PSH-21-0039

*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 2, 2021 ) Case No.: PSH-21-0039
)
__________________________________________)
Issued: June 17, 2021
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Administrative Judge Decision
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Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (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’s access
authorization should not be restored.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires him to hold access
authorization. On January 28, 2013, the Individual signed a Questionnaire for National Security
Positions (2013 QNSP) and certified that its contents were true, complete, and correct to the best
of his knowledge and belief. Exhibit (Ex.) 10 at 33. In a section of the 2013 QNSP related to
unlawful drug use, the Individual checked a box marked “No” in answer to a question concerning
whether he had intentionally misused prescription drugs in the prior seven years. Id. at 27. In 2017
the Individual completed another QNSP (2017 QNSP) and denied having intentionally misused
prescription drugs in the prior seven years. Ex. 9 at 32. However, a background check by the Office
of Personnel Management (OPM) revealed that the Individual misused prescription pain
medication from 2008 to 2017. See Ex. 5 at 2–3 (summarizing OPM’s investigatory findings
concerning the Individual’s misuse of prescription pain medication and intentional failure to
disclose this information on the 2013 QNSP and 2017 QNSP).
The local security office (LSO) issued the Individual a letter of interrogatory (LOI) concerning his
misuse of prescription medication. Ex. 6. In his response to the LOI, the Individual admitted to
using pain medication that was not prescribed to him from 2008 to 2017 and to intentionally failing
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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to disclose that information on the 2017 QNSP. Id. at 6–7, 10–11. The Individual disclosed that he
had stolen pain medication from family members and unlawfully purchased pain medication
without a prescription, that law enforcement was summoned to his home multiple times as a result
of his behavior while under the influence of pain medication, and that he had misused prescription
medication while holding a security clearance despite knowing that his conduct was unlawful. Id.
at 3–4, 10. The Individual met with a DOE-contracted psychiatrist (DOE Psychiatrist) for a clinical
interview on July 30, 2019. Ex. 7 at 3. On August 12, 2019, the DOE Psychiatrist issued a
Psychological Assessment (Report) in which he opined that the Individual met the diagnostic
criteria for Opiate Use Disorder (OUD), Severe, under the Diagnostic and Statistical Manual of
Mental Disorders – Fifth Edition (DSM-5). Id. at 11.
The LSO issued the Individual a letter in which it indicated that it possessed reliable information
that created substantial doubt regarding the Individual’s eligibility to hold a security clearance. Ex.
1. In a Summary of Security Concerns attached to the letter (SSC), the LSO explained that the
derogatory information raised security concerns under Guideline E (Personal Conduct), Guideline
H (Drug Use), and Guideline J (Criminal Conduct) of the Adjudicative Guidelines. Id.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 2. 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 ten exhibits (Ex. 1–10) into the record.2 The Individual submitted five
exhibits (Ex. A–E). The Individual presented the testimony of four witnesses, including his own,
and the LSO presented the testimony of the DOE Psychiatrist.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline E (Personal Conduct) of the Adjudicative Guidelines as the first basis
for its determination that the Individual was ineligible for a security clearance. 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. Of special interest is any failure to cooperate or provide
truthful and candid answers during national security investigative or adjudicative processes.”
Adjudicative Guidelines at ¶ 15. The SSC cited the Individual’s failure to disclose his misuse of
prescription medication on the 2013 QNSP, on the 2017 QNSP, and to the OPM investigator. Ex.
1 at 1–2. The LSO’s allegations that the Individual deliberately concealed or omitted his misuse
of prescription pain medication on two QNSPs and in his interview with the OPM investigator
justify the LSO’s invocation of Guideline E. Adjudicative Guidelines at ¶ 16(a)–(b).
The LSO cited Guideline H (Drug Use) of the Adjudicative Guidelines as another basis for its
determination that the Individual was ineligible for a security clearance. Ex. 1 at 2–3. “The illegal
use of controlled substances, to include the misuse of prescription and non-prescription drugs, and
the use of other substances that cause physical or mental impairment or are used in a manner
inconsistent with their intended purpose 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 SSC cited the DOE Psychiatrist’s determination
2 The LSO’s submissions refer to its intention to submit eleven exhibits. However, the LSO failed to submit its eleventh
exhibit, OPM’s report of its background investigation of the Individual, and therefore this exhibit is not in evidence.
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that the Individual met the diagnostic criteria for OUD, Severe, under the DSM-5, the Individual’s
admission to misusing prescription pain medication while holding a security clearance despite
knowing that doing so was unlawful, the Individual’s admission to obtaining prescription pain
medication unlawfully, and the Individual’s admission that law enforcement was summoned to his
home on multiple occasions as a result of his conduct while under the influence of prescription
pain medication. Ex. 1 at 2–3. The Individual’s substance misuse, unlawful possession of a
controlled substance, diagnosis with OUD by the DOE Psychiatrist, and misuse of prescription
pain medication while granted a security clearance justify the LSO’s invocation of Guideline H.
Adjudicative Guidelines at ¶ 25(a), (c)–(d), (f).
The LSO cited Guideline J (Criminal Conduct) of the Adjudicative Guidelines as the final basis
for its determination that the Individual was ineligible for a security clearance. Ex. 1 at 3. “Criminal
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 SSC cited the following allegations with respect
to the Individual’s ineligibility for access authorization pursuant to Guideline J: the Individual
admitted to using prescription pain medication not prescribed to him from 2008 to 2017, the
Individual admitted to stealing prescription pain medication from his relatives, and the Individual
unlawfully acquired prescription pain medication. Ex. 1 at 3. The LSO’s allegations that the
Individual engaged in criminal conduct justify the LSO’s invocation of Guideline J. Adjudicative
Guidelines at ¶ 31(b).
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 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
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The Individual was prescribed Vicodin (a prescription opiate pain medication) in 2008 after
undergoing knee surgery. Ex. C at 2. The Individual was prescribed pain medications for other
injuries and medical conditions over a period of several years and developed an addiction to the
pain medication. Id. at 2–3. Over time, the Individual began seeking pain medication in addition
to that prescribed to him to satisfy his addiction. Id. at 3.
The Individual joined a United States military unit in 2013. Id. at 1. The Individual completed the
2013 QNSP in connection with his service. Ex. 10 at 33. The Individual checked a box on the 2013
QNSP marked “No” in answer to a question concerning whether he had misused prescription drugs
in the seven years prior to completing the 2013 QNSP. Id. at 27. The Individual was granted a
security clearance by the Department of Defense (DOD) in 2013. Ex. 9 at 33–34.
On May 4, 2017, the Individual completed the 2017 QNSP and certified that its contents were true,
complete, and correct to the best of his knowledge and belief. Id. at 39. The Individual checked a
box marked “No” in answer to a question concerning whether he had misused prescription drugs
in the seven years prior to completing the 2017 QNSP. Id. at 32. An OPM investigator interviewed
the Individual in February 2018 and the Individual denied any prescription medication misuse in
the prior seven years. See Ex. 5 at 2 (summarizing derogatory information discovered during
OPM’s background investigation of the Individual). However, OPM’s investigation uncovered
multiple sources with knowledge of the Individual’s misuse of prescription medication. See id. at
3 (indicating that sources told an OPM investigator that the Individual was suspected of being
under the influence of drugs at work and had stolen prescription medication from family members).
The Individual admitted to his misuse of prescription medication during a follow-up interview
with an OPM investigator in June 2018. See id. at 2 (summarizing derogatory information
discovered during OPM’s background investigation of the Individual).
On April 30, 2019, the Individual submitted his response to the LOI issued to him by the LSO. Ex.
6 at 9. In his response to the LOI, the Individual indicated that he occasionally used pain
medication that was not prescribed to him beginning in 2008 and that his use of pain medication
escalated in 2013. Id. at 10. The Individual reported that he used pain medication “as often as [he]
could acquire it” and that he had purchased prescription medication not prescribed to him and had
obtained it by other means from others when he exhausted his prescribed pain medication. Id. at
2, 10. The Individual also disclosed that law enforcement officers were summoned to his home on
two occasions as a result of his sending concerning text messages and behaving incoherently while
under the influence of prescription pain medication. Id. at 10. The Individual admitted that he had
intentionally omitted his history of prescription drug misuse when completing the 2017 QNSP and
in his first interview with an OPM investigator, and noted that he “need[ed] this job for [his]
family” and that truthfully disclosing his history of prescription drug misuse “would hinder [his]
chances at receiving the security clearance required.” Id. at 6, 11.
The Individual met with the DOE Psychiatrist for a clinical interview on July 30, 2019. Ex. 7 at 3.
The Individual told the DOE Psychiatrist that he became aware of his dependence on prescription
pain killers in 2013, at which time he began stealing Percocet (an opiate prescription pain
medication) from his grandmother to satisfy his addiction. Id. at 5. The Individual reported
obtaining opiates through a variety of methods because he felt that he “needed opiates . . . to feel
normal.” Id. The Individual reported that he last used opiates in November 2017 and that he had
disclosed his opiate abuse to his family, friends, and supervisor. Id. at 11. The Individual reported
using Ambien for insomnia and denied that he had told his physician about his opioid addiction.
Id. at 4, 11.
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The Individual provided samples for laboratory testing following the clinical interview. The
Individual’s urine screening was negative for traces of controlled substances. Id. at 7. The
Individual’s Phosphatidylethanol (PEth) test was positive for traces of the PEth biomarker at a
level of 63 ng/mL. Id. at 6. According to the DOE Psychiatrist, this test result was consistent with
higher than recommended alcohol consumption which “correspond[ded] to the top of the NIAA
(National Institute of Alcoholism and Alcohol Abuse) ‘low risk’ category . . . .” Id. at 7.
In his Report, the DOE Psychiatrist concluded that the Individual previously met eight of the
diagnostic criteria for OUD under the DSM-5 within a twelve-month period, and accordingly
concluded that the Individual met the diagnostic criteria for OUD, Severe. Id. at 10. The DOE
Psychiatrist determined that the Individual’s OUD was in sustained remission because he reported
not misusing opioids for more than twelve months. Id. However, the DOE Psychiatrist opined that
the Individual was neither rehabilitated nor reformed. Id. The DOE Psychiatrist recommended that
the Individual abstain from opioids for an additional twelve months, complete a substance abuse
program, including counseling or Narcotics Anonymous if not included in the substance abuse
program, undergo at least three random urine screenings, and notify his physician of his OUD to
facilitate adjusting his treatment and weaning him off of Ambien. Id. at 11–12.
On March 25, 2020, the Individual executed a statement of intent not to abuse any drugs and agreed
that any illegal use of drugs would constitute grounds for automatic revocation of his security
clearance. Ex. E at 15. Beginning on April 13, 2020, the Individual met with a Licensed
Professional Counselor (Individual’s Counselor) for a substance abuse assessment. Id. at 1, 5. The
Individual’s Counselor conducted a clinical interview of the Individual, administrated the
Minnesota Multiphasic Personality Inventory-2-Restructured Form (MMPI-2-RF), and provided
the Individual with “Sweat Patches” to measure for controlled substances. Id. at 1–4. At the
conclusion of the evaluation period in June 2020, the Individual’s Counselor opined that the
Individual’s negative drug testing, lack of withdrawal symptoms, open presentation, and valid
responses on the MMPI-2-RF were sufficient to conclude that he did not meet any diagnostic
criteria for a substance abuse condition and had overcome his opiate dependence. Id. at 4. The
Individual’s Counselor noted that the Individual demonstrated “an increasing tolerance of alcohol”
and that “[s]erious consideration should be given to [the Individual’s] use of alcohol as a coping
mechanism.” Id. The Individual’s Counselor opined that the Individual would not qualify for
substance abuse treatment in light of his lengthy abstinence from opiates but that he could benefit
from participating in support groups to promote healthy living and individual counseling related
to “developing coping strategies that would protect against risk for lapse or relapse.” Id. at 4–5.
V. HEARING TESTIMONY
The Individual’s Wife testified that she did not believe that the Individual was misusing any
substances as of the date of the hearing. Tr. at 16. The Individual’s Wife further testified that the
Individual demonstrated reliability, trustworthiness, and good judgment in his family life and in
meeting work obligations. Id. at 16–18. In her opinion, the Individual “always” demonstrated good
judgment during the twelve years she has known him. Id. at 18–19. The Individual’s Wife
expressed the opinion that the Individual’s misuse of pain medication was so minor that she had
not noticed his problem and that the Individual’s openness about his struggles with prescription
drug misuse led her to believe that the Individual would not return to such misuse. Id. at 20–22.
The Individual’s Wife attributed the Individual’s omission of his prescription drug misuse from
the QNSP to the Individual’s desire to improve his family’s life due to the “tight” financial
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circumstances they were experiencing in his prior position. Id. at 25. The Individual’s Wife said
that she learned of the Individual’s prescription drug misuse in approximately 2016 and that prior
to learning of the Individual’s addiction she had attributed his occasionally unusual behavior to
work-related fatigue. Id. at 25–27, 30–31. The Individual’s Wife indicated that she would contact
the Individual’s mother and urge the Individual to obtain professional assistance if she perceived
that he had resumed misusing prescription medication. Id. at 28.
The Individual’s Counselor testified that the Individual retained her in April 2020 for a drug and
alcohol assessment in preparation for the hearing. Id. at 35. The Individual’s Counselor met with
the Individual six times and indicated that their meetings were evaluative and not therapeutic. Id.
at 47. The Individual disclosed during the assessment that he had misused prescription pain
medication to manage pain and stress, but stopped using prescription pain medication in late 2017.
Id. at 38. The Individual reported ongoing stress related to the adverse financial consequences of
potentially losing his position with the DOE contractor and reported managing the stress by
spending time with his family and working on household projects in lieu of pain medication. Id.
The Individual’s Counselor testified that the Individual’s willingness to discuss problematic
behaviors and reasons for taking negative actions displayed honesty which caused her to believe
that the information that he reported was accurate. Id. at 39–40. The Individual’s Counselor
testified that the Individual complied with the testing protocols for the assessment and that she had
no doubts as to the validity of the results. Id. at 41–42. Regarding her prognosis for the Individual’s
recovery, the Individual’s Counselor indicated that she did not “consider him at high risk for
relapse at this point.” Id. at 43.
The Individual’s Counselor testified that she was aware of the Individual’s failure to disclose his
history of abusing prescription pain medication on the 2017 QNSP and opined that his deception
was unlikely to have been a symptom of his OUD as might be the case for a person minimizing
ongoing drug abuse. Id. at 48–49. The Individual’s Counselor opined that, although the Individual
could enhance the probability of his avoiding a relapse through counseling, treatment for
prescription drug misuse would be unnecessary considering the Individual’s self-reported
abstinence for several years. Id. at 56–57, 59–61. The Individual’s Counselor also expressed the
opinion that the Individual’s “honesty and humility,” support from his family, and structured
environment would support his recovery. Id. at 63–64. The Individual’s Counselor acknowledged
that her opinion was based on information she received as of June 2020 and that she assumed that
the Individual had maintained his sobriety since that time. Id. at 64–65.
A childhood friend of the Individual (Childhood Friend) who communicates with the Individual
electronically once or twice per year testified that he formed a positive opinion of the Individual’s
character and work ethic in their youth. Id. at 70, 72–74. The Childhood Friend indicated that the
Individual told him about his prescription drug misuse in 2020 in the context of requesting that the
Childhood Friend provide a character reference for him in connection with the adjudication of his
eligibility for a security clearance, and that the Childhood Friend was unaware of the Individual’s
misuse of prescription drugs when it was ongoing. Id. at 78–79, 81.
The Individual did not contest any of the facts listed in the SSC. Id. at 123. The Individual testified
that he decided to reveal his prescription drug misuse during his second interview with an OPM
investigator. Id. at 87–88. The Individual acknowledged that his decision was partially motivated
by the possibility that his prescription drug misuse might have been revealed during the
background investigation. Id. at 100. The Individual testified that his mother learned that he was
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misusing prescription drugs and had stolen pain medication from family, and that she confronted
him about the behavior, but was “pretty forgiving” and wanted “to keep things secluded” so that
others would not learn of his problem. Id. at 101–02, 106. The Individual indicated that his wife
discovered his prescription drug misuse, confronted him, and directed him to stop in 2016 but that
he had found it difficult to do so. Id. at 101–03. The Individual indicated that he believed that he
and his wife were more “in tune with each other” than they had been in the past and that familial
and financial stressors that distracted her in the past were no longer present. Id. at 107. Therefore,
the Individual asserted that his wife and mother would act as more effective support for his
abstinence from prescription drug abuse than they had in the past. Id.
The Individual acknowledged that he had received the Report in 2019 but did not pursue the
counseling recommended by the DOE Psychiatrist on the advice of his counsel. Id. at 108. The
Individual asserted, however, that he would do so if necessary for a security clearance. Id. at 94–
95, 108–10. The Individual testified that he had talked to a pastor about his situation and had been
advised to communicate more openly with his wife about his problems and to seek comfort in
prayer. Id. at 90–91. The Individual indicated that he spoke with the pastor “no more than three”
times about his problems and that the meetings were impromptu conversations rather than
scheduled counseling. Id. at 103–04.
The Individual testified that he had abstained from prescription drug misuse for over three and one
half years and could rely on his co-workers, family, and medical providers to support his recovery.
Id. at 92–93. The Individual indicated that he had committed to abstaining from prescription drug
misuse going forward and had executed a statement to that effect. Id. at 93; Ex. E at 15. The
Individual testified that his former living environment contributed to his prescription drug misuse
and that relocating to an area with more natural spaces and “wholesome” neighbors had been
conducive to his recovery. Tr. at 93–94. The Individual acknowledged that he still possessed a
security clearance granted by DOD and had not notified DOD of his prescription drug misuse. Id.
at 118–19. When asked why he had not disclosed his prescription drug misuse to DOD, the
Individual said, “I don’t have a good answer.” Id. at 119.3
The Individual testified that he had openly communicated his misuse of prescription drugs to his
friends and family and that he was not at risk of blackmail or coercion regarding his former misuse
of prescription drugs. Id. at 95–96. The Individual cited his past military service as indicative of
his good employment record. Id. at 96–97. The Individual also testified that he had learned that
his prior belief that he should “self-cope” with his problems, which he attributed to observing his
father, was unhealthy and that he could rely on medical practitioners to help him. Id. at 110–11.
The Individual attributed his improved coping skills without relying on pain medication to
increased personal maturity and an improved relationship with his wife. Id. at 118. The Individual
testified that he consumed alcohol three to four times weekly, including up to eight beers in a day
on weekends, and that he became “buzzed” when he consumed more than two or three mixed
drinks or more than four beers. Id. at 111–15. The Individual acknowledged that he increased his
alcohol consumption following the clinical interview with the DOE Psychiatrist and attributed his
increased alcohol consumption to having moved to a new home where he felt more comfortable
relaxing and drinking with his wife. Id. at 116.
The DOE Psychiatrist testified that he diagnosed the Individual with OUD, Severe, and determined
that the Individual was not rehabilitated or reformed at the time he issued his Report because of
3 The Individual testified that he was “not sure” if he was required to inform DOD of his prescription medication
misuse but asserted that he had informed his unit commander. Tr. at 93, 150.
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the severity and duration of the Individual’s opioid addiction and because “he still had strong desire
to use and still thought about the last time he used somebody else’s opiates” as of the date of the
clinical interview. Id. at 131–32. The DOE Psychiatrist initially opined that the Individual was “in
the process of reformation” and that he should demonstrate five years of abstinence from misusing
prescription drugs if he does not pursue counseling. Id. at 133–34, 137–40. However, upon further
examination, he testified that he believed that the Individual had demonstrated reformation by
developing an awareness of his substance abuse problem and abstaining from prescription pain
medication. Id. at 147–48.
The DOE Psychiatrist opined that the Individual has a relatively low risk of relapse into
prescription drug misuse if his self-reported three and one half years of abstinence was accurate.
Id. at 141. However, the DOE Psychiatrist expressed the opinion that the Individual’s escalating
consumption of alcohol, which the DOE Psychiatrist believed might represent an alternative
coping mechanism to replace opioids, presented a potential risk of compromising his recovery and
presenting a clinical concern in of itself. Id. at 133–35, 141–42. The DOE Psychiatrist also
expressed the opinion that the Individual had underlying, unaddressed anxiety and inadequate
understanding of the root cause of his misuse of prescription medication. Id. at 136.
VI. ANALYSIS
A. Guideline E Considerations
The LSO’s allegations that the Individual deliberately omitted relevant facts from two QNSPs and
provided false or misleading information in an interview with an OPM investigator justify the
LSO’s invocation of Guideline E. Adjudicative Guidelines at ¶ 16(a)–(b). The Individual does not
contest the derogatory information under Guideline E listed in the SSC. Tr. at 123. The
Adjudicative Guidelines provide the following seven conditions which may mitigate security
concerns under Guideline E:
(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or
falsification before being confronted with the facts;
(b) the refusal or failure to cooperate, omission, or concealment was caused or significantly
contributed to by advice of legal counsel or of a person with professional
responsibilities for advising or instructing the individual specifically concerning
security processes. Upon being made aware of the requirement to cooperate or provide
the information, the individual cooperated fully and truthfully;
(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;
(e) the individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress;
(f) the information was unsubstantiated or from a source of questionable reliability; and
(g) 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.
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Id. at ¶ 17(a)–(g).
Mitigating conditions (b), (e), (f) and (g) are not applicable to this case because the Individual did
not allege that he failed to disclose his prescription drug misuse on the advice of counsel, the
Individual was not manipulated into the omissions, the Individual did not contest that the omissions
occurred, and the LSO did not allege that the Individual’s association with persons involved in
criminal conduct raised security concerns.
Mitigating condition (a) is inapplicable because the Individual did not reveal his misuse of
prescription pain medication until his second interview with an OPM investigator, by which time
it appears that the OPM investigator had learned of the information through other sources. Supra
p. 4 (discussing how OPM learned of the Individual’s misuse of prescription medication from
sources other than the Individual). Even if the Individual volunteered the information to the OPM
investigator rather than being confronted with the information, he did so over one year after his
omission on the 2017 QNSP and thus failed to promptly correct the omission. Adjudicative
Guidelines at ¶ 17(a).
Mitigating condition (c) is not applicable because the Individual’s omissions related to his
prescription drug misuse are serious, recent, and occurred over many years. The Individual’s
concealment of his prescription drug misuse masked circumstances that potentially impaired his
judgment and reliability, including a span of multiple years during which the Individual held a
DOD security clearance and was aware that he was required to disclose his prescription medication
misuse. In light of the seriousness of the risks to national security of failing to disclose addiction
to prescription medication, and the Individual’s concealment of his addiction for over five years,
I find that the passage of time since the Individual’s omissions is insufficient for me to conclude
that they do not cast doubt on his reliability, trustworthiness, or good judgment. Id. at ¶ 17(c).
Mitigating condition (d) is also inapplicable. The Individual has acknowledged his lack of candor
and taken steps to address his prescription drug misuse; however, I am not convinced that his
omissions were attributable to causes that can be addressed through resolving his prescription drug
misuse or that he will be forthcoming in the future if he perceives that he must choose between the
interests of himself and his family, and those of national security. The Individual indicated in his
response to the LOI that he failed to disclose his prescription drug misuse because of the
importance of his job with the DOE contractor to his family’s financial wellbeing and testified
during the hearing that he was partially motivated to reveal his prescription drug misuse to the
OPM investigator during the follow-up interview because he thought that the information might
be revealed during the background investigation. Supra pp. 4, 7. The Individual’s Counselor
expressed the opinion that the Individual’s lack of candor was unrelated to his OUD. Supra p. 6.
While the Individual appears to have made substantial progress towards addressing his prescription
drug abuse, I am not convinced that the Individual’s omissions were the product of symptoms of
his OUD. Rather, the Individual’s omissions, which persisted for months after his last use of
opioids, appear to have been the product of calculated choices on the part of the Individual to hide
derogatory information that compromised his eligibility for a security clearance. Under the
circumstances, I am not convinced that the Individual will candidly disclose derogatory
information on topics other than prescription drug misuse if they should arise and therefore
conclude that mitigating condition (d) is not applicable. Adjudicative Guidelines at ¶ 17(d).
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B. Guideline H Considerations
The Individual’s unlawful possession and misuse of prescription opioids while holding a security
clearance, as well as his diagnosis with OUD, present security concerns under Guideline H. Id. at
¶ 25(a), (c)–(d), (f). The Individual does not contest the derogatory information under Guideline
H listed in the SSC. Tr. at 123. The Adjudicative Guidelines provide the following four conditions
which may mitigate security concerns under Guideline H:
(a) 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 judgment;
(b) the individual acknowledges his or her drug involvement and substance misuse,
provides evidence of actions taken to overcome this problem, and has established a
pattern of abstinence, including, but not limited to:
(1) disassociation from drug-using associates and contacts;
(2) changing or avoiding the environment where drugs were used; and
(3) providing a signed statement of intent to abstain from all drug involvement and
substance misuse, acknowledging that any future involvement or misuse is grounds
for revocation of national security eligibility;
(c) abuse of prescription drugs was after a severe or prolonged illness during which these
drugs were prescribed, and abuse has since ended; and
(d) satisfactory completion of a prescribed drug treatment program, including, but not
limited to, rehabilitation and aftercare requirements, without recurrence of abuse, and
a favorable prognosis by a duly qualified medical professional.
Adjudicative Guidelines at ¶ 26(a)–(d).
The Individual misused prescription opioids on a frequent basis for years, hid this information
from DOD despite possessing a security clearance, and resorted to unlawful means of obtaining
opioids to satisfy his addiction. While the Individual denied misusing opioids since November
2017, I find that the passage of approximately three and one half years is insufficient for me to
conclude that the Individual’s use of opioids does not cast doubt on his reliability, trustworthiness,
or judgment in light of length of time for which he misused opioids and the deceptive and unlawful
behavior he exhibited as a result of his addiction. Therefore, I find mitigating condition (a) under
Guideline H inapplicable in this case. Id. at ¶ 26(a).
The Individual has partially satisfied the second mitigating condition under Guideline H by
acknowledging his misuse of prescription drugs, obtaining a substance abuse evaluation from the
Individual’s Counselor demonstrating several months of abstinence from opioid misuse, and
providing a signed statement of intent agreeing to revocation of his security clearance in the event
that he becomes involved with illegal drugs in the future. However, the Individual did not undergo
random drug testing as the DOE Psychiatrist recommended, and the short-term substance abuse
evaluation provided by the Individual’s Counselor is not as strong evidence of a pattern of
abstinence as the Individual might have proved through random testing or testing over a longer
period of time.
In addition to the limited drug testing supporting his abstinence from opioid misuse, the Individual
has not established a sufficient support network to aid him in his recovery and provided little
evidence that he has disassociated from environments that contributed to his drug use. The
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Childhood Friend cannot provide meaningful support in this regard in light of his limited contact
with the Individual and his testimony that he was unaware of the Individual’s opioid misuse until
the Individual contacted him in preparation for the hearing. The Individual’s Wife testified as to
her intention to support the Individual’s recovery, but also admitted to not recognizing the
Individual’s opioid misuse for years after he started using opioids on a heavy basis due to the
Individual’s deception and other demands on her attention. The Individual represented that he
could rely on other family members, particularly his mother, to support his recovery. Supra p.7.
However, the record contains concerning evidence that the members of the Individual’s family
may have misused opioids in the past. See Ex. 5 at 3–4 (indicating that a source revealed to OPM
that the Individual’s family members are “pain medication abusers” and that the Individual’s
brother-in-law supplied him with opioids). Absent testimony from any sources of support for the
Individual besides his wife, and in light of the potential drug misuse by members of the
Individual’s family upon whom he would rely for support, I am not convinced that the Individual
has established a sufficient support network to aid his recovery.
Even had the Individual presented more robust evidence as to his abstinence from opioid misuse
and disassociation from drug-using individuals, I would still harbor concerns about the
Individual’s ability to avoid returning to substance misuse. The DOE Psychiatrist expressed
concern that the Individual’s escalating alcohol consumption is indicative that he is reliant on
mood-altering substances and is substituting alcohol for opioids. Compounded with the limited
drug testing offered by the Individual to prove his abstinence from opioid misuse, the lack of
evidence of a support network, and the concerning record evidence that family members the
Individual is relying on to support his recovery may have misused opioids themselves, I find that
mitigating condition (b) under Guideline H is inapplicable. Adjudicative Guidelines at ¶ 26(b).
Mitigating condition (c) is inapplicable because the Individual has not provided evidence that he
was prescribed opioids for a severe or prolonged illness. There is no indication in the record as to
the severity of the knee injury for which the Individual was originally prescribed opioids or the
length of time for which he was prescribed opioids for the injury. Likewise, there is no record
evidence as to the severity of the Individual’s subsequent injuries. Thus, I find mitigating condition
(c) under Guideline H inapplicable. Id. at ¶ 26(c).
The final mitigating condition (mitigating condition (d)) is inapplicable because the Individual did
not pursue treatment for his opioid misuse. The Individual’s Counselor expressed doubt that the
Individual would qualify for a formal substance abuse program in light of the duration of his
claimed abstinence from opioid misuse. However, the Individual did not demonstrate any efforts
to pursue any form of treatment, such as attending Narcotics Anonymous as recommended by the
DOE Psychiatrist. Moreover, the DOE Psychiatrist’s equivocating testimony as to the Individual’s
reformation and qualification of the Individual’s prognosis in light of the limited drug testing
demonstrating the Individual’s abstinence is insufficient for me to find that the Individual has a
favorable prognosis. Accordingly, I find that the Individual has not established the applicability of
the fourth mitigating condition under Guideline H. Id. at ¶ 26(d).
The Individual has not sufficiently documented the duration of his claimed abstinence from opioid
misuse through drug testing, has not pursued treatment or sufficiently established the presence of
a support network upon which he can rely in his recovery, and has increased consumption of
alcohol which the DOE Psychiatrist opined might be a means of compensating for opioids. The
Individual has not established the applicability of any of the mitigating conditions under Guideline
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H and, under the circumstances, I am not sufficiently convinced of the durability of the Individual’s
recovery to find that he has resolved the security concerns under Guideline H.
C. Guideline J Considerations
The Individual’s admission to having used medication not prescribed to him from 2008 to 2017
and to having used unlawful methods to obtain pain medication raise security concerns under
Guideline J. Id. at ¶ 31(b). The Individual does not contest the derogatory information under
Guideline J listed in the SSC. Tr. at 123. The Adjudicative Guidelines provide that an individual
may mitigate security concerns under Guideline J if:
(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 committing the act and those pressures are
no longer present in the person’s life;
(c) 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(a)–(d).
Mitigating condition (a) is not applicable because the passage of approximately three and one half
years since the Individual’s last alleged criminal conduct does not outweigh the severity of his
lengthy misconduct and deception while in possession of a security clearance. The Individual
engaged in criminal conduct to satisfy his opioid addiction on many occasions over numerous
years and, as discussed above, I am not sufficiently convinced of the durability of the Individual’s
recovery for me to conclude that the Individual’s unlawful conduct is unlikely to recur. Thus, I
find the first mitigating condition inapplicable. Id. at ¶ 32(a).
Mitigating conditions (b) and (c) are inapplicable because the Individual does not contend that he
was pressured into the criminal conduct and it is uncontested that the Individual committed the
alleged conduct. Id. at ¶ 32(b)–(c). Mitigating condition (d) is inapplicable because the passage of
time without recurrence of criminal conduct is insufficient to mitigate the security concerns for the
reasons noted above and the Individual has not established sufficient other evidence of
rehabilitation for me to find the Individual’s criminal conduct mitigated. Id. at ¶ 32(d).
For years, the Individual engaged in criminal conduct to support his addiction while possessing a
security clearance, and I am not sufficiently convinced of the Individual’s recovery for me to
conclude that he will not engage in criminal conduct in the future. Thus, I find that the Individual
has not resolved the security concerns asserted by the LSO under Guideline J.
VII. CONCLUSION
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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, Guideline H, and Guideline J of the
Adjudicative 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 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’s access authorization should not be restored.
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