PSH-25-0060

*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: January 13, 2025 ) Case No.: PSH-25-0060
)
__________________________________________)
Issued: April 3, 2025
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Administrative Judge Decision
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Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization under the Department of Energy’s (DOE) regulations
set forth at 10 C.F.R. Part 710, entitled “Procedures for Determining Eligibility for Access to
Classified Matter and Special Nuclear Material.”1 The present case involves an Individual who
had omitted derogatory information from a Questionnaire for National Security Position (QNSP)
and during an Enhanced Subject Interview (ESI). This Decision considers whether the Individual
has resolved the security concerns raised by his omissions. 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 granted.
I. Background
On April 1, 2024, the Individual signed, certified, and submitted a QNSP to a Local Security Office
(LSO). Ex. 5 at 42. In this QNSP, the Individual initially stated that he was presently employed
by a local firm (Employer). Ex. 5 at 20. However, in response to a subsequent question asking if
he had been disciplined for misconduct in the workplace, the Individual reported that he had been:
“Disciplined for attendance [by the Employer] but didn’t receive any warning beforehand, I was
let go from job.” Ex. 5 at 21. The Individual estimated that this termination occurred in February
2024. Ex. 5 at 21. The QNSP asked the Individual whether he had used any illegal drugs or
controlled substances in the past seven years. Ex. 5 at 36. The Individual responded to this
question by stating “no.” Ex. 5 at 36.
1 Under the regulations, “[a]ccess authorization means 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). Such authorization will also be referred to in this Decision as a security clearance.
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The Office of Personnel Management (OPM) subsequently conducted a background investigation
of the Individual. On April 26, 2024, an OPM investigator conducted an ESI of the Individual. Ex.
5 at 48. During the ESI, the Individual reported that the Employer had terminated him in February
2024. Ex. 5 at 48. The Individual claimed that this termination occurred after he texted his
supervisor to inform the supervisor that he was not going to report for his next shift. Ex. 5 at 48.
He further claimed his supervisor replied “ok” to this text. Ex. 5 at 48. He then claimed that he
had received a phone call from human resources informing him that he did not have enough leave
to miss this shift and as a result, the Employer was terminating him. Ex. 5 at 48–49. The Individual
claimed that he thought he had enough outstanding leave to take the shift off. Ex. 5 at 49.
An OPM investigator interviewed an acquaintance of the Individual on April 26, 2024. Ex. 5 at
57. The acquaintance informed the OPM investigator, that the Individual “tried use of marijuana
before he joined the Army but did not like it.” Ex. 5 at 58.
An OPM investigator interviewed a representative (Representative) of the Employer on May 6,
2024. Ex. 5 at 53. The Representative reported that she had met with the Individual on several
occasions in 2023 to discuss his attendance issues and to inform him of the consequences of any
further attendance issues. Ex. 5 at 53. The Individual had been issued written counseling on three
occasions. Ex. 5 at 53. The Employer issued a fourth written counseling document to the
Individual which included his termination papers. Ex. 5 at 53. The Individual did not show up for
his termination meeting. Ex. 5 at 53.
On May 9, 2024, an OPM investigator contacted the Individual by telephone for some follow-up
questions. Ex. 5 at 49. The investigator reported that he asked the Individual why he did not report
his termination in his QNSP. Ex. 5 at 50. The Individual stated that “he should have added this
separation, but he was fearful this would cripple him from getting his clearance.” Ex. 5 at 50.
On August 5, 2024, the LSO issued a Letter of Interrogatory (LOI) to the Individual inquiring
about the Individual’s illegal drug use, his employment at the Employer, and statements he had
made in his QNSP and during his ESI. Ex. 6 at 1–2. Later that day, the Individual responded to
this LOI. Ex. 6 at 1. In this LOI response, the Individual apologized for his omissions, stating: “I
apologize for not enclosing this information during the interview, I was nervous and concerned
this wouldn’t allow me to get a security clearance . . . .” Ex. 6 at 1. He then admitted using
marijuana “for like a couple of months in the summer of 2017” and “one other time in 2018 with
my wife.” Ex. 6 at 1. The Individual further stated: “As far as my employment history, . . . I was
concerned that I would not be able to get a security clearance if I had writeups for work attendance
. . . [and] I was nervous that I would be disqualified from getting my security clearance because of
getting fired from [the Employer].” Ex. 6 at 1.
A. Present Administrative Review Proceeding
The LSO began the present administrative review proceeding by issuing a Notification Letter to
the Individual informing him that it had received derogatory information creating substantial doubt
regarding his eligibility to hold a security clearance. The Notification Letter further informed the
Individual that he was entitled to a hearing before an Administrative Judge to resolve the security
concerns. See 10 C.F.R. § 710.21. The Individual requested a hearing, and the LSO forwarded
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the Individual’s request to the Office of Hearings and Appeals (OHA). The Director of OHA
appointed me as the Administrative Judge in this matter. At the hearing I convened pursuant to
10 C.F.R. § 710.25(d), (e), and (g), I took testimony from the Individual, as well as his mother,
brother, and spouse. The DOE Counsel submitted six exhibits, marked as Exhibits 1 through 6.
The Individual submitted no exhibits.
II. The Summary of Security Concerns (SSC)
The SSC attached to the Notification Letter informed the Individual that information in the
possession of the DOE creates substantial doubt concerning his eligibility for a security clearance
under Guideline E (Personal Conduct) of the Adjudicative Guidelines.
Under Guideline E, the LSO cited the Individual’s failure to report his marijuana use on his QNSP,
his failure to be fully forthcoming in his QNSP concerning the circumstances of his employment
with the Employer in his QNSP, and his provision of false information during his ESI. This
information adequately justifies the LSO’s invocation of Guideline E. Under Guideline E,
“[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. Among those conditions set forth in the Adjudicative Guidelines that could raise a
disqualifying security concern are “deliberate omission, concealment, or falsification of relevant
facts from any personnel security questionnaire” and “deliberately . . . concealing or omitting
information, concerning relevant facts to . . . an investigator [or] security official . . . involved in
making a recommendation relevant to a national security eligibility determination.” Adjudicative
Guidelines at ¶ 16(a)‒(b).
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 their eligibility for an access authorization. The
Part 710 regulations are drafted to permit the introduction of a very broad range of evidence at
personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R.
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§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
IV. Hearing Testimony
The Individual’s mother testified at the hearing that she and the Individual are close and see each
other weekly. Tr. at 11. She testified that the Individual has a strong conscience. Tr. at 14. When
he would lie as a child, he would always end up confessing the truth. Tr. at 15. She repeatedly
testified that she was only aware of one use of marijuana by the Individual. Tr. at 16, 22. The
Individual told her that he didn’t realize that the Employer had warned him that he would be
disciplined if he had anymore absences. Tr. at 18. The Individual told her he omitted his marijuana
use from his QNSP because he had forgotten about it since he had only used marijuana once. Tr.
at 22–23, 29.
The Individual’s brother testified on the Individual’s behalf at the hearing. He testified that he was
aware of the Individual’s marijuana use. Tr. at 39. He admitted to using marijuana with the
Individual. Tr. at 39. He testified that before the Individual had submitted the QNSP, he had
advised the Individual that he should be open and honest when completing his QNSP. Tr. at 43–
45. He testified generally to the Individual’s honesty and good character. Tr. at 48.
The Individual’s spouse testified on his behalf at the hearing. She testified that, during the seven
years that she has known the Individual, she is only aware of the one occasion on which he used
marijuana. Tr. at 59. She testified that she believes that the Individual inadvertently forgot to
include some information in his QNSP. Tr. at 64, 67. She testified that the Individual is a “rule
follower.” Tr. at 70. She further testified: “I think the nerves got to him, and I just don’t see him
intentionally answering things incorrectly or falsifying things.” Tr. at 73.
The Individual testified that he: “wasn’t deliberately trying to lie and everything and be dishonest
with everything. I really . . . was trying to be as honest as possible and everything as far as, like,
filling that out, the questionnaire and everything.” Tr. at 81. The Individual further admitted that
he had not reported the full circumstances that led to his termination by the Employer because of
his concern that he would not be granted a security clearance if he had reported that he had been
terminated by the Employer for attendance problems. Tr. at 82–83, 88. He testified that he did
not realize that he had been given his final warning when he was terminated. Tr. at 83. He
described his decision to use marijuana as “a stupid decision, stupid choice.” Tr. at 94. The
Individual subsequently contended that his omissions from the QNSP were inadvertent and that he
“wasn’t trying to lie or anything like that.” Tr. at 96. The DOE Counsel then confronted the
Individual with his prior admission that he had omitted information from the QNSP because he
was concerned it might prevent him from receiving his security clearance. Tr. at 97–98. The
Individual then provided the following explanation:
Like I said, sir, I was rushing through it and even with those I had been answering
questions so much that from the DOE and everything and I apologize, I should
have, I should have. But I never deliberately tried to lie. I wasn’t trying to falsify
any information on anything.
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Tr. at 99. The DOE Counsel then asked the Individual why he did not disclose this information to
the OPM investigator during his initial interview. Tr. at 101. The Individual responded by stating:
“I should have, and I just, I was, my nerves were wrecked, and I was already answering a bunch
of questions from her that I was, like, getting questions shot-off left and right. And I should have
and I didn’t, and, yes, sir.” Tr. at 101. The Individual subsequently inadvertently admitted that he
failed to disclose his marijuana use because he was concerned it would prevent him from receiving
his security clearance. Tr. at 103. However, the Individual subsequently attributed his omissions
to his haste in completing the QNSP. Tr. at 104. The Individual did acknowledge that he should
have handled his attendance problems with the Employer with more maturity and accountability.
Tr. at 106. He agreed that he should have acknowledged his admissions more fully. Tr. at 114.
He also admitted that he “messed up” and should have been “upfront and honest.” Tr. at 115–16.
V. Analysis
The Adjudicative Guidelines set forth seven factors that may mitigate security concerns under
Guideline E, four of which are relevant to the present case.2 First, the Adjudicative Guidelines
provide that an individual may mitigate security concerns under Guideline E if they “made prompt,
good-faith efforts to correct the omission, concealment, or falsification before being confronted
with the facts.” Adjudicative Guidelines at ¶ 17(a). In the present case, the Individual clearly did
not make prompt good faith efforts to correct his omissions, and did not do so until confronted by
the OPM investigator about his termination by the Employer and by the LSO in the LOI about his
past marijuana use. Accordingly, I find that the mitigating condition set forth at ¶ 17(a) is not
present in the instant case.
Second, the Adjudicative Guidelines provide that an individual may mitigate security concerns
under Guideline E if “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” and “[u]pon being made aware of the requirement to cooperate or provide the
information, the individual cooperated fully and truthfully.” Adjudicative Guidelines at ¶ 17(b).
In the present case, the Individual does not contend that he was counseled to omit derogatory
information. Accordingly, I find that the mitigating condition set forth at ¶ 17(b) is not present in
the instant case.
Third, the Adjudicative Guidelines provide that an individual may mitigate security concerns under
Guideline E if “[t]he 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.” Adjudicative
Guidelines at ¶ 17(c). In the present case, the security concerns raised by the Individual’s
omissions of his marijuana use and the circumstances of his termination are not minor matters,
given that they served to conceal potentially disqualifying information from the LSO. Moreover,
these concealments were repeated, and the Individual continued to provide conflicting accounts of
the circumstances leading to these omissions, claiming both that they resulted from his failure to
2 The remaining mitigating factors under Guideline E, set forth at ¶ 17(e), (f), and (g), apply to circumstances other
than the deliberate omission of information during the security clearance process.
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exercise due care in completing his QNSP and LOI responses and that he was afraid to disclose
the derogatory information because he was concerned that it might prevent him from obtaining his
security clearance. This inconsistent testimony casts doubt on his present reliability,
trustworthiness, and good judgment. Accordingly, I find that the mitigating condition set forth at
¶ 17(c) is not present in the instant case.
Fourth, the Adjudicative Guidelines provide that an individual may mitigate security concerns
under Guideline E if “[t]he 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.” Adjudicative Guidelines at ¶ 17(d). In the present case, the Individual has
acknowledged his error in judgment. However, he has not 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, given his less than
reliable testimony at the hearing, he has not shown that such behavior is unlikely to recur.
Accordingly, I find that the mitigating condition set forth at ¶ 17(d) is not present in the instant
case.
Accordingly, I find that the Individual has not mitigated the security concerns raised by his failure
to report his marijuana use and the circumstances which led to his termination from the Employer.
Therefore, the Individual has not resolved the security concerns raised under Guideline E.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Guideline E of the
Adjudicative Guidelines. After considering all the evidence, both favorable and unfavorable, in a
comprehensive, common-sense manner, I find that the Individual has not brought forth sufficient
evidence to resolve each of the security concerns raised under Guideline E. Accordingly, the
Individual has not demonstrated that restoring his security clearance would not endanger the
common defense and security and would be clearly consistent with the national interest. Therefore,
the Individual’s security clearance should not be granted. This Decision may be appealed in
accordance with the procedures set forth at 10 C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals