TSO-1003

* 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.
July 15, 2011
OFFICE OF HEARINGS AND APPEALS
Hearing Officer=s Decision
Name of Case: Personnel Security Hearing
Date of Filing: February 2, 2011
Case Number: TSO-1003
This Decision concerns the eligibility of XXXXXXXXXXXXXX (hereinafter referred to as
“the individual@) to hold an access authorization under the regulations set forth at 10 C.F.R.
Part 710, entitled ACriteria and Procedures for Determining Eligibility for Access to
Classified Matter or Special Nuclear Material.@ As set forth below, it is my decision, based
on the evidence and testimony presented in this proceeding, that the individual=s access
authorization (“security clearance” or “clearance”) should be granted.1
I. Background
The individual has been employed by a Department of Energy (DOE) contractor since
2010. His employer requested that DOE grant the individual a clearance. The individual
completed a Questionnaire for National Security Positions (QNSP) in August and
September 2010, and on the QNSPs he indicated that he had used a controlled substance
that was prescribed to his wife. The local security office (LSO) conducted a personnel
security interview (PSI) with the individual in November 2010, and he admitted that, over a
two-day period in February 2010, he had used three pain pills that were prescribed for his
wife.
In December 2010, the LSO informed the individual how to proceed to resolve the
derogatory information that had created a doubt regarding his continued eligibility for
access authorization. See Notification Letter (December 2, 2010). The Notification Letter
stated that the derogatory information regarding the individual falls within the purview of
10 C.F.R. § 710.8 (k) (Criterion K) and also section 1072 of the National Defense
Authorization Act for Fiscal Year 2008 (50 U.S.C. § 435b, section 3002) (the Bond
Amendment), which statutorily prohibits federal agencies from allowing “an unlawful user of
a controlled substance or an addict” to hold a security clearance. 50 U.S.C. § 435c(b).
1 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
http://www.oha.doe.gov. The text of a cited decision may be accessed by entering the case number of the
decision in the search engine located at http://www.oha.doe.gov/search.htm.
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DOE invokes Criterion K when a person has allegedly trafficked in, sold, transferred,
possessed, used, or experimented with a drug or other substance listed in the Schedule of
Controlled Substances except as prescribed or administered by a physician or as otherwise
authorized by Federal law. 10 C.F.R. § 710.8 (k). DOE invoked Criterion K because of the
individual’s admission that, in February 2010, he used three of his wife’s Vicodin tablets
over two days to relieve pain.
The individual exercised his right under Part 710 to request a hearing in this matter.
10 C.F.R. § 710.21(b). The Director of OHA appointed me as Hearing Officer in this case.
After conferring with the individual and the appointed DOE counsel, 10 C.F.R. § 710.24, I
set a hearing date. At the hearing, the individual testified on his own behalf and called
seven other witnesses. DOE counsel did not call any witnesses. The transcript taken at
the hearing shall be hereinafter cited as “Tr.” Various documents that were submitted by
the parties during this proceeding constitute exhibits to the hearing transcript and shall be
cited as “Ex.” DOE exhibits are numbered, and the individual’s exhibits are lettered.
II. Analysis
The applicable regulations state that A[t]he decision as to access authorization is a
comprehensive, common-sense judgment, made after consideration of all relevant
information, favorable or unfavorable, as to whether the granting of access authorization
would not endanger the common defense and security and would be clearly consistent with
the national interest.@ 10 C.F.R. ' 710.7(a). Although it is impossible to predict with
absolute certainty an individual=s future behavior, as the Hearing Officer I am directed to
make a predictive assessment. There is a strong presumption against the granting or
restoring of a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531
(1988) (Aclearly consistent with the national interest@ standard for the granting of security
clearances indicates Athat security determinations should err, if they must, on the side of
denials@); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S.
905 (1991) (strong presumption against the issuance of a security clearance).
I have thoroughly considered the record of this proceeding, including the submissions of the
parties, the evidence presented and the testimony of the witnesses at the hearing
convened in this matter. In resolving the question of the individual=s eligibility for access
authorization, I have been guided by the applicable factors prescribed in 10 C.F.R.
' 710.7(c): 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 the 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 continuance or recurrence; and
other relevant and material factors. After due deliberation, I find that the individual’s
access authorization should be granted because I conclude that such a grant would not
endanger the common defense and security and would be clearly consistent with the
national interest. 10 C.F.R. § 710.27(a). The specific findings that I make in support of this
determination are discussed below.
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A. Findings of Fact
The individual worked for a private employer for over 25 years in a job that was physically
demanding on his knees. Over the years, he had three knee surgeries, and his doctors
prescribed pain killers for his pain. Tr. at 129. The individual resigned from his job in
September 2009. Id. at 122. When he resigned, he also lost his reasonably priced group
health insurance. Id. at 125. His wife had pre-existing health conditions that required
expensive monthly prescriptions, but he could not afford to buy health insurance because
the monthly premiums were costly, from $800 to $1500 per month. Id. at 125-126. After he
resigned, he began doing remodeling work that was also physically demanding. In
February 2010, he was working on a house with a very steep roof that required frequent
trips up and down a ladder. Id. at 123. The family was low on money and food, had
experienced a very lean Christmas, and barely managed to pay their utilities. Id. at 47.
One Friday evening in February 2010, he arrived home in excruciating pain with a swollen
knee. He could barely walk, and his knee was swollen to the size of a cantaloupe, and felt
like someone had drilled a hole in it. Id. at 130. When he came home that night, he could
not walk up the final step to their home, and his wife had to help him inside to a chair. He
sat down to rest, told his wife that he was in extreme pain, and she brought him a pill and
some water. He took the pill without questioning her, and then took two others the next
day.2 The next morning his knees were still swollen and he had to use crutches. Id. at 46-
48.
The individual’s friend recommended him for a job at the DOE facility. He was hired, and
the employer requested that DOE grant him a clearance. He completed a QNSP in August
and September 2010 (Ex. 4-5), and noted that he had used three Vicodin for knee pain in
February 2010. Ex. 4-5. The LSO conducted a PSI with the individual in November 2010
(Ex. 6), but that did not resolve the security concerns. In December 2010, the LSO sent
him a Notification Letter with information on how to resolve the security concerns.
B. DOE=s Security Concerns
Criterion K deals with the use of controlled substances. Drug abuse (defined as the use of
a legal drug in a manner that deviates from approved medical direction) may impair
judgment and cause questions about the ability of an individual to comply with laws, rules
and regulations. See Revised Adjudicative Guidelines for Determining Eligibility for Access
to Classified Information, Memorandum from Assistant to the President for National
Security Affairs to Director, Information Security Oversight Office (December 29, 2005)
(Guidelines), Guideline H, ¶ 24. The Bond Amendment precludes the granting of a security
clearance to an individual who “is an unlawful user of a controlled substance.” 50 U.S.C.
§ 435c(b); Case No. TSO-956 (2010). As stated above, the individual admitted that during
a two-day period he took three Vicodin tablets that were prescribed for his wife. The
2 The wife testified that she did not have any aspirin in the home. Tr. at 48.
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individual’s use of his wife’s prescription painkiller is well documented in the record, and
validates the concerns under Criterion K and the Bond Amendment.
C. Hearing Testimony
The individual testified at the hearing, and also called his wife, daughter, sister, and four
colleagues as character witnesses. At the hearing, the individual did not deny that he had
used his wife’s prescription medicine. Rather, he provided testimony that he was not an
unlawful user of a controlled substance and that this was an isolated event that was unlikely
to recur.
The individual testified that he had never taken any illegal drugs or another person’s
prescription medications at anytime prior to February 2010, and that he had not allowed
anyone to take any of his prescription medications. Id at 131. He explained that if he has
another injury, he would go to the doctor. He now has medical insurance again. Because
he wanted to tell the truth on all of his documentation, he was very honest on his QNSP
and admitted that he took his wife’s prescription drug. Id. at 133-134. He does not intend
to use anyone’s prescription medications again. Id. at 135. He would have signed a drug
certification, if one had been offered to him. Id. at 137.
All of the character witnesses described the individual as an honest and truthful person. Tr.
at 17-45; 102-109. In fact, they note that the hearing process began when he self-reported
his one-time use of the prescription drug. They considered him extremely dependable,
hardworking, and an exemplary human being. His wife testified that he was not the type of
person that usually takes any medication, but instead prefers to “work through” his pain.
Id. at 49. However, he was in such severe pain that night in February 2010, that she told
him to take one of her pain pills so that he would not suffer any longer. Id. at 48. None of
the witnesses has seen any evidence that the individual used drugs. Id. at 39-73. They
testified that he spends his free time with his family, working on his farm, and helping his
daughter to renovate her house.
D. Mitigation of Security Concerns
1. Criterion K – Drug Use
According to the regulations, I must rely on the record and my observations at the hearing,
and make a common-sense judgment on this matter as directed by 10 C.F.R. § 710.7(c).
I have weighed several variables, including the circumstances surrounding the conduct and
the motivation for the conduct. For the reasons set forth below, I find that the individual has
presented sufficient evidence to mitigate the security concerns regarding his isolated use of
his wife’s prescription pain medicine over one year prior to the date of the hearing.
After carefully assessing the credibility of all the witnesses and considering their demeanor,
I conclude that the individual’s use of the prescription drugs in question was isolated, and
happened under such circumstances that it is unlikely to recur, and does not cast doubt on
the individual’s current reliability, trustworthiness, or good judgment. See Guideline H, ¶
26(a) (stating that security concern may be mitigated by behavior that happened under
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such circumstances that it is unlikely to recur).3 The circumstances surrounding this
incident were clearly atypical for the individual. First, the individual had been putting
unusual strain on his already damaged knees—he did not typically spend his days
ascending and descending a ladder because his knees were weakened by years of hard
physical work earlier in his career. Thus, by the end of that day in February 2010, he
suffered excruciating pain and his knee was extremely swollen. Further, for the first time in
over 25 years he did not have access to health insurance that would have enabled him to
see a doctor at an affordable cost. His financial situation was precarious at the time, and
his wife’s required prescriptions for her medical conditions already ate deeply into the
family budget. In addition, he was self-employed, had no helpers, and had a job to finish,
so that he needed to alleviate the pain in order to resume work on Monday morning.
Finally, the individual had been prescribed pain medicine for knee pain in the past.
I also find that the security concern is mitigated by the passage of time. There is credible
evidence that the individual’s last, and only, use of his wife’s prescription pain medicine
occurred 16 months prior to the hearing. See Personnel Security Hearing, Case No. TSO-
0625 (2008) (finding that 15 months of abstinence lends credence to testimony of individual
that she does not intend to use drugs in future); Guideline H, ¶ 26(b)(3) (stating that
security concern may be mitigated by an appropriate period of abstinence). All of the
witnesses testified credibly that the individual did not use any type of illegal drugs, and did
not abuse legal drugs.
The individual has convinced me that the isolated use of his wife’s prescription pain pills is
very unlikely to recur. Guideline H, ¶ 26 (a). Therefore, taking into account all of the facts
and circumstances surrounding his isolated use of a prescription drug, I conclude that he
has mitigated the Criterion K concern.
2. Bond Amendment
The Bond Amendment provides that “the head of a Federal agency may not grant or renew
a security clearance for a covered person who is an unlawful user of a controlled
substance. . . .” 50 U.S.C.A. § 435c(b). The evidence in the record supports a finding that
the usage was isolated, and was not recent enough to indicate that he is actively engaged
in the conduct or is a habitual user. 4 See Personnel Security Hearing, Case No. TSO-
0938 (2010) (finding that misuse of prescription drugs was an isolated incident and thus
individual is no longer an unlawful user of a controlled substance or an addict within the
meaning of the Bond Amendment); see also Memorandum from Mark Pekrul, DOE Office
of Departmental Personnel Security, Bond Clarification (December 21, 2010) (comparing
one-time use with habitual use).
3 I also note that the individual demonstrated his honesty and trustworthiness when he self-reported the use of
his wife’s painkillers, because there is no evidence that the LSO would have discovered this information
otherwise.
4 In August 2010, the LSO had prepared to remove the individual from the site immediately, but abruptly
stopped, apparently because the individual was not determined to be a current user of a controlled substance.
PSI at 50-52, 56-57.
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III. Conclusion
As explained in this Decision, I find that the LSO properly invoked 10 C.F.R. ' 710.8 (k) and
the Bond Amendment. However, after a review of the record, I find that the individual has
presented adequate mitigating factors to alleviate the security concerns under Criterion K
and the Bond Amendment. Thus, in view of the criteria and the record before me, I find
that granting the individual=s access authorization would not endanger the common defense
and security and would be consistent with the national interest. Accordingly, I find that the
individual’s access authorization should be granted. Any party may seek review of this
Decision by an Appeal Panel under the procedures set forth at 10 C.F.R. § 710.28.
Valerie Vance Adeyeye
Hearing Officer
Office of Hearings and Appeals
Date: July 15, 2011