Case No. VSO-0208, 27 DOE ¶ 82,774 (H.O. Fine September 10, 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.

September 10, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: May 14, 1998

Case Number: VSO-0208

This Opinion concerns the eligibility of XXXXXXX (hereinafter referred to as "the Individual") to retain a level “Q” access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.” The Department of Energy's XXXXXXXXXX (DOE) suspended the Individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony in this proceeding, the Individual's access authorization should be restored. For the reasons stated below, it is my opinion that the Individual's access authorization should not be restored at the present time.

I. BACKGROUND

The events leading to the present proceeding began when the Individual's employer administered a random drug-screening test to the Individual. Because the Individual tested positive for marijuana, a Personnel Security Interview (PSI) of the Individual was conducted on March 6, 1998. During this PSI the Individual admitted he had recently used marijuana on one occasion. DOE Exhibit 1 at 6. Because the PSI failed to resolve the security concerns raised by the Individual's marijuana use, his access authorization was suspended and an administrative review proceeding was initiated. See 10 C.F.R. § 710.9. The DOE then issued a letter notifying the Individual that information the DOE possessed created a substantial doubt concerning his continued eligibility for access authorization (the Notification Letter). The Notification Letter specifies two areas of derogatory information described in 10 C.F.R. § 710.8. First, the Notification Letter alleges that the Individual has trafficked in, sold, transferred, possessed, or experimented with an illicit drug. 10 C.F.R. § 710.8(k). Second, the Notification Letter charges that the Individual has “engaged in unusual conduct or is subject to circumstances which tend to show that [he] is not honest, reliable, or trustworthy; or which furnishes reason to believe that [he] may be subject to pressure, coercion, exploitation, or duress which may cause [him] to act contrary to the best interests of the national security.” 10 C.F.R. § 710.8(l). The Individual filed a request for a hearing in which he made a general denial of the allegations contained in the Notification Letter. This request was forwarded to the Office of Hearings and Appeals (OHA) and I was appointed as Hearing Officer.

At the hearing, the DOE presented one witness: the DOE Personnel Security Specialist. The Individual testified on his own behalf. The record of this proceeding was closed on August 27, 1998, when OHA received a copy of the transcript of the hearing. See Transcript of Hearing, Case No. VSO-0208 (hereinafter cited as “Tr.”).

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 regulations state that “[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the 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). I have considered the following factors in rendering this Opinion: the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; the Individual's age and maturity at the time of the conduct; the voluntariness of the Individual's participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct, the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. See 10 C.F.R. § 710.7(c); § 710.27(a). The discussion below reflects my application of these factors to the testimony and exhibits presented by both sides in this case.

When reliable information reasonably tends to establish the validity and significance of substantially derogatory information or facts about an individual, a question is created as to the individual's eligibility for an access authorization. 10 C.F.R. § 710.9(a). The individual must then resolve that question by convincing the DOE that restoring his access authorization “would not endanger the common defense and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). In the present case, the Individual has not convinced me that restoring his security clearance is clearly in the national interest.

III. FINDINGS OF LAW AND FACT

A. Criterion K

The Individual candidly admits his history of marijuana use. According to the Individual, his drug use began in the late 1970's while he was attending high school. The Individual described his drug use during his high school education as occasional experimentation. March 6, 1998 Personal Security Interview at 10-13. The Individual also acknowledges smoking a marijuana cigarette in 1985 or 1986. (Tr. at 26). This incident came to DOE security's attention in 1991. The Individual was then subjected to a PSI (the 1991 PSI) in which he admitted this marijuana use and informed DOE security officials of the surrounding circumstances. As a result, DOE security officials provided the Individual with an opportunity to sign a DOE Drug Certification, and the Individual was allowed to retain his DOE Access Authorization. Approximately seven years later, the Individual submitted a urine sample as part of his employer's random drug testing program. That urine sample tested positive for marijuana and the Individual was subjected to a PSI (the 1998 PSI) where he admitted that he smoked marijuana in late December 1997.

Illegal drug use raises serious security concerns because it may reflect on an inability to safeguard classified information and special nuclear material. Involvement with illegal drugs exhibits an unacceptable and disturbing disregard for state and federal laws prohibiting their use. Such disregard for the law raises concerns that the Individual may similarly disregard other laws, including those which protect classified information and special nuclear materials. 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)). It is important to note that avoiding illegal drug use is itself a requirement of both the DOE's safety and security regulations. Moreover, the use of illegal drugs (and the disrespect for law and authority that such use suggests) exhibits a troubling lapse in judgment and maturity. Finally, we note that involvement with illegal drugs may render the user susceptible to blackmail or coercion.

Since there is reliable, derogatory information that creates a substantial doubt concerning the Individual's continued eligibility for access authorization, I need only consider below whether the Individual has made a showing of mitigating facts and circumstances sufficient to overcome the DOE's security concerns arising from his use of marijuana.

An Individual must provide convincing evidence mitigating the security concerns related to 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).

In the present case there are several factors I must consider in determining whether the questions raised under 10 C.F.R. § 710.8(k) by the Individual's marijuana use are resolved. Standing alone, none of the three incidents of marijuana use would necessarily lead me to recommend against restoration of the Individual's access authorization. The Individual's occasional experimentation with marijuana in high school is substantially mitigated by the long period of time that has elapsed since then and by the Individual's youth at the time. More problematic is the Individual's use of marijuana in 1985 or 1986. At that time, the Individual possessed a DOE access authorization. However, the Individual's relative youth, the passage of a significant amount of time, the apparently isolated nature of that occurrence, and the Individual's willingness to sign a DOE Drug Certification all work together to provide sufficient mitigation of the Individual's marijuana use in 1985 or 1986. Likewise, the recent one-time use of marijuana might be excusable under different circumstances.

However, these three episodes of marijuana use, when viewed together, raise serious and substantial concerns about the Individual's fitness to maintain a security clearance. While I am not unduly concerned about the Individual's occasional experimentation with marijuana in high school, he has twice been caught using marijuana since that time. On both occasions, he used marijuana while possessing a DOE security clearance, therefore risking his career and access authorization, violating DOE safety and security regulations, and putting himself, his fellow employees and the national security at risk.

For these reasons I find that the Individual has not resolved the security questions raised by his marijuana use. Accordingly, I find that restoring his access authorization would not be consistent with the national interest and the common defense.

B. Criterion L

Criterion L refers to information that an individual has “[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation or duress which may cause the individual to act contrary to the best interests of the national security.” 10 C.F.R. § 710.8(l).

The DOE’s security concerns under Criterion L are based largely upon the Individual's use of marijuana despite his promise, contained in his 1991 Drug Certification, that he would not use illegal drugs. Consequently, I find that DOE properly invoked Criterion L in suspending the Individual's clearance. The Individual's failure to honor his Drug Certification, and his violation of DOE's and his employer's drug policies, raise important security concerns. The DOE security program is based on trust. If an employee breaks a written promise to the DOE, that trust is violated. It was precisely because of the Individual's prior illegal drug use that he was asked in 1991 to sign a Drug Certification, promising that he would never again use illegal drugs while employed in a position requiring an access authorization. He clearly violated this promise when he used marijuana in 1997.

My impression of the Individual, formed at the hearing, is that he is an extremely competent, enthusiastic and dedicated worker. It is clear that he recognizes the seriousness and the significance of his actions and is sincerely committed to obtaining the personal growth needed to avoid future drug use. This evidence, while helpful, is insufficient to resolve the present security questions.

Other than the Individual's knowing violation of his Drug Certification and disregard of DOE's and his employer's policies regarding illegal drug use, I am unaware of any other act of untrustworthiness or unreliability. Nevertheless, the Individual has not resolved the security questions raised by his conscious disregard of his Drug Certification and DOE's and his employer's drug policies. I therefore can not find that the Individual has resolved the Criterion L security questions raised in the notification letter.

IV. CONCLUSION

For the reasons set forth above, I conclude that the Individual has not shown that he warrants restoration of his access authorization. The DOE therefore has a sufficient basis for invoking Criteria K and L in the present circumstances. Since the Individual has not resolved the DOE’s allegations under Criteria K and L, I conclude that the Individual has not demonstrated that restoring his security clearance would not endanger the common defense and would be clearly consistent with the national interest. Therefore, it is my opinion that the Individual's access authorization should not be restored at this time.

The regulations set forth at 10 C.F.R.§ 710.28(a) provide that the Office of Security Affairs or the Individual may file a request for review of this Hearing Officer 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 served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed 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 with 20 days of receipt of the statement.

Steven L. Fine

Hearing Officer

Office of Hearings and Appeals

Date: September 10, 1998