Case No. VSA-0371, 28 DOE ¶ 83,015 (OHA December 19, 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.

December 19, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: November 14, 2000

Case Number: VSA-0371

This Opinion considers a Request for Review and Statement of Issues filed by XXXXXXXXXXXXXXXX (the individual) concerning his eligibility for access authorization (1) under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria for Access to Classified Matter or Special Nuclear Material." As discussed below, after carefully considering the record before me in light of the relevant regulations, I recommend against restoring the individual’s access authorization.

I. Background

The events leading to the suspension of this individual’s access authorization are fully set forth in a decision issued by an Office of Hearings and Appeals Hearing Officer. Personnel Security Hearing (Case No. VSO-0371), 28 DOE ¶ 82,767 (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 Operations 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 (f) and (k) (Criteria F and K respectively). (2)

The Criterion K concern expressed in the Letter relates to the individual’s admission that he possessed and used marijuana regularly during a 20 year period, ending in September 1999. With respect to Criterion F, the Notification Letter listed several instances, starting with a 1990 Questionnaire for Sensitive Positions (QSP) and most recently on a 1997 Questionnaire for National Security Positions (QNSP), when the individual allegedly gave false or incomplete statements about his marijuana use. According to the Letter, the individual’s statements on those security forms that he had not used marijuana are contradicted by his admission in a January 13, 2000 Personnel Security Interview (PSI) that he had used marijuana occasionally from the 1970s until September 1999.

The Hearing Officer convened a hearing in order to allow the individual to resolve the doubt regarding his continued eligibility for access authorization. At the hearing, the DOE Counsel did not call any witnesses. The individual testified on his own behalf, and called three other witnesses: his personal psychiatrist, and two of his supervisors at the DOE facility.

II. Opinion of the Hearing Officer

In his Opinion, the Hearing Officer noted that the individual admitted using marijuana sporadically from the 1970s, until September 1999, when marijuana was detected in a positive drug test. That drug test was the last of a series of 12 monthly tests that the individual took as part of his participation in a DOE sponsored rehabilitation program known as SARPO.(3) The individual participated in SARPO in connection with his treatment for alcohol dependence. The Hearing Officer pointed out that the individual admitted using the marijuana as a substitute for alcohol. The Hearing Officer found that the individual has trouble coping with stress without resorting to substance abuse. He considered the positive drug test, coming as it did at the end of a year of monthly testing in the SARPO program, to be a serious relapse, indicating that the individual was out of control at the time. The Hearing Officer determined that the individual had not sufficiently corroborated his claim that he had not used illegal drugs since the 1999 positive drug test. Based on these factors, he concluded that the individual had not resolved the Criterion K security concern. The Hearing Officer also determined that the individual offered virtually no evidence to mitigate the Criterion F falsification concerns. Accordingly, the Hearing Officer found that the individual’s access authorization should not be restored. Personnel Security Hearing (Case No. VSO-0371), 28 DOE at 85,572- 73.

III. Statement of Issues and Response

Pursuant to 10 C.F.R. § 710.28(b), the individual filed a statement setting forth the issues on which he wants me to focus in the review phase of this proceeding (hereinafter referred to as “Statement of Issues,” or “Statement”).

The Statement of Issues raises three issues for my consideration. First, the Statement contends that the Hearing Officer erred in failing to give adequate weight to evidence regarding mitigation of the Criterion F concerns. Second, the Statement argues that, in evaluating whether the individual had mitigated Criterion K concerns, the Hearing Officer failed to give appropriate consideration to the fact that in the past two years the individual used marijuana on only one occasion. Third, the Statement maintains that the Hearing Officer failed to analyze the favorable testimony of the individual’s supervisors and accord it due weight.

The DOE Office of Safeguards and Security filed a Response indicating that it did not wish to submit any additional information in this case.

IV. 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).

V. Analysis

As discussed below, I see no errors of any kind in the Hearing Officer’s analysis or in his overall conclusion.

A. Mitigation of Criterion F Concerns

The Statement maintains that the individual has resolved the Criterion F concerns regarding falsification, because during the January 13, 2000 PSI, he admitted to drug use. The Statement claims that the Hearing Officer should have given greater consideration to this admission by the individual, and to the fact that he voluntarily sought help for his alcohol and drug problems.

I do not agree. In filing the false QSPs, the individual lied to the DOE for about 10 years regarding his use of marijuana. Thus, the dishonesty in this case took place over a very long period. I am unimpressed by the argument that the security concern about this falsification is mitigated by the fact that the individual “admitted” use of marijuana, and voluntarily sought help. The individual only revealed his long-standing pattern of marijuana use after he had a positive drug test. I do not consider this to be a voluntary admission of illegal drug use that might support mitigation of a Criterion F security concern. See Personnel Security Review (Case No. VSA-0289), 27 DOE ¶ 83,025 (2000), affirmed (OSA May 18, 2000). When confronted with the positive results of the drug test, the individual would have been hard pressed to plausibly deny that he used marijuana. (4) Further, given the fact that his disclosure took place less than one year ago, I do not believe that the individual has demonstrated a sufficient period of honesty with the DOE to establish his reliability. See id. at 86,615-16.

The Statement points to the work record of the individual as evidence of his reliability, claiming that this should help mitigate the Criterion F concerns. This argument is inapposite. As the Hearing Officer stated in his written opinion, the DOE security program is based on trust, and once an individual has breached that trust, a serious question arises as to whether that individual can be trusted to comply with the security regulations. Personnel Security Hearing (Case No. VSO-0371), 28 DOE at 85,573. The fact that the individual may be reliable on the job does not overcome security concerns involving his overall personal trustworthiness that arose through his falsehoods to the DOE.

Based on the foregoing, I cannot find that the Criterion F security concerns have been resolved.

B. Mitigation of Criterion K Concerns

The Statement points out that 10 C.F.R. § 710.7(c) requires the Hearing Officer to consider the extent and frequency of the conduct at issue, whether there has been rehabilitation or reformation and the motivation for the conduct. The Statement argues that the Hearing Officer failed to give consideration to the fact that, with the exception of a single instance of the positive drug test in September 1999, the individual has been drug free for two years. Further, the Statement claims that by the time of the hearing, the individual had been drug free for one year. The Statement also indicates that the individual did not use marijuana frequently and his sporadic use of the drug was related to family crises and recovery from alcoholism. The Statement contends that the Hearing Officer should have specifically considered these factors under Section 710.7(c) as mitigating the Criterion K security concerns.

These arguments do not persuade me that the Criterion K concerns are not real security risks. A key factor here is that the individual has not provided sufficient corroboration of his factual contentions about his drug use since the September 1999 positive drug test. As the Hearing Officer found, there is very little evidence in this case to support the individual’s claim that he has in fact been drug free during the past year. Not testing positive on any of the drug tests that took place from October 1998 through August 1999 sheds no light on whether the individual has remained drug free since his use in September 1999. The individual offered his own testimony on this point. However, as the Hearing Officer noted, this testimony is “inherently suspect because it is in the individual’s interest to minimize that use.” Personnel Security Hearing (Case No. VSO-0371), 28 DOE at 85,572. The individual’s psychiatrist reported seeing no evidence that the individual had turned to drugs or alcohol to cope with stress at any time during the year after the positive drug test. Transcript of Hearing at 16. The Hearing Officer found this testimony not persuasive, because the psychiatrist had only a limited opportunity to observe the individual during the past year, seeing him only during six office visits. Personnel Security Hearing (Case No. VSO-0371), 28 DOE at 85,572.

After reviewing the record in this case, I see no error in those findings. Our consistent position in these types of cases is that individuals must corroborate assertions that they have been abstinent from drug use. See e.g., Personnel Security Review (Case No. VSA-0139), 27 DOE ¶ 83,001 (1997), affirmed (OSA April 2, 1998). The individual has provided no significant corroboration for his position that he did not use drugs during the past year. For example, he did not bring forward any witnesses who were familiar with his life style and who could knowledgeably testify that he did not use illegal drugs in the past year. See Personnel Security Hearing (Case No. VSO-0232), 27 DOE ¶ 82,788 (1999), affirmed (OSA, February 26, 1999). In view of the foregoing, I find that the individual has not shown that he has refrained from using marijuana during the past year. Accordingly, the Criterion K concerns in this case have not been resolved.

C. Testimony of Individual’s Supervisors

The Statement of Issues contends that the Hearing Officer failed to give specific consideration to the testimony of the individual’s supervisors. The Hearing Officer did discuss the testimony of those individuals. He noted that they both stated that the individual was a conscientious and reliable worker who showed no signs of drug or alcohol use on the job. Personnel Security Hearing (Case No. VSO-0371), 28 DOE at 85,571.

Even if the Hearing Officer did not specifically analyze the weight to be accorded this testimony, I see no error. It is obvious that the individual’s performance on the job is not a significant issue in this case. The security concerns here relate to this individual’s use of drugs and his falsification on QSPs. These actions bear on the individual’s behavior outside the actual workplace and continue to be of concern, even if the individual did not use alcohol or drugs at work.

In sum, after reviewing all the evidence in this case and I find no reason to disturb the result reached by the Hearing Officer.

VI. 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: December 19, 2000

(1)Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a). Such authorization will be referred to from time to time in this Opinion as access authorization or security clearance.

(2)Criterion K includes information that an individual has ”possessed, used or experimented with a drug. . . listed in the Schedule of Controlled Substances. . . (such as marijuana). . . .” Criterion F includes information that an individual has “deliberately misrepresented, falsified, or omitted significant information from a. . . Questionnaire for Sensitive Positions. . . .”

(3)The first eleven drug tests were negative.

(4)In fact, at the PSI, the individual first attempted to explain the positive result by suggesting that it came about as a result of passive inhalation. He then admitted that he used marijuana in September 1999. PSI Tr. at 10.