Case No. VSA-0088, 26 DOE ¶ 83,003 (OHA Oct. 28, 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. October 28, 1996

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Petitioner: Oakland Operations Office

Date of Filing: August 8, 1996

Case Number: VSA-0088

This determination considers a Request for Review filed by the Department of Energy Office of Safeguards and Security (OSS) concerning the eligibility of XXXXX (hereinafter "the individual") to retain an 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 individual's access authorization was suspended at the direction of the Acting Manager of the DOE's Oakland Operations Office (DOE/OK) under the provisions of Part 710. The individual requested administrative review of this action before a Hearing Officer, and on July 17, 1996, the Hearing Officer assigned by the DOE Office of Hearings and Appeals issued an Opinion that the individual's access authorization should be restored. On August 8, 1996, the OSS filed a request for review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28. This request contained a Statement of Issues identifying the matters on which the OSS specifically sought review. Counsel for the individual filed a Response to the Statement of Issues August 27, 1996, and, on September 17, 1996, I closed the record of this proceeding. This Opinion considers the matters raised by the OSS filing and the individual's response.

I. Background

In October 1995, the DOE requested that the individual submit to a random urine screening test. It is uncontested that the

individual's urine tested positive for the presence of cannabinoids.<1>A DOE personnel security specialist

conducted a personnel security interview (PSI) with the individual regarding the positive drug test result. At this interview, the individual indicated that he used marijuana from July 1994 until October 1995.

On March 5, 1996, DOE/OK issued a Notification Letter to the individual informing him that his access authorization had been suspended. Specifically, the DOE/OK invoked Section 710.8(k) (hereafter Criterion K), finding that the individual "[t]rafficked in, sold, transferred, possessed, used, or experimented with a drug or other substance listed in the Schedule of Controlled Substances established pursuant to section 202 of the Controlled Substances Act of 1970 (such as marijuana, cocaine, amphetamines, barbiturates, narcotics, etc.) except as prescribed or administered by a physician licensed to dispense drugs in the practice of medicine, or as otherwise authorized by law." The bases for this finding are that: (1) a urine specimen provided by the individual in October 1995 tested positive for the presence of marijuana, and (2) during his PSI, the individual admitted using marijuana.

The individual subsequently exercised his right under Part 710 to request a hearing in this matter. At the hearing, the DOE/OK presented one witness, a DOE/OK personnel security specialist. The individual called two witnesses, both supervisory co-workers of the individual.

II. The Hearing Officer's Opinion

In his Opinion, the Hearing Officer found that the individual's access authorization should be restored. In reaching this conclusion, the Hearing Officer first determined that in view of the undisputed evidence of marijuana usage by the individual, the DOE/OK properly invoked Criterion K in suspending the individual's access authorization. The Hearing Officer then considered "whether the individual has made a showing of facts and circumstances sufficient to overcome the DOE's legitimate security concerns." Oakland Operations Office (Case No. VSO-0088), 25 DOE ¶ 82,809 at 85,877 (1996). As discussed below, the Hearing Officer's analysis of the "facts and circumstances" presented by the individual and other witnesses led him to find that restoration of the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. 25 DOE at 85,876, citing 10 C.F.R. § 710.27(a).

In his Opinion, the Hearing Officer accepts the individual's statements concerning his use of marijuana which he made in the PSI and at the hearing. The individual testified that he first experimented with marijuana in July 1994 XXXXX. The individual went to a bar to consume alcohol for the purpose of alleviating the stress associated with his mother's death, but was instead persuaded by a man he met at the bar to try marijuana. The individual then proceeded to purchase a small amount of marijuana from the man, which he then used. In September 1994, he again purchased a very small quantity of marijuana from the same man to alleviate trauma that he experienced around the time of his deceased mother's birthday. The individual continued this pattern of purchases to alleviate "traumatic times" until his use resulted in the positive drug screen in October 1995. Between September 1994 and October 1995, he states that he used marijuana approximately ten times. 25 DOE at 85,876-77.

As the basis for accepting the individual's account, the Hearing Officer states that he is convinced of the individual's truthfulness, and that this opinion is shared by the Personnel Security Specialist who conducted the PSI. 25 DOE at 85,877. The Hearing Officer also refers to two pieces of "corroborative evidence." One is the statement by the individual that he never experimented with drugs prior to 1994 because his prior employer subjected him to drug testing during the four-year period from 1988 to 1992. 25 DOE at 85,878 at n. 2. The Hearing Officer also finds that the testimony of the individual's supervisors concerning his excellent job performance convince him that the individual's marijuana use did not take place on site and was not at a level that impaired his job performance. Id. at n. 3.

The Hearing Officer concludes from this information that the individual's marijuana use "was not abusive, but instead only experimental at first, and then therapeutic in an attempt to relieve severely stressful situations." 25 DOE at 85,878. The Hearing Officer supports this conclusion with the following analysis:

The record indicates that the individual began experimenting with marijuana during a stressful situation occasioned by the loss of his mother. He then used marijuana under similar circumstances in approximately ten instances over a period lasting a little more than a year. In each instance, the individual used only a small amount, and thus each episode was isolated in the sense that the individual never protracted his use of the drug. I therefore find that the individual's marijuana use did not rise to a level of addictive abuse. Indeed, the individual stated that neither his wife or any other family member was aware that he had ever used marijuana prior to the suspension of his clearance. PSI at 15.

Id. (footnote omitted).

The Hearing Officer then considers whether the individual's participation in the drug recovery program administered by his health care provider was sufficient to demonstrate that he has been rehabilitated from this limited amount of marijuana use. The Hearing Officer notes that the program provided for a clinical assessment of the individual, and then required him to attend three (one hour and 15 minute) sessions during the week and at least five (two hour) educational lectures on Saturdays, over a two-month period. Id., citing Individual Exh. 16 at 1. He then quotes portions of a March 1996 letter from the individual's program staff psychologist indicating that on the basis of the individual's admitted level of marijuana use, no further chemical dependency treatment is advised. Id., at 85,878-79. The Hearing Officer notes that the individual has submitted program attendance records and drug test results to establish his abstinence from marijuana for the nine-month period from October 1995 to the date of his Opinion. Id., at 85,879, citing Exh. 14, 17.

The Hearing Officer then finds that the individual's program of treatment combined with his nine month period of documented abstinence are sufficient to establish rehabilitation. Id. In conclusion, the Hearing Officer finds that three key elements are present in this case that permit the individual to overcome the security concerns of the DOE involving his marijuana use:

(i) the individual's marijuana use was not substantial and in remission, (ii) the individual successfully completed a viable drug treatment program, and (iii) the individual documented a sufficient period of abstinence and provided other evidence to support a showing of rehabilitation.

Id., citing Albuquerque Operations Office (Case No. VSO-0023), 25 DOE ¶ 82,761 at 85,580-81 (1995); Albuquerque Operations Office (Case No. VSO-0013), 25 DOE ¶ 82,752 at 85,514-15 (1995).

III. Statement of Issues and Response

In its Statement of Issues, the OSS requests a review of the Hearing Officer's findings and recommendation. Specifically, OSS disagrees with the Hearing Officer's characterizations concerning the frequency and seriousness of the individual's marijuana use.

The Hearing Officer called [the individual's marijuana use] experimental and therapeutic, involving small amounts, and as not abusive, factors he called mitigating. He also called the use isolated and not addictive. We view his use as regular, occurring every 2 to 5 months for about a 15 month period, and we view the use as not socially spontaneous but rather requiring planning, effort, and expense on his part.

Statement of Issues at 1. The OSS also questions the Hearing Officer's findings that the individual's stated reasons for marijuana use and his discretion in using the drug constituted mitigating factors.

The Hearing Officer noted [the individual's] use of marijuana occurred off-site, did not affect his job, and took place without the knowledge of family or friends as mitigating. Judging from his wife's threatening divorce when she learned of his use and the possibility she may take that action still, we view his actions as subjecting him to coercion and pressure, especially from his sole source of marijuana, a man of unknown background and intent who casually offered marijuana for sale in a bar to an obviously vulnerable clearance holder. We view [the individual's] ready turning to marijuana for solace or relief on all six occasions, claiming no prior experience with the drug, as a security concern since death of family members is experienced by every adult.

Id., at 1-2. The OSS also expresses concern regarding the individual's assertion that he did not understand that the DOE's drug policy prohibited recreational marijuana use off-site. The OSS views his actions as violating "a clear regulation of his employer and the Department."

It is difficult to accept his view that the Department and his employer were concerned only about the venue and period he was under the influence of marijuana [and] not the use itself.

Id., at 1. Finally, the OSS identifies the individual's enrollment in his Employee Assistance Program and his successful completion of an Alcohol and Addiction Program as "[t]he only possible mitigating factor in his case." However, the OSS notes that the individual has only abstained from illegal drugs for an eight month period, and that his participation in the program "was occasioned only by a positive drug screen." Id., at 2.

In a Response to the OSS Statement of Issues, counsel for the individual asserts that the DOE/OK failed to produce any evidence contradicting the individual's explanation of his marijuana use.

To imply that the [individual's] casual use implies continued use is speculative at best. As to the deliberate conduct of purchase and use: such conduct is directly parallel to the conduct of the clearance holder who, occasionally, indulges in alcoholic beverages.

Response at 1. Counsel for the individual also asserts that the DOE has not shown that the individual's admitted purchases of marijuana made him vulnerable to coercion, and has not sought to develop the record on this issue.

Questioning at the hearing made it clear that there was no follow-up on the part of [the individual's employer or DOE/OK] to ascertain the identity of the seller when one of the stated dangers of use of illegal substances is the threat of coercion. The investigation went no further than to copy down [the individual's] statement in which he freely admitted guilt. It seems somewhat disingenuous of the DOE to express fear of pressure in this type of situation while taking no action to discover if the seller was, in fact, in a position to exert pressure.

Id. Counsel for the individual also repeated the assertion that "it is quite possible that the average clearance holder would not be aware that the prohibition of the use of any drug extended beyond the physical limits of the [work place]." Finally, Counsel for the individual asserts that he "is the living, breathing example of the effectiveness of the ... Employee Assistance Program," that he has met all of the requirements of that program, and should now be permitted to return to his former job and clearance status. Id.

IV. Standard of Review

In order to frame my review of the Hearing Officer's Opinion, I believe that it will be useful to discuss briefly the respective requirements imposed by 10 C.F.R. Part 710 upon the individual, the Hearing Officer, and upon me as the reviewing authority. As discussed below, Part 710 clearly places upon the individual the responsibility to bring forth persuasive evidence concerning his eligibility for access authorization, and requires the Hearing Officer to base all findings relevant to this eligibility upon a convincing level of evidence. 10 C.F.R. § 710.27(b), (c) and (d). I, in turn, am required to review the entire administrative record in this matter, with particular attention to the issues raised by the parties in their requests for review, and to render my opinion concerning access authorization based upon the entire record. 10 C.F.R. § 710.28(d). In conducting my review, it is appropriate for me to accord deference to the Hearing Officer's observations and conclusions to the extent that they are found to be reasonable and based upon substantial evidence, and especially in the case of evaluating the credibility of witnesses who testified at the hearing.

A. The Individual's Burden of Proof

It is important to bear in mind that a DOE administrative review proceeding under this Part is not a criminal matter, where the government would have the burden of proving the defendant guilty beyond a reasonable doubt. This proceeding is also unlike a civil case, in which in order to prevail a plaintiff must establish his case by a preponderance of the evidence. The standard in this proceeding, which places the burden of proof on the individual, 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). The individual must come forward at the hearing 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. §710.27(d). Albuquerque Operations Office (Case No. VSO- 0061), 25 DOE ¶ 82,791 (1996).

It is during the administrative review process that the individual has a full opportunity to present evidence supporting his eligibility for an access authorization, and to convince the hearing officer that "the grant or restoration of access authorization to the individual would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. §§ 710.21(b)(6), 710.27(a), (d).

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, Dep't. of Navy v. Egan, 484 U.S. 518, 531 (1988)(Egan). Consequently, we generally expect the individual in these cases to bring forward testimonial and other evidence in addition to his own testimony which, taken together, are sufficient to persuade the Hearing Officer that restoring his access authorization is clearly consistent with the national interest. Albuquerque Operations Office (VSO-0002), 24 DOE ¶ 82,752 (1995).

Once a security concern is raised by the DOE, it is incumbent upon the individual to resolve the concern with convincing factual evidence. Albuquerque Operations Office (Case No. VSO-0084), 26 DOE ¶ 82,754 (1996)(individual failed to meet his burden of coming forward with evidence to show that he was rehabilitated and that his exhibitionism and voyeurism were unlikely to recur). In cases where there is evidence of a positive drug test, an affected individual must provide convincing evidence mitigating the security concern related to illegal drug use. Albuquerque Operations Office (Case No. VSO-0051), 25 DOE ¶ 82,784 (1995), aff'd Albuquerque Operations Office (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); Albuquerque Operations Office (Case No. VSO-0019), 25 DOE ¶ 82,759 (1995). In other words, an individual who has had a positive drug test has the burden to show that maintaining his access authorization is clearly in the national interest. It is therefore the obligation of the individual to offer an explanation for the positive drug test, establish the truthfulness of the explanation, and demonstrate that the explanation mitigates the DOE's security concerns. <2>

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.

B. Basis for Hearing Officer's Opinion and the Standard of Review

In personnel security cases under Part 710, it is the role of the Hearing Officer to issue an Opinion as to whether granting an 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(a). Thus, in conducting his analysis regarding the particular concerns raised by the OSS and the individual's response, the Hearing Officer must assess whether there is substantial evidence to mitigate the concerns and support a finding that granting an access authorization to the individual would not endanger the common defense and security and would be clearly consistent with the national interest.

In reviewing the Hearing Officer's findings and conclusions, it is not my role to second guess or to substitute my judgment for that of the Hearing Officer. It is a general rule in reviewing judicial determinations, that findings of fact in these types of cases will not be set aside unless they are clearly erroneous, giving due regard to the fact that the trier of fact is in the best position to judge the credibility of witnesses. Compare, Pullman-Standard v. Swint, 456 U.S. 273 (1982) (Pullman) with Amadeo v. Zant, 486 U.S. 214, 223 (1988)(Amadeo), quoting Federal Rule of Civil Procedure 52(a). See also, Helen Gaidine Oglesbee v. Westinghouse Hanford Company, 25 DOE ¶ 89,001 (1995). Findings not supported by substantial evidence are taken to be clearly erroneous. Freeport Sulphur Co. v. S/S Hermosa, 526 F.2d 300 (5th Cir. 1976). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552 (1988). A finding is considered clearly erroneous, when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. U.S. v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

With these considerations in mind, I turn to the evidence in this case and the Opinion at hand.

V. Analysis

After reviewing the entire record in this case, I find that the individual has not presented substantial evidence to support his assertions with respect to the nature and frequency of his past use of marijuana. As a result, I find that the Hearing Officer erred in accepting these assertions as findings of fact, and that his findings of rehabilitation based on the individual's limited use of marijuana cannot be sustained.

With respect to the Criterion K security concern at issue in this proceeding, the OSS disagrees with the Hearing Officer's legal conclusion that the individual's admitted level of marijuana use constitutes limited drug use for purposes of demonstrating rehabilitation and reformation. However, the Hearing Officer's conclusion is based on his factual finding that the individual's marijuana use began in 1994 and was limited to approximately ten instances thereafter. As an initial matter, I find that the Hearing Officer's factual finding cannot be sustained because it is not supported by substantial evidence. The only evidence in the record concerning the frequency and duration of the individual's use of marijuana is the individual's own testimony at the PSI and at the hearing. As noted above, the Hearing Officer uses this testimony to make the following findings:

The record indicates that the individual began experimenting with marijuana during a stressful situation occasioned by the loss of his mother. He then used marijuana under similar circumstances in approximately ten instances over a period lasting a little more than a year. In each instance, the individual used only a small amount, and thus each episode was isolated in the sense that the individual never protracted his use of the drug. I therefore find that the individual's marijuana use did not rise to a level of addictive abuse.

Oakland Operations Office (Case No. VSO-0088), 25 DOE at 85,878.

I am mindful that the Hearing Officer explicitly found that the individual was open and candid with respect to his marijuana use. He based this finding on his direct observation of the individual, as well as on statements supporting the individual's candor made by the DOE security specialist and by the individual's program staff psychologist. Id. at 85,878 and 85,879. Given the fact that the Hearing Officer alone was in the position to view the individual and assess his demeanor, I will not substitute my judgment concerning the individual's demeanor.

However, even accepting that determination, I still find a lack of sufficient evidence in support of the Hearing Officer's conclusion concerning the extent of the individual's drug use. This is a critically important conclusion. As discussed in the OSS's non- binding guidelines concerning mitigation of security concerns, the duration and frequency of an individual's marijuana use are factors crucial in ascertaining the degree of rehabilitation and reformation which must be demonstrated by an individual seeking to mitigate concerns arising from drug use. See "Adjudicative Guidelines for Determining Eligibility for Access to Classified Matter and Special Nuclear Material," pp. 20-22. 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 infrequent enough event as to warrant acceptance of the individual's assurance that he/she will not be involved with drugs while holding a DOE access authorization." Id. at 21. In contrast, where illegal drug use is not an "infrequent event", a stricter standard is clearly appropriate. In such instances, these guidelines indicate that a twelve month period of abstinence is generally required to demonstrate adequate evidence of rehabilitation and reformation. Id. at 22.

In the present case, the Hearing Officer finds that the individual has demonstrated rehabilitation by completion of a formal treatment program and by eight months of abstinence from the use of marijuana. As stated by the Hearing Officer, "In view of the level of marijuana use described above, I find [the evidence] sufficient to establish rehabilitation in this case." Oakland Operations Office (Case No. VSO-0088), 25 DOE at 85,879. Accordingly, the Hearing Officer's finding of rehabilitation is based specifically upon a usage of marijuana consisting of approximately ten instances beginning in July 1994 and ending in September 1995. As discussed below, this critical finding regarding the individual's limited use of marijuana is not supported by substantial evidence.

At his PSI, in the statements made to his drug counselors, and in his testimony at the hearing, the individual certainly presented a consistent account of his allegedly limited use of marijuana. However, the individual has a significant incentive and interest here in seeking to continue his access authorization and therefore in minimizing his previous use of marijuana. See Amadeo, 486 U.S. at 226. Consequently, I believe that the individual's description of his alleged usage must be treated with some skepticism and standing alone is inadequate in this case. Some additional, objective evidence is needed to demonstrate that the events asserted by the individual are factual, and to support the Hearing Officer's factual conclusions regarding drug usage.

The individual's positive drug test raises a strong concern that he may be a regular user of marijuana. In this situation, although the description of usage provided by the individual is a plausible account of limited marijuana use, more is required than mere plausibility. Evidence independent of the individual's own testimony is necessary if we are to accept a description of marijuana use where the limited duration and frequency of usage operate as mitigating factors to support a finding of rehabilitation. In this case, the individual brought forward no appropriate, adequate corroborating evidence that the mitigating events, as alleged, actually occurred. See, Albuquerque Operations Office (Case No. VSA-0051), 25 DOE ¶ 83,012 (1996).

In his Opinion, the Hearing Officer states that in addition to the individual's testimony, "corroborative evidence presented in the record" leads him to conclude that the individual's marijuana use was "not abusive." Oakland Operations Office, (Case No. VSO-0088), 25 DOE at 85,877-78. However, I searched in vain for additional evidence of any persuasive value. In fact, there was little if any independent corroboration of the individual's account of his limited drug use. The testimony of a supervisory co-worker and seven letters of commendation are cited by the Hearing Officer as evidence that the individual's drug use did not negatively impact upon his job performance. Id. at 85,878 n. 4. This evidence supports a finding that the individual was not abusing marijuana to the extent that it impaired his job performance, an important factor, but it certainly does not confirm the individual's assertion that he only used marijuana on approximately ten occasions. A regular, recreational user of marijuana who confines his usage to evenings and weekends may be perfectly capable of maintaining an excellent level of job performance.

The Hearing Officer also finds that the fact that the individual was routinely subject to drug testing by a previous employer during the four-year period, 1988 to 1992, and did not test positive for drug use corroborates the individual's statement that he never experimented with illegal drugs until recently. Id. at n. 2. However, the Hearing Officer relies solely on the individual's assertions in this regard. No corroborative evidence of drug testing by the individual's previous employer is in the record of this proceeding. As a result, we do not have information on the frequency of the drug testing, the type of test administered, or even evidence corroborating the individual's assertion that he did not test positive for drugs during that period.

Finally, the Hearing Officer appears to find support for his acceptance of the individual's account of his drug use from the DOE/OK security specialist's statement that she found him to be forthcoming and honest at the PSI, and by the individual's program staff psychologist who stated in a letter that the individual's account of his drug use "seemed believable to my co-therapist and me." Id. at 85,877 and 85,879. Certainly these statements support to some degree the general credibility of the individual's testimony on this subject.<3>However, upon examination they provide no independent corroboration for the facts asserted.

Accordingly, the individual failed at the hearing to provide objective corroborating evidence to support the truth of his assertion that his marijuana use was limited. The record is devoid of corroborating evidence concerning any of the particulars regarding when and how often the individual used marijuana.

In fact, some relevant, corroborative evidence was clearly within the knowledge and the control of the individual to present. The individual has stated that his wife and other family members were unaware of his marijuana use. It certainly seems to have been possible for the individual to present the testimony of his wife, who could corroborate this assertion and testify concerning relevant aspects of the individual's social life. Other close friends of the individual could also have been called to testify concerning the individual's social activities and interests outside the work place. With respect to the individual's assertion that he purchased marijuana on several occasions from an unidentified person at a particular bar, the individual might also have presented the testimony of the bartender or other regular patrons of that bar who could verify that the individual was present in the bar and made contact with this person. The individual also could have submitted evidence to document his assertion that he tested negative for exposure to marijuana in random drug tests administered from 1988 through 1992. I cannot say whether such testimony or documentation would have provided adequate corroborating evidence, or would be sufficient to establish that the individual had mitigated security concerns. See Albuquerque Operations Office (Case No. VSO-0051), 25 DOE at 85,737; Albuquerque Operations Office (Case No. VSA-0051), 25 DOE ¶ 83,012 at 86,560-61. However, the Hearing Officer's finding that the individual's testimony was credible is simply not enough evidence in this case to establish that the individual's use of marijuana was limited.

In sum, the demeanor of a witness is certainly to be considered when assessing his overall credibility and the weight to be given to the evidence he provides. Indeed, the regulations under Part 710 specifically provide that demeanor evidence shall be taken into account. 10 C.F.R. § 710.27(b). However, I believe that in this case the Hearing Officer gave the demeanor factor and the individual's testimony itself inappropriate weight. At the same time, he failed to give due consideration to another provision in that same subsection: a hearing officer must consider the lack of evidence on any material points in issue. Id. In this regard, testimony of an individual describing events that tend to minimize the seriousness of a security concern, given his or her self interest, must generally be accompanied by other supporting evidence. The individual's mere say-so regarding facts that minimize the security concern typically cannot form a sufficient basis for restoration of a security clearance. Oakland Operations Office (Case No. VSO-0094), 26 DOE ¶ 82,753 (1996).

In light of my finding that there is insufficient evidence to support the individual's claim that he used marijuana infrequently, the Hearing Officer's conclusion that the individual has demonstrated rehabilitation and reformation is flawed and cannot be sustained. The Hearing Officer's conclusion in this regard is specifically premised on a finding of limited marijuana use by the individual.

In view of the level of marijuana use described above, I find that the individual's successful completion of his treatment program coupled with his demonstrated period of abstinence sufficient to establish rehabilitation in this case.

Oakland Operations Office (Case No. VSO-0088), 25 DOE at 85,879. Moreover, in reaching this conclusion, the Hearing Officer placed substantial reliance on the letter submitted by the individual's treatment program psychologist. This letter specifically states that the favorable opinions of the psychologist and his co- therapist are premised on their acceptance of the individual's claim of limited marijuana use.

Throughout his participation in group, [the individual] maintained that his marijuana use was limited to infrequent episodes and was fairly short-lived at that.

... Based on his report, which seemed believable to my co- therapist and me, as well as his stated motivation, I do not believe that further chemical dependency treatment is advised.

Individual Exhibit 1. Accordingly, there is no material in the record of this proceeding indicating that in the opinion of a knowledgeable drug therapist, the individual has demonstrated rehabilitation from regular or frequent use of marijuana. Indeed, the individual has only shown abstinence from marijuana for a period of nine months, when one to two years of abstinence is generally required to demonstrate adequate evidence of rehabilitation and reformation from regular or frequent drug use. See "Adjudicative Guidelines" at 22. Under these circumstances, there is no factual basis in the record for finding rehabilitation by this individual.

Given the above considerations, the arguments raised by the counsel for the individual in his Response to the OSS Statement of Issues carry little if any weight. Counsel for the individual seems to believe that the DOE/OK has failed to produce any convincing evidence to contradict the individual's own assertions of his limited marijuana use, and that in the absence of such rebuttal evidence, his access authorization must be restored. Counsel mischaracterizes the evidentiary standard governing this proceeding. Counsel's position misses the obvious point, discussed above, that it is the burden of the individual to establish that restoration of his access authorization would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). See Egan, 484 U.S. at 531. For this purpose, he must provide convincing corroborating evidence that his use of marijuana was limited. This evidentiary burden is hardly unfair, especially given in this case that the individual's drug use was discovered in a random drug test. As I found above, the individual did not bring forward sufficient evidence to support the mitigating circumstances he alleged.

Nor do I find any merit in counsel's assertion that the individual's use of marijuana was mitigated because he was not fully aware that minor recreational use of marijuana away from the work place could jeopardize his security clearance. The purchase and use of marijuana is clearly an illegal activity in the United States. Engaging in such illegal activity at any time or place constitutes improper conduct under Criterion K and also casts significant doubt on an employee's reliability and trustworthiness.

As is evident from my discussion above, I find the record, when viewed as a whole, lacks sufficient evidence to support the conclusion that the individual has mitigated the DOE security concerns with respect to Criterion K.

VI. Conclusion

As indicated by the foregoing, it is my opinion that the individual's access authorization should not be restored. 10 C.F.R. § 710.28(d).

The regulations specify that within 30 days of receipt of this opinion, the Director, Office of Security Affairs, will make a final determination regarding restoration of the individual's access authorization based upon a complete review of the record. 10 C.F.R. § 710.28(e). The Director, Office of Security Affairs, shall through the Director, Office of Safeguards and Security, inform the individual and his counsel in writing of the final determination, and provide a copy of the present opinion. Copies of the correspondence shall be provided to the Director, Office of Hearings and Appeals, the Manager, DOE Counsel and any other party. In the event of an adverse determination, the correspondence shall indicate the finding by the Director, Office of Security Affairs, with respect to each allegation contained in the Notification Letter. 10 C.F.R. § 710.28(f).

George B. Breznay

Director

Office of Hearings and Appeals

Date: October 28, 1996

* * * * *

[On December 2, 1996, a final determination was made by the Director, Office of Security Affairs, to revoke the individual's Department of Energy access authorization.]

<1>/ Cannabinoids are the psychoactive substances found in the common hemp plant, Cannabis sativa (marijuana). The primary

psychoactive cannabinoid is tetrahydrocannabinol (THC). The presence of cannabinoids in a urine sample indicates with high probability that the individual has ingested marijuana or other THC-containing substances.

<2>/ Another possible method for mitigating security concerns related to drug use would, of course, be to allege

rehabilitation. This method would also require appropriate factual support by the individual. Similarly, an allegation that the drug test itself was for some reason erroneous must be supported by credible evidence. See, Albuquerque Operations Office (Case No. VSO-0019), 25 DOE ¶ 82,759 (1995),

request for review dismissed, Albuquerque Operations Office (Case No. VSA-0019), December 4, 1995.

<3>/ The words "seemed believable" used by the staff psychologist in his letter conveys the distinct possibility that the psychologist and his co-therapist are not absolutely convinced of the accuracy of the individual's description of his marijuana use. Psychologists and other drug therapists may use qualified language and guarded expressions of endorsement to express a lack of confidence that individuals in their care have been completely truthful concerning their drug use. See Oakland Operations Office, (Case No. VSO-0094). 26 DOE ¶ _____ (August 7,1996)(slip op. at 12). In the present case, we have only the statements made in this single letter to gauge the strength of opinions held by the psychologist and his co-therapist on the issue of drug use by the individual. I can afford little evidentiary weight to this limited and somewhat ambiguous evidence.