PSH-22-0115

*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: July 12, 2022 ) Case No.: PSH-22-0115
)
__________________________________________)
Issued: January 11, 2023
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Administrative Judge Decision
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Brenda B. Balzon, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (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 granted.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires him to hold an access
authorization. As part of a security clearance investigation, the Individual was required to complete
a Questionnaire for National Security Positions (QNSP), which he signed and submitted on May
12, 2021. Ex. 7.2 In the QNSP, the Individual was asked questions about whether he had engaged
in the use or purchase of any illicit or controlled substances within the past seven years. Id. at 42.
He admitted that he used marijuana and crack cocaine and stated that he had no other instances of
illegal use of drugs or controlled substances. Id. at 42-43. However, in a June 2021 Enhanced
Subject Interview (ESI) with an Office of Personnel Management (OPM) investigator, he admitted
that he smoked heroin in 2011-2017 and illegally used Xanax and Percocet in approximately 2015-
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 Numerous exhibits offered by DOE contain documents with printed page numbers that are inconsistent with the
pagination of the exhibits. This Decision cites to pages in the order in which they appear in exhibits without regard
for their internal pagination.
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2018. Ex. 8 at 82. In addition, the Individual also certified in his QNSP that he had not sought any
counseling or treatment as a result of his use of a drug or controlled substance. Id. at 44. However,
he later stated during the ESI that on May 3, 2018, he voluntarily admitted himself to a treatment
program (TP) for drug abuse. Id. at 76. Also, during the ESI the Individual told the OPM
investigator that after he left the TP he did not admit himself for counseling or treatment elsewhere.
Id. However, during a psychological evaluation conducted by a DOE-contracted psychiatrist (DOE
Psychiatrist) on February 7, 2022, he admitted that on approximately May 10, 2018, he traveled to
Mexico to meet with a physician for his substance abuse disorder. Ex. 5 of 5.
Regarding his criminal history, during the ESI, the Individual told the OPM investigator that on
June 17, 2014, he was arrested and charged with reckless driving, possession of drug paraphernalia
for having a marijuana pipe in his vehicle, and false evidence of title or registration. Ex. 8 at 75.
He stated that he was convicted of the charges and he completed all terms of his sentence including
probation and payment of fines. Id. at 75. He further reported that on May 7, 2019, he was arrested
and charged with Driving While Intoxicated (DWI) and making an unsafe lane change. Id. at 74.
He was convicted of the charges and reported that he complied with all court orders of his sentence,
and his court case was closed in December 2020. Id. at 74. The Individual also told the OPM
investigator that on November 17, 2020, he was arrested for unlawful use of a license and speeding
because he drove a vehicle other than his usual vehicle which required an interlock device. Id. at
78. As a result, he was court ordered to pay a fine under $300, which he paid. Id.
In February 2022, the DOE Psychiatrist conducted a clinical interview (CI) of the Individual. Ex.
5. Following the CI, the DOE Psychiatrist issued a psychological report (Report) in which he
opined that the Individual met the Diagnostic and Statistical Manual of Mental Disorders 5th
Edition (DSM-5) criteria for a diagnosis of Opioid Use Disorder (OUD), Mild, in sustained
remission. Id. at 9. The DOE Psychiatrist also opined that the Individual had not demonstrated
adequate evidence of rehabilitation or reformation. Id. at 12.
The Local Security Office (LSO) informed the Individual, in a Notification Letter dated April 29,
2022, that it possessed reliable information that created substantial doubt regarding the
Individual’s eligibility to hold a security clearance. In an attachment to the letter (Summary of
Security Concerns), the LSO explained that the derogatory information raised security concerns
under Guideline E, Guideline H, and Guideline J 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 review
hearing. The LSO submitted nine numbered exhibits (Ex. 1–9) into the record and presented the
testimony of the DOE Psychiatrist at the hearing.3 The Individual submitted five exhibits (Ex. A–
E) into the record and presented his own testimony.
3 Prior to the hearing, the Individual had expressed an interest in submitting as one of his exhibits a letter that was
written by a doctor in Mexico who had provided him with treatment for substance use, however, the letter was written
in Spanish. I informed the Individual that if he wanted the letter to be considered as an exhibit, he would need to obtain
an English translation prepared by a translator that provided either a notarized affidavit or certification as to the
accuracy of the translation. The Individual chose not to submit the letter as an exhibit.
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II. NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As indicated above, the LSO cited Guideline E (Personal Conduct), Guideline H (Drug
Involvement and Substance Misuse), and Guideline J (Criminal Conduct) of the Adjudicative
Guidelines as the bases for concern regarding the Individual’s eligibility to possess a security
clearance. Ex. 1 at 1.
Guideline E provides that “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.” Adjudicative
Guidelines at ¶ 15. “Of special interest is any failure to cooperate or provide truthful and candid
answers during national security investigative or adjudicative processes.” Id. In citing Guideline
E, the LSO relied upon the Individual’s failure to disclose his illegal use of Xanax and Percocet in
the QNSP and his subsequent disclosure of his illegal drug use during the ESI. The LSO also relied
on the Individual’s “failure to provide truthful and candid answers during [the] national security
investigative process,” referencing the Individual’s inconsistent responses in the QNSP, the ESI,
and his psychological evaluation regarding whether he had voluntarily sought treatment for his
substance abuse disorder.
Guideline H provides that “[i]llegal use of controlled substances can raise questions about a
person’s ability or willingness to comply with laws, rules, and regulations.” Adjudicative
Guidelines ¶ 24. As support for citing Guideline H, the LSO relied upon the DOE Psychiatrist’s
determination that the Individual met the DSM-5 criteria for OUD, without adequate evidence of
rehabilitation or reformation, and the Individual’s admissions of illegal drug involvement.
Guideline J provides that “[c]riminal activity creates doubt about a person’s judgment, reliability,
and trustworthiness.” Adjudicative Guidelines at ¶ 30. “By its very nature, it calls into question a
person’s ability or willingness to comply with laws, rules, and regulations.” Id. The LSO cited the
Individual’s three prior arrests: a June 17, 2014, arrest for reckless driving, possession of drug
paraphernalia, and false evidence of title or registration; a May 7, 2019, arrest for DWI and unsafe
lane change; and a November 17, 2020, arrest for unlawful use of license and speeding.
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
Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national
interest” standard for granting security clearances indicates “that security determinations should
err, if they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990)
(strong presumption against the issuance of a security clearance).
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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
On February 10, 2022, the Individual underwent an evaluation including a clinical interview CI
with the DOE Psychiatrist. Ex. 5. During the CI, the Individual reported that he began using illegal
drugs at age 12 when he started smoking marijuana. Id. at 3. He began using cocaine at age 15,
and he began using heroin when he was approximately 16 years old. Id. at 4. He admitted that he
was “pretty hooked” on heroin. Id. Additionally, the Individual told the DOE Psychiatrist that he
used nonprescribed benzodiazepines including approximately monthly use of Xanax. Id.
During the CI, the Individual also reported to the DOE Psychiatrist that on May 3, 2018, he
voluntarily entered the TP for substance abuse. Id. He indicated that he entered the TP because he
was “fed up” with his heroin habit taking all his money. Id. at 2, 4. However, the Individual stated
that he only stayed at the TP for “a few hours” before he decided to leave because he decided that
the TP would not be helpful and that “meds don’t help any.” Id. at 5. The Individual also disclosed
during the CI that approximately one week after leaving the TP, he decided to go to Mexico to
seek treatment for his substance abuse disorder from a doctor who was a friend of the Individual’s
family. Id. The Individual did not know what sort of doctor the family friend was nor did he know
about the doctor’s qualifications or credentials. Id. He stated that the doctor came to his brother’s
house where he treated the Individual with intravenous (IV) fluids, which he thinks was a solution
of “vitamins, Pedialyte, and medications.” Id. The Individual stated that he had withdrawal
symptoms during the IV treatment, but the symptoms were tolerable, and the doctor discontinued
the IV after one week. Id. The Individual stated that after the IV treatment ended, the doctor gave
him oral medications over the next two to four weeks, during which time he saw the doctor on a
weekly basis and continued to see the doctor occasionally for the next couple of months. Id.
The Individual also told the DOE Psychiatrist during the CI that he stopped his illegal drug use in
May 2018, and he has had “no slips” and has been able to maintain a life with “no drugs.” Id. at
5-6. He also stated that he is not currently participating in any substance abuse counseling or
treatment. Id. at 6. As part of the psychological evaluation, the DOE Psychiatrist administered a
urine drug screen which tested for 11 substances and was negative for all substances tested
including amphetamine/methamphetamine, benzodiazepine, cocaine, marijuana, opiates, and
oxycodone. Id. at 8, 14.
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The DOE Psychiatrist issued his Report on February 10, 2022, in which he opined that the
Individual met the DSM-5 criteria for OUD, mild, in sustained remission.4 Id. at 12. The DOE
Psychiatrist opined that the Individual had not shown adequate evidence of rehabilitation or
reformation. Id. He based his opinion on a number of concerns including that the Individual “had
impulsively left” the TP and “sought unorthodox treatment with a family friend in Mexico” where
he “received IV treatment of some sort to treat his withdrawal symptoms.” Id. The DOE
Psychiatrist searched for the doctor’s name online but noted that he was “unable to determine his
education or qualifications.”5 Id. at 5. Accordingly, the DOE Psychiatrist concluded that this
unorthodox treatment was not a sufficient program to treat the Individual’s substance abuse
disorder. Ex. 5 at 5; Tr. at 65-67. He also noted that the Individual has had no follow-up treatment,
and his two recent alcohol-related legal problems raise concerns about the stability of his
rehabilitation from addictive disorders. Ex. 5 at 5. The DOE Psychiatrist recommended that the
Individual needs to desire treatment, and he recommended that the Individual attend outpatient
treatment of moderate intensity, such as Narcotics Anonymous at least once per week, or
individual counseling with a trained substance abuse counselor as regularly as directed by the
counselor. Id. The DOE Psychiatrist further recommended that any treatment should include
“abstinence from all illegal drugs and opiates of any kind . . . and [the] [d]uration of such treatment
should be for one year to provide adequate evidence of rehabilitation and reformation.” Id.
The record includes five letters of recommendation submitted by the Individual including a letter
from his general foreman, who indicated that he has supervised the Individual for the past eight
months and finds him very dependable and very respectful of the rules and restrictions at his job
site. Ex. B. He also provided a letter from his other current foreman and three superintendents, all
of whom provided excellent references and stated that the Individual is honest, respectful, and
trustworthy. Exs. A, C, D, and E.
At the hearing, the Individual testified regarding the omissions on his QNSP. He affirmed that
when he was preparing his QNSP, he read the questions regarding drug use. Tr. at 55-56. He stated
that when he submitted his QNSP, he believed that he had disclosed all the information regarding
his prior drug use and previous drug treatment. Id. at 14. He asserted that he did not intentionally
omit that information from his QNSP. Id. at 18. When asked what he told the OPM investigator
regarding the discrepant information, the Individual stated that he told the truth and “didn’t leave
anything out.” Id. at 15-16. He also stated, “I have no reason to lie . . . I mean, if I was trying to
lie, I wouldn’t have mentioned it to the investigator.” Id. at 14.
4 The DOE Psychiatrist also noted in his Report that, while the Individual falls short of meeting full criteria for the
diagnosis of Antisocial Personality Disorder (ASPD), he noted the presence of some ASPD traits. Ex. 5 at 2. He noted
that the Individual was arrested as a minor at age 12 for fighting with another minor, and the other minor needed
medical attention. Id. The DOE Psychiatrist also cited to other examples including the Individual’s arrests in 2014,
2019, and 2020, as well as the fact that he previously had three job losses after having arguments with supervisors. Id.
at 10. The DOE Psychiatrist opined that the Individual’s ASPD traits appear to be diminishing over the past few years
as the Individual matures but stated that their presence does worsen the prognosis for his OUD. Id. at 10.
5 Based on an online search for the doctor’s name, the DOE Psychiatrist found a business in Mexico described as “sale
of medicines” (rough translation from Spanish to English as specified in the Report) and a notation stating that the
business was “permanently closed.” Ex. 5 at 5.
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The Individual attempted to mitigate the security concerns regarding his drug use. He testified that
he grew up in an area where he chose the “wrong friends” who all used drugs. Tr. at 27. He stated
that he initially chose not to use drugs, but eventually he became curious and started using
marijuana, which he smoked for years. Id. He then started taking Percocet pills and eventually
started using heroin. Id. He admitted that he used heroin for eight years. Id. at 27-28. The Individual
testified that his withdrawal symptoms were horrible, his family hated that he was struggling with
drug use, and he got tired of wasting his paycheck on heroin, which motivated him to seek out the
TP. Id. at 28, 45-46. He stated on the date that he entered the TP, they gave him medication, but
the medication did not help him with the withdrawals. Id. at 28. He stated that the TP staff ignored
him when he asked them for help, so he checked himself out of the TP later that same day. Id. at
28.
The Individual also stated that after finishing his IV treatment with the doctor in Mexico, he
traveled back and forth from his U.S. residence to Mexico where he received therapy from the
doctor. Id. at 47. He stated that the therapy sessions were comprised of the doctor discussing with
him what led to his drug use, why he decided to stop using drugs, and possible future consequences
if the Individual decided to return to drug use. Id. The Individual admitted that he did not follow
the recommendations of his doctor in Mexico, nor did he comply with the recommendations of the
DOE Psychiatrist. Tr. at 24, 37, 48-49. The Individual testified that during his therapy, his doctor
in Mexico was aware that the Individual lived in the U.S., and he recommended that the Individual
should attend additional treatment in his residential area when he returned home from Mexico. Id.
at 48-49. The Individual indicated that although he could not recall the exact details of the doctor’s
recommendations, he thinks the doctor recommended that he attend “other therapy” and
“[something] like AA meetings.” Id. at 48-49. He asserted that he trusted the doctor, however, he
admitted that he chose not to follow the doctor’s recommendations because it was not mandatory,
and he felt confident in himself that he did not need to attend any therapy or similar treatment
again. Id. at 48-49. He stated that he was “strong enough to do it on [his] own[.]” Id. The Individual
stated that after he finished his therapy with the doctor in Mexico, he never used drugs again. Id.
at 26.
The Individual affirmed during the hearing that he did not comply with the DOE Psychiatrist’s
recommendations because he did not understand that the recommendations in the Report were
made because the DOE Psychiatrist wanted the Individual to follow the recommended treatment.
Id. at 24, 37. However, he subsequently stated that his reaction after reading the DOE Psychiatrist’s
Report was that he “honestly [does not] think [he] need[s] any therapy or anything[.]” Id. at 57-
58. He rationalized that he has done fine in maintaining his sobriety for almost five years with “no
help at all,” aside from his treatment from the doctor in Mexico and his prior attendance at AA as
part of his previous DWI. Id. at 24, 57.
The Individual testified that he has been sober from drug use since 2018, and he asserted that he
intends not use to any type of drug in the future. Tr. at 26, 29. He asserted that he is motivated to
stay sober because he now has a family including, a two-year-old son, is expecting a baby girl, and
does not want to return to the horrible life associated with his prior drug problem. Id.
During the hearing, the Individual was questioned about a report from his state’s Prescription
Monitoring Program which reflected that he obtained a prescription for Percocet on July 12, 2022.
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(Ex. 9 at 2). The Individual stated that he obtained the prescription from a dentist due to pain he
had in his wisdom tooth. Id. at 30. The Individual acknowledged that the dentist was located in a
different city than his regular dentist. Tr. at 39. He stated that during COVID, his regular dentist
was very busy and referred him to this particular dentist. Id. at 39-40. The Individual testified that
although he filled the opioid prescription in July 2022, he has never taken any of the pills and still
has them in their original prescription bottle. Id. at 31. He asserted that he has never felt any
cravings to take the pills despite having access to them. Id. The Individual indicated he was aware
of the risks associated with possessing this opiate given his history with narcotics. Id. at 42. When
asked why he did not take this prescription medication, the Individual asserted that he does not
want to take any sort of drug ever again. Id. at 43. However, he could not provide a reason for why
he has continued to keep all of the opioid pills in his possession. Id. When asked what his future
intentions are with his bottle of opioid pills, he stated “I’ll probably throw them away.” Id. at 45.
Regarding the Individual’s criminal history, the Individual did not contest the LSO’s allegations
regarding his three prior arrests, and his testimony regarding those incidents was consistent with
the information that he provided to the OPM investigator during the ESI. Tr. at 33-35; Ex. 8 at 74-
75. He stated that as a consequence of his 2019 arrest for DWI, he was sentenced to one year of
probation, one year of a court-mandated interlock device installed in his vehicle, and AA meetings
and community service. Id. at 50. He asserted that he complied with all terms of his sentence. Id.
Regarding his November 17, 2020, arrest, he stated that he was arrested because he drove a vehicle
other than his usual vehicle which required an interlock device. Id. at 35. He explained that on that
date, he had to go to work, but his usual vehicle was having engine problems. Id. He stated that it
was the last date that he was required to drive a car with an interlock device, and he thought to
himself, “[it’s] one day, I should be fine.” Id. at 35. Therefore, he chose to drive his newer truck
instead of complying with the interlock device requirement. The Individual stated that as a result
of that arrest, he had to attend a court date and pay a fine, both of which he completed, and there
is no further action pending regarding that arrest. Id.
The DOE Psychiatrist testified at the hearing after observing the Individual’s testimony. The DOE
Psychiatrist ultimately opined that as of the date of the hearing, he would not change his
unfavorable opinion in that there is not adequate evidence of rehabilitation or reformation of the
Individual’s OUD. Id. at 71. He stated that “rehabilitation” usually means “completion of a
rehabilitation program such as a recognized 30-day inpatient program, a six-week intensive
outpatient program, or an extended outpatient program through some recognized person, or body,
or hospital.” Id. at 64. He also testified that based on his experience, “‘reformation’ often means a
more thorough going, personally integrated change in their whole life with regard to things that
might cause you to go back into substance use disorder.” Id. The DOE Psychiatrist explained that
rehabilitation and reformation represents “a little higher standard than just a certain period of time
going by and not having any proven evidence of substance use problems.” Id. at 64-65. The DOE
Psychiatrist expressed that he has some suspicion about the Individual’s dentist visit in which he
obtained Percocet because Percocet was the Individual’s entry drug into opiates which makes
Percocet especially dangerous for the Individual. Id. He concluded that it is very risky for the
Individual to keep the Percocet pills as OUD is a very difficult disorder to overcome; and, if the
Individual was really not going to take them, he would have disposed of them. Id. at 70.
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The DOE Psychiatrist opined that he was partly skeptical and suspicious of some of the elements
of treatment that the Individual received from his doctor in Mexico because it is risky that the
doctor gave him intravenous medications at a family member’s home. Id. at 66. The DOE
Psychiatrist was not familiar with this method of substance abuse treatment, and he was unable to
assure the quality of the program or the competence of the provider. Id. at 65-67. Accordingly, the
DOE Psychiatrist concluded that the Individual had not completed a legitimate substance abuse
treatment program. Id. at 66-67.
V. ANALYSIS
A. Guideline E Considerations
The following conditions could mitigate a security concern 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 . . . . 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
(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.
Regarding the first mitigating factor, the Individual did not make a prompt, good-faith effort to
correct the concealment before he was confronted with the facts, especially regarding the treatment
for drug use which he sought with a doctor in Mexico. Not only did he omit this treatment on his
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QNSP, but he also omitted it during the ESI. The Individual asserts that he unintentionally omitted
his drug treatment on his QNSP and attempted to mitigate this omission by stating that he
subsequently told the OPM investigator “everything” and “didn’t leave anything out” during the
ESI. However, the facts of the record show otherwise. It was only during his CI with the DOE
Psychiatrist, which occurred eight months after the ESI, that he first disclosed that he had sought
treatment for his substance abuse problem with a doctor in Mexico. Given that the Individual did
not report his prior substance abuse treatment in Mexico until nine months after his QNSP, and
after he had the opportunity to disclose but chose not to do so during the ESI, I find that this
disclosure is not a prompt, good-faith effort to correct he omission before being confronted with
the facts.
The second mitigating factor is irrelevant to this matter because the Individual has not asserted
that he was advised by any person to omit his drug use or prior drug treatment on his QNSP or
ESI.
Regarding the third mitigating factor, I find that the Individual’s omission is not minor in that it
served to conceal significant derogatory information about his prior drug use and the treatment he
sought to address it. Moreover, the record contains unresolved inconsistencies and questions which
prevent me from finding that it happened under circumstances that it is unlikely to recur. Given
the Individual’s prior history with Percocet, I am skeptical that his testimony regarding how he
recently obtained it and why he still possesses it is a candid explanation for his behavior. Therefore,
the record demonstrates that the Individual may still be exhibiting a lack of candor.
Regarding the fourth mitigating factor, I do not find that the Individual has obtained counseling or
taken sufficient positive steps to alleviate the factors that contributed to his lack of candor. While
he asserts to have attended counseling with a doctor in Mexico, he did not present evidence to
show that it was a legitimate program. He also chose not to follow his doctor’s recommendation
to obtain therapy when he returned to his home in the U.S . Moreover, for the reasons stated in the
immediately preceding paragraph, I remain concerned that he is continuing to exhibit a lack of
candor. Accordingly, I cannot conclude that his behavior is unlikely to recur.
The remaining mitigating factors do not apply to the facts of this case. The fifth mitigating factor
does not apply because the LSO did not allege that the Individual’s actions made him vulnerable
to exploitation, manipulation, or duress. The sixth mitigating factor is irrelevant to this matter
because the Individual has not asserted nor is there any evidence that the LSO’s allegations were
unsubstantiated or from a source of questionable reliability. Finally, the seventh mitigating factor
is not relevant to his matter because the Guideline E concerns do not revolve around association
with persons involved in criminal activities.
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B. Guideline H Considerations
The Individual’s prior significant use of illegal drugs raises security concerns under Guideline H.
Adjudicative Guidelines at ¶ 25(a). Conditions that could mitigate security concerns under
Guideline H include:
(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 eligility:
(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
Adjudicative Guidelines at ¶ 26.
Regarding the first mitigating factor under ¶ 26(a), the Individual testified that he has been
abstinent from drug use since 2018. The record does not contain contradictory evidence indicating
that the Individual currently continues to illegally use drugs, however, the Individual has engaged
in behavior that continues to casts doubt on his judgment and gives me concern that his substance
use may recur. Specifically, the Individual has demonstrated a pattern of not complying with
substance abuse treatment recommendations. First, he chose to impulsively leave his first
treatment program within the first date of treatment. Then, he sought treatment for drug use from
a doctor in Mexico, but ultimately chose not to comply with the doctor’s recommendations for
additional treatment because it was not mandatory, and he believed that he did not need to attend
any further therapy or similar treatment. More recently, he asserted that he did not follow the DOE
Psychiatrist’s recommendations because he was not aware that he was supposed to comply with
them, however, he subsequently acknowledged that he does not believe he needs any therapy.
Finally, his decision to obtain a prescription for Percocet from a dentist who was not his regular
dentist, and then keep the Percocet pills although he asserted that he will not use them, is a
concerning indicator given his history of misusing Percocet and diagnosis of OUD. Accordingly,
I do not find that the behavior is unlikely to recur or does not cast doubt on the Individual’s good
judgment.
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Regarding the second mitigating factor, I credit the Individual for acknowledging his drug
involvement and substance misuse, albeit that some of that disclosure was not initially
forthcoming. I also credit the Individual for attempting to seek treatment, albeit that it was an
unconventional treatment in Mexico and, due to the record, the DOE Psychiatrist was not able to
assure the quality of the program or the competence of the provider. However, the Individual’s
decision to not comply with his doctor’s recommendations undermines his initial actions of
seeking treatment. Moreover, the fact that he has not complied with any of the DOE Psychiatrist’s
recommendations nor, as indicated above, presented sufficient evidence to demonstrate
rehabilitation or reformation indicates that he has not provided sufficient evidence of actions to
overcome his problem.
The third mitigating factor does not apply because the Individual’s substance abuse disorder did
not occur after a severe or prolonged illness for which drugs were prescribed.
The fourth mitigating factor does not apply because the Individual has not completed a prescribed
drug treatment program.
C. Guideline J Considerations
Conditions that could mitigate security concerns under Guideline J include:
(a) so much time has elapsed since the criminal behavior happened, or it happened
under such unusual circumstances that it is unlikely to recur and does not cast
doubt on the individual’s reliability, trustworthiness, or good judgment;
(b) the individual was pressured or coerced into committing the act and those
pressures are no longer present in the person’s life;
(c) no reliable evidence to support that the individual committed the offense; and
(d) there is evidence of successful rehabilitation; including, but not limited to, the
passage of time without recurrence of criminal activity, restitution, compliance
with the terms of parole or probation, job training or higher education, good
employment record, or constructive community involvement.
Adjudicative Guidelines at ¶ 32.
Regarding the first mitigating factor, the Individual’s most recent criminal arrest and charge
occurred relatively recently in November 2020. Moreover, the evidence of record leads me to
conclude that the circumstances under which the criminal behavior occurred is not unusual. The
Individual had a history of criminal convictions and knew that he had been on probation for a year
because of his 2019 DWI conviction. The Individual had a history of criminal convictions and
knew that he was on probation. He also knew that one of the terms of his probation was to drive
with a vehicle that has a required interlock device. Nevertheless, he chose to violate the terms of
his probation after weighing the risk of getting caught. Without more, this appears to be a routine
circumstance with which anybody under probation would have to contend. The evidence therefore
does not indicate that his conduct resulted from unusual circumstances such that I can conclude it
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is unlikely to recur. Given the relatively recent arrest and the remaining concerns about the
Individual’s judgment, I cannot find that he has satisfied the conditions of the first mitigating
factor.
The second and third mitigating factors to not apply to this matter because the Individual has not
asserted that he was pressured or coerced into committing the criminal behavior, and he admitted
to all of the Guideline J allegations put forth by the LSO.
Regarding the fourth mitigating factor, I credit the Individual for showing improvement in his most
recent work history as evidenced by his letters of recommendation from his recent and current
supervisors who hold him in high regard and find him trustworthy. However, he has not presented
sufficient evidence to show successful rehabilitation. First, his latest criminal arrest and charge
occurred relatively recently in November 2020, as stated in my reasoning above. In addition, by
driving without an interlock device, not only did he incur a new arrest and conviction in 2020, but
he also violated the terms of his probation from his 2019 DWI conviction. Moreover, he has also
not presented any evidence of restitution, subsequent job training or higher education, or
constructive community involvement. I find that, on balance, there is insufficient evidence to
satisfy the fourth mitigating factor.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
the DOE that raised security concerns under Guidelines E, H, and J of the Adjudicative Guidelines.
After considering all of 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’s access authorization should not be granted.
This Decision may be appealed in accordance with the procedures set forth at 10 C.F.R. § 710.28.
Brenda B. Balzon
Administrative Judge
Office of Hearings and Appeals
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