Decisions were issued on: - Personnel Security
Office of Hearings and Appeals
December 31, 2021Personnel Security Hearing
Access Authorization Not Restored; Guideline I (Psychological Conditions) and Guideline J (Criminal Conduct)
On December 27, 2021, an Administrative Judge determined that the Individual's access authorization under 10 C.F.R. Part 710 should not be restored. The Individual is employed as a DOE contractor in a position that requires him to hold a DOE security clearance. The Individual submitted an Incident Report to the Local Security Office (LSO) in August 2020, regarding a physical altercation he had with his son. The Individual was later examined by a DOE contractor Psychologist.
In a Notification Letter, the LSO alleged that the derogatory information raised security concerns under Guideline I (Psychological Conditions) and Guideline J (Criminal Conduct) of the Adjudicative Guidelines. As derogatory information under Guidline I, the LSO relied on the DOE Psychologist's conclusion that the Individual met the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria for Posttraumatic Stress Disorder (PTSD). Under Guideline J, the LSO relied in part on the fact that State and local police departments had initiated an investigation of the Individual for Abuse of a Child- Intentional and Interference with Communications, after the Individual's physical altercation with his son.
At the hearing, the Individual presented testimony from his therapist that he had been receiving dialectical behavioral therapy in preparation for receiving Movement Desensitization and Reprocessing (EMDR) therapy. The Therapist stated that once she begins doing EMDR therapy with the Individual, she hopes that it will help the Individual resolve any trauma- related issues he's had from his past. The DOE Psychologist testified that the Individual had made progress in treating his PTSD and that his prognosis was "fair" at the time of the hearing. However, she noted that a complete course of three months of EMDR therapy would be needed before she could find that his prognosis was improved. Given this evidence, the Administrative Judge found that the Individual had not fully resolved the Guideline I security concerns.
Further, the Administrative Judge found that the Individual had not submitted sufficient evidence to mitigate the Criteria J security concerns. The Individual claimed that he had not grabbed his son in a manner that caused his injuries. He also presented a witness that testified that she had never seen the Individual physically interact with his children. However, the Individual did not present additional evidence to support this claim as to the nature of the incident. Further, the Administrative Judge found that the incident was related to the Individual's PTSD and that the Individual had not fully resolved the concern arising from is PTSD. Consequently, the Administrative Judge found that the Guideline J concerns had not been resolved.
Based on the testimony of all witnesses and the evidence submitted, the Administrative Judge concluded that the Individual's access authorization should not be restored. OHA Case No. PSH-21-0112 (Richard A. Cronin, Jr).
Access Authorization Restored; Guideline H (Drug Involvement) and Bond Amendment
On December 29, 2021, an Administrative Judge determined that the Individual's access authorization should be restored under 10 C.F.R. Part 710. The Local Security Office (LSO) received potentially derogatory information regarding the Individual's drug use. Under Guideline H and the Bond Amendment, the LSO alleged that, while in possession of a DOE security clearance, the Individual tested positive for the marijuana metabolite on April 26, 2021.
At the hearing, the Individual and seven other witnesses testified. The day before the Individual presumptively tested positive for the marijuana metabolite, his partner's daughter was called to her aunt's home to retrieve food items her aunt no longer wanted in her home. Among those items was a gift bag of cookies. The minor child distributed the cookies among her household members, including the Individual. Later that evening, the child's aunt became aware that the cookies contained Tetrahydrocannabinol (THC), and accordingly, informed the Individual's family. The Individual reported the accidental consumption to his supervisor the next day, was given a drug test, and examined by an Occupational Medicine physician. The physician ultimately cleared him to return to work without any restrictions, and a Notification Letter was issued after the test results were confirmed in early May 2021.
The accidental ingestion of THC happened under such circumstances that it is unlikely to recur. The THC was delivered to the Individual in an inconspicuous cookie from an individual he did not know to consume any illicit substances, and accordingly, he had no reason to believe the cookie contained any psychoactive ingredients such as THC. It was also not unheard of for the maternal aunt to provide his family with various food items she did not want in her home from time to time. Although this incident was clearly an accidental ingestion, the Individual's testimony evidenced his understanding that such an incident should not be repeated; he stated that, henceforth, he will not consume any food items if he is unable to verify their origin and will discard these items if they are gifted to him. Once the Individual learned that he had ingested THC baked into the cookie that he consumed, he reported the incident to his supervisor, despite the unlikelihood that he was going to be chosen to submit to a random drug test.
With regard to the Bond Amendment, the Administrative Judge found that the Individual's disqualification from holding a security clearance pursuant to the Bond Amendment was eligible for a waiver. 50 U.S.C. § 3343(c)(2)(B).
Accordingly, the Individual was able to show that he had fully resolved the security concerns arising under Guidelines H and the Bond Amendment. OHA Case No. PSH-21-0124 (Steven L. Fine).
Access Authorization Restored; Guideline F (Financial Considerations)
On December 29, 2021, an Administrative Judge determined that an 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 her to hold a DOE security clearance. In 2020, as part of a reinvestigation for her security clearance, the DOE learned that the Individual failed to file her 2019 Federal and state taxes before the April 15th tax deadline. In September 2020, the Individual completed a Letter of Interrogatory (LOI), in which she stated that she was "working on" her 2019 taxes. During the hearing, the Individual testified that she filed her 2019 Federal and state income taxes on October 20, 2020. The Individual stated that she has always prepared her own taxes and, apart from one tax year, she has always received a tax refund. She testified that she believed that if a taxpayer was due a refund, the taxpayer was not required to file taxes by the April 15th deadline. She explained that she has since completed an online tax preparation course and is now employing the services of a professional tax preparation company. After considering the evidence in the record and testimony presented at the hearing, the Administrative Judge determined that the Individual had resolved the security concerns associated with Guideline F. Accordingly, she concluded that the Individual's access authorization should be restored. OHA Case No. PSH-21-0066 (Katie Quintana)