Summary of Decisions - May 15, 2023 - May 19, 2023

Personnel Security Hearing (PSH)

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

On May 16, 2023, an Administrative Judge determined that an Individual's access authorization under 10 C.F.R. Part 710 should be restored. The Individual is employed by a contractor at a DOE facility and is required to possess a security clearance. When selected for a random urine drug test in March 2022, the Individual tested positive for marijuana. The test result level was only a small amount over the standard for a positive test. As a result of the positive test, and the fact that he had been initially placed on administrative leave by his employer, the DOE terminated his security clearance. Subsequently, the Individual's employer then sought another security clearance for the Individual.

Because of fractured heel, the Individual experienced significant amounts of pain such that the pain would cause him trouble with sleeping. Id. The Individual had been prescribed pain killing narcotic medication, but the Individual did not want to overuse these drugs and, as a result, researched other ways of relieving his pain. His research indicated that CBD oil could relieve pain. Other individuals advised him to use only CBD oil derived from hemp plants since it did not have significant amounts of the active (and illegal) substance of tetrahydrocannabinol (THC) found in marijuana. Consequently, the Individual purchased products that were hemp based and would use the CBD oil typically three times a day. After the positive test result, the Individual stopped his use of CBD oil.

As a requirement to continue at work after being reinstated, the Individual was required to complete a drug abuse assessment. The treatment facility that conducted the assessment found that the Individual was a "high functioning, responsible and trustworthy employee" who did not meet any of the criteria for a diagnosis of substance abuse or addiction.

The Individual submitted into the record a statement from the Medical Review Officer at the DOE facility where he worker who opined that the Individual screened positive for THC with an exceptionally low level and that it was likely that the positive test was caused by the Individual's use of CBD oil. The Individual also submitted copies of his negative drug tests results before and after the single test, all of which were negative for marijuana.

The Administrative Judge found that there was no evidence that, outside his use of CBD oil, the Individual has ever used marijuana, and the finding was supported by the Individual's negative urine tests from the past five years. The Administrative Judge also found that the MRO's statement regarding the probable cause of the positive test for marijuana was convincing. Consequently, the Administrative Judge found that the Individual had resolved Guideline H security concern raised by his one positive test for marijuana and found that the Individual should have his clearance granted. ( OHA Case No. PSH-23-0054, Cronin)

Access Authorization granted; Guideline I (Psychological Conditions)

On May 17, 2023, an Administrative Judge determined that an Individual's access authorization under 10 C.F.R. Part 710 should be granted.

The Individual's employer sought an access authorization for the Individual. During the local security office's investigation, the Individual disclosed that she had sought mental health treatment in the spring of 2000 and had been diagnosed as suffering from bipolar mood disorder and alcoholic depression. The Individual reported in a Questionnaire for National Security Position that in May 2013 she had been given a diagnosis of borderline personality disorder (BPD) while serving in the military. She also reported on the QNSP that in December 2013 she had been hospitalized because she had thoughts of self-harm.

The Individual was then examined by a DOE Psychologist who found that The DOE Psychologist issued a psychological assessment (Report) in which he opined that the Individual met sufficient diagnostic criteria for a diagnosis of somatic symptom disorder, moderate, and unspecified personality disorder under the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition ( DSM 5). Id. at 16. The DOE Psychologist also opined that these conditions could result in behavior that could affect her judgment, reliability, and trustworthiness. Specifically, are highly likely to result in behavior that casts significant doubt on [the Individual's] judgment, stability, reliability, or trustworthiness, not covered under any other guideline and that may indicate an emotional, mental, or personality condition, including, but not limited to, irresponsible, violent, self -harm, suicidal, paranoid, manipulative, impulsive, chronic lying, deceitful, exploitative, or bizarre behaviors. He also noted that " there is no indication that [the Individual] has demonstrated past violent or reckless behavior, but an untreated personality disorder, especially one that includes Cluster B personality traits, would be highly likely to be characterized by episodes of mood lability, impulsive behavior, depression, and thoughts of self-harm, and would significantly decrease [the Individual's] judgement and reliable decision-making."

At the hearing the Individual presented the testimony of another forensic psychologist who disagreed with the DOE Psychologist's diagnosis for a number of reasons. Most notable was the DOE Psychologist's finding that his diagnosis could in the future result in problematic behaviors. He noted that personality disorder arises early in life and that there was no evidence that the Individual was now or had exhibited the behaviors described in the DOE Psychologist diagnosis.

The Administrative judge found that the testimony of the Individual's forensic psychologist was more convincing that that of the DOE Psychologist and that it had been supported by the lack of evidence of problematic behaviors in the past decade. Consequently, the Administrative Judge found that the Individual had resolved the Guideline I security concerns and that the Individual should be granted a security clearance. (OHA Case No. PSH-23-0051, Cronin)

Access Authorization Restored; Guideline J (Criminal Conduct)

On May 16, 2023, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should be restored. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. In May 2022, the Individual was arrested and charged with Domestic Battery (1st) following a physical altercation with his girlfriend (Girlfriend) in a hotel room, which resulted in a cut above her eye. A police report, taken after the incident, indicated that the Girlfriend stated that the Individual had punched her in the face. At the hearing, the Girlfriend and the Individual testified that, on the day of the incident which preceded the arrest, the couple had consumed a substantial amount of alcohol while on a vacation. As such, they both have limited memories of the day, and neither of them remember the Individual punching the Girlfriend. The Individual testified that he recalls the Girlfriend falling in the hotel room, and he additionally recalls a physical altercation that occurred when he prevented the Girlfriend from leaving the room due to her intoxication and out of concern for her safety. The Girlfriend testified that she does not remember speaking to law enforcement, but she believes that the events she described in the police report stemmed from her reliving the trauma of a previous abusive relationship. The Girlfriend noted that the Individual has never been violent or aggressive with her, and she does not believe that he punched her . The Administrative Judge found that the police report contained various errors and contradictions. She additionally found that the Girlfriend's injury was not consistent with a punch to the face. As such, the Administrative Judge found that the Individual had sufficiently mitigated the Guideline J security concerns. Accordingly, she concluded that the Individual's access authorization should be restored . (OHA Case No. PSH-23-0042, Quintana)

Access Authorization denied; Guideline G

On May 17, 2023, an Administrative Judge (AJ) determined that an Individual's access authorization under 10 C.F.R. Part 710 should be restored.

A DOE Contractor Psychologist (the "Psychologist") found that the Individual had met the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition (DSM-5) for Alcohol Use Disorder (AUD), Severe and that the Individual was neither reformed nor rehabilitated since she had only been abstaining from alcohol use for two months.

The AJ noted that the Individual had complied with the Psychologist's treatment recommendations by attending and completing an intensive outpatient program, attending aftercare, receiving individual counseling, and abstaining from alcohol use for nine months as evidenced by laboratory testing, thereby demonstrating a clear and established pattern of abstinence in accordance with the Psychologist's recommendations that she abstain from alcohol for nine months.

The Administrative Judge therefore concluded that the Individual's access authorization should be restored. (OHA Case No. PSH-23-0049, Fine)

Access Authorization Not Granted; Guidelines E (Personal Conduct) and F ( Financial Considerations)

On May 17, 2023, an Administrative Jude determined that the Individual's access authorization should not be granted under 10 C.F.R. Part 710. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. the Local Security Office (LSO) received potentially derogatory information regarding the Individual's finances and personal conduct.

With respect to Guideline F, the LSO alleged that a credit report from August 2022 revealed that the Individual has five delinquent accounts totaling approximately $ 37,310. The LSO also alleged that the Individual indicated that his car loan was delinquent in the amount of approximately $ 1,200 in the October 2022 Letter if Interrogatory (LOI) and that he stated that he was waiting to satisfy his delinquent car payments with severance pay and a bonus he expected to receive from his employer, which he revealed to be in the amount of $17,500 in the November 2022 LOI. He stated in the November 2022 LOI he had not yet resolved the matter of the delinquent car loan. The LSO also alleged that the Personal Finance Statement (PFS) the Individual submitted with the October 2022 LOI indicated "a net monthly deficit of approximately $1,638.97" and that the Individual and his spouse were unemployed at the time the October 2022 LOI was submitted. The Individual indicated in the November 2022 LOI that he was receiving unemployment compensation, which was left out of the PFS computation, and further, the Individual "ha[d] not used any of his unemployment funds or his bonus to resolve any of his debts." Finally, the LSO alleged that the Individual did not disclose whether his spouse was receiving unemployment compensation and that the annual income the Individual was previously earning was not enough to "keep his bills paid after his spouse lost her job."

With respect to Guideline E, the LSO alleged that the Individual failed to disclose "relevant facts and provided false or misleading information on his" Questionnaire for National Security Positions (QNSP) and to an investigator or security official. Specifically, the Individual indicated in the November 2022 LOI that he "never had any major financial debts that have caused him concern" until the COVID -19 pandemic. However, the Individual was given a letter of caution by an adjudicatory arm of a branch of the armed services in September 2008, indicating that his security clearance would be reconsidered if he did not address his delinquent debts. The LSO also alleged that the Individual stated in his November 2022 LOI that he received no such letter of caution and that the Individual failed to disclose five delinquent accounts totaling approximately $ 37,310 in his QNSP. The LSO indicated that the Individual disclosed his delinquent mortgage during the Enhanced Subject Interview (ESI) after being prompted by the investigator and that the Individual "stated that he did not disclose the accounts [on his QNSP] because he misread the question and had overlooked a couple of the accounts." Lastly, the LSO alleged that the 2008 letter of caution informed the Individual that the Individual failed to disclose some delinquent accounts and cautioned him that "he is responsible for ensuring any future personnel security questionnaires are complete and accurate prior to their submission."

The Individual testified on his own behalf at the hearing. The record established that the Individual did not disclose any of his past due obligations on the QNSP. The Individual maintained that he had misunderstood the question asking about delinquent accounts. However, he disclosed his delinquent mortgage payments to the investigator during the ESI and the Individual conceded at the hearing that he knew of at least two other delinquent accounts. Regarding the 2008 letter of caution, the Individual testified that he could not remember receiving the letter, and that he only recalled discussing his student loans with the investigator who interviewed him in 2008.

The record also established that although the Individual had satisfied his outstanding car loan payments, no other debt had been satisfied. The Individual retained an attorney to refinance his home mortgage and secured the services of a credit service agency to determine whether there have been any inaccurate items on his credit report. The record also indicated that the Individual stated that his financial difficulties began in 2020 as a result of the COVID-19 pandemic.

Turning to whether the mitigating factors at ¶ 17(a), (b), or (c) applied to mitigate the Guideline E

concerns, there was no evidence indicating that the Individual disclosed the information that he omitted from his QNSP prior to being confronted by the investigator or that he withheld the information pursuant to advice of legal counsel or a person with professional responsibilities for advising or instructing him specifically concerning security processes. Further, the information pertained to thousands of dollars' worth of delinquent debts, and as any intentional failure to disclose information on a security form or to investigators is a serious concern, the Administrative Judge could not conclude that the offense was minor. As the Individual's omission of information took place throughout the clearance process, the Administrative Judge could not conclude that it was infrequent or took place under unique circumstances. Further, there was no evidence indicating that the Individual had acknowledged his behavior and had taken any steps to alleviate the stressors that contributed to his untrustworthy behavior or that he has taken any steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress. Accordingly, the mitigating factors at ¶ 17(d) and (e) were inapplicable. Finally, the allegations did not indicate, nor did the record reflect, that the information was from a source of questionable reliability or that the concerns were derived from the Individual's association with persons involved in criminal activities. The mitigating factors at ¶ 17(f) and (g) were therefore inapplicable.

Although the Individual's financial concerns were arguably beyond his control, the Administrative Judge could not conclude that the Individual behaved responsibly under the circumstances. He had been behind on his mortgage for approximately one year and there was no evidence indicating that he attempted to remedy this matter until February 2023. Further, there was no evidence indicating that the Individual attempted to resolve his debts until February 2023. Accordingly, the Administrative Judge could not conclude that the Individual mitigated the stated concerns under ¶ 20 (b). Further, although the Individual had engaged a credit services company, there was no indication that a determination had been made regarding any alleged inaccuracies or that any practical action had been taken to resolve the matter. And accordingly, there was no indication the matter was under control. Thus, the mitigating factor at ¶ 20. (c) was inapplicable. Additionally, there was nothing in the record to indicate that the Individual had a reasonable basis to dispute the legitimacy of the past - due debt, therefore, the mitigating factor at ¶ 20 (e) was inapplicable.

The remaining mitigating factors at ¶ 20 (a), (d), (f), and (g) also did not apply to this case. As the matter of the delinquent debts were ongoing, there was no indication that the issues outlined in the SSC happened under unusual circumstances, took place long ago, or were infrequent. Further, there was no indication that a payment plan had been established, and accordingly, there was no indication that the Individual was engaging in good faith efforts to repay the overdue creditors. Lastly, the stated concerns did not involve allegations of affluence or a failure to satisfy federal or state income taxes. ( OHA Case No. PSH-23-0064, Rahimzadeh)

Access Authorization Not Granted; Guideline F (Financial Considerations)

On May 17, 2023, an Administrative Jude determined that the Individual's access authorization should not be granted under 10 C.F.R. Part 710. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. the Local Security Office (LSO) received potentially derogatory information regarding the Individual's finances. The LSO alleged that: 1) the Individual has unpaid charge off accounts totaling approximately $ 2,418; 2) the Individual has unpaid collection accounts totaling approximately $ 9,395; and 3) the Individual owes approximately $29, 738 in federal taxes for the tax years 2013 and 2014.

The Individual testified on his own behalf at the hearing. The evidence in the record established that the Individual failed to file federal income taxes for tax years 2013 and 2014. He was under the belief that the fact the Internal Revenue Service (IRS) was retaining his refunds meant that his obligation was being sufficiently satisfied. When he learned that he was mistaken, he retained a tax service company in October 2022, but a repayment plan had not yet been established at the time of the hearing. Further, The Individual also disclosed that at least two of the delinquent debts were accounts on which he had cosigned for his girlfriend, and those delinquent accounts had not been satisfied . The Individual also indicated in his testimony that he had been researching credit consolidation companies but had not yet secured such services. Finally, the record indicated that the only debt that had been satisfied was the debt totaling $457.

The record revealed that the Individual had filed for bankruptcy in 2013 after suffering a layoff. He secured new employment in 2015, and held two additional positions, thereafter, including his current position. He approximated that he had been unemployed for a total of one year since 2013, and confirmed in his testimony that he had been, for the most part, steadily employed since 2017. He also indicated that in his line of work, it was common to secure employment under short -term contract followed by a period of unemployment. Regarding his current financial state, the Individual disclosed that he had received a $15,000 car insurance payment and that he saved, on average, approximately $500 every month.

The Administrative Judge could not conclude that the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the Individual's current reliability, trustworthiness, or good judgment. The Individual's outstanding obligations were continuing, involved thousands of dollars, and had been an issue for years. Further, while the circumstances that resulted from his loss of employment in 2013 were arguably not within his control, the Administrative Judge could not conclude that the Individual acted responsibly under the circumstances. It was arguable that the cycles of employment and unemployment could have been anticipated. Additionally, the Individual knew that he had failed to satisfy his federal income taxes for tax years 2013 and 2014 but failed to take any action until October 2022, and at the time of the hearing, the Individual had not yet contacted a debt consolidation company, as he indicated he would in his LOI. Further, the Individual has not utilized the $ 15,000 he received from insurance to at least begin the process of satisfying his outstanding obligations. Lastly, although the Individual has indicated that two of the outstanding debts were incurred by his girlfriend, he is still responsible for the debt, as he acted as a cosigner. Accordingly, I cannot conclude that the Individual has mitigated the concerns pursuant to mitigating factor (b).

Because a payment plan had not yet been established with the IRS, a credit consolidation service had not yet been retained, and the record did not indicate that the Individual was making payments to overdue creditors, the mitigating factors at (c), (d), and (g) were not applicable. The Administrative Judge also could not conclude that the Individual has mitigated the stated concerns pursuant to mitigating factor (e) because there was no indication that the Individual had a reasonable basis to dispute any of the aforementioned outstanding obligations. Further, as there was no allegation of affluence, the mitigating factor at (f) was also inapplicable. (OHA Case No. PSH-23-0044, Rahimzadeh)

Access Authorization Restored; Guideline I (Psychological Conditions)

On May 18, 2023, an Administrative Judge determined that an Individual's access authorization should be restored under 10 C.F.R. Part 710. The Individual was involuntarily hospitalized and diagnosed with Bipolar Disorder in 2022 after experiencing a manic episode. The Individual was subsequently evaluated by a DOE-contracted Psychologist (DOE Psychologist) who opined that the Individual met sufficient diagnostic criteria for a diagnosis of Bipolar I Disorder, Most Recent Episode Manic, under the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition, and that this condition could impair the Individual's judgment, stability, reliability, or trustworthiness. At the hearing, the Individual established that she had adhered to a treatment regimen since her involuntary hospitalization, including taking all prescribed medication, receiving cognitive behavioral therapy, and adopting changes to her lifestyle to minimize the risks of another mood episode. The Individual denied having experienced a mood episode since the manic episode in 2022, and indicated that she would strictly adhere to her treatment regimen in the future. Several clinicians treating the Individual and a consulting psychologist provided positive prognoses for the Individual's recovery. Based on the information presented by the Individual, the DOE Psychologist opined that the Individual's condition was stable and her prognosis was good. The Administrative Judge concluded that the Individual had resolved the security concerns presented by her Bipolar Disorder under Guideline I. Therefore, the Administrative Judge determined that the Individual's access authorization should be restored. ( OHA Case No. PSH-23-0046, Harmonick)