Case No. VSA-0242 (OHA August 25, 1999)

* 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.

August 25, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: June 1, 1999

Case Number: VSA-0242

This determination considers a Request for Review and Statement of Issues filed by XXXXX (hereinafter “the individual”) concerning his eligibility to hold an access authorization. (1) The Department of Energy (DOE) regulations governing this matter are set forth at 10 C.F.R. Part 710, and are entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.”

I. Background

The events leading to the suspension of this individual’s access authorization are fully set forth in Personnel Security Hearing (Case No. VSO-0242), 27 DOE ¶ 82,799 (1999). I will not reiterate all the details of that case here. For purposes of the instant security review, the relevant facts are as follows.

A DOE Security Office learned of certain derogatory information about this individual, which caused it to suspend his access authorization. That Office issued a Notification Letter to the individual, citing derogatory information that falls within 10 C.F.R. §§ 710.8(k) and (l) (Criteria K and L).

Criterion K refers to information that an individual has used a controlled substance other than as prescribed by a physician. According to the Notification Letter in this case, the individual admitted during a Personnel Security Interview that he used marijuana in 1996, and had previously disclosed that he had used a variety of illegal drugs between 1979 and 1991.

Criterion L covers information that shows that an individual has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of the national security.” 10 C.F.R. § 710.8(l). To support this charge, the Notification Letter stated that the individual had admitted that he had used marijuana after he had signed a drug certification promising that he would not use illegal drugs while holding a DOE access authorization.

A hearing was convened in order to allow the individual to resolve the doubt regarding his continued eligibility for access authorization. Seven witnesses testified at the hearing. The DOE presented a security specialist, and a former DOE personnel security analyst. The individual testified on his own behalf and presented the testimony of his church counselor, who was certified as an expert witness (hereinafter referred to as “the counselor”), his former wife and two longtime close friends.

Based upon the testimony at the hearing and other evidence presented in this case, the Hearing Officer issued an Opinion determining that the individual’s access authorization should be restored. In the Opinion, the Hearing Officer described in detail the interplay between this individual’s history of drug use and his DOE access authorization. She noted that the individual had first been granted an access authorization in 1979. Between that time and 1986, the individual used illegal drugs on a number of occasions. In 1985, the individual provided false information to the DOE when he completed a Personnel Security Questionnaire (PSQ) and indicated that he had never used illegal drugs. Between October 1989 and June 1991, the individual again admittedly used marijuana on two occasions. Within weeks after the 1991 use, the individual confessed to the DOE that he had again used illegal drugs. Later, in July 1991, he indicated in a Personnel Security Interview that he had used illegal drugs between 1979 and 1989 and that he had smoked marijuana on two occasions between 1989 and 1991.

In 1992, the individual participated in another PSI in which he stated that he had not used any illegal drugs since the previous PSI. He signed a drug certification, as described above. Based on this, a personnel security analyst recommended that the individual be permitted to retain his access authorization. In 1998, during a re-investigation to continue his access authorization, the individual admitted at a PSI that in December 1996 he used a small amount of marijuana during a family gathering.

The Hearing Officer noted that the DOE’s security concerns in this case involve not only the individual’s criminal use of illegal drugs, but also his repeated lying to the DOE about his drug use, She also recognized his failure to keep his promise, memorialized in the drug certification, not to use illegal drugs while holding a DOE access authorization. She stated that these actions raised legitimate concerns about the individual’s reliability, honesty and trustworthiness.

The Hearing Officer also considered mitigating circumstances brought forward by the individual. She noted the individual’s testimony that he had become a born-again Christian in 1989 and that he had been progressing in a relatively steady pattern. He stated that during 1991 through the time of the hearing in 1999, he had used marijuana only once, at the 1996 incident. He supported this contention by bringing forth six voluntary drug tests administered between 1996 and the time of the hearing. He expressed regret over the 1996 drug use, and admitted it was a serious mistake.

The Hearing Officer also referred to the testimony of the individual’s counselor. She noted that the counselor’s assertion that within the church community the individual had a reputation for trustworthiness, honesty and good judgment. The counselor believed that the individual’s use of drugs was not relevant to a determination of his trustworthiness. He also testified that the 1998 confession of the illegal 1996 drug use, was a critical element in reestablishing trust. The counselor stated that because the DOE would not have discovered the drug use without the confession, many people would have liked or failed to disclose the drug use. He believed that the individual’s confession indicates that he has accepted responsibility for his actions.

The Hearing Officer noted the testimony of the individual’s former wife who confirmed that the individual had undergone a personal and religious transformation, and indicated that she has not known him to use any illegal drugs since 1997, when she returned to the area in which the individual’s lives. The Hearing Officer also discussed the testimony of two close friends of the individual. Both of these witnesses stated that they did not believe that the individual was a drug user and believed him to be reliable. One of these witnesses provided additional confirmation of the individual’s deep commitment to his church and to volunteer activities.

In her analysis the Hearing Officer was impressed by the spiritual and personal growth of the individual, in spite of what she referred to as “stumbles” along the way. She gave great weight to the testimony of the counselor who testified that the individual has a good reputation for trust, honesty and good judgment within the church community. She also was impressed by the testimony of the individual’s wife who indicated that the individual had made great improvements in his life. The Hearing Officer also noted the evidence in the record documenting his community volunteer activities.

Based on this evidence she found that the individual use of marijuana in 1996 was the only time that he used illegal drugs since 1991 and found that it is extremely unlikely that he will use illegal drugs in the future. She found that his admission to the DOE that he had used illegal drugs demonstrates that he accepted responsibility. Further, she was impressed by the fact that the individual disclosed the drug use because he believed that he had a moral obligation to do so. She stated that “as a matter of public policy the DOE wants to encourage people to admit previous mistakes.” Based on this evidence she found that the Criterion L security concerns had been mitigated. Similarly, she found that the Criterion K security concerns regarding his overall drug use during the period 1979 through 1996 had been mitigated because of the individual’s radical life-style change, and because of the passage of time since most of the drug use occurred. For these reasons she decided to recommend that the individual’s access authorization be restored.

II. Statement of Issues and Response

In its Statement of Issues, the OSS contends that the Hearing Officer gave improper weight to the religious conversion of the individual. The OSS points out that the individual initially held a DOE access authorization for a number of years during which he failed to reveal that he had lied to the DOE about his drug use. He did not report his illegal drug use until 1991, when he made his first admission on a QSP. Then, even after signing a drug certification in 1992, the individual once again lied until 1998 about another drug use in 1996. The OSS points out that this latter falsehood and failure to keep his promise not to use illegal drugs took place even after the purported religious conversion. The OSS maintains that the individual’s violation of his promise not to use drugs diminishes the purpose of the drug certification and puts into question the sincerity of the individual’s religious conversion.

In his response to the Statement of Issues, the individual reasserts his original position that his 1996 drug use was an isolated event that took place more than two and one half years ago. He states that his last use previous to the 1996 drug was in 1991. He therefore contends that the DOE’s Criterion K concerns regarding his use of illegal drugs should be mitigated. With respect to the Criterion L concerns, the individual states that he has made great strides in his personal life, that he demonstrated his commitment to a drug free life through witnesses who corroborated his assertions about his current life style. He has offered to voluntarily submit to any random drug tests requested by the DOE in order to provide additional assurance that he will not have any further involvement with illegal drugs.

III. Standard of Review

Part 710 provides that if, after considering all the factors in light of the relevant criteria, the Director of the Office of Hearings and Appeals 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 a rule, the Hearing Officer is responsible for considering the demeanor and credibility of witnesses. 10 C.F.R. § 710.27(b). He also assesses the appropriate weight to be given to their testimony. Absent some error, I will not supplant my judgment for that of the Hearing Officer in such matters. Personnel Security Review (Case No. VSA-0084), 26 DOE ¶ 83,004 (1996).

IV. Analysis

In the present case, I recognize that the Hearing Officer was conscientious in her review of the witnesses’ testimony and scrupulously considered their demeanor and credibility. I cannot overemphasize the importance of this evaluation in the overall administrative review process. In consequence, I am ordinarily quite reluctant to overrule such judgments. However, the regulation set forth at Section 710.28(d) requires me to consider whether I believe that continuing the access authorization of an individual will be clearly consistent with the national interest. In this case, for the reasons discussed below, I find that the Hearing Officer made an error and accordingly, I cannot find that recommending this individual for a security clearance will not endanger the common defense and security.

I am in agreement with the Hearing Officer’s conclusion that this individual has made positive steps in his rehabilitation efforts and genuine improvements in his life style, improvements for which he is to be commended. I believe that the individual has brought forward evidence to support such a conclusion, including credible evidence from his wife and the head counselor at his church.

My focus here is not to review the Hearing Officer’s determination that the witnesses were credible. I do not find error with her assessment that they were truthful. However, assuming the truthfulness of this testimony, I am not convinced that the individual has brought forward sufficient evidence to allow me to conclude that his honesty and trustworthiness are at a level that no longer presents a security concern. I believe that the Hearing Officer gave undue weight to the testimony of the counselor, and did not fully consider all aspects of his testimony. After according what I consider to be appropriate weight to the testimony of the witnesses in this case, I find that the individual’s access authorization should not be restored.

In my view, the key issue in this case is whether this individual has brought forward sufficient evidence of rehabilitation to demonstrate that he can now be trusted to be consistently honest and truthful with the DOE. In her discussion of the individual’s violation of his drug certification, the Hearing Officer did not give adequate consideration to what type of evidence the individual had brought forward on this point. She stated that she was impressed by his personal growth, and noted the testimony of the individual’s wife who supported such a conclusion.

She noted that the individual is well known for helping others in the church community, and has a strong support system that will help him remain drug free. She pointed to the church counselor’s testimony that he would be “flabbergasted” if the individual were to use illegal drugs again.

This testimony relates to the likelihood that this individual will use drugs again. I agree with her that this is unlikely. However, evidence on this point is not directly relevant to the DOE’s concern that this individual has repeatedly lied to the DOE regarding his promise to abstain from drug use, and that his latest lie was revealed only approximately one year ago. Thus, it is not sufficient to mitigate the concerns regarding lying to the DOE and violation of his promise not to use illegal drugs while holding a security clearance. The promise the individual gave in the drug certification was not a trifling one. The DOE relied on it and relies on it in many other, similar cases. An individual who enters into one of these agreements must fully understand and appreciate that it requires careful consideration and a serious commitment. I believe that as a general matter, the DOE community nationwide thoroughly apprehends its gravity.

In the present case, the individual has not yet demonstrated a sustained commitment to keeping to his signed promise. I therefore do not consider his overall trustworthiness and reliability to measure up to the standards expected of holders of an access authorization. Specifically, given this individual’s long history of illegal drug use and repeated lying to the DOE about this subject, I find that the approximately one year period in which the individual claims he has maintained his honesty with the DOE is simply not enough to fully abate the risks and concerns associated with his long-term dishonesty and his intentional violation of his promise. I find that the Hearing Officer did not give due weight to this consideration.

I note in this regard that this Hearing Officer was particularly impressed by this individual’s “decision to disclose voluntarily his drug use.” I do not believe that she gave adequate consideration to all the circumstances surrounding this revelation. As an initial matter, the individual only revealed the drug use when he was directly asked if he had used drugs. He did not come forward immediately and admit to the illegal drug use. There was an extended period during which the individual covered up his lie and was certainly subject to coercion, a serious security concern. I recognize that the Hearing Officer placed some importance on her conclusion that the DOE would not have learned about the drug use absent the individual’s revelation. I also note her belief that as a matter of public policy the DOE wants to encourage people to admit their previous mistakes. However, I do not believe that these reasons constitute an adequate basis to restore the access authorization. The standard applicable here is whether the individual has clearly demonstrated that it is in the national interest to grant him an access authorization. Neither of these reasons is particularly relevant to deciding whether the individual meets this standard.

I further believe that the Hearing Officer gave undue weight to the church counselor’s testimony that the individual has accepted responsibility for his actions, has learned from his mistakes and is ready to move on. While these are certainly important steps in a rehabilitation program, they are not dispositive of security concern issues. Acceptance of responsibility for lying incidents, while it denotes a recognition that a problem exists or existed, does not immediately and fully mitigate the security concerns associated with the lying, any more than recognition of one’s own financial irresponsibility mitigates the security concerns associated with excessive debt. It is the subsequent pattern of responsible behavior that is a key in abating the security concerns that arise from irresponsible actions. E.g., Personnel Security Hearing (Case No. VSO-0241), 27 DOE ¶ 82,794 (1999)(eight-month period after bankruptcy was not sufficient to establish a pattern); Personnel Security Hearing (Case No. VSO-0153), 26 DOE ¶ 82,795 (1997)(individual took action to cure his financial problems beginning approximately three years before the hearing and continued that pattern consistently, thereby mitigating the security concern regarding financial irresponsibility); Personnel Security Hearing (Case No. VSO-0013), 25 DOE ¶ 82,752 (1995)(thirteen-month period subsequent to covering up use of illegal drugs did not constitute a sufficient pattern of honest behavior).

Given his long history of lying and drug use, the individual in this case must provide corroboration to demonstrate a significant period of truthfulness before I can consider that the serious security risks associated with his behavior have been fully mitigated. I consider the period of truthfulness of approximately one year that the individual has advanced to be inadequate in the circumstances of this case. I simply cannot find that at this point the individual has displayed a pattern of responsible behavior sufficient to allow me to conclude that he no longer presents a security concern.

In sum, it is my judgment that the Hearing Officer in this case gave undue weight to the testimony of the church counselor and other witnesses in this case. From that testimony, she drew unwarranted conclusions regarding his rehabilitation. I cannot find that this individual has shown that it will be clearly consistent with the national interest to continue his access authorization. Accordingly, I disagree with her determination.

V. Conclusion

As indicated by the foregoing, I cannot conclude that the continuation of this individual’s access authorization will not endanger the common defense and security and will be clearly consistent with the national interest. Accordingly, 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 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: August 25, 1999

(1)An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. §710.5.