Case No. VSA-0044, 25 DOE ¶ 83,007 (OHA Mar. 7, 1996)

Case No. VSA-0044, 25 DOE ¶ 83,007 (OHA Mar. 7, 1996)

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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 XXXXX's.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Request for Review

Case Name: Personnel Security Review

Date Filed:December 11, 1995

Case Number:VSA-0044

This Opinion concerns the eligibility of XXXXX ("the individual") for continued "L" access authorization under the regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." <1> The Department of Energy's (DOE) XXXXX Operations Office (the Operations Office) suspended the individual's access authorization under the provisions of Part 710. The individual then requested a hearing before a DOE Hearing Officer pursuant to 10 C.F.R. § 710.21. On November 22, 1995, the Hearing Officer issued an opinion recommending against restoring the individual's access authorization. On December 11, 1995, the individual filed a request for review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28. This opinion considers whether, on the basis of the regulations and the record before me, the individual's access authorization should be restored.

I. Background

The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE contractors, agents, DOE access permitees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 generally provides 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).

On May 24, 1995, the Operations Office issued a Notification Letter to the individual informing him that the DOE possessed information which created a substantial doubt about his eligibility to maintain a "L" access authorization. Specifically, the Notification Letter informed the individual that derogatory information in the DOE's possession indicated that on several occasions he has deliberately provided DOE security officials with false or misleading information and therefore engaged in unusual conduct or been subject to circumstances which show that he is not honest, reliable or trustworthy. Notification Letter at Enclosure 2-3. The Notification Letter concluded that since the individual had failed to provide adequate evidence showing that he had been rehabilitated or reformed, his access authorization would be suspended.

On June 12, 1995, the individual requested a hearing and submitted a response to the DOE's allegations. On July 28, 1995, I appointed Leonard M. Tao as Hearing Officer. The Hearing Officer conducted a hearing on XXXXXXXXXXXXXXXXXX in XXXXXXXXXXXXXXXXXXXX. The Hearing Officer issued an Opinion on November 23, 1995, in which he concluded that while the individual had in fact been successfully rehabilitated from his substance dependence, he continued to have serious doubts concerning the individual's honesty and reliability and therefore could not conclude that restoring his access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Personnel Security Hearing, 25 DOE ¶ 82,780 (1995). These doubts were based upon the individual's actions that occurred subsequent to his treatment and recovery from substance dependence, specifically: (1) the individual's minimization of his drug use during his May 1994 Personnel Security Interview (PSI); and (2) the individual's failure to come forward to correct his past falsehoods, even after his recovery. On December 11, 1995, the individual filed his Request for Review and Statement of Issues. On December 21, 1995, I received the Office of Security Affairs' submission stating its concurrence with the Hearing Officer's recommendation. On January 31, 1996, I closed the administrative record of this proceeding.

II. Analysis

Under 10 C.F.R. § 710.28(a), either the individual or the Office of Security Affairs may file a request for review of a Hearing Officer's opinion with the Director of the Office of Hearings and Appeals (OHA). The regulations provide that the party seeking review must file a statement with the OHA identifying the particular issues on which it wishes me to focus when conducting my review within 15 calender days after filing its request for review. 10 C.F.R. § 710.28(a). The other party is then given 20 calender days in which to file a response to the statement. 10 C.F.R. § 710.28(b).

In considering requests for review, I will generally confine my inquiry to those issues raised in the statement or response. The regulations provide that I may consider additional information which was not before the Hearing Officer. 10 C.F.R. § 710.28(c); 10 C.F.R. § 710.29(2). In the present case, neither party has submitted any additional evidence or otherwise disputed the factual basis of the Hearing Officer's Opinion. Instead, the only issue raised by either party is the individual's contention that since his past acts of dishonesty were symptoms of his substance abuse, his recovery from substance abuse has rendered him sufficiently honest and reliable to maintain an access authorization. Accordingly, this is the only issue considered in the present opinion. After reviewing the record, I am not convinced that restoring the individual's security clearance would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). I therefore concur with the Hearing Officer's recommendation that the individual's access authorization should not be restored.

The present case involves an individual with a 16 year history of deliberately providing false or misleading information to DOE security officials. The uncontroverted evidence of these intentional misrepresentations is discussed at length in the Hearing Officer's Opinion. In April 1992, the individual enrolled himself in an in-patient treatment program for his substance dependence thus beginning, by all accounts, a successful recovery from his substance dependence. As a result, the individual experienced a significant improvement in both his personal and professional life. There is no doubt in my mind that the individual's substance dependence is in remission. Moreover, I am also firmly convinced that, in all likelihood, the individual's recovery has made him a more honest, trustworthy and reliable individual. However, I am not convinced that the serious doubts concerning his suitability for maintaining an access authorization created by his provision of false or misleading information to DOE security officials have been sufficiently resolved.

Even after his recovery, the individual continued to conceal the extent of his past drug use from DOE security. While the individual ultimately fully admitted the extent of his past drug use, he did not do so until directly confronted by DOE security officials during the third and fourth PSIs of his 1994 reinvestigation. For a period of approximately two years after he began his substance abuse treatment, the individual continued to conceal the full extent of his past drug use from DOE security and failed to inform DOE security of the inaccuracy of the information he had previously provided them. This pattern of concealment raises serious doubts about the individual's honesty, trustworthiness and reliability. 10 C.F.R. § 710.8(l).

Moreover, when the individual was questioned at the XXXXXXXXXXXXXXXXXX hearing about his previous failure to inform DOE security about the true extent of his past drug use, he testified that he had fully disclosed his past drug involvement by authorizing the DOE to obtain the records of his in-patient substance dependence treatment. Hearing Transcript at 165-67. However, the treatment records submitted by the individual do not support this testimony. Instead, they contain the following summary of the individual's chemical dependency history: "The patient states that he sampled cocaine in the past, five or six years ago. He states that he experimented with marijuana about 20 years ago and denies any and all usage of any other kind." April 28, 1992, Social History prepared by XXXXX, PHD, XXXXX at 4. During his May 26, 1994 PSI the individual admitted use of amphetamines, barbiturates, psilocybin, cocaine and hashish in addition to extensive marijuana use. Transcript of May 26, 1994 PSI at 5-6. Since the individual eventually admitted a much more extensive pattern of drug use than was indicated in his treatment records, his explanation that he had provided a full disclosure of his drug use by disclosing the treatment records is not credible.

The burden is always on the individual to come forward with evidence to convince 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. § 710.7(a); see Personnel Security Hearing, 24 DOE ¶ 82,752 at 85,511 (1995) and cases sited therein. In light of the length of time during which the individual had concealed his drug use from the DOE and the number of past misrepresentations he had made to the to DOE, this individual bears a particularly heavy burden of persuasion. The individual's passive concealment of the full extent of his past drug use until the May 26, 1994 PSI and his less than credible explanation for failing to come forward with this information at the hearing reenforce the serious doubts that had been raised about the individual's honesty, truthfulness and reliability. 10 C.F.R. § 710.8(l). Accordingly, the individual has still failed to exhibit the degree of candor necessary to resolve these serious concerns. I am therefore unable to conclude that the individual is sufficiently rehabilitated or reformed from his pattern of providing false or misleading information to DOE security officials.

I have thoroughly considered the record of this proceeding, including the submissions of the parties, the evidence presented and the testimony of the witnesses at the XXXXXXXXXXXXXXXXXX hearing convened in this matter. 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). After due deliberation, it is my opinion that the individual's access authorization should not be restored since I am unable to conclude 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).

III. Conclusion

As explained in this Opinion, I find that the individual has not established that he is rehabilitated or reformed. I therefore am not convinced that restoring his access authorization would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find that his access authorization should not be restored.

George B. Breznay

Director

Office of Hearings and Appeals

[On April 15, 1996, a final determination was made by the Director, Office of Security Affairs, to revoke the individual's Department of Energy access authorization.]

<1>/ An "L" access authorization (also referred to as a security clearance) is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.