PSH-22-0048

*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: December 17, 2021 ) Case No.: PSH-22-0048
)
__________________________________________)
Issued: April 29, 2022
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Administrative Judge Decision
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Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXX XXXXX (the Individual) to hold an access
authorization under the United States Department of Energy’s (DOE) regulations, set forth at 10
C.F.R. Part 710, “Procedures for Determining Eligibility for Access to Classified Matter and
Special Nuclear Material.”1 As discussed below, after carefully considering the record before me
in light of the relevant regulations and the National Security Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive
Position (June 8, 2017) (Adjudicative Guidelines), I conclude that the Individual’s access
authorization should not be restored.
I. BACKGROUND
The Individual is employed by the DOE in a position that requires him to maintain a security
clearance. As a result of a background investigation, the LSO uncovered derogatory information
indicating that the Individual had not provided accurate information in three prior Questionnaires
for National Security Positions (QNSP) forms concerning his prior use of marijuana or the
circumstances concerning an automobile accident where the Individual had been intoxicated. See
Exhibit (Ex.) 2.
As a result of a further investigation concerning the above incidents, the local security office (LSO)
issued the Individual a letter (Notification Letter) in which it notified him that it possessed reliable
information that created substantial doubt regarding his eligibility to hold a security clearance and
that his clearance had been suspended. In a Summary of Security Concerns (SSC) attached to the
letter, the LSO explained that the derogatory information raised security concerns under
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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Guidelines E (Personal Conduct) and H (Drug Involvement) 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. 2. The Director of the Office of Hearings and Appeals (OHA) appointed
me as the Administrative Judge in this matter, and I subsequently conducted an administrative
hearing. The LSO submitted seven exhibits (Ex. 1–7). The Individual submitted 34 exhibits (A–
HH). The Individual testified on his own behalf and offered the testimony of a supervisor (the
“Supervisor”). Hearing Transcript (Tr.) at 57.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
In the Notification Letter, the LSO cited Guidelines E (Personal Conduct) and H (Drug
Involvement) as the basis for its determination that derogatory information concerning the
Individual raised questions as to his eligibility to possess an access authorization. Ex. 2.
Guideline E provides that “[c]onduct 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.” Adjudicative
Guidelines at ¶15. Conditions that could raise a security concern include “[c]redible 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[.]” Id. at ¶16(d). Examples of
concerning behavior includes “[a] pattern of dishonesty or rule violations[.]” Id.
In the Notification Letter, the LSO cited, among other derogatory information, the Individual’s
failure to disclose in 2016, 2020 and 2021 QNSPs that he had used marijuana within the seven
years prior to the dates of the QNSPs. Additionally, in a June 2020 personnel security interview
(PSI) pursuant to his application with a federal law enforcement agency and later, in an August
2021 response to a Letter of Interrogatory (LOI) issued by the LSO, the Individual admitted that
he did not disclose his prior marijuana use in a 2016 QNSP because he thought it would damage
his chance for employment. Ex. 8 at 41; Ex. 13 at 1. The LSO also cited the Individual’s failure to
disclose that a traffic accident reported in a 2016 QNSP and a 2020 QNSP resulted from his
operation of a vehicle while impaired by alcohol. Ex. 9 at 286. The above information justifies the
LSO’s invocation of Guideline E.
Guideline H states that “[t]he 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.
In the present case, the Individual admitted in the June 2020 PSI and in an interview with a Defense
Counterintelligence Security Agency (DCSA) interviewer, pursuant to his application for a
position at a DOE, that he used marijuana five or fewer times during the period 2011 to 2015. Ex.
8 at 41; Ex. 10 at 63. The Individual also confirmed his use of marijuana in July 2021 and August
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2021 responses to LOIs issued by the LSO. Ex. 12 at 3; Ex. 13 at 2. The Individual’s admission of
marijuana use justifies the LSO’s invocation of Guideline H.
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 the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s access authorization will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The regulatory
standard implies that there is a presumption against granting or restoring a security clearance. See
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 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
The Individual was employed by a federal agency (Agency A) in a position that requires him to
hold a security clearance. In 2016, pursuant to obtaining a security clearance, the Individual
completed a Questionnaire for National Security Positions (2016 QNSP) in which he denied using
illegal drugs in the prior seven years. Exhibit (Ex.) 5 at 37. In the 2016 QNSP, the Individual
reported that he had been involved in a June 2015 automobile accident involving property damage
for which the local police subsequently issued him four citations by mail. Ex. 5 at 34-35.
Additionally, the Individual answered “no” to the question “[I]n the last seven (7) years has your
use of alcohol had a negative impact on your work performance, your professional or personal
relationships, your finances, or resulted in intervention by law enforcement/public safety
personnel?” Ex. 5 at 37-38. The Individual was granted a security clearance by Agency A in 2017.
Ex. 10 at 84.
In 2020, the Individual sought employment with a federal law enforcement agency which required
that he maintain a security clearance. In a QNSP (2020 QNSP) submitted pursuant to his
application, the Individual again denied using illegal drugs within the prior seven years or being
involved in an alcohol-related incident that required law enforcement intervention. Ex. 6 at 18-19.
Later in the June 2020 PSI, the Individual stated that he had used marijuana on fewer than six
occasions from April 2012 to April 2014. Ex. 8 at 39. Subsequently, the Individual was asked to
undergo a polygraph examination with the federal law enforcement agency. Immediately prior to
taking the polygraph examination, the Individual revealed that the automobile accident he reported
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in the 2020 QNSP had, in fact, been an alcohol-related and that he left the scene of the accident
with a friend because he had been intoxicated. Ex. 9 at 286. The Individual further elaborated that
when he was contacted by local police, he denied that he had been intoxicated. Ex. 9 at 286.
The Individual was not employed by the federal law enforcement agency and subsequently was
hired by DOE in a position that required that he maintain his security clearance. In a QNSP
submitted in 2021 (2021 QNSP), the Individual denied having used illegal drugs in the prior seven
years. Ex. 7 at 46. However, in the 2021 QNSP, he admitted to having been involved in a 2015
traffic accident while intoxicated and having denied being intoxicated to local police. Ex. 7 at 44.
In a subsequent interview with a DCSA interviewer, the Individual confirmed that he had used
marijuana on fewer than five occasions marijuana during the period 2011 to 2015. Ex. 10 at 63.
The Individual also confirmed that he had been intoxicated prior to his reported traffic accident.
Ex. 10 at 62-63.
Given the apparently misleading answers provided in his prior QNSPs, the LSO sent the Individual
two Letters of Interrogatory. In his response dated July 2021 (July Response) to the first LOI, the
Individual responded to questions regarding his alcohol use, and when asked why he had not been
truthful in his responses in the prior QNSPs, he responded, “When the [police] asked me if I
consumed alcohol prior to the accident, I was thinking if I tell the [police] yes, I will get a DUI
and probably ruin any chances I have of getting a job in the future.” Ex, 12 at 15. He also stated in
the July Response that he had most recently used marijuana sometime during the Fall 2012 to
Spring 2013 timeframe. Ex. 12 at 16. In explaining his differing answers in the QNSPs regarding
marijuana usage, the Individual stated in the July Response that his negative answer in the 2016
QNSP was an oversight, and he believed that the question only asked about illegal drug usage
during the prior three years. Ex. 12 at 16. He noted that he did not have a “follow-up discussion
to go over each question.” Ex. 12 at 16. Regarding the 2020 and 2021 QNSPs, he believed that it
had been longer than seven years since he had used marijuana and thus his negative response to
the question regarding illegal drug use in the period 7 seven years was accurate. Ex. 12 at 16. He
also asserted in the July Response that his 2020 QNSP response regarding his prior illegal drug
use was another “oversight” that was “cleared up in a follow-up discussion.” Ex, 12 at 16.
In a subsequent LOI, the Individual was again asked about why he had failed to provide accurate
information regarding his illegal drug use and asked if he had been concerned that providing
truthful responses would have an adverse effect on his employment or security clearance
application. Ex. 13 at 1. In his August 2021 Response, the Individual stated that he believed
providing a truthful response concerning his marijuana usage would have had an adverse impact
on his chances of obtaining employment with the federal agency in 2016. Ex. 13 at 4. As for his
specific response to the 2020 QNSP question regarding illegal drug use, the Individual asserted
that he had used the information from the 2016 QNSP, and since he had not used illegal drugs
since the time he completed the 2016 QNSP, he left the negative illegal drug use the same as his
response in the 2016 QNSP. Ex. 13 at 4. He also acknowledged that he should have responded
“yes” to the question about illegal drug use in the 2020 QNSP. Ex. 13 at 4. His answer to the illegal
drug use question in the 2021 QNSP was based upon his belief that it had been longer than seven
years since his last use of marijuana. Ex. 13 at 4. The Individual noted that in the case of 2020 and
2021 QNSPs, he had follow-up discussions with officials to whom he acknowledged his oversight.
Ex. 13 at 4.
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At the hearing, the Individual testified that he was age 19 when he completed the 2016 QNSP and
that his understanding was to complete the questions in the QNSP by following the instructions on
the form. Tr. at 17. He did not receive any guidance filling out this QNSP. Tr. at 17-18. He testified
that he understood that he was required to be truthful in the 2016, 2020 and 2021 QNSPs. Tr. at
18. The Individual confirmed the facts surrounding his reported traffic accident which resulted in
him receiving four citations in the mail. Tr. at 20. He testified that he answered “no” to a question
in the 2016 QNSP asking if he had ever been charged with an offense involving alcohol or drugs.
The Individual asserted that he provided this answer because the citations themselves “did not
involve alcohol or drugs.” Tr. at 20. The Individual also testified that he did not report his
marijuana use in the 2016 QNSP because “my thought process was I didn’t want something that I
did a few times in college [to] hold me back from receiving a job from the federal government.”
Tr. at 21. He asserted that his marijuana use was limited to a few occasions at social gatherings
with friends. Tr. at 21.
In 2020, the Individual sought to apply for a position at a federal law enforcement agency and
submitted the 2020 QNSP pursuant to his application. Tr. at 23-24. In the 2020 QNSP, the
Individual again answered “no” to the question whether he had been charged with an offense
involving alcohol or drugs for the same reason he had answered “no” in the 2016 QNSP. Tr. at 24.
As to why he did not report his marijuana use when asked in the 2020 QNSP, the Individual again
testified “because I didn't want something that I did a few times in college to hold me back from
working with the [federal law enforcement agency].” Tr. at 25.
The Individual stated that during the June 2020 PSI conducted by the federal law enforcement
agency, he revealed that he had used marijuana. Tr. at 25-26. He testified that he made this
disclosure since it was “the first time that I was asked directly if I ever used marijuana . . . .” Tr.
at 26. When asked about when he had used marijuana and the extent of his use, the Individual
could not remember the details of his use so he “just tried to give as generous of [sic] answers that
I could at the time.” Tr. at 27.
The Individual also testified that, as part of the process prior to taking a polygraph examination,
the Individual discussed with an agent of the federal law enforcement agency the circumstances
surrounding his June 2015 automobile accident. Tr. at 28. He further testified that he was very
embarrassed about the incident since it happened at “one of the low points of [his] life” and that it
had occurred while he had been consuming alcohol. Tr. at 28. He went on to explain “I felt that I
had to come clean about that and get that thing -- get it off my chest just because it was kind of
weighing on me that I wasn't truthful about that and it felt -- it felt good to finally get it off my
chest and get the truth out there about what happened.” Tr. at 28.
The Individual was eventually hired by the DOE in January 2021.2 Tr. at 31. The Individual
testified that he answered “yes” to the question in the 2021 QNSP regarding whether his traffic
citations involved drugs or alcohol. Tr. at 31. After his interaction with the federal law enforcement
agency, he wanted to avoid any issues related to not disclosing the role alcohol had in the accident.
Tr, at 31. When asked in the 2021 QNSP whether he had used illegal drugs in the prior 7 years,
the Individual testified that he answered “no” since he believed that it had been longer than seven
years since his last use of marijuana. Tr. 32.
2 The Individual sought employment because of budget cuts at Agency A. Tr. at 29.
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The Individual testified that in February 2021, he was interviewed by a DCSA interviewer as part
of the process to obtain a DOE security clearance. The DCSA interviewer’s report indicated that
the Individual had told the interviewer that he had used marijuana during the time 2011 to 2015
while at parties and that he had used marijuana on fewer than five occasions. Tr. at 33. The
Individual testified that he does not remember providing the interviewer a 2015 ending date for
marijuana use. Tr. at 33. The Individual speculated that he may have provided the 2015 end date
in reference to the dates he attended and played football for his university. Tr. at 33-34.
The Individual testified that he was subsequently sent the first LOI which asked about his use of
drugs and alcohol. Tr. at 34-35. The Individual asserted that he answered these questions to the
best of his knowledge. Tr. at 35. The Individual recounted that, because there had been
inconsistencies in his responses regarding illegal drug use, he was sent a second LOI. Tr. at 35.
The Individual then sought assistance from colleagues, friends, and family to help him respond to
the second LOI. Tr. at 35. His intention in answering the second LOI’s questions was to be a
truthful as possible and to admit he had made mistakes in prior responses. Tr. at 36.
The Supervisor testified that he had worked with the Individual while he was employed at Agency
A. Tr. at 57. He further testified as to the Individual’s outstanding work performance, honesty, and
his growth as a professional. Tr. at 56-57, 59-60. 66. The Supervisor confirmed that the
Individual’s motivation to leaving Agency A was an impending 70 percent budget cut in funding.
Tr. at 62. The Supervisor stated that he would gladly rehire the Individual and believed the
Individual would be an asset to any organization for which he would be employed. Tr. at 63; see
Ex. M (Supervisor’s character reference attesting to Individual’s integrity and superior workplace
performance). The record also contains 11 character reference letters attesting to the Individual’s
excellent work, performance, and character along with seven official personnel performance
evaluations from Agency A documenting the Individual’s excellent workplace performance. Exs.
D-N (character references); Exs. O-W (performance reviews).
V. ANALYSIS
As stated above, the security concerns at issue in this case center around Guidelines E (Personal
Conduct) and H (Drug Involvement).
A. Guideline E
The Adjudicative Guidelines list the following potentially relevant factors that can mitigate
Guideline E security concerns:
(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
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recur and does not cast doubt on the individual's reliability, trustworthiness, or
good judgment;
(d) the individual has acknowledged the behavior and obtained counseling to
change the behavior or taken other positive steps to alleviate the stressors,
circumstances, or factors that contributed to untrustworthy, unreliable, or other
inappropriate behavior, and such behavior is unlikely to recur;
(e) the individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress;
Adjudicatory Guidelines at ¶17.
After reviewing the record and the testimony presented in this case, I cannot find that the Individual
has completely resolved the security concerns raised by his lack of candor regarding the
circumstances surrounding his automobile accident or his use of marijuana. The Individual asserts
that each of the mitigating factors enumerated above are applicable to him and, as such, indicate
that the Guideline E security concerns raised by his lack of candor have been resolved. I find these
arguments unavailing.
I cannot find, regarding paragraph 17(a), that the Individual has made prompt, good faith efforts
to correct the omission of his marijuana use or the fact that alcohol was involved in his June 2015
accident. It was not until the June 2020 PSI that the Individual disclosed his marijuana use. This
is almost four years after first failing to report his marijuana use in the 2016 PSI and three years
after having been granted a security clearance. I also cannot find, pursuant to paragraph 17(c) that
the Individual’s omissions are of such a nature that they do not cast doubt as to the Individual’s
reliability, trustworthiness, or good judgment. Although there is evidence of the Individual’s
trustworthiness as attested to by his Supervisor’s testimony and the character references in the
record, I find that this is outweighed by the fact that the Individual continued to hide these facts
while in possession of a security clearance granted to him in 2017 by Agency A. It is implausible
that, as a security clearance holder, the Individual would not have been aware of the need for
candor regarding security inquiries. Further, the Individual’s varying answers regarding why he
denied his illegal drug involvement – failure to understand the question, mistaking the period of
use being asked about, and fear that disclosure would result in failure to be employed or gain a
clearance – provide little assurance that doubts as to the Individual’s trustworthiness have been
completely resolved.
I also cannot find that the mitigating factor in paragraph 17(d) is applicable in this case. Given the
Individual’s omissions, there is no evidence that the Individual has undertaken any counselling, if
any such counselling exists. Arguably, the Individual has taken a positive step in revealing his
omissions; however, it is not apparent to me as to how this action would rehabilitate the
Individual’s internal decision-making process that led to his deliberate decision to omit potentially
unfavorable facts to gain employment or obtain a security clearance. Consequently, I find that the
mitigating factor in paragraph 17(d) is inapplicable in this case.
With the Individual’s belated disclosures to the LSO, it is arguable that the Individual has taken a
step to reduce his vulnerability to exploitation, manipulation, or duress as described in paragraph
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17(e). However, this mitigating factor is outweighed by the relative recency of the Individual’s
omissions, the Individual’s decision to omit information on a number of separate occasions, and
the fact that he continued the omissions while possessing a security clearance.3 As referenced
earlier, the Individual has provided several somewhat varying explanations regarding his omission
of his illegal drug use.
The Individual testified as to his confusion regarding some of the QNSP questions and his
uncertainty and lack of attention regarding the questions’ scope. I find these explanations
insufficient to mitigate the security concerns raised by the Individual’s deliberate decision to omit
information. At the very least, the lack of attention and care paid to completing the QNSPs during
the application process is noteworthy due to the very nature of the documents the Individual was
completing. OHA has emphasized the need for accuracy and full disclosure as follows:
A QNSP is an important tool in establishing whether an individual is fit to hold a
security clearance, and accordingly, an applicant is held to a higher standard when
completing such a form. Any individual “seeking a security clearance should be
well aware of the need for complete, honest and candid answers to DOE questions.
Therefore[,] when completing a QNSP such an individual should err on the side of
providing too much rather than too little information.
Personnel Security Hearing, OHA Case No. PSH-21-0009, slip op. at 8 (2021) (quoting Personnel
Security Hearing, OHA Case No. TSO-0023 at 30-31 (2003)).
In sum, I find that the Individual has not resolved the Guideline E security concerns raised by the
information in the SSC.
B. Guideline H
The Adjudicatory Guidelines list the following factors that can mitigate Guideline H concerns:
(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;
3 In making this determination I have also considered the factors enumerated in 10 C.F.R. § 710.7(c). Section
710.7(c) states, in relevant part:
In resolving these [Adjudicative Guideline concerns], all DOE officials involved in the decision-
making process shall consider: The nature, extent, and seriousness of the conduct; the circumstances
surrounding the conduct, to include knowledgeable participation; the frequency and recency of the
conduct; the age and maturity of the individual at the time of the conduct; the voluntariness of
participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral
changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress;
the likelihood of continuation or recurrence; and other relevant and material factors.
10 C.F.R § 710.7(c).
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(b) the individual acknowledges his or her drug involvement and substance misuse,
provides evidence of actions taken to overcome this problem, and has established a
pattern of abstinence, including, but not limited to:
(1) disassociation from drug-using associates and contacts;
(2) changing or avoiding the environment where drugs were used; and
(3) providing a signed statement of intent to abstain from all drug
involvement and substance misuse, acknowledging that any future
involvement or misuse is grounds for revocation of national security
eligibility;
(c) abuse of prescription drugs was after a severe or prolonged illness during which
these drugs were prescribed, and abuse has since ended; and
(d) satisfactory completion of a prescribed drug treatment program, including, but
not limited to, rehabilitation and aftercare requirements, without recurrence of
abuse, and a favorable prognosis by a duly qualified medical professional.
Adjudicatory Guidelines at ¶26.
An examination of the record and testimony in this case does not reveal any further use of
marijuana since 2015 at the latest. Consequently, I find that the mitigation factor described in
paragraph 26(a) is applicable in this case. I further find the Individual’s testimony relatively
consistent regarding the number of times he used marijuana. As such, I find that the Individual’s
use of marijuana was limited and occurred at a relatively early age while attending college.
Weighing the available information, I find that the Individual has mitigated the Guideline H
security concerns arising solely from his use of marijuana.
VI. 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 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 brought forth sufficient evidence to resolve the Guideline H security
concerns set forth in the Notification Letter. However, I also find that the Individual has failed to
present sufficient evidence to resolve the Guideline E security concerns. Accordingly, I have
determined that the Individual’s security clearance should not be restored. This Decision may be
appealed in accordance with the procedures set forth at 10 C.F.R. § 710.28.
Richard A. Cronin, Jr.
Administrative Judge
Office of Hearings and Appeals