PSH-24-0153

*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 15, 2024 ) Case No.: PSH-24-0153
)
)
Issued: January 31, 2025
Administrative Judge Decision
James P. Thompson III, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (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 a security clearance.
In 2024, as described in further detail below, the DOE Local Security Office (LSO) obtained
information that caused it to request that the Individual be evaluated by a DOE-consultant
psychologist (DOE Psychologist) regarding past alcohol and drug use and whether the Individual
had any mental conditions that might result in defects in judgment and reliability. The LSO also
discovered that the Individual had a history of criminal charges that include, most recently, a 2021
charge for assault. Based on the information gathered by the LSO, including the results of the DOE
Psychologist’s evaluation, the LSO 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
Guidelines E, I, H, and J 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 one witness and testified on his
own behalf. The LSO presented the testimony of the DOE Psychologist. The Individual submitted
three exhibits, marked Exhibits A through C. The LSO submitted ten exhibits, marked Exhibits 1
through 10.2
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
As indicated above, the LSO cited Guideline E (Personal Conduct), Guideline I (Psychological
Conditions), Guideline H (Drug Involvement and Substance Misuse), and Guideline J (Criminal
Conduct) of the Adjudicative Guidelines as the basis for concern regarding the Individual’s
eligibility to possess a security clearance. Exhibit (Ex.) 1.
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:
. . .
(d) credible adverse information that is not explicitly covered under any other guideline
and may not be sufficient by itself for an adverse determination, but which, when
combined with all available information, supports a whole-person assessment of
questionable judgment, untrustworthiness, unreliability, lack of candor,
unwillingness to comply with rules and regulations, or other characteristics
indicating that the individual may not properly safeguard classified or sensitive
information. This includes, but is not limited to, consideration of:
(1) untrustworthy or unreliable behavior to include breach of client
confidentiality, release of proprietary information, unauthorized release of
sensitive corporate or government protected information;
(2) any disruptive, violent, or other inappropriate behavior;
(3) a pattern of dishonesty or rule violations; and
(4) evidence of significant misuse of Government or other employer's time or
resources;
. . . .
2 References to the LSO exhibits are to the exhibit number and the Bates number located in the top right corner of
each exhibit page.
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Id. at ¶ 16.
The SSC recounts that the Individual admitted to the DOE Psychologist during the evaluation that
he had deceived his past employer regarding his marijuana use, that he had purchased synthetic
urine to falsify employer-administered drug tests during that period, and that the DOE Psychologist
reported concerns regarding the Individual’s admitted “dishonesty and deception with his past
employer about his marijuana use” and willingness to follow stated policies. Ex. 1 at 5. The cited
information justifies the LSO’s invocation of Guideline E.
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 . . . .”; “illegal possession of a controlled substance . . .”; and “diagnosis by
a duly qualified medical or health professional . . . of substance use disorder ” Id. at ¶ 25(a),
(c)–(d). The SSC listed the DOE Psychologist’s opinion that the Individual met the Diagnostic
and Statistical Manual of Mental Disorders, 5th Edition, Text Revision, diagnosis of Cannabis Use
Disorder, Moderate, in Early Remission; the Individual’s admission to marijuana use from 2005
to 2023; the Individual’s admission to operating a vehicle under the influence of marijuana almost
daily during the same period; his arrest and charge in 2009 for Driving While Intoxicated and
Drugged; and his arrest and charge in 2009 for possession of Marijuana and Possession of Drug
Paraphernalia. Ex. 1 at 5–6. The cited information justifies the LSO’s invocation of Guideline H.
Guideline I provides that “[c]ertain emotional, mental, and personality conditions can impair
judgment, reliability, or trustworthiness.” Adjudicative Guidelines at ¶ 27. Conditions that could
raise a security concern include “[a]n opinion by a duly qualified mental health professional that
the individual has a condition that may impair judgment, stability, reliability, or trustworthiness . .
. .” Id. at ¶ 28(b). The SSC listed the DOE Psychologist’s opinion that the Individual has “antisocial
personality traits, which is a condition that can hinder his reliability, judgment, trustworthiness,
and integrity.” Ex. 1 at 6.
Under Guideline J, “[c]riminal activity creates doubt about a person’s judgment, reliability, and
trustworthiness.” Adjudicative Guidelines at ¶ 30. “By its very nature, it calls into question a
person’s ability or willingness to comply with laws, rules, and regulations.” Id. Conditions that
could raise a security concern include “[e]vidence (including, but not limited to, a credible
allegation, an admission, and matters of official record) of criminal conduct, regardless of whether
the individual was formally charged, prosecuted, or convicted ” Id. at ¶ 31(b). The SSC recited
the above referenced marijuana use and the Individual’s other criminal history from 2005 to 2021,
the latter of which includes twelve instances of criminal conduct—the most recent being a 2021
arrest and charge of Domestic Assault, 4th Degree, Misdemeanor and a 2019 arrest and charge for
Domestic Assault, 4th Degree, Misdemeanor. Ex. 1 at 6–7. The cited information justifies the
LSO’s invocation of Guideline J.
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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.
§ 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
In August 2023, the Individual submitted a Questionnaire for National Security Positions (QNSP)
as part of his application for a security clearance. Ex. 9 at 77, 121. Therein, he disclosed that he
had a history of using marijuana daily to “help cope with eating and sleeping” from approximately
2005 until May 2023. Id. at 114. He also reported two criminal charges for Domestic Assault – 4th
Degree: one that occurred in 2019, which was dismissed in 2020, and one that occurred in 2021
and resulted in his acquittal after a 2022 bench trial. Id. at 111–13.
During a subsequent November 2023 interview with an investigator, the Individual provided the
following details regarding the above criminal charges. Ex. 10 at 187, 193–94. He said that the
2019 assault charge resulted from a verbal argument with his now ex-wife during which he
“removed” a cellphone from her hands and disconnected a call she made to law enforcement. Id.
at 189, 193. Law enforcement eventually arrived and arrested the Individual. Id. at 193. The
charges were later dismissed “because there was a house phone available” to his ex-wife and
therefore the Individual did “not take away her means of communication . . . .” Id. at 193.
Regarding the circumstances that led to his 2021 charge, the Individual reported that he was again
arguing with his ex-wife, and, after he decided to leave, his ex-wife “took some” of his possessions,
entered a vehicle, and would not return his property despite the Individual “banging on the
windshield” to get it back. Id. at 194. His ex-wife then drove the vehicle towards him, and he
“jumped up onto the hood to avoid being hit,” breaking the windshield and injuring his wrist. Id.
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at 194. His ex-wife then called law enforcement, and the Individual was arrested and again charged
with domestic assault. Id.
The record includes a sheriff deputy’s arrest report of the above 2021 assault that includes a slightly
different version of events. Therein, the Individual is reported as telling the deputy that, as his ex-
wife started to drive away, the Individual “punched the [vehicle’s] windshield in frustration ”
Id. at 235. The ex-wife’s statements are included in the arrest report as well. She stated that the
Individual said he was going to leave during their argument, the ex-wife then “silently picked up
her things and told their children to get clothes on” before entering a vehicle and locking the doors.
Ex. 10 at 235. Then, the Individual “started hitting the windows,” so the ex-wife began to drive
away and the Individual jumped on the hood of the vehicle and punched and shattered the
windshield. Id.
The Individual reported to the investigator that the 2021 criminal charge was “dismissed” after his
ex-wife refused to testify and photographs of the Individual’s injuries did not support his ex-wife’s
version of events. Id. at 194. The investigator reported that the Individual believed that his criminal
charges resulted from mere arguments and not criminal conduct, and the Individual “was
motivated by his instincts in the heat of the moment.” Id. The Individual reported that he did not
intend to have any more incidents with his ex-wife and that they continue to associate because they
are co-parents. Id.
The Individual also stated the following when requesting a hearing. From 2018 to 2022, he
purchased synthetic urine to falsify the results of drug tests administered by two previous
employers. Ex. 2 at 13. He drove “under the influence” of marijuana during his years of use, most
recently in 2023. Id. at 13. He was charged with assault in 2012 after he pushed a person to the
ground for teasing his sister. Id. at 14. He was the subject of a “false” police report that alleged he
punched and strangled a woman in 2011. Id. He was given a citation after leaving the scene of an
accident where he alleges that he slid off of an icy road into a fence in 2009. Id. He was arrested
and charged with Driving While Intoxicated and Drugged in 2009. Id. He was also arrested for,
but not charged with, possession of marijuana and drug paraphernalia in 2009. Id. at 13–14. He
was the subject of a police report after he and another person took a “friend’s” gaming system
without permission in 2008. Id. at 14. Lastly, he was wrongfully arrested for vandalism and theft
in 2008. Id. at 15. He provided a written statement that many of the above acts of criminal conduct
occurred when he was in his “late teenage years before [he] truly grew into an adult.” Id. at 15.
The record includes a police report from the above-referenced 2011 assault the Individual claimed
was “false.” In the report, the complainant complained of being punched and “choked out” by the
Individual, and the officer observed that the complainant had “a swollen lip and bruises to her left
eye.” Ex. 9 at 229. The officer stated that he “made contact” with the Individual and advised the
Individual to “have no further contact with [the] [c]omplainant,” to which the Individual reportedly
replied, “[i]t’s her loss.” Id. at 229.
The record also includes information provided to the investigator by a former supervisor of the
Individual. Ex. 9 at 205. That supervisor, who supervised the Individual from 2018 to 2023,
reported that the Individual “had a poor attitude” and “would not follow company policies and
procedures, if he did not like them.” Id. The supervisor is reported as stating that the Individual
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“would become loud and argumentative” when disagreeing, and the Individual “created a lot of
drama in the workplace.” Id. Furthermore, the supervisor reported that the Individual “is not
trustworthy[,] “his honesty and integrity are poor[,]” and his “judgment is good about 50% of the
time ” Id. at 206.
The record includes the psychological report provided by the DOE Psychologist who evaluated
the Individual. Ex. 7. During the evaluation, the Individual reported that he stopped using
marijuana in order to secure his current position with a DOE contractor. Id. at 48. He denied using
marijuana on company time when working for his previous employer. Id. However, he did admit
that he would sometimes feel the effects of the marijuana he used the night before upon arriving
at work. Id. He also reportedly told the DOE Psychologist that he “was always honest with his
employer, other than hiding the fact that he smoked marijuana ” Id. The Individual “denied
ever being less than honest in documenting or submitting paperwork.” Id. at 49. Based on the
information reviewed and developed during the evaluation, the DOE Psychologist opined that the
Individual had questionable honesty, and the Individual’s actions and reasoning demonstrated a
“means to an end type of thinking.” Id. at 50–51. The DOE Psychologist concluded that the
Individual had “antisocial personality traits” that can “hinder his reliability, judgment,
trustworthiness and integrity.” Id. at 52. He based his opinion in part on the Individual’s
acknowledged “lying to his employers and deception” and simultaneous denial of ever violating
work policies. Id. at 50. To address this condition, the DOE Psychologist recommended that the
Individual “should participate in individual therapy with a licensed provider experienced in
treating personality disorders,” but he cautioned that “[t]reatment is not always effective,
particularly if the individual cannot admit to his behaviors contributing to serious problems in life
. . . .” Id. He gave the Individual a “guarded” prognosis. Id. The DOE Psychologist also diagnosed
the Individual with Cannabis Use Disorder, Moderate, in Early Remission. Id. at 51. The DOE
Psychologist recommended that the Individual participate in a substance abuse treatment program
and attend maintenance group therapy sessions for one year along with support group meetings in
order to demonstrate rehabilitation and reformation. Id. at 52.
At the hearing, the Individual’s uncle, who presently works for the same DOE contractor as the
Individual, testified that he previously told the Individual that the Individual would need to stop
using marijuana if he wanted to work for the DOE contractor. Transcript of Hearing, OHA Case
No. PSH-24-0153 (Tr.) at 15–16. The uncle testified that, while he does not see the Individual
every day, he believes that the Individual stopped using marijuana in June 2023 based on their
conversations. Id. at 17–18. The uncle also testified that the Individual overcame the challenges
associated with his past marriage, including significant infidelity by the now ex-wife. Id. at 18–
19.
The Individual testified that the criminal charges he received prior to 2009 were the result of
“hanging out with . . . troublemakers.” Id. at 29. As for the August 2011 charge for domestic
violence, he testified that he recently contacted the authorities after he received the Notification
Letter to research the incident, he then obtained the name of the complainant and contacted her,
and she told him that she did not recall making the police report. Id. at 31–32. He testified that he
did not recall putting his “hands on her,” and, while he and the complainant had previously been
in a relationship, he believed they were not in a relationship at the time the police report was filed.
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Id. When asked to clarify whether he denied the allegations or could not recall the incident, the
Individual responded that he could not recall whether it happened. Id. at 34.
Regarding the 2012 assault charge, the Individual testified that a young man made him mad by
being disrespectful toward the Individual’s younger sister. Id. at 37. When the Individual, who was
himself approximately twenty-one years old, confronted the man, the man responded by throwing
a punch, which the Individual stated he “caught” and then pushed the man to the ground, ending
the altercation. Id. at 37. The Individual denied ever hitting the man. Id. at 39. The day after the
incident, the police informed the Individual he was charged with assault. Id. at 37–38. As a result,
the Individual paid a fine to resolve the charge. Id. at 38.
Regarding the 2019 domestic violence incident,3 the Individual testified that he had just learned
that his ex-wife had been “having multiple affairs.”4 Id. at 39. During the ensuing argument, the
ex-wife asked the Individual to leave, and he went to retrieve his money from her purse. Id. The
ex-wife asserted that the money belonged to her. Id. at 41. As a result, the ex-wife’s father “got
involved” by grabbing the Individual, and the Individual pushed the father, which resulted in the
ex-wife “pepper spray[ing]” them and calling the sheriff’s department. Id. at 40. The Individual
admitted that he had his ex-wife’s wallet and keys in his pocket when law enforcement arrived but
blamed it on being pepper sprayed. Id. at 42. The Individual testified that this is also the incident
where he took a cell phone out of his ex-wife’s hands to prevent her from calling the sheriff’s
office. Id. at 44.
The Individual explained that his June 2021 criminal charges also resulted from an argument with
his ex-wife regarding infidelity. Id. at 46. The Individual testified that he was upset by his ex-
wife’s behavior during the argument, so he began to leave. Id. In response, his ex-wife took some
of his belongings, including his keys, wallet, and marijuana, and began to leave in a vehicle. Id.
The Individual stated that he attempted to stop her and demanded his items back, which resulted
in his ex-wife almost hitting him with the vehicle.5 Id. He said that she then called law enforcement
and falsely claimed that the Individual had “punched the windshield out” with his fist. Id. at 47.
Regarding his marijuana use, the Individual testified that he stopped consuming marijuana in 2023
because he knew that behavior would prevent him from obtaining a security clearance. Id. at 52.
He testified that since he stopped using marijuana, he has been more clearheaded. Id. He testified
that he is focused on taking care of his children and bettering his life, and he does not intend to use
marijuana again regardless of whether he obtains a security clearance. Id. at 53. He testified that
he now spends his free time with his children and doing other outside activities. Id. at 60.
The Individual testified that he is in a new relationship and that his current girlfriend has yelled at
him on occasion in front of the child he has with his ex-wife. Id. at 57. He also confirmed that his
current girlfriend has hit and kicked him in the past. Id. at 82. He described having to contact the
3 The Individual initially described these events as occurring in March 2019 but later stated that they are related to the
2018 charge. Tr. at 44.
4 The Individual testified that they got married in 2014 and divorced in 2022. Tr. at 30–31.
5 The Individual testified that “she put it in drive and I jumped up, ‘cause she was going to run me over.” Tr. at 47.
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police after his girlfriend hit him to make sure he was not arrested despite being the victim. Id. at
82. However, he testified that she has not physically assaulted him since the psychological
evaluation in March 2024, and they are “trying to work things out.” Id. at 82–83.
The Individual next testified about some of the prior criminal charges in the SSC, including a 2009
charge for vandalism and theft of a skateboard. The Individual denied vandalizing a home, but he
admitted that he was riding a skateboard owned by a resident of that same home when police
arrived. Id. at 87. He denied stealing the skateboard. Id. He stated that he offered to help the
skateboard owner clean the house in exchange for the owner writing a statement that the Individual
did not steal the skateboard. Id. at 88. The owner agreed, and the case was dismissed in court. Id.
The record includes the results of a random drug test from October 2024 that the Individual
underwent as a part of his employment, and the results were negative for marijuana use. Id. at 61;
Ex. A. The record also includes the negative results of a similar drug test undergone in July 2023.
Id. Regarding his falsification of his previous employer’s drug tests, the Individual testified, in
detail, how he purchased and used synthetic urine approximately three times in order to pass drug
tests administered by two different employers. Id. at 62–64. He testified that he did not falsify his
most recent drug test for his current employer nor did he have the opportunity because the
procedures were more stringent. Id. at 66.
Regarding the opinions and recommendations in the DOE Psychologist’s report, the Individual
testified that he did not follow any of the recommendations for addressing the diagnosed Cannabis
Use Disorder because he had already stopped consuming marijuana in June 2023 with no intention
of smoking it again, and therefore approximately eighteen months had passed since his last use.
Id. at 67–69. He also testified that he disagreed with the DOE Psychologist’s opinion that he
exhibited antisocial characteristics and testified that he puts everybody else’s needs above his own.
Id. at 69. The Individual testified that he did not follow the recommendation for individual therapy
because he was too busy taking care of his children. Id. at 70. When asked about antisocial
characteristics, such as failure to obey laws and norms and use of deception in relation to his history
of falsifying drug tests, the Individual testified that one of his employers knew that he was using
synthetic urine to pass the test and did not care that he smoked marijuana so long as he did not
come to work impaired. Id. at 71.
Regarding the supervisor’s statement to the investigator, the Individual testified that the
information provided by the supervisor6 is full of falsehoods. Id. at 73. He denied the allegations
and supported his denial by stating he did not have any write-ups on file and that he was promoted
from hourly to salary pay. Id. at 73–74. He testified that he ultimately left the company because
he and the owner “had got into it more than one time”7 and “the hours weren’t steady.” Id. at 75.
The Individual testified that “they just had issues” with him and he, in turn, “had issues with them.”
Id. at 76.
6 The Individual referred to this person as an “office manager.” Tr. at 73.
7 In one instance, the Individual testified that the owner argued with him and told him he was fired when he failed to
successfully repair a machine that was the responsibility of another worker. Tr. at 75. The Individual testified that he
kept his “hands in [his] pocket ‘cause [he] wasn’t going to get charged with assault or nothing with him.” Id.
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The DOE Psychologist testified that, while the Individual’s Cannabis Use Disorder is in sustained
remission because the Individual has not used marijuana in approximately eighteen months, the
condition is not rehabilitated or reformed because the Individual did not engage in any treatment
the DOE Psychologist recommended. Id. at 94–95. The DOE Psychologist based his opinion on
the fact that the Individual did not demonstrate “an understanding of the addiction process” and
therefore does not “have the tools to use to try to fight those urges” if he encounters them in the
future. Id. at 95. However, the DOE Psychologist did acknowledge that the Individual had been
able to refrain from marijuana use despite relationship struggles with his current girlfriend. Id. at
103. He testified that the Individual’s prognosis was “average,” meaning “better than fair, but not
as high as very good.” Id. at 107. With regard to the Individual’s antisocial personality traits, the
DOE Psychologist testified that these traits likely contributed to the Individual’s failure to follow
the recommendation for treatment. Id. at 98–99. The DOE Psychologist explained that his opinion
regarding the Individual’s mental condition is based on evidence of the Individual’s “failure to
obey laws and norms, the lying, deception, and manipulation, the impulsive behavior, the
irritability and aggression.” Id. at 98. The DOE Psychologist concluded that the Individual
continues to have antisocial personality traits, but he upgraded the prognosis from “guarded” to
“fair” based on some of the changes the Individual described, including avoiding legal issues and
self-inflicted “life changing difficulties ” Id. at 98, 105.
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;
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(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.
I conclude that none of the above mitigating conditions apply to resolve the Guideline E concerns.
Paragraph 17(a) does not apply to resolve the concerns because this factor is applicable to mitigate
the deliberate provision of false information on forms used to conduct investigations or the
deliberate provision of false information to government representatives. See id. at ¶ 16(a). Here,
the allegations contained in the SSC are not based on the Individual providing false information
on a security questionnaire or similar form used to conduct investigations nor to an official
government representative.
Paragraph 17(b) is inapplicable because there is no evidence that the Individual’s conduct 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 since
it occurred, the frequency of the behavior, and the circumstances surrounding it do not demonstrate
that his behavior is unlikely to recur. His intentional falsification of the drug tests and violation of
his employer’s rules occurred between 2018 and 2023, which represents approximately five years.
The significant effort he took to overcome drug tests in order to continue using marijuana
demonstrates significant, planned deception to violate his employer’s rules. This conduct is
especially concerning given that the U.S. Government relies upon drug testing to ensure
compliance with its law, rules, and regulations regarding, among other things, eligibility for a
security clearance. Furthermore, only approximately two years have passed since he last falsified
a drug test in 2023, and, as will be discussed further below regarding Guideline J, the evidence in
the record does not remove my concern that the Individual has not yet acknowledged the severity
of his conduct and accepted full responsibility for it. For example, he testified that one of his
employer’s owners knew he was attempting to circumvent the drug test. However, even if I were
to accept that as true, he still intentionally used deception to avoid the consequences that would
result from a positive result for either employer. And the record includes his past supervisor’s
specific statements of concern regarding the Individual’s rule violations and questionable
judgment and reliability. Regarding the frequency of his behavior, the Individual admitted to
repeating the conduct each time he had a drug test, which demonstrates a pattern. Lastly, there is
no evidence to indicate the circumstances of his behavior were unique. The Individual chose to
deliberately conceal his inappropriate behavior each time, and the Individual was then, as he is
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now, required to undergo employer directed drug testing in order to demonstrate that he is in
compliance with his organization’s rules and policies against drug use.
I also conclude that ¶ 17(d) does not apply to resolve the concerns. I remain concerned that the
Individual has not taken sufficient steps to address the stressors, circumstances, or factors that
contributed to his untrustworthy and unreliable behavior. Because the Individual did not indicate
any stressors or circumstances that led to him intentionally deceive his employer, I am unable to
assess whether or not he has addressed them.
The remaining conditions do not apply to resolve the Guideline E concerns 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 under Guideline E 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.
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.
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I find that none of the mitigating factors apply to resolve the Guideline H concerns. First, under
¶ 26(a), even if I were to credit the Individual’s evidence that he has not used marijuana since June
2023, that only represents approximately eighteen months of abstinence after almost eighteen years
of daily use during which he willfully deceived at least two employers by falsifying the same types
of drug test results he now puts forward to support his testimony. Even setting aside the credibility
issues, I conclude the passage of time given the circumstances is very brief and provides little
confidence that the Individual’s asserted change in behavior will continue. The frequency of his
drug use also fails to mitigate the concerns because it is undisputed that he used marijuana daily
until relatively recently; therefore, his drug use was not infrequent. Finally, as I concluded in the
previous section under Guideline E, the Individual did not put forward evidence that demonstrates
that the circumstances of his behavior were unusual. Accordingly, I do not conclude that
Individual’s conduct is unlikely to recur based on the passage of time, frequency of conduct, or
circumstances, and I remain doubtful regarding the individual’s current reliability, trustworthiness,
and good judgment.
I further conclude that ¶ 26(b) does not apply to resolve the concerns because the Individual has
not acknowledged the severity of his drug use, nor demonstrated that he has taken actions to
overcome his problem, nor established a pattern of abstinence. His lack of acknowledgement is
demonstrated by his refusal to accept the diagnosis of Cannabis Use Disorder. Regarding the
evidence of the Individual’s recent actions, including allegedly stopping his use of marijuana and
spending more time with his children, I am skeptical, generally, of the Individual’s self-serving
testimony given his history of using deception to avoid the consequences of his marijuana use.
Furthermore, given his significant history of drug use and failure to take any of the actions
recommended by the DOE Psychologist, eighteen months is too brief a period from which to
conclude the Individual has established a pattern of abstinence.
Finally, I conclude that ¶ 26(c) and ¶ 26(d) do not apply to resolve the concerns. Since the concerns
are not based on abuse of prescription drugs, ¶ 26(c) is patently inapplicable. Furthermore, ¶ 26(d)
is inapplicable because the Individual did not enroll in nor complete a drug treatment program,
and the Individual did not receive a favorable prognosis from the DOE Psychologist.
For the foregoing reasons, I find that the Individual has not mitigated the Guideline H security
concerns.
C. Guideline I Considerations
Under Guideline I, the following relevant conditions can mitigate security concerns associated
with a psychological condition:
(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;
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(c) Recent opinion by a duly qualified mental health professional employed by, or
acceptable to and approved by, the U.S. Government 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;
(e) There is no indication of a current problem.
Adjudicative Guidelines at ¶ 29.
I find that none of the above conditions apply to resolve the Guideline I concerns. Because I rely
upon much of the same evidence in analyzing all five of the above mitigating factors, the following
analysis addresses them together. While the DOE Psychologist opined that the Individual’s
condition could be improved with treatment, the Individual has not received any treatment or
entered into or completed any counseling to address his condition. Furthermore, there is no
evidence in the record to establish that the condition was temporary. Lastly, the DOE Psychologist
did not give a positive prognosis or opine that the Individual’s condition is under control or has a
low probability of recurrence. Accordingly, I conclude that the Individual has not resolved the
concerns that derive from his antisocial personality traits, which is a condition that can hinder his
reliability, judgment, and trustworthiness.
D. Guideline J Considerations
Conditions that can mitigate security concerns based on criminal conduct include the following:
(a) So much time has elapsed since the criminal behavior happened, or it happened
under such unusual circumstances, that it is unlikely to recur and does not cast
doubt on the individual’s reliability, trustworthiness, or good judgment;
(b) The individual was pressured or coerced into committing the act and those
pressures are no longer present in the person’s life;
(c) No reliable evidence to support that the individual committed the offense; and
(d) There is evidence of successful rehabilitation; including, but not limited to, the
passage of time without recurrence of criminal activity, restitution, compliance
with the terms of parole or probation, job training or higher education, good
employment record, or constructive community involvement.
Adjudicative Guidelines at ¶ 32.
I find that none of the above mitigating conditions apply to resolve the Guideline J concerns. I first
note that neither ¶ 32(b) nor ¶ 32(c) apply to resolve the security concerns. There is no evidence
that the Individual was pressured or coerced into committing criminal conduct, and, aside from a
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few instances, the Individual does not dispute that he committed the acts identified in the SSC even
if he disputes that his admitted actions rose to the level of criminal conduct.
Regarding the remaining two factors, ¶ 32(a) and ¶ 32(d), the evidence in the record regarding his
lack of criminal charges since 2021, and his lack of illegal conduct such as driving under the
influence of marijuana since 2023, is offset by his long history of criminal conduct and his
continuing tendency to minimize his conduct, which leaves me doubtful regarding his
rehabilitation, reliability, trustworthiness, and good judgment. I first note that approximately three
and a half years have elapsed since his most recent criminal charge for Domestic Assault. Since
then, it appears that he has maintained positive employment, and, since 2023, he has allegedly
maintained sobriety from illegal drug use and avoided being implicated in any criminal conduct.
There is therefore evidence of a passage of time without recurrence of criminal activity.
However, I must also consider evidence that weighs against mitigating the concerns. His criminal
conduct spans approximately eighteen years, and there is no evidence that unusual circumstances
are to blame for his conduct. There is, however, significant evidence in the record of his tendency
to minimize his involvement in criminal conduct, which I find concerning. He denied assaulting a
woman in 2011 and stated that he contacted her and she could not recall filing the police report.
He also stated that he could not recall the incident. However, the Individual admitted to knowing
and dating the complainant, and the report itself provides significant detail that implicates the
Individual. His inability or unwillingness to provide any additional information regarding this
incident demonstrates a lack of candidness, which leaves me concerned he has not accepted
responsibility regarding his conduct. It seems unlikely that this complainant created the incident
out of whole cloth, especially considering the reporting police officer observed injuries and spoke
with the Individual, and it seems similarly unlikely that the Individual cannot recall the
circumstances surrounding this incident. I have similar concerns regarding the Individual’s
description of the circumstances that led to his 2021 and 2019 assault charges. Regarding the 2019
charges, the Individual attempted to minimize his culpability by stating that he was merely
attempting to retrieve his money from his ex-wife’s wallet and the cellphone he took from her
hands was actually his phone because he paid the bill. However, in doing so he took possession of
the wallet of another and, irrespective of who owns a telephone, he forcefully took it from her
possession in order to prevent her from contacting law enforcement. I find concerning his attempt
to downplay his culpability. Furthermore, I find concerning the inconsistent accounts of what
occurred during the 2021 incident where the Individual struck a vehicle windshield and injured
himself. The fact that the Individual was exonerated based on the evidence presented at trial does
not detract from the fact that he admitted to punching the windshield out of frustration. It also does
not explain why he failed to mention an attempt to retrieve his items to the responding officer but
later provided that as his motivation to the investigator and during the hearing. His continuing
attempt to reduce his culpability is also exemplified in his denial of theft regarding the skateboard.
He attempts to make a distinction between outright theft and taking the property of another from
a front yard without permission and using it until intercepted by police. However, his efforts betray
a lack of accountability and therefore does not convince me that he is unlikely to reengage in
criminal activity.
Based on my above findings, I conclude that a relatively short period of time has passed since the
Individual purportedly stopped engaging in criminal conduct given the context of his significant
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history of criminal behavior and questionable acceptance of accountability. I also conclude that
the record does not demonstrate that the circumstances surrounding his conduct were unusual.
Lastly, I find that the Individual has not demonstrated rehabilitation nor resolved the doubt
regarding his reliability, trustworthiness, or good judgment. I therefore conclude that the Individual
has not resolved the Guideline J security concerns.
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 Guideline E, Guideline H, Guideline I, and Guideline
J 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 brought forth sufficient
evidence to resolve the Guideline H security concerns set forth in the SSC. However, the Individual
has not brought forth sufficient evidence to resolve the Guideline E, I, and J security concerns.
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