Summary of Decisions - October 03, 2022 - October 07, 2022

Personnel Security Hearing (PSH)

Access Authorization Not Restored; Guideline H (Drug Involvement and Substance Misuse) & Bond Amendment

On October 3, 2022, an Administrative Judge determined that an Individual's access authorization should not be restored under 10 C.F.R. Part 710. In November 2021, the Individual tested positive for marijuana metabolite on a random workplace drug test. The Individual denied having used marijuana, but noted that he used CBD oil for lower back pain. At the hearing, the Individual admitted to having used pain relief products containing THC on a daily basis for several months. The Individual represented that he had discontinued using THC products, but did not provide drug tests or other corroborating evidence to support his claims. In light of the frequency of the Individual's use of THC products, and his failure to establish a pattern of abstaining from their use, the Administrative Judge concluded that the Individual had not resolved the security concerns under Guideline H and was disqualified from holding access authorization under the Bond Amendment. Therefore, the Administrative Judge determined that the Individual's access authorization should not be restored. (OHA Case No. PSH-22-0084, Harmonick)

Access Authorization Not Restored; Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), Guideline J (Criminal Conduct)

On October 5, 2022, an Administrative Judge (AJ) determined that an Individual should not have her access authorization restored 10 C.F.R. Part 710. In 2021, the DOE Local Security Office (LSO) discovered concerning information regarding the Individual's alcohol use. The information prompted the LSO to request that the Individual be evaluated by a DOE -consultant psychologist ("Psychologist "). After receiving the Psychologist's report from the evaluation, the LSO informed the Individual that it possessed reliable information that created substantial doubt regarding her eligibility to possess a security clearance because the derogatory information raised security concerns under Guideline E, Guideline G, and Guideline J of the Adjudicative Guidelines.

At the conclusion of the hearing, the AJ determined the following. The LSO appropriately invoked Guideline E by citing that the Individual made misleading and deceptive statements during the psychological evaluation. Guideline G was properly invoked by citing that the Individual was arrested in 2021 for Driving Under the Influence (DUI), hospitalized in 2004 for alcohol poisoning, and the Psychologist's opinion that the Individual likely had an unresolved alcohol use disorder. Guideline J was properly invoked by citing that the Individual pled guilty to the 2021 DUI, and she had been charged with Underage Consumption of Alcohol [UAC] in 2006.

The AJ also concluded that the Individual did not put forth sufficient evidence to resolve the security concerns for the following reasons. Regarding Guideline E, the AJ found that the conduct was not minor because the Individual intentionally concealed information during a security clearance investigation, the record contained inconsistent evidence regarding the Individual's alcohol consumption on the day of the DUI, and the AJ therefore remained concerned that the Individual would not prioritize candidness or truthfulness in the future. Regarding Guideline G, the AJ found that the Individual had not been treated by a counselor and her participation in alcohol recovery support meetings was not equivalent to the outpatient counseling recommended by the Psychologist; the record did not demonstrate a clear and established pattern of abstinence because the Individual had been an unreliable source of information regarding her alcohol consumption, she failed to follow the Psychologist's recommendation to undertake alcohol testing to corroborate her claimed abstinence, and she only reported abstaining for four of the recommended six months; and the Individual had not completed a treatment program. Regarding Guideline J, the AJ found that the Individual's DUI and charge for UCA were inextricably linked to her consumption of alcohol, and, since she had not resolved the Guideline G concerns, the AJ did not find that the conduct under Guideline J was unlikely to recur and does not cast doubt on the Individual's reliability, trustworthiness, or good judgment.

Accordingly, the AJ concluded that the Individual had not resolved the Guideline E, Guideline G, and Guideline J security concerns. (OHA Case No. PSH-22-0113, James P. Thompson III)

Access Authorization Granted; Guideline G (Alcohol Consumption)

On October 7, 2022, an Administrative Judge determined that the Individual's access authorization should 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 alcohol consumption. The LSO alleged that Thereafter, on November 2, 2021, the Individual self-reported that he was arrested and charged with Driving Under the Influence of Alcohol (DUI) on October 31, 2021. In November 2021, DOE Psychologist opined in an evaluative report that the Individual habitually consumes alcohol to the point of intoxication twice a month. She concluded that, at the time of the evaluation, the Individual had not demonstrated adequate evidence of rehabilitation he needed to participate in a treatment program and demonstrate that he can maintain moderate drinking by producing monthly PEth tests showing minimal to moderate levels of drinking at his own expense for six months." .

At the hearing, the Individual, his brother, and the DOE Psychologist testified. The evidence in the record established that the Individual was participating in Alcoholics Anonymous (AA) meetings, and that he had submitted six negative PEth tests. The brother, who has been attending AA meetings for 11 years, testified that he has been attending meetings with the Individual. He has also observed the reduction in his brother's alcohol consumption.

The DOE Psychologist testified that after hearing the Individual and his brother's testimony and reviewing the exhibits, she believes that the Individual has gained insight into the fact that his drinking behavior was problematic. The DOE Psychologist further opined that the Individual has put forth sufficient evidence of rehabilitation. She stated that the Individual's AA attendance verification coupled with his testimony shows that he began attending AA meetings in April 2022, and she found his assertions credible, that he was attending AA meetings since April consistently. The DOE Psychologist further concluded that she is satisfied that the Individual has been getting the chemical dependency treatment that she recommended in her evaluative report on the Individual. She based her opinion on the fact that she sees significant changes in the Individual, and that his testimony about the specific coping skills that he has learned from AA are consistent with the same concepts she is aware of based on her knowledge and work with people in substance abuse treatment programs.

The Administrative Judge concluded that the Individual had mitigated the Guideline G concerns. The Individual testimony was credible about the measures he had taken to stop his binge drinking. The Individual has backed up his testimony with a series of negative PEth tests which would detect excessive alcohol consumption and with his brother's testimony confirming the Individual's participation in AA meetings. Lastly, the DOE Psychologist provided a creditable expert testimony regarding the Individual's rehabilitation.  Based on the evidence, the Administrative Judge concluded that the Individual had mitigated Guideline G concerns. (OHA Case No. PSH-22-0087, Cronin)