PSH-21-0003

*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 12, 2020 ) Case No.: PSH-21-0003
)
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Issued: February 11, 2021
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Administrative Judge Decision
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James P. Thompson III, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (the “Individual”) for 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
On June 28, 2019, the Individual signed a Questionnaire for National Security Positions (QNSP)
in connection with obtaining a security clearance. Therein, the Individual certified that in the last
seven years, he had not used illegal drugs, including marijuana, had not purchased illegal drugs,
and had never been asked to seek counseling or treatment as a result of using illegal drugs.
However, during a subsequent Enhanced Subject Interview (ESI) conducted by the National
Background Investigations Bureau, the Individual disclosed that he had in fact both used and
purchased marijuana during the relevant time frame, that he had received counseling for his use of
marijuana in 2011, and that he deliberately omitted the information from his QNSP.
Consequently, on February 7, 2020, the Local Security Office (LSO) issued the Individual a
notification letter stating that it possessed reliable information that created substantial doubt
regarding the Individual’s eligibility to hold a security clearance. In an attachment to the letter
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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(“Summary of Security Concerns”), the LSO explained that the derogatory information raised
security concerns under Guideline E of the Adjudicative Guidelines.
In response, the Individual exercised his right to request an administrative review hearing pursuant
to 10 C.F.R. Part 710. The Director of the Office of Hearings and Appeals (OHA) appointed me
as the Administrative Judge in this matter, and I subsequently conducted an administrative hearing.
The LSO submitted eight numbered exhibits (Exs. 1-8) into the record. The Individual submitted
no exhibits and offered the testimony of four witnesses, including his own.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline E (Personal Conduct) of the Adjudicative Guidelines as the basis for
denying the Individual a security clearance. Ex. 1.2 Guideline E states that “[c]onduct 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. Special emphasis is
placed on “any failure to cooperate or provide truthful and candid answers during national security
investigative or adjudicative processes.” Id. A condition that could raise a security concern
includes “[d]eliberate omission, concealment, or falsification of relevant facts from any personnel
security questionnaire, personal history statement, or similar form used to conduct investigations
. . . [or] determine national security eligibility or trustworthiness.” Id. at ¶ 16(a). The admission by
the Individual that he deliberately provided false response to several questions in the QNSP
justifies the LSO’s invocation of Guideline E.
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)
(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 or her eligibility for an access authorization.
The Part 710 regulations are drafted so as to permit the introduction of a very broad range of
2 Numerous exhibits offered by DOE contain documents with printed page numbers that are inconsistent with the
pagination of the exhibit workbook. This decision cites to exhibits based on the pagination of the combined exhibit
workbook and not page numbers printed on documents contained within exhibits.
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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 did not dispute the Summary of Security Concerns which recounted his failure to
provide truthful answers on his June 28, 2019, QNSP. Ex. 2 at 7-8. Within the QNSP, the
Individual certified that, in the preceding seven years, he had not used illegal drugs, had not
purchased illegal drugs, nor ever been asked to seek counseling or treatment as a result of using
illegal drugs. Ex. 8 at 59, 60.
During the subsequent ESI, the Individual disclosed to the investigator that he had in fact used and
purchased marijuana during the relevant time frame, and he had received counseling for his use of
marijuana in 2011. Ex. 8 at 127-28. By way of providing more detail, he told the investigator that
he last used and purchased marijuana in 2014. Id. at 127-28. He claimed that he did not report his
marijuana use because he never got into trouble for it and did not think he had to list it. Id. The
Individual stated that he would not use it in the future because he no longer has an interest in it.
Id. He failed to list his purchase history in the QNSP because he no longer uses marijuana, he
never “[got] in trouble over it,” and it did not affect his ability to do his job. Id. Finally, the
Individual told the investigator that he did not disclose his prior marijuana related therapy because
he did not like talking about his past marijuana use. Id. He explained that he saw the therapist
because his parents made him after his mother discovered marijuana in his property when he still
lived with his parents. Id.at 129.
The investigator also asked the Individual about a 2014 alcohol-related auto accident he disclosed
in his QNSP. Id. at 125. As part of his response, the Individual said that he was interviewed by law
enforcement but could not remember details from the questioning. Id. He disclosed that he was
taken to a hospital after the accident. Id. While at the hospital, he provided a blood sample that
was later tested for the presence of alcohol. Id.
The record indicates that after the ESI concluded, an investigator obtained a police report
documenting a 2015 auto accident involving the Individual. Id. at 148; compare id. at 122, with
id. at 147. According to the police report, the Individual stated that he had consumed alcohol and
“three joints of marijuana.” Id. at 148.
The record also contains information that the Individual submitted with his request for the present
administrative hearing. Ex. 2 at 7. Therein, he stated his regret for “omitting” information
regarding his prior marijuana use referenced above. Id. He stated that he “was completely wrong
to not disclose information because [he] was not proud of things that had happened.” Id. He
explained that he did not realize the gravity of his failure to disclose his past marijuana use. Id. He
further explained that his “response was driven from fear and shame not from a desire to mislead
investigators[.]” Id. He also stated that this conduct did not define his character and ability to be
trustworthy and responsible. Id.
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V. HEARING TESTIMONY
At the hearing, the Individual presented testimony from his work colleague and former mentor, his
girlfriend, and his grandmother. All testified that he was honest, reliable, and trustworthy. Tr. at
21, 31-32, 32-34, 46. In addition, the work colleague testified that the Individual conscientiously
followed all work-related security rules. Id. at 23. The Individual’s grandmother, who previously
carried a “level of clearance,” testified to the Individual’s strong character and reliability. Id. at
32-33, 38. She highlighted how the Individual selflessly moved into her home to care for her and
his grandfather when his grandfather fell ill.3 Id. at 32-34. The Individual’s girlfriend testified that
the Individual takes his job very seriously, and he is honest with her, his friends, and his family.
Id. at 48-49.
The Individual provided testimony regarding his failure to provide accurate information during the
security process. The Individual testified that he failed to include his marijuana use within the last
seven years because he thought “by the time the paperwork [got] in [it would have been] seven
years [since his last use].” Id. at 55. However, the process moved faster than he expected. Id. He
also testified that his 2014 marijuana use was less frequent than his 2011 use and he therefore did
not remember it. See id. Then he later testified that he failed to disclose the information because
he was afraid. Id. at 56. He did not want all his hard work to be overshadowed by past conduct that
he no longer engages in. Id. He was afraid he would lose his job if he answered the questions
truthfully. Id. When asked why he failed to list his marijuana use but not a 2014 alcohol-related
offense or previous psychological counseling, he stated that he “overlooked” reporting the
marijuana use. Id. at 57. When asked to clarify the apparent contradiction in his explanation that
he consciously decided to omit the information due to fear as opposed to an oversight or memory
lapse, the Individual confirmed that he chose to withhold the information. Id. at 57, 65. However,
he denied that his conduct was an attempt at deceit. Id. at 60.
The Individual recognized that he “made a misstep in the process,” and he stated that he regretted
his decision. Id. at 56. He was especially regretful that his conduct placed his ability to support his
family in jeopardy. Id. at 70. He testified that he has never caused a security infraction and follows
all security guidelines. Id. at 62. He expressed his love for this country, and he recognized “that
there must be great scrutiny taken with the security process as those who are deemed fit to hold a
clearance must be of exceptional character so that the security of the nation can be preserved.” Id.
at 69. He testified that, going forward, he would be honest and not withhold any information
regardless of how he felt so that his character would not be in question. Id. at 70–71.
Finally, the Individual testified that his last use of marijuana coincided with the alcohol-related
automobile incident that precipitated the 2015 police report. Id. at 74.
3 The Individual’s grandmother has since moved in with him, upon his request after his grandfather passed away, and
the Individual continues to care for her. Tr. at 34-35.
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VI. ANALYSIS
The following relevant conditions could mitigate a security concern under Guideline E:
(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;
Adjudicative Guidelines at ¶ 17.
I find that the Individual has not mitigated the security concerns under Paragraph 17(c) listed
above. The Individual’s conscious decision to provide inaccurate answers to direct questions
during the investigation process to avoid disclosing information that could raise a security concern
does not constitute a minor offense. See Adjudicative Guidelines at ¶ 2(i) (“any incident of
intentional material falsification or purposeful non-cooperation with security processing is of
significant concern”).
I also find that the Individual has failed to present sufficient evidence for me to conclude that he
has mitigated the concern under the remaining basis listed in Paragraph 17(c) above. The clearance
process has certainly impacted the Individual’s life and his understanding of the importance of
providing candid, truthful information during the security clearance process. I have considered the
testimony of his witnesses who believe that he is trustworthy. I have also considered the fact that
the Individual disclosed his deceitful conduct during the ESI. However, the preceding information
must be balanced against the fact that the Individual chose to provide false information at the very
beginning of his clearance process, which occurred only eighteen months before the hearing.
Furthermore, at the hearing, the Individual had trouble acknowledging that he intentionally
provided false information; instead, he wavered by characterizing his conduct as a mere oversight
before admitting it was a conscious, intentional decision.4 He only confirmed the latter after being
confronted with the inconsistency. Finally, I am concerned by the lack of candor evinced by his
decision to not disclose his marijuana use in relation to his 2015 auto accident. He withheld the
information twice: on his QNSP and during the ESI. Had the investigator not subsequently
obtained the related police report, the record would be devoid of these omissions. The significance
of the offense, the relatively short passage of time, and the Individual’s persistent inability to fully
acknowledge that his conduct was calculated to deceive, compels me to conclude that he has not
mitigated the concern due to the passage of time, frequency, or circumstances surrounding his
conduct.
4 This same difficulty is illustrated by the Individual’s statements during the ESI contrasted with the explanations he
provided in his written request for an administrative hearing. See supra.
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Turning to the Paragraph 17(d) mitigating factor, for the same reasons as above, I do not find that
he has presented sufficient evidence to demonstrate that he has acknowledged his conduct and
taken sufficient action to alleviate the stressors, circumstances, or factors that contributed to his
untrustworthy and inappropriate behavior. Consequently, I do not find that the Individual has
resolved the Guideline E security concerns.
VII. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
the DOE that raised security concerns under Guideline E of the Adjudicative Guidelines. After
considering all of the relevant information, favorable and unfavorable, in a comprehensive,
common-sense manner, including weighing all the testimony and other evidence presented at the
hearing, I find that the Individual has not brought forth sufficient evidence to resolve the security
concerns set forth in the Summary of Security Concerns. 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.
James P. Thompson III
Administrative Judge
Office of Hearings and Appeals