PSH-19-0022

*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: April 15, 2019 ) Case No.: PSH-19-0022
)
__________________________________________)
Issued: July 17, 2019
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Administrative Judge Decision
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Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXX (the Individual) to hold an access authorization
under the United States Department of Energy’s (DOE) regulations, set forth at 10 C.F.R. Part 710,
“Procedures for Determining Eligibility for Access to Classified Matter and 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)
(Adjudicative Guidelines), I conclude that the Individual should not be granted access
authorization.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires him to hold a security
clearance. In October 2017, the Individual completed an Electronic Questionnaire for
Investigations Processing (e-QIP) in which he disclosed that he had previously used marijuana, but
had stopped doing so in 2016 and had not used any other illegal drugs or controlled substances in
the last seven (7) years. DOE Ex. 5 at 27–28. However, a background investigation conducted by
the Office of Personnel Management (OPM) revealed that the Individual had used marijuana as
recently as August 2017, and that the Individual had failed to disclose his use of cocaine and
hallucinogenic mushrooms on the e-QIP. See DOE Ex. 4 at 1 (summarizing the adverse information
obtained by OPM through the background investigation).
The Local Security Office (LSO) conducted a personnel security interview (PSI) of the Individual
on July 31, 2018. DOE Ex. 6 at i. During the PSI, the Individual admitted that he had intentionally
omitted the last date on which he had used marijuana, the fact that numerous members of his family
used marijuana in his presence, and his prior use of cocaine and hallucinogenic mushrooms. See
DOE Ex. 3 at 1. As the information provided by the Individual in the PSI presented unresolved
1 The regulations define access authorization 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). This
Decision will refer to such authorization as access authorization or security clearance.
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security concerns, the LSO informed the Individual, in a notification letter dated March 21, 2019
(Notification Letter), that it possessed reliable information that created substantial doubt regarding
his eligibility to hold a security clearance. In an attachment to the Notification Letter, the LSO
explained that the derogatory information raised security concerns under “Guideline E, Personal
Conduct” and “Guideline H, Drug Involvement.” DOE Ex. 1.
The Individual exercised his right to request an administrative review hearing pursuant to 10 C.F.R.
Part 710. DOE Ex. 2. The Director of the Office of Hearings and Appeals (OHA) appointed me as
the Administrative Judge in the case, and I subsequently conducted an administrative hearing
concerning the matter. At the hearing, the LSO introduced seven (7) numbered exhibits (DOE Ex.
1–7) into the record. The Individual introduced one (1) lettered exhibit (Ind. Ex. A) into the record
and presented the testimony of two (2) witnesses, including himself. I received a transcript of the
proceedings (Tr.) on July 16, 2019.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
The LSO cited Guideline E (Personal Conduct) as one of the reasons for denying the Individual a
security clearance. DOE Ex. 1 at 1. Conduct involving questionable judgement, lack of candor, 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. Of special interest is any failure to cooperate or provide truthful and candid
answers during national security investigative or adjudicative processes. Id. The Notification Letter
asserted that: the Individual admitted during the PSI that he last used marijuana in 2017 despite
listing July 2016 as the date he last used marijuana on the e-QIP; the Individual admitted during
the PSI that he used hallucinogenic mushrooms and cocaine and failed to disclose those facts on
the e-QIP; and the Individual admitted that his father regularly used marijuana in his presence.
DOE Ex. 1 at 1. The Individual’s apparent deliberate omission of relevant facts from a personnel
security questionnaire and the Individual’s association with persons involved in criminal activity
justify the LSO’s invocation of Guideline E. Adjudicative Guidelines at ¶ 28(a), (g).
The LSO also cited Guideline H (Drug Involvement) in the Notification Letter as a reason for
denying the Individual a security clearance. DOE Ex. 1 at 2. The illegal use of controlled substances
and the use of other substances that cause physical or mental impairment 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. Adjudicative Guidelines at ¶ 24. The Notification Letter
asserted that: the Individual admitted that he used marijuana, with declining frequency, from 2008
to August 2017; the Individual admitted to purchasing and using illegal hallucinogenic mushrooms
on two (2) occasions; and the Individual admitted to using cocaine from April 2012 to February
2013. DOE Ex. 1 at 2. The Individual’s substance misuse and illegal possession of a controlled
substance justify the LSO’s invocation of Guideline H. Adjudicative Guidelines at ¶ 25(a), (c).
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
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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.
IV. FINDINGS OF FACT
The Individual executed the e-QIP on October 23, 2017, including a certification that the contents
of the e-QIP were true, complete, and correct to the best of his knowledge and belief. DOE Ex. 7
at 48. The Individual disclosed on the e-QIP that he began using marijuana in May 2009, and
represented that he had stopped using marijuana in July 2016 because of the costs of purchasing
marijuana, the adverse health consequences, and his desire “never [to] do anything to risk [his] job
or clearance.” Id. at 27–28. The Individual indicated that he had not illegally used any other drugs
or controlled substances in the prior seven (7) years. Id. at 28.
OPM initiated a background investigation of the Individual as part of the security investigative
process in February 2018. Id. at 54. During an interview with an OPM investigator, the Individual
stated that he most recently used marijuana in August 2017. Id. at 56. The Individual also admitted
to having used cocaine on two (2) occasions in 2012, and to having used hallucinogenic mushrooms
on three (3) occasions from 2012 to 2013. Id. The Individual indicated that he had intentionally
omitted this information from the e-QIP because he was worried that it would negatively affect his
ability to obtain a security clearance. Id. at 57. At least four (4) individuals interviewed by the OPM
investigator concerning the Individual’s background told the OPM investigator that the Individual
had used illegal drugs. Id. at 61, 65, 69, 71.
During the PSI, the Individual reported that he began using marijuana in high school, and increased
his marijuana use when he began attending college. DOE Ex. 6 at 11–13. The Individual confirmed
that he had last used marijuana in August 2017. Id. at 16. The Individual also confirmed that he
had used hallucinogenic mushrooms and cocaine. Id. at 19–20, 42–43, 45. The Individual reported
that his use of marijuana and hallucinogenic mushrooms adversely affected his academic
performance to the point that he transferred to a different university. Id. at 28–29.
The Individual reported that when he was in college he purchased marijuana approximately once
every three (3) months with his roommate, and purchased hallucinogenic mushrooms on two (2)
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occasions. Id. at 14, 25. The Individual indicated during the PSI that he was aware that it was illegal
to purchase the marijuana and hallucinogenic mushrooms, but that he “wasn’t perturbed really . . .
since it was natural . . . [and] didn’t seem as bad as most.” Id. at 25–26.
According to the Individual, “everyone on [his] dad’s side of the family” and four (4) friends who
he saw almost every week used marijuana, including in his presence. Id. at 33–34. The Individual
estimated that his father smoked marijuana three (3) times each week and, when asked how often
his father used illegal drugs in his presence, reported that “recently, it’s been every time.” Id. at 36.
During the PSI, the Individual explained that he had lied about his drug use on the e-QIP because
he “didn’t want it to affect [his] professional life . . . [and he] thought it’d be a better lie [sic] than
to be honest.” Id. at 35. The Individual added that he thought that “being associated with
mushrooms and cocaine would just sound really criminal [a]nd [he did not] feel like [] a criminal
as a person.” Id. at 53. The Individual said that lying on the e-QIP was a mistake, and that he had
no intention to falsify, omit, or misrepresent information on any government forms in the future.
Id. at 49, 61.
At the hearing, a friend of the Individual who sees the Individual approximately weekly testified
as to the Individual’s honesty and kindness towards others. Tr. at 18–19. The Individual’s friend
testified that he and the Individual had used marijuana together in the past, but that he had not
observed the Individual use marijuana since at least 2017. Id. at 24. The Individual’s friend also
testified that he had observed the Individual refuse marijuana offered to him during social events
in friends’ homes. Id. at 21.
The Individual testified that he did not contest any of the allegations in the Notification Letter,
except for the allegation that his father smokes marijuana in front of him every time that he visits.
Id. at 35, 44–45. With respect to his drug use, the Individual testified that he felt remorse after
minimizing his drug use on the e-QIP and “came clean” after being asked about his drug usage
during an interview with an OPM investigator. Id. at 33. The Individual confirmed that he had used
marijuana once or twice each month until August 2017, when he applied for his current position
with the DOE contractor. Id. at 36. The Individual also confirmed that he had used hallucinogenic
mushrooms on three (3) occasions, and cocaine on two (2) occasions. Id. at 39–40.
The Individual offered into evidence a signed statement in which he committed to abstain from
drug involvement in the future and acknowledged that any future drug use on his part would be
grounds for revocation of any access authorization he might hold at that time. Ind. Ex. A. However,
the Individual expressed that he intended to return to using marijuana in the future if it was federally
decriminalized or if he does not obtain a security clearance. Tr. at 49. The Individual testified that
his father has not used marijuana in his presence for approximately one (1) year, and that his friends
who use marijuana will leave the room to smoke when he is present. Id. at 42, 47–48.
The Individual expressed that he did not believe that his drug use was “the real issue at hand,” and
that he perceived DOE as more concerned about his untruthfulness. Id. at 33. When asked why
DOE should trust him now after he previously lied on the e-QIP, the Individual said that he could
not see why DOE should do so. Id. at 48. However, the Individual promised that he “would not do
anything to harm another person or harm the United States of America or its secrets or anything to
that effect.” Id. at 50.
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V. ANALYSIS
I have thoroughly considered the record of this proceeding, including the exhibits and the testimony
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. The security concerns at issue center on whether the Individual’s
untruthfulness in the security investigative process, association with drug-using individuals, and
prior drug use himself, reflect a lack of reliability, trustworthiness, and ability to protect classified
or sensitive information. After due deliberation, I find that the Individual should not be granted a
DOE security clearance. Specifically, I cannot find that granting the Individual a security clearance
would not endanger the common defense and security, or that doing so would be clearly consistent
with the national interest. 10 C.F.R. § 710.27(a). The relevant evidence and my specific findings
in support of this decision are discussed below.
A. Adjudicative Guideline E Considerations
The Individual admitted to lying about his drug usage on the e-QIP to increase his chances of
obtaining a security clearance and also to associating with drug-using individuals. However, the
Individual asserted during the hearing that he revealed the prior drug usage that he had omitted
from the e-QIP before being confronted with the facts, and that his father had not used marijuana
in his presence for approximately one (1) year. These assertions implicate two (2) potentially
mitigating conditions under Guideline E.
An individual may mitigate security concerns related to omissions or misrepresentations under
Guideline E if the Individual “made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts.” Adjudicative Guidelines at
¶ 17(a). In this case, the Individual waited approximately four (4) months from the date that he
submitted his e-QIP to reveal to the OPM investigator the information that he had omitted from the
e-QIP. Moreover, in light of the numerous individuals who informed the OPM investigator about
the Individual’s prior drug use, it is plausible that the Individual considered the likelihood that the
full extent of his drug usage would come to light during the investigation in deciding to make his
disclosure to the OPM investigator. OHA has previously found an individual’s disclosure of
misrepresentations on an e-QIP neither prompt nor in good faith when the Individual waited months
to make the disclosure and did so under circumstances in which it was likely that the derogatory
information would come to light through the investigative process whether or not the individual
made the disclosure. See Personnel Security Hearing, OHA Case No. PSH-18-0070 at 7 (2019)
(finding that an individual’s disclosure of his father’s undocumented immigration status to an OPM
investigator after his father had been arrested was neither prompt nor in good faith). Similarly, I
find that the circumstances under which the Individual disclosed his misrepresentation to the OPM
investigator in this case do not satisfy the mitigating condition set forth at paragraph 17(a) of
Guideline E.
An individual may mitigate security concerns related to associating with persons involved in
criminal activity if the involvement has ceased or occurs under circumstances that do not cast doubt
upon the individual’s reliability, trustworthiness, judgement, or willingness to comply with rules
and regulations. Adjudicative Guidelines at ¶ 17(g). Here, regardless of the Individual’s father’s
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frequency of drug use, the Individual testified during the hearing that he associates with drug-using
friends, including the friend who testified on his behalf during the hearing. The Individual’s
willingness to continue associating with drug-using individuals, even after learning that doing so
could affect his eligibility for a security clearance, reflects an unwillingness on the part of the
Individual to conform to rules applicable to those who hold security clearances. Accordingly, I find
this mitigating condition inapplicable.
Having found that the Individual failed to demonstrate that any of the mitigating conditions under
Guideline E are applicable in this case, I conclude that the Individual failed to resolve the security
concerns asserted by the LSO under Guideline E.
B. Adjudicative Guideline H Considerations
The Individual acknowledged his prior drug use and association with drug-using individuals, but
asserted that he would not use drugs again while in a position that required him to hold a security
clearance, and that his father had not used marijuana in his presence in approximately one (1) year.
The assertions implicate two (2) potential mitigating conditions under Guideline H: (1) 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
judgement; and, (2) the individual demonstrates that he or she has disassociated from drug-using
associates, changed or avoided the environment in which drugs were used, and provided a signed
statement of intent to abstain from all drug involvement and acknowledged that any future
involvement is grounds for revocation of national security eligibility. Adjudicative Guidelines at
¶ 26(a)–(b).
The Individual began using illegal drugs when he was a minor and he smoked marijuana on a bi-
weekly basis until at least August 2017. The Individual’s drug use spanned multiple phases of his
life, and is not obviously attributable to any particular individual or environment. The only
evidence that the Individual provided to support his claimed abstinence from marijuana was his
own testimony and the testimony of a friend who sees the Individual approximately once each
week. In light of the Individual’s previous untruthfulness concerning his drug usage, and the
Individual’s heavy evidentiary burden under the Part 710 regulations, I find this testimony
insufficient to show that he has ceased using illegal drugs and that the circumstances have changed
so significantly that he is unlikely to use illegal drugs again. Moreover, the Individual continues to
associate with friends with whom he previously used marijuana, and those friends have recently
used marijuana in the Individual’s presence at social gatherings.
For the aforementioned reasons, the Individual failed to demonstrate that any of the mitigating
conditions under Guideline H are applicable in this case. I therefore conclude that the Individual
failed to resolve the security concerns asserted by the LSO under Guideline H.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE that raised security concerns under Guidelines E and H of the Adjudicatory Guidelines. After
considering all of the relevant information, favorable and unfavorable, in a comprehensive,
common-sense manner, including weighing all of the testimony and other evidence presented at
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the hearing, I find that the Individual has not brought forth sufficient evidence to resolve the
security concerns set forth in the Notification Letter. Accordingly, I have determined that the
Individual should not be granted access authorization. Either party may seek review of this
Decision by an Appeal Panel pursuant to 10 C.F.R. § 710.28.
Richard A. Cronin, Jr.
Administrative Judge
Office of Hearings and Appeals