testified that he knew this policy when he
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first spoke to the security office about the incident shortly after it happened. Id. at 154. The
supervisor testified that he trained the Individual for four hours at the gate where the security
incident occurred. Id. at 49.
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
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.
A. Guideline E
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).
Regarding the two incidents that occurred while the Individual was a caregiver, the Individual’s
prompt reporting and continued employment with the company support a finding that the
Individual appropriately handled the situations. Given this, I find that the Individual has mitigated
the security concerns related to these incidents.
The Individual’s testimony that he did not report his marijuana use to the Coast Guard, for which
he is still a reservist, and that he did not intend to do so unless confronted, is evidence of ongoing
lack of candor. The Individual has knowledge of the Coast Guard’s zero tolerance drug policy and
knew that DOE considered his lack of candor to be a security concern. Even so, he continues to
withhold his drug use from the Coast Guard. Consequently, I cannot be certain that the Individual
can be relied upon to demonstrate honesty and forthrightness to the DOE. See Adjudicative
Guidelines at ¶17(a), (d). Therefore, I find that the Individual has not mitigated the Guideline E
concerns regarding his lack of candor with the Coast Guard.
The remaining Guideline E concerns focus on the Individual’s conduct at work. His workplace
record include a verbal altercation, theft, and improperly allowing access to a secure government
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facility. The Individual has offered a list of excuses (inability to pay for an item because the
registers were closed and lack of training) to explain why his conduct yielded such negative
outcomes. The Individual expressed regret for his mistakes and appears to be sincere in that
sentiment. Without sufficient evidence of improvement in his judgment and decision-making
skills, there is significant doubt that the Individual can be relied upon to consistently uphold
security policies, rules, regulations, and laws. Thus, I cannot find that the Guideline E security
concerns raised by his workplace conduct have been resolved.
In sum, I find that the Individual has, in the past, demonstrated questionable judgment, lack of
candor, and unwillingness to comply with rules and regulations. Such conduct raises significant
questions about the Individual’s reliability, trustworthiness, and ability to protect classified
information. Consequently, I find that the Individual has failed to mitigate the Guideline E security
concerns raised in the Notification Letter.
B. Guideline H
Guideline H security concerns may be mitigated when (1) the behavior was so infrequent or so
long ago that it is unlikely to recur and does not cast doubt on his or her current reliability,
trustworthiness, or judgment; (2) the Individual acknowledges his or her drug involvement,
provides evidence of actions taken to overcome this problem, and has established pattern of
abstinence, including dissociating from drug-using associations, avoiding the environment where
he or she used drugs, and providing a signed statement of intent to abstain from all drug-
involvement; (3) the drug use was prescription drug abuse after a severe illness for which the drugs
were prescribed and the drug use has ended; and (4) the Individual has satisfactorily completed a
drug treatment program, including aftercare requirements, without relapse and has a favorable
prognosis from a qualified medical professional. Adjudicative Guidelines at ¶ 26(a)–(d).
The Individual has not used illegal drugs in several years and when he did his use was infrequent.
Further, he acknowledged his drug use to the DOE. Given the Individual’s limited marijuana
usage and the time that has elapsed since that usage, I find that he has mitigated DOE’s concern
regarding his illegal drug usage. See Adjudicative Guidelines at ¶ 26(a); 10 C.F.R. §710.7(c).
However, a security concern is raised by the Individual’s decision to use an illegal drug while
holding a security clearance. The Individual has yet to inform the Coast Guard that he used
marijuana and this failure casts significant doubt on his ability or willingness to comply with laws,
rules, and regulations. The Individual does not appear to acknowledge that it was a problem that
his marijuana use occurred while he held a security clearance and he certainly does not appear
ready to accept the consequences of his choice. See Adjudicative Guidelines at Guideline H ¶ 24.
Accordingly, I cannot find that the Individual has sufficiently mitigated DOE’s Guideline H
security concerns.
VI. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
Guideline E and H security concerns under the Adjudicative Guidelines. I further find that the
Individual has not succeeded in fully resolving those concerns. Therefore, I cannot conclude that
restoring DOE access authorization to the Individual “will not endanger the common defense and
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security and is clearly consistent with the national interest.” 10 C.F.R. § 710.7(a). Accordingly,
the DOE should not restore access authorization to the Individual at this time. Either party may
seek review of this Decision by an Appeal Panel pursuant to 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals