Case No. VSA-0321, 28 DOE ¶ 83,007 (OHA June 29, 2000)

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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 29, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: May 15, 2000

Case Number: VSA-0321

This determination considers a Request for Review and Statement of Issues filed by the Office of Safeguards and Security (OSS) of the Department of Energy (DOE), concerning the eligibility of XXXXXX(hereinafter “the individual”) to hold an access authorization. (1) The 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-0321), 27 DOE ¶ 82,842 (2000). 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 on a 1998 Questionnaire for National Security Positions (QNSP) that he had illegally used marijuana within the previous seven years. During a follow-up Personnel Security Interview (PSI) he admitted that he used marijuana while maintaining a security clearance from June 1993 through January 1998.

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, knowing that it was against the law.

A hearing was convened by an Office of Hearings and Appeals (OHA) Hearing Officer in order to allow the individual to resolve the doubt regarding his continued eligibility for access authorization. The DOE Security Office presented a DOE Personnel Security Specialist and called the individual. The individual testified on his own behalf and called four witnesses: a clinical psychologist; two friends; and a colleague.

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 that Opinion, the Hearing Officer noted that the individual stated that he had used marijuana six times over the period June 1993 through January 1998. The Hearing Officer described the testimony of the psychologist who stated that she had counseled the individual about relationship issues since 1994, and that no evidence of a substance abuse problem had surfaced during her counseling. The Hearing Officer also cited the psychologist’s testimony to the effect that she believed that the individual was telling her the truth about what was happening in his life.

The Hearing Officer further referred to an evaluation report submitted by a physician who formulated a diagnosis of “cannabis abuse, episodic, in full remission.” (2) This physician stated that he considered the individual to be a “valid historian.” The Hearing Officer also found convincing the testimony of the individual’s two friends who believed that illegal drug use is not a part of the individual’s life-style. The Hearing Officer further pointed out that the individual had entered into an agreement with his employer requiring him to submit to at least 12 random drug tests during the next 12 months. The Hearing Officer believed that this process would help to ensure that the individual would remain drug-free in the future. In addition, the Hearing Officer found that two years had passed since the individual’s last drug use. Based on these findings and on the favorable testimony of the witnesses, the Hearing Officer concluded that the individual had resolved DOE’s Criterion K security concerns.

The Hearing Officer further found that the individual had also resolved the Criterion L security concerns. In this regard, the Hearing Officer pointed out that the individual had voluntarily admitted using marijuana on his QNSP, and had also admitted that the usage was a serious mistake. He stated that since the individual had reformed his behavior, he was not likely to use marijuana again in the future.

The Hearing Officer therefore concluded that the individual’s access authorization should 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 fact that the individual self- reported his marijuana use. The OSS contends that the Hearing Officer did not fully consider the fact that the individual used marijuana for five years before revealing it to the DOE. The OSS was also not convinced by the individual’s statement of how he came to use marijuana for the first time. OSS further contends that the individual has not adequately supported his version of the circumstances in which he used marijuana, the amount of the usage, or his assertion that he stopped using the drug in 1998. Based on these considerations, the OSS contends that the individual has not mitigated the Criteria K and L security concerns.

In his response to the Statement of Issues, the individual points out many passages in the Hearing Officer Opinion that were strongly in the individual’s favor. The individual contends that the OSS has failed to identify any errors of fact or law in the Opinion that would warrant overturning that determination. The individual further maintains that the OSS has misconstrued his testimony to make his marijuana use appear more frequent than he stated. Accordingly, the individual argues that I should sustain the Hearing Officer’s determination.

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), aff’d (OSA December 31, 1996).

IV. Analysis

In the present case, I recognize that the Hearing Officer was conscientious in his review of the witnesses’ testimony and 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, 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 erred. In his Opinion, the Hearing Officer stated:

There is no evidence that the Individual’s marijuana use is any more extensive than he has reported. There is, however, strong evidence that his marijuana use was sporadic and limited to a relatively short period in the past.

Slip op. at 4.

After reviewing the entire record in this case, I find that, apart from the individual’s own assertions, there is little if any evidence to support the finding of short term, sporadic use. While the individual’s own testimony provides some evidence regarding usage, it is inherently suspect because it is in the individual’s interest to minimize that use. Accordingly, without some corroboration, it is not convincing. E.g., Personnel Security Hearing (Case No. VSO-0273), 27 DOE ¶ 82,814 (1999), aff’d, Personnel Security Review (Case No. VSA-0273), 27 DOE ¶ 83,026 (1999), aff’d (OSA June 9, 2000).

I emphasize that my intent here is not to review the Hearing Officer’s determination that the witnesses at the hearing were credible. I do not find error with his assessment that they were truthful. However, I believe that the Hearing Officer gave undue weight to the testimony of the psychologist, but did not fully consider all aspects of her testimony. I find that the Hearing Officer inappropriately relied on the evaluation letter of the physician. Further, I do not believe that the individual’s friends provided significant testimony in this case. I also find that there was insufficient evidence on the circumstances of the individual’s admitted drug use, and on whether he ceased using drugs in January 1998, as he testified. In this regard, the individual failed to bring in his father and a neighbor, persons he identified as having some direct knowledge of his marijuana use. He could also have brought forward his former wife, who might have provided some information about this issue for the period prior to their separation. 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 reviewing the record in this case, I noted some important contentions raised by the individual that the Hearing Officer did not mention in his opinion. The individual attempted to mitigate the seriousness of the drug use by stating that (i) his first use was unwitting, by eating marijuana-laced cookies; (ii) he never bought the substance, but that it was given to him in small amounts; (iii) he only used it twice a year, and inhaled two puffs per use; (iv) he never used it for recreational purposes, but only to ease back pain; and (v) he learned to control his back pain without marijuana, and therefore did not use it after January 1998, when he revealed it to the DOE. Transcript of Personnel Security Hearing (Tr.) at 61-65, 79-80.

These allegations, if true, might tend to reduce the seriousness of the drug use, because they suggest a lack of intent with respect to the first use, followed by only minimal and very infrequent use, which was for the purpose of controlling pain. Moreover, according to the individual he never made a purchase of the drug.

In these security proceedings, we expect that an affected individual will bring forward corroborating evidence to support the position that the security concerns have been resolved. Personnel Security Review (Case No. VSA-0139) 27 DOE ¶ 83,001 (1997), aff’d OSA (April 2, 1998). Thus, in cases involving use of illegal drugs, we expect the individual to support a claim that the use was minimal, infrequent or unknowing. E.g., Personnel Security Hearing (Case No. VSO-0116), 26 DOE ¶ 82,765 (1997), aff’d, OSA (April 8, 1997).

In this case, the individual has never introduced any evidence to corroborate the asserted mitigating circumstances. He has not brought forward any of the individuals who knew of the marijuana- laced cookies, or those who allegedly gave him the small amounts of marijuana. He stated that he discussed with a neighbor his use of marijuana to control back pain, and that they used some marijuana together for pain management. Tr. at 86-87. However, he did not offer this person as a witness to provide corroboration. The individual stated that he had discussed his marijuana use with his father, but did not call his father as a witness to recount what the individual told him about the drug use. Tr. at 84, 86. Overall, the individual has not offered any evidence to support any aspect of his version of his marijuana use. (3)

Similarly, there is no support for his claim that he has not used marijuana since January 1998. I note in this regard that the individual agreed with his employer to submit to 12 random drug tests for a period of one year. (4) However, this agreement was signed on February 3, 2000. Thus, the agreement, and any tests performed pursuant to the agreement would not support the individual’s claim of a two-year period beginning in 1998, in which he did not use marijuana.

A critical aspect of the individual’s case is that the use was minimal and for medicinal purposes only, that he never purchased the drug, that it was given to him in small amounts and that there has been no use since January 1998. I find that the Hearing Officer erred in not considering that no explicit, corroborative evidence from knowledgeable witnesses was produced on these points.

The Hearing Officer relied instead on the testimony of the psychologist, the written evaluation of the physician and the testimony of the individual’s two friends. I do not believe that the Hearing Officer properly analyzed this evidence.

I have reviewed the psychologist’s testimony and found no evidence that resolves the Criteria K and L security concerns at issue here. The psychologist testified that she did not believe the individual has a substance abuse problem. She stated that this type of problem would have surfaced during the course of his treatment. She testified that regular clients would be likely to give her a “cue” about drug use by making remarks such as, “I was fuzzy because I smoked some dope.” Tr. at 11. She stated that the individual never raised his drug use with her until he asked her to appear at the hearing. See generally Tr. at 11-16.

I do not believe that this testimony provides serious support for the individual’s version of the circumstances of his drug use. As an initial matter, the psychologist’s testimony addresses an irrelevancy, an issue that is not the DOE’s concern. She indicates that she does not believe that the individual has a “substance abuse problem.” However, the Criterion K issue to be resolved here relates to the circumstances of the individual’s drug use: the frequency, extent and purpose of his use of marijuana, and whether he is reformed.

The psychologist did not elucidate any of these points, nor did she have the expertise to do so. The psychologist was specifically counseling the individual for relationship issues. She did not focus on possible drug use, and presumably did not administer any tests to detect drug use. She was privy only to what the individual was willing to tell her about this issue. She accepted at face value the individual’s report that he used marijuana infrequently, but she had no independent knowledge to support her belief. Tr. at 17. I am simply not persuaded from her testimony that the psychologist would have been able to discern regular, recreational use by this individual, if he intentionally concealed it from her. I find that since the psychologist was familiar with this individual only in the context of relationship counseling, she could offer no competent testimony on the overall circumstances of this individual’s drug use, or on whether he had ceased using drugs in 1998, as he claimed. Her views on this individual’s drug use are not grounded in any real knowledge, and should thus be accorded little weight.

Similarly, the physician’s written evaluation does not provide significant evidence on the issue at hand. The physician diagnosed the individual with “cannabis abuse. . . in full remission,” and stated that the individual was not “dependent” on marijuana. Drug dependence is not an issue here, nor is drug abuse. As stated earlier, the issue here is the frequency, extent and purpose of this individual’s admitted marijuana use, and when he ceased usage.

The physician’s views on these matters are unenlightened. He seems to accept that the individual first used marijuana unsuspectingly, but he has no independent knowledge of this point. While the physician stated in the evaluation that the individual appeared to be truthful, he also noted that his conclusions were “based entirely on information available to me at the time of dictation, if the patient was not truthful, if he was withholding significant information from me, then logically the conclusions are likely invalid.”

Since the physician had no in-depth knowledge of this individual, he necessarily had to rely on the individual’s own version of events. Thus, the caveat that the physician offered was a red flag for these purposes. It means we should accord weight to his opinion only to the extent we find the individual’s account of his drug use is true. The individual could certainly have appeared truthful to the physician, but without some independent knowledge of this individual’s history, the physician was not well-equipped to offer a reliable opinion on this individual’s marijuana use. As stated above, in these security review proceedings, an individual’s version of the events surrounding his drug use are inherently suspect and must be corroborated if they are to carry any weight. Seeing no corroboration of the individual’s assertions regarding his marijuana use, I find that the physician’s uninformed reliance on the individual’s truthfulness weakens the value of his opinion.

Moreover, as I stated above, the physician did not appear as a witness at the hearing. Rather, his opinion was only presented by means of the evaluation letter. Consequently, there was no opportunity to examine or cross examine the physician regarding his views. I therefore find that the physician’s evaluation does not materially help to mitigate the security concerns in this case.

I also find that the testimony of the individual’s friends sheds little light on the important issues in this case. They did not socialize with the individual frequently at all. One witness testified that she and the individual met approximately two or three times a month. Tr. at 94-95. The other witness indicated that he was at the individual’s home about 40 times in eight years. Tr. at 52. Neither witness seemed to have any real familiarity with this individual’s drug use, even though they shared other personal information. Tr. at 55, 68, 95. Under the circumstances, I categorize them as social acquaintances. They cannot provide any insight into how extensive his actual drug use was, or the circumstances of that usage. They provided no material information regarding the individual’s use of marijuana since January 1998. I am therefore not convinced that this testimony is of any real significance with respect to the issues I have identified.

In sum, it is my judgment that the Hearing Officer in this case gave undue weight to the testimony of the psychologist, and to that of the individual’s friends, as well as to the physician’s written evaluation. The Hearing Officer failed to consider that the individual brought forward no witnesses to corroborate his contentions regarding the circumstances of his marijuana use, and when he ceased using marijuana. E.g., Personnel Security Hearing (Case No. VSO-0139), 26 DOE ¶ 82,790 (1997), aff’d, Personnel Security Review (Case No. VSA-0139), 27 DOE ¶ 83,001 (1997), aff’d (OSA April 2, 1998).

All in all, there is virtually no evidence other than the individual’s self-serving statements to support his position here. Although the individual attempted to mitigate the seriousness of the charges by maintaining that he initially used the drug unwittingly, never purchased the drug, used it very infrequently for medicinal purposes only, and has ceased using the drug since 1998, the individual never provided any corroboration for these points. The risks associated with illegal drug use that were cited by the DOE office remain unresolved. The individual has therefore failed to mitigate the seriousness of the charges brought by the DOE Office.

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: June 29, 2000

(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.

(2)The report states that the physician evaluated the individual at the request of his employer’s Employee Assistance Program. The psychologist discussed the evaluation during her testimony.

(3)The individual did submit some information to show that in 1996, he consulted a physician about back problems.

(4)The individual did not submit the results of any tests performed under the agreement.