* 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.
March 15, 2002
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALSHearing Officer Decision
Name of Case: Personnel Security Hearing
Date of Filing: October 9, 2001
Case Number: VSO-0499
This Decision concerns the eligibility of xxxxxxxxxxxxxxxxxx (the individual) to hold an access authorization under the Department of Energy (DOE) regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "General Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."(1) A DOE Operations Office suspended the individual’s access authorization pursuant to the provisions of Part 710. As discussed below, after carefully considering the record before me in light of the relevant regulations, I have determined that the individual’s access authorization should not be restored.
I. Background
The DOE(2) granted the individual an access authorization in 1976 after the individual had provided verbal assurances to the DOE that he would not use marijuana in the future. The individual subsequently used marijuana from 1976 to 1980.
In 1996, the individual completed a Questionnaire for National Security Positions (QNSP) as part of a routine background reinvestigation. The individual responded negatively to a question on the QNSP asking whether he had ever illegally used a controlled substance while holding a security clearance. In December 2000, the individual completed another QNSP. This time the individual revealed that he had used marijuana while holding a security clearance from 1976 to 1980.
The DOE conducted a Personnel Security Interview with the individual in July 2001 to discuss the individual’s apparent falsification in 1996. Soon thereafter, the DOE suspended the individual’s security clearance and obtained authority from the Director of the Office of Safeguards and Security to initiate this administrative review proceeding. In October 2001, the DOE issued a Notification Letter to the individual setting forth the derogatory information that created doubt about the individual’s continued eligibility for an access authorization.
In the Notification Letter the DOE asserts that the individual’s intentional falsification of a response on a security form falls within the ambit of 10 C.F.R. § 710.8(f) and (l) (Criterion F and L respectively).(3) The DOE further states that Criterion L is applicable because the individual (1) used marijuana while holding a security clearance and knowing that his behavior was both illegal and contrary to DOE policy; (2) used marijuana repeatedly after promising the DOE that he would not use illegal drugs again; and (3) waited until 2000 to disclose that he had continued to use marijuana from 1976 to 1980.
Upon receipt of the Notification Letter, the individual, through his attorney, requested a hearing. The DOE transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA) Director, and the OHA Director appointed me as the Hearing Officer in this case. 10 C.F.R. § 710.25 (a), (b). I subsequently convened a hearing in this matter within the time frame prescribed by the regulations. 10 C.F.R. § 710.25(g).
At the hearing, 11 witnesses testified. The DOE called one witness, a personnel security specialist. The individual testified at the hearing and presented the testimony of nine other witnesses: his wife, the Vice-President of the company for which he works, two social acquaintances, three co-workers, a former employee and a former supervisor. The DOE submitted eight exhibits into the record (Exhibits 1-8); the individual tendered 31 (Exhibits A through AE). On February 14, 2002, I received the hearing transcript at which time I closed the record in this case.
II. Regulatory Standard
A. The Individual’s Burden
A DOE administrative review proceeding under Part 710 is not a criminal matter, where the government has the burden of proving the defendant guilty beyond a reasonable doubt. The standard in this proceeding places the burden of persuasion on the individual. It is designed to protect national security interests. The 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). Once DOE Security has made a showing of derogatory information raising security concerns, the individual must come forward at the hearing with evidence to convince the DOE that restoring his access authorization “will not endanger the common defense and security and will be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The individual therefore is afforded a full opportunity to present evidence supporting his eligibility for an access authorization. The regulations at Part 710 are drafted so as to permit the introduction of a very broad range of evidence at personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R. § 710.26(h). Thus, by regulation and through our own case law, an individual is afforded the utmost latitude in the presentation of evidence to mitigate security concerns.
This is not an easy evidentiary burden for the individual to sustain. The regulatory standard implies that there is a presumption against granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national interest” standard for granting of security clearances indicates “that security determinations should err, if they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues.
B. Basis for the Hearing Officer’s Decision
In personnel security cases arising under Part 710, it is my role as the Hearing Officer to issue a Decision that reflects my comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable and unfavorable, as to whether the granting or continuation of a person’s access authorization will not endanger the common defense and security and is clearly consistent with the national interest. 10 C.F.R. § 710.7(a). I am instructed by the regulations to resolve any doubt as to an individual’s access authorization eligibility in favor of the national security. Id.
III. Findings of Fact
Most of the facts in this case are undisputed. The individual began working for a DOE contractor in 1976. Exhibit (Ex.) 4 at 2. During a background investigation, the DOE learned that the individual had previously used marijuana. Ex. 5. Before the DOE granted the individual a security clearance, it conducted a Personnel Security Interview with the individual in May 1976 (1976 PSI) for the purpose of addressing the individual’s past drug use. Id. During the 1976 PSI the interviewer repeatedly asked the individual to provide assurances that he would not use marijuana again. Id. After equivocating several times, the individual finally provided his verbal assurance, stating, “[a]ny assurance you need that I wouldn’t use it [marijuana], I can give you that.” Id. at 13.
The DOE granted the individual a security clearance in June 1976. Ex. 2. The individual continuously maintained his security clearance from June 1976 until October 2001. Sometime after the DOE had granted the individual his security clearance, the individual resumed smoking marijuana. Transcript of Hearing (Tr.) at 177. According to the individual’s own estimates, he used marijuana as many as 200 times from 1976 to 1980. Ex. 6. The individual claims he stopped using marijuana in the early 1980s. Ex. 4 at 25.
In 1996, the individual completed a QNSP as part of a routine background investigation. Ex. 7. Question 24 (b) on the 1996 QNSP asks, in relevant part, the following question: “Have you ever illegally used a controlled substance . . . while possessing a security clearance . . .? The individual responded in the negative to this query. Id.
In December 2000, the individual completed another QNSP. This time he responded affirmatively to question 24 (b) on the form and further revealed that he had used marijuana approximately 200 times from 1976 to 1980.
The individual’s revelation prompted the DOE to conduct a Personnel Security Interview with the individual (2001 PSI). During the 2001 PSI, the individual admitted that he had deliberately falsified the response to question 24(b) on the 1996 QNSP. Ex. 4 at 10. The individual subsequently explained that he had lied to the DOE in 1996 because he feared jeopardizing his job which, in turn, would have prevented him from fulfilling his wife’s dream of building a custom home. Tr. at 188. At the time the individual completed his 1996 QNSP, he and his wife were in the process of building a new home which, because of delays in construction and other unforseen expenses, ultimately cost one million dollars.(4)
IV. Analysis and Findings
I have thoroughly considered the record of this proceeding, including the submissions tendered in this case and the testimony of the witnesses presented at the hearing. In resolving the question of the individual’s eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c).(5) After due deliberation, I have determined that the individual’s access authorization should not be restored at this time. I cannot find that such restoration would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings I make in support of this decision are discussed below.
A. Security Concerns Associated with the Derogatory Information
As noted earlier in this Opinion, the derogatory information in this case arises from (1) the individual’s false response on the QNSP that he executed in February 1996, (2) his repeated use of marijuana after having provided verbal assurances to the DOE in 1976 that he would not use illegal drugs, (3) his use of marijuana over a four-year period while holding a security clearance, and (4) his use of marijuana while knowing that this conduct was illegal and in violation of DOE policy.
With regard to the falsification at issue, it is undisputed that the individual deliberately lied on a security form about a significant matter, his use of illegal drugs while holding a security clearance.
From a security standpoint, false statements made by an individual in the course of an official inquiry regarding a determination of eligibility for DOE access authorization raise serious issues of honesty, reliability, and trustworthiness. The DOE security program is based on trust, and when a security clearance holder breaches that trust, it is difficult to determine to what extent the individual can be trusted again in the future. See e.g., Personnel Security Hearing (Case No. VSO-0013), 25 DOE ¶ 82,752 at 85,515 (1995), 25 DOE ¶ 82,752 (1995) (affirmed by OSA, 1995); Personnel Security Hearing (Case No. VSO-0281), 27 DOE ¶ 82,821 at 85,915 (1999), aff’d, 27 DOE ¶ 83,030 (2000) (terminated by OSA, 2000).
As for the individual’s conduct in smoking marijuana from 1976 to 1980 after having given the DOE his personal commitment to refrain from using illegal drugs, I find that this conduct also raises questions about the individual’s honesty, reliability and trustworthiness. The individual’s choice to engage in illegal activity may also have left him susceptible to pressure, coercion, exploitation, or duress which, in turn, could have caused him to act contrary to the best interests of national security. Compounding the security concerns surrounding the individual’s drug use is the fact that he used marijuana not only while holding a security clearance but in spite of his awareness that the DOE’s drug policy prohibited such use.
Based on the record before me, I find that the DOE correctly invoked Criterion F and Criterion L when it suspended the individual’s security clearance. Nevertheless, a finding of derogatory information does not end the evaluation of evidence concerning the individual’s eligibility for access authorization. See Personnel Security Hearing (Case No. VSO-0244), 27 DOE ¶ 82,797 (1999) (affirmed by OSA, 1999); Personnel Security Hearing (Case No. VSO-0154), 26 DOE ¶ 82,794 (1997), aff’d, Personnel Security Review (Case No. VSA-0154), 27 DOE ¶ 83,008 (1998) (affirmed by OSA, 1998).
B. Mitigating Evidence
1. Defenses to Criterion F Allegations
At the hearing, the individual testified that there were many stressors in his life in February 1996 when he completed his QNSP. He was working on a difficult project at work with a deadline of February 1996. Tr. at 185. At the same time, the individual was facing mounting cost overruns on a house that he and his wife were building. Id. at 183-84. According to the individual, he lied on the QNSP because he feared jeopardizing his job which, in turn, would have jeopardized his wife’s dream of building a custom home. Id. at 184, 199. The individual admits that he made a “big mistake” in 1996 but argues that he is an otherwise honest person who has carefully safeguarded classified information for 25 years. Id. at 198.
In his defense, the individual further points out that it was he who voluntarily disclosed his falsification to the DOE in December 2000 during the course of a routine security reinvestigation. It is the individual’s position that no one would ever had known about his lie had he not disclosed it himself. While acknowledging that he knew in December 2000 that he would most likely be required to take a counterintelligence polygraph examination, the individual maintains that he believed that the examination would not probe lifestyle issues such as his past illegal drug use.
The individual also presented the testimony of several people who attested to his reputation for honesty, reliability and trustworthiness. For example, the Vice-President of the company for which the individual works testified that she “absolutely trusts” the individual and considers it a remarkable act of courage on his part to come forward with the information about his falsification. Id. at 101, 105. One co-worker testified that the individual’s lying was out of character for him. Id. at 140. That same witness opined that the individual is extremely conscientious and conservative on security matters, and is honest, reliable and trustworthy. Id. at 130, 134. Another co-worker stated at the hearing that “the individual has the highest integrity of anyone he knows.” Id. at 152.
Finally, the individual submitted a report from a Clinical Psychologist whom he consulted on his own to obtain an evaluation of substance use and his personality functioning. See Ex. Z. In the report dated December 21, 2001, the Clinical Psychologist opined that “[T]here is no indication of characterological issues that would lead to increased likelihood of dishonesty. The episode of dishonesty under question appears to be an isolated incident stemming from fear of significantly negative financial/employment consequences.” Id. at 8.
a. Evaluation of Evidence
As an initial matter, I find that the individual’s falsification was a serious matter. Lying on the form that supplies the information on which a security clearance is granted or continued subverts the integrity of the access authorization process. As for the circumstances surrounding the individual’s falsification, it is undisputed that the individual knowingly and intentionally provided the false information on the security form.
Regarding the individual’s motives for falsifying the QNSP, I find that they were self-serving. First, the individual feared losing his job. Second, he did not want to disappoint his wife whose dream it was to build a custom home. Third, he did not want to jeopardize the huge financial investment that he and his wife had made in the custom home that was under construction at the time. Because the financial stakes were so high for the individual at the time he falsified the QNSP, I believe that the individual placed himself in a situation where he could have been susceptible to blackmail, coercion or duress during this time.
I find further that there is no basis for ascribing the individual’s falsification to immaturity. At the time the individual executed his 1996 QNSP, he was a highly educated, mature person who had held an access authorization for many years.
While it is true that the individual’s falsification is not recent since it occurred more than five years ago, the individual’s concealment of the truth and deception of the DOE lasted until December 2000. During the four years that he concealed his falsification, I believe that the individual was vulnerable to blackmail, extortion, and coercion. That risk no longer seems to exist in view of the individual’s admission in the 2000 QNSP, however.
The individual did not convince me that his 1996 falsification was an isolated incident. I am troubled by the individual’s behavior surrounding his broken promise to the DOE in 1976. In this regard, I am concerned that the individual may have deliberately lied to the DOE when he provided his unconditional assurance not to use drugs again. While the record demonstrates that individual equivocated before providing his promise to the DOE, the record is clear that the individual agreed not to use marijuana in the future. Nevertheless, within a short time after giving that unconditional assurance, the individual began to smoke marijuana. The ease with which the individual disregarded his promise to the DOE raises questions whether the individual really intended to maintain his personal commitment to the DOE at the time he made it.
As for the voluntary nature of the individual’s disclosure, I find that his disclosure is entitled to only neutral weight. While it is true that the individual disclosed his past transgressions on his 2000 QNSP, he did so only after being confronted with the choice of lying again to the DOE or revealing his past falsehood. (6) In other cases, Hearing Officers have held that the disclosure of a falsification was not at a clearance holder’s initiative because it was not made prior to his obligation to complete an updated Questionnaire for Sensitive Positions. See Personnel Security Hearing, Case No. VSO- 0049, 25 DOE ¶ 82,785 (1996), aff’d, Personnel Security Review, Case No. VSA-0049, 25 DOE ¶ 83,011 (1996) (terminated by OSA, 1996). Moreover, when I questioned the individual at the hearing whether it ever occurred to him between 1996 and 2000 to “come clean,” the individual responded, “no.” Tr. at 231. This response suggests to me that the individual would not have revealed his falsification had he not been prompted to do so by the DOE’s security clearance reinvestigation process.(7) In addition, I am not convinced that no one would have found out about the individual’s past drug use in the absence of the individual’s disclosure. The individual admitted that he smoked marijuana with other employees holding access authorizations after 1976. It is possible that one of those employees might have shared this derogatory information with the DOE in connection with their own or the individual’s security clearance reinvestigation.
While I believed the individual’s testimony that he is now remorseful for his past actions, the individual did not accept full responsibility for his deliberate falsification until December 2000 when he revealed his 1996 lie to the DOE. During the four-year period that the individual concealed his falsehood from the DOE, he seemed unfazed by the situation. In fact, he readily admitted that his conscience did not bother him during this four-year period of concealment. Cf. Personnel Security Hearing, Case No. VSO-0440, 28 DOE ¶ 82,807 (2001) (affirmed by OSA, 2001) (restoration recommended based on evidence including the fact that the individual was guilt-ridden about his falsification and disclosed information voluntarily after searching his conscience).
With regard to the issue of rehabilitation or reformation, there is no medical or other type of expert(8) that can opine about the length of time one needs to be considered rehabilitated from lying. See Personnel Security Hearing, Case No. VSO-0013, 25 DOE ¶ 82,752 (1995) (affirmed by OSA, 1995). In other cases, OHA has stated that it is the subsequent pattern of responsible behavior that is the key to abating security concerns that arise from irresponsible action. See Personnel Security Hearing, Case No. VSO-0448, 28 DOE ¶ 82,816 (2001), appeal filed (11-month period not sufficient to mitigate four-year period of deception); Personnel Security Hearing, Case No. VSO-0440, 28 DOE ¶ 82,807 (2001) (affirmed by OSA, 2001) (18 months of responsible, honest behavior sufficient evidence of reformation from dishonesty that spanned 6-months in duration); Personnel Security Hearing, Case No. VSO-0289, 27 DOE ¶ 82, 823 (1999), aff’d, Personnel Security Review, 27 DOE ¶ 83,025 (2000) (affirmed by OSA, 2000) (19 months not sufficient time to demonstrate rehabilitation for 12-year period of deception), In this case, I find that 13 months is not sufficient time for me to gauge whether the individual has mitigated the security concerns associated with his four-year period of deception.
In making his determination, I considered and gave weight to the testimony of those witnesses who have consistently observed the individual professionally day after day for many years. Tr. at 101, 105, 120, 130, 140, 145, 152. Their cumulative testimony suggests that the individual’s professional reputation is that of a man of integrity. (9) However, the individual did not convince me at the hearing that he would not elevate the interests of his wife above national security if a situation were to arise that placed his wife’s happiness and the national security in conflict. Nor has the individual convinced me that he will comport himself in an honest, reliable and trustworthy manner in the future should he find himself under the stress of financial pressure, job pressure, and pressure to please his wife. Ultimately, the question before me is whether the individual has brought forward sufficient information to allay any concerns associated with his honesty, reliability and trustworthiness. In the end, I am left with lingering doubts about this matter. For this reason, I find that sufficient time has not passed for me to conclude that the individual is rehabilitated from past actions of dishonesty, untrustworthiness and unreliability. Accordingly, as instructed by the Part 710 regulations, I must resolve these doubts in favor of national security and against the individual.
2. Defenses to Criterion L Allegations
The individual raises a number of arguments in defense of the allegations under Criterion L. First, he contends that his interpretation of the company Code of Conduct in effect in 1976 is that the company did not prohibit the use of marijuana off company premises, merely the sale and resale of marijuana. Tr. at 196. Second, the individual contends that in 1976 there was a “looser” environment and that many people smoked marijuana. Id. at 11. Third, he explained that shortly after he received his security clearance, he was tempted into smoking marijuana with others from his company who held DOE security clearances. Id. at 178. As a consequence, he did not think his behavior was unacceptable. Fourth, he argues that the verbal assurances he gave the DOE in 1976 did not rise to the level of a written drug certification so he does not believe his conduct should be as much of a security concern as someone who violates a drug certification. Id. Fifth, the individual points out that in the 1976 PSI, the interviewer stated that the “ERDA would prefer that you not use drugs.” Id. at 220. According to the individual, the interviewer’s language could be construed as meaning the use of drugs was not strictly prohibited. Sixth, the individual asserts that he only remembered the 1976 PSI as a “passing” moment and claims he only agreed to use his best efforts not to use drugs in the future. Id. at 54. In that connection, the individual claims that no one ever advised him that if he broke his promise not to use drugs that his security clearance would be affected. Id. at 202. Seventh, the individual claims that despite his earlier admission that he used marijuana 200 times between 1976 and 1980, he only used marijuana episodically and sporadically. Id. at 179. It is the individual’s contention that drugs were simply not a big part of his life. Finally, the individual reiterates that he voluntarily disclosed his post-1976 drug use to the DOE and that had he not self-disclosed this information, no one would have learned about his falsification and broken promises to the DOE. Id. at 201.
a. Evaluation of Evidence
With regard to the individual’s argument that his employer’s Code of Conduct permitted his use of marijuana off company premises, I find that the Code of Conduct is irrelevant to the issue of the individual’s suitability for an access authorization. It is the DOE that issued the security clearance to the individual and not his employer. It is the DOE’s policy regarding drug use, not that of his employer, that is relevant here. In this regard, the individual admitted at the hearing that he knew the DOE’s policy prohibited drug use while holding a security clearance. Tr. at 197. Even assuming arguendo that the individual were not cognizant of the DOE’s policy prohibiting drug use, I believe that the individual simply interpreted the Code of Conduct in a way to justify his own actions. I found it noteworthy that several of the witnesses called by the individual did not construe their company’s Code of Conduct in such a way as to condone marijuana use off company premises. See Tr. at 136, 161 (one witness testified that from the time he began working for the company in 1968, he knew the company policy was that drug use on and off the workplace was not allowed) (another witness testified that in her 39 years with the same employer, she never believed that its policy allowed the use of drugs).
As for the individual’s implication that his actions should be justified because the environment in the late 70s was “looser,” I find that his perception of public sentiment on this matter to be of negligible relevance. See Personnel Security Hearing, Case No. 0289, 27 DOE ¶ 82, 823 (1999), aff’d, Personnel Security Review, 27 DOE ¶ 83,025 (2000) (affirmed by OSA, 2000).
The individual’s assertion that others with DOE security clearances smoked marijuana from 1976 to 1980 neither excuses nor justifies the individual’s behavior. All access authorization holders are held to the same standards. To the extent others may have violated DOE’s policy by engaging in illegal behavior, their conduct presented a risk to national security, and they placed their security clearances in jeopardy as well.
Similarly, I find no reason to excuse the individual’s conduct because he did not execute a drug certification. The personnel security specialist testified that she does not believe the DOE had introduced written drug certifications at the time the individual was asked to provide verbal assurances. Tr. at 30-31. The individual admits that when he smoked marijuana from 1976 to 1980, he remembered that he had provided verbal assurances to the DOE in 1976 not to use drugs. Because the individual knowingly chose to ignore his personal commitment to the DOE, the absence of a written assurance is not significant. It is my determination that the individual’s abrogation of a verbal promise is as serious as a breach of a written agreement. In the end, the individual’s behavior demonstrated to the DOE that the agency could not rely on his word or trust him to follow through on his promises.
While the individual is correct that interviewer in the 1976 PSI stated that “ERDA would prefer that those who have access to classified information not use illegal drugs of any sort” (Ex. 5 at 8), the individual did not convince me that the interviewer’s choice of words caused him to believe that the DOE would ever sanction drug use. In fact, at the hearing the individual testified that his “understanding of the DOE position was that it was against the law and that they didn’t want us doing things that were against the law.” Tr. at 197. In addition, four witnesses who testified on the individual’s behalf, asserted that in 1976 they knew the DOE’s policy strictly prohibited drug use. Id. at 108, 136, 147, 161. In the end, I do not find the individual’s argument credible on this matter.
Next, I reject the individual’s contention that he only agreed to use his best efforts not to use drugs in the future during a “passing moment.” Under cross-examination, DOE Counsel asked the individual if the individual was serious when he provided his verbal assurances to the DOE. The individual responded affirmatively. Id. at 216. When queried what he believed he had told the interviewer at the completion of the 1976 PSI, the individual stated “That . . . I wouldn’t use marijuana.” Id. at 214. Either the individual lied to the DOE in 1976 or he deliberately elected to disregard his earlier promise.(10)
Regarding the individual’s contention that he only used marijuana episodically and sporadically, I find no testimonial or documentary evidence to support his position. Using marijuana 200 times over a four-year period cannot be characterized accurately as either episodic or sporadic use. Cf. Personnel Security Hearing, 28 DOE ¶ 82,803 (2001)(affirmed by OSA, 2001) (one-time drug use after execution of drug certification excused as isolated incident). The individual’s argument seems designed solely to minimize the frequency of his past marijuana usage.
With regard to the individual’s reformation from his actions from 1976 to 1980, I would have been inclined to find for the individual had the 1996 falsification not occurred. In fact, had the individual been truthful in his 1996 QNSP, I would have determined that sufficient time had elapsed to overcome the individual’s multiple times that he breached his verbal promise to the DOE. However, that is not the situation before me. The DOE invoked Criterion L not only because the individual used marijuana while holding a security clearance after having verbally promised not to, but because the individual lied to the DOE in 1996 and concealed his falsehood for four years. The individual’s behavior in 1996 is of paramount concern because it is much more recent than his behavior 20 years ago. While it is certainly a positive factor that the individual chose to reveal his falsification in 2000 rather than to perpetuate his lie, the individual has not convinced me that the stressors that were present in 1996, i.e. impending work deadlines, potential loss of job, financial pressures, and desire to please his wife, might not resurface in the future and cause him to act contrary to the national security. For this reason, I find that more time needs to elapse before the individual can be considered reformed from his actions under Criterion L.
3. Summary
Honesty, reliability and trustworthiness are at the heart of this case. The individual demonstrated that during a four-year period, he knowingly smoked marijuana 200 times while holding a security clearance. He engaged in this illegal conduct despite having promised the DOE in 1976 that he would refrain from using drugs in the future.
While more than 20 years have passed since the individual first breached his promise to the DOE and engaged in the illegal conduct in question, the individual’s actions in 1996 once again called into question his honesty, reliability and trustworthiness. The cumulative effect of (1) the individual’s actions from 1976 to 1980 and (2) his 1996 lie and subsequent four-year concealment casts aspersion on the individual’s integrity. It was my impression from the arguments raised by the individual at the hearing that he is trying to minimize and rationalize the actions that led to the suspension of his access authorization. Moreover, the individual did not convince me that he will act in an honest, reliable, and trustworthy manner if he is placed under great stress in the future. For all the reasons set forth above, it is my determination that more time needs to pass before I could consider the individual reformed from his past actions that impugned his honesty, reliability and trustworthiness.
V. Conclusion
For the reasons set forth above, I find that the individual’s actions raise concerns under Criteria F and L. Further, I find that the derogatory information under Criteria F and L has not been mitigated by sufficient evidence of rehabilitation or reformation at this time. Accordingly, after considering all the relevant information, favorable or unfavorable, in a comprehensive and common-sense manner, I conclude that the individual has not yet demonstrated that restoring his access authorization would not endanger the common defense and would be clearly consistent with the national interest. I therefore find that the individual's access authorization should not be restored.
Ann S. Augustyn
Hearing Officer
Office of Hearings and AppealsDate:March 15, 2002
(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). Such authorization will be referred to from time to time in this Decision as access authorization or security clearance.
(2) All references to the DOE in this Decision shall include the DOE’s predecessor organization, the Energy and Development Administration (ERDA), which issued the individual his access authorization in 1976.
(3) Criterion F concerns, in relevant part, information that a person “[d]eliberately misrepresented, falsified, or omitted significant information from a Questionnaire for Sensitive National Security Positions . . . on a matter that is relevant to a determination regarding eligibility for DOE access authorization.” 10 C.F.R. § 710.8(f). Criterion L is invoked when a person has allegedly “[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. Such conduct or circumstances include, but are not limited to, criminal behavior, a pattern of financial irresponsibility, conflicting allegiances, or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.” 10 C.F.R. § 710.8(l).
(4) The individual’s wife had received a $500,000 inheritance that she had invested in the new home construction. Ex. Z at 6. The individual and his wife had also used the equity from the sale of another home towards the cost of building the new house. Tr. at 183.
(5) The factors enumerated in 10 C.F.R. § 710.7(c) include the following: the nature, extent, and seriousness of the conduct, the circumstances surrounding his conduct, to include knowledgeable participation; the frequency and recency of his conduct; the age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors.
(6) I would have been more impressed had the individual come forward with the information prior to receiving his QNSP for completion. I considered and rejected the individual’s insinuation that ill health for 18 months following his completion of the 1996 QNSP prevented him from reflecting on the matter. Following his period of illness, there was still ample time for him to correct the record before the next routine background reinvestigation began.
(7) The record reveals that the individual knew in August 2000 that he might be required to take a polygraph examination. In other cases, Hearing Officers have held that the threat of polygraph rendered a disclosure of falsification less than voluntary. See Personnel Security Review (Case No. VSA-0255), 27 DOE ¶ 83,022 (1999), reversing Personnel Security Hearing (Case No. VSO-0255), 27 DOE ¶ 82,801 (1999) (affirmed OSA, 2000). However, the individual testified under oath at the hearing that he disclosed his falsehood on his own volition and not because he feared his lie would be revealed while undergoing the polygraph.
(8) The Clinical Psychologist Report (Exhibit Z) tendered by the individual is not probative on this issue since it does not address (1) whether the behavior could occur again given the right set of stressors and (2) what length of time is necessary to achieve reformation from lying.
(9) The regulations prohibit me from considering the effect of the loss of the individual’s access authorization on the DOE program. 10 C.F.R. § 710.27(b). Accordingly, I have not given any weight in this Decision to the numerous testimonial accords of the individual’s technical competence and professional contributions to the DOE.
(10) As for the individual’s argument that no one explicitly told him he might lose his security clearance if he resumed using drugs, common sense dictates that I find this argument to be devoid of merit.