PSH-19-0053

*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: September 9, 2019 ) Case No.: PSH-19-0053
)
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Issued: December 5, 2019
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Administrative Judge Decision
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Katie Quintana, 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), I conclude
that the Individual’s access authorization should be restored.
I. Background
The Individual is employed by a DOE Contractor in a position that requires him to hold a security
clearance. During a background investigation, an investigator became aware of derogatory
information that cast doubt on the Individual’s fitness to hold a security clearance. As a result, the
Local Security Office (LSO) conducted a Personnel Security Interview (PSI) with the Individual
in September 2018. Ex. 5. Due to the unresolved security concerns, the LSO informed the
Individual in a Notification Letter dated August 5, 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 concerns under Guideline H (Drug Involvement and Substance Misuse) of the
Adjudicative Guidelines and the Bond Amendment. Ex. 1.
Upon receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations by requesting an administrative review hearing. Ex. 2. The Director of the Office of
Hearings and Appeals (OHA) appointed me the Administrative Judge in the case, and I
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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subsequently conducted an administrative hearing in the matter. At the hearing, the DOE Counsel
submitted six numbered exhibits (Exhibits 1-6) into the record. The Individual tendered eleven
exhibits (Exhibits A-K). Both the Individual and his wife testified. The exhibits will be cited in
this Decision as “Ex.” followed by the appropriate alphabetical or numeric designation. The
hearing transcript in the case will be cited as “Tr.”, followed by the relevant page number.
II. Regulatory Standard
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. Notification Letter and Associated Security Concerns
As previously mentioned, the Notification Letter included a statement of derogatory information
that raised concerns about the Individual’s eligibility for access authorization. The information in
the letter specifically cites Guideline H of the Adjudicative Guidelines and the Bond Amendment.
Ex. 1. Guideline H relates to the illegal use of controlled substances, including the misuse of
prescription and non-prescription drugs. Guideline H at ¶ 24. Substance misuse raises concerns
about an individual’s reliability and trustworthiness because such use may lead to physical or
psychological impairment and raises questions about a person’s ability or willingness to comply
with laws, rules, and regulations. Id. The Bond Amendment provides, in pertinent part, that a
Federal agency may not grant or renew a security clearance for a covered person who is an
unlawful user of a controlled substance or an addict. 50 U.S.C. § 3343(b). In citing Guideline H
and the Bond Amendment, the LSO relied upon the Individual’s admission during the PSI that, in
late March or early April 2018, he “unlawfully used Tylenol-3,” a controlled substance, which was
not prescribed to him. Ex. 1.
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IV. Findings of Fact
The Individual admitted to the allegations contained in the summary of security concerns, but
denied that he was addicted to drugs or a habitual user. Ex. 2; Tr. at 13. I have carefully considered
the totality of the record in reaching the findings of fact set forth below.
At the hearing, the Individual explained that, in late March of 2018, he underwent an unexpected
root canal dental procedure. Tr. at 19, 23; Ex. B. Following the procedure, his dentist failed to
prescribe him any medication, and began experiencing “significant pain” the following evening.
Tr. at 21. He utilized over-the-counter ibuprofen and acetaminophen, but those medications were
not effective in mitigating the pain. Id. The Individual and his wife considered making a visit to
the emergency room, but he felt that the emergency room was “the wrong place to go for a
toothache.” Id. at 27. Seeing the Individual in pain, his wife offered him a
hydrocodone/acetaminophen tablet (hydrocodone) that she had left over from her own a surgical
procedure.2 Tr. 13, 21, 25, 25; Ex. D. The Individual took one tablet, and it lessened the pain to a
“manageable level.” Tr. at 21, 26. The Individual noted that the hydrocodone did not produce any
side effects, and he did not get “high.” Id. at 26-27. He solely used the medication to ease his pain,
the “common use” of the prescription. Id. at 54-55; Ex. D.
The morning after taking the hydrocodone, the Individual testified that his pain was better, and he
was able to manage his symptoms with over-the-counter medications. Id. at 22, 27. The Individual
acknowledged that taking his wife’s prescription medication was a mistake and a lapse in
judgement due to the pain he was suffering. Id. at 14, 28. He indicated that he very much regretted
the decision, and he would not make the mistake again. Id. at 28. He further pointed out that he
had no intention of hiding this mistake from DOE and voluntarily revealed the information during
the course of a routine security clearance reinvestigation. Id. at 17.
The Individual’s wife (Wife) testified on his behalf. The Wife recalled the events that led up to the
Individual taking the hydrocodone tablet, and her story was consistent with that of the Individual.
See id. at 61-62. She stated that she offered the Individual the medication because she was used to
being a “caregiver,” and the hydrocodone was “a solution that was available at the time.” Id. at 71.
She noted, however, that this was “not something that [she] would choose to do again.” Id. The
Wife testified that the hydrocodone was no longer in their home, and that she and the Individual
gathered all of their unused medications and took them to a pharmacy for proper disposal. Id. at
65. She verified that the Individual is not a drug addict, does not use illegal drugs, and after 22
years of marriage, she had never observed him use illegal drugs or prescribed drugs, other than for
their medically intended use. Id. at 14, 68, 70.
V. Analysis
Misuse of a prescription medication is a condition that can raise a security concern and disqualify
an individual from holding a security clearance. See Guideline H, ¶¶ 24-25. Such concerns can be
mitigated by showing that: (a) the behavior was so infrequent or so long ago that it is unlikely to
recur and does not cast doubt on an individual’s current reliability, trustworthiness, or judgment;
2 The Individual noted that although he told the investigator he took Tylenol #3 (a combination of acetaminophen and
codeine (a narcotic)), he was mistaken as to the name of the medication. Tr. at 13, 25, 47. In actuality, the medication
was a combination of hydrocodone (a narcotic) and acetaminophen. Ex. D.
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or (b) an 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. Id. at ¶ 26(a), (b).
In this situation, I conclude that the Individual’s use of the hydrocodone was an isolated incident
brought about by a single, pain induced lapse in judgment. I see nothing in the record that would
indicate that the Individual regularly engages in substance misuse, illegal use of controlled
substances, or is addicted to drugs. Although the Individual improperly used a medication that was
not prescribed to him, he used it in a manner consistent with its intended purpose, did not abuse it,
and properly disposed of it once realizing and acknowledging his mistake. The Individual
submitted the negative results of a voluntary drug test,3 and he demonstrated great candor in
volunteering his use of the medication during a routine security clearance investigation, without
prompting. Ex. H; Tr. 17, 29. Further, he has committed to abstaining from “all drug involvement
and substance misuse.” Ex. K. I cannot conclude that this one isolated impugns the Individual’s
reliability or trustworthiness for the purposes of maintaining his security clearance.
For the foregoing reasons, I find that the Individual has mitigated the security concerns associated
with Guideline H. In light of the infrequency and character of the Individual’s drug use, I also find
that, for purposes of the Bond Amendment, the Individual is not now a user of illegal drugs nor is
he an addict.
VI. Conclusion
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
the hearing, I have found that the Individual has brought forth sufficient evidence to resolve the
security concern associated with Guideline H and the Bond Amendment. 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.
Katie Quintana
Administrative Judge
Office of Hearings and Appeals
3 This drug test was conducted in October 2019. Ex. H.