PSH-21-0077

*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: June 29, 2021 ) Case No.: PSH-21-0077
)
__________________________________________)
Issued: October 21, 2021
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Administrative Judge Decision
__________________________
Kristin L. Martin, Administrative Judge:
This Decision concerns the eligibility XXXX XXXXX (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
The Individual is employed by a DOE Contractor in a position which requires that she hold a
security clearance. During an investigation into the Individual’s background, derogatory
information was discovered regarding the Individual’s drug involvement and her candor regarding
that issue. 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. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e) and (g), the
Individual presented the testimony of one witness and testified on her own behalf. See Transcript
of Hearing, Case No. PSH-21-0077 (hereinafter cited as “Tr.”). The LSO submitted nine exhibits,
marked as Exhibits 1 through 9 (hereinafter cited as “Ex.”). The Individual submitted three exhibits,
marked as Exhibits A through C.
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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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 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). 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.
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; 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. Id. at ¶ 25.
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. Guideline E
may also be invoked when there is credible adverse information that is not explicitly covered under
any other guideline and may not be sufficient by itself for an adverse determination, but which,
when combined with all available information, supports a whole-person assessment of questionable
judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and
regulations, or other characteristics indicating that the individual may not properly safeguard
classified or sensitive 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 the following:
A. Guideline E
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1. The Individual stated on two responses to Letters of Interrogatory (LOI) that she had
not illegally used any controlled substances since 2011 and on her Questionnaire for
National Security Positions (QNSP), the Individual certified that, as of February 2019,
she had not used any controlled substance in the preceding seven years. However,
during a 2012 marijuana compliance check at her home, her fiancé reported that she
smoked half an ounce of marijuana per day.2
2. On her Questionnaire for National Security Positions (QNSP), the Individual certified
that, as of February 2019, she had not been involved in the illegal cultivation of any
drug or controlled substance. In her two LOI responses, the Individual certified that,
since 2011, she had no involvement in the illegal cultivation of any drug or controlled
substance. In an extended security interview in March 2019, she repeatedly denied
having ever engaged in any drug cultivation. However, in a June 2019 interview, the
Individual admitted that marijuana was cultivated at her residence from August 2013 to
June 2019; that from 2015 to 2019, about 45 marijuana plants were cultivated at her
residence; and that during a marijuana compliance check in 2012, officers counted 86
marijuana plants at her residence.
3. During the March and June 2019 interviews, the Individual initially denied having a
marijuana card, but, after repeated questioning, she admitted in the June 2019 interview
to having a marijuana recommendation card, which she obtained to ensure her fiancé
was able to cultivate marijuana at their residence.3
4. During the June 2019 Interview, the Individual admitted that her fiancé smoked
marijuana in her presence approximately twice per week.
B. Guideline H
1. During the June 2019 interview, the Individual admitted that marijuana was cultivated
at her residence from August 2013 to June 2019.
2. During a marijuana compliance check in 2012, the Individual’s fiancé reported that she
smoked half an ounce of marijuana per day and officers counted 86 marijuana plants at
her residence.
These allegations raise concerns which are squarely within the ambit of the Adjudicative
Guidelines. Accordingly, the LSO’s security concerns under Guidelines E and H 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
2 Limited cultivation of marijuana is legal under state law in the Individual’s state of residence.
3 In the Individual’s state of residence, physicians can recommend that a person use marijuana for medicinal purposes.
Such a recommendation is documented by issuing the individual a marijuana recommendation card.
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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).
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 testified that she began working for the DOE contractor in 2018 and that, prior to
that, she had never worked for the government. Tr. at 10. She testified that she was not using
marijuana in 2020, nor had she ever used marijuana. Id. at 13. She further testified that she does
not want marijuana in her life and intends to avoid having it around her and her family. Id. at 55.
The Individual testified that, around 2012, her fiancé cultivated marijuana at their home and used
it for pain management. Tr. at 16. She did not sell or use the marijuana, and the cultivation was
done by her fiancé in compliance with state laws. Id. At that time, the Individual did not realize
that marijuana cultivation was illegal under federal law. Id. at 17. She also testified that she never
had any part of the cultivation. Id. at 15, 19–21, 25. After 2012, her fiancé stopped cultivating
marijuana. Id. at 20.
The Individual testified that she had a card, referred to as a recommendation, permitting the use of
marijuana, in 2012 but did not use it. Id. at 23–24. She further testified that she got a marijuana
recommendation at her fiancé’s suggestion because she resided in a home where marijuana was
being cultivated. Id. at 23–24. She also testified that, in her 2019 interview, she did not deny having
ever had a marijuana recommendation, but had perhaps initially answered that she did not have one
at the time. Id. at 34. The Individual submitted Exhibit D after the hearing, in which she stated that
she had contacted the office that issued her marijuana recommendation and they told her that the
recommendation was issued in July 2018 and expired July 2019. Ex. D at 1. In that exhibit, the
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Individual stated that, at the time of the interview, she did not believe the recommendation was still
valid. Id.
The Individual testified that she must have been confused when she told the investigator that
marijuana was cultivated at her home in 2019. Tr. at 27. She stated that she had not lived in a
residence where marijuana was cultivated since 2012. Id. at 29. She testified that her fiancé did not
like cultivation and no longer wanted to do it, so he stopped. Id. at 20. The Individual testified that
she did not report the cultivation, even though it was within the previous seven years, because she
was not directly involved in it and was not sure of the start and end dates of the cultivation. Id. at
21. She reiterated that no marijuana was being cultivated at her residence after 2012 and that she
had been confused by the interviewer’s questions when she stated that cultivation was occurring in
2019. Id. at 28–29.
The Individual testified that she had never used half an ounce of marijuana daily and that her fiancé
had misunderstood the question when, in 2012, he told the compliance officer she used that amount.
Tr. at 29–30. She submitted Exhibit B, which contained a letter from her fiancé that stated that he
had incorrectly described the Individual’s marijuana use to the compliance officer in 2012. Ex. B.
In the letter, the fiancé stated that the officer asked if he and the Individual smoked half an ounce
of marijuana per day and he said yes because he did not know how much marijuana half an ounce
was. Id. The letter also stated that the fiancé had never seen the Individual smoke marijuana. Id.
The Individual’s fiancé testified that they had lived together for about 10 years. He further testified
that he cultivated marijuana about 10 years ago for a few months. Tr. at 42. On the advice of a
compliance officer, he destroyed all but two of his plants and once the growing cycle for those
plants was complete, he did not continue cultivating marijuana. Id. at 42–43. He testified that,
during the 2012 compliance check, a compliance officer asked him, “So how much do you and [the
Individual] smoke, about half an ounce a day?” Id. at 46. He further testified that, in response, he
said, “Yeah, okay. I guess,” because he did not know how much that quantity of marijuana was and
because he did not realize that his answer would be interpreted to indicate that the Individual
smoked any marijuana at all. Id. The fiancé testified that the Individual was not involved in his
cultivation in any way and that he had never seen her use marijuana or any other drug. Id. at 45–
46. The fiancé testified that he intends to abstain, permanently, from using or cultivating marijuana.
Id. at 50–51, 53–54.
V. ANALYSIS
A person who seeks access to classified information enters into a fiduciary relationship with the
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.
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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.”
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 mitigated such that granting the
Individual’s clearance is not an unacceptable risk to national security.
A. Guideline H
Guideline H security concerns may be mitigated when (1) 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; (2) 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; (3) the drug use was prescription drug abuse after a severe illness for which the drugs
were prescribed and the drug use has ended; and (4) 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).
Regarding the LSO’s Guideline H concern that the Individual used half an ounce of marijuana daily
in 2012, there is sufficient evidence to conclude that the statement upon which that concern is based
was made in error. The fiancé, who made the statement, testified that he did not realize he was
saying that the Individual was using marijuana and testified that he has never seen her use
marijuana. The LSO’s concern was based on that statement alone, and the new evidence presented
at the hearing has clarified the statement such that it should not be considered to refer to the
Individual. It is clear that if an Individual can show that the substance of an allegation is not
applicable, the allegation can no longer be considered a risk to the national security. Accordingly,
I find that the Individual has mitigated this Guideline H concern by providing evidence sufficient
to show that the LSO’s concern was based on a statement now known to be erroneous.
Regarding the LSO’s Guideline H concern that marijuana was cultivated at the Individual’s home,
mitigating criterion (1) applies in this case. The incident happened nearly ten years ago and the
Individual’s participation was limited to residing on the same property where the cultivation
occurred. She has repeatedly expressed a commitment to avoid similar situations in the future. The
2012 cultivation incident was so long ago and the Individual’s involvement so minor that it no
longer casts doubt on her current reliability, trustworthiness, or judgment. Accordingly, I find that
the Individual has mitigated this Guideline H concern.
B. Guideline E
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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).
In response to the LSO’s allegations that she intentionally withheld information regarding her
history with marijuana, the Individual repeatedly asserted that she was confused by the questions
and had not intentionally withheld anything. Her testimony was somewhat clarifying, and it is
possible that she truly misunderstood what was being asked of her. However, Guideline E is not
simply about an Individual’s trustworthiness in terms of willingness to comply with rules. It also
includes questions of an Individual’s reliability in terms of ability to comply with rules. The
Individual completed a QNSP, two LOIs, and two extended security interviews, but it was not until
the hearing that the government was able to obtain a complete, accurate picture of the Individual’s
history as it relates to marijuana use and cultivation. The government must be able to rely upon the
statements of those who hold security clearances. The Individual’s testimony did not show that she
can reliably ensure the accuracy of her statements. Unfortunately, for that reason I cannot find that
she has mitigated the LSO’s concerns under Guideline E at this time.
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 and H of
the Adjudicative Guidelines. I further find that the Individual has not succeeded in fully resolving
the Guideline E concerns. Therefore, I cannot 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 not 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.
Kristin L. Martin
Administrative Judge
Office of Hearings and Appeals