PSH-23-0087

*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: May 16, 2023 ) Case No.: PSH-23-0087
)
__________________________________________)
Issued: July 10, 2023
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Administrative Judge Decision
____________________________
Phillip Harmonick, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (the Individual) to hold an access
authorization under the United States Department of Energy’s (DOE) regulations, set forth at 10
C.F.R. Part 710, “Procedures for Determining Eligibility for Access to Classified Matter and
Special Nuclear Material.”1 As discussed below, after carefully considering the record before me
in light of the relevant regulations and the National Security Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive
Position (June 8, 2017) (Adjudicative Guidelines), I conclude that the Individual’s access
authorization should not be restored.
I. BACKGROUND
The Individual was first granted a DOE security clearance in 2010. Exhibit (Ex.) 11 at 43–44.2 On
September 29, 2020, the Individual completed a Questionnaire for National Security Positions
(QNSP) in connection with a routine reinvestigation of his continued eligibility for access
authorization. Id. at 48. The Individual disclosed on the QNSP that he had been arrested and
charged with Assault and Battery in 2018, and that he subsequently pleaded guilty to Misdemeanor
Disorderly Conduct. Id. at 39–40. The Individual also disclosed that he had been arrested and
charged with Misdemeanor Domestic Assault in 2013, and that the charges related to that arrest
had been dismissed. Id. at 40–41.
In his response to the QNSP, the Individual denied having illegally used any drugs or controlled
substances in the prior seven years, ever having illegally used any drugs while possessing a security
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 The internal pagination of numerous exhibits offered by the local security office does not correspond to the number
of pages included in the exhibits. For example, due to an unnumbered first page, the pagination of Exhibit 11 begins
at “1” on the second page. This Decision cites to pages in the order in which they appear in exhibits without regard
for their internal pagination.
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clearance, or ever having sought counseling or treatment as a result of his use of illegal drugs or
controlled substances. Id. at 42–43. The Individual also denied having failed to file or pay federal
or state taxes in the prior seven years or having fallen into delinquency on routine financial
accounts in the prior seven years. Id. at 44–46.
On November 17, 2020, an investigator (Investigator) interviewed the Individual as part of the
investigation into the Individual’s continued eligibility for access authorization. Id. at 54. The
Investigator confronted the Individual with a copy of the Individual’s credit report which showed
that he had fallen into delinquency on numerous routine accounts on which he owed over $20,000.
Id. at 58–61, 325–29. The Individual also admitted that he failed to file federal or state personal
income tax returns, or to pay federal or state personal income taxes, for the 2018 and 2019 tax
years. Id. at 61–62. The Individual responded in the negative when asked by the Investigator
whether he had used illegal drugs, or sought treatment related to illegal drug use, in the prior seven
years. Id. at 58.
The Investigator subsequently obtained medical records establishing that the Individual: had used
heroin and cocaine, and misused prescription Percocet, while possessing a DOE security clearance;
was diagnosed with Substance Abuse and Substance Dependence under the Diagnostic and
Statistical Manual of Mental Disorders – Fourth Edition (DSM-4); was prescribed Suboxone;3 and
relapsed after having obtained drug-related treatment from multiple facilities. Id. at 71–85, 103–
304. The local security office (LSO) issued the Individual a letter of interrogatory (LOI)
concerning the information obtained through the investigation. Ex. 12 at 1–2. In his response, the
Individual admitted that he had engaged in daily illegal drug use for years and that he intentionally
failed to disclose his illegal drug use and treatment on the QNSP due to “fear and shame.” Id. at 9.
On December 20, 2022, the Individual’s employer notified DOE that it had discovered the
Individual’s use of Suboxone, which the Individual had not disclosed to his employer, after a drug
test following a workplace accident. Ex. 13, Attachment (Att.).
The LSO issued the Individual a letter notifying him that it possessed reliable information that
created substantial doubt regarding his eligibility for access authorization. Ex. 4 at 1–2. In a
Summary of Security Concerns (SSC) attached to the letter, the LSO explained that the derogatory
information raised security concerns under Guideline E (Personal Conduct), Guideline F
(Financial Considerations), Guideline H (Drug Involvement and Substance Misuse), Guideline I
(Psychological Conditions), and Guideline J (Criminal Conduct) of the Adjudicative Guidelines,
and prohibited the LSO from granting or renewing the Individual’s security clearance under 50
U.S.C. § 3343(b) (Bond Amendment). Id. at 4–8.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 6. 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 thirteen exhibits (Exs. 1–13) and the Individual submitted four
3 Suboxone is the brand name of a form of Buprenorphine, a medication prescribed to treat opioid use disorder.
Buprenorphine, SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION (June 9, 2023),
samhsa.gov/medications-substance-use-disorders/medications-counseling-related-conditions/buprenorphine (last
visited June 16, 2023).
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exhibits (Exs. A–D). The Individual testified on his own behalf. Hearing Transcript (Tr.) at 3, 14.
The LSO did not call any witnesses to testify. Id. at 3.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline E of the Adjudicative Guidelines as the first basis for its determination
to suspend the Individual’s access authorization. Ex. 4 at 4–5.
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 and substance misuse, or his
drug-related treatment, on the QNSP or to the Investigator; work-related discipline due to being
absent from work and unable to report his absence while in drug-related treatment; and failure to
disclose his Suboxone prescription to his employer as required. Ex. 4 at 4–5. The LSO’s allegations
that the Individual deliberately omitted or concealed his illegal drug use, substance misuse, and
drug-related treatment justify its invocation of Guideline E.4 Adjudicative Guidelines at ¶ 16(a)–
(b).
The LSO cited Guideline F of the Adjudicative Guidelines as the second basis for its determination
to suspend the Individual’s access authorization. Ex. 4 at 5. “Failure to live within one’s means,
satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or
unwillingness to abide by rules and regulations, all of which can raise questions about an
individual’s reliability, trustworthiness, and ability to protect classified or sensitive information.”
Adjudicative Guidelines at ¶ 18. The SSC cited the Individual’s delinquent debts revealed through
the background investigation, which the LSO calculated totaled $21,798, and the Individual’s
failure to file federal or state personal income tax returns or to pay federal or state personal income
taxes for the 2018 tax year.5 Ex. 4 at 5. The LSO’s allegations that the Individual demonstrated an
inability or unwillingness to satisfy his debts, and failed to file federal and state personal income
tax returns or pay federal and state personal income taxes as required, justify its invocation of
Guideline F. Adjudicative Guidelines at ¶ 19(a)–(b), (f).
The LSO cited Guideline H of the Adjudicative Guidelines as the third basis for its determination
to suspend the Individual’s access authorization. Ex. 4 at 5–7. “The illegal use of controlled
substances, to include the misuse of prescription and non-prescription drugs, . . . can raise questions
4 The LSO’s allegation concerning the Individual having been disciplined by his employer on one occasion for being
absent from work without leave while receiving drug-related treatment does not, in of itself, raise security concerns
under Guideline E.
5 The LSO did not cite the Individual’s failure to timely file personal income tax returns or to pay personal income
taxes for the 2019 tax year in the SSC.
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about an individual’s reliability and trustworthiness, both because such behavior may lead to
physical or psychological impairment and because it raises questions about a person’s ability or
willingness to comply with laws, rules, and regulations.” Adjudicative Guidelines at ¶ 24. The
SSC cited the Individual’s: illegal use of heroin, cocaine, and Percocet; drug-related treatment at
numerous facilities; failure to complete drug-related treatment; relapse following drug-related
treatment; and diagnosis with a substance abuse disorder (SUD). Ex. 4 at 5–7. The LSO’s
allegations that the Individual illegally possessed and used illegal drugs, including while having
been granted access authorization, diagnosis with SUD, and failure to successfully complete a drug
treatment program justify its invocation of Guideline H. Adjudicative Guidelines at ¶ 25(a), (c)–
(f).
The LSO also cited Guideline I as the fourth basis for its determination to suspend the Individual’s
access authorization. Ex. 4 at 7. “Certain emotional, mental, and personality conditions can impair
judgment, reliability, or trustworthiness. A formal diagnosis of a disorder is not required for there
to be a concern under this guideline.” Id. at ¶ 27. The SSC cited the Individual’s diagnosis with
SUD and drug-related treatment. Ex. 4 at 7. The LSO’s allegations that the Individual was
diagnosed with a condition that may impair his judgment, stability, reliability, or trustworthiness,
and that the Individual failed to follow a treatment plan prescribed to manage the condition,
justifies its invocation of Guideline I. Adjudicative Guidelines at ¶ 28(b), (d).
The LSO cited Guideline J (Criminal Conduct) of the Adjudicative Guidelines as the fifth basis
for its determination to suspend the Individual’s access authorization. Ex. 4 at 7–8. “Criminal
activity creates doubt about a person’s judgment, reliability, and trustworthiness. By its very
nature, it calls into question a person’s ability or willingness to comply with laws, rules, and
regulations.” Adjudicative Guidelines at ¶ 30. The SSC cited the Individual’s illegal drug use and
arrests for Assault and Domestic Violence. Ex. 4 at 7–8. The evidence that the Individual
committed criminal offenses justifies the LSO’s invocation of Guideline J. Adjudicative
Guidelines at ¶ 31(b).
The LSO cited the Bond Amendment as the final basis for its determination to suspend the
Individual’s access authorization. Ex. 4 at 8. Pursuant to the Bond Amendment, “a Federal agency
may not grant or renew a security clearance for a [] person who is an unlawful user of a controlled
substance or an addict.” 50 U.S.C. § 3343(b). According to DOE policy:
[a]n unlawful user of a controlled substance is any person who uses a controlled substance
and has lost the power of self-control with reference to the use of the controlled substance
or who is a current user of the controlled substance in a manner other than as prescribed by
a licensed physician. Such use is not limited to the use of drugs on a particular day, or
within a matter of days or weeks before, but rather that the unlawful use occurred recently
enough to indicate the individual is actively engaged in such conduct.
Memorandum from David M. Turk, Deputy Sec’y. of Energy, to Kathleen Hogan, Acting Under
Sec’y. for Sci. & Energy, et al., Revision of DOE Policy Regarding Application of the Bond
Amendment at 6 (April 23, 2021) (Revised Bond Amendment Policy). An addict is “any individual
who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or
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welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-
control with reference to his addiction.” 21 U.S.C. § 802(1).
Heroin, cocaine, and Percocet are controlled substances. 21 U.S.C. § 812; 21 C.F.R. § 1308.12.
The SSC cited the Individual’s admission to having used these substances on a daily basis for
several years while possessing access authorization and to having relapsed even after receiving
drug-related treatment in support of its invocation of the Bond Amendment. Ex. 4 at 8.
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) (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 or her 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. Id.
at § 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
In 2009, the Individual was arrested and charged with Misdemeanor Domestic Violence and
Assault after a physical altercation with a girlfriend over his relations with another woman. Ex. 11
at 91; Ex. 12 at 6; Tr. at 32 (admitting that he “broke her [home’s] back window and she ended up
getting burned accidentally”). The Individual pleaded guilty to Disorderly Conduct, and was
sentenced to pay a fine and serve one year of probation. Ex. 11 at 91.
The Individual was granted a DOE security clearance in 2010 in connection with his employment
by a DOE contractor. Id. at 43–44; see also Ex. D (indicating that the Individual has demonstrated
skill and a positive work ethic in his employment with the DOE contractor). That same year, the
Individual was prescribed Percocet after undergoing surgery. Ex. 11 at 63. After the Individual’s
prescription for Percocet expired, he began purchasing Percocet illegally from acquaintances
because he “liked how the medication made him feel . . . .” Id. The Individual used the illegally-
purchased Percocet on an approximately daily basis. Id.; Ex. 12 at 9.
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In September 2013, the Individual was arrested and charged with Misdemeanor Domestic Violence
and Assault after the Individual physically restrained his domestic partner during a dispute over
the Individual’s refusal to give her money to buy drugs. Ex. 11 at 40–41, 91; Ex. 12 at 6; Tr. at 33
(reflecting the Individual’s testimony that he “restrained her” after she initiated the altercation and
that he “didn’t assault her”). The charges were dismissed after the Individual’s domestic partner
refused to cooperate with the prosecuting agency. Ex. 11 at 91.
In 2014, the Individual began purchasing and using heroin and cocaine when he was unable to
obtain Percocet. Id. at 63. By 2015, the Individual was using heroin on a nearly daily basis, and
cocaine on days when he was unable to obtain heroin or Percocet. Id. at 63, 72; Ex. 12 at 9. In July
2015, the Individual was charged with Contempt of Court after failing to appear as a witness in a
judicial proceeding. Ex. 11 at 90. The Individual paid a fine to resolve the matter. Id.
In September 2016, the Individual voluntarily admitted himself to an inpatient facility for drug-
related treatment. Id. at 72, 104. Clinicians diagnosed the Individual with Opioid Use Disorder,
Severe, and Cocaine Abuse, Uncomplicated, under the DSM-4. Id. at 110. The clinicians
prescribed the Individual medication to control symptoms of withdrawal and recommended that
he remain in the facility for thirty days in order to “detox” and participate in Narcotics Anonymous
(NA) following discharge. Id. at 136. The Individual was absent from work while receiving
treatment from the facility, and was unable to communicate the reason for his absence from work
due to the facility’s “blackout” policy on outside communications by patients. Id. at 128; Ex. 12
at 20. The Individual’s employer disciplined him for failing to timely communicate his absence
from work. Ex. 11 at 26; Ex. 12 at 20. The Individual checked himself out of the facility after
twelve days of treatment in order to return to work and did not participate in NA. Ex. 11 at 146.
The Individual resumed using illegal drugs after his 2016 treatment, and admitted himself to a
second inpatient facility for drug-related treatment in 2017. Id. at 64. The Individual participated
in treatment for approximately three weeks, but relapsed soon after his discharge from the facility.
Id. The Individual returned to the facility several months later, and completed a thirty-day course
of treatment in June 2017. Id. at 64, 103. The Individual relapsed again soon after his completion
of the treatment. Id. at 64.
In May 2018, the Individual was arrested and charged with Misdemeanor Domestic Violence and
Assault after a dispute with his domestic partner escalated to a physical altercation. Id. at 87–88
(indicating that the Individual’s domestic partner alleged to the law enforcement officers who
responded to her emergency call that the domestic dispute began after she confronted him about
resuming use of crack cocaine, and that both the Individual and his domestic partner alleged to the
officers that the other had initiated the physical assault); but see Tr. at 33–34 (reflecting the
Individual’s testimony at the hearing that he restrained his domestic partner after she struck him
over his communications with another woman). The Individual pleaded guilty to Disorderly
Conduct and was ordered to undergo counseling and pay a fine. Ex. 11 at 89–90.
In November 2018, the Individual enrolled in treatment with a Medical Doctor (MD) who
diagnosed him with Drug Abuse Disorder and prescribed him Suboxone to manage his cravings.
Id. at 81–82, 148. The Individual transferred to another treatment provider (Outpatient Program)
after the facility at which the MD was employed closed. Id. at 82. The Individual has attended the
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Outpatient Program on an ongoing basis since 2020. Ex. B. The Outpatient Program prescribed
the Individual Suboxone, provided him with substance abuse counseling, and required him to
undergo periodic drug testing. Id.; see also Ex. 11 at 205–304 (reflecting notes prepared by
clinicians employed by the Outpatient Program concerning the Individual’s treatment and
progress); Ex. A (reflecting the results of drug testing administered by the Outpatient Program
from 2020 to 2023 showing no traces of drug use, except for substances attributable to the
Individual’s prescribed Suboxone).
On September 29, 2020, the Individual signed and submitted the QNSP. Ex. 11 at 48. As part of
submitting the QNSP, the Individual certified that its contents were “true, complete, and correct to
the best of [his] knowledge and belief and [were] made in good faith.” Id. The Individual checked
boxes marked “No” on the QNSP in response to questions concerning whether he had illegally
used any drugs or controlled substances in the prior seven years, ever illegally used any drugs
while possessing a security clearance, or ever sought counseling or treatment as a result of his use
of illegal drugs or controlled substances. Id. at 42–43. The Individual also checked boxes marked
“No” on the QNSP in response to questions asking whether he had failed to file or pay Federal or
state taxes in the prior seven years or had fallen into delinquency on routine financial accounts in
the prior seven years. Id. at 44–46.
The Investigator interviewed the Individual on November 17, 2020, concerning the Individual’s
continued eligibility for access authorization. Id. at 54. The Investigator asked the Individual each
of the questions on the QNSP concerning illegal drug use and illegal drug involvement, and the
Individual denied any illegal drug use or drug involvement. Id. at 58. The Individual admitted that
he had received counseling in September 2016, but represented that it was for depression instead
of illegal drug use. Id. at 54. The Investigator confronted the Individual with a copy of the
Individual’s credit report which showed that he had fallen into delinquency on numerous routine
accounts on which he owed over $20,000. Id. at 58–61, 325–29. The Individual also admitted that
he failed to file federal or state personal income tax returns, or to pay federal or state personal
income taxes, for the 2018 and 2019 tax years. Id. at 61–62.
On November 23, 2020, the Investigator obtained records of the Individual’s drug-related
treatment. Id. at 71. The Investigator conducted another interview of the Individual on May 11,
2021. Id. at 62. During the interview, the Individual admitted that he had falsely denied illegal
drug use and treatment on the QNSP and in the prior interview with the Investigator “because he
was scared he could lose his job.” Id. at 63.
The LSO issued the LOI to the Individual on October 25, 2022. Ex. 12 at 1. In his response, the
Individual admitted that he had engaged in daily illegal drug use for years while possessing access
authorization and that he intentionally failed to disclose his illegal drug use and treatment on the
QNSP due to “fear and shame.” Id. at 9. Regarding his financial situation, the Individual said that
he “believe[d] [he] did file taxes in 2018” and represented that he had paid $7,000 to the IRS. Id.
at 15–16. The Individual indicated that he had not yet taken action to resolve his unpaid taxes for
the 2019 tax year or any of his delinquent debts. Id. at 15. On December 20, 2022, the Individual’s
employer notified DOE that it had discovered the Individual’s use of Suboxone, which the
Individual had not previously disclosed to his employer, through a mandatory drug test following
a workplace accident earlier that month. Ex. 13, Att. Documentation provided by the employer
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indicated that the Individual was suspended without pay and warned that any further misconduct
could result in termination of his employment. Id.
At the hearing, the Individual testified that he had not engaged in illegal drug use or substance
misuse since 2019, and that he had not experienced any cravings to use illegal drugs for over one
year. Tr. at 19, 39. He represented that he had disassociated from persons with whom he previously
used illegal drugs. Id. at 19. The Individual acknowledged that he had “made mistakes,” but
represented that he “turn[ed] [his] life around and correct[ed] the issues that [he] had in the past.”
Id. at 12; see also Ex. C (reflecting the opinion of a former school counselor of the Individual that
he had demonstrated significant personal development in his life); Ex. E (reflecting the opinion of
a state court judge that the Individual had made “significant changes in his life”). The Individual
represented that his desire to “be there for [his children]” motivated him to abstain from illegal
drug use and maintain his lifestyle changes. Tr. at 31.
The Individual testified that he lives “paycheck to paycheck.” Id. at 21. He denied having resolved
any of the financial delinquencies set forth in the SSC. Id. at 21–22. He has not taken any action
concerning his tax situation since responding to the LOI and does not know the outstanding balance
of his unpaid personal income taxes. Id. at 22–23, 40.
V. ANALYSIS
A. Bond Amendment
Pursuant to the Bond Amendment, “a Federal agency may not grant or renew a security clearance
for a covered person who is an unlawful user of a controlled substance or an addict.” 50 U.S.C.
§ 3343(b). Thus, if the Individual is an unlawful user of heroin or cocaine or an addict, his access
authorization may not be restored based on a meritorious waiver or mitigation of the security
concerns associated with his drug use. Adjudicative Guidelines at app. B, ¶ 1.
The Individual represented that he has not used illegal drugs or engaged in substance misuse since
2019 and produced the results of drug testing conducted on an approximately monthly basis since
November 2020 to corroborate his claims. The voluminous drug testing records provide substantial
support for the Individual’s claimed abstinence from illegal drug use and substance misuse.
Moreover, the Individual denied having experienced cravings or desires to use illegal drugs for
over one year and expressed the intention to refrain from illegal drug use in the future. As the
Individual has not used illegal drugs for over three years, I find that he is not an unlawful user of
a controlled substance. Revised Bond Amendment Policy at 6. In light of the Individual’s ability
to avoid relapse for such a significant period of time, and his denial of any urges to use illegal
drugs, I find that he is not an “addict” under the Bond Amendment.
Having concluded that the Individual is not an unlawful user of a controlled substance or an addict,
I find that he is not barred from holding access authorization pursuant to the Bond Amendment.
B. Guideline E
Conditions that could mitigate security concerns under Guideline E include:
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(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.
The Individual only admitted his illegal drug use and treatment to the Investigator after being
confronted with information obtained during an investigation into the Individual’s eligibility for
access authorization, and the Individual admitted that he intentionally withheld the information
because he feared losing his job. Moreover, the Individual’s employer did not learn of his illegal
drug use and treatment until two years after the Investigator when the Individual’s prescription
Suboxone was detected on a drug test following a workplace accident. For these reasons, the first
mitigating condition is inapplicable. Id. at ¶ 17(a).
The second mitigating condition is inapplicable because the Individual did not assert that he relied
on the advice of another person when he failed to disclose his illegal drug use and treatment. Id. at
¶ 17(b).
The Individual repeatedly failed to disclose information material to his eligibility for access
authorization as required by DOE and indicated that he did so intentionally to avoid negatively
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impacting his career. Moreover, the Individual continued to hide his illegal drug use and treatment
from his employer for years after it was discovered by the Investigator. In light of the significance
of the information that the Individual sought to conceal to his eligibility for access authorization,
and his failure to demonstrate changed behavior by disclosing his illegal drug use and treatment
following the uncovering of the information by the Investigator, I find the third mitigating
condition inapplicable. Id. at ¶ 17(c).
The Individual received treatment for several years, and reportedly had not used illegal drugs for
one year, prior to completing the QNSP. As the Individual had been abstaining from illegal drugs
and receiving treatment for some time prior to his failure to disclose his illegal drug use and
treatment on the QNSP, I find that the Individual’s dishonesty was likely not the product of his
addiction and therefore is not amenable to resolution through treatment for drug addiction.
Moreover, in light of the Individual’s failure to come forward to his employer and disclose his
illegal drug use and treatment even after admitting it to the Investigator, I find that he did not take
positive steps to alleviate the factors giving rise to the security concerns when he had the
opportunity. For these reasons, I am not convinced that the Individual will come forward with
derogatory information as required in the future. Thus, the fourth mitigating condition is
inapplicable. Id. at ¶ 17(d).
The fifth mitigating condition is inapplicable because the LSO did not allege that the Individual’s
conduct created a special vulnerability to exploitation, manipulation, or duress. Id. at ¶ 17(e). The
sixth mitigating condition is inapplicable because the LSO’s allegations did not rely on
unsubstantiated information or information from sources of questionable reliability. Id. at ¶ 17(f).
The LSO did not allege that the Individual associated with persons engaged in criminal conduct,
and thus the seventh mitigating condition is inapplicable. Id. at ¶ 17(g).
For the reasons indicated above, I find that none of the mitigating conditions under Guideline E
are applicable in this case. Accordingly, I find that the Individual has not resolved the security
concerns asserted by the LSO under Guideline E.
C. Guideline F
Conditions that could mitigate security concerns under Guideline F include:
(a) the behavior happened so long ago, was so infrequent, or occurred under such
circumstances that it is unlikely to recur and does not cast doubt on the individual’s
current reliability, trustworthiness, or good judgment;
(b) the conditions that resulted in the financial problem were largely beyond the person’s
control (e.g., loss of employment, a business downturn, unexpected medical
emergency, a death, divorce or separation, clear victimization by predatory lending
practices, or identity theft), and the individual acted responsibly under the
circumstances;
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(c) the individual has received or is receiving financial counseling for the problem from a
legitimate and credible source, such as a non-profit credit counseling service, and there
are clear indications that the problem is being resolved or is under control;
(d) the individual initiated and is adhering to a good-faith effort to repay overdue creditors
or otherwise resolve debts;
(e) the individual has a reasonable basis to dispute the legitimacy of the past-due debt
which is the cause of the problem and provides documented proof to substantiate the
basis of the dispute or provides evidence of actions to resolve the issue;
(f) the affluence resulted from a legal source of income; and,
(g) the individual has made arrangements with the appropriate tax authority to file or pay
the amount owed and is in compliance with those arrangements.
Adjudicative Guidelines at ¶ 20.
The Individual remains, by his own description, significantly financially burdened and living
paycheck to paycheck despite years of steady employment and abstinence from illegal drugs, and
the Individual has presented no information to suggest that this situation is likely to improve in the
near future. As the Individual’s financial difficulties are ongoing and show no signs of abatement,
I find the first mitigating condition inapplicable. Id. at ¶ 20(a).
The second mitigating condition is inapplicable because the Individual’s financial situation is not
the product of an external event outside of his control and he has not demonstrated evidence that
he has acted responsibly to resolve his delinquent debts since beginning his recovery from illegal
drug abuse. Id. at ¶ 20(b). The third mitigating condition is inapplicable because the Individual has
not received financial counseling. Id. at ¶ 20(c).
The fourth mitigating condition is inapplicable because the Individual has not entered into any
arrangements to resolve his debts. Id. at ¶ 20(d). The fifth mitigating condition is inapplicable
because the Individual does not dispute the legitimacy of his debts. Id. at ¶ 20(e). The sixth
mitigating condition is inapplicable because the LSO did not allege that the Individual displayed
unexplained affluence. Id. at ¶ 20(f). The final mitigating condition is inapplicable because the
Individual has not presented evidence to corroborate his belief that he filed personal income tax
returns for the 2018 tax year, and admits that he is unaware of the extent of his unpaid personal
income taxes and has taken no action to resolve them. Id. at ¶ 20(g).
For the reasons indicated above, I find that none of the mitigating conditions under Guideline F
are applicable in this case. Accordingly, I find that the Individual has not resolved the security
concerns asserted by the LSO under Guideline F.
D. Guideline H
Conditions that may mitigate security concerns under Guideline H include:
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(a) the behavior happened so long ago, was so infrequent, or happened under such
circumstances that it is unlikely to recur or does not cast doubt on the individual’s
current reliability, trustworthiness, or good judgment;
(b) the individual acknowledges his or her drug involvement and substance misuse,
provides evidence of actions taken to overcome this problem, and has established a
pattern of abstinence, including, but not limited to:
(1) disassociation from drug-using associates and contacts;
(2) changing or avoiding the environment where drugs were used; and
(3) providing a signed statement of intent to abstain from all drug involvement and
substance misuse, acknowledging that any future involvement or misuse is
grounds for revocation of national security eligibility;
(c) abuse of prescription drugs was after a severe or prolonged illness during which
these drugs were prescribed, and abuse has since ended; and
(d) satisfactory completion of a prescribed drug treatment program, including, but not
limited to, rehabilitation and aftercare requirements, without recurrence of abuse,
and a favorable prognosis by a duly qualified medical professional.
Id. at ¶ 26.
The Individual denied having used illegal drugs since 2019 and has produced robust corroborating
evidence of this claim via years of drug testing from the Outpatient Program. Moreover, the
Individual has received drug-related treatment on a continuous basis for approximately five years
and reports having disassociated from persons with whom he used to use illegal drugs.
Cumulatively, I find that this positive record of treatment and abstinence from illegal drugs
indicates that the Individual’s reliability, trustworthiness, and judgment are no longer impaired by
drug use and that the Individual’s illegal drug use is unlikely to recur. Thus, I find the first
mitigating condition applicable. Id. at ¶ 26(a).6 On the basis of this evidence, I find that the
Individual has resolved the security concerns asserted by the LSO under Guideline H.
E. Guideline I
Conditions that could mitigate security concerns under Guideline I include:
6 Some of this evidence implicates the second and fourth mitigating conditions under Guideline H. I find the second
mitigating condition inapplicable because the Individual did not provide the signed statement of intent to abstain from
all drug involvement referred to therein. Adjudicative Guidelines at ¶ 26(b). The third mitigating condition is not
applicable because the Individual did not experience a severe or prolonged illness before he began abusing prescription
drugs. Id. at ¶ 26(c). The fourth mitigating condition is inapplicable because the Individual relapsed multiple times
following treatment and no medical professional has provided a prognosis for the Individual’s recovery. Id. at ¶ 26(d).
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(a) the identified condition is readily controllable with treatment, and the individual
has demonstrated ongoing and consistent compliance with the treatment plan;
(b) the individual has voluntarily entered a counseling or treatment program for a
condition that is amenable to treatment, and the individual is currently receiving
counseling or treatment with a favorable prognosis by a duly qualified mental
health professional;
(c) [a] recent opinion by a duly qualified mental health professional employed by, or
acceptable to and approved by, the U.S. Government [indicates] that an individual’s
previous condition is under control or in remission, and has a low probability of
recurrence or exacerbation;
(d) the past psychological/psychiatric condition was temporary, the situation has been
resolved, and the individual no longer shows indications of emotional instability;
and,
(e) there is no indication of a current problem.
Id. at ¶ 29.
The Individual has received treatment for SUD for approximately five years and has provided
nearly three years of drug testing results to support his claim to have abstained from illegal drug
use since 2019. In light of the Individual’s lengthy treatment and abstinence from illegal drugs, as
well as his commitment to abstaining from illegal drug use in the future, I find that there is no
indication of a current problem. Id. at ¶ 29(e).7 In light of the evidence that the illegal drug use that
led to the Individual’s diagnosis with SUD is no longer a problem, I find that the Individual has
resolved the security concerns asserted by the LSO under Guideline I.
F. Guideline J
Conditions that could mitigate a security concern 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; or,
(d) there is evidence of successful rehabilitation; including, but not limited to, the
passage of time without recurrence of criminal activity, restitution, compliance with
7 While some of the other mitigating conditions under Guideline I might be applicable, I cannot make such a
determination without testimony or documentation from a treatment provider concerning the details of the Individual’s
participation in treatment and prognosis for recovery. Absent such information, I find the first four mitigating
conditions under Guideline I are inapplicable. Adjudicative Guidelines at ¶ 29(a)–(d).
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the terms of parole or probation, job training or higher education, good employment
record, or constructive community involvement.
Id. at ¶ 32.
The Individual’s last alleged act of domestic violence was in 2018, approximately five years prior
to the hearing. Although this is a lengthy period of time without alleged criminal activity, similar
periods of time elapsed between the Individual’s alleged acts of domestic violence in 2009, 2013,
and 2018. Given the Individual’s history of having been accused of domestic violence after lengthy
periods of time without such accusations, I am not convinced that the passage of time mitigates
the security concerns presented by the Individual’s arrests. The Individual argued that his alleged
criminal activity was unlikely to recur in light of his separation from his former domestic partner
and discontinuation of illegal drug use; I am not convinced that these circumstances resolve the
security concerns because the Individual’s 2009 offense involved a woman other than his former
domestic partner and pre-dated his illegal drug use. Accordingly, I am not convinced that the
Individual’s alleged criminal conduct will not recur and therefore find the first mitigating condition
inapplicable. Id. at ¶ 32(a).
The second mitigating condition is inapplicable because the Individual did not assert that he was
pressured or coerced into committing any of the offenses cited by the LSO. Id. at ¶ 32(b). Although
the Individual denied that he committed the acts of alleged domestic violence involving his
domestic partner in 2013 and 2018, the investigative report compiled by the Investigator
documenting the Individual’s arrest and charges provides evidence that he committed the offenses
and, given the record in this case, the Individual’s denial is insufficient in of itself to carry his
burden of proof in the absence of corroborating evidence that the Individual was falsely accused.
Id. at ¶ 32(c).
The Individual argued that his employment record, volunteerism, character references, and passage
of time without having allegedly committed criminal offenses as considerations warranting
restoration of his access authorization. However, the Individual did not provide documentation
concerning the extent of any volunteerism in which he engaged, the Individual’s employer has
suspended him without pay and threatened his termination within the past year for misconduct,
and I am not convinced that the passage of time mitigates the security concerns related to the
Individual’s criminal conduct. I find that the evidence of mitigation provided by the Individual’s
character references are insufficient to overcome the concerns raised by his history of unlawful
conduct. For these reasons, I find the fourth mitigating condition inapplicable. Id. at ¶ 32(d).
Having concluded that none of the mitigating conditions under Guideline J are applicable in this
case, I find that the Individual has not resolved the security concerns asserted by the LSO under
Guideline J.
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, Guideline F, Guideline H, Guideline I, and
Guideline J of the Adjudicative Guidelines. After considering all the relevant information,
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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 security concerns set forth in the Summary of Security Concerns
concerning Guidelines H and I, and to demonstrate that he is not prohibited from holding access
authorization pursuant to the Bond Amendment. However, the Individual has not brought forth
sufficient evidence to the resolve the security concerns set forth in the Summary of Security
Concerns concerning Guidelines E, F, and J. Accordingly, I have determined that the Individual’s
access authorization should not be restored. 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