PSH-21-0020 - In the Matter of Personnel Security Hearing

On May 3, 2021, an Administrative Judge determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. The Individual had a history of three incarcerations: In 1988, he served thirty days for Marijuana Distribution; in 2007, he served 30 days for two offenses resulting from threatening messages that he sent to his first wife (Ex- Wife One) in 2007; in 2010 through 2012, he served two years and nine months for multiple offenses related to a 2009 incident in which he brandished a firearm and made violent threats in Ex-Wife One's home. The Individual also had a history of illegal drug use, including marijuana, cocaine, and methamphetamine, as recent as 2009. The Individual submitted a Questionnaire for National Security Positions (QNSP) in which he denied having misused prescription medication in the prior seven years. During an interview with an Office of Personnel Management (OPM) investigator, the Individual represented that his distribution of marijuana in 1988 was his "only involvement with illegal drugs." However, the Individual subsequently revealed that he had an extensive history of illegal drug use. The Individual's second ex-wife (Ex-Wife Two) disclosed to an OPM investigator that her relationship with the Individual deteriorated after he began combining alcohol with Hydrocodone and that she had decided to divorce the Individual in 2017 after an incident in which she feared that he would become violent with her minor son while he was under the influence of alcohol and Hydrocodone. The Individual admitted that he had combined moderate amounts of alcohol with his doctor-prescribed Hydrocodone but indicated that he did not understand that he was required to disclose this practice on the QNSP, because at the time he submitted the QNSP, he did not consider his combination of alcohol with his prescribed Hydrocodone to constitute "misuse." The Individual also denied that the OPM investigator had inquired as to his history of drug use, other than to ask if he currently engaged in illegal drug use.

At the hearing, the Individual testified that he had not used illegal drugs since his imprisonment in 2009 and that he had discontinued using Hydrocodone in favor of other doctor- recommended approaches to managing back pain. The Individual also presented evidence that he had established a positive employment record and that he completed vocational training, earned his GED, and attended therapy, AA, and anger management counseling while incarcerated. The Individual represented that he had not understood his combination of alcohol and Hydrocodone to be "misuse" which he should have disclosed on the QNSP because he had used the Hydrocodone in the prescribed dosage and had not sought to "get high." The Individual also denied that the OPM investigator had inquired about his history of drug use and expressed the opinion that he was not required to volunteer his drug use to the investigator because of the amount of time that had elapsed since he last used illegal drugs. The Administrative Judge credited the Individual's testimony that his omission of his use of Hydrocodone with alcohol from the QNSP was a good faith mistake and was unlikely to recur.

However, the Administrative Judge determined that the Individual had not resolved the security concerns under Guideline E because the OPM investigator's report strongly suggested that the Individual was asked a number of questions designed to elicit information about any history of illegal drug use by Individual and was informed that the Individual's only illegal drug involvement occurred in connection with the Individual's sale of marijuana which led to his 1988 conviction. Moreover, the Administrative Judge noted that the passage of time and the Individual's efforts at rehabilitation were insufficient to mitigate the security concerns under Guideline J in light of the seriousness of his criminal conduct, the Individual's threatening behavior in 2017 towards Ex-Wife Two while under the influence of alcohol and prescription drugs, and his lack of candor during his hearing testimony. As the Individual served a term of imprisonment in excess of one year and did not resolve the security concerns under Guideline J, the Administrative Judge determined that the Individual was disqualified from holding a security clearance pursuant to the Bond Amendment. Therefore, the Administrative Judge concluded that the Individual should not be granted access authorization. OHA Case No. PSH-21-0020(Steven L. Fine).