TSO-1104

* 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: September 1, 2011 ) Case No.: TSO-1104
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Issued: December 1, 2011
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Decision and Order
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Robert B. Palmer, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (hereinafter referred to as “the
individual”) for access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled
"Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special
Nuclear Material.” 1 For the reasons set forth below, I conclude that the individual’s security
clearance should not be restored at this time. 2
I. BACKGROUND
The individual is employed by a Department of Energy (DOE) contractor, and was granted a
security clearance in connection with that employment. During the process of applying for a higher-
level security clearance, the individual provided information to the DOE that is inconsistent with
1An access authorization is an administrative determination that an individual is eligible for access
to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will also be
referred to in this Decision as a security clearance.
2 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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information that he previously provided. Because these inconsistencies raised security concerns, the
local security office (LSO) summoned the individual for an interview with a personnel security
specialist in March 2011. After this Personnel Security Interview (PSI), the LSO referred the
individual to a local psychiatrist (hereinafter referred to as “the DOE psychiatrist”) for an agency-
sponsored evaluation. The DOE psychiatrist prepared a written report setting forth the results of that
evaluation, and sent it to the LSO. After reviewing this report and the rest of the individual’s
personnel security file, the LSO determined that derogatory information existed that cast into doubt
the individual’s eligibility for access authorization. They informed the individual of this
determination in a letter that set forth the DOE’s security concerns and the reasons for those
concerns. I will hereinafter refer to this letter as the Notification Letter. The Notification Letter also
informed the individual that he was entitled to a hearing before a Hearing Officer in order to resolve
the substantial doubt concerning his eligibility for access authorization.
The individual requested a hearing on this matter. The LSO forwarded this request to the Office of
Hearings and Appeals, and I was appointed the Hearing Officer. The DOE introduced 14 exhibits
into the record of this proceeding. The individual introduced one exhibit and presented the testimony
of six witnesses, in addition to testifying himself.
II. DEROGATORY INFORMATION AND THE ASSOCIATED SECURITY
CONCERNS
A. The Individual’s Inconsistent Representations To The DOE
The following facts are undisputed. In December 2009, the individual completed a Questionnaire
For National Security Positions (QNSP) in which he indicated that he last used marijuana in
December 2007, and that he had never used any other illegal drugs. In response to the DOE’s
January 2010 Letter Of Interrogatory (LOI), the individual indicated that the last time that he used
marijuana was in August 2007, and that he had never used any other illegal drugs.
However, in the process of applying for an upgraded security clearance, the individual completed
another QNSP in February 2011, in which he indicated that he had used marijuana as recently as
June 2009, that he had also used cocaine three times, with the last usage occurring in June 2009,
and that he used “ecstasy” (3,4-methylenedioxymethamphetamine (MDMA)) once in 2005. During
the ensuing PSI and psychiatric evaluation, the individual confirmed that his last usage of marijuana
occurred in June 2009, that he used cocaine twice, with the last usage also occurring in June 2009,
and that he used MDMA once in 2005.
B. The Notification Letter and the DOE’s Security Concerns
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As indicated above, the Notification Letter included a statement of derogatory information that
created a substantial doubt as to the individual’s eligibility to hold a clearance. This information
pertains to paragraph (f) of the criteria for eligibility for access to classified matter or special nuclear
material set forth at 10 C.F.R. § 710.8. 3
Under criterion (f), information is derogatory if it indicates that the individual has deliberately
misrepresented, falsified, or omitted significant information from a QNSP or from written or oral
statements made in response to official inquiry on a matter that is relevant to a personnel security
determination. 10 C.F.R. § 710.8(f). As support for its application of this criterion, the Letter cites
the information set forth above.
This derogatory information adequately justifies the DOE’s invocation of criterion (f), and raises
significant security concerns. Conduct involving lack of candor or dishonesty raises questions about
an individual’s reliability and trustworthiness. Of special concern is any failure to provide truthful
and candid answers during the security clearance process. See Revised Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information, The White House (December 19, 2005),
Guideline E.
III. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710 dictate
that in these proceedings, a Hearing Officer must undertake a careful review of all of the relevant
facts and circumstances, and make a “common-sense judgment . . . after consideration of all relevant
information.” 10 C.F.R. § 710.7(a). I must therefore consider all information, favorable or
unfavorable, that has a bearing on the question of whether granting or restoring a security clearance
would compromise national security concerns. Specifically, the regulations compel me to consider
the nature, extent, and seriousness of the individual’s conduct; the circumstances surrounding the
conduct; the frequency and recency of the conduct; the age and maturity of the individual at the time
of the conduct; the absence or presence of rehabilitation or reformation and other pertinent
behavioral changes; the likelihood of continuation or recurrence of the conduct; and any other
relevant and material factors. 10 C.F.R. § 710.7(c).
3 The LSO determined that its security concerns under criteria (j) and (k) about the individual’s
usage of alcohol and illegal drugs had been mitigated. It based this finding on the DOE psychiatrist’s
conclusion that the individual did not suffer from a diagnosable substance abuse disorder, on the fact
that the individual’s last demonstrated usage of illegal drugs occurred approximately two years
previously, and on the individual’s commitment that he would not use illegal drugs in the future.
DOE Ex. 3 at 1-2.
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A DOE administrative proceeding under 10 C.F.R. Part 710 is “for the purpose of affording the
individual an opportunity of supporting his eligibility for access authorization.”
10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising
security concerns, the burden is on the individual to produce evidence sufficient 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). See
Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed by
OSA, 1996), and cases cited therein. The regulations further instruct me to resolve any doubts
concerning the individual’s eligibility for access authorization in favor of the national security.
10 C.F.R. § 710.7(a).
IV. FINDINGS OF FACT AND ANALYSIS
At the hearing, the individual attempted to demonstrate, through his testimony and that of his
manager, four friends, and his ex-girlfriend, that his omissions were due to a poor memory and not
to an attempt to deceive the DOE, and that he is an honest person who can be relied upon to
safeguard classified information.
The individual testified that after completing the December 2009 QNSP and the January 2010 LOI,
he talked to his ex-girlfriend, who told him that he had used cocaine and marijuana in her presence
on separate occasions in June 2009. Hearing Transcript (Tr.) at 58. He explained that he had no
previous recollection of this cocaine usage, and he attributed this to his heavy consumption of
alcohol at the time of the usage. Id. This conversation caused him to ask himself whether there were
any other usages of illegal drugs that he had failed to disclose to the DOE, and he subsequently
remembered that he had also used cocaine and MDMA on the same occasion in 2005. Tr. at 73. He
further testified that, to the best of his recollection, these were the only usages of illegal drugs that
he had previously failed to report to the DOE. Tr. at 72.
The individual described the circumstances surrounding those usages. The 2005 usage of cocaine
and MDMA occurred at the house of a friend’s friend, after “a lot” of drinking. Tr. at 85. The
individual testified that he had little recollection of the June 2009 cocaine usage because of the
amount of alcohol that he consumed on that occasion. Tr. at 88. The June 2009 marijuana usage
occurred while he was “hanging out” with some friends at his ex-girlfriend’s house. Tr. at 86. He
said that his alcohol consumption on that occasion was “not nearly as much” as on the day of his
2009 cocaine usage, and that, while he likely was intoxicated, he did not drink so much as to cause
him to not remember the events of that day. Id. He did not report these usages to the DOE sooner,
he said, because he did not realize the importance of doing so, Tr. at 84, and when his girlfriend
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reminded him of the 2009 usages, he did not really consider the fact that he had provided inaccurate
information to the DOE. Tr. at 74.
The individual further testified that he is an honest person who can be relied upon to adhere to the
requirements of DOE security. As support for this contention, he cited an instance in which he
inadvertently entered a secure facility with a cell phone, and then immediately reported the violation
to his manager. Tr. at 79-80.
The individual’s ex-girlfriend also testified. She said that she saw the individual use cocaine and
marijuana on separate occasions in June 2009. Regarding her telephone conversation with the
individual in early 2010, she said that they were discussing the individual’s job and the security
clearance process, and that the individual was complaining about the scope of the information that
he was required to divulge. Tr. at 94. They discussed the individual’s listing of his history of illegal
drug usage, and the ex-girlfriend asked the individual what he thought his employer’s reaction would
be to the individual having previously used marijuana and cocaine. The individual expressed
surprise, particularly at her mentioning of cocaine, because, according to the ex-girlfriend, the
individual did not believe that he had used cocaine. Id. She then described to the individual what she
had observed regarding his usage of cocaine in 2009, and that he appeared to be quite drunk at the
time. Tr. at 95. The ex-girlfriend testified that his reactions during this conversation seemed sincere,
and that she believes that he honestly had no recollection of this cocaine usage. Tr. at 96.
Accordingly, she believes that his omission of information regarding that usage from the 2009
QNSP and 2010 LOI was due to a faulty memory, and not to an intent to deceive. Tr. at 98. She
further stated that, while the individual drank heavily on the occasion of his June 2009 cocaine
usage, he wasn’t drinking when she saw him use marijuana that month. Tr. at 102. The ex-girlfriend
and the individual’s other witnesses all testified that the individual is an honest and reliable person.
Tr. at 10, 19, 28, 36, 47, 100.
Despite this testimony, I harbor serious doubts about the individual’s candor, honesty and reliability.
As an initial matter, I find it difficult to believe that the individual forgot to include, on his
December 2009 QNSP, a usage of marijuana that occurred only six months prior to that time. The
individual attempted to explain this omission by pointing out that he “had used it so infrequently
over the past five years,” that he couldn’t “remember the exact date when he stopped using it.” Tr.
at 77. It seems more likely, however, that an isolated usage such as happened here would stand out
more in the individual’s memory than a single usage that occurred as part of a pattern of extensive
drug abuse. In any event, nothing in the individual’s explanation adequately explains the
individual’s certification, on two occasions, that his last usage of illegal drugs occurred in 2007,
when in fact, that usage occurred only six months prior to his December 2009 QNSP and the January
2010 LOI.
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The individual’s testimony that he did not recall his June 2009 cocaine usage because of heavy
alcohol consumption is at least partly supported by the testimony of his ex-girlfriend. However,
there is no indication in the record that the individual suffered alcoholic blackouts during his June
2009 marijuana usage or his 2005 usage of cocaine and MDMA. Consequently, his claim that the
omission of these usages from his 2009 QNSP and his 2010 LOI was due to a faulty memory is
completely unsupported by other evidence of record.
For the reasons set forth above, I find that the individual deliberately omitted significant information
from his December 2009 QNSP and his January 2010 LOI. This finding, however, does not end my
analysis. The Adjudicative Guidelines set forth potentially mitigating factors that I must consider
in determining whether the individual’s clearance should be restored. These factors, and my
application of them to the case at hand, are set forth below.
The first factor is whether the individual made prompt, good faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts. Adjudicative Guideline E.
Viewing the evidence in the manner that is most favorable to the individual, he became aware of his
omissions in January or February 2010, yet he did not provide the DOE with the full extent of his
illegal drug usage until over one year later. Accordingly, this mitigating factor is not supported by
the record.
The second factor is whether the omission or concealment was caused by improper or inadequate
advice of authorized personnel or legal counsel advising the individual about the security clearance
process. Id. This factor is not applicable to this case.
The third factor is whether the offense was so minor, or so much time has passed, or the behavior
was so infrequent, or happened under such unique circumstances that it is unlikely to recur and does
not cast doubt on the individual’s reliability, trustworthiness, or good judgement. Id. The individual
omitted significant information concerning the types of illegal drugs he had used and the dates of
his most recent usages of those drugs on two occasions from forms used by the DOE during the
process of determining the individual’s eligibility for access authorization. The omissions occurred
approximately two years ago, and were remedied by the individual approximately 10 months ago.
Accordingly, there is insufficient evidence of this mitigating factor.
The fourth factor, that the individual has acknowledged the behavior and obtained counseling to
change the behavior or taken other positive steps to address the stressors, circumstances or factors
that caused the behavior, id, is also inapplicable. Although the individual has acknowledged the
omissions, he contends that they were inadvertent, and there is no indication in the record that the
individual has sought or obtained any kind of counseling.
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The fifth factor is whether the individual has taken positive steps to reduce or eliminate vulnerability
to exploitation, manipulation, or duress. Id. By more fully disclosing his illegal drug usage, the
individual has taken steps to reduce or eliminate his vulnerability to duress or manipulation.
However, in view of the seriousness, recency and repeated nature of the omissions, I do not believe
that this factor is of sufficient mitigating value to warrant restoration of the individual’s access
authorization.
V. CONCLUSION
For the reasons set forth above, I find that the individual has not successfully addressed the DOE’s
security concerns under criterion (f). I therefore conclude that he has not demonstrated that restoring
his access authorization would not endanger the common defense and would be clearly consistent
with the national interest. Accordingly, I find that the individual’s security clearance should not be
restored at this time. The individual may seek review of this Decision by an Appeal Panel under the
procedures set forth at 10 C.F.R. § 710.28.
Robert B. Palmer
Hearing Officer
Office of Hearings and Appeals
Date: December 1, 2011