PSH-23-0101

*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 7, 2023 ) Case No.: PSH-23-0101
)
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Issued: October 6, 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
restored.
I. Background
The Individual is employed by a DOE contractor in a position which requires that he hold a security
clearance. The Individual was selected for a random workplace drug test in May of 2023, the results
of which were positive for oxycodone, a drug for which the Individual did not have a prescription.
Exhibit (Ex.) 4 at 4. On receiving this information, the Local Security Office (LSO) informed the
Individual in a Notification Letter that it possessed reliable information that created substantial doubt
regarding the Individual’s eligibility to hold a security clearance. In an attachment to the Notification
Letter, entitled Summary of Security Concerns (SSC), the LSO explained that the derogatory
information raised security concerns under Guideline H of the Adjudicative Guidelines. Ex. 4.
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. At the
hearing, the Individual presented one witness, his Union President, and testified on his own behalf.
1 The regulations define access authorization as “an administrative determination that an individual is eligible for access to
classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). This Decision
will refer to such authorization as access authorization or security clearance.
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The LSO did not present any witnesses. Hearing Transcript in Case No. PSH-23-0101 (hereinafter
cited as “Tr.”). The Individual submitted five exhibits (Ex. A–E). The LSO submitted thirteen exhibits
(Ex. 1–13).
II. Notification Letter and Associated Security Concerns
The LSO cited Guideline H (Drug Involvement and Substance Misuse) of the Adjudicative
Guidelines as the basis for its concerns regarding the Individual’s eligibility for access authorization.
Ex. 4 at 4. “The illegal use of controlled substances, to include the misuse of prescription . . . drugs
. . . can raise questions about an individual's reliability and trustworthiness, . . . 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 positive drug screen dated May 15,
2023. Ex. 4 at 4. The above allegation justifies the LSO’s invocation of Guideline H.
III. Regulatory Standards
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a decision that reflects my comprehensive, common-sense judgment, made after
consideration of all the relevant evidence, favorable and unfavorable, as to whether the granting or
continuation of a person’s access authorization will not endanger the common defense and security
and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The regulatory standard
implies that there is a presumption against granting or restoring a security clearance. See 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).
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 May 15, 2023, the Individual was randomly selected for a workplace drug test. Ex. 11 at 1. On
May 18, 2023, DOE was notified that the Individual’s test was positive for oxycodone. Id. at 1–2. As
a result of his positive test, the Individual’s contractor employer placed him on a paid leave of absence
pending an investigation of his positive drug test. Ex. B. After the investigation confirmed that the
Individual took oxycodone without a valid prescription, the Individual’s employer provided the
Individual with an agreement which informed him of specific actions he would be required to do in
order to be able to return to work. Id. The Individual signed this agreement with his employer on May
30, 2023, agreeing that he would: (1) complete a drug counseling program in accordance with the
employer’s substance abuse program plan and policy, (2) provide a certificate of completion to his
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employer’s human resources department, (3) complete a second drug test after submitting
certification of his completion of the drug counseling program, and (4) undergo random drug tests for
a 12-month period upon his return to work, if the DOE authorizes the employer’s request for the
Individual’s reinstatement.2 Id. The agreement further stated that the Individual understood that he
would be terminated if he received another positive drug test. Id.
The Individual accepted the terms of the agreement from his employer and signed the agreement. In
accordance with the agreement, he completed a drug and alcohol class and subsequently took a drug
test after completing his required course. Prior to the hearing, the Individual provided documentation,
which included a copy of the signed agreement he made with this employer. Ex. B. He also provided
a certificate of completion showing that, on June 8, 2023, he completed an approved four-hour drug
and alcohol class as was required by agreement. Ex. A at 1, 3; Tr. at 54. He also submitted the results
of a June 14, 2023, drug test showing that he tested negative for oxycodone.3 Ex. C at 3.
The Individual also submitted a letter from his former supervisor. Ex. E. In the letter, the supervisor
stated that he had worked with the Individual since 2009. Id. He additionally stated that the Individual
has had no prior disciplinary action taken against him while working for the contractor. Id. The
supervisor also shared his belief that the Individual’s use of oxycodone was a mistake that the
Individual learned from and will not repeat. Id.
Additionally, the Individual submitted a letter in which he described the circumstances of his positive
drug test. Ex. D. He stated that on May 14, 2023, he was unloading bags of mulch while at the home
of his mother, when she “noticed [him] grimacing from lower back pain . . . .” 4 Id. He stated that his
mother offered him medication which he took. Id. He stated that he was then given a random drug
screen on May 15, 2023, and he tested positive for the medication. Id. In his letter, he stated that he
provided proof to his employer that the medication came from his mother. Id. He asserted that this
was an isolated incident that will never happen again and stated that he has completed the
requirements that his employer has asked of him in his signed agreement. Id. This includes his
agreement to be subject to “on-demand drug testing” in addition to standard random testing from his
employer. Id.
At the hearing, the Union President testified that he met the Individual shortly after the positive test
occurred. Tr. at 14, 19. According to the Union President, since that time, he and the Individual have
communicated on approximately a weekly basis in person and via phone. Id. at 15–16. He stated that
the Individual was “upfront and honest” and immediately acknowledged his use of the drug when the
Union President first spoke to him about the positive test result. Id. at 19–20. The Union President
explained that, in his role with the union, he has dealt with employee misconduct issues in the past,
2 The signed agreement stated that if the Individual’s second drug test was negative, “a request will be submitted to the
Department of Energy (DOE) for reinstatement. Upon approval from DOE, you will be allowed to return to work. If not
approved by DOE, your employment with [employer] will be terminated.” Ex. B.
3 The drug test also tested for additional substances, including marijuana, cocaine, Phencyclidine (PCP), heroin, and
hydrocodone, and the Individual tested negative for all substances that were tested. Ex. C at 3.
4 In the Individual’s letter, he uses the words “family member;” however, the record reflects in his hearing testimony that
the family member was the Individual’s mother. Tr. At 48; Ex. D. For purposes of consistency in the decision, I will refer
to the family member as his mother.
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and unlike some others, the Individual “didn’t try to make excuses” and “was not in denial.” Id. at 20.
The Union President testified that the Individual acknowledged that there was a problem and was
committed to doing what he needed to do to get back to work. Id. He stated that he finds the Individual
to be trustworthy and reliable because of his honesty and the fact that the Individual has never had
any incidents in the past. Id. at 22–23, 35. He explained that, as Union President, he is notified
whenever there are problems with employees, and he is notified by the contractor when an employee’s
access authorization is suspended. Id. at 19–20, 24. He asserted that the Individual has not been
involved with any disciplinary issues or policy violations, aside from the current incident. Id. at 24.
The Union President further asserted that the Individual understands the seriousness of his behavior
because he has complied with all of the requirements, including the second drug test, that the
contractor provided for his return to work, without complaints or hesitation. Id. at 22, 24, 31–32, 35.
The Individual testified that he had worked for the contractor for 15 years, and he had not had any
other security violations or incidents. Id. at 38–39. He asserted that this was the first time he had ever
taken medication that had not been prescribed to him and asserted it was an isolated event. Id. at 50,
55. Additionally, the Individual testified that prior to his positive drug test result, he had been subject
to “a couple” of random drug tests from his employer in approximately 2020 and 2021. Id. at 52–53.
He indicated that he had never previously had “anything like . . . this situation [happen] in [his] life”
including having a positive drug test. Id. at 39. He testified that the supervisor who wrote the letter of
support has known him for approximately 14 years. Id. at 57; Ex. E. The Individual stated that the
supervisor was his direct supervisor from approximately November 2016 to January 2018. Tr. at 56,
76. The Individual testified that he still works with the supervisor, although on a less frequent basis
since the supervisor’s promotion. Id. at 57.
Regarding the incident, he testified that, on May 14, 2023, he was at his parents’ home for Mother’s
Day, and he was working on his mother’s flower beds. Id. at 39, 48. He stated that he had been
carrying about 30 to 40 bags of mulch and digging out a flower bed, which caused his back to hurt.
Id. at 49. The Individual testified that his mother noticed that he was “holding [his] back and
grimacing,” so she asked what was wrong. Id. at 48. The Individual explained that his back was
bothering him, and his mother returned, offering him some pain medication. Id. He stated that he did
not ask her what the medication was or ask to look at the bottle before he took it. Id. at 48–49. The
Individual stated that, had he been at home when his back hurt, he would have taken over-the-counter
medication, such as Advil or Aleve. Id. at 50. He explained he took the medication his mother offered
without question because “[he] knew that his mother cared about [him,]” and he believed that his
mother would not offer him medication “that would hurt [him].” Id. The Individual acknowledged
that taking his mother’s prescription medication was a mistake and a lapse in judgment due to the
pain he was experiencing. Id. at 50. He indicated that he regretted the decision, stating that he is
“reminded every day . . . of the consequences of what [he] did.” Id. at 55. He stated that, in the future,
if someone offers him medication that is not prescribed to him, he will decline it because it puts his
job and his well-being at risk. Id. at 73.
The Individual testified that, the next day at work, on May 15, 2023, he was called in for a random
drug test. Id. at 39, 48. When he was notified that he had failed the drug test due to the presence of
oxycodone in his system, the laboratory representative asked him if he had a prescription for
oxycodone or whether he had taken someone else’s medication. Id. at 51. The Individual stated that,
when the laboratory representative asked him if he had a prescription, he then realized that taking one
of his mother’s pills would be categorized as substance misuse. Id. at 50–51. He explained that, on
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the date that he took his mother’s medication, he knew it was a pain medication, but he did not know
what specific drug it was. Id. at 49. The Individual stated that he immediately admitted to the
laboratory representative that he had taken someone else’s medication without a prescription. Id. He
testified that his employer asked him to provide evidence to support his story as it wanted to verify
that the Individual was not misrepresenting the source of the medication. Tr. at 53. The Individual
testified that he told his mother that he had failed his drug test, and she told him that the pills she had
were oxycodone pills. Id. at 60–61. He then asked her to obtain a copy of her prescription, which he
provided to his employer the following day. Id. at 53; Ex. D.
The Individual stated that, subsequently, he had a one-hour assessment with a counselor to determine
what type of treatment that he needed. Tr. at 54. The Individual was referred to this counselor through
a Workplace Referral Program (WRP) provided through his employer. Ex. A at 4–7. He stated the
counselor told him that “she felt like [he] was sincere,” and that his situation regarding his substance
misuse “was a little different than most cases she sees.” Id. at 65. He stated that she emphasized to
him the risks and reasons that he should not take prescription drugs unless they are prescribed to him.
Id. The Individual stated that, at the end of the assessment, the counselor referred him to a drug and
alcohol awareness course, which included an online option, and he took a four-hour online course to
complete her only requirement. Id. at 54, 63; See Exhibit A at 1 (email from the Individual’s
Substance Abuse Professional (SAP) counselor stating she will be notifying his employer of his
successful completion of the course, and she will close his case). He said that the class emphasized
the consequences of taking prescription medications that are prescribed to another because they can
put “your job and your livelihood . . . at risk.” Id. at 66.
The Individual testified that, in hindsight, he knows he should not have taken the medication from his
mother. Id. at 50. He also said that he had not previously taken prescription medication that was not
prescribed to him and will not in the future. Id. at 59, 72–73. The Individual stated that he experienced
back pain two or three times a year if he does heavy lifting at work. Id. at 70. He stated that, in the
future, if the pain occurs while he is doing physical labor for his job, he will ask for help and that his
superiors support employees asking for help with physical labor when needed. Id. at 71–72. He stated
that he also plans to avoid activities that he knows will strain his back, and if his back hurts he will
rest or use over-the-counter medication, which he asserted has been successful in alleviating his pain.
Id. at 71, 73–74.
V. Analysis
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;
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(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.
Adjudicative Guidelines at ¶ 26.
The Individual’s substance misuse occurred approximately three months prior to the hearing so I
cannot find that it happened “so long ago” that it is “unlikely to recur and does not cast doubt on his
current reliability, trustworthiness, or good judgment.” Id. at ¶ 26(a). While the Individual asserted
that the prescription drug misuse was a one-time occurrence, he did not present any other testimonial
evidence to corroborate his story, other than the negative June 2023 test he was required to undergo
pursuant to his agreement with his employer.5 Although the Individual testified that the counselor
stated that he was “different from most cases she sees,” this statement was not corroborated by any
testimony or even a written statement from the counselor herself. Thus, I cannot find that the
Individual’s testimony, in combination with one negative drug test, is sufficient to determine that the
misuse of this prescription drug occurred under such circumstances that it is unlikely to recur. Id. at
¶ 26(a).
Additionally, the Individual testified that he regularly suffers from back pain, including in the course
of his work. Thus, it is likely that he will experience back pain again in a situation where he is not in
his own home. The decision to accept an unknown medication without question reflected the
Individual’s poor judgment. The Individual asserted that, in the future, he will not take medication
that is not prescribed to him, and he also signed an agreement with his employer acknowledging that
doing so would result in termination. However, the Individual did not present any signed statements
or witness testimony from people who knew him on a personal level and could speak to his conduct
outside of the workplace. The Individual’s mere statement of intent not to misuse prescription drugs,
absent sufficient evidence that he has acted consistently with that intent, does not leave me without
any doubt that his prior poor judgment will not recur. For the above-described reasons, I find that the
Individual has not mitigated the security concerns pursuant to mitigating condition (a). Id. at ¶ 26(a).
Regarding mitigating condition (b), the Individual did acknowledge his drug involvement and
substance misuse; however, he did not do so until after his drug test result showed that he tested
positive for oxycodone. He also provided proof that he completed a four-hour drug and alcohol class.
However, despite the passage of three months between the Individual’s positive test and the hearing,
5 While I presume that the results of the “couple” of random drug tests administrated to the Individual in approximately
2020 and 2021 may have been negative, I am unable to make such a definitive finding or reach such conclusion from
the developed record.
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he only provided results from one negative drug test in June 2023, and he did not provide any
testimony from a witness who could corroborate his abstinence, other than a former supervisor whom
he does not interact with regularly. Without any other corroborating evidence, I cannot find that the
Individual has established a “pattern of abstinence.” As such, I find that the Individual has not
mitigated the security concerns under mitigating condition (b).6 Id. at ¶ 26(b).
Although it is quite possible that the Individual’s use of his mother’s medication was a one-time
incident due to a momentary lapse in judgment, the Individual has not sufficiently mitigated the
security concerns due to the lack of evidence to support his assertions. Moreover, as stated above, I
must resolve any doubts in favor of national security, denying a security clearance when there is any
uncertainty about an individual’s eligibility. See 10 C.F.R. § 710.7(a); see also Egan, 484 U.S. 518,
531 (1988). In this situation, I cannot find that the Individual has provided sufficient evidence to show
that he has mitigated the security concerns.
For the forgoing reasons, I find that the Individual has not resolved the security concerns asserted by
the LSO under Guideline H.
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 H 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 restored.
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
6 Mitigating condition (c) is inapplicable because the Individual does not contend that he was prescribed the medication
in connection with a severe or prolonged illness. Id. at ¶ 26(c). Mitigating condition (d) is also inapplicable to the facts
of this case. While the Individual completed a four-hour online drug and alcohol course, there is no evidence that this
educational course constituted a drug treatment program, and furthermore, he did not provide a favorable prognosis by a
duly qualified medical professional.