PSH-22-0116

*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-22-0116
)
__________________________________________)
Issued: September 29, 2022
____________________________
Administrative Judge Decision
____________________________
Phillip Harmonick, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (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 January 29, 2021, the Individual completed and signed a Questionnaire for National Security
Positions (First QNSP) in connection with seeking access authorization. Exhibit (Ex.) 5 at 144. He
checked a box marked “no” on the First QNSP in response to a question asking whether he had
illegally used any drugs or controlled substances in the prior seven years. Id. at 137. On November
3, 2021, the Individual completed and signed a second QNSP (Second QNSP). Ex. 4 at 48. He
checked a box on the Second QNSP to deny any illegal drug use in the prior seven years. Id. at 40.
An investigator interviewed the Individual on December 1, 2021, as part of an investigation of the
Individual’s eligibility for access authorization. Ex. 5 at 68. During the interview, the Individual
disclosed that, from 2014 to 2016, he had used marijuana, cocaine, and “sassafras.”2 Id. at 68–70.
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 Sassafras oil can be used in the manufacture of 3,4-Methylenedioxymethamphetamine (MDMA), commonly known
as ecstasy. NOTICE – Safrole and Sassafras Oil are used in the Illicit Manufacture of MDMA, U.S. DEPARTMENT OF
JUSTICE, DRUG ENFORCEMENT ADMINISTRATION DIVERSION CONTROL DIVISION, deadiversion.usdoj.gov/chem_prog/
advisories/safrole.htm (last visited September 20, 2022).
- 2 -
The investigator’s summary of the interview indicated that the Individual said that he intentionally
provided false information on the QNSPs concerning his prior drug use because he feared that he
would not be able to obtain access authorization if he disclosed his drug use. Id. at 70.
The local security office (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 five exhibits (Ex. 1–5). The Individual did not submit any exhibits.
The Individual testified on his own behalf. Hearing Transcript (Tr.) at 3, 8. The LSO did not call
any witnesses to testify.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline E (Personal Conduct) of the Adjudicative Guidelines 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 cited the Individual’s failure to disclose his illegal drug
use on the First QNSP and Second QNSP, as well as his statement to the investigator that these
omissions were intentional. Ex. 1. The LSO’s allegation that the Individual deliberately omitted
derogatory information that he was required to disclose on the QNSP justifies its invocation of
Guideline E. Adjudicative Guidelines at ¶ 16(a).
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
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
- 3 -
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
On January 29, 2021, the Individual completed and signed the First QNSP.3 Ex. 5 at 144. He
checked a box marked “no” on the First QNSP in response to a question asking whether he had
illegally used any drugs or controlled substances in the prior seven years. Id. at 137. The Individual
denied having used illegal drugs, despite having done so on multiple occasions within the prior
seven years, because he “knew there was no paper trail” and he “did not think it would be brought
up in any way if [he] put ‘[n]o.’” Tr. at 24. As part of completing the First QNSP, the Individual
signed a form certifying that the contents of the First QNSP were “true, correct, and complete to
the best of [his] knowledge and belief” and that he understood that “a knowing and willful false
statement on this form can be punished by fine or imprisonment or both.” Ex. 5 at 144.
On November 3, 2021, the Individual completed and signed the Second QNSP. Ex. 4 at 48. He
checked a box on the Second QNSP denying any illegal drug use in the prior seven years. Id. at
40. The Individual signed a form certifying that the contents of the Second QNSP were “true,
correct, and complete to the best of [his] knowledge and belief” and that he understood that making
false statements could result in criminal penalties. Id. at 48.
Several days after submitting the Second QNSP, the Individual requested to have the Second
QNSP returned to him so that he could provide additional information. Ex. 2 at 2; Tr. at 25. The
Individual was advised that the Second QNSP could not be returned and that he should disclose
any additional information to the investigator. Ex. 2 at 2; Tr. at 25. The Individual requested to
have the Second QNSP returned in order to disclose his prior illegal drug use because the illegal
drug use had been raised during an interview for employment with United States Customs and
Border Protection, he “knew that there was a potential paper trail,” and he believed that if he had
“not attempted to switch it from [n]o to [y]es, that [he] would get flagged for the same thing.” Tr.
at 26.
The Individual met with the investigator for an interview on December 1, 2021. Ex. 5 at 68. During
the interview, the Individual disclosed that, on isolated occasions from 2014 to 2016, during which
time he was serving in the United States Armed Forces, he smoked marijuana, consumed
marijuana edibles, snorted cocaine, and used “sassafras.” Id. at 69–70; see also Ex. 4 at 34
(identifying the period of the Individual’s military service). The Individual told the investigator
that he had intentionally provided false information on the QNSPs when he denied having used
illegal drugs in the prior seven years “because he was afraid that he would not be able to obtain
his current job . . . [or] be able to obtain a [s]ecurity [c]learance if he told the truth about his drug
usage.” Ex. 5 at 70.
3 The Individual testified at the hearing that he completed the First QNSP in connection with an offer of employment
from United States Customs and Border Protection. Tr. at 21, 23.
- 4 -
On June 22, 2022, the Individual submitted a statement to the LSO in which he represented that
he accidentally failed to disclose his illegal drug use. Ex. 2 at 2. The Individual claimed that,
because he had previously completed the First QNSP, “most of the information was auto filled”
on the Second QNSP and that he “forgot to click yes on the drug portion . . . .” Id.
At the hearing, the Individual testified that his public service of more than one decade, including
service in the United States Armed Forces, and lack of unlawful behavior outside of his illegal
drug use, established that he was a reliable and trustworthy person. Tr. at 13–14. He also asserted
that he had matured as a person and was no longer “being a sheep” as he was when he used the
illegal drugs. Id. at 14–16. Moreover, he argued that his honesty to the investigator regarding his
omission on the QNSPs mitigated the security concerns. Ex. 2 at 2.
V. ANALYSIS
The LSO’s allegation that the Individual deliberately failed to disclose illegal drug use that he was
required to disclose on the QNSP justifies its invocation of Guideline E. Adjudicative Guidelines
at ¶ 16(a). Conditions that could 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,
(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 asserted that his false responses on the QNSPs denying illegal drug use were
isolated instances of untruthfulness and that he was otherwise a trustworthy, reliable person. He
also cited his affirmative efforts to disclose his illegal drug use after submitting the Second QNSP
- 5 -
as evidence of mitigation of the security concerns. These arguments potentially implicate the first
and third mitigating conditions under Guideline E.4
While the Individual disclosed his false responses on the QNSPs to the investigator, his disclosures
were neither prompt nor in good faith. Approximately ten months elapsed between the Individual’s
completion of the First QNSP and the date he sought to correct his false response on the Second
QNSP. Moreover, the Individual admitted that he only disclosed his illegal drug use after he
became concerned about a “paper trail” emerging that would reveal his untruthfulness. Supra p. 3.
Therefore, I find that the first mitigating condition under Guideline E is inapplicable. Adjudicative
Guidelines at ¶ 17(a).
The Individual asserts that his failures to disclose his illegal drug use on the QNSPs were isolated
incidents of untrustworthiness in his career of public service. Supra p. 4. While the only instances
of untruthfulness by the Individual alleged by the LSO were on the QNSPs, the seriousness of the
Individual’s untruthfulness weighs more heavily than the small number of documented instances
of untruthfulness. This is because the Adjudicative Guidelines indicate that failures to provide
truthful answers during national security investigative or adjudicative processes are of special
interest over and above other acts of untrustworthy conduct. Adjudicative Guidelines at ¶ 15.
Moreover, the Individual admitted that he falsely denied having used illegal drugs because he
perceived the circumstances of his illegal drug use to be of significant relevance to his eligibility
for access authorization. Thus, I find that the Individual’s false statements on the QNSPs cast
serious doubt on his trustworthiness and reliability. Accordingly, I find that the third mitigating
condition under Guideline E is inapplicable. Id. at ¶ 17(c).
For the aforementioned reasons, I find that the Individual’s omissions on the QNSPs raise serious
concerns as to his reliability and trustworthiness and that he has not established the applicability
of any of the mitigating conditions. Accordingly, 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
4 The second mitigating condition under Guideline E is inapplicable in this case because the Individual did not assert
that he relied on the advice of another person in completing the QNSPs. Adjudicative Guidelines at ¶ 17(b). The fourth
mitigating condition is inapplicable because the Individual has not identified any underlying factors that contributed
to his omissions and has not pursued counseling. Id. at ¶ 17(d). The fifth mitigating condition is inapplicable because
the LSO did not allege that the Individual had engaged in conduct that placed him at special risk of exploitation,
manipulation, or duress. Id. at ¶ 17(e). The sixth mitigating condition is irrelevant because the LSO’s allegations were
not based on sources besides the Individual himself. Id. at ¶ 17(f). The final mitigating condition is inapplicable
because the LSO has not alleged that the Individual associates with persons involved in criminal activities. Id. at
¶ 17(g).
- 6 -
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.
Phillip Harmonick
Administrative Judge
Office of Hearings and Appeals