PSH-21-0016

*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: February 12, 2021 ) Case No.: PSH-21-0016
)
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Issued: April 15, 2021
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Administrative Judge Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (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 not be granted.
I. BACKGROUND
On August 5, 2019, the Individual submitted a Questionnaire for National Security Positions
(QNSP) to a Local Security Office (LSO) initiating his application for a DOE security clearance.
Ex. 6 at 1. The QNSP required that the Individual identify each of his previous employers, and the
Individual responded by identifying several previous employers. The QNSP further required that
the Individual “provide the reason for leaving the employment activity” for each of his previous
employers. Ex. 6 at 12. The Individual reported that one of these employers had “fired” him, for
“Allegations of non-compliance with company policy.” Ex. 6 at 12. On August 21, 2019, an Office
of Personnel Management (OPM) investigator (the OPM Investigator) conducted an Enhanced
Security Interview (ESI) of the Individual. Ex. 7 at 52. During this ESI, the Individual elaborated
on the circumstances which led to his termination, reporting that his employer administered a
urinalysis drug test to him. Ex. 7 at 52. The Individual claimed that the employer initially informed
him that the results from his urinalysis were “inconclusive.” Ex. 7 at 53. However, the Individual
admitted that the employer subsequently informed him that his urine sample tested positive for
methamphetamine, at a level over 20 times the cutoff level for detection. Ex. 7 at 53. The
Individual emphatically denied ever using illegal drugs. Ex. 7 at 53. Subsequently, on October 9,
2019, the LSO issued a Letter of Interrogatory (LOI) to the Individual requesting the Individual to
“describe the circumstances in detail that led to your termination from this employment.” Ex. 5 at
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.
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1. On October 15, 2019, the Individual responded to the LOI, stating: “It was alleged that I came
up inconclusive on a urinalysis. I was denied the chance to retake the test.” Ex. 5 at 1. The
Individual further stated: “I have never failed a drug test before or since. And I have no reason I
would.” Ex. 5 at 1.
On March 11, 2020, the LSO began the present administrative review proceeding by issuing a
Notification Letter to the Individual informing him that he was entitled to a hearing before an
Administrative Judge in order to resolve the substantial doubt regarding his 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. At the hearing I convened pursuant
to 10 C.F.R. § 710.25(d), (e) and (g), I took testimony from two witnesses: the Individual and his
former supervisor. See Transcript of Hearing, Case No. PSH-21-0016 (hereinafter cited as “Tr.”).
The LSO submitted seven exhibits, marked as Exhibits 1 through 7 (hereinafter cited as “Ex.”).
The Individual submitted five exhibits, marked as Exhibits A through E.
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,
citing the Bond Amendment and Guidelines E and H 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).
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. The LSO alleges that the Individual signed a QNSP in August
2019 stating only that he was terminated from an employer for non-conformance to company
policy, omitting the fact that the employer had terminated him for testing positive for
methamphetamine. The LSO further alleges that the Individual indicated in his LOI response that
he had never failed a drug test, even though he had previously admitted (during his ESI) to failing
the March 2019 drug urinalysis. The LSO also alleges that the Individual had further indicated in
his LOI response that the drug test that resulted in his termination was inconclusive, which was not
fully candid. These allegations raise a significant security concern that the Individual had attempted
to conceal derogatory information during his clearance investigation. Accordingly, the LSO’s
concerns under Guideline E are justified.
The LSO alleges that the Individual’s positive drug test for methamphetamine in March 2019,
raises security concerns under Guideline H and disqualifies the Individual from holding a security
clearance pursuant to the mandates of the Bond Amendment. 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
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trustworthiness because such drug use may impair a person’s judgment and because illegal drug
use raises questions about a person’s ability or willingness to comply with laws, rules, and
regulations. See Adjudicative Guidelines at § 24. The conditions that could raise a disqualifying
security concern under Guideline H include “any substance misuse” or “testing positive for an
illegal drug.” Guideline H at § 25(a) and (b). The Bond Amendment states: “. . . the head of a
Federal agency may not grant or renew a security clearance for a covered person who is an unlawful
user of a controlled substance2 or an addict . . .” 50 U.S.C § 3343(b).
The LSO’s concerns that the Individual used methamphetamine are based solely on his admission
that he tested positive for methamphetamine in March 2019. The Individual denies that he has ever
used illegal drugs, alleging that the test was not reliable or accurate. Neither party has submitted
evidence documenting the procedures used to conduct this test, ensure its chain of custody, and
analyze the Individual’s urine specimen. Drug tests vary widely in their accuracy, reliability, and
validity. When conducted properly, they are highly accurate, reliable, and useful. However,
reliance upon improperly conducted tests can pose two dangers: First, that an individual’s drug use
might go undetected, and second, that an individual will be falsely identified as an illegal drug user.
Recognizing these concerns, the DOE has issued regulations setting forth its requirements for
“Specimen collection, handling and laboratory analysis for drug testing.” 10 C.F.R. § 707.12. The
DOE Regulations further require that the agency and its contractors conduct their drug testing
programs in accordance with the guidelines of the Department of Health and Human Services and
subsequent amendments to those guidelines (the “Mandatory Guidelines for Federal Workplace
Drug Testing Programs,” 53 FR 11970, April 11, 1988). 10 C.F.R. § 707.5. Unless a drug test is
conducted in accordance with these mandated guidelines, I cannot rely upon it alone to conclude
that an individual engaged in illegal drug use.
Accordingly, I find that the Individual’s positive March 2019 drug test does not justify the LSO
security concerns under Guideline H and does not disqualify the Individual from eligibility to
maintain a security clearance under the Bond Amendment.
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 entire process
is a conscientious scrutiny of a number of variables known as the “whole person concept.”
Adjudicative Guidelines ¶ 2(a). The protection of the national security is the paramount
consideration. 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).
2 “Controlled substance” is defined in the Amendment as any substance listed as a controlled substance by 21 U.S.C.
§ 802.
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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 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. THE HEARING
The Individual’s Former Supervisor testified that they had known each other for over 10 years and
had worked together for over eight years. Tr. at 53–54. He testified that the Individual was a hard
worker and that he had never suspected the Individual of using illegal drugs. Id. at 54-55. He was
not aware of the Individual taking any drug tests during the time they worked together. Id. He
testified that the Individual called him around the time he was terminated and claimed that his drug
test had come back inconclusive. Id. at 62. The Former Supervisor believed that the test and
surrounding circumstances sounded “shady.” Id.
The Individual testified that he was given a drug test by his prior employer as part of a routine
screening. Tr. at 24. A company employee handed him a urine cup and, after it was filled, read the
initial results off the side of the cup. Id. at 21–24. The Individual testified that this initial result
came back as inconclusive and that he was sent home in accordance with company policy. Id. at
14. He testified that the results were later changed to positive for methamphetamine after being
sent to a laboratory. Id. at 14, 21. He admitted that he was terminated for noncompliance with
company drug and alcohol policy because he had failed the drug test. Id. at 13–14. The Individual
claimed that, after receiving the positive test result, he purchased three over-the-counter test kits
and administered two of the three tests to himself. Id. at 15, 24-25. He alleged that, even though
both tests were negative, he later discarded the results. Id. at 15, 24-25.
The Individual testified that he has never used methamphetamines or any other illegal drug. Tr. at
20. He denied that he was trying to hide his failed drug test by stating on his QNSP that he was
terminated for violating company policy and by stating in his LOI response that he was terminated
for an inconclusive drug test. Id. at 32. He testified that he was attempting to be formal in his
responses. Id. The Individual further testified that, when he stated that he had never failed a drug
test before in his life, his intention was to indicate that he had not failed any other drug test. Id. at
20, 33.
V. ANALYSIS
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 commonsense manner. “Any doubt concerning personnel being considered
for access for national security eligibility will be resolved in favor of the national security.”
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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 or restoring security clearances, I must deny access authorization if I
am not convinced that the LSO’s security concerns have been sufficiently resolved to conclude
that allowing the Individual to maintain a security clearance would not constitute an unacceptable
risk to national security.
The Record indicates that the Individual has engaged in conduct revealing his questionable
judgement, lack of candor, dishonesty, and unwillingness to comply with rules and regulations by
failing to provide truthful and candid answers to the LSO during his security clearance
investigation. While the Individual gave a vague but technically correct answer on his QNSP, he
was not being fully candid regarding the circumstances of his termination. I note that this omission
was not the only omission that the Individual made in his QNSP concealing his positive drug test
(as well as another disciplinary matter). The QNSP asked the Individual “. . . have you received a
written warning, been officially reprimanded, suspended, or disciplined for misconduct in the
workplace such as a violation of security policy?” Ex. 6 at 12. The Individual responded “no” to
this question, even though he had been suspended pending the results of his laboratory drug
urinalysis.3 Ex. 6 at 12; Ex. 7 at 53. These omissions indicate that the Individual was intentionally
concealing derogatory information when he completed and submitted his QNSP. Only when
questioned by the OPM Investigator did the Individual admit that he had been suspended and then
fired for violating his employer’s policy against illegal drug use. Even so, when he was
subsequently asked by the LSO to explain the termination in writing, the Individual falsely stated
that his drug test was inconclusive and that he had never failed a drug test, omitting the fact that he
had tested positive for methamphetamine.
The following conditions (in relevant part) may mitigate Personal Conduct security concerns
arising under Guideline E. Section 17(a) provides that mitigation can occur if “the individual made
prompt, good-faith efforts to correct the omission, concealment, or falsification before being
confronted with the facts. Section 17(c) provides that mitigation can occur if “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.” Section 17(d) provides that mitigation can occur if
“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 Guideline E at § 17(a), (c), (d).
In the present case, the Individual had not made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts. His omissions from his QNSP
served to conceal the fact that he had tested positive for methamphetamine, and he did not reveal
that he had tested positive for illegal drug use until his ESI, when he was specifically questioned
about the circumstances leading to his termination. He subsequently continued to exhibit a lack of
candor in responding to the LOI, where he claimed that his drug test was “inconclusive” and that
3 The Individual also provided a false answer to this question concerning another past employer. Information obtained
by the OPM indicates that although the Individual had answered this same question “no” for another previous employer
in his QNSP, he had in fact received a written warning, a “final warning,” and a suspension from that employer. Ex. 5
at 1; Ex. 6 at 13: Ex. 7 at 56-57.
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he had never failed a drug test. Accordingly, I find that the Individual has not shown that the
mitigating condition set forth at § 17(a) is present in the instant case.
The Individual’s failure to fully disclose his positive drug test was not a minor offense; indeed, it
involved an allegation that the Individual had tested positive for illicit drug use less than five
months prior to submitting his QNSP. While his positive drug test did eventually come to light,
questions remain about the Individual’s candor, given the fact that he has never fully acknowledged
his less than candid behavior during his security clearance investigation. Instead, he has tried, as
recently as at his hearing in this matter, unsuccessfully, to show that his omissions were
unintentional and has continued to deny that he has exhibited a lack of candor. Tr. at 13-14.
Accordingly, I find that the Individual has not shown that any of the mitigating conditions set forth
at § 17(c) are present in the instant case.
The Individual has not acknowledged his lack of candor, nor has he sought counseling or treatment
to address his lack thereof. Given these factors, I find that the Individual has not shown that his
lack of candor is unlikely to recur. Accordingly, I find that the Individual has not shown that any
of the mitigating conditions set forth at § 17(d) are present in the instant case.
I therefore find that the Individual has not mitigated the LSO’s Guideline E security concerns.
VI. CONCLUSION
For the reasons set forth above, I conclude that the Bond Amendment does not disqualify the
Individual from maintaining a security clearance. I also find that the LSO has not properly invoked
Guideline H. I have however, concluded that the LSO properly invoked Guideline E. After
considering all the evidence, both favorable and unfavorable, in a commonsense manner, I find that
the Individual has not mitigated the security concerns raised under Guideline E. Accordingly, the
Individual has not demonstrated that granting his security clearance would not endanger the
common defense and would be clearly consistent with the national interest. Therefore, the
Individual’s security clearance should be denied. The parties may seek review of this Decision by
an Appeal Panel under the procedures set forth at 10 C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals