PSH-22-0059

*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: February 23, 2022 ) Case No.: PSH-22-0059
)
__________________________________________)
Issued: July 20, 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 (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
On September 29, 2020, the Individual signed and submitted a Questionnaire for National Security
Positions (QNSP) in connection with seeking access authorization. Exhibit (Ex.) 9 at 46. In
response to questions on the QNSP concerning his use of illegal drugs and controlled substances,
the Individual disclosed that he had “socially experimented with [tetrahydrocannabinol] THC”2
while in college in 2005 and used cannabidiol (CBD) oil containing a “small % of THC” for
medicinal purposes in 2018. Id. at 40. The Individual checked boxes marked “no” to indicate that
he had not illegally purchased any drug or controlled substance in the prior seven years, been
ordered or advised to seek counseling or treatment for drug use, or ever voluntarily sought
counseling or treatment due to drug use. Id. at 41.
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.
2 “THC is the substance that’s primarily responsible for the effects of marijuana on a person’s mental state.” Cannabis
(Marijuana) and Cannabinoids: What You Need To Know, NATIONAL CENTER FOR COMPLEMENTARY AND
INTEGRATIVE HEALTH (November 2019) https://www.nccih.nih.gov/health/cannabis-marijuana-and-cannabinoids-
what-you-need-to-know#:~:text=THC%20is%20the%20substance%20that's,industrial%20hemp%E2%80%9D%20r
ather%20than%20marijuana.
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The Office of Personnel Management (OPM) conducted a background investigation of the
Individual. Ex. 10 at 11. OPM’s investigation revealed that the Individual had failed to disclose
the full extent of his drug use, that he had illegally purchased CBD products containing THC, that
he had voluntarily entered treatment for drug use, and that he underwent a substance abuse
evaluation following his arrest for several offenses in 2018. See Ex. 4 at 3–4 (summarizing
information collected during OPM’s investigation). The local security office (LSO) issued the
Individual a letter of interrogatory (LOI) concerning the information collected during the
background investigation. Ex. 5. In his response to the LOI, the Individual admitted that he had
intentionally omitted information from the QNSP because he feared that he would be denied access
authorization. Id. at 26.
The LSO issued the Individual a letter notifying him that it possessed reliable information that
created substantial doubt regarding his eligibility for access authorization. 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) of the Adjudicative Guidelines.
Ex. 1.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 2. The Director of the Office of Hearings and Appeals (OHA) appointed
me as the Administrative Judge in this matter, and I subsequently conducted an administrative
hearing. The LSO submitted ten exhibits (Ex. 1–10). The Individual submitted three exhibits (Ex.
A–C). The Individual testified on his own behalf and offered the testimony of one character
witness. Hearing Transcript (Tr.) at 3, 9, 57. The LSO did not call any witnesses. Id. at 3.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline E (Personal Conduct) as the basis for its determination that the Individual
was ineligible for access authorization. Ex. 1. “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 alleged that the Individual: deliberately omitted information concerning his use of illegal
drugs, purchase of illegal drugs, and substance abuse treatment from the QNSP; and deliberately
concealed or omitted information during an interview with an OPM investigator. Ex. 1. The LSO’s
allegations justify its invocation of Guideline E. Adjudicative Guidelines at ¶ 16(a)–(b).
III. REGULATORY STANDARDS
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all of the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s access authorization will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The regulatory
standard implies that there is a presumption against granting or restoring a security clearance. See
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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).
An 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). An individual is afforded a
full opportunity to present evidence supporting his eligibility for an access authorization. The Part
710 regulations are drafted so as to permit the introduction of a very broad range of evidence at
personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R.
§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence
to mitigate the security concerns at issue.
IV. FINDINGS OF FACT
The Individual signed and submitted the QNSP on September 29, 2020. Ex. 9 at 46. As part of
completing the QNSP, he certified that his statements therein were “true, complete, and correct to
the best of [his] knowledge and belief . . . .” Id. In the portion of the QNSP concerning illegal use
of drugs and controlled substances, the Individual disclosed that he had previously used THC. Id.
at 40. Specifically, the Individual indicated that he had “experimented with THC during [his] first
semester of college in 2005” and “[i]n 2018 went through an experimental trial of self-medicating
with controlled CBD (small % of THC).” Id. The Individual represented that he discontinued THC
use after each experiment and “never developed a habit[] and [had] never been a frequent user.”
Id.
The Individual checked boxes marked “no” in response to each of the following questions on the
QNSP:
• Do you have an additional instance(s) of illegal use of a drug or controlled
substance to enter?
• In the last seven (7) years, have you been involved in the illegal purchase,
manufacture, cultivation, trafficking, production, transfer, shipping, receiving,
handling or sale of any drug or controlled substance?
• Have you EVER been ordered, advised, or asked to seek counseling or treatment
as a result of your illegal use of drugs or controlled substances?
• Have you EVER voluntarily sought counseling or treatment as a result of your use
of a drug or controlled substance?
Id. at 41.
On October 28, 2020, an investigator interviewed the Individual as part of OPM’s background
investigation. Ex. 10 at 65. During the interview, the Individual disclosed that he participated in a
diversion program following a 2018 arrest, pursuant to which he underwent a substance abuse
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evaluation, individualized counseling, and an alcohol and drug education class. Id. at 71.3 The
Individual asserted that he had not disclosed this information on the QNSP “due to oversight.” Id.
at 71–72.
Regarding his illegal drug use, the Individual told the investigator that he had used marijuana
“approximately 5-10 times” while in college and that “he stopped using drugs” after his marijuana
use resulted in his expulsion from student housing. Id. at 73. He also told the investigator that he
had used CBD oil containing THC for medicinal purposes on a weekly basis in 2018 until his arrest
in April 2018, at which point he asserted that he discontinued using the CBD oil. Id. Following the
interview, the investigator communicated with the Individual on more than a dozen occasions to
obtain additional information and medical releases, the last of which communications occurred on
March 1, 2021. Id. at 74–79.
On November 2, 2020, the investigator interviewed the attorney who represented the Individual in
proceedings related to his 2018 arrest, and the attorney divulged that the Individual voluntarily
entered treatment for substance abuse in April 2018 separately from the diversion program. Id. at
136–37. On November 4, 2020, the investigator interviewed a friend of the Individual who
revealed that the Individual had not discontinued marijuana use in 2005 as he claimed. Id. at 105–
06. On March 25, 2021, the investigator obtained treatment records from the diversion program
the Individual entered into after his arrest. Id. at 108–09. The treatment records indicated that the
Individual reported having used marijuana on an approximately daily basis since age 19 and
cocaine on an approximately monthly basis beginning at age 31. Id. at 110.
In July 2021, the LSO issued the LOI to the Individual. Ex. 5. In his response, the Individual
represented that he had used marijuana, at varying levels of frequency, from 2005 to 2019. Id. at
4. He indicated that he purchased the marijuana approximately monthly when he was regularly
using it. Id. The Individual asserted that he had “experimented” with cocaine on three occasions
from 2016 to 2017. Id. at 4–5. He also disclosed that he had voluntarily sought drug or substance
abuse-related treatment on three occasions: in May 2018 following his arrest, in the summer of
2018 with a second treatment provider, and in 2019 through the diversion program. Id. at 6.
Through this treatment, the Individual indicated that he was diagnosed with “Cannabis Use
Disorder.” Id. at 10–11.
In his response to the LOI, the Individual represented that he did not understand that he was
required to disclose his purchases of CBD oil containing THC on the QNSP because the purchases
were lawful in the state in which they were made. Id. at 25. He also denied that he had used
marijuana daily for thirteen years, as some of his treatment records indicated. Id. at 26. However,
he admitted that he had intentionally failed to disclose the full extent of his illegal drug use on the
QNSP and in his interview with the investigator because he “feared [his] application [for access
authorization] would be denied.” Id.
3 The Individual’s arrest, which he disclosed on the QNSP and was not a basis for the LSO’s security concerns, resulted
from bizarre behavior during a “state of psychosis” the Individual attributed to a medication he was prescribed. Ex.
10 at 71, 109. Although the Individual asserted that he was not under the influence of illegal drugs at the time of the
arrest, he disclosed to the investigator that a drug test following his arrest detected “trace amounts” of THC. Id.
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At the hearing, the Individual testified that his untruthfulness on the QNSP and in the interview
with the investigator regarding the full extent of his drug use were due to being “very shameful of
some . . . things that occurred in [his] past, and [] really just trying to move forward, keep it in the
past.” Tr. at 16. The Individual likewise attributed his failure to disclose his voluntary treatment
to being “very embarrassed and shameful . . . .” Id. at 23. He also asserted that he had
“underestimated the consequences of an omission” on the QNSP and acknowledged that he was
“fearful that [his] application [for access authorization] would be denied.” Id. at 17, 25. The
Individual disputed that he had failed to disclose attending court-ordered substance abuse
treatment, as alleged by the LSO, stating that the treatment was not court-ordered, but instead that
he entered into the diversion program voluntarily. Id. at 21–22; see also Ex. 2 at 3–4 (reflecting
the Individual’s denial of the allegation when he requested a hearing).
The Individual represented that he now “live[s] a much more positive lifestyle . . . [and is] cleaner
and healthier.” Tr. at 25. The Individual represented that he had not used illegal drugs since 2019
and denied using “toxicants [sic] of any kind,” other than alcohol, as of the date of the hearing. Id.
at 25–26. A friend of the Individual since childhood testified that he believed that the Individual
had overcome “his struggles a few years ago” and was a trustworthy person. Id. at 58, 61, 63. The
Individual’s brother and a friend of three years submitted letters in which they expressed the belief
that the Individual is a truthful person. Ex. A; Ex. C.
V. ANALYSIS
The LSO’s allegations that the Individual deliberately omitted derogatory information from the
QNSP and in his interview with the investigator justify its invocation of Guideline E. Adjudicative
Guidelines at ¶ 16(a)–(b). Conditions that may mitigate security concerns under Guideline E
include:
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
(b) the refusal or failure to cooperate, omission, or concealment was caused or
significantly contributed to by advice of legal counsel or of a person with
professional responsibilities for advising or instructing the individual specifically
concerning security processes. Upon being made aware of the requirement to
cooperate or provide the information, the individual cooperated fully and truthfully;
(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent,
or it happened under such unique circumstances that it is unlikely to recur and does
not cast doubt on the individual’s reliability, trustworthiness, or good judgment;
(d) the individual has acknowledged the behavior and obtained counseling to change
the behavior or taken other positive steps to alleviate the stressors, circumstances,
or factors that contributed to untrustworthy, unreliable, or other inappropriate
behavior, and such behavior is unlikely to recur;
(e) the individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress;
(f) the information was unsubstantiated or from a source of questionable reliability;
and,
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(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).4
The Individual’s admission to failing to disclose derogatory information concerning his drug
use on the QNSP and in the interview with the investigator was not sufficiently prompt for the
first mitigating condition under Guideline E to apply in this case. Approximately ten months
elapsed between the date the Individual submitted the QNSP and the date he admitted to his
omissions in his response to the LOI, during which time he interacted with the investigator
numerous times and could have revealed the full extent of his omissions. Instead, the Individual
failed to fully admit to his omissions until he was confronted with the facts by the LSO in the
LOI. For these reasons, I find the first mitigating condition inapplicable.
The third mitigating condition is inapplicable because the Individual’s conduct was serious
and relatively recent. Failure to fully disclose derogatory information on a QNSP and in a
personnel security interview raises serious security concerns. Id. at ¶ 15 (“Of special interest
is any failure to cooperate or provide truthful and candid answers during national security
investigative or adjudicative processes”). The subject matter of the Individual’s omissions,
drug use and treatment, likewise concerns topics that are likely to affect one’s judgment and
reliability, and reinforces the serious nature of his conduct. The recency of Individual’s
admission to these omissions, less than one year prior to the hearing, is too recent to mitigate
the serious security concerns raised by his behavior. Therefore, I find the third mitigating
condition inapplicable. Id. at ¶ 17(c).
The Individual’s acknowledgement of his omissions and his abstinence from illegal drugs since
2019, which the LSO does not contest, could support the applicability of the fourth and fifth
mitigating conditions under Guideline E. However, the Individual had already undergone
substance abuse treatment and established a lengthy period of abstinence from illegal drugs by
the time that he submitted the QNSP and participated in the interview with the investigator.
The Individual’s repeated failure to disclose his derogatory conduct until being confronted with
the facts, even after these positive life changes, suggests that the concerns as to his reliability
have not been resolved. Thus, I find the fourth and fifth mitigating conditions inapplicable. Id.
at ¶ 17(d)–(e).
The Individual has not satisfied any of the mitigating conditions under Guideline E, and I am
not convinced that he will proactively disclose derogatory information in the future if he
4 The second mitigating condition is inapplicable to the facts of this case because the Individual did not allege that his
omissions were on the advice of counsel. Adjudicative Guidelines at ¶ 17(b). The sixth mitigating condition is not
applicable because the LSO did not obtain information from an unreliable source and, other than arguably the
treatment notes indicating that the Individual used marijuana daily upon which the LSO’s allegations do not rely, there
is no unsubstantiated information at issue. Id. at ¶ 17(f). The last mitigating condition is not applicable because the
LSO’s determination was not premised upon the Individual’s association with persons engaged in criminal acts. Id. at
¶ 17(g).
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perceives his own interests to be at risk. For these reasons, I find that the Individual has not
resolved the security concerns asserted by the LSO under Guideline E.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise security concerns under Guideline E 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. This Decision may be appealed in accordance with the
procedures set forth at 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Administrative Judge
Office of Hearings and Appeals