PSH-21-0031 - In the Matter of Personnel Security Hearing

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).