Case No. VSO-0207, 27 DOE ¶ 82,772 (H.O. Schwartz August 24, 1998)

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* The original of this document contains information which is subject to withholding from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXXXX’s.

August 24, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Name of Case:Personnel Security Hearing

Date of Filing:May 13, 1998

Case Number: VSO-0207

This Opinion concerns the eligibility of xxxxxxxxxxxx (the individual) for continued access authorization (1) under the regulations set forth at 10 C.F.R. Part 710, entitled “Criteria for Access to Classified Matter or Special Nuclear Material.” The individual’s access authorization was suspended by one of the Department of Energy’s (DOE) Operations Offices. This Opinion considers whether, on the basis of the evidence and testimony presented in this proceeding, the individual’s access authorization should be restored.

I. Procedural Background

The individual has been employed for twenty years by a contractor at a DOE facility in a position that requires an access authorization. During this period, the individual has been required to participate in random drug tests. On December 29, 1997, the individual participated in a random drug test at the facility. On January 6, 1998, a physician from the on-site medical department at the facility informed the individual that her urine sample tested positive for marijuana.

On January 13, 1998, a Personnel Security Specialist from the local DOE Security Office conducted a Personnel Security Interview (January 13 PSI) with the individual regarding her marijuana use. During the PSI, the individual explained the circumstances under which she maintains she inadvertently used marijuana one time on December 27, 1997. In addition, the individual admitted to having knowledge of the DOE’s policy prohibiting the use of illegal drugs. On February 10, 1998, the individual voluntarily submitted to a psychophysiological detection of deception (polygraph) examination, in which “deception was indicated, supported by confession,” and a second Personnel

Security Interview (February 10 PSI) following the polygraph testing.

On April 16, 1998, the DOE commenced this administrative review proceeding by issuing a

Notification Letter to the individual which identified the derogatory information that cast doubt on her continued eligibility for access authorization. See 10 C.F.R. § 710.21. The Notification Letter charged that the individual “deliberately misrepresented, falsified, or omitted significant information from . . . a personnel security interview,” behavior subject to 10 C.F.R. § 710.8(f) (Criterion F). With respect to this criterion, the Notification Letter alleges that the individual denied knowingly using marijuana during the January 13 PSI, but admitted that she used illegal drugs during the February 10 polygraph test.

The Notification Letter further stated that, pursuant to a random drug screening performed by her employer, a urine specimen provided by the individual on December 29, 1997, was determined to be positive for the presence of marijuana. In addition, it stated that during a polygraph test and a PSI conducted on February 10, 1998, concerning this matter, the individual admitted to smoking marijuana on December 26 or 27, 1997. According to the DOE, this derogatory information concerning the individual’s marijuana use falls within the purview of 10 C.F.R. § 710.8(k) (Criterion K), finding that the individual “[t]rafficked in, sold, transferred, possessed, used, or experimented with a drug or other substance listed in the Controlled Substances Act of 1970 (such as marijuana, cocaine, amphetamines, barbiturates, narcotics, etc.) except as prescribed or administered by a physician licenced to dispense drugs in the practice of medicine, or as otherwise authorized by law.” 10 C.F.R. § 710.8(k).

Finally, the Notification Letter charged that the individual engaged in conduct subject to 10 C.F.R. § 710.8(l) (Criterion L). Criterion L concerns unusual conduct or circumstances that “tend to show [the individual] is not honest, reliable, or trustworthy, or that furnishes a reason to believe that she may be subject to pressure or duress that may cause her to act contrary to the best interests of national security.” 10 C.F.R. § 710.8(l). With respect to this criterion, the Notification Letter alleges that the individual tested positive for marijuana, denied intentional use of marijuana, verified her signature on a 1977 drug certification form, and admitted to having knowledge of the DOE’s policy prohibiting the use of illegal drugs.

On April 30, 1998, the individual filed a response (April 30 Response) to the matters raised in the Notification Letter and requested an administrative review hearing to resolve those matters. The DOE transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA) Director pursuant to the provisions of 10 C.F.R. § 710.25(a) on May 13, 1998. The OHA Director appointed me as Hearing Officer in this case on May 19, 1998. 10 C.F.R. § 710.25(b). I subsequently convened a hearing in this matter. See 10 C.F.R. § 710.25(g). At the hearing, the DOE Counsel called two witnesses: the individual and a DOE Personnel Security Specialist. The individual, who was represented by a union official, elected to call four witnesses: her husband, her sister-in-law, her supervisor and a co-worker. She also testified on her own behalf. I received the transcript of the hearing (Tr.) and closed the record in this case on July 24, 1998.

II. Standard of Review

The Hearing Officer’s role in this proceeding is to evaluate the evidence presented by the agency and the individual, and to render an opinion based on that evidence. See 10 C.F.R. § 710.27(a). The applicable regulations state that “[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.7(a). In resolving questions about the individual’s access authorization, I must consider the relevant factors and circumstances connected with the individual’s conduct. These factors are set out in § 710.7(c):

the nature, extent and seriousness of the conduct; the circumstances surrounding her conduct, to include knowledgeable participation; the frequency and recency of her conduct; the age and maturity at the time of the conduct; the voluntariness of her participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation of her conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors.

In a DOE administrative review proceeding under 10 C.F.R. Part 710, we are dealing with a standard designed to protect national security interests. A hearing is “for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization.” 10 C.F.R. § 710.21(b)(6). In cases where there is evidence of a positive drug test, in order for the clearance holder to prevail, the record must contain convincing evidence mitigating the security concern related to illegal drug use. Personnel Security Review (Case No. VSA-0088), 26 DOE ¶ 83,003 at 86,517 (1996); Personnel Security Hearing (Case No. VSO-0051), 25 DOE ¶ 82,784 (1995), aff’d, Personnel Security Review (Case No. VSA-0051), 25 DOE ¶ 83,012 (1996) (individual failed to show that passive inhalation of marijuana smoke at a night club caused his positive drug test); Personnel Security Hearing (Case No. VSO-0019), 25 DOE ¶ 82,759 (1995) (VSO-0019), request for review dismissed, Personnel Security Review (Case No. VSA-0019), December 4, 1995. In other words, the record must contain evidence that offers an explanation for the positive drug test, establishes the truthfulness of the explanation, and demonstrates that the explanation mitigates the DOE's security concerns.

III. Analysis

I have thoroughly considered the record in this proceeding, including the submissions tendered in this case and the testimony of the witnesses presented at the hearing. After due deliberation, it is my opinion that the individual’s access authorization should not be restored because I believe that such restoration would not be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings I make in support of this recommendation are discussed below.

A. Findings of Fact

During her PSIs, in her April 30 Response and at the hearing, the individual recounted the circumstances surrounding her illegal drug use. According to the individual, on December 26 or 27, 1998, two men and a woman from her husband’s childhood neighborhood, with whom they rarely if ever associated, unexpectedly stopped by the home of the individual and her husband. February 13 PSI Transcript at 6; Tr. at 56, 104. They were smoking cigars when they entered the house. The individual, who testified that she had stopped smoking cigarettes more than three years ago and that she and her husband had been drinking eggnog with brandy before the visitors arrived, commented that the cigars smelled good, and both she and her husband accepted and smoked one when it was offered to them. January 13 PSI Tr. at 9-10; February 10 PSI Tr. at 6-8; Tr. at 56-57. At some point later, she felt that there was something strange about the cigar and had a sense that it might make her sick, and shortly thereafter stopped smoking her cigar. February 10 PSI Tr. at 8; Tr. at 57. While she was smoking the cigar, she had asked her husband if he found anything strange about the cigars, and he responded that he did not. February 10 PSI Tr. at 8. When the visitors left, they took all the cigars with them. Tr. at 57-58; January 13 PSI Transcript at 20. Two days later the individual participated in a random drug screening. January 13 PSI Tr. at 11.

Soon after the screening, the individual’s husband ran into one of the visitors at a video store, who asked the husband his impression of the cigars. Tr. at 58; January 13 PSI Tr. at 10. Although the visitor did not state explicitly that the cigars contained any illegal substances, the individual’s husband interpreted his secretive, smirking behavior to mean that the cigars had been adulterated in some manner. When the husband reported this interaction to the individual, she told him that she had just participated in a drug test. January 13 PSI Tr. at 11 (individual’s testimony); Tr. at 97-99 (husband’s testimony). She then spoke with her sister-in-law, a nurse, about whether the test results could be affected by her smoking the cigar, if it had contained drugs. January 13 PSI at 11 (individual’s testimony); Tr. at 106-108 (testimony of individual’s sister-in-law). A few days later, the individual was informed that the results of her drug screening were positive.

In the absence of any evidence to the contrary, I make the following findings of fact. Shortly after Christmas, 1997, uninvited and unexpected visitors offered the individual a cigar containing marijuana, which she accepted and smoked. While she was smoking the cigar, she gathered the sense that something was unusual about the cigar, and at some point thereafter she stopped smoking it. A random drug screening in which she participated within the next few days produced a result that indicated that the individual had used marijuana.

The real issue in this case is whether the individual knowingly used marijuana. This matter is critical to two aspects of this case. First, if she knowingly used marijuana, then she falsified information in her January 13 PSI, when she contended that she had not knowingly used marijuana. Second, if she did not knowingly use marijuana, then she did not falsify information during that PSI and, moreover, her lack of willfulness must be considered toward mitigation of the drug charge. The individual has stated consistently that she had no idea that the cigar contained marijuana or any other unusual substance at the time she began to smoke it. February 10 PSI Tr. at 8; April 30 Response; Tr. at 57. Moreover, she has testified consistently that smoking the cigar made her feel nauseated and strange. February 10 PSI Tr. at 8; Tr. at 64. Except at the post-polygraph interview, she has consistently stated that she suspected that the cigars contained something unusual, but not recognizable, and as a result she stopped smoking hers. February 10 PSI Tr. at 9. She also maintained that her suspicion was no more than just a suspicion until her husband reported his encounter at the video store with one of the visitors, and was not confirmed until she received word of her positive drug test results. See, e.g., January 13 PSI Tr. at 10; February 10 PSI Tr. at 11; Tr. at 67. Nevertheless, in an interview with the polygrapher after the polygraph test, she admitted that she knew at the time that she was smoking marijuana and continued to smoke it. See Exhibit 11; Tr. at 77-78. Immediately thereafter, however, during the February 10 PSI, she restated her previous position: that she sensed that something was different about the cigar she was smoking but she did not know what, smoked a bit more to try to figure it out, then stopped smoking altogether. February 10 PSI Tr. at 9.

The DOE submitted into evidence at the hearing a videotape of the portion of the post-polygraph interview conducted by the polygrapher. Exhibit 11. The videotape was played during the hearing, in order to produce evidence of the individual’s admission that she knowingly used marijuana. During her testimony at the hearing, the individual was given an opportunity to present her version of what transpired. She did not challenge the authenticity and accuracy of the videotape that contained her admission. Tr. at 75-77. She did, however, offer an explanation for her admission. She testified that she was extremely nervous before the polygraph, and was frightened and intimidated by the procedure. February 10 PSI Tr. at 24; Tr. at 70-71. According to her testimony, after the test but before the video-recorded portion of the interview occurred, the polygrapher interrogated her in a manner she characterized as frightening. Tr. at 72-73, 75. According to the individual, the polygrapher then questioned her in a less aggressive manner, during the portion of the interview that was recorded on the videotape submitted as Exhibit 11. Tr. at 75-76. She testified at the hearing that the cumulative effect of the polygrapher’s behavior, especially during the session preceding the period recorded in Exhibit 11, made her feel that she had to “give an answer for something.” Tr. at 75. The testimony continued:

Q. Number one, were you scared to death –

A. Yeah.

Q. -- while this little bit right here was being taped?

A. Yeah, yeah.

Q. Do you feel like this person that was interviewing you was leading you into answers?

A. Yeah.

Q. Do you feel . . . that this person that was interviewing you basically tried to force a confession from you?

A. That’s what I’m saying, I felt like I had to say something-- you know, whatever came out, I had to say something.

Tr. at 78.

I have reviewed the videotape carefully for evidence that supports the allegations of coercion the individual raised at the hearing. I find that, although the individual was clearly not at ease during the videotaped portion of the post-polygraph interview, her demeanor was generally calm. In addition, I find that the polygrapher interrogated her aggressively and clearly pressured her to admit to using marijuana knowingly. Nevertheless, I observed no evidence of threats or coercion, either in the conduct of the polygrapher or in the reactions of the individual. I cannot conclude that he extracted from her an admission that is not reliable due to the circumstances under which it was obtained. Furthermore, because the individual made this statement against her own interest, I accord the admission significant weight.

The evidence in this case indicates that the individual has presented the DOE with two mutually exclusive statements regarding whether she knowingly used marijuana in late December 1997. Consequently, I find that the evidence before me regarding the individual’s knowledge of the presence of marijuana in the cigar she smoked is inconsistent and cannot be reconciled. Because I have substantial doubt as to which statement is in fact true, I will not make a finding as to whether she knowingly smoked marijuana.

B. Criterion F

The DOE alleges that the individual engaged in behavior that falls within Criterion F when she deliberately falsified information during a PSI that took place on January 13, 1998. The evidence in the record that concerns this charge is as follows. At the January 13 PSI, the individual stated that she did not suspect that the cigar she smoked contained any drugs until days after she smoked it, nor did she ever intend to use drugs. January 13 PSI Tr. at 10, 23. During an interview conducted following a polygraph examination to which the individual voluntarily submitted, she admitted that she had known that there were drugs in the cigar while she was smoking it, and continued to smoke it. Exhibit 11. For the reasons below, I find that the individual’s explanations of her state of mind are inconsistent and that the individual falsified information either during her January 13 PSI or during her post-polygraph interview. Such dishonesty in the context of a PSI runs counter to the trust upon which the conferring of a security clearance is premised. See Personnel Security Hearing, Case No. VSO-0152, 26 DOE ¶ 82,787 (1997); Personnel Security Hearing, Case No. VSO-0125, 26 DOE ¶ 82,774 (1997).

As I have stated above, because I find these statements to be inconsistent, I am left with substantial doubt as to the truth of her knowledge and intent to use marijuana. It is my opinion that the statements the individual made consistently throughout this proceeding cannot be reconciled with the statement she made at the post-polygraph interview. It is possible, as she maintains, that the content of her admission is not true, in which case she told the truth at the January 13 PSI. However, I found above that her admission is not inherently unreliable, because I am not convinced by her testimony that her admission was obtained under conditions so adverse that they undermine its validity. This leads me to conclude that the individual admitted knowing use of marijuana with full understanding and intention. On the other hand, she may have in fact falsified information during the January 13 PSI, as claimed in the Notification Letter, and told the truth in her admission to the polygrapher. Under either scenario, the evidence presented in this case contains inconsistencies in the statements given by the individual. These inconsistencies constitute derogatory information within the framework of a Criterion F charge.

A finding of derogatory information does not end the evaluation of the evidence concerning the individual’s eligibility for access authorization. Such a finding shifts the burden of persuasion to the individual in cases involving national security issues. Personnel Security Hearing, Case No. VSO- 0002, 24 DOE ¶ 82,752 at 85,511 (1995). The individual in this case has not met this burden by mitigating the concerns inherent in inconsistent information. Because I cannot reconcile these inconsistencies, I have substantial doubt as to which statement is true. As a result, I cannot resolve the DOE’s concern that the individual made false statements during the January 13 PSI. For these reasons, I conclude that valid security concerns exist relating to 10 C.F.R. § 710.8(f) and that the individual has failed to mitigate those concerns.

C. Criterion K

Illegal drug use, in this case marijuana, raises a security concern for DOE (Criterion K) because it may reflect on an inability to safeguard classified information and secret nuclear material. Tr. at 47- 48. As explained by the Personnel Security Specialist during the hearing, an individual involved with illegal drugs shows that she has disregarded state and federal laws prohibiting such use. Tr. at 48. The DOE is further concerned that if the drug abuser chooses to break certain laws, he or she may also choose to break regulations that govern the protection of classified information. Id. See Personnel Security Hearing, Case No. VSO-0116, 26 DOE ¶ 82,765 at 85,602 (1997) (citing Personnel Security Hearing, Case No. VSO-0013, 25 DOE ¶ 82,752 at 85,512 (1995)). In addition, an individual involved with illegal drugs may become susceptible to blackmail, coercion or bribery in order to conceal her use. Tr. at 51.

After considering the evidence in this case that the individual smoked marijuana and knew of the DOE’s drug policy prohibiting such use, I find that there is reliable, derogatory information that creates a substantial doubt concerning the individual’s continued eligibility for access authorization. 10 C.F.R. § 710.9. Accordingly, I will consider below whether the individual has made a showing of mitigating facts and circumstances sufficient to overcome the DOE’s security concerns arising from her use of marijuana in spite of her awareness of the DOE’s drug policy prohibiting such use.

In cases where there is evidence of a positive drug test, an affected individual must provide convincing evidence mitigating the security concerns related to the illegal drug use. Personnel Security Hearing, Case No. VSO-0102, 26 DOE ¶ 82,763 at 85,587 (1996) (citing Personnel Security Hearing, Case No. VSO-0051, 25 DOE ¶ 82,784 (1995)); Personnel Security Hearing, Case No. VSO-0019, 25 DOE ¶ 82,759 (1995). “It is therefore the obligation of the individual to offer an explanation for the positive drug test that mitigates the DOE’s security concerns and to establish the truthfulness of the explanation.”Personnel Security Review, 26 DOE ¶ 83,001 at 86,506 (1996). In the present case, I have reached the opinion that the individual has not successfully carried her burden in this regard.

At her two PSIs and at the hearing, the individual was consistent in her account of the circumstances surrounding her marijuana usage. The substance of her recitation of those circumstances has been summarized above. The individual asserts that the DOE’s security concerns regarding her marijuana use are mitigated because she smoked the marijuana with no knowledge or intention. In addition to her recounting of the events in a manner that attempts to explain how she came to smoke marijuana unintentionally, the individual presented evidence of her personal anti-drug stance. That stance is based not only on her knowledge of individuals who have suffered because of drug abuse, such as her former best friend, January 13 PSI Tr. at 16, and two of her brothers, January 13 PSI at 24, but also on a strong desire to keep her young adult son from being attracted to drugs. See, e.g., January 13 PSI Tr. at 13, 23; Tr. at 67.

Furthermore, the individual called as witnesses her husband, her sister-in-law, a supervisor and a co- worker. Her husband testified that he also accepted and smoked a cigar when offered, corroborated the individual’s account of his encounter with one of the visitors at the video store, and acknowledged that he shared his wife’s concern for keeping their son away from drugs. Tr. at 96- 100. Her sister-in-law confirmed that the individual told her about her suspicions about the cigars shortly after her husband reported his conversation with one of the visitors. Tr. at 106-107. The individual’s supervisor of nearly five years testified that the individual’s marijuana use was “totally out of character” and “not something I would expect her to do.” Tr. at 112. In addition, the supervisor stated that she had received management training in drug awareness and has not recognized any signs of abuse in the individual. Tr. at 114. A co-worker of the individual, who has known and worked with the individual for at least 14 years, testified that she was a good worker and that he had never seen her at work under the influence of alcohol or drugs. Id. at 118. (2)

Based on the evidence presented in this proceeding, I find that the individual has not established to my satisfaction that she unintentionally used marijuana. Although there is significant evidence that supports the individual’s assertion that this usage of marijuana was an isolated occurrence, I maintain substantial doubt as to whether this usage, even if isolated, was truly unintentional, as the individual contends. This concern arises, as in Criterion F, as the result of the individual’s admission in her post- polygraph interview, that she knew there were drugs in the cigar she was smoking and yet continued to smoke it. Despite the accretion of statements by the individual, her husband and her sister-in-law, her admission, which I find at least as reliable as those statements, strongly undermines finding that the individual had no knowledge or intention of using marijuana while she was smoking the cigar. Because substantial doubt clouds such a finding, the individual has not successfully mitigated the DOE’s security concerns about marijuana usage by means of this contention.

Another approach to mitigation of security concerns is available by demonstrating adequate reformation or rehabilitation that alleviates the DOE’s legitimate security concerns that the individual’s marijuana use might recur. This office has previously stated that:

the duration and frequency of an individual’s marijuana use are factors crucial in ascertaining the degree of rehabilitation or reformation which must be demonstrated by an individual seeking to mitigate concerns arising from drug use. For example, concerns over drug use can be mitigated even in cases of recent drug use where the usage was an isolated incident or an event infrequent enough to warrant acceptance of the individual’s assurance that he/she will not be involved with drugs while holding a DOE access authorization.

Personnel Security Hearing, Case No. VSO-0116, 26 DOE ¶ 82,765 (1997) (citingPersonnel Security Hearing, Case No. VSO-0102, 26 DOE ¶ 82,763 at 85,588 (1996)). Based on the totality of the record before me, I do not find sufficient evidence in this case to accept the individual’s assurance that she will not use marijuana again, in mitigation of the DOE’s legitimate security concerns.

When considering whether an individual has demonstrated a degree of rehabilitation or reformation that mitigates the DOE’s security concerns, we generally consider the testimony of any professionals who have provided or are providing counseling to the individual. See, e.g., Personnel Security Hearing, Case No. VSO-0192, 27 DOE ¶ 82,766 at 85,600 (1998). However, in the present case, the medical professionals who reviewed the circumstances of the positive drug screen result determined that no counseling was indicated. Exhibit 2 at 6 and Exhibit 16. As a result, we have no professional opinions or prognoses to consider here. This recommendation was based, at least in part, on the professionals’ acceptance of the individual’s reporting that she had been unaware of the presence of marijuana in the cigar. Exhibit 16. Because I have substantial doubts about whether the marijuana usage was in fact unintentional, I accord this professional assessment little weight as a predictor of the likelihood that the individual will smoke marijuana in the future. In her favor, however, are the negative results, stipulated to by the individual and the DOE, of numerous random drug tests, including two administered since her positive test in December 1997. However, because the individual has maintained that her use was unintentional, it is difficult for me to accept any reassurances from her that she will not repeat her behavior. If there were no voluntariness associated with her use of marijuana in December 1997, as she claims, then the circumstances were beyond her control, and no amount of commitment or good intention on her part can prevent recurrence. Again in her favor, she stated at a PSI that this proceeding has made her more aware of the dangers of “taking people . . . at face value.” January 13 PSI Tr. at 22; see also Tr. at 84. She also indicated in her response to the notification letter that she appreciated the mistake she had made by accepting a cigar from a mere acquaintance. April 30 Response. Nevertheless, after considering the totality of the evidence in the record, it is my opinion that the there is insufficient evidence of reformation or rehabilitation to mitigate the DOE’s security concerns regarding the individual’s use of marijuana.

D. Criterion L

The DOE also questions the individual’s honesty, reliability and trustworthiness under Criterion L. To support its charges under Criterion L, the DOE asserts that the individual knew of the DOE’s and contractor’s drug-free policies, had signed a drug certification when she started her position 20 years ago, and denied intentionally using marijuana. The individual clearly used marijuana in spite of her awareness of the DOE’s and the contractor’s drug-free policies prohibiting such use. Although any violation of DOE drug policy is a very serious matter, it is possible for an individual to mitigate the DOE’s security concerns. In making this determination, I must again consider the relevant factors and circumstances connected with the individual’s conduct. These factors, which I outlined above, are set forth at 10 C.F.R. § 710.7(c). Having reviewed the evidence in light of these factors, I find that the individual has not satisfactorily mitigated the security concerns raised by her violation of DOE drug policy.

The DOE’s security concerns under Criterion L are that individuals with access authorization must be trustworthy, reliable, and not susceptible to pressure to divulge classified information. Tr. at 51. An individual who uses marijuana has violated federal law as well as DOE policy, which is unusual conduct, and is not trustworthy or reliable. As with the other criteria, this concern could be mitigated by showing that the usage was not intentional, because if the individual lacked the willful intent to violate the law, she could not be held responsible for that breach of trust. In the present case, however, the individual has not successfully established that she used marijuana unintentionally. Instead, the evidence raises substantial doubt about her knowledge and intent. The individual’s failure to resolve those doubts prevents the individual from achieving mitigation of this security concern. Consequently, I am not convinced of her honesty, reliability, or trustworthiness. In addition, the fact that the individual has herself made mutually exclusive statements casts a shadow on her honesty and trustworthiness. I therefore find that the DOE had raised legitimate and unmitigated security concerns under Criterion L.

IV. Conclusion

As explained in this Opinion, I find that the DOE properly invoked 10 C.F.R. § 710.8(f), (k) and (l) in suspending the individual’s access authorization. I also find that, although the record contains some evidence that tends to demonstrate that the individual lacked the intent and knowledge to willfully smoke marijuana, the individual failed to present sufficient mitigating circumstances to overcome the legitimate concerns of DOE security, within an acceptable level of risk. Her mutually inconsistent explanations of the conditions under which she smoked marijuana, as well as the positive drug test results, raise substantial doubt in my mind as to whether she falsified information she provided to the DOE, intentionally smoked marijuana, and is honest, reliable, and trustworthy. I therefore find that restoring the individual’s access authorization would not be clearly consistent with the national interest. Accordingly, it is my opinion that the individual’s access authorization should not be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that either the Office of Security Affairs or the individual may file a request for review of this Hearing Officer’s Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and must be served on the other party. The party seeking review of the Opinion must file a statement identifying the issues that it wishes to contest within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b). Submissions must be served on the Office of Security Affairs at the following address:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

William Schwartz

Hearing Officer

Office of Hearings and Appeals

Date: August 24, 1998

(1)Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a).

(2)The record contains additional evidence that supports the individual’s assertion that her use of marijuana was an isolated event. The individual and the DOE stipulated that she had at least one random drug screen per two years since the facility instituted its substance abuse prevention program 15 years ago, and at least one random drug screen per year since 1994. The results (excluding the test administered on December 29, 1997) were all negative. Since the December 29 test at issue in this case, the individual has participated in two random drug tests, the results of which were negative. She was most recently tested on July 1, 1998. In addition, the Personnel Security Specialist who conducted the PSIs in this proceeding testified that, other than the individual’s admission that she experimented with marijuana in high school, there is no drug-related derogatory information in the individual’s personnel security file. Tr. at 43-44.