PSH-18-0089

*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: December 17, 2018 ) Case No.: PSH-18-0089
)
_________________________________________ )
Issued: February 27, 2019
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Administrative Judge Decision
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James P. Thompson III, 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 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) (the “Adjudicative Guidelines”), I conclude that the Individual should be granted access
authorization.
I. BACKGROUND
In 2017, the Individual completed an Electronic Questionnaires for Investigations Processing (e-
QIP) as part of his application for a security clearance. The e-QIP contained information that cast
doubt on the Individual’s fitness to hold a security clearance. The Local Security Office (LSO)
subsequently conducted a Personnel Security Interview (PSI)2 of the Individual.
On October 31, 2018, the LSO sent a letter (“Notification Letter”) to the Individual advising him
that it had reliable information that created a substantial doubt regarding his eligibility for access
authorization. See 10 C.F.R. § 710.21. In the attachment to the Notification Letter, the LSO
explained that the derogatory information fell within the purview of Guidelines E and H of the
Adjudicative Guidelines.
Upon receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations to request an administrative review hearing. The Director of OHA appointed me as the
1 Under the regulations, “[a]ccess 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 Ex. C.
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Administrative Judge in this matter. At the hearing, the Individual presented the testimony of three
witnesses and testified on his own behalf. The LSO submitted seven exhibits (Exs. A-G) and the
Individual submitted eight exhibits (Exs. 1-8) into the record of this proceeding. The hearing
transcript will be cited as “Tr.” followed by the relevant page number.
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 Guidelines E and H of the Adjudicative Guidelines.
The LSO alleges that the Individual admitted to using marijuana in 2013 approximately four times
within a month while possessing a security clearance and after previously signing a Drug
Certification form. Ex. A. Under Guideline E, 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.
Adjudicative Guidelines at ¶ 15. Thus, a concern may be raised by “credible adverse information
that . . . when combined with all available information, supports a whole-person assessment of
questionable judgment, untrustworthiness, [or] unwillingness to comply with rules and regulations
. . . .” Id. at ¶ 15(d). A concern may also be raised by a “violation of a written . . . commitment
made by the individual to the employer as a condition of employment.” Id. at ¶ 15(f). The
Individual’s admitted marijuana usage raises a concern under the “whole person” concept and
violated his written agreement with the DOE. The LSO therefore appropriately invoked Guideline
E.
Under Guideline H, illegal use “of controlled substances . . . 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.” Id. at ¶ 24. Concerning behavior includes “[t]esting
positive for an illegal drug” or “[a]ny illegal drug use while granted access to classified information
or holding a sensitive position . . . .”3 Id. at ¶ 24(b), (f). The Individual admitted using marijuana
while possessing a security clearance. Accordingly, the LSO appropriately invoked Guideline H.
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
3 Marijuana falls within the Adjudicative Guideline’s definition of controlled substance. Adjudicative Guidelines at ¶
24.
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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.
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
Approximately fourteen years ago, the Individual was charged with possession of a controlled
substance (marijuana) and paraphernalia. Ex. C at 29; Ex. D at 7. As a result, he served two years
of probation and described the experience as being “miserable.” Tr. at 82. In 2010, he obtained a
position working for a DOE contractor that required him to obtain a security clearance. As part of
that clearance process, the Individual was questioned about the circumstances that lead to his 2005
charges, including his history of using of marijuana. Ex. D. During a 2010 PSI, the Individual
acknowledged that using marijuana is incompatible with possessing a security clearance and stated
his intent to abstain from using marijuana in the future. Ex. D 6-7, 14-16, 20. The Individual also
signed a Drug Certification form (“Drug Certification”) that reflected his understanding that
marijuana use was prohibited and his promise to abstain while possessing a security clearance. Ex.
D at 20; Ex. E. In 2010, the Individual was granted a security clearance.
Three years later, while possessing a security clearance, the Individual used marijuana and
subsequently failed a random drug test. Ex. F at 1. As a result, his employer terminated his
employment. Ex. F at 1. During his PSI, the Individual explained that he smoked marijuana after
being offered it at a party. Ex. C at 10. He attempted to explain why he used marijuana despite
knowing that such conduct was prohibited. See e.g. Ex. C at 9-13. He stated that he and his wife
had increased their “partying” behavior and had been consuming alcohol and got “carried away”
on the first night he used marijuana. Ex. C at 9-13. He also admitted that while he “struggled with”
his decision to use marijuana, he used it three more times within a month before being caught. Ex.
C at 11-12. He stated that, at the time, he believed the risk of getting caught was low and he intended
to stop using marijuana after a short period. Ex. C at 23. At the hearing, the Individual explained
that, at the time, he felt using marijuana was more acceptable because his wife was doing it with
him. Tr. at 124-25.
The Individual presented evidence to demonstrate that after losing his job in 2013 he struggled to
make ends meet for his family. He testified that, prior to being terminated, he was living paycheck
to paycheck while supporting his wife and young child. Tr. at 102. Afterward, he described starting
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his own trucking business out of desperation. Tr. at 98. As a self-employed trucker, he funded his
own drug testing program. Tr. at 122. However, his business struggled. Tr. at 99-100; Ex. F at 1.
Around the same time, the Individual depleted his 401(k) to make ends meet. Tr. at 102. Eventually,
he accepted a job that required him to remain in a different state as he continued struggling to pay
his family’s bills and mortgage. Tr. 100, 102, 107; Ex. F at 1. As part of the new out-of-state
employment, he was subject to random drug testing and submitted to four drug tests, which he
asserted he passed without issue. Ex. C at 35-36; See also Tr. 128-29; Ex. 1.
The Individual asserted that he matured a lot in the two years he worked in the other state due to
missing time and memories with his family and dealing with feelings of having let everyone around
him down. Ex. F at 1. He described it as “the hardest period in his life,” and one that he does not
want to repeat. Tr. at 118. He spent weeks away from his family each month, “worked every day”
ensuring the company could run “trucks 24/7,” and described his quality of life as “terrible.” Tr. at
132.
Despite his efforts, the out-of-state work begin to slow down, and he again began searching for
other employment opportunities—going so far as to apply for positions in Canada. Tr. at 106. In
2016, the Individual applied for and, to his surprise, obtained his present position with a DOE
contractor. Ex. F at 1. As part of the process, the Individual passed an employment screening drug
test near the end of 2016. Tr. at 108; Ex. 6. After being on the job for about two years, his manager
asked him to obtain a security clearance. Ex. F at 1.
The Individual asserted that his current position is extremely important to his future plans, and drug
use will not be involved in his lifestyle. Ex. F at 2. To reinforce the latter statement, the Individual
stated that he has changed his drinking habits so that he no longer consumes alcohol with others to
get “drunk,” and he testified that he does not spend time with people who use marijuana Tr. at 117-
18. He also testified that, if he were ever in a situation where he suspected that somebody is his
presence possessed marijuana, he would remove himself from the situation. Tr. at 135.
Furthermore, he stated that he no longer has the desire to use marijuana and keeps himself
extremely busy by focusing on improving his financial circumstances. Tr. at 123. In addition to his
full time job, he works part-time with the company he previously worked with out-of-state, and he
built his own home. Tr. at 123. He also stated that he spends most of his spare time doing activities
with his family outdoors. Ex. F. Finally, he testified that he views his current position as a second
chance after a hard lesson, Tr. at 119-20, and he does not want to “ruin that again.” Tr. at 123.
Regarding violating his Drug Certification, the Individual testified that he has learned the
importance of integrity through losing his. Tr. at 126. He testified that when he was provided the
opportunity to review and sign a new Drug Certification, he was more than willing to commit to
himself and the DOE that he will not use marijuana while is possession of a security clearance. See
Tr. at 140-141.
The Individual’s wife testified at the hearing. She believes that she and the Individual chose to use
marijuana, even though they knew the risk to the Individual’s job and security clearance, due to
recklessness, weakness against peer pressure, and alcohol use. Tr. at 21, 23-24, 34-35. She also
testified how it was heart-wrenching for the Individual to be separated from his family and miss
the memories, time, and relationships. Tr. at 28. She stated the experience humbled him and
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changed him to the core. Tr. at 28. Regarding future use of marijuana, she stated unequivocally that
she will not accept it in her life or in the Individual’s life. Tr. at 28. She also stated that the
Individual told her that using marijuana in the future is “not an option,” and that they have both set
boundaries to prevent placing themselves in a position to use marijuana. Tr. at 34-36. Those
boundaries include not spending time with the people from the 2013 incidents. Tr. at 21, 35-37.
The Individual’s father also testified regarding the changes he had observed in the Individual. The
father recalled lecturing the Individual back in 2005 that drug use would make life more difficult.
Tr. at 69. As the Individual’s father watched the Individual struggle to support his family after
being terminated in 2013, he witnessed the Individual become more family oriented. He believes
the hardship impressed upon the Individual the importance of maintaining the obligations of a
security clearance. See Tr. at 71-72. As a result, he testified that he believes the Individual will not
use marijuana again. Tr. at 71-72.
Lastly, the Individual’s out-of-state supervisor testified at the hearing. The supervisor stated that
he hired the Individual as a truck driver in 2014 when the Individual was struggling with his small
business. See Tr. at 42. He has worked with the Individual for about four years, Tr. at 42, and he
testified that the Individual is reliable and honest when he makes mistakes at work. Tr. at 48. The
supervisor also confirmed that the Individual successfully participated in a random drug testing
program while driving trucks for the supervisor’s company.4 Tr. at 47.
V. ANALYSIS
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the Individual and witnesses. 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 should be granted access authorization. I find that granting the
Individual a security clearance will not endanger the common defense and security, and that it 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 H: Drug Involvement and Substance Misuse
The following relevant conditions may mitigate Guideline H security concerns:
(a) The behavior happened so long ago, 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;
(b) The individual acknowledges his or her drug involvement and substance misuse,
provides evidence of actions taken to overcome this problem, and has established a
pattern of abstinence, including, but not limited to:
4 The Individual clarified that while he was initially enrolled in the supervisor’s company’s random drug testing
program, he was not so enrolled after leaving the company to pursue a full-time position with his current employer nor
when he returned to the supervisor’s company for contemporaneous part-time employment. Tr. 60-61, 127-28.
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(1) disassociation from drug-using associates and contacts;
(2) changing or avoiding the environment where drugs were used; and
(3) 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;
. . . .
Administrative Guidelines at ¶ 26.
Under the first mitigating factor above, the Individual presented significant evidence that the
condition happened so long ago or under circumstances that it is unlikely to recur or cast doubt on
his current reliability, trustworthiness, or good judgement. The evidence demonstrates that the
Individual last used marijuana approximately five years ago, which is a significant period of time.
The Individual’s testimony is corroborated by the testimony of his witnesses and negative drug
tests over the years. Additionally, as to the circumstances under which the Individual last used
marijuana, he did so with friends whom he no longer spends time with and a wife whom has since
stopped using marijuana and is fully supportive of a lifestyle that does not involve it. His testimony
also demonstrates that he views marijuana as a direct threat to his career prospects and ability to
care for his family. He also testified that he no longer places himself in similar situations to the
partying he previously engaged in by regulating his alcohol intake, spending time with his family
or other people that do not use marijuana, keeping himself busy with work, and focusing on his
commitment to abstain and support his family. Thus, the evidence demonstrates that it is unlikely
the Individual will find himself in similar circumstances that facilitated his use of marijuana.
Similarly, under the second mitigating factor, the Individual presented significant evidence to
mitigate the Guideline H concern. First, he acknowledged that he used marijuana several times,
including disclosing it in his application for his current position, and as stated above, took action
to address the problem by changing his behavior with alcohol, his boundaries around socializing,
and his mindset regarding marijuana. Second, he provided evidence that he established a pattern of
abstinence for approximately five years in which he (1) disassociated from the people with whom
he used marijuana and no longer spends time with anybody that he suspects uses it, (2) has
committed to avoiding environments where drugs were used or may be used, and (3) signed a Drug
Certification statement of his intent to abstain from all drug involvement which includes his
acknowledgement that his future involvement is grounds for revocation of his clearance eligibility.
I find, based on the information above, that the Individual has demonstrated that he has mitigated
the security concerns associated with Guideline H. However, the Individual must also resolve the
remaining Guideline E concerns in order to for me to find that he is eligible for a security clearance.
B. Guideline E: Personal Conduct
While Guideline E lists several conditions that may mitigate related security concerns, the only two
relevant to the present case are whether:
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. . . .
(c) 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;
(d) 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;
. . . .
Administrative Guidelines at ¶ 17.
As to the first mitigating condition, a significant period of time has passed since the Individual last
engaged in the poor judgement and behavior that caused him to violate his Drug Certification. The
evidence demonstrates that he has not used marijuana since 2013. The Individual also presented
substantial evidence to demonstrate a change in his mentality and behavior over the last five years
regarding marijuana use. He described how his experience enduring the severe consequences of his
actions matured him and impressed upon him the importance of maintaining his commitment to
not use marijuana in violation of his Drug Certification and security clearance requirements. It is
clear from the evidence that depleting his life savings and working a difficult schedule while being
separated from his young family was a sobering experience that made a perspective-changing
impact.
As to the second condition, the Individual acknowledged that violating the Drug Certification was
a very poor decision that deprived him of integrity and violated the DOE’s trust. He expressed
remorse for his conduct, and has taken several positive steps to alleviate the circumstances and
other factors that contributed to his inappropriate behavior. For instance, he stopped engaging in
drinking to get drunk, thus altering the pattern of his alcohol consumption that placed him in a
compromised state and contributed to his marijuana use. He also disassociated from the friends he
used marijuana with in the past, aside from his wife whom herself is committed to abstinence, and
he has been occupying his time with his family and businesses pursuits while intentionally taking
steps to ensure he does not place himself in a position where he may be around people using
marijuana in the future. Additionally, he testified that he would proactively remove himself from
any situation in which he suspected marijuana may be present. Thus, it appears very unlikely that
he will be in a position where he is tempted to engage in conduct that would violate the Drug
Certification in the future—especially given the hardship he suffered as a result of such conduct.
The evidence demonstrates that he has a profound understanding of what the Drug Certification
means to his livelihood, and that he has changed his patterns of behavior that led to his lapse in
judgment. I find the evidence demonstrates that the Individual has learned from his mistake through
experiencing the significant consequences and he is therefore not likely to repeat it by violating his
Drug Certification in the future. I therefore find that he has mitigated the Guideline E security
concerns.
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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 Guidelines E and H of
the Adjudicative Guidelines. I further find that the Individual has succeeded in fully resolving these
concerns. Therefore, I 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 grant 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.
James P. Thompson III
Administrative Judge
Office of Hearings and Appeals