PSH-19-0054

*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 13, 2019 ) Case No.: PSH-19-0054
)
__________________________________________)
Issued: December 11, 2019
__________________________
Administrative Judge Decision
__________________________
Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXX (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 granted.
I. BACKGROUND
The Individual is employed by a DOE Contractor in a position that requires her to hold a security
clearance. During a background investigation, derogatory information regarding the Individual’s
history of drug use was uncovered. The Individual underwent a Personnel Security Interview (PSI).
The Local Security Office (LSO) began the present administrative review proceeding by issuing a
Notification Letter to the Individual informing her that she was entitled to a hearing before an
Administrative Judge in order to resolve the substantial doubt regarding her 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 September 13, 2019. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d),
(e) and (g), the Individual presented the testimony of eight witnesses, and testified on her own
behalf. See Transcript of Hearing, Case No. PSH-19-0054 (hereinafter cited as “Tr.”). The LSO
submitted seven exhibits, marked as Exhibits 1 through 7 (hereinafter cited as “Ex.”). The
Individual submitted 11 exhibits, marked as Exhibits A through K.
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.
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 her eligibility for a security
clearance. That information pertains to Guidelines E, H, and J 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).
These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human
behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative
process. The Administrative Judge’s overarching adjudicative goal is to issue a fair, impartial and
common sense decision. The entire process is a conscientious scrutiny of a number of variables
known as the “whole person concept.” Adjudicative Guidelines ¶ 2(a). The Administrative Judge
must consider all available, reliable information about the person, past and present, favorable and
unfavorable, in making a decision. The protection of the national security is the paramount
consideration.
Guideline E (Personal Conduct) 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 ¶ 15.
Guideline H (Drug Involvement and Substance Misuse) relates to security risks arising as a result
of an individual’s illegal use of controlled substances, including misuse of prescription and non-
prescription drugs, and use of other substances that cause physical or mental impairment or are
used in a manner inconsistent with their intended purpose. 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. The conditions
set forth in the Guidelines that could raise a disqualifying security concern are any substance
misuse; testing positive for an illegal drug; illegal possession of a controlled substance, including
cultivation, processing, manufacture, purchase, sale, or distribution; possession of drug
paraphernalia; a Substance Use Disorder diagnosis by a duly qualified medical or mental health
professional; failure to successfully complete a drug treatment program prescribed by a duly
qualified medical or mental health professional; any illegal drug use while granted access to
classified information or holding a sensitive position; and expressed intent to continue drug
involvement and substance misuse, or failure to clearly and convincingly commit to discontinue
such misuse.
Guideline J (Criminal Conduct) provides that “[c]riminal activity creates doubt about a person's
judgment, reliability, and trustworthiness. By its very nature, it calls into question a person's ability
or willingness to comply with laws, rules, and regulations.” Adjudicative Guidelines at ¶ 30. The
conditions that could raise a security concern and may be disqualifying include a pattern of minor
offenses, any one of which on its own would be unlikely to affect a national security eligibility
decision, but which in combination cast doubt on the individual's judgment, reliability, or
2
trustworthiness; evidence of criminal conduct, regardless of whether the individual was formally
charged, prosecuted, or convicted; an individual is currently on parole or probation; an individual’s
parole or probation was violated or revoked; an individual’s failure to complete a court-mandated
rehabilitation program; and discharge or dismissal from the Armed Forces for reasons less than
“Honorable.” Adjudicative Guidelines at ¶ 31.
The LSO alleges that the Individual’s husband used and stored marijuana two to three times per
year in the garage of their home; that the Individual’s husband used marijuana in her presence the
weekend before her PSI; that the Individual was present while marijuana was used on a camping
trip and that the Individual attended social events with marijuana use three to five times per year;
that the Individual used marijuana occasionally from 2007 to 2013; that the Individual used and
purchased ecstasy three to four times from 2008 to 2011; and that the Individual was involved with
the sale and transfer of $20 to $40 worth of mushrooms once in 2011. Accordingly, the LSO’s
security concerns under Guidelines E, H, and J are justified.
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 her 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
The Individual’s husband testified that he had known the Individual for 14 years. Tr. at 9. He
testified that the Individual had not used any illegal drugs in six or seven years. Id. at 10. He stopped
using ecstasy when the Individual did. Id. He has used marijuana occasionally since then, typically
a couple of times per year. Id. The husband stopped using marijuana entirely after the Individual’s
3
PSI. Id. at 11. He last used marijuana in Denver in 2018. Id. at 13–14. The Individual was not with
him on the trip. Id. at 14.When he returned, he discussed his use with the Individual, who informed
him that his marijuana use in a state with legalized recreational use still jeopardized her security
clearance. Id. The husband had been to Colorado several times since and neither he nor anyone he
was traveling with had used marijuana on any of those trips. Id. at 15–16.
The husband testified that the Individual had avoided being around marijuana use in the past by
leaving the area where it was being used. Tr. at 12. Since the PSI, he and the Individual had stopped
going to places where marijuana was likely to be used so that the Individual would not have to be
around it at all. Id. They have modified their social group since the Individual’s PSI. Id. at 16. They
do not have regular contact with anyone using marijuana and have tailored their social circle to
comply with security guidelines. Id. The husband has also turned to therapy to cope with his
depression and anxiety so that he would not need to turn to marijuana in the future. Id. at 17.
The Individual’s former office mate had known the Individual for about 18 months. Tr. at 25–26.
He testified that they work together and also socialize outside of work. Id. at 26. They see each
other daily at work and two to six times per month socially. Id. at 26–27. He had spoken to the
Individual about past drug use on multiple occasions because they were going through the security
clearance process at the same time. Id. at 27. He testified that the Individual was forthcoming and
candid about her history of drug use. Id. at 29–30. The colleague testified that he did not believe
the Individual had used an illegal drug since around the time she was in college. Id. at 29. He
testified that he believed the Individual intended to comply with security requirements regarding
drug use in the future. Id. at 37.
The Individual’s friend had known the Individual for many years. Tr. at 38. He was also one of her
husband’s best friends. Id. at 39. He testified that he last witnessed the Individual using an illegal
drug seven or eight years prior. Id. at 40. He further testified that he had seen the Individual mature
over the course of their friendship. Id. at 41–42.
The Individual’s colleague had known the Individual for about one year. Tr. at 48. They worked in
the same building and communicated daily for about the first four months. Id. at 48–49. They also
socialized outside of work once or twice per month. Id. at 49–50. He had never seen the Individual
consume illegal drugs while the Individual was employed by the DOE Contractor. Id. at 50. He
testified that the Individual has recently refused to enter establishments where she suspects there is
the possibility that someone may be using marijuana. Id. at 51–52.
The Individual’s workplace mentor had known the Individual for about two years. Tr. at 60. They
saw each other about four times per week and did not socialize outside of work. Id. She testified
that she did not believe the Individual had used illegal drugs since being employed by the DOE
Contractor. Id. at 61. She testified that the Individual had good judgment and was very cautious
with security at work. Id. at 61–62. She believed the Individual was very reliable and trustworthy
and that the Individual was compliant with rules. Id. at 62.
The Individual’s project Principal Investigator had known the Individual for about a year. Tr. at
65. They met every week or every other week while they were on the same project, but did not
meet regularly after the project ended in September 2019. Id. at 66. They occasionally saw each
other outside of work. Id. She believed the Individual had not used illegal drugs while being
4
employed by the DOE Contractor. Id. at 67. She testified that the Individual demonstrates good
judgment and is a rule follower. Id. For example, when left alone by her escort, the Individual had
proactively sought a new escort to ensure that no security violation occurred. Id. at 67–68.
The Individual’s senior manager had known the Individual for about two years in a professional
context only. Tr. at 75–76. He had discussed the security concerns at length with the Individual and
was certain that she had not used illegal drugs while employed by the DOE Contractor. Id. at 77.
He testified that the Individual diligently follows rules and that she has good judgment and is
trustworthy. Id. at 78. He believed that the Individual would not have issues with illegal drug use
in the future. Id. at 84.
The Individual’s direct manager had known the Individual for about two years. Tr. at 86. They have
rare contact outside of work at work-related social events. Id. at 87. He did not believe that the
Individual had consumed illegal drugs while employed by the DOE Contractor. Id. He testified that
there were no concerns with the Individual’s judgment and that she was compliant with rules. Id.
at 88. He believed the Individual was trustworthy. Id. at 89.
The Individual last smoked marijuana in 2013, her last year of college. Tr. at 95. She stopped
because it made her paranoid, it was illegal, and it was a risky behavior that was not integral to her
life. Id. She last used ecstasy in 2011. Id. at 95–96. She tried it because she wanted to see what it
felt like. Id. at 96. She stopped using ecstasy because it is illegal and harmful to one’s health. Id.
The Individual intends to abstain from using illegal drugs indefinitely. Id. She testified that drugs
were never an integral part of her life, so abstaining had not been difficult. Id. at 119. The Individual
testified that she did not profit from the conveyance of mushrooms and was not dealing in drugs.
Id. at 97–98. She had been asked if she knew where to find mushrooms, and, because she did not
know, she helped find a source. Id. at 97. She had not used mushrooms and did not intend to do so
in the future. Id. at 98–99. She intends to abstain indefinitely from conducting or brokering the sale
or transfer of illegal drugs. Id. at 99.
The Individual was not aware until her PSI that it was a security concern to be around others who
used marijuana. Tr. at 100. At that time, she believed that simply walking away while marijuana
was being used was enough to comply with security regulations. Id. The Individual testified that
she now understood that it was against DOE policy to associate with people who use marijuana,
regardless of the drug’s legal status in the state. Id. at 101–02. She now avoids people and places
that she suspects may be associated with marijuana use, including modifying her social circle to
exclude people who use illegal drugs. Id. at 102–03. After the PSI, the Individual explained to her
husband that it was unacceptable for him to use marijuana because it would be a security concern.
Id. at 105. She testified that her husband used marijuana once after that while in Colorado, after
which she explained to him that marijuana is federally illegal and that the security concerns
remained, regardless of marijuana’s legality in the state. Id. at 106. The Individual sees marijuana
use as a deal-breaker; if her husband decides to start using marijuana in the future, she will leave
him. Id. at 108. She intends to follow all rules, laws, and regulations applicable to her as a clearance
holder if granted a security clearance. Id. at 121.
V. ANALYSIS
5
A person who seeks access to classified information enters into a fiduciary relationship with the
federal government predicated upon trust and confidence. This relationship transcends normal duty
hours and endures throughout off-duty hours. The government places a high degree of trust and
confidence in individuals to whom it grants access authorization. Decisions include, by necessity,
consideration of the possible risk that the applicant may deliberately or inadvertently fail to protect
or safeguard classified information. Such decisions entail a certain degree of legally permissible
extrapolation as to potential, rather than actual, risk of compromise of classified information.
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
for access for national security eligibility will be resolved in favor of the national security.”
Adjudicative Guidelines ¶ 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 and restoring security clearances, I must deny the security clearance
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.
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).
Guideline H security concerns may be mitigated when (a) 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; (b) 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; (c) the drug use was prescription drug abuse after a severe illness for which the drugs
were prescribed and the drug use has ended; and (d) 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).
Guideline J provides that security concerns arising from criminal conduct can be mitigated when
(a) so much time has elapsed since the criminal behavior happened, or it happened under such
unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual's
reliability, trustworthiness, or good judgment; (b) the individual was pressured or coerced into
6
committing the act and those pressures are not prescribed, the pressures are no longer a part of the
individual’s life, and the abuse has since ended; (c) there is no reliable evidence to support that the
individual committed the offense; and (d) there is evidence of successful rehabilitation; including,
but not limited to, the passage of time without recurrence of criminal activity, restitution,
compliance with the terms of parole or probation, job training or higher education, good
employment record, or constructive community involvement. Adjudicative Guidelines at ¶ 32.
The Individual’s drug involvement occurred so long ago that it is unlikely to recur and no longer
casts doubt on her reliability, trustworthiness, or judgment. Her drug use occurred while she was
still quite young and she has abstained for at least six years, despite ample opportunity to use.
Furthermore, her abstinence was a voluntary choice, beginning years before her need for a security
clearance. Her drug sale, while unarguably a more serious offense, was a one-time event, occurring
over eight years ago while she was in college, for which she received no profit. She has not
participated in the transfer of illegal drugs before or since and her testimony on the subject was
credible such that it appears unlikely that she will do so again in the future.
The Individual believed she was in compliance with DOE drug guidelines before her PSI. When
she learned that she was violating the rules by associating with drug users, she immediately and
successfully took steps to become compliant. This included giving her husband an ultimatum and
severing associations with other marijuana users. The Individual’s commitment to leading a drug-
free life is unequivocal. She has created a social circle that supports and participates in her drug-
free lifestyle. She has also educated herself on DOE’s requirements of clearance holders to prevent
misunderstandings in the future. The Individual’s efforts, as well as her results, mitigates the DOE’s
doubt as to her judgment, reliability, and trustworthiness.
For the foregoing reasons, I find that the Individual has mitigated the security concerns under
Guidelines E, H, and J.
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, H, and
J of the Adjudicative Guidelines. I further find that the Individual has succeeded in fully resolving
those 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.
Kimberly Jenkins-Chapman
Administrative Judge
Office of Hearings and Appeals
7