Decisions were issued on: - Personnel Security
Office of Hearings and Appeals
October 6, 2023
minute read time
Personnel Security Hearing (PSH)
Access Authorization Not Restored; Guideline E (Personal Conduct); Guideline G (Alcohol Consumption); Guideline H (Drug Involvement and Substance Misuse)
On October 6, 2023, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should not 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 completed a Questionnaire for National Security Positions (QNSP). In the section entitled "Police Record," the Individual answered "no" in response to the question asking whether he had "EVER been charged with an offense involving alcohol or drugs ." However, DOE discovered that, in April 2021, the Individual was arrested and charged with Use/Possession of Drug Paraphernalia. Subsequently, the Individual underwent a psychological evaluation with a DOE consultant psychiatrist (DOE Psychiatrist) in April 2023. After evaluating the Individual, the DOE Psychiatrist diagnosed the Individual with Alcohol Use Disorder, Moderate, and he determined that the Individual had not shown adequate evidence of rehabilitation or reformation. At the hearing, the Individual testified that, prior to the April 2021 arrest, he became intoxicated at a casino and law enforcement was contacted . The Individual stated that he believed that the casino security put the drugs in his bag, and he did not know the source of the drugs. He testified that he did not report the arrest to DOE because law enforcement told him not to worry about the arrest. Regarding his failure to list drug charge on the QNSP, the Individual stated that he did not know why he did not disclose it. Turning to the alcohol concerns, the Individual was unable to definitively state when he became abstinent from alcohol, and although, he stated that he had met four times with a counselor from the Employee Assistance Program, he had not completed the recommendations of the DOE Psychiatrist. The Administrative Judge found that the Individual's testimony was not entirely credible as it was replete with inconsistencies and mistruths. Ultimately, the Administrative Judge determined that the Individual had failed to mitigate the Guideline E, G, and H security concerns, and she concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-23-0105, Quintana)
Access Authorization not restored; Guideline H (Drug Involvement and Substance Misuse)
On October 6, 2023, an Administrative Judge determined that an Individual's access authorization under 10 C.F.R. Part 710 should not be restored. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. In May 2023, the Individual took a random workplace drug test, and tested positive for oxycodone, a drug for which he did not have a prescription. The Individual submitted a copy of a written agreement by his employer which he signed and that contained requirements he needed to complete before being allowed to return to work. In accordance with the agreement, he provided proof that he completed a four-hour drug and alcohol class, and he submitted a copy of a negative drug test that he took in June 2023. He also agreed to undergo random drug testing for 12-months following his return to work.
At the hearing, the Individual’s Union President testified that the Individual acknowledged that there was a problem and complied with all the requirements from his employer in order to return to work. Id. He explained that, as Union President, he is notified whenever there are problems with employees and he asserted that the Individual has not been involved with any disciplinary issues or policy violations, aside from the current incident. The Individual testified that the day before he took the random drug test, he was doing yard work for his mother when he injured his back. He testified that his mother saw him grimacing in pain so she offered him some pain medication. He explained that he took the medication without question because he trusted that his mother cared about him and would not offer him medication “that would hurt him.” Although the Individual asserted that this was a one-time incident which will not recur, he did not present any other testimonial evidence to corroborate his story, or any witnesses who could corroborate his abstinence. Moreover, despite the passage of three months between his positive drug test and the hearing, he only provided results from one negative test in June 2023. Due to the absence of any other supporting evidence, the Administrative Judge found that the Individual did not provide sufficient evidence to determine that the misuse of this prescription drug occurred under such circumstances that it is unlikely to recur, or that he had established a pattern of abstinence. Ultimately, the Administrative Judge determined that the Individual had failed to mitigate the Guideline H security concerns, and she concluded that the Individual’s access authorization should not be restored. (OHA Case No. PSH-23-0101, Balzon)