Summary of Decisions - June 21, 2021 - June 25, 2021

Personnel Security Hearing (PSH) PSH-21-0032

Personnel Security;  Access  Authorization Not Granted; Guideline F (Financial Considerations)

On June 21, 2021, an Administrative Judge determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. The Individual   terminated   a personnel security interview in 2010 after being questioned about his financial situation due to concerns about unpaid taxes. In 2018, the Individual completed a Questionnaire for National Security Positions (QNSP). In his responses to the QNSP, the Individual denied failing to file or pay federal, state, or local taxes in the prior seven years and denied any delinquencies involving routine financial accounts in the prior seven years. However, a background investigation by the Office of Personnel Management revealed that the Individual failed to file or pay federal personal income taxes for 2010, 2011, or 2012 and owed substantial delinquent debts. In October 2019, in response to a letter of interrogatory from the local security office, the Individual indicated that he had filed a personal income tax return for 2010 but had not made progress in resolving his unpaid tax liability or delinquent debts. At the hearing, the Individual presented evidence and testimony that he had filed personal income tax returns for 2010 and 2011 and had paid some of his delinquent debts. However, the Individual did not produce evidence that he had filed a personal income tax return for 2012 and estimated his unpaid tax liability at $28,000. The Individual was not able to identify all of his outstanding delinquent debts or how much he owed. The Individual expected that his wife would soon receive benefits that he could use towards meeting his financial obligations, but could not quantify his current net income or calculate how much he could put towards his unpaid debts and tax liability if his wife did not receive the benefits. The Administrative Judge determined that the Individual had not resolved the security concerns under Guideline F because the Individual demonstrated a long history of financial irresponsibility, had made minimal progress towards resolving his unpaid taxes and debts, and had not demonstrated a significant likelihood of being able to meet his financial obligations for the foreseeable future. Therefore, the Administrative Judge concluded that the Individual should not be granted access authorization. OHA Case No. PSH-21-0032 (Kimberly Jenkins-Chapman).

Personnel Security; Access Authorization Not Restored; Guideline F (Financial Considerations)

On June 21, 2021, 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 DOE security clearance. As part of the investigation for his security clearance, the Individual completed an Electronic Questionnaires for Investigations Processing (e-QIP) in October 2018. In response to the financial questions, the Individual indicated that he had failed to file his Federal and state taxes for the 2014-2017 tax years. During the hearing, the Individual testified that, as of the date of the hearing, his 2016 and 2017 Federal and state taxes had been filed and accepted by the appropriate tax authorities. The Individual explained that his 2018 state taxes were also filed and accepted, and although his 2018 Federal taxes were filed at the same time, they were rejected by the IRS. He testified that his 2014 and 2015 Federal and state taxes had not yet been filed. The Administrative Judge determined that the Individual had not resolved the security concerns associated with Guideline F. Accordingly, she concluded that the Individual's access authorization should not be restored. OHA Case No. PSH-21-0033 (Katie Quintana).

Personnel Security; Access Authorization Granted; Guideline F (Financial Considerations)

On June 21, 2021, an OHA Administrative Judge (AJ) issued a decision in which he determined that an Individual's DOE access authorization should be granted. In this QNSP, the Individual reported that he had not filed his Federal or state tax returns for tax years 2016 and 2017. At the hearing conducted by the AJ, the Individual testified regarding the circumstances that led to the late filing of his 2016 and 2017 taxes. He testified that he had tried to do his own record-keeping for his business to save on the costs of professional bookkeeping services, however, he became overwhelmed. The Individual testified and presented evidence showing that he has taken actions to address the Local Security Office's concerns regarding not filing his previous taxes. He presented evidence from his tax preparation professional showing that he had filed his 2016 and 2017 Federal and state taxes in January 2020 and reflecting that he does not have any outstanding tax obligations to the State. He also presented evidence reflecting that he had entered into a payment plan with the IRS to resolve his outstanding Federal tax debt and is complying with the payment plan to pay the balance of his outstanding Federal tax obligation. Further, the Individual had shown that he intends to rely upon tax professionals going forward to prevent a recurrence of his tax issues. The AJ therefore found that the Individual's circumstances resulting in his late filing of his 2016 and 2017 Federal and state taxes are unlikely to recur and that the Individual had sufficiently demonstrated his current reliability, trustworthiness, and good judgment by taking corrective actions that have resolved his tax issues. Accordingly, the AJ found that the Individual's access authorization should be granted. OHA Case No. PSH-21-0034 (Steven L. Fine)

Personnel Security; Access Authorization Not Restored; Guideline G (Alcohol Consumption)

On June 21, 2021, an Administrative Judge determined that an Individual's access authorization should not be restored under 10 C.F.R. Part 710. The Individual was arrested and charged with Driving under the Influence (DUI) in 2019. Although the Individual denied feeling intoxicated, his blood alcohol content was measured at .231g/210L. The Individual met with a DOE-contracted Psychologist (DOE Psychologist) in October 2019. During the clinical interview with the DOE Psychologist, the Individual represented that he usually consumed one or two drinks weekly and could not recall the last time he was intoxicated. However, the results of a Phosphatidylethanol (PEth) test provided evidence that the Individual was consuming more alcohol than he admitted. The DOE Psychologist diagnosed the Individual with Alcohol Use Disorder (AUD), Mild, under the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition and recommended that he abstain from alcohol for at least twelve months, undergo random EtG tests and at least two PEth tests during his period of abstinence, and participate in Alcoholics Anonymous (AA) on a weekly basis. At the hearing, the Individual provided PEth and EtG test results, including a positive PEth test which showed that the Individual had consumed alcohol, and testified that he had abstained from alcohol since a period of binge drinking approximately eight months prior to the hearing which was captured on the positive PEth test. The Individual also indicated that he attended online AA meetings. However, the Individual testified that he mostly observed the meetings, did not have a sponsor, and was not methodically working the twelve-step AA program. Additionally, unusual time stamps on the Individual's electronic attendance sheets called into question whether he had in fact attended some of the meetings he claimed to have attended. The Administrative Judge determined that the Individual had not resolved the security concerns under Guideline G because the Individual admitted to binge drinking within eight months of the hearing, failed to demonstrate twelve months of abstinence from alcohol as recommended by the DOE Psychologist, and did not substantively participate in AA meetings or otherwise pursue treatment for his AUD. Therefore, the Administrative Judge concluded that the Individual's access authorization should not be restored. OHA Case No. PSH-21-0036 (Janet R. H. Fishman).

Personnel Security; Access Authorization Not Granted; Guideline E (Personal Conduct)

On June 22, 2021, an Administrative Judge (AJ) determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. The Individual submitted a Questionnaire for National Security Positions (QNSP) in which he admitted resigning from an Employer after testing positive Hydrocodone in 2018, and that he had sought treatment in December 2016 after he became dependent on Hydrocodone prescribed to him by a doctor for shoulder pain. However, the QNSP asked the Individual: "In the last seven (7) years, have you illegally used any drugs or controlled substances" and "In the last seven (7) years have you intentionally engaged in the misuse of prescription drugs, regardless of whether or not the drugs were prescribed for you or someone else" The Individual responded "no" to both these questions. The Local Security Office (LSO) asserted that the Individual had answered these questions with deceptive intent. However, the AJ found that the Individual had inadvertently answered the two questions incorrectly. The Individual further claimed that his positive drug test in 2018 resulted from his ingestion of pain medication provided by his father which the Individual mistakenly believed to be aspirin, that this was the last time he used opiates, and that his last intentional use of opiates occurred in December 2016.

Because of the concerns raised by the Individual's opiate misuse and treatment, the LSO requested that the Individual be evaluated by a Psychologist (Psychologist) who interviewed the Individual, in September 2019, and immediately sent him for a drug screening test. The urine sample provided by the Individual on that date tested positive for Hydrocodone indicating that he had used Hydrocodone sometime during the previous two days. After conducting her interview of the Individual (in which the Individual had informed her that he last ingested Hydrocodone in May 2018) and receiving the results of the drug screening test, the Psychologist issued a report of her findings in which she opined that the Individual met the criteria for Opioid Use Disorder (OUD) Moderate set forth in the Diagnostic and Statistical Manual - Fifth Edition (DSM-5). The Psychologist further indicated that the Individual needed to demonstrate the ability to abstain from opiate use for at least 12 months, and attend Narcotics Anonymous (or a similar program) on a weekly basis in order to show that he had been rehabilitated or reformed from his OUD and that his prognosis was favorable.

At the Hearing, the Individual attempted to show that he did not intentionally provide false information to the LSO or the Psychologist during his investigation; has not intentionally used opiates since December 2016; and has fully complied with the Psychologist's treatment recommendations. To this end, he reiterated his claim that the May 2018 positive drug test for Hydrocodone occurred when he accepted pain medication from his father thinking it was aspirin. The Individual further claimed, without any corroborating evidence, that the September 2019 positive test result occurred because the laboratory mixed up several urine samples. After hearing the Individual's testimony, the AJ concluded that the Individual had not submitted any evidence, other than his own uncorroborated testimony, in support of his assertions that he has not used Hydrocodone since May 2018 and that he has been successfully rehabilitated from his OUD, and further found that the Individual's testimony to this effect lacked credibility. Accordingly, the AJ concluded that the Individual had intentionally provided false information during the adjudication of his security clearance, had used Hydrocodone as recently as September 30, 2019, and had not shown that he has been reformed of rehabilitated from his OUD. Accordingly, the Administrative Judge concluded that the Individual had not mitigated the security concerns asserted by the LSO and that he should not be granted access authorization. OHA Case No. PSH-21-0041 (Steven L. Fine).

Personnel Security; Access Authorization Restored; Guideline H (Drug Involvement and Substance Misuse) and Bond Amendment

On June 22, 2021, an OHA Administrative Judge (AJ) determined that an Individual's DOE 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 her to hold a DOE security clearance. In August 2019, the Individual disclosed on her August 2019 Questionnaire for National Security Positions form and a Letter of Interrogatory, that she had previously used marijuana candies on two occasions while possessing a security clearance. The LSO alleged that the Individual's admitted illegal drug use raised security concerns under Adjudicative Guideline H and the Bond Amendment.

At the hearing, the Individual testified regarding the circumstances of her previous marijuana use. She and her husband both testified that he had previously purchased marijuana edibles and given them to the Individual as a "joke Christmas present." The Individual testified that she has motion sickness with significant nausea which makes it difficult for her to drive in the mountains. She stated that she and her husband regularly take their young children on weekend drives to the mountains. Remembering that someone had told her that marijuana can help with motion sickness, she consumed a pea-sized marijuana lozenge in November 2017, while she was at her house prior to a family road trip. She asserted that because she was unsure whether the marijuana lozenge had helped her nausea, she decided to try it one more time, and therefore, she again consumed a marijuana lozenge a couple of weeks later prior to a family road trip. She asserted that was the last time she consumed marijuana. The Individual also testified that at the time she used marijuana, she did not understand that although marijuana usage was legal in her state, it was a federal violation and, therefore, violated her holding of a security clearance. The Individual and her witnesses presented testimony reflecting the Individual's mitigation efforts concerning the security concerns.

The AJ found that under the DOE's new policy on the application of the Bond Amendment, the Individual's prior marijuana use does not meet the definition of either an "unlawful user" or "addict" of a controlled substance. Accordingly, the AJ found that the Bond Amendment was not a bar to the Individual holding a security clearance. Further, the AJ determined that the Individual had resolved the security concerns under Guideline H for several reasons. She had self-disclosed her prior marijuana use before she was confronted with this derogatory information, she provided credible testimony of her specific reason of consuming the marijuana lozenges to treat her nausea, and once she realized that marijuana use was a potential security concern, she made sure to throw away the remaining marijuana edibles. Further, she had established a pattern of abstinence by demonstrating that she does not associate with any drug-using associates, she disposed the marijuana edibles that were previously in her home, she has not used marijuana since November 2017, and she signed a statement of intent to abstain from illegal drugs. Accordingly, the AJ concluded that the Individual's access authorization should be restored. OHA Case No. PSH-21-0031 (Janet R. H. Fishman).

Personnel Security; Access Authorization Not Restored; Guideline E (Personal Conduct); Guideline F (Financial Considerations); Guideline G (Alcohol Consumption)

On June 24, 2021, 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 DOE security clearance. As part of a reinvestigation for his security clearance, the Individual completed an Electronic Questionnaires for Investigations Processing (e-QIP) in October 2017. In response to the financial questions, the Individual indicated that he failed to file his 2015-2016 Federal and state income taxes. In response to questions regarding his police record, the Individual noted that he had been charged with Driving Under the Influence (DUI) in September 2007 and with "domestic charges" in December 2011. In March 2018, the Individual underwent a Human Reliability Program (HRP) interview, and in early October 2018, the Individual self- reported that he had been arrested and charged with DUI. Subsequently, the Local Security Office (LSO), asked him to complete a Letter of Interrogatory (LOI). The Individual then underwent two Fitness for Duty (FFD) interviews on November 16, 2018 and November 29, 2018. Finally, in March 2019, the Individual was evaluated by a DOE consultant psychologist (Psychologist), who diagnosed the Individual with Alcohol Use Disorder, Mild, in early remission. The LSO informed the Individual that it possessed reliable information that created substantial doubt regarding the Individual's eligibility to hold a security clearance pursuant to Guideline E (Personal Conduct), Guideline F (Financial Considerations), and Guideline G (Alcohol Consumption) of the Adjudicative Guidelines. 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 E, Guideline F, or Guideline G. Accordingly, she concluded that the Individual's access authorization should not be restored.  OHA Case No. PSH-21-0040 (Katie Quintana).

Personnel Security; Access Authorization Restored; Guideline G (Alcohol Consumption)

On June 24, 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 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's alcohol consumption. Under Guideline G, the LSO alleged that (1) the DOE Psychiatrist diagnosed the Individual with Alcohol Use Disorder (AUD), Mild, in early sustained remission without evidence of rehabilitation or reformation and (2) On December 1, 2018, the Individual was charged with Driving While Intoxicated after he consumed 24 ounces of beer and a half pint of whiskey. On this occasion, the Individual had a Blood Alcohol Content (BAC) of .16 and admitted that he was intoxicated.

At the hearing, the Individual and four other witnesses testified. The Individual's witnesses testified to such matters as the Individual's involvement with the Alcoholics Anonymous (AA) program, his reliability, trustworthiness, honesty, and ongoing sobriety. The Individual provided evidence that he had attended three sessions with his employer's Employee Assistance Program (EAP), had remained sober since approximately December 2, 2018, and had been attending AA meetings since August 2020, even regularly chairing some meetings. Further, the Individual enjoys broad support from his friends and family on his journey through sobriety. The DOE Psychiatrist testified that the Individual had demonstrated his rehabilitation as the DOE Psychiatrist had required. Based on credible testimony from lay witnesses, the Individual, and one expert, the Administrative Judge concluded that the Individual had mitigated all security concerns stated in the Notification Letter. The Administrative Judge therefore concludes that the Individual's access authorization should be restored. OHA Case No. PSH-21-0035 (Janet R. H. Fishman).

Personnel Security; Access Authorization Not Granted; Guideline F   (Financial Considerations)

On June 24, 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 by a DOE contractor in a position that requires her to hold a DOE security clearance. The Local Security Office (LSO) received potentially derogatory information regarding the Individual's financial state. Under Guideline F, the LSO alleged: (1) The Individual has an unpaid collection account in the amount of $3,418; (2) The Individual has unpaid charge-off accounts in the amount of $10,176; (3) The Individual failed to file personal income tax returns with the Internal Revenue Service for tax years 2013 through 2017; (4) The Individual failed to file state personal income tax returns for tax years 2013 through 2017.

At the hearing, the Individual and one other witness testified. Through testimony and the evidence submitted by DOE Counsel and the Individual, it was established that not only had the Individual resolved all of the charge-off and collection account delinquencies, which she attributed to living outside of her means and contributing financially to her mother's household, but the Individual had also satisfied her state income tax obligations for tax years 2013 through 2016. She was making payments pursuant to a payment plan to satisfy her state income tax obligations for 2017. Further, the Individual had engaged the services of a CPA to resolve her federal income taxes obligations. She had submitted her tax returns for years 2013 through 2017 in October 2020, with the intention of establishing a payment plan for all tax years once all returns had been accepted by the Internal Revenue Service (IRS). She had also filed her 2018 and 2019 tax returns in 2020, but admitted at the time of the hearing that she had not yet filed her taxes for tax year 2020, stating that she had not filed for an extension and voiced her lack of concern with regard to filing her 2020 income taxes a week late. The Individual's failure to file income taxes for tax year 2020 raises concerns with regard to her judgement, fails to illustrate that this situation is unlikely to recur, and fails to illustrate that she acted in good faith to discharge this ongoing obligation, especially since she previously indicated she understood her tax obligations. Additionally, a payment plan had not yet been established to satisfy her delinquent federal income taxes. Further, although the Individual provided financial assistance to her mother, which she indicates contributed to her financial issues, the Administrative Judge could not find that she acted responsibly under the circumstances. Based on the testimony of all witnesses and the evidence submitted, the Administrative Judge therefore concluded that the Individual's access authorization should not be granted. OHA Case No. PSH-21-0037 (Kimberly Jenkins-Chapman).

Personnel Security; Access Authorization Granted; Guideline J (Criminal Conduct)

On June 25, 2021, an Administrative Judge (AJ) determined that an Individual should be granted access authorization under 10 C.F.R.   Part   710.   A   background   investigation revealed that the Individual had an extensive history of arrest and citations for Speeding, No Driver's License, Driving While License Suspended, and No Vehicle Liability Insurance violations from 2010 until 2019. The AJ found, however, that the Individual resolved the security concerns raised by his criminal activity by showing that he has grown and matured, changed his behavior, and taken meaningful and appropriate actions to address the consequences of his past actions, and by doing so had exhibited good judgment, reliability, and trustworthiness during the past two years. The AJ found that the hearing testimony of the Individual, his supervisor, and the Individual's mother had convincingly shown that the Individual had grown and matured and that he now exhibited reliability, trustworthiness, and good judgement. The AJ cited the Individual's testimony, in which the Individual fully acknowledged his previous poor judgment and took responsibility for his actions. The AJ found that the Individual and Supervisor's testimony showed that the Individual had learned from his mistakes and had become a responsible, law-abiding adult. The AJ further found that the Individual had taken actions to resolve his outstanding debt and to restore his driving privileges; that he had earned a college degree; and that he had been meaningfully employed with a DOE contractor since 2018, in a position requiring a very high level of responsibility. Accordingly, the Administrative Judge concluded that the Individual had mitigated the security concerns asserted by the LSO and that he should be granted access authorization. OHA Case No. PSH-21-0042 (Steven L. Fine).