Summary of Decisions - October 25, 2021 - October 29, 2021

Personnel Security Hearing (PSH) 

Personnel Security; Access Authorization Granted; Guideline G (Alcohol Consumption), Guideline I (Psychological Conditions)

On October 26, 2021, an Administrative Judge (AJ) determined that an Individual should be granted access authorization under 10 C.F.R. Part 710. Derogatory information regarding the Individual's alcohol consumption was discovered during a background investigation. He was referred to a DOE Contractor Psychologist, who opined that the Individual habitually consumed alcohol to excess. The Psychologist also diagnosed the Individual with Generalized Anxiety Disorder.

At the Hearing, the Individual presented evidence that he had remained abstinent from alcohol for over a year and that he had completed a treatment program. He also presented evidence that he had learned stress management techniques and was adequately coping with his anxiety. The DOE presented evidence that the Individual was adequately rehabilitated.

Accordingly, the Administrative Judge concluded that the Individual had mitigated the security concerns raised by the LSO and that he should be granted access authorization. OHA Case No. PSH-21-0061 (Kristin L. Martin).

Guideline G (Alcohol Consumption)

On October 27, 2021, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should not be granted. The Individual is employed by a DOE contractor in a position that requires him to hold a DOE security clearance. In July 2020, the Individual completed a Questionnaire for National Security Positions (QNSP). In the QNSP, the Individual revealed that he left his previous employer "by mutual agreement following charges or allegations of misconduct." The Individual described the misconduct as an "alcohol test." Subsequently, the Individual underwent a psychological evaluation by a DOE consultant psychologist (Psychologist) in December 2020. During the evaluation, the Individual disclosed that he resigned from his previous employer, in lieu of termination, as a result of testing positive for alcohol while at work. The Psychologist ultimately concluded that the Individual "is a habitual and heavy consumer of alcohol" and had not shown adequate evidence of rehabilitation. At the hearing, the Individual testified that he had been abstinent from alcohol for approximately seven months. However, he explained that he could not, at the time of the hearing, commit to maintaining abstinence on a permanent basis, as was recommended by the Psychologist. The Individual further revealed that he had not participated in an intensive outpatient program and completed the accompanying aftercare, or AA, as was additionally recommended by the Psychologist. Ultimately, the Psychologist testified that the Individual had not demonstrated adequate evidence of rehabilitation or reformation. After considering the evidence in the record and testimony presented at the hearing, the Administrative Judge determined that the Individual had not resolved the security concerns associated with Guideline G. Accordingly, she concluded that the Individual's access authorization should not be granted. (Case No. PSH-21-0076, Katie Quintana)

Access Authorization Restored; Guideline H (Drug Involvement and Substance Misuse)

On October 29, 2021, an Administrative Judge determined that the Individual's access authorization under 10 C.F.R. Part 710 should be restored. The Individual is employed by a Department of Energy (DOE) contractor in a position that requires him to hold a DOE security clearance. The Local Security Office (LSO) received potentially derogatory information regarding the Individual. Under Guideline F, the LSO alleged that: (1) the Individual was chosen for a random drug screen on October 24, 2019, which was positive for the marijuana metabolite above the allowable limit; (2) the Individual attributed his positive drug test to the use of use cannabidiol (CBD) oil products, which he began taking in mid- 2018 to treat his chronic pain; (3) the Individual participated in a "Workplace Substance Abuse Program" on June 6, 2019, and reviewed and signed a document acknowledging his completion of the training; (4) the Individual admitted "that he did not see or read the all- employee communication sent on September 16, 2019, indicating that CBD oils could result in a positive drug test; (5) the responses provided in the January 21, 2020, LOI indicated that the Individual had used CBD oil for over two years prior to testing positive, but that the Individual had passed two previous drug tests while taking CBD oil.

The Individual presented his own testimony as well as that of two other witnesses. Based on the testimony and the exhibits entered into the record, the Administrative Judge concluded that the evidence strongly suggested that the Individual tests positive for the marijuana metabolite because of consuming CBD oil to treat his chronic pain. The Administrative Judge determined that the Individual mitigated the stated Guideline H concerns pursuant to ¶ 26(a)-( b). After testing positive for the marijuana metabolite, the Individual was subject to random drug testing over the span of approximately one year, and all results were negative. He successfully cooperated with his employer's Employee Assistance Program and underwent a medical evaluation, resulting in a recommendation to return the Individual to work. After testing positive in 2019, the Individual ceased the use of CBD oil, and discarded the remaining product, endeavored to mitigate his chronic pain by other means, and stated his intention to never use CBD products again.

This case was distinguished from the case PSH-20-0020 in that although the Individual in PSH 20 0020 provided notice to his chain of command and security personnel before he commenced his use of CBD products, the Individual in this case began using CBD oil prior to his employment with the contractor and prior to receiving his clearance.

Accordingly, the Administrative Judge concluded that the Individual had mitigated all security concerns stated in the Notification Letter. The Administrative Judge therefore concluded that the Individual's access authorization should be restored. (PSH-21-0095, Janet R. H. Fishman).

Access Authorization Not Granted; Guideline E (Personal Conduct).

On October 29, 2021, an Administrative Judge determined that the Individual's access authorization under 10 C.F.R. Part 710 should not be granted. The Individual is employed as a DOE contractor in a position that requires him to hold a DOE security clearance. During its investigation, the Local Security Office (LSO) received potentially derogatory information. In a Notification Letter, the LSO alleged, under Guideline E (Personal Conduct), that the Individual omitted the fact that he had been awarded a Bachelor's degree from a university in two Questionnaires for National Security Positions (QNSP) electronic forms.

At the hearing, the Individual denied purposely omitting the fact that he had earned a Bachelor's degree. The university that granted the degree did so without the Individual attending classes either on campus or virtually. The Individual testified that he had submitted his prior education records to the university, and it deemed him as having met the requirements for the degree. His omission of his degree on both QNSPs was claimed to be inadvertent. Nonetheless, other evidence in the record indicated that he had include this degree in a resume for a prior position. He also claimed that other omissions in the QNSPs, not cited in the notification letter, were also inadvertent and established the inadvertent nature of the omission of his Bachelor's degree.

The Administrative Judge determined that there was significant evidence in the record casting doubt regarding the inadvertent nature of this omission. Additionally, the Administrative Judge found that the Individual may have been lax regarding the need for accuracy in the QNSPs. Given this, he could not find that the Guideline E security concerns had been fully resolved. Consequently, based on the testimony of all witnesses and the evidence submitted, the Administrative Judge concluded that the Individual's access authorization should not be granted. (OHA Case PSH-21-0089 Richard A. Cronin, Jr.).