PSH-22-0008

*The original of this document contains information which is subject to withholding from disclosure
under 5 U.S. C. § 552. Such material has been deleted from this copy and replaced with XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: November 18, 2021 ) Case No.: PSH-22-0008
)
__________________________________________)
Issued: February 14, 2022
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Administrative Judge Decision
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Phillip Harmonick, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (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 should not be
granted access authorization.
I. BACKGROUND
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. The Individual completed a Questionnaire for National Security Positions (QNSP) on
May 30, 2019, in connection with seeking access authorization. Ex. 7 at 43. He disclosed that he
used cocaine “intermittently” and stimulants on a weekly basis from 2016 to 2017. Id. at 34–37.
He reported that he pursued treatment in 2017 and had not used illegal drugs “for over a year and
a half.” Id. at 37. However, he admitted that he had been arrested for possession of a controlled
substance and drug paraphernalia within the past month. Id. at 32. He denied that alcohol had
negatively impacted him personally or professionally in the prior seven years or that law
enforcement had ever intervened because of his alcohol consumption. Id. at 37. He also denied
experiencing any financial delinquencies in the prior seven years. Id. at 39–40.
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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An Office of Personnel Management (OPM) investigator interviewed the Individual on August 27,
2019, as part of OPM’s background investigation of the Individual. Ex. 8 at 1.2 During the
interview, the Individual indicated that his 2019 arrest for possession of a controlled substance
occurred after a law enforcement officer observed a crack pipe in the center console of the
Individual’s parked vehicle and found traces of crack cocaine upon searching the vehicle. Id. at 3.3
The Individual denied that he had used illegal drugs since November 2017. Id. at 3–4.
The OPM investigator confronted the Individual with evidence that he failed to disclose an arrest
for Driving Under the Influence of Alcohol (DUI) in 2000 on the QNSP. Id. at 4–5. The Individual
represented that the omission was unintentional. Id. at 5. He admitted to having been a “heavy
drinker” in the past, but represented that he had changed his lifestyle after attending treatment for
his drug use in 2017 and no longer consumed alcohol. Id. at 4–5. The OPM investigator also
confronted the Individual with a credit report which showed numerous delinquent financial
accounts the Individual failed to disclose on the QNSP. Id. at 5–6; see also Ex. 9 at 90–94
(reflecting the delinquent financial accounts reported on the Individual’s credit report).
On June 18, 2020, the Local Security Office (LSO) issued the Individual a letter of interrogatory
(LOI). Ex. 5. In his response, the Individual admitted to having: consumed alcohol heavily until
June 2017; experimented with marijuana, cocaine, methamphetamine, ecstasy, and hallucinogenic
mushrooms; misused prescription pain medication; and, used cocaine multiple times per week
from 2016 to 2017. Ex. 6 at 1, 3–4. The Individual reported that he completed court-ordered
counseling following his 2019 arrest and denied that he had used illegal drugs since November
2017. Id. at 3–4. The Individual also represented that he no longer consumed alcohol. Id. at 2.
On May 19, 2021, the Individual met with a DOE-contracted psychiatrist (DOE Psychiatrist) for
a clinical interview. Ex. 4 at 2. The Individual admitted that he relapsed into problematic alcohol
consumption while travelling for work in June 2019 and became intoxicated or “blacked out”
multiple times weekly until November 2019. Id. at 6. In November 2019, while participating in
court-ordered counseling related to his arrest for possession of drug paraphernalia, the Individual
relapsed and used cocaine. Id. The Individual’s wife detected his relapse, and required him to make
significant lifestyle changes. Id. at 7. The DOE Psychiatrist obtained records from the Individual’s
court-ordered counseling which revealed that the Individual had used cocaine, crack cocaine, and
crystal methamphetamine in May 2019 and tested positive for cocaine use in November 2019. Id.
At the request of the DOE Psychiatrist, the Individual provided samples for laboratory testing. Id.
at 8. The test results were negative for traces of drugs and alcohol, which the DOE Psychiatrist
interpreted as strong evidence that the Individual had not used illegal drugs for three to seven days
prior to the clinical interview and had not consumed alcohol on a regular, heavy basis within
2 The internal pagination of numerous exhibits offered by the LSO does not correspond to the number of pages
included in the exhibit. For example, the first page of Exhibit 8 is marked as page 3 in one location and page 57 in
another. This Decision cites to pages in the order in which they appear in exhibits without regard for their internal
pagination.
3 The Individual represented to the OPM investigator that he was arrested on the first occasion that he had operated
the vehicle since completing treatment and that he had not cleaned the crack pipe out of the vehicle during a lengthy
period in which the vehicle was inoperable due to mechanical issues. Ex. 8 at 3.
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several weeks prior to the clinical interview or binge consumed alcohol within approximately one
week prior to the clinical interview. Id.
Following the clinical interview, the DOE Psychiatrist issued a Psychiatric Assessment (Report)
in which he concluded that the Individual met the diagnostic criteria for Alcohol Use Disorder
(AUD), Severe, in remission under the Diagnostic and Statistical Manual of Mental Disorders-
Fifth Edition (DSM-5). Id. at 9–10. The DOE Psychiatrist also found that the Individual met the
diagnostic criteria for Cocaine Use Disorder (CUD), Severe, in remission under the DSM-5. Id. at
10. Additionally, in response to a question concerning whether the Individual had an emotional,
mental, or personality condition that could impair his judgment, reliability, stability, or
trustworthiness, the DOE Psychiatrist noted the Individual’s repeated dishonesty during the
adjudication of his eligibility for a security clearance. Id. The DOE Psychiatrist recommended that
the Individual demonstrate rehabilitation or reformation by abstaining from alcohol until at least
November 2021, permanently abstaining from cocaine, attending Alcoholics Anonymous (AA)
and working its twelve-step program, joining Narcotics Anonymous (NA), and undergoing
periodic drug and alcohol testing to demonstrate his sobriety. Id.
The LSO issued the Individual a letter in which it notified him that it possessed reliable information
that created substantial doubt regarding his eligibility to hold a security clearance. In a Summary
of Security Concerns (SSC) attached to the letter, the LSO explained that the derogatory
information raised security concerns under Guideline E (Personal Conduct), Guideline G (Alcohol
Consumption), Guideline H (Drug Involvement and Substance Misuse), and Guideline I
(Psychological Conditions) of the Adjudicative Guidelines. Ex. 2.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 3. The Director of the Office of Hearings and Appeals (OHA) appointed
me as the Administrative Judge in this matter, and I conducted an administrative hearing. The LSO
submitted nine exhibits (Ex. 1–9) and the Individual submitted four exhibits (Ex. A–D). The
Individual testified on his own behalf, and offered the testimony of his AA sponsor and his wife.
Hearing Transcript (Tr.) at 3. DOE offered the testimony of the DOE Psychiatrist. Id.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline E (Personal Conduct) of the Adjudicative Guidelines as a basis for its
determination that the Individual was ineligible for access authorization. Ex. 2 at 4. “Conduct
involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with
rules and regulations can raise questions about an individual’s reliability, trustworthiness, and
ability to protect classified or sensitive information. 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 representations on
the QNSP, to the OPM investigator, and in response to the LOI that he had not used illegal drugs
since 2017 and concealment of his use of cocaine and crystal methamphetamine; the Individual’s
failure to disclose ten delinquent financial accounts on the QNSP; the Individual’s failure to
disclose his arrest for DUI on the QNSP; and, the Individual’s longstanding misuse of alcohol and
illegal drugs, reflecting an unwillingness to comply with rules and regulations. Ex. 2 at 4–6. The
LSO’s allegations that the Individual deliberately omitted derogatory information that he was
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required to disclose on the QNSP, concealed derogatory information that he was required to
disclose from the OPM investigator and security officials, and engaged in conduct supporting a
whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of
candor, or unwillingness to comply with rules and regulations, justify the LSO’s invocation of
Guideline E. Adjudicative Guidelines at ¶ 16(a)–(c).
The LSO cited Guideline G (Alcohol Consumption) as another basis for its determination that the
Individual was ineligible for access authorization. Ex. 2 at 1–2. “Excessive alcohol consumption
often leads to the exercise of questionable judgment or the failure to control impulses, and can
raise questions about an individual’s reliability and trustworthiness.” Adjudicative Guidelines at
¶ 21. The SSC cited: the DOE Psychiatrist’s diagnosis of the Individual with AUD, Severe, under
the DSM-5; the Individual’s relapses after attempting to abstain from alcohol; the Individual’s
admission to consuming alcohol to intoxication multiple times weekly as recently as November
2019; and the Individual’s arrest for DUI. Ex. 2 at 1–2. The Individual’s alcohol-related incidents
away from work, binge consumption of alcohol, and diagnosis with AUD by the DOE Psychiatrist
justify the LSO’s invocation of Guideline G. Adjudicative Guidelines at ¶ 22(a), (c)–(d).
The LSO cited Guideline H (Drug Involvement and Substance Misuse) as a third basis for its
determination that the Individual was ineligible for access authorization. Ex. 2 at 2–4. “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 diagnosis of
the Individual with CUD, Severe under the DSM-5; the Individual’s arrest for possession of a
controlled substance; the Individual’s use of cocaine while in court-ordered counseling for drug
misuse in 2019; and the Individual’s admission to using a variety of illegal drugs and misuse of
prescription pain medication. Ex. 2 at 2–4. The LSO’s allegations that the Individual engaged in
substance misuse, illegally possessed controlled substances and drug paraphernalia, and was
diagnosed with a substance use disorder by a mental health professional justify the LSO’s
invocation of Guideline H. Adjudicative Guidelines at ¶ 25(a), (c)–(d).
The LSO cited Guideline I (Psychological Conditions) as the final basis for its determination that
the Individual was ineligible for access authorization. Ex. 2 at 6–7. “Certain emotional, mental,
and personality conditions can impair judgment, reliability, or trustworthiness. A formal diagnosis
of a disorder is not required for there to be a concern under this guideline.” Adjudicative Guidelines
at ¶ 27. The SSC cited the DOE Psychiatrist’s opinion that the Individual repeatedly failed to
accurately report his drug use. Ex. 2 at 6–7. As described below, these allegations do not raise a
security concern under Guideline I of the Adjudicative Guidelines. Infra p. 14.
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
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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
Dep’t 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. HEARING TESTIMONY
The Individual’s AA sponsor, who has known the Individual for three or four years through the
AA program, testified that he volunteered to sponsor the Individual approximately two years ago
after the Individual revealed in an AA meeting that he had “slipped” and requested that someone
volunteer to sponsor him. Tr. at 22–24. The AA sponsor testified that the Individual attends AA
meetings frequently, but less than weekly. Id. at 25. The AA sponsor text messages the Individual
on a daily basis as part of his role as the Individual’s sponsor. Id. The AA sponsor indicated that
the Individual completed the entire twelve-step program by the summer of 2020. Id. at 35–36. He
testified that he believed that the Individual was devoted to the AA program, and cited as an
example of this devotion that the Individual met him in cold weather in an unheated space under
socially-distanced conditions during the early stages of the COVID-19 pandemic to continue his
work on the twelve-step program without interruption. Id.
The Individual’s wife, who has been married to him for twelve years, testified that he consumed
alcohol moderately and did not use illegal drugs when they married. Id. at 52. She first learned of
the Individual’s illegal drug use in 2017 after she discovered a form that the Individual used to
order drugs and questioned him about it. Id. at 74–75. She reported having been “shocked” to
discover the Individual’s illegal drug use. Id. at 72. She and the Individual’s mother encouraged
him to attend in-patient substance abuse treatment in 2017, which he did for several weeks
followed by out-patient aftercare. Id. at 57. The Individual’s wife testified that she learned that he
had relapsed in 2019 while traveling for work. Id. at 59–61. She told him that she would not stay
with him if he did not cease using illegal drugs because she would not tolerate drug use around
their child, and required him to quit his job and find work closer to home so that she could monitor
his behavior. Id.
The Individual’s wife recognized that the Individual was engaged in problematic alcohol
consumption when she perceived that he could not stop drinking once he started. Id. at 54. She
testified that she last observed the Individual consume alcohol in 2017. Id. at 63. She believes that
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the Individual has abstained from alcohol and illegal drugs for more than two years and indicated
that he last disclosed using illegal drugs and alcohol to her in 2019 before taking the job with the
DOE contractor. Id. at 53–54, 70. Since the Individual’s relapse, she has observed him decline
alcohol in settings in which alcohol was served and his consistent behavior caused her to feel
confident in his recovery. Id. at 63–64.
The Individual testified that he began engaging in problematic drinking in 2012 when he started
consuming alcohol daily. Id. at 79. He “would just finish off whatever was available,” until he
received treatment in 2017. Id. at 80. The Individual testified that he began seeking Adderall in
2016 while enrolled in college and discovered that he could purchase powder cocaine from drug
dealers from whom he obtained the Adderall. Id. at 81–82. Within several months of beginning to
use cocaine, the Individual was using it on a daily basis. Id. at 82–83.
The Individual initially sought out-patient treatment at his wife’s insistence in September 2017,
but after repeatedly testing positive for illegal drugs he was referred to in-patient treatment. Id. at
83–84. The Individual recalled that he agreed to in-patient treatment after his wife told him that he
could not remain with the family if he did not do so. Id. at 84. The Individual reported that he
began attending AA meetings while in out-patient treatment for substance abuse in 2017, and that
he attended meetings multiple times weekly beginning in December 2017 after his release from
in-patient treatment. Id. at 87, 113. The Individual testified that he had intended to completely
abstain from alcohol and illegal drugs after his release from in-patient treatment. Id. at 113–14.
The Individual initially testified that, in 2018, at which time he was regularly attending AA
meetings, he relapsed and resumed using alcohol and illegal drugs. Id. at 87–88. He further testified
that his cocaine addiction led him to begin purchasing crack cocaine in 2018 and, when he was
unable to obtain cocaine, crystal methamphetamine. Id. at 85. However, he subsequently revised
his testimony and claimed that he first relapsed following in-patient treatment in 2019. Id. at 116.
The Individual hid his relapse from his wife because he feared that she would divorce him. Id. at
118–19. He indicated that he was not sure how his wife discovered his relapse. Id. at 119; but see
Ex. 4 at 6–7 (reflecting the Individual’s statements to the DOE Psychiatrist that his wife learned
of his relapse in November 2019 after observing physical symptoms of his cocaine use at home).
According to the Individual, on May 5, 2019, while returning home from a work trip, he ran out
of gasoline on the highway. Tr. at 90. The Individual called his wife, who picked him up and drove
him to obtain gasoline. Id. When they returned, the Individual observed law enforcement officers
around the vehicle but “didn’t even know they found anything in there until they started
handcuffing [him].” Id. at 90. The Individual admitted that law enforcement officers recovered a
plastic bag containing cocaine residue from his breast pocket. Id. at 93. Regarding the
circumstances under which the plastic bag was recovered, the Individual testified as follows:
I actually was surprised that I had that in my pocket, but I’m pretty sure I had
intended [] to throw it away after leaving my vehicle, because I didn’t want to leave
it in there. As far as when I last used, it would have been at some point prior to that.
But it actually [] caught me off-guard just that I even had it in my pocket. And I
think I -- as best I can recall, you know, under oath, I probably saw it there and said,
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you know what, I better not have that in there, I’m going to put in my pocket and
throw it away, and I forgot to throw it away.
Id. at 94–95; see also Ex. 4 at 7 (summarizing notes from the Individual’s court-ordered drug
treatment indicated that he admitted to having used crystal methamphetamine the day of his arrest).
The Individual entered into a plea agreement pursuant to which he paid a fine and attended court-
ordered drug treatment. Tr. at 89; see also Ex. B at 1–3 (reflecting the plea agreement and
disposition of the charges against the Individual). The Individual testified that he participated in
weekly one-on-one and group sessions and periodic drug testing. Tr. at 101; see also Ex. A
(reflecting that the Individual began receiving court-ordered treatment in June 2019 and was
discharged after completing the program in April 2020).
The Individual represented that his response to the LOI in which he indicated that he had last used
illegal drugs in November 2017 was an error and not an intentional misrepresentation. Tr. at 96.
The Individual admitted that he had used crystal methamphetamine and crack cocaine several
weeks prior to completing the QNSP in May 2019, and that he had inaccurately represented that
he last used illegal drugs in 2017. Id. at 97–98. The Individual likewise admitted to having
provided incorrect information during the interview with the OPM investigator concerning the last
date on which he used illegal drugs. Id. at 100–01.
The Individual testified that he has refrained from alcohol and illegal drug use since November
22, 2019, and intends to abstain from alcohol and illegal drug use for the rest of his life. Id. at 109–
10. To support his recovery, he regularly attends AA meetings, has participated in NA meetings,
and does not carry a credit card or significant amounts of cash to avoid experiencing temptation to
relapse. Id. at 102–03. The Individual acknowledged that he and his wife participate in parties and
social events where alcohol is served, but denied experiencing cravings to consume alcohol. Id. at
119–20. He indicated that he refused alcohol at these social occasions even when he was actively
consuming alcohol because he was trying to hide his drinking from his wife, and that he has not
disclosed to any of the people he sees at these parties that he is abstaining from alcohol. Id. at 120.
The Individual also represented that he would agree to take monthly or more frequent drug tests
in the future if doing so would address the security concerns. Id. at 105, 111; see also Ex. D
(reflecting that the Individual tested negative for illegal drugs in January 2022).
The DOE Psychiatrist opined that the information provided by the Individual during the hearing
demonstrated rehabilitation from his AUD and CUD. Id. at 141. He testified that he had
recommended two years of abstinence from alcohol for the Individual because of the Individual’s
significant risk of relapse as indicated by his prior difficulties in abstaining from illegal drugs and
alcohol. Id. at 135. Although he recommended that the Individual attend NA, the DOE Psychiatrist
opined that NA meetings were not as critical to his recovery as participating in AA and noted that
the two programs share many similarities in their approach to supporting recovery. Id. at 137. The
DOE Psychiatrist indicated that, provided that the Individual’s self-reporting was accurate, he
would not recommend that the Individual undergo additional alcohol or drug testing going
forward. Id. at 138–39. The DOE Psychiatrist indicated that he perceived the Individual to be at a
higher risk of relapse than the average person, but that his risk of relapse would be lower if “he
continues in the vein of rehabilitation that he has been.” Id. at 147.
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Regarding whether the Individual had a psychological condition that could impair his judgment,
reliability, stability, or trustworthiness, the DOE Psychiatrist testified that he believed that
highlighting the Individual’s untruthfulness was useful for the LSO’s security staff to consider in
adjudicating the Individual’s case. Id. at 141–42. He indicated that he had not diagnosed the
Individual with a condition under the DSM-5 as a result of his dishonesty. Id. at 143.
V. FINDINGS OF FACT
The Individual consumed large quantities of alcohol on an approximately daily basis from 2012 to
2017. Tr. at 79–80; Ex. 4 at 5. He continued to consume alcohol while receiving outpatient
substance abuse treatment beginning in June 2017. Ex. 4 at 5. He received in-patient alcohol
treatment from November 29, 2017, to December 15, 2017, and was diagnosed with AUD, Severe,
under the DSM-5. Id. The Individual began attending AA meetings in December 2017 and
continued to do so regularly as of the date of the hearing. Tr. at 22–23, 25, 87, 113.
The Individual relapsed following treatment and resumed consuming alcohol between February
and June 2019. Ex. 4 at 6; Tr. at 87–88, 116. He binge consumed alcohol multiple times weekly
until at least November 2019. Ex. 4 at 6. The Individual obtained an AA sponsor in November
2019 and worked the twelve-step AA program, completing the twelve steps in the summer of 2020.
Tr. at 35–36. The Individual is in daily contact with his AA sponsor via text messaging. Id. at 25.
The DOE Psychiatrist diagnosed the Individual with AUD, Severe, and recommended that the
Individual continue participating in the AA program and undergo random alcohol testing. Ex. 4 at
9–10. The Individual did not comply with the DOE Psychiatrist’s recommendations for alcohol
testing.
The Individual experimented with various illegal drugs in his youth from 1996-2000. Ex. 6 at 3.
He enrolled in college in 2013 and began purchasing Adderall without a prescription. Ex. 4 at 5;
Tr. at 81. Beginning no later than the summer of 2016, the Individual started purchasing powder
cocaine. Tr. at 81. After several months, the Individual used cocaine on a daily basis. Id. at 82–83.
He continued to use cocaine while receiving outpatient substance abuse treatment beginning in
June 2017. Ex. 4 at 5. He received in-patient substance abuse treatment from November 29, 2017,
to December 15, 2017, and was diagnosed with CUD, Severe, under the DSM-5. Id.
The Individual relapsed following treatment and resumed using cocaine between February and
May 2019. Ex. 4 at 6; Tr. at 87–88, 116. The Individual began purchasing crack cocaine and crystal
methamphetamine during this period. Id. at 85–88. On May 5, 2019, the Individual was arrested,
and law enforcement officers recovered a crack pipe from his vehicle and a plastic bag containing
cocaine residue from his breast pocket. Ex. B at 8. The Individual entered into a plea agreement
pursuant to which he was ordered to pay a fine and attend a drug treatment program. Id. at 1–3.
The Individual began the court-ordered treatment on June 21, 2019. Ex. A. The Individual tested
positive for cocaine use during his participation in the court-ordered treatment program. Ex. 4 at
6. In November 2019, the Individual’s wife detected physical signs of the Individual’s cocaine use
and threatened to divorce him if he did not stop using illegal drugs. Id. at 6–7.
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The DOE Psychiatrist diagnosed the Individual with CUD, Severe, under the DSM-5. Id. at 10.
The DOE Psychiatrist recommended that the Individual join NA and undergo monthly drug
testing. Id. The Individual obtained one drug test, which was negative for traces of controlled
substances, on January 10, 2022. Ex. D.
On May 30, 2019, the Individual completed the QNSP and certified that its contents were true,
complete, and correct to the best of his knowledge and belief. Ex. 7 at 43. The Individual falsely
claimed on the QNSP that he had not used illegal drugs since 2017. Id. at 36–37. The Individual
lied when he told the OPM investigator on August 27, 2019, that he had not consumed alcohol or
used illegal drugs since November 2017. Ex. 8 at 5. In his June 19, 2020, response to the LOI, the
Individual falsely claimed that he had not used any illegal drugs since November 2017. Ex. 6 at
3–4. The Individual falsely told the DOE Psychiatrist that he was not using illegal drugs at the
time of his arrest for possession of drug paraphernalia. Ex. 4 at 6–7, 9. The Individual falsely
claimed during the hearing that his response to the LOI concerning his illegal drug use was an
unintentional error. Tr. at 96.4
VI. ANALYSIS
A. Guideline E
The LSO’s allegations that the Individual withheld derogatory information from the QNSP, was
untruthful regarding his use of illegal drugs, and demonstrated an unwillingness to comply with
rules and regulations through his misuse of alcohol and use of illegal drugs justify the LSO’s
invocation of Guideline E. Adjudicative Guidelines at ¶ 16(a)–(c). The Individual asserted that
some of his omissions were unintentional, that he had demonstrated transparency with respect to
his drug use despite prior untruthfulness, and that he was committed to complying with rules and
regulations in the future. The Adjudicative Guidelines provide 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
4 The Individual indicated that he last used cocaine in 2017 in response to three separate questions on the LOI,
including claiming that his “conscious decision since recovery in 2017 has been and will continue to be, to live
completely drug and alcohol free.” Ex. 6 at 4. It is inconceivable that the Individual’s responses were typographical
errors in light of the consistency and vehemence of his responses, particularly considering his other documented
falsehoods concerning his use of illegal drugs.
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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.
Adjudicative Guidelines at ¶ 17(a)–(g).
The Individual did not make prompt, good-faith efforts to disclose his untruthfulness regarding his
drug and alcohol use. Almost two years elapsed between the Individual’s untruthfulness on the
QNSP regarding his drug and alcohol use and his admission to that effect to the DOE Psychiatrist,
during which time the Individual persisted in falsely denying drug and alcohol use since 2017 to
the OPM investigator and in response to the LOI. The Individual’s testimony that he was not
intentionally untruthful in his response to the LOI, and that he was surprised to have a plastic bag
containing drug residue in his pocket during his May 5, 2019, arrest despite using crystal
methamphetamine earlier that day, shows that he is still not prepared to fully acknowledge the
extent of his untruthfulness and derogatory conduct. Therefore, I find the first mitigating condition
under Guideline E inapplicable. Id. at ¶ 17(a).
The second mitigating condition is not present because the Individual did not claim to have acted
on the advice of counsel or another representative in making his untruthful statements. Id. at
¶ 17(b). The third mitigating condition is inapplicable because the Individual’s untruthfulness
concerned topics of critical importance to his suitability to hold access authorization, occurred
throughout the investigative process, and was not the product of unique circumstances. Id. at
¶ 17(c).
Although the Individual has taken positive steps to resolve the drug and alcohol abuse that formed
the basis for most of his untruthfulness, I am not convinced that he is likely to prioritize truthfulness
over his own self-interest if he perceives the two to be at odds in the future. The Individual cited
the support of his AA sponsor, progress working the twelve steps of the AA program, and controls
put in place by his wife following his November 2019 relapse as critical to his recovery. All these
positive influences were in place when the Individual provided false information in his response
to the LOI in June 2020. Moreover, as noted above, the Individual denied that he intended to
deceive the LSO with his response to the LOI during his hearing testimony and sought to minimize
his conduct in connection with his May 2019 arrest. As the Individual’s untruthfulness persisted
even after making positive life changes, and the Individual did not fully acknowledge that
untruthfulness at the hearing, I am not convinced that the positive changes cited by the Individual
are sufficient to resolve the concerns regarding his untruthfulness. Id. at ¶ 17(d).
The fifth mitigating condition is not applicable because the Individual has not established that he
is at reduced risk of manipulation or duress. He did not offer evidence that his family, friends, or
colleagues were aware of his substance abuse problems or that he could not be manipulated by the
threat of disclosing this information. Moreover, he repeatedly hid his alcohol consumption and
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illegal drug use from his wife because he feared that she would divorce him. I am concerned that
he would place himself at risk of manipulation by attempting to hide a relapse in the future, rather
than seek the necessary help, out of fear of losing his wife. Thus, the fifth mitigating condition
under Guideline E is inapplicable. Id. at ¶ 17(e).
The sixth mitigating condition is inapplicable because the LSO did not receive derogatory
information concerning the Individual from an unreliable source. Id. at ¶ 17(f). The final mitigating
condition does not apply because the LSO did not identify association with persons engaged in
criminal conduct as a basis for its determination that the Individual is ineligible for a security
clearance. Id. at ¶ 17(g).
The Individual has demonstrated an extensive pattern of untruthfulness and minimization of his
conduct that persisted even after the Individual made positive changes to address his substance
abuse. The Individual’s dishonesty and lack of candor when he perceives himself to be at risk is
inconsistent with the obligations of a security clearance holder. Accordingly, I find that the
Individual has not resolved the security concerns asserted by the LSO under Guideline E.
B. Guideline G
The DOE Psychiatrist’s diagnosis of the Individual with AUD, the Individual’s binge consumption
of alcohol, and the Individual’s arrest for DUI justify the LSO’s invocation of Guideline G.
Adjudicative Guidelines at ¶ 22(a), (c)–(d). The Individual represented that he had abstained from
alcohol since November 2019 and was effectively managing his AUD with support from his AA
sponsor and wife. An individual can mitigate security concerns under Guideline G if:
(a) so much time has passed, or the behavior was so infrequent, or it happened under such
unusual circumstances that it is unlikely to recur or does not cast doubt on the
individual’s current reliability, trustworthiness, or judgment;
(b) the individual acknowledges his or her pattern of maladaptive alcohol use, provides
evidence of actions taken to overcome this problem, and has demonstrated a clear and
established pattern of modified consumption or abstinence in accordance with
treatment recommendations;
(c) the individual is participating in counseling or a treatment program, has no previous
history of treatment and relapse, and is making satisfactory progress in a treatment
program; and,
(d) the individual has successfully completed a treatment program along with any required
aftercare, and has demonstrated a clear and established pattern of modified
consumption or abstinence in accordance with treatment recommendations.
Adjudicative Guidelines at ¶ 23(a)–(d).
The passage of over two years since the Individual’s last self-reported consumption of alcohol,
during which time the Individual was administered one PEth test which was negative for traces of
regular, heavy alcohol consumption, and was in close contact with his AA sponsor, provides some
evidence that his alcohol-related misconduct is unlikely to recur. However, the Individual’s self-
reported abstinence from alcohol is of minimal weight in light of his repeated untruthfulness during
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the adjudication of his eligibility for a security clearance. Moreover, the Individual binge
consumed alcohol for six months or more in 2019 while participating in AA, and hid his alcohol
consumption from his wife and social acquaintances. Considering the Individual’s unreliability in
reporting his own substance abuse, and the lack of alcohol testing to support the Individual’s
claims, I am unsure as to when he last consumed alcohol. Accordingly, I cannot conclude that so
much time has passed that the Individual’s alcohol consumption does not cast doubt on his current
reliability, trustworthiness, or judgment, or that he has established a pattern of modified
consumption or abstinence in accordance with treatment recommendations. Thus, I find the first,
second, and fourth mitigating conditions under Guideline G inapplicable. Id. at ¶ 23(a)–(b), (d).
The third mitigating condition is inapplicable because of the Individual’s prior relapse following
treatment. Id. at ¶ 23(c).
Although the DOE Psychiatrist opined that the Individual has substantially complied with his
treatment recommendations and that the Individual’s AUD is in sustained remission, I do not share
the DOE Psychiatrist’s confidence in the Individual’s self-reported period of abstinence or ability
of the Individual’s wife and AA sponsor to detect his relapses. In the absence of the alcohol testing
recommended by the DOE Psychiatrist, I cannot determine the period of the Individual’s
abstinence from alcohol. As the DOE Psychiatrist premised his opinion upon the Individual’s self-
reporting, I assigned reduced evidentiary weight to the DOE Psychiatrist’s assessment that the
Individual had demonstrated rehabilitation. Thus, I find that none of the mitigating conditions
under Guideline G are applicable and that the Individual has not resolved the security concerns
asserted by the LSO.
C. Guideline H
The Individual’s significant history of substance abuse and the DOE Psychiatrist’s diagnosis of
the Individual with CUD justify the LSO’s invocation of Guideline H. Id. at ¶ 25(a), (c)–(d). The
Individual asserted that he has avoided using illegal drugs since November 2019 and has applied
the skills he has learned through AA to aid his recovery. The Adjudicative Guidelines provide that
an individual may mitigate security concerns under Guideline H if:
(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
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(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.
Id. at ¶ 26(a)–(d).
The first two mitigating conditions under Guideline H are not applicable because I cannot
confidently determine when the Individual last used illegal drugs. The Individual tested negative
on one drug test immediately following the DOE Psychiatrist’s evaluation and a second within a
few days of the hearing. These two tests provide too incomplete of a picture of the Individual’s
behavior to corroborate his claims as to his last use of illegal drugs. Moreover, the Individual’s
credibility to self-report his own illegal drug use is significantly undermined by his frequent
dishonesty during the investigation of his eligibility for a security clearance. I am likewise not
confident in the Individual’s wife’s ability to detect his illegal drug use. The Individual’s wife was
present when he was arrested in May 2019 after a crack pipe was discovered in his car and a plastic
bag with cocaine residue was found in his pocket, and yet she apparently did not realize that he
relapsed into using illegal drugs until six months later. A person capable of overlooking such
obvious signs of drug use is not a reliable source of information on the Individual’s drug use or a
check on his behavior. Besides the Individual’s success at hiding his illegal drug use from his wife
for significant periods of time in the past, it is apparent that he would be motivated to do so at
present out of fear that she would divorce him if she learned of a relapse. Thus, I find the first two
mitigating conditions under Guideline H inapplicable. Adjudicative Guidelines at ¶ 26(a)–(b).
The third mitigating condition under Guideline H is inapplicable because the Individual was not
prescribed prescription drugs after a severe or prolonged illness. Id. at ¶ 26(c). The fourth
mitigating condition under Guideline H is not applicable because the Individual relapsed following
his 2017 in-patient drug treatment program and continued to use illegal drugs while participating
in court-ordered drug treatment. Id. at ¶ 26(d).
The Individual has self-reported a significant period of abstinence from illegal drugs, but provided
limited objective evidence in the form of drug test results. In light of the Individual’s extensive
prior drug use, relapses during and after treatment, successful concealment of his drug use from
his wife for long periods of time, and untruthfulness regarding his drug use during the investigative
process, I cannot confidently determine the length of the Individual’s abstinence from illegal drugs
or conclude that he will not relapse again in the future. Thus, I find that the Individual has not
resolved the security concerns asserted by the LSO under Guideline H.
D. Guideline I
The DOE Psychiatrist clarified during the hearing that he had not intended to communicate in his
Report that the Individual had a psychological condition, and instead wished to assist the LSO by
identifying instances in which he found the Individual to have been untruthful. As the DOE
Psychiatrist clarified that he did not believe that the Individual had a psychological condition that
could impair his judgment, reliability, or trustworthiness, and the DOE Psychiatrist’s Report was
the only derogatory information cited by the LSO in the SSC under Guideline I, I find that the
security concerns under Guideline I are resolved.
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VII. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise security concerns under Guidelines E, G, and H of the Adjudicative Guidelines. After
considering all the relevant information, favorable and unfavorable, in a comprehensive, common-
sense manner, including weighing all the testimony and other evidence presented at the hearing, I
find that the Individual has not brought forth sufficient evidence to resolve the security concerns
set forth in the Summary of Security Concerns. Accordingly, I have determined that the Individual
should not be granted access authorization. Either party may seek review of this Decision by an
Appeal Panel pursuant to 10 C.F.R. § 710.28.
Phillip Harmonick
Administrative Judge
Office of Hearings and Appeals