PSH-24-0175

*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: August 9, 2024 ) Case No.: PSH-24-0175
)
__________________________________________)
Issued: December 17, 2024
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Administrative Judge Decision
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Phillip Harmonick, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXXXX (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
In 2017, the Individual signed and submitted a Questionnaire for National Security Positions (2017
QNSP) as part of seeking access authorization. Exhibit (Ex.) 11 at 185.2 The Individual disclosed
on the 2017 QNSP that he had used marijuana from 1996 until 2016, and had used
methylenedioxymethamphetamine (MDMA), cocaine, hallucinogenic mushrooms, lysergic acid
diethylamide (LSD), and various narcotic pharmaceutical drugs for which he did not have a
prescription for varying periods and at varying frequencies during that period. Id. at 174‒79. A
background investigation of the Individual also established that he was denied employment in
approximately 2003 after testing positive for marijuana. Ex. 12 at 338. In December 2018, the
Individual was granted access authorization. Ex. 10 at 136.
On December 4, 2023, the Individual signed and submitted a QNSP (2023 QNSP) as part of a
routine reinvestigation of his eligibility for access authorization. Id. at 141. The Individual
1 The regulations define access authorization as “an administrative determination that an individual is eligible for access
to classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). This
Decision will refer to such authorization as access authorization or security clearance.
2 The exhibits submitted by DOE were Bates numbered in the upper right corner of each page. This Decision will refer
to the Bates numbering when citing to exhibits submitted by DOE.
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disclosed on the 2023 QNSP that he had begun illegally using synthetic opioids (fentanyl) in 2019
and had used them “50+” times while possessing access authorization.3 Id. at 132‒34. The
Individual additionally disclosed that he received inpatient treatment as a result of his fentanyl
misuse and subsequently entered treatment with a therapist. Id. at 130, 134‒35. In a February 9,
2024, response to a letter of interrogatory (LOI) issued to him by the local security office (LSO),
the Individual admitted that he had tested positive for synthetic opioids when he was admitted to
treatment in 2022. Ex. 6 at 29. On March 7, 2024, the Individual was evaluated by a DOE-
contracted psychologist (DOE Psychologist). Ex. 8 at 52.
The LSO subsequently issued the Individual a Notification Letter advising him that it possessed
reliable information that created substantial doubt regarding his eligibility for access authorization.
Ex. 1 at 7‒9. In a Summary of Security Concerns (SSC) attached to the letter, the LSO explained
that the derogatory information raised security concerns under Guidelines E and H of the
Adjudicative Guidelines. Id. at 5‒6.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 2. The Director of the Office of Hearings and Appeals (OHA) appointed
me as the Administrative Judge in this matter, and I conducted an administrative hearing. The LSO
submitted twelve exhibits (Ex. 1–12). The Individual submitted seven exhibits (Ex. A–G).4 The
Individual testified on his own behalf and offered the testimony of his wife, his father, his
supervisor, and a member of a men’s group in which the Individual participates (Group Member).
Hearing Transcript, OHA Case No. PSH-24-0175 (Tr.) at 3, 11, 55, 73, 93, 110.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline E (Personal Conduct) of the Adjudicative Guidelines as one basis for its
substantial doubt regarding the Individual’s eligibility for access authorization. Ex. 1 at 5.
Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to
comply with rules and regulations can raise questions about an individual’s reliability,
trustworthiness, and ability to protect classified or sensitive information. Of special interest
is any failure to cooperate or provide truthful and candid answers during national security
investigative or adjudicative processes.
Adjudicative Guidelines at ¶ 15. The SSC alleged that the Individual illegally purchased and used
synthetic opioids while possessing a DOE security clearance and failed to report his drug use as
required. Ex. 1 at 5. The LSO’s allegations that the Individual deliberately concealed his illegal
drug use from his employer and security officials justify its invocation of Guideline E.
Adjudicative Guidelines at ¶ 16(b).
3 This Decision will refer to the substance used by the Individual beginning in 2019 as fentanyl. While the Individual
may have used other synthetic opioids, the record does not specifically reference any other synthetic opioids that the
Individual used, and he referred exclusively to fentanyl in his hearing testimony concerning his illegal drug use.
4 The Individual submitted his exhibits as a single PDF file. This Decision cites to the pages in the file in the order in
which they appear as if they were consecutively paginated.
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The LSO cited Guideline H (Drug Involvement and Substance Misuse) as the other basis for its
substantial doubt regarding the Individual’s eligibility for access authorization. Ex. 1 at 5‒6.
The illegal use of controlled substances, to include the misuse of prescription and non-
prescription drugs, 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. The SSC cited the Individual’s admitted drug use from 1996 to
2016, positive drug tests, and use of synthetic opioids while possessing a DOE security clearance.
Ex. 1 at 5‒6. The LSO’s allegations that the Individual misused and illegally possessed controlled
substances, tested positive for illegal drugs, and engaged in illegal drug use while granted access
to classified information or holding a sensitive position, justify its invocation of Guideline H.
Adjudicative Guidelines at ¶ 25(a)‒(c), (f).
III. REGULATORY STANDARDS
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all of the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s access authorization will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The regulatory
standard implies that there is a presumption against granting or restoring a security clearance. See
Dep’t of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national interest”
standard for granting security clearances indicates “that security determinations should err, if they
must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990) (strong
presumption against the issuance of a security clearance).
An individual must come forward at the hearing with evidence to convince the DOE that granting
or restoring access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). An individual is afforded a
full opportunity to present evidence supporting his or her eligibility for an access authorization.
The Part 710 regulations are drafted so as to permit the introduction of a very broad range of
evidence at personnel security hearings. Even appropriate hearsay evidence may be admitted. Id.
§ 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
The Individual began using marijuana in 1996. Ex. 11 at 174. The Individual subsequently began
using MDMA, cocaine, hallucinogenic mushrooms, LSD, and various narcotic pharmaceutical
drugs for which he did not have a prescription. Id. at 174‒76. In approximately 2003, the Individual
was denied a job to which he had applied after testing positive for marijuana. Ex. 12 at 338. By
2004, the Individual was using marijuana on a daily basis. Ex. 11 at 174. In 2014, the Individual
and his first wife divorced, in part because of the Individual’s drug use. Id. at 163, 176 (reflecting
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information the Individual provided on the 2017 QNSP, including that his prescription drug misuse
“was a major catalyst in [his] divorce”).
In 2017, the Individual was hired by a DOE contractor. Id. at 158. In May 2017, the Individual
submitted the 2017 QNSP as part of seeking access authorization. Id. at 185. The Individual
disclosed his illegal drug use on the 2017 QNSP and claimed that he had discontinued all illegal
drug use in 2016 or earlier. Id. at 174‒76 (providing varying years in which he claimed to have
discontinued using different illegal drugs). The Individual represented that he had “cleaned up
through [his] religious affiliation and relationship with God,” he “no longer [had] a desire to treat
[his] body in a manner that [went] against [his] religious beliefs,” and his religious practice had
“provide[d him] with healthier ways of dealing with [his] emotions . . . .” Id. at 28‒29.
In December 2018, the Individual was granted access authorization. Ex. 10 at 136. In February
2019, the Individual began illegally using synthetic opioids, such as fentanyl. Id. at 132; see also
Tr. at 164 (testifying at the hearing that he did not “have a good answer” as to why he chose to
resume illegal drug use). The LSO issued the Individual two LOIs, and in his responses the
Individual indicated that he chose to use fentanyl to obtain “pleasurable feelings . . . .” Ex. 6 at 29;
Ex. 7 at 35. During his interview with the DOE Psychologist, the Individual elaborated that he had
chosen to use fentanyl because friends had told him that “it felt good” and “does not show up on a
standard drug screen.” Ex. 8 at 54; see also Tr. at 123‒24 (testimony from the Individual
confirming that he chose to use fentanyl because he was told that it “would not show up on a drug
test” and that he understood that a positive drug test could cause him to “lose [his] clearance and
therefore [his] job”). The frequency of the Individual’s use of fentanyl increased until he was using
it daily and would experience withdrawal symptoms when he did not do so. Ex. 6 at 29; Ex. 8 at
54; Ex. 10 at 132.
At the hearing, the Individual testified that he knew that he was required to disclose illegal drug
use at the time he was using fentanyl. Tr. at 170. He attributed his decision not to do so to “the
preservation that an addict has. Like you’re trying to keep your secrets and trying to . . . keep
feeding that monkey brain [sic].” Id.
The Individual met his current wife in January 2020. Id. at 13 (reflecting the testimony of the
Individual’s wife at the hearing). Approximately one month later, the Individual revealed to her
that he was illegally using fentanyl and told her that he was “actively trying to quit . . . .” Id. at 15.
The Individual’s wife told him that she would only continue to see him if he was “actively quitting”
fentanyl use. Id. In August 2021, at which time she believed the Individual to have been “clean,”
she accepted his proposal of marriage. Id. at 17. However, the Individual subsequently relapsed.
Id. at 141‒42. After several unsuccessful attempts at ceasing his use of fentanyl, the Individual
“detoxed” in December 2021 and experienced “horrible withdrawal symptoms.” Id. at 142. The
Individual’s wife believed that this effort was successful. Id. at 18, 42, 142. However, the
Individual felt too sick to work and secretly resumed using fentanyl. Id. at 142.
In approximately March 2022, at which time the Individual and his wife remained engaged to be
married, the Individual’s wife discovered his fentanyl in their home while he was on a trip, told
him that she would not marry him unless he pursued treatment, and revealed the Individual’s drug
use to his parents. Ex. 8 at 54, 56; Tr. at 62, 69 (testimony of the Individual’s father that the
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Individual’s wife revealed the Individual’s drug use to him in March 2022 and that he was
“shocked” to learn of the Individual’s drug use); Tr. at 142 (reflecting the Individual’s testimony
concerning the circumstances of his wife’s discovery of the drugs). The Individual’s father
subsequently spoke to the Individual and convinced him to enter treatment. Tr. at 63.
The Individual was admitted to an inpatient detox program for drug-related treatment on March
20, 2022. Ex. 12 at 261. The Individual tested positive for synthetic opioids at intake to the
inpatient treatment program. Ex. 6 at 30. The Individual reported to his supervisor that he was
attending “rehab” but did not disclose that it was for drug addiction. Tr. at 83, 87 (testimony from
the Individual’s supervisor that the Individual contacted him to arrange for leave to attend alcohol-
related “rehab”); see also Tr. at 19‒20 (reflecting the testimony of the Individual’s wife that she
brought the Individual’s computer to the inpatient treatment facility at the request of the facility’s
clinicians to allow the Individual to “contact work about his absence” because the Individual was
“hyperfixated on work” and it was interfering with his treatment); but see Tr. at 115 (reflecting
testimony from the Individual that he told his supervisor that he was attending substance abuse
treatment but did not specifically state the substance for which he was seeking treatment).
The Individual was discharged from the inpatient program on April 28, 2022. Ex. 12 at 261.
Following his discharge from the inpatient program, the Individual enrolled in individual treatment
with a therapist (First Therapist). Ex. 8 at 55; Ex. 10 at 135. The Individual met with the First
Therapist on an at least monthly basis from June 2022 until March 2023 when the First Therapist
transitioned to a different practice. Ex. 8 at 55. The Individual then transferred to a different
therapist (Second Therapist) with whom he began meeting in June 2023. Id. As of the date of the
hearing, the Individual was continuing to meet monthly with the Second Therapist and was focused
on addressing feelings related to the death of the Individual’s mother when he was a child which
the Individual believes contributed to his illegal drug use. Tr. at 135‒37. A letter from the Second
Therapist submitted by the Individual at the hearing states that the Individual had “been compliant
with his treatment” and “demonstrated a genuine commitment to [] sobriety.” Ex. D at 19.
The Individual attended Narcotics Anonymous (NA) from approximately May 2022 to November
2023. Tr. at 147, 183; see also Ex. B at 11 (photo of coins the Individual received through his NA
participation); Tr. at 24 (testimony from the Individual’s wife that she attended Nar-Anon support
group meetings); Ex. B at 10 (Individual’s wife’s Nar-Anon token and reading material). The
Individual decided to discontinue attending NA because he “was starting to kind of grow out of it
. . . [and could] only hear the same story so many times.” Tr. at 156. The Individual began attending
a faith-based men’s group in November 2022. Tr. at 94 (testimony of the Group Member
confirming the period of the Individual’s attendance). Members of the men’s group engage in
various practices to support their faith and each other. Id. at 95, 156‒57. The Individual is an active
participant in the men’s group and has shared his illegal drug use and expressed contrition for
having used illegal drugs. Id. at 96, 102.
The Individual and his wife married in October 2023. Ex. 8 at 56; Ex. A at 5‒7. Also in October
2023, the Individual began attending a university in order to earn a bachelor’s degree. Ex. F at 25
(showing the Individual’s university transcript). The Individual was still attending the university
as of the date of the hearing and had a grade point average of 4.0. Id.; Tr. at 128. According to the
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Individual, his drug use had interfered with his studies in the past and he sees earning a bachelor’s
degree as a chance to “show [himself] that [he] could do it.” Tr. at 128.
On December 4, 2023, the Individual signed and submitted the 2023 QNSP. Ex. 10 at 141. The
Individual disclosed his use of fentanyl and treatment.5 Id. at 130, 132‒36. In a January 10, 2024,
response to an LOI, the Individual claimed to have reported his “use, hospitalization, and
treatment” to “[p]ersonnel security” in March 2022.6 Ex. 7 at 46.
On March 7, 2024, the Individual met with the DOE Psychologist for a psychological evaluation.
Ex. 8 at 52. The DOE Psychologist subsequently issued a report of the evaluation (Report) in which
he opined that the Individual met sufficient criteria for a diagnosis of Opioid Use Disorder, Severe,
in Sustained Remission, under the Diagnostic and Statistical Manual of Mental Disorders, Fifth
Edition, Text Revision (DSM-5-TR).7 Id. at 59.
The Individual underwent drug tests on August 22, 2024, October 11, 2024, and November 15,
2024, each of which was negative for evidence of illegal drug use, including fentanyl. Ex. C at 13‒
17. According to the Individual, he no longer experiences cravings to use illegal drugs and so much
time has passed since he last experienced a craving that he cannot recall the last occasion on which
he did. Tr. at 163. The Individual testified that he had previously obtained fentanyl from a drug
dealer to whom he was introduced by friends, and that he no longer is in contact with the friends
or the drug dealer. Id. at 178‒79. The Individual testified that his wife is “critical to [his] recovery”
and that he is unlikely to relapse into illegal drug use because he is in a “very different . . . place
in [his] life” from 2019 when “beyond [his] job [he] didn’t have much to lose.” Id. at 164‒65.
The Individual’s wife observed that the Individual was often tired and passive when he was using
fentanyl but is now more proactive and social. Id. at 24‒25. The Individual also volunteers for his
church in several capacities. Id. at 150‒51; see also id. at 31‒32 (confirming testimony from the
Individual’s wife as to the Individual’s volunteerism). The Individual’s wife will not tolerate any
future drug use from the Individual. Id. at 36. She testified that she believed that she had learned
enough of the Individual’s “mannerisms [and] behaviors” since his prior illegal drug use that she
5 In the 2023 QNSP, the Individual inaccurately reported that he had ceased using synthetic opioids and entered
treatment in March 2021. Ex. 10 at 130, 132. In response to an LOI from the LSO, before being confronted with
evidence as to the discrepant dates, the Individual clarified that he had entered treatment in March 2022 and
represented that the dates he provided in the 2023 QNSP were typographical errors. Ex. 7 at 35.
6 According to the Individual, he “called personnel security” and “reported [him]self” while he was in the inpatient
treatment facility. Tr. at 146. I find it highly improbable that the LSO would have failed to investigate this information
if the Individual had properly reported it as he claimed. Furthermore, the Individual’s supervisor testified that he was
sure that the Individual told him on multiple occasions that he had received alcohol-related treatment. Id. at 83, 86.
The Individual’s supervisor, who appeared as a witness on behalf of the Individual, had no discernable motive to
provide inaccurate information. In light of the Individual’s supervisor’s lack of motivation to provide inaccurate
information, and his certainty as to the Individual having told him that his treatment was related to alcohol, I credit
the Individual’s supervisor’s testimony over the Individual’s. Considering the Individual’s deceptiveness to his
supervisor about the nature of his treatment and the lack of records of the Individual reporting his treatment to the
LSO, I find it most probable that the Individual’s claim to have timely reported his treatment to the LSO is not true.
7 The SSC did not cite the DOE Psychologist’s diagnosis of the Individual with Opioid Use Disorder as a security
concern. Ex. 1 at 5‒6.
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would recognize if the Individual had returned to using drugs. Id. at 41. If she discovered that he
was using drugs, she would confront him and share his relapse with his parents. Id. at 49.
The Individual’s father testified that the Individual has been more open and affectionate since
undergoing treatment and that their relationship had improved immensely. Id. at 65. The
Individual’s father believes that the risk of losing his marriage will motivate the Individual to
abstain from illegal drug use. Id. at 66.
The Individual is regarded as honest and reliable by his colleagues and family. Id. at 37‒38
(testimony of the Individual’s wife that she finds him honest and reliable); id. at 66 (testimony of
the Individual’s father that he never questioned the Individual’s integrity when the Individual
worked at a family business); id. at 77 (testimony from the Individual’s supervisor that the
Individual is a reliable employee); Ex. G at 26‒27 (letters from a colleague of the Individual and
a faith leader stating that the Individual is honest and reliable).
V. ANALYSIS
A. Guideline H
Conditions that may 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;
(2) changing or avoiding the environment where drugs were used; and
(3) providing a signed statement of intent to abstain from all drug involvement and
substance misuse, acknowledging that any future involvement or misuse is
grounds for revocation of national security eligibility;
(c) abuse of prescription drugs was after a severe or prolonged illness during which
these drugs were prescribed, and abuse has since ended; and
(d) satisfactory completion of a prescribed drug treatment program, including, but not
limited to, rehabilitation and aftercare requirements, without recurrence of abuse,
and a favorable prognosis by a duly qualified medical professional.
Id. at ¶ 26.
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The Individual engaged in significant illegal drug use from 1996 to 2016 before abstaining from
illegal drugs for several years only to relapse in 2019 when he began illegally using fentanyl. The
Individual ultimately used fentanyl daily for several years until March 2022. In light of the
Individual’s daily illegal drug use and prior relapse following several years of abstinence from
illegal drugs, his illegal drug use was neither infrequent nor long enough in the past to demonstrate
the applicability of the first mitigating condition. The Individual also indicated that he had no
particular reason for relapsing in 2019 and so his fentanyl use did not occur under unusual
circumstances. Therefore, I find the first mitigating condition inapplicable. Id. at ¶ 26(a).
The Individual has acknowledged his drug involvement, undergone treatment, and adopted a new
lifestyle which does not involve associating with drug users or drug dealers. However, as described
above, the Individual’s abstinence from illegal drugs is not a sufficient pattern in of itself to
convince me that he will not return to illegal drug use in the future in light of his previous return
to illegal drug use after an approximately three-year period of abstinence. Additionally, the
Individual did not provide the signed statement of intent referenced in the mitigating condition.
Accordingly, I find the second mitigating condition inapplicable. Id. at ¶ 26(b).
The third mitigating condition is irrelevant to the facts of this case because the Individual does not
claim that he was prescribed fentanyl or other synthetic opioids. Id. at ¶ 26(c).
The Individual completed the inpatient treatment program and subsequently attended NA meetings
for over one year. There is no indication that he has relapsed since that time, the DOE Psychologist
opined that the Individual’s Opioid Use Disorder was in sustained remission, and the Second
Therapist provided a positive opinion as to the Individual’s recovery. Accordingly, I find the fourth
mitigating condition applicable. Id. at ¶ 26(d).
Although the Individual has established the applicability of one of the mitigating conditions, I
nevertheless find that he has not satisfactorily resolved the security concerns asserted by the LSO
under Guideline H. In applying the Adjudicative Guidelines, I am to consider:
The nature, extent, and seriousness of the conduct; the circumstances surrounding the
conduct, to include knowledgeable participation; the frequency and recency of the conduct;
the age and maturity of the individual at the time of the conduct; the voluntariness of
participation; the absence or presence of rehabilitation or reformation and other pertinent
behavioral changes; the motivation for the conduct; the potential for pressure, coercion,
exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and
material factors.
10 C.F.R. § 710.7(c). Nearly all of these considerations weigh against the Individual. The
Individual’s use of fentanyl on a daily basis while possessing access authorization, despite
knowing that doing so violated his obligations to DOE, represented extremely serious and frequent
misconduct in which the Individual knowingly participated. The Individual’s selection of fentanyl
because he believed that he could use it without detection through drug testing compounds the
seriousness of his conduct. Yet further, the testimony of the Individual’s supervisor casts serious
doubt on the extent to which the Individual’s employer is aware of his drug use and suggests that
he could be exposed to pressure or coercion through the threat of revealing this information to his
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colleagues. The Individual was in his mid-thirties when he began using fentanyl, and thus youth
and immaturity did not contribute to his conduct. See Ex. 11 at 151 (indicating the Individual’s
birthdate).
The Individual’s perception that he “didn’t have much to lose” in 2019 when he began using
fentanyl, despite possessing access authorization, establishing years of abstinence from illegal
drugs, and having claimed on the 2017 QNSP that his religious practice would help him to continue
to abstain, suggests that his religious practice and obligations as a clearance holder are
insufficiently weighty to the Individual to prevent him from indulging in illegal drug use. The
Individual’s testimony indicates that his relationship with his wife is central to his motivation to
abstain from drugs. While the Individual may be genuinely motivated to refrain from illegal drug
use to preserve his marriage, it is hard to believe that the Individual will maintain this motivation
if the relationship dissolves in the future in light of his prior conduct. Considering the Individual’s
conscious decision to use fentanyl because he believed that he could do so without being detected
and to prioritize risky self-gratification over his obligations to DOE as a clearance holder, I cannot
conclude that the Individual’s marriage and his stated motivations to preserve it are a sufficient
basis upon which to make a national security decision. Accordingly, I find that the LSO’s concerns
under Guideline H are not resolved.
B. Guideline E
Conditions that could mitigate security concerns under Guideline E include:
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
(b) the refusal or failure to cooperate, omission, or concealment was caused or
significantly contributed to by advice of legal counsel or of a person with
professional responsibilities for advising or instructing the individual specifically
concerning security processes. Upon being made aware of the requirement to
cooperate or provide the information, the individual cooperated fully and truthfully;
(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent,
or it happened under such unique circumstances that it is unlikely to recur and does
not cast doubt on the individual’s reliability, trustworthiness, or good judgment;
(d) the individual has acknowledged the behavior and obtained counseling to change
the behavior or taken other positive steps to alleviate the stressors, circumstances,
or factors that contributed to untrustworthy, unreliable, or other inappropriate
behavior, and such behavior is unlikely to recur;
(e) the individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress;
(f) the information was unsubstantiated or from a source of questionable reliability;
and
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(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.
It is undisputed that the Individual intentionally failed to disclose his illegal drug use while
possessing access authorization as required for several years. I do not credit the Individual’s
claim to have timely disclosed his inpatient drug treatment as required, but even if I did, the
Individual’s disclosure would have come far too late after he began illegally using fentanyl for
it to be prompt. Thus, the first mitigating condition is inapplicable. Id. at ¶ 17(a).
The second mitigating condition is irrelevant to the facts of this case because the Individual
does not claim that his failure to promptly disclose his fentanyl use was based on the advice of
counsel or another representative. Id. at ¶ 17(b).
The Individual’s failure to disclose his illegal drug use while possessing a security clearance
was extremely serious and persisted for years, and thus cannot be said to have been minor or
infrequent. Considering the seriousness and persistence of the conduct, the passage of time
alone – whether since the Individual’s claimed disclosure at the time of his inpatient treatment
or his submission of the 2023 QNSP – does not mitigate the security concerns.
The Individual claims that he has resolved the illegal drug use and thus he will not engage in
deceptiveness in the future because he is no longer under the influence of addiction. As
explained above, I do not find that the Individual has resolved the concerns related to his illegal
drug use. However, even if he had, I would still find the third mitigating condition inapplicable.
As explained above, I do not credit the Individual’s claim that he promptly disclosed his
inpatient treatment as required. Supra note 6. Rather, I believe it likely that the Individual
delayed disclosing this information until he submitted the 2023 QNSP when a background
investigation almost certainly would have revealed the Individual’s claims to his employer that
he received alcohol-related treatment. Thus, I find it likely that the Individual’s deceptive
behavior persisted until December 2023, by which time he had been abstinent from illegal
drugs for approximately 20 months. As the Individual’s deceptiveness persisted long after the
cloud of addiction had cleared, doubt remains as to whether he will disclose derogatory
information in the future, whether or not related to illegal drug use, if he perceives that he can
delay or avoid detection. Thus, I find the third mitigating condition inapplicable. Adjudicative
Guidelines at ¶ 17(c).
For the aforementioned reasons, I am not convinced that the Individual’s deceptiveness was
solely attributable to addiction. Accordingly, I am not convinced that his drug-related treatment
is sufficient to establish that he will be truthful in the future if he is required to disclose
derogatory information. Thus, the fourth mitigating condition is inapplicable. Id. at ¶ 17(d).
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The LSO did not specifically allege that the Individual’s untruthfulness created a heightened
risk of exploitation, manipulation, or duress. Thus, the fifth mitigating condition is irrelevant
to the facts of this case. Id. at ¶ 17(e). The sixth mitigating condition is likewise irrelevant
because the Individual does not dispute the LSO’s allegations. Id. at ¶ 17(f). The seventh
mitigating condition is also irrelevant because the LSO did not allege that the Individual
associated with persons involved in criminal activities. Id. at ¶ 17(g).
Having concluded that none of the mitigating conditions are applicable to the facts of this case,
I find that the Individual has not resolved the security concerns asserted by the LSO under
Guideline E.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise security concerns under Guidelines E and H of the Adjudicative Guidelines. After
considering all the relevant information, favorable and unfavorable, in a comprehensive, common-
sense manner, including weighing all the testimony and other evidence presented at the hearing, I
find that the Individual has not brought forth sufficient evidence to resolve the security concerns.
Accordingly, I have determined that the Individual’s access authorization should not be restored.
This Decision may be appealed in accordance with the procedures set forth at 10 C.F.R. § 710.28.
Phillip Harmonick
Administrative Judge
Office of Hearings and Appeals