Case No. VSA-0172, 27 DOE ¶ 83,009 (OHA June 25, 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.

June 25, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: May 4, 1998

Case Number: VSA-0172

This Opinion considers a Request for Review filed by XXXXXXXXXX (the Individual). The Individual requests review of a Hearing Officer Opinion that recommended against the grant of access authorization for the Individual. As explained below, I cannot conclude that granting the Individual’s access authorization would be clearly consistent with the national interest. Accordingly, I recommend against the grant of access authorization.

I. Background

The Department of Energy (DOE) regulations governing this matter are set forth at 10 C.F.R. Part 710 (“Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material”). As the title indicates, these regulations specify both the criteria and the procedures for determining eligibility for access to classified matter or special nuclear material. The administrative determination that an individual is eligible for access to classified matter or special nuclear material is referred to as an “access authorization” or a “security clearance.”

The Individual began working at the DOE facility in question in 1980, as an employee of a DOE contractor. At that time, he signed a drug certification. In 1981, the Individual was granted a security clearance.

In December 1992, the Individual failed a random drug test. He tested positive for cocaine and entered a drug rehabilitation program offered by the DOE contractor.

As a result of the positive drug test, the DOE office conducted a personnel security interview in January 1993 (the January 1993 PSI). After the interview, in February 1993, the DOE office suspended the Individual’s security clearance. The Individual requested a hearing, but before a hearing could be held, the Individual’s job was eliminated as a part of a reduction-in-force. As a result, the Individual’s clearance was terminated in July 1993.

Subsequently, the Individual was arrested three times for driving under the influence of alcohol (DUI). The first occurred in November 1993, and the second occurred in March 1994. The November 1993 and March 1994 arrests resulted in convictions, and the Individual was required to complete an alcohol rehabilitation program. In August 1994, the Individual was arrested and charged with various offenses, including DUI. The Individual’s alcohol level was below the legal limit, and he was not convicted of DUI. Finally, sometime between March 1994 and August 1994, the Individual was arrested for driving on a suspended license.

In 1995, the Individual was rehired by the DOE contractor, and he reapplied for a security clearance. In October 1995, the Individual completed a Questionnaire for Sensitive Positions (the October 1995 QSP). In the October 1995 QSP, the Individual denied that he had ever used drugs. In addition, the Individual did not disclose the third and fourth traffic offenses. In January 1996, the DOE office conducted a personnel security interview (the January 1996 PSI). At the January 1996 PSI, the Individual disclosed a single incident of drug use, which conflicted with the description that he provided in the 1993 PSI. The Individual still did not disclose the third and fourth traffic arrests. In April 1996, the Individual completed a Questionnaire for National Security Positions (the April 1996 QNSP). Again, the Individual did not report the third and fourth traffic arrests. In December 1996, the DOE completed another personnel security interview (December 1996 PSI). The Individual provided a description of his drinking that conflicted with his description in the January 1996 PSI, and the Individual finally disclosed the third and fourth arrests. After the December 1996 PSI, the DOE office referred the Individual to a consultant psychiatrist, who found no indication that the Individual was currently suffering from substance abuse problems.

As a result of the foregoing, the DOE notified the Individual that his answers on the two forms and in the PSIs about his drug and alcohol use raised security concerns about his honesty. The DOE office cited the Individual’s failure to disclose information, as well as inconsistencies in what he did disclose. The DOE office cited Criterion F, which concerns false statements in security investigations. 10 C.F.R. § 710.8(f).(1) The DOE office also cited Criterion L, which concerns any conduct which raises concerns about whether a person is honest, reliable, and trustworthy. Id. § 710.8(l).(2)

The Individual requested a hearing. The DOE office called the personnel security specialist who conducted the December 1996 PSI. The Individual testified and offered the testimony of two others: (i) a friend and co-worker and (ii) a personnel security expert.

The Individual testified that the inconsistencies and omissions were not the result of an intent to deceive. For example, the Individual testified that he did not understand Questions 25(a) and 25(b) on the October 1995 QSP. Question 25(a) reads as follows:

In the last 5 years, have you used, possessed, supplied, or manufactured any illegal drugs?

October 1995 QSP at 8. The Individual testified that he was confused by the string of verbs:

I felt like this question is more than just one question because no, I didn’t possess; no I didn’t supply; no I didn’t manufacture illegal drugs.

Hrg. Tr. at 128. The Individual then admitted that since he had used cocaine, he had also possessed it. Id. at 129. Similarly, the Individual testified that he did not understand what the word “problems” meant in Question 25(b), which provides as follows:

Have you experienced problems (disciplinary actions, evictions, formal complaints, etc.) on or off a job from your use of illegal drugs or alcohol?

October 1995 QSP at 8. The Individual testified that he did not know that the word “problems” would include his 1993 clearance suspension and his alcohol-related traffic offenses:

That question, I was puzzled. I don’t know what they mean by problems. I mean what are they talking about as problems? To me, I felt like it is a question, you know, I can answer yes and be wrong, I can answer no and I can be wrong.

Hrg. Tr. at 150.

The Hearing Officer issued an Opinion recommending against a grant of access authorization. Personnel Security Hearing (VSO-0172), 27 DOE ¶ 82,762 (1998) (Hearing Officer Opinion). The Hearing Officer found that certain of the omissions were a deliberate attempt to withhold relevant information. The Hearing Officer cited the Individual’s failure to disclose (i) his prior drug use and alcohol-related problems in response to Question 25 on the October 1995 QSP and (ii) the third and fourth traffic offenses in the January 1996 PSI and on the April 1996 QNSP. The Hearing Officer stated:

The individual’s attempts to excuse his failure to answer the questions correctly in Items 25(a) and 25(b) on the QSP are simply not credible. The meaning of the words in these questions should have been clear to him. The individual argues that he did not intend to hide anything from the DOE and that he supplied some of the missing information in his subsequent January 1996 PSI. The act of supplying correct information in piecemeal fashion during a series of encounters with DOE security officials does not mitigate what I believe was the individual’s deliberate attempt to minimize his history of problems with drugs and alcohol on his QSP. It is true that subsequent to his 1995 QSP, the individual supplied more information about his past drug problems, but only after the DOE security interviewers confronted the individual with his prior inconsistent statements in the 1993 PSI. However, he still did not supply all the missing information about his alcohol-related arrests and driving with a suspended license in the January 1996 PSI or on the April 1996 QNSP, but kept this important information from the DOE until the December 1996 PSI.

Hearing Officer Opinion, slip op. at 8. The Hearing Officer characterized the Individual’s testimony as consisting of “excuses more than apologies.” Id. at 10.

The Individual requested review of the Hearing Officer Opinion. In his Statement of Issues, the Individual argues that his failure to disclose fully his drug and alcohol problems was a symptom of his substance abuse problem, rather than evidence of dishonesty. The Individual argues that since he has overcome his substance abuse problem, there is no longer any security concern.

The DOE Office of Safeguards and Security (DOE Security) filed a response to the request for review. In its response, DOE Security states that it agrees with the Hearing Officer Opinion. The record was closed on June 8, 1998.

II. Analysis

A. Standard of Review

Part 710 provides that if, after considering all the factors in light of the relevant criteria, the OHA Director is of the opinion that it will not endanger the common defense and security and will be clearly consistent with the national interest to grant or continue access authorization to an individual, he shall render an opinion favorable to the individual; otherwise, he shall render an opinion adverse to the individual. 10 C.F.R. § 710.28(d). As discussed below, after reviewing the record in this case, I cannot conclude that it would be clearly consistent with the national interest to restore the access authorization of the Individual.

B. Whether the Individual Has Met His Burden of Resolving the Security Concern

As a preliminary matter, I note that the although the Hearing Officer found that the Individual’s omissions were deliberate, such a finding was not necessary to the Hearing Officer’s conclusion that the Individual had not mitigated the security concerns under Criteria F and L. Criterion F focuses specifically on an individual’s honesty and candor in the security investigation. Criterion L focuses generally on whether an individual is honest, reliable and trustworthy. Once an individual omits relevant information in the course of a security investigation, the Individual has the burden of providing information that mitigates the Criteria F and L concerns, including information that the omissions were not deliberate and not otherwise a security concern. If the Individual fails to provide such information, the Criteria F and L concerns remain unresolved and the Individual is not eligible for a clearance. In this case, the Hearing Officer found that the Individual’s explanations at the hearing were not credible. That was a sufficient basis for the conclusion that the Individual did not resolve the Criteria F and L concerns. A hearing officer need not make an affirmative finding that the omissions were deliberate in order to conclude that the concerns are unresolved.

In his Statement of Issues, the Individual identifies only one issue for review, i.e., the cause of his omissions concerning his prior drug use and traffic offenses. The Individual contends that those omissions were symptoms of his substance abuse problems, which he has now overcome. As explained below, the Individual has not mitigated the Criteria F and L concerns.

Even if the Individual’s contention on appeal were true, the Individual’s testimony at the hearing is not credible, and it cannot be attributed to his prior substance abuse problems. The hearing took place in December 1997, long after the time that the Individual identifies as the end of those problems. The Individual testified that he had substance abuse problems until 1996, roughly two years after his last alcohol-related traffic offense. Hrg. Tr. at 132; see also Hrg. Tr. at 114, 120 (counsel for the Individual).

During the hearing, the Individual testified that he did not understand the questions on the forms. The Individual offered semantic excuses, which the Hearing Officer properly found were not credible. On appeal, the Individual ignores his testimony and the Hearing Officer’s assessment thereof, and submits an alternative explanation for his 1995 and 1996 failures to disclose, i.e., that they were a symptom of his substance abuse problems at that time. Thus, just as the Individual gave, during the security investigation, incomplete information concerning his drug and alcohol use, the Individual has now given inconsistent explanations concerning why he gave incomplete information. In any event, since I agree with the Hearing Officer’s finding that the Individual’s explanations were not credible, the security concern regarding the Individual’s honesty has not been resolved.

When a doubt remains about an individual’s honesty, the individual is not eligible for a clearance. As the Hearing Officer stated:

The security program is based on trust, and once an individual has breached that trust, then there is a question as to whether that individual can be trusted to comply with the security regulations.

Hearing Officer Opinion at 10 (citing Personnel Security Hearing (Case No. VSO-0013), 25 DOE ¶ 82,752 (1995)). See also 10 C.F.R. § 710.8(f) (Criterion F, identifying false statements as derogatory information); id. § 710.8(l) (Criterion L, identifying dishonesty as derogatory information); Dep’t of Navy v. Egan, 484 U.S. 518, 531 (1988) (presumption against grant of a security clearance). Accordingly, because the Criteria F and L concerns raised in the Notification Letter remained unresolved, the Individual is not eligible for a clearance.

III. Conclusion

As is evident from the above discussion, the Hearing Officer correctly concluded that the Individual has not met his burden of resolving the security concern that he is not honest. Accordingly, I cannot conclude that a grant of access authorization would be clearly consistent with the national interest. 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 the Individual’s eligibility for 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 findings 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: June 25, 1998

(1)Criterion F concerns information that a person has

[d]eliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, a personnel qualifications statement, a personnel security interview, written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization . . . .

10 C.F.R. § 710.8(f).

(2)Criterion L concerns information that a person 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 . . . .