PSH-18-0081

*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: November 21, 2018 ) Case No.: PSH-18-0081
)
__________________________________________)
Issued: March 28, 2019
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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”)
for access authorization under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R.
Part 710, entitled, “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.
I. BACKGROUND
The Individual is employed by the DOE contractor in a position that requires him to hold a security
clearance. Beginning on March 2011, the Individual completed three separate Questionnaires for
National Security Positions (QNSP), in which he failed to report his one-time use of marijuana in
March 2009.2 Ex. 1. On September 2011, the Individual signed a letter of interrogatory certifying
that he had used marijuana only twice in April 2002. Ex. 1. The Local Security Office (LSO)
determined that the Individual had failed to provide accurate consistent information regarding his
marijuana usage in the three QNSPs and in the LOI. Ex. 1.
The LSO began the present administrative review proceeding by issuing a Notification Letter to
the Individual September, 2018, informing him that he was entitled to a hearing before an
Administrative Judge in order to resolve the substantial doubt regarding his eligibility to continue
holding a security clearance. See 10 C.F.R. § 710.21.
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 The Individual’s QNSPs were dated March 2011, August 2011 and April 2012. Ex. 1. In these QNSPs, the Individual
provided varying accounts of his marijuana usage. In the March 2011 QNSP, the Individual denied using illegal drugs
in the past seven years. Ex. 10 at 32. His August 2011 QNSP reported that the Individual had used marijuana twice in
2000. Ex. 9 at 2. The April 2012 QNSP stated that the Individual had not used illegal drugs in the prior seven years.
Ex. 8 at 2.
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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 November 21, 2018. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d),
(e), and (g), the Individual testified on his own behalf. See Transcript of Hearing, Case No. PSH-
18-0081 (hereinafter cited as “Tr.”). The LSO submitted 13 exhibits, marked as Exhibits 1 through
13 (hereinafter cited as “Ex.”). The Individual submitted 8 exhibits, marked as Exhibits A through
H.
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 National Security Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive
Position, effective June 8, 2017 (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 failure to include
his March 2009 marijuana use on his April, 2012, August, 2011, and March, 2011, QNSPs. Ex. 1.
In addition, the LSO included the Individual’s omission of his March 2009 marijuana use on a
September 2011 Letter of Interrogatory (LOI). Id.
III. 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.
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§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
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 does not dispute the facts alleged in the Notification Letter, regarding his omission
of his March 2009 marijuana use from his March 2011, August 2011, and April 2012 QNSPs and
his September 2011 LOI. Ex. 2 at 1-2. As such, I adopt the factual allegations in the Notification
Letter as my factual findings in this case. The Individual testified on his own behalf. Tr. at 7.
The Individual testified that he completed three QNSPs between March 2011 and April 2012. Tr.
at 93. In addition, he stated that he completed a LOI in September of 2011. Id. In attempting to
clarify his marijuana usage during his time in high school, he admitted that he used differing dates
on the forms and completely omitted reporting any usage on the March 2011 and April 2012
QNSPs.3 When questioned why he added his April 2000 high school marijuana use on the August
2011 QNSP, even though it was outside the parameters of the question, the Individual stated that
he was told to include all illicit drug use back to the age of 16.4 Tr. at 30.
Regarding his March 2009 marijuana usage, the Individual testified that he forgot about his use
until questioned by an Office of Personnel Management (OPM) investigator during his
reinvestigation in 2017. Tr. at 12. The Individual was later questioned about his omission of his
March 2009 marijuana use during a March 2018 PSI in response to the information included in his
background investigation by OPM. Ex. 11 at 65. The Individual stated that he only remembered
his March 2009 usage when the OPM investigator asked him if he used marijuana twice. Id. The
Individual asserted that he corrected the investigator to tell him that he had used marijuana three
times, including March 2009. Id. at 48. He declared that not mentioning his March 2009 usage
prior to the interview was an oversight. Id. at 42, 57, 58. He stated during the Personnel Security
Interview (PSI) “I’m sure it brings into question everything I’ve said from that point to now, as
well.” Ex. 11 at 69. At the hearing, he also asserted that “the only time you can get in more trouble
is if you lie.” Tr. at 43. The Individual concluded that “one lie can ruin a person’s integrity in the
eyes of their peers, their family members, or authority figures.” Id. at 55.
V. ANALYSIS
The issue before me is whether the Individual, at the time of the hearing, presents an unacceptable
risk to national security and the common defense. I must consider all the evidence, both favorable
and unfavorable, in a common sense manner. “Any doubt concerning personnel being considered
3 The question on the QNSP asks: “Since the age of 16 or in the last 7 years, whichever is shorter, have you illegally
used any controlled substance, for example, marijuana, cocaine, crack cocaine, hashish, narcotics . . .?” Ex. 9 at 2
(emphasis included). On the August 2011 QNSP, the Individual answered “yes” and stated that he had used marijuana
around April 2000. Id. In the September 2011 LOIs, the Individual again answered “yes” and stated that he had used
marijuana in April 2002. Ex. 7 at 1. The question on the LOI is much broader and not limited by dates. Id.
4 Again, his high school usage was not required to be included on any of his QNSPs since he was only required to
report illegal drug use occurring in the prior 7 years.
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for access for national security eligibility will be resolved in favor of the national security.”
Adjudicative Guidelines at ¶ 2(b). In reaching this decision, I have drawn only those conclusions
that are reasonable, logical, and based on the evidence contained in the record. Because of the
strong presumption against granting security clearances, I must deny granting if I am not convinced
that the LSO’s security concerns have been mitigated such that granting the Individual’s clearance
is not an unacceptable risk to national security.
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. Of special interest is any failure to provide
truthful and candid answers during national security investigative or adjudicative processes.
Adjudicative Guidelines ¶ 15. The Individual’s admitted marijuana use and his inconsistent
accounts of his prior marijuana use in the three PSIs and the LOI, as recounted above, gave the
LSO justification to invoke Guideline E. Ex. 1.
Guideline E security concerns may however be mitigated if “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.” Id. at ¶ 17(c).
I found the Individual to be credible in his testimony that his omission was not deliberate, but rather
an oversight on his part. This is supported by the fact that the Individual’s limited three time usage
of marijuana (twice in April 20025 and once in March 2009) occurred several years before he was
asked to recount the usage in the QNSPs or the LOI. While his answers on the various QNSPs are
inconsistent, the extent of the inconsistencies are not such that it appears to be a coordinated attempt
to mislead LSO officials as to the fact of his involvement with his illegal drug use. For example,
while the Individual failed to report any illegal drug use in the April 2012 QNSP, a mere six months
prior the Individual reported in his September 2011 LOI that he had used marijuana twice in April
2002. Guideline E requires that the omission, concealment, or falsification be deliberate. I cannot
find that the Individual’s failure to include a one-time usage of marijuana (March 2009), when he
self-reported that usage later, was deliberate. If the omission was not deliberate, such omission
would not rise to a level of being a security concern under Guideline E. In addition, I also found
him to be credible in his testimony that he failed to remember his March 2009 marijuana usage.
There is no other evidence that he falsified or omitted any other information from any
questionnaires or during an interview, consequently, I find that the mitigating factor described in
in paragraph 17(c) of the Guidelines that the behavior “be so minor or the behavior be so
infrequent” is applicable to this case. Further, I find the Individual’s failure to include his March
2009 marijuana use on his QNSPs was not deliberate. Given this, I find that the Guideline E security
concerns raised by his inconsistent responses in the QNSPs and LOI have been resolved.
VI. CONCLUSION
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
5 The two occasions of marijuana use in April 2002 (or April 2000 as recorded in the August 2011 QNSP) would not
have been reportable under the instructions given in the QNSP because it occurred more than seven years prior to the
date of the March 2011 QNSP. Ex. 10 at 32.
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Adjudicative Guidelines. I further find that the Individual has succeeded in fully resolving those
concerns. Therefore, I conclude that restoring 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 restore access authorization to the
Individual at this time.
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