Case No. VSA-0229 (OHA June 21, 1999)

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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 21, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Case Name: Personnel Security Review

Date of Filing:January 28, 1999

Case Number:VSA-0229

This Opinion considers a request filed by XXXXXXX XXXXXXX (the Respondent) for review of a determination issued by a Hearing Officer on December 22, 1998, under the regulations set forth in 10 C.F.R. Part 710, entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.(1) Personnel Security Hearing, Case No. VSO-0229, 27 DOE ¶ 82,787 (1998). For the reasons set forth below, I affirm the Hearing Officer's opinion in part, and find that the Respondent's access authorization should not be restored.

The Hearing Officer I appointed in this matter was required to consider 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). In his opinion, the Hearing Officer found (1) that the Respondent illegally obtained and used methadone, which raised a security concern under 10 C.F.R. § 708.8(k) (Criterion K), and (2) that this use violated a promise that the Respondent had previously signed to abstain from the use of illegal drugs (Drug Certification) which raised a security concern under 10 C.F.R. § 708.8(l) (Criterion L). The Hearing Officer further found that the Respondent had not mitigated the security concerns raised by this conduct. Consequently, the Hearing Officer concluded that access authorization should not be restored.

On January 28, 1999, the Respondent filed a notice requesting a review of the Hearing Officer's opinion. Subsequently, on February 12, 1999, he filed a detailed statement specifying the matters he requested be reviewed. The DOE Office of Safeguards and Security filed a response, stating that it concurred with the recommendation of the Hearing Officer, and had no additional information to submit in this proceeding.

I. The Relevant Facts

In this case, the road to ruin was paved with good intentions. The Respondent is employed by the protective (guard) force at a DOE facility. During a security investigation conducted in 1988, he revealed that he had used marijuana as a youth. Illegal drug use is a serious security concern, and it is mentioned as one to the types of conduct that can give rise to a security investigation. 10 C.F.R. §§ 710.8-.9. However, while youthful use of illegal drugs does not necessarily prevent an individual from obtaining an access authorization, as is typically the case, the Respondent was asked pursuant to standard DOE policy to sign a Drug Certification in which he promised to abstain from the use of illegal drugs in the future.

The Respondent maintains he had no problem adhering to this promise until he sustained two injuries to his back in late 1992 and 1993. As a result of these injuries, he received prescriptions, both through his personal physician and a walk-in clinic, for pain relievers. After using pain relievers for about a year, he states that he recognized that he had become addicted. In an effort to wean himself of pain relievers, he attended a methadone clinic for several years.(2) There, he received counseling and a daily maintenance dose of methadone (20 mg.). The Respondent became dissatisfied with the methadone program because it was not helping him to accomplish his goal of getting off drugs entirely. As a result, in the fall of 1996, he asked the program to gradually reduce his daily dose of methadone. In December 1996, when his daily dose had been reduced to 5 mg., the Respondent withdrew from the methadone program with the intention of no longer using drugs.

That attempt was not successful. He discovered that he was still addicted. Instead of rejoining the program, the Respondent obtained methadone (about 10 mg. per day) illegally from someone who had a prescription for it. This continued for about a year. On January 12, 1998, the Respondent entered a drug treatment facility. Since that date, the Respondent has not used drugs illegally. He completed an extensive six week rehabilitation program, attends follow-up sessions at the treatment program, and attends AA (and occasionally NA) meetings five to ten times a week. He obtained an AA sponsor soon after commencing treatment. Moreover, he reported his admission to the treatment program to DOE.

At DOE's request the Respondent was evaluated by a consulting psychiatrist. The psychiatrist found that he had a mild drug dependency:


This is a modest quantity and no significant history of escalating doses. Aspects of the typical addict are missing, like buying opiates on the street, escalating doses, binges, or excessive use that would render him in a drug state of mind. I would consider this a very mild degree of opiates dependence. He is apparently dealing with the problem by working his program through AA . . . .

Psychiatrist's Report at 3. It should be emphasized that neither the Respondent's use of legally- obtained pain relievers nor his participation in the methadone program were cited in the Notification Letter as security concerns. The DOE's concern arises from his illegal use of methadone when he failed in his attempt to free himself of drugs entirely.

At the Hearing, the Respondent submitted substantial evidence intended to show that, except for his serious lapse of judgment in obtaining methadone illegally, he is otherwise of excellent character, exercises superior judgment, and has been an exemplary employee. The record indicates that during the period that he was addicted to prescription pain relievers and methadone, he was twice cited for actions that he took to help save the lives of individuals undergoing medical emergencies. At the Hearing, the Respondent presented the testimony of 10 friends, supervisors, and coworkers (including the Chief of the local Protective Force) and submitted affidavits from two more. The record also contains a petition in support of the Respondent signed by 17 coworkers.

II. The Hearing Officer’s Opinion

The Hearing Officer noted that the Respondent's violation of the Drug Certification is a serious matter because it violated the trust upon which the DOE security program is based. He also noted that the Respondent's illegal use of methadone violated DOE's and his employer's drug policies. 27 DOE at 85,732. Although the Hearing Officer was "unaware of any other act of untrustworthiness or unreliability" and found that the Respondent "recognizes the seriousness and significance of his actions," he concluded that the Respondent had not resolved the Criterion L security concerns raised by his disregard of the Drug Certification he had signed. Id.

With respect to the Respondent's methadone dependence, and the security concerns which arose under Criterion K, the Hearing Officer took notice that a large number of security professionals had expressed "complete confidence" in the Respondent's ability to safeguard classified information. Id. He also found that the Respondent "is sincerely committed to obtaining the personal growth needed to avoid future drug use." Id. However, the Hearing Officer found that the Respondent had not been abstinent long enough to demonstrate that he was rehabilitated. In doing so, Hearing Officer examined the DOE psychiatrist's assessment that the Respondent would need to show two years of abstinence to establish rehabilitation. The Hearing Officer noted in this regard that in a number of other cases, psychiatrists had stated that one year of abstinence was usually sufficient. He also referred to the DSM-IV, which noted that, generally, an individual may be considered in "sustained remission" after twelve months of abstinence. Id. at 85,731. Nonetheless, the Hearing Officer found that the ten months that had elapsed between the Respondent's last use of methadone and the date of the Hearing was insufficient to demonstrate that he was rehabilitated. Id. Accordingly, he was unable to conclude that the Respondent had mitigated the DOE's security concerns, and he recommended that the Respondent's security clearance not be restored. Id. at 85,732-33.

III. Respondent's Contentions

The Respondent does not challenge any of the relevant facts presented above. His argument focuses upon his work record and the extend of rehabilitation which has occurred. He cites the supporting testimony of the witnesses in this proceeding, which include a number of his supervisors and co-workers. These are individuals in the security field who work with the Respondent on a day-to-day basis and who know him well. He notes that they consistently testified that they have never seen him do anything that would endanger personnel, property, or the national security, and that they do not foresee him ever doing something of that nature. They also testified that they would be comfortable working with the Respondent if he is restored to full duty.

The Respondent also contends that he has demonstrated sufficient rehabilitation. He argues that the DOE psychiatrist's assertion that two years abstinence is necessary to demonstrate rehabilitation does not give any weight to the psychiatrist's own finding that the Respondent's degree of addiction was very mild. In connection with this request for review, the Respondent submitted (i) an affidavit dated February 11, 1999, in which he states that he has not illegally used any drugs since he entered treatment in January 1998, and (ii) the results of a drug test administered on February 2, 1999, which were negative.

IV. Standard of Review

As a general rule, I will not set aside findings of fact made by a hearing officer in these types of cases unless they are clearly erroneous. Compare Pullman Standard v. Swint, 456 U.S. 273 (1982), with Amadeo v. Zant, 486 U.S. 214, 223 (1988) (quoting Fed. R. Civ. P. 52(a)). See also Oglesbee v. Westinghouse Hanford Co., 25 DOE ¶ 87,501 (1995). In rendering findings of fact, a hearing officer considers the demeanor and credibility of witnesses, as well as the appropriate weight to be given to their testimony and other evidence. Personnel Security Review (Case No. VSA-0049), 25 DOE ¶ 83,002 at 86,512 (1995). Therefore, I will not ordinarily substitute my judgment for that of a Hearing Officer in such matters. Id. However, the essential facts in the present case are not in dispute. Rather, the issue here is whether under these facts, allowing the Respondent to hold a security clearance would endanger the national security. This is a legal or policy question for which I need not give deference to the opinion of the Hearing Officer.

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 Respondent.

V. Analysis

A. The Respondent's Methadone Addiction (Criterion K)

It is undisputed that the Respondent was addicted to methadone. Addictions of this type raise serious security concerns, as they depend upon secrecy and may cause individuals to act contrary to the national security.

The critical issue in this case, however, is whether the Respondent has demonstrated sufficient rehabilitation. As noted above, the Respondent has not used drugs illegally since January 11, 1998. At that time he entered an intensive six-week drug treatment program. He successfully completed that program. Since then he has attended followup sessions at the treatment facility, but his primary source of support has been AA. He promptly obtained a sponsor and has attended AA (and occasionally NA) meetings regularly. He has remained drug free.

In his report, the consultant DOE psychiatrist who evaluated the Respondent indicated that the Respondent is undergoing appropriate treatment and that his prognosis is good. Psychiatrist's Report at 3. However, he stated that the Respondent would need two years of being drug free to demonstrate the he is rehabilitated. Although he was not scheduled to testify, the psychiatrist was contacted by telephone during the hearing and asked the basis for his finding that the Respondent would need to show two years of abstinence. He stated that it was not based upon a individualized evaluation of the Respondent, but upon studies that show that the longer a the period of abstinence, the lower the probability of relapse. According to the psychiatrist, of former addicts who eventually relapse, 70 percent will do so within the first year and 95 percent will do so within the first two years. Transcript of Hearing at 79. As indicated above, in his Opinion, the Hearing Officer questioned the psychiatrist's conclusion that two years of abstinence would be necessary, noting that psychiatrists in other cases have found one year to be sufficient.

It is certainly true that the longer a former addict has gone since using drugs, the more likely that he will remain drug free. However, I am troubled that the psychiatrist did not base his determination of what constitutes rehabilitation upon his medical evaluation of the Respondent, but solely upon statistics showing that the longer a former addict has gone without using drugs, the greater the chance of success. The psychiatrist testified that while he may be more confident that some people may be more successful at rehabilitation than others, he does not know of any reason why he would ever deviate from the two-year standard. As the psychiatrist's determination was not based upon an individualized medical diagnosis of the respondent , it would be equally reasonable for me to rely upon the opinions of other psychiatrists in other cases that one year would constitute sufficient rehabilitation. Consequently, it is not entitled to the same deference that would be due a medical finding. The psychiatrist, by focusing entirely upon general statistics, was in essence deciding what is an acceptable degree of risk. That is a matter for DOE to decide.

Moreover, the circumstances surrounding Respondent's addiction include a number of factors that would indicate a higher likelihood that the Respondent will remain drug free, and consequently, favor the use of a shorter period of abstinence to demonstrate rehabilitation. These factors include:

It would be inappropriate to accord major significance the psychiatrist's opinion regarding how long the Respondent should remain abstinent, since it was not based upon a medical evaluation of the Respondent and neither considered the factors outlined above nor provided any convincing explanation of why they would not be relevant. Consequently, the Respondent might well be able to demonstrate rehabilitation with less than two years abstinence.

However, ultimately the burden is on the individual to demonstrate that allowing him to hold a security clearance would be consistent with the national interest. The Respondent has failed to satisfy that burden with respect to his demonstration of rehabilitation. In particular he did not present testimony by the person who was responsible for his treatment program or any other expert medical testimony that he has been sufficiently rehabilitated. Consequently, while the Respondent has submitted substantial evidence of his good character, and circumstances in this case indicate that he may have achieved rehabilitation, there is no credible medical testimony on this issue. I am therefore unable to find that the Respondent has established that he is rehabilitated.(3)

B. The Drug Certification (Criterion L)

As the Hearing Officer noted, violation of a promise to DOE to refrain from the illegal use of drugs is a serious matter. It constitutes a violation of the trust upon which the DOE security program is based. Persons who violate such an important promise are more likely to violate the rules governing the safeguarding of classified information. 27 DOE at 85,732. Nonetheless, I find that the Hearing Officer did not give sufficient consideration to the unusual circumstances of this case.

This is not a case like many others we have seen in which an individual violates a drug certification as a result of peer pressure, or voluntarily takes drugs to get "high" or to mask some unpleasantness in his life. The Respondent's illegal use of methadone was not recreational in nature, but was the result of legal use. It is clear that this addiction troubled him deeply, and he violated the Certification only when he failed in his effort to get off methadone. While I cannot condone the Respondent's lack of good judgment in procuring methadone illegally instead of either returning to the methadone program or seeking other medical help, the record indicates that in other matters the Respondent consistently exercises excellent judgment. It is clear that the Respondent deeply regrets this lapse in judgment. Here the testimony of the Respondent's witnesses is highly relevant. They consistently testified to his good character and reliability.

Moreover, it is also relevant that the Respondent voluntarily reported this lapse of judgment to DOE. Unlike most such cases, DOE had no independent basis to suspect illegal drug use had taken place. Had the individual not disclosed the situation, it is unlikely to have come to light. I find that the individual acted with integrity when he told DOE of his illegal use of methadone, and that it indicates that he has accepted responsibility for his actions. Personnel Security Hearing, Case No. VSO-0255, 27 DOE ¶ ______ (April 26, 1999); Personnel Security Hearing, Case No. VSO-0242, 27 DOE ¶ 82,799 at 85,809 (1999). In this regard, a Memorandum in the file regarding the Respondent's request to be considered for the EAPRO program(4) states:


Subject's violation of the DOE Drug Certification can be waived because he was a self- referral. His illegal drug use was an addiction to a drug used in his treatment after becoming addicted to a prescription drug. He informed DOE of his attempts at reformation and rehabilitation without being the subject of any testing or inquiry.

Memorandum from Lead, Internal Security Team (October 23, 1998). I therefore find that the Respondent's violation of the Drug Certification was atypical of his normal character, and that, except for his decision to obtain methadone illegally, the Respondent exercises excellent judgment. Under these circumstances, I find that the Respondent has mitigated much of the security concern arising from his violation of the Drug Certification. Nonetheless, I note that the Respondent's illegal use of methadone was the result of a powerful addiction. Until he has demonstrated full rehabilitation from that addiction, there is insufficient assurance that there will not be a repeat of this lack of judgment. Consequently, I do not find sufficient evidence of rehabilitation at this time from the Criterion L charge.

VI. Conclusion

As discussed above, I find that the Respondent has not demonstrated that he is rehabilitated from his methadone addiction. Consequently he has not mitigated the security concerns arising from his illegal use of methadone. Similarly, while the Respondent has mitigated somewhat the security concerns arising from his violation of the Drug Certification, he cannot be considered fully rehabilitated until he demonstrates that he is free from the addiction that induced him to violate the certification. 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 restoration of the Respondent’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 Respondent 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 21, 1999

(1)”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 respondent is eligible for access to classified matter or special nuclear material is referred to as an “access authorization” or a “security clearance.”

(2)There is some discrepancy regarding the dates. In the PSI, the Respondent indicated that he had injured his back in 1994 and had attended the methadone program for about one year, while the DOE Psychiatrist reported that he injured his back in 1992 and he attended the program for about three years. The respondent also indicated in his testimony that he attended the program for three years. These discrepancies are not material to this decision.

(3)In Review proceedings, we consider the record at the time that the Hearing Officer issued his determination. New evidence, including the passage of an additional period of abstinence to demonstrate rehabilitation, is not considered. Consequently, while the Respondent may well, in view of the additional passage of time, have achieved rehabilitation in this case, it does not affect the present determination. Instead, evidence of rehabilitation occurring after the Hearing Officer issued his determination can be considered pursuant to a request for reconsideration under 10 C.F.R. § 210.31. Any such request for reconsideration should include a report of a medical evaluation of the Respondent that establishes that he has been rehabilitated.

(4)EAPRO is a program that allows individuals with substance abuse problems to retain their security clearances while undergoing rehabilitation.