PSH-21-0016 - In the Matter of Personnel Security Hearing

On April 14, 2021, an Administrative Judge (AJ) determined that an Individual's access authorization under 10 C.F.R. Part 710 should not be granted. The Individual had been fired from a previous employer after testing positive for methamphetamine. When the Individual submitted a form required to initiate his background investigation, he indicated only that he had been fired from that previous employer for "Allegations of non-compliance with company policy." When he was subsequently questioned further about this termination by an Office of Personnel Management (OPM) Investigator, he admitted that he was terminated because he had tested positive for methamphetamine.

After the OPM Investigator's interview, a local security office (LSO) sent the Individual a Letter of Interrogatory (LOI) requesting the Individual to describe the circumstances that led to his termination. The Individual responded to the LOI by stating: "It was alleged that I came up inconclusive on a urinalysis. I was denied the chance to retake the test," Ex. 5 at 1. The Individual further stated: "I have never failed a drug test before or since. And I have no reason I would," Ex. 5 at 1. The LSO alleged that the positive drug test raised security concerns under both Adjudicative Guideline H and the Bond Amendment.

However, the AJ found that the Individual denied ever using illegal drugs, and the only indication in the record that he had engaged in illegal drug use was his admission that he had tested positive for methamphetamine in early 2019. The AJ found that neither party had submitted evidence documenting the procedures used to conduct this test, ensure its chain of custody, and analyze the Individual's urine specimen. The AJ further noted that drug tests vary widely in their accuracy, reliability, and validity. When conducted properly, they are highly accurate, reliable, and useful. The AJ further found that reliance upon improperly conducted tests can pose two dangers: First, that an individual's drug use might go undetected, and second, that an individual will be falsely identified as an illegal drug user. Recognizing these concerns, the AJ noted the DOE has issued regulations setting forth its requirements for specimen collection, handling and laboratory analysis for drug testing, and that the regulations further required that the agency and its contractors conduct their drug testing programs in accordance with the guidelines of the Department of Health and Human Services. Accordingly, the AJ found that, unless a drug test is conducted in accordance with these mandated guidelines, the OHA cannot rely upon it alone to conclude that an individual engaged in illegal drug use. Therefore, the AJ concluded that the LSO had not shown that the security concerns raised under Adjudicative Guideline H and that Bond Amendment were properly invoked.

However, the AJ found the Individual had engaged in conduct revealing his questionable judgement, lack of candor, dishonesty, and unwillingness to comply with rules and regulations by failing to provide truthful and candid answers to the LSO during his security clearance investigation. To this end, the AJ found that while the Individual gave a vague but technically correct answer on his security clearance form, he was not being fully candid regarding the circumstances of his termination. The AJ noted that this omission was not the only omission that the Individual made in that form concealing his positive drug test (as well as another disciplinary matter). These omissions indicate that the Individual was intentionally concealing derogatory information when he completed and submitted this form. Only when questioned by the OPM Investigator did the Individual admit that he had been suspended and then fired for violating his employer's policy against illegal drug use. Even so, when he was subsequently asked by the LSO to explain the termination in writing, the Individual falsely stated that his drug test was inconclusive and that he had never failed a drug test, omitting the fact that he had tested positive for methamphetamine. Accordingly, the AJ found that the security concerns raised by the LSO under Guideline E had not been resolved. Therefore, the AJ found that the Individual should not be granted a security clearance. OHA Case No. PSH-21-0016 (Steven Fine).