PSH-23-0104

*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, 2023 ) Case No.: PSH-23-0104
)
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Issued: October 13, 2023
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Administrative Judge Decision
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James P. Thompson III, 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 should not be
granted access authorization.
I. BACKGROUND
The Individual is employed by a DOE contractor in a position that requires possession of a security
clearance. As part of the Individual’s application for a security clearance, he provided information
regarding his history of illegal drug use, and the Local Security Office (LSO) determined that the
Individual provided discrepant and conflicting information regarding his use of marijuana. The
LSO also discovered that the Individual failed to disclose financial information regarding his
unpaid and delinquent debts. The LSO consequently informed the Individual by letter
(“Notification Letter”) that it possessed reliable information that created substantial doubt
regarding his eligibility to possess 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 E and Guideline H of the Adjudicative Guidelines.
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 Individual exercised his right to request an administrative review hearing pursuant to 10
C.F.R. Part 710. The Director of the Office of Hearings and Appeals appointed me as the
Administrative Judge in this matter, and I subsequently conducted an administrative review
hearing. At the hearing, the Individual presented the testimony of two witnesses and also testified
on his own behalf. The LSO submitted ten exhibits, marked Exhibits 1 through 10.2 The Individual
submitted three exhibits, marked Exhibits A through C.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As indicated above, the LSO cited Guideline E (Personal Conduct) and Guideline H (Drug
involvement and Substance Misuse) of the Adjudicative Guidelines as the bases for concern
regarding the Individual’s eligibility to possess a security clearance. Exhibit (Ex.) 1 at 5–8.
Guideline E provides that “[c]onduct 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. Conditions that could
raise a security concern include:
(a) Deliberate omission, concealment, or falsification of relevant facts from any
personnel security questionnaire, personal history statement, or similar form
used to conduct investigations, determine employment qualifications, award
benefits or status, determine national security eligibility or trustworthiness, or
award fiduciary responsibilities;
(b) Deliberately providing false or misleading information; or concealing or
omitting information, concerning relevant facts to an employer, investigator,
security official, competent medical or mental health professional involved in
making a recommendation relevant to a national security eligibility
determination, or other official government representative;
. . . .
Id. at ¶ 16. The SSC cited numerous instances where the Individual withheld or provided
conflicting information regarding his past marijuana use and the LSO’s discovery of information
in the Individual’s military record that conflicted with his self-reported marijuana use. Ex. 1 at 5–
7. The SSC also cited that the Individual was discharged from the military as a result of his failure
to disclose marijuana use prior to entering service, and he failed to disclose the reasons for his
discharge. Ex. 1 at 6–7. Finally, the SSC indicated that the Individual failed to disclose that he had
been asked to seek drug related counseling or treatment and failed to disclose requested financial
information, including various delinquent, collection, and charge off accounts. Id. at 6. The cited
information justifies the LSO’s invocation of Guideline E.
2 References to the DOE Exhibits are to the Exhibit number and the bates number located in the top right corner of
each exhibit page.
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Guideline H provides that “the illegal use of controlled substances . . . can raise questions 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. Conditions that
could raise a security concern include “any substance misuse,” which includes “illegal use of
controlled substances,” and “[t]esting positive for an illegal drug . . . .” Id. at ¶ 25(a) and (b). The
SSC cited that the Individual had used marijuana several times between 2018 and 2019 while
serving in the military, that he was discharged from the military after testing positive on a drug
test for marijuana use, and he tested positive for marijuana use on drug tests administered by his
employer on two separate occasions in 2021. Ex. 1 at 7. The above allegations justify 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 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 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 or her 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. 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.
The discussion below reflects my application of these factors to the testimony and exhibits
presented by both sides in this case.
IV. FINDINGS OF FACT
The Individual completed a Questionnaire for National Security Positions (QNSP) in 2022 as part
of his request for a security clearance. Ex. 8. Therein, in response to a question whether, “[i]n the
last (7) years,” he had “illegally used drugs or controlled substances,” he responded in the positive
and disclosed that he had used “THC” or marijuana “once while at a party” in 2018 while serving
in the military and, as a result, failed a random drug test. Ex. 8 at 84–85. During a following
interview with an investigator as part of the security clearance investigation process, the Individual
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again told the investigator that he had used marijuana one time in 2018 while serving in the
military. Ex. 8 at 178. However, military records reflect that the Individual previously reported
that he had used marijuana several times both before entering service and in 2018 and 2019; his
admissions are corroborated by the statements of other individuals the military obtained as part of
its investigation into his marijuana use after failing the drug test. Ex. 7 at 46–47.
In a Letter of Interrogatory (LOI) the Individual submitted in 2023, he confirmed the history of
drug use reflected in the military records and disclosed that after he failed the 2019 drug test, and
was consequently discharged, he did not use marijuana again until late April 2021 and then again
in October 2021. Ex. 5 at 20. He said that both instances resulted in him again failing drug tests.
Id. He also reported that both instances were unintentional because he was provided food items
that, unbeknownst to him, contained marijuana. Id. He explained that in April 2021, he was given
a gelatine “shot” that he later learned contained marijuana. Id. Then, in October 2021, he ate a
cookie infused with marijuana at a “family reunion where food was laid out and nothing was
labelled.” Ex. 5 at 35. He described both food items as “edibles.” Id. at 20–21. He stated in the
LOI that “there is no excuse as to why I caved into the peer pressure of taking something that I
didn’t know what it could have been.” Id. at 35.
Turning back to the 2022 QNSP, the Individual reported therein that he had never “been ordered,
advised, or asked to seek counseling or treatment as a result of his illegal use of drugs or controlled
substances[.]” Ex. 8 at 85. However, in the LOI he later revealed that he “was advised to take a
substance abuse class” for marijuana use twice, in March 2019 and again in June 2021, which he
successfully completed. Ex. 5 at 24. The Individual also did not report in his QNSP that he had
been disciplined under the Uniform Code of Military Justice (UCMJ) as a result of his marijuana
use. Compare Ex. 8 at 74 with Ex. 10 at 187 (indicating that he was given an “Article 15,” a
reduction in rank, and separated from the military).
As for why he failed to accurately report his past drug use on the 2022 QNSP, the Individual
reported in the LOI that he “thought that [he] had already mentioned it” and that he “did call [the
investigator] back and tried to disclose the information . . . but it was already too late.” Ex. 5 at 30.
The Individual further disclosed in the LOI that he chose not to disclose his 2016–2017 marijuana
use at the time he entered the military because he did not want to negatively impact his chance of
joining. Id. at 31. However, he denied that he had intentionally withheld the full extent of his drug
use from his 2022 QNSP or the investigator Id. at 31–32.
The record also includes the Individual’s LOI response to questions regarding his failure to
disclose in his 2022 QNSP a collection account for a gym membership, a charge off credit account
with a bank, and delinquent student loans. Ex. 5 at 32. The Individual explained that he lost the
card for the charged off credit account and stopped paying attention to the account. Id. He also
explained that the gym membership was set for automatic payments on the card, which resulted in
the unpaid membership going to collections. Id. His response did not address the delinquent
student loans. Id.
At the hearing, the Individual’s supervisor testified on the Individual’s behalf. The supervisor
stated that he agreed to testify because he believed that the Individual is trustworthy as
demonstrated by the Individual’s work performance since they began working together in 2022.
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Tr. at 18–19, 21. He also testified that he spoke with the Individual about the clearance
investigation process and the importance of not withholding pertinent information. Id. at 17.
The Individual’s girlfriend also testified on his behalf. She stated that she and the Individual have
dated for approximately fourteen months, and she has never observed the Individual use or possess
marijuana. Id. at 29. She also testified that the Individual is trustworthy and reliable, and she
provided the example of his dependability when working with children as a volunteer. Id. at 30.
At the hearing, the Individual did not deny the various allegations of him failing to disclose
information. As for his failure to disclose his past drug use, he testified that the information was
already filled-in from a previous QNSP, and he “skimmed through” it and, consequently, left the
incorrect information he had previously provided. Id. at 47. He testified that he was discharged
from the military because of his failed drug test and for “fraudulent entry” because he did not
disclose his drug use prior to joining the military. Id. at 36–37. He also testified that his failure to
disclose his military discipline for marijuana use on the 2022 QNSP was an honest mistake because
he did not understand that his “Article 15” was under the UCMJ. Id. at 57. Turning to the QNSP,
the relevant question therein, which the Individual responded to in the negative, asked specifically
whether the Individual had been subject to disciplinary procedures under the UCMJ, “such as
Article 15 . . . .” Ex. 5 at 174.
He also confirmed that he was required to take a “substance abuse class” as a result of failing his
employer’s drug test in April 2021. Tr. at 39. He confirmed that he also failed an October 2021
employer drug test as a result of ingesting a marijuana cookie at a family reunion. Id. at 40–41.
When testifying, he stated that he intentionally ingested the first gelatine edible knowing it
contained marijuana as opposed to when he ingested the marijuana cookie, which was an accident.
Id. at 41, 43. He explained that the marijuana cookies were placed out by a family member as a
prank at the family reunion and that he has “family members that do strange things . . . .” Id. at 42.
He testified that he was disappointed in himself for allowing himself to be in that environment. Id.
at 40. As a result of failing the second drug test in 2021, he decided not to take another substance
abuse class because he did not feel ready for the sacrifices required by the position. Id. at 41.
The Individual also provided additional details regarding his attempt to contact the investigator to
whom he failed to disclose his marijuana use. He testified that after the interview, he called the
investigator to ask “if there was anything [he] could do to disclose more information.” Tr. at 53.
He testified that he was told in response that he would have to instead go through the administrative
review hearing. Id. To corroborate his testimony, the Individual submitted a screenshot that
appears to be a text message to an unidentified number asking if he could disclose information that
he “forgot to mention” during the interview. Ex. A. The screenshot does not contain a reply
message. Id. He testified that he wanted to further disclose to the investigator, for example, that he
had taken counseling or treatment as a result of using marijuana and the circumstances surrounding
his collections and charge off accounts. Id. at 55. As for the delinquent student loan accounts, the
Individual testified that he failed to report them because he was negligent and unaware of their
status. Id. at 58. He testified that, going forward, he would “open up by being 100 percent truthful
and honest” when responding to security questions regarding his past drug use. Id. at 64.
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Finally, the Individual testified that he does not intend to ever use marijuana again because it would
negatively impact his future, his romantic relationship, and the relationship he has with his son. Id.
at 62. The Individual testified that he has remained abstinent from marijuana since ingesting the
marijuana cookie in October 2021. Id. at 51. He testified he has since taken and passed random
drug tests, but he did not submit any documentation of his test results into the record of this
hearing.3
V. ANALYSIS
A. Guideline E Considerations
Conditions that can mitigate security concerns based on personal conduct include the following:
(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.
3 The Individual’s Exhibit C was submitted as a urinalysis drug test result from September 2022; however, upon
inspection, it does not contain information from which I can conclude that he was tested for use of marijuana or any
other controlled substances.
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Adjudicative Guidelines at ¶ 17.
I conclude that none of the above mitigating conditions apply to resolve the Guideline E concerns.
Paragraph 17(a) is inapplicable because although the Individual reached out to amend the
information he reported, I do not conclude that his attempt is sufficient to demonstrate prompt,
good-faith efforts to correct omitted or false information before being confronted with the facts.
The outreach alone, in this case, is not sufficient because he did not actually provide any additional
information, and it is not clear whether the Individual would have disclosed all of the information
cited as concerning in the SSC. Thus, his efforts are not sufficient to mitigate the concerns raised
by his repeated failure to provide full, accurate information regarding his past drug use before
being confronted with the facts. In making my finding, I also note that he disclosed at the hearing
conflicting information regarding his marijuana use. For example, he admitted for the first time at
the hearing that he knew the gelatine edible contained marijuana at the time he ingested it, which
contradicts his statement in the LOI that he only later learned that fact.
Paragraph ¶ 17 (b) is inapplicable because the Individual did not indicate that his omissions and
concealment was caused or contributed to by advice of legal counsel or any other person.
As for ¶ 17(c), I conclude that the severity of the Individual’s behavior, the passage of time, the
frequency, and the circumstances surrounding it are not sufficient to indicate that it is unlikely to
recur. His behavior reflects a pattern of failing to provide accurate information regarding his prior
marijuana use, including when he entered the military, at the time of his 2022 QNSP, and during
his investigation interview. There is also evidence in the record that on at least one instance, per
the Individual’s admission, the omission was deliberate: when he intentionally concealed his
marijuana use in an attempt to better his chances of joining the military. The deliberate and
repeated failure to provide accurate information in response to security questions is neither minor
nor infrequent. There is also no evidence in this record from which to conclude that it occurred
under unusual circumstances.
As for ¶ 17(d), there is no evidence that the Individual obtained counseling to address the
Guideline E conduct. Instead, he testified that he realizes that he made mistakes in the past by
providing inaccurate information, and he would be more careful in the future. However, given the
repeated instances of concealing information, failing to fully disclose it, and providing
contradictory versions of it, I do not conclude that his testimony regarding his future intentions is
reliable or sufficient to establish that his behavior is unlikely to recur.
The remaining conditions are inapplicable for the following reasons. Paragraph 17(e) is
inapplicable because there is no allegation in the SSC that the Individual’s conduct created a
security concern due to his particular vulnerability to exploitation, manipulation, or duress.
Paragraph 17(f) is inapplicable because there is no evidence in the record to indicate that the
information cited in the SSC is unreliable. Lastly, ¶ 17(g) is inapplicable because the Individual’s
association with persons involved in criminal activities is not at issue. Accordingly, I find that the
Individual has not resolved the Guideline E concerns.
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B. Guideline H Considerations
Conditions that can mitigate security concerns based on drug involvement and substance misuse
include the following:
(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.
Adjudicative Guidelines at ¶ 26.
In this case, none of the mitigating conditions referenced above apply to resolve the Guideline H
concerns. First, under ¶ 26(a) and ¶ 26(b), I do not find that the passage of time and change in
circumstances since his last admitted use of marijuana are such that it is unlikely he will use
marijuana in the future. The Individual’s testimony has not persuaded me that he has been truthful
regarding the circumstances of his two most recent admitted uses of marijuana. For both instances,
prior to the hearing he stated that he accidentally ingested the marijuana. However, at the hearing,
he stated that he knowingly ingested marijuana in April 2021. Additionally, the Individual did not
provide convincing testimony to support a finding that he will not likely ingest marijuana at some
time in the future because he has done little to demonstrate that he has taken precautions to avoid
falling victim again to unintentional consumption. Further, I remain unpersuaded that the
Individual only used marijuana twice in 2021, the same number of times he failed drug tests. I
therefore find that neither ¶ 26(a) nor ¶ 26(b) apply to resolve the concerns.
I also find that ¶ 26(c) does not apply because there is no allegation that the Individual misused
prescription drugs. Lastly, I find that ¶ 26(d) does not apply because the fact that the Individual
completed a drug or substance abuse class on two occasions establishes that drug education is not
likely to prevent him from continuing to ingest marijuana, and there is no evidence in the record
of a favorable prognosis by a duly qualified medical professional.
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Accordingly, I find that the Individual has not resolved the Guideline H security concerns.
VI. CONCLUSION
For the reasons stated above, I find that there is sufficient derogatory information in the possession
of the DOE that raised security concerns under Guideline E and Guideline H of the Adjudicative
Guidelines. After considering all of the relevant information, favorable and unfavorable, in a
comprehensive, common-sense manner, including weighing all of the testimony and other
evidence presented at the hearing, I find that the Individual has not brought forth sufficient
evidence to resolve Guideline E and Guideline H security concerns set forth in the SSC.
Accordingly, I have determined that the Individual should not be granted access authorization.
This Decision may be appealed in accordance with the procedures set forth at 10 C.F.R. § 710.28.
James P. Thompson III
Administrative Judge
Office of Hearings and Appeals