PSH-21-0117

*The original of this document contains information which is subject to withholding from disclosure
under 5 U.S. C. § 552. Such material has been deleted from this copy and replaced with XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: September 30, 2021 ) Case No.: PSH-21-0117
)
__________________________________________)
Issued: February 4, 2022
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXX XXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization under the Department of Energy’s (DOE) regulations
set forth at 10 C.F.R. Part 710, Subpart A, entitled “General Procedures for Determining Eligibility
for Access to Classified Matter of 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 be restored.
I. Background
A DOE Contractor employs the Individual in a position that requires her to hold access
authorization. The Individual signed and submitted a Questionnaire for National Security Positions
(QNSP) on July 24, 2020, in which she answered questions pertaining to her prior drug use. Ex. 6.
She indicated that she had consumed an ex-partner’s Xanax once or twice in July 2017, that she
had taken his Concerta in July 2016 to see if her inability to concentrate was “due to Attention
[H]yperactivity [D]isorder symptoms[,]” (ADHD) and that she used cocaine on two occasions in
2017. Ex. 6 at 78-80. On August 12, 2020, the Individual underwent an Enhanced Subject
Interview (ESI) with an Office of Personnel Management (OPM) investigator. Ex. 7. The Local
Security Office (LSO), having unresolved questions, asked the Individual to complete a Letter of
Interrogatory (LOI), which the Individual completed and submitted on March 15, 2021. Ex. 5.
After receiving the Individual’s responses to the LOI, the LSO suspended the Individual’s security
1 Access to authorization is defined as “an administrative determination that an individual is eligible for access to
classified mater or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). Such
authorization will be referred to variously in this Decision as access to authorization or security clearance
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clearance and 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 testified on her own behalf, presented the testimony of five other witnesses, and
submitted three exhibits marked Exhibits A through C (hereinafter cited as “Ex.”). See Transcript
of Hearing, Case No. PSH-21-0117 (hereinafter cited as “Tr.”). The DOE Counsel did not present
the testimony of any witnesses and submitted seven exhibits, marked as Exhibits one through
seven.
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 (Personal Conduct) and H (Drug Involvement
and Substance Misuse).
Under Guideline E, “[c]onduct involving questionable judgement, 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. With respect to Guideline E, the LSO alleged that while holding a security
clearance, the Individual used an illicit drug and unprescribed substances in 2017 and 2016,
specifically cocaine, Xanax, and Concerta. The Individual failed to report her use to the LSO as
required. Ex. 1 at 1.
The LSO cited Guideline H (Drug Involvement and Substance Misuse) of the Adjudicative
Guidelines as another basis for revoking the Individual’s security clearance. Ex. 1. Not only do
illegal substances cause mental or physical impairment, but they also raise “questions about a
person's ability or willingness to comply with laws, rules, and regulations.” Adjudicative
Guidelines ¶ 24. Under Guideline H, the LSO alleged that: (1) the Individual used cocaine twice
in 2017; (2) the Individual used Xanax, prescribed to her former spouse, once or twice in 2016;
and (3) the Individual used Concerta, prescribed to her former spouse, once or twice in 2016. Ex.
1 at 1.
III. Regulatory Standards
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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) (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 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
In her March 2021 LOI, the Individual confirmed that she has been in possession of a clearance
since August 2015, and explained that in approximately July 2016, her former partner offered her
a Xanax pill that had been prescribed to him, as the Individual had difficulty sleeping. Ex. 5 at 1.
Around the same time, the Individual used her former partner’s Concerta once or twice to be able
to concentrate. Ex. 5 at 1. Later, in approximately February 2017, the Individual used cocaine, and
stated that she failed to report the use of the aforementioned substances in a timely manner “due
to ignorance.” Ex. 5 at 1-3. The Individual acknowledged the fact that her drug use was
inappropriate and stated that she would “accept full responsibility for any repercussions that may
result[.]” Ex. 5 at 3.
During her OPM investigation, the Individual told the OPM investigator that her former partner
gave her Xanax, as he believed her racing heartbeat that caused her inability to sleep was a
symptom of anxiety. Ex. 7 at 98. The Individual further stated that although she was able to sleep
after taking the Xanax, she slept for far too long, and accordingly, did not use Xanax again. Ex. 7
at 98. In a similar fashion, the Individual’s former partner encouraged her to take Concerta, as he
believed her inability to concentrate was caused by ADHD. Ex. 7 at 99. Although she was able to
concentrate after taking the Concerta, she did not attribute her inability to concentrate to ADHD
and discontinued any further use of the drug. Ex. 7 at 99. The Individual also explained that she
used cocaine twice, and each time, her former partner obtained the drug. Ex. 7 at 99. Each time
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she used cocaine, it was at her former partner’s request, and although she did not want to use
cocaine, she knowingly used the drug. Ex. 7 at 99. Although she considered it “a lame excuse,”
she felt pressured by her former partner to use cocaine. Ex. 7 at 99.
After requesting a hearing, the Individual elected to undergo a psychological evaluation by an
expert of her own choosing (Individual’s Expert) on December 28, 2021. Ex. C. It was revealed in
the subsequent December 31, 2021, report produced by the Individual’s Expert that she married
her former partner in 2017 and stayed in that marital relationship for approximately four months,
at which point, they ceased communicating in 2017. Ex. C at 2. The marriage was annulled in
2018. Ex. C at 2. The Individual reported that her former partner “drank a lot of alcohol regularly
and used illicit drugs[,]” which included cocaine. Ex. C at 3. During the course of their relationship,
in addition to calling her names and making her “question[] her sanity and memory[,]” the
Individual’s partner would deprive her of sleep. Ex. C at 3. She was also subjected to physical
abuse by her former partner, which she believes resulted in chronic headaches and difficulty
concentrating. Ex. C at 4, 6. Although her former partner knew the Individual could not use drugs
while holding a clearance, he would press her on the matter until she relented; the report
specifically noted his insistence when it came to cocaine. Ex. C at 4, 6. The Individual
acknowledged that this behavior was out of character for her and evidenced a lapse in judgement.
Ex. C at 6. She asserted that the last time she consumed a controlled substance was in February
2017. Ex. C at 6.2
The Individual’s Expert opined that the Individual did not “possess the psychological
characteristics of those who routinely engage in deceptive practices and/or rule-violating
behaviors.” Ex. C at 9. He also did not find any evidence that the Individual suffered from a
substance use disorder and confirmed that the Individual was in an abusive relationship at the time
she used controlled substances, resulting in uncharacteristic behavior and poor decision making.
Ex. C at 9-10. However, “[h]er judgement now seems to be intact and sound.” Ex. C at 10. Finally,
the Individual’s Expert opined that the Individual “does not have any condition that could
negatively affect her judgment, reliability, or trustworthiness.” Ex. C at 11.
Hearing Testimony
The Individual’s Expert testified that he conducted several psychological assessments and
screened the Individual for drug abuse and alcohol use disorder. Tr. at 38-39.3 As a result, it was
determined that the Individual was “free of any particular mental health condition or substance use
condition.” Tr. at 41. Further, the Individual’s Expert found the Individual’s judgement was intact,
that she had good insight, and that she did not “have any condition that [could] negatively affect
her judgment, reliability and trustworthiness. Tr. at 41-42, 52.
2 The Individual voluntarily submitted to a seven-panel hair sample drug test on December 3, 2021. Ex. A. The
Individual was negative for all listed substances, including cocaine. Ex. A.
3 The Administrative Judge qualified the Individual’s Expert as an expert in the field of psychology, and although he
was not qualified as an expert in national security, his background in national security was noted. Tr. at 24-38.
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Importantly, the Individual’s Expert asserted that the abuse the Individual suffered at the hands of
her former partner in 2016 and 2017 caused her to behave in an uncharacteristic manner and stated
that the abuse consisted of “advanced torture techniques.” Tr. at 42-43, 69.4 The Individual’s
Expert stated that, as a result, it is possible that the Individual’s recall regarding this relationship
would be imperfect. Tr. at 44. Based on the statements the Individual made, the Individual’s Expert
believed that the Individual’s former partner, having deprived the Individual of sleep, made the
Individual believe she had a psychiatric disorder. Tr. at 45-46. It was under these circumstances
that the Individual elected to use medication that was not prescribed to her. Tr. at 71-72. Her former
partner’s coercive tactics resulted in the Individual’s cocaine use, which the Individual’s Expert
believed the Individual was not otherwise inclined to do. Tr. at 46. Although she did not leave the
abusive relationship unscathed, the Individual’s Expert believes the Individual has “returned to a
level of functioning similar to…what her baseline was before the [abusive] relationship[.]” Tr. at
47. Further, the Individual’s Expert opined that the Individual has learned from the experience,
and can, accordingly, guard against a similar experience in the future. Tr. at 47-48. The
Individual’s Expert strongly felt that shame and fear prevented the Individual from reporting the
drug use, but since the Individual has disclosed these events to enough people, she is no longer
susceptible to blackmail or undue influence. Tr. at 56-57. He also did not find any indicators of
past substance abuse or potential future substance abuse. Tr. at 62.
The Individual’s colleague, supervisor, longtime friend, and cousin all testified to the Individual’s
reputation as an honest, trustworthy, and reliable person who possesses good judgement and
integrity. Tr. at 78-80, 88-89, 101, 110-11. Although the Individual’s supervisor denied having
ever seen the Individual consume alcohol, her coworker had seen the Individual consume alcoholic
beverages on social occasions, but she did not see the Individual drink “very much[.]” Tr. at 80,
89. Her longtime friend and cousin confirmed that the Individual does not frequently consume
alcoholic beverages. Tr. at 101, 111. The Individual’s colleague and supervisor denied having any
knowledge pertaining to whether the Individual engaged in recreational drug use or the misuse of
prescription medication, and her longtime friend and cousin confirmed that he did not “know her
to be someone who uses drugs habitually or recreationally.” Tr. 80, 89-90, 102, 111. The
Individual’s colleague and supervisor confirmed that annual training is required for individuals
who hold a security clearance, and that the training covers self-reporting requirements as well. Tr.
at 82-83, 92-93.
The Individual testified that her former partner informed her that he suffered from a number of
mental illnesses, and she knew of at least one confirmed diagnosis. Tr. at 121. As a result, he had
a number of prescriptions he would take regularly. Tr. at 122. Although her former partner was
initially doting and caring, he began “punishing” her to teach her lessons. Tr. at 123-24. His
methods of punishment included physical assault. Tr. at 130; Ex. C at 4. He was also verbally
abusive and would intentionally humiliate her in front of others, and his behavior was such that
the Individual would question her own memory. Tr. at 124-26. The Individual confirmed that her
former partner would intentionally deprive her of sleep, and was physically abusive toward her,
4 Although the Individual’s Expert acknowledged that the Individual was aware that she was precluded from using
illicit substances or taking medication that was not prescribed to her while holding a security clearance, he stated that
the abuse she suffered clouded her judgement at that time. Tr. at 52-55.
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having kicked the back of her head on one particularly egregious occasion. Tr. at 126-28. She
testified that her former partner would pressure her and coerce her into doing things, like using
cocaine, for the purpose of placing her in compromising positions. Tr. at 132-34. However, she
denied being susceptible to any blackmail, as she has disclosed all pertinent facts to investigators.
Tr. at 135-37. Further, if future attempts at blackmail are made, the Individual stated that she will
report such attempts to her local security office. Tr. at 138.
The Individual disclosed drug use in the QNSP during her reinvestigation, however, she stated that
she was unaware of the fact that she had to self-report within five days. Tr. at 143. She was made
aware of the self-reporting requirement during her interview with the OPM investigator. Tr. 156.
The Individual also testified that she intends to refrain from any future drug use. Tr. at 140-41. In
addition to cutting off all contact with her former partner, the Individual has “rebuilt” her life and
has also discontinued relationships with other individuals who have used illicit substances in her
presence. Tr. at 143-145.
V. Analysis
Guideline E
In relevant part, the Adjudicative Guidelines provide that an Individual may mitigate Guideline E
concerns if:
a) The individual made prompt, good-faith efforts to correct the omission, concealment, or
falsification before being confronted with the facts . . . .
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 taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress . . . .
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.
Adjudicative Guidelines at ¶ 17(a)-(g).5
The Individual’s counsel argued that the Individual made prompt, good faith efforts to disclose her
drug use, stating that the Individual disclosed information at the earliest possible moment that “she
understood she was required to” make such disclosures. Tr. at 161. Based on the evidence before
me, I cannot agree. As a clearance holder, the Individual was subject to annual training pertaining
5 I need not address the other Guideline E mitigating factors as they are not applicable in the present case.
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to her clearance, which covered the self-reporting requirement. Accordingly, she was bound by
those reporting requirements despite her claim that she was unaware of them. Reporting her drug
use at the time she completed her QNSP was, therefore, untimely. Further, the Individual’s counsel
argued that the behavior was infrequent and occurred under unique circumstances. The failure to
report did not take place under unusual or unique circumstances, as clearance holders are under a
continuing obligation to report all derogatory information. Because the Individual was under a
continuing obligation to report her use of controlled substances and did not do so until she
completed her QNSP, her concealment of past drug use lasted approximately four years,
continuing into the recent past. Therefore, I cannot find that the Individual mitigated Guideline E
concerns pursuant to ¶ 17 (a) and (c).
However, there is credible evidence in the record indicating that the Individual was the victim of
domestic violence. As the December 31 report and the testimony presented by the Individual’s
Expert indicate, the Individual engaged in uncharacteristic behavior as a result of the physical and
mental abuse she endured. During that time, she was subject to such circumstances as sleep
deprivation, physical violence, and duress at the hands of her former partner, altering her judgment.
In separating from her former partner and discontinuing all contact with him in 2017, the Individual
has sought to rebuild her life. As indicated in the December 31 report, the Individual’s “judgement
now seems to be intact and sound.” Ex. C at 10. Further, as the Individual’s Expert testified, the
Individual learned from the experience and can guard against enduring similar experiences in the
future. In separating from her former partner, she removed herself from the circumstances that
negatively affected her judgement, and thus, eliminated her vulnerability to exploitation, duress,
or manipulation. Further, her association with her former partner, a person who routinely used
controlled substances, has ceased. Accordingly, I find that the Individual has mitigated the
Guideline E concerns pursuant to mitigating factors 17(e) and (g).
Guideline H
The Adjudicative Guidelines provide, in pertinent part, that an Individual may mitigate Guideline
H concerns if “[t]he 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.” Adjudicative Guidelines at ¶ 26(a).6 I find that this
mitigating factor is present in the instant case. As the record indicates, the Individual consistently
and credibly stated that she last ingested any controlled substances in 2017. Her consistent
assertion was supported by the negative hair follicle drug test that was conducted in December
2021. Further, her consumption of such substances occurred in the context of an abusive
relationship that was extreme enough to alter the Individual’s judgement, causing her to engage in
behavior that the Individual’s Expert deemed uncharacteristic of the Individual. That relationship
was discontinued in 2017 and ultimately annulled in 2018. Accordingly, I find that the Individual’s
6 The remainder of the mitigating factors under Guideline H are not applicable to this matter. See Guideline H at ¶
(b)-(d).
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use of substances happened so long ago and under such circumstances that it is unlikely to recur
and does not cast doubt on her current reliability, trustworthiness, or good judgement.
VI. Conclusion
For the reasons set forth above, I conclude that the LSO properly invoked Guidelines E and H of
the Adjudicative Guidelines. After considering all the evidence, both 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 brought forth sufficient evidence
to resolve the security concerns set forth in the Summary of Security Concerns. Accordingly, the
Individual has demonstrated that restoring her 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 restored. Either party may seek review of this Decision by an Appeal
Panel under the procedures set forth at 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Administrative Judge
Office of Hearings and Appeals