Case No. VSA-0418, 28 DOE ¶ 83,024 (OHA June 5, 2001)

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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 5, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: April 24, 2001

Case Number: VSA-0418

This Opinion considers a Request for Review and Statement of Issues filed by XXXXXXXXXXXXXXXXXXX (the individual) concerning her request 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 approving the individual’s request for access authorization.

I. Background

The events leading to the instant Request for Review are fully set forth in a decision issued by an Office of Hearings and Appeals (OHA) Hearing Officer. Personnel Security Hearing (Case No. VSO- 0418), 28 DOE ¶ 82,795 (2001). I will not reiterate all the details of that case here. For purposes of the instant security review, the relevant facts are as follows.

The individual applied for a DOE access authorization at the request of her employer, a DOE contractor. A DOE Operations Office learned of certain derogatory information about this individual, in connection with that application. That Office issued a Notification Letter to the individual, citing derogatory information that falls within 10 C.F.R. § 710.8(f) and (l) [hereinafter Criteria F and L]. (2) The Notification Letter stated that during a June 2000 Personnel Security Interview (PSI), the individual indicated that she had not used marijuana since 1978, but about six weeks later, in July 2000, told a DOE consultant psychiatrist that she used marijuana one time, during February or March of 2000. She made this revelation only after the psychiatrist informed her that he was going to send her to a laboratory for some tests, one of which could uncover marijuana use within the past several years, by analyzing a hair sample. This inconsistent response from the individual regarding when she last used marijuana created a Criterion F concern involving falsification. The Notification Letter also cited as a Criterion L security concern the fact that the individual used marijuana during the time she was a DOE contractor employee and while she was aware of the DOE’s policy against use of illegal drugs by employees at the facility.(3)

The Hearing Officer convened a hearing in order to allow the individual to resolve the doubt regarding her eligibility for access authorization. At the hearing, a DOE personnel security specialist, the consultant psychiatrist and the individual testified.

II. Opinion of the Hearing Officer

The Hearing Officer determined that the Criteria F and L concerns had not been resolved. The Hearing Officer considered the individual’s testimony that she had not disclosed the recent drug use because she feared losing her job, and because she thought the question in the PSI as to when she had last used marijuana referred to “habitual daily use.” The Hearing Officer also considered two supporting letters, one from a friend of the individual, stating that the individual is trustworthy and does not use illegal drugs, and the other from the individual’s supervisor, asserting that she is an outstanding employee. The Hearing Officer further noted that the individual admitted that her marijuana use was an error in judgment, and that she no longer associates with the friends who offered her the marijuana. Nevertheless, the Hearing Officer concluded that this evidence did not overcome the Criterion F security concern regarding falsification. He specifically pointed to the recency of the illegal drug use, and the fact that she revealed it only as a result of a threat of a drug test using a hair sample.

With respect to Criterion L, the Hearing Officer found that the individual had not mitigated the honesty and reliability concerns associated with the drug use incident. He noted that the individual knew of the DOE’s policy regarding illegal drug use by employees at the facility. The Hearing Officer also stated that marijuana use violates federal and state law. He pointed out that the individual’s disregard for the law raises additional questions about her reliability and judgment. Finally, referring again to the recency of the marijuana incident, the Hearing Officer determined that the Criterion L security concerns regarding honesty had not been resolved. Accordingly, the Hearing Officer recommended that the individual not be granted access authorization.

III. Statement of Issues and Response

Pursuant to 10 C.F.R. § 710.28(b), the individual filed a statement setting forth the focal issues in the review phase of this proceeding (hereinafter referred to as “Statement of Issues,” or “Statement”). In the Statement, the individual requests that in reviewing the record, I take the following considerations into account: (i) she voluntarily revealed the marijuana use to the DOE; (ii) she recognizes that the marijuana use was a significant error in judgment that she sincerely regrets, and she would like to regain the trust of the DOE; and (iii) the reason she smoked the marijuana was because she was alone on her birthday and she was unhappy.

The Office of Safeguards and Security (OSS) filed a response to the Statement, indicating that it had no additional information to submit 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), aff’d (OSA December 31, 1996). As discussed below, I will not reverse the Hearing Officer’s recommendation in this case.

V. Analysis

After reviewing the Statement of Issues, I cannot conclude that the security concerns have been resolved.

The individual points out as a factor in her favor that she voluntarily disclosed the information about the recent marijuana use to the DOE consultant psychiatrist. The individual seems to be implying that since she revealed the drug use, rather than having been “caught” in a drug test or in some other fashion, the disclosure should be given some special consideration towards mitigating the Criterion F concern. I do not agree. During the PSI, the individual lied about her recent illegal drug use, after promising both orally and in writing to tell the truth. She only disclosed the recent drug use about six weeks later, when she believed there was some risk of discovery. I do not find that disclosure under these circumstances is entitled to any special consideration for purposes of mitigating the Criteria F and L security concerns. See Personnel Security Review (Case No. VSA- 0242), 27 DOE ¶ 83,019 (1999), aff’d (OSA November 22, 1999).

I realize that the individual has admitted error, and expressed remorse for her dishonesty. She has also stated her desire to win back the trust of the DOE. Recognition of error and contrition are certainly important aspects of re-establishing a position of trust with the DOE. However, a subsequent, enduring pattern of responsible, honest behavior is also a key factor in abating security concerns that arise from falsehood. As discussed below, I do not find that such a pattern has been demonstrated here.

As an initial matter, after reviewing the record in this case, I find that the individual has not sufficiently corroborated her assertion that her only use of illegal drugs since 1978 came at a party that she attended in February or March 2001. It is by now a well-established principle in Part 710 administrative review cases that an individual’s allegations purporting to minimize a security concern must be corroborated. E.g., Personnel Security Review (VSA-0273), 27 DOE ¶ 83,026 (1999), aff’d (OSA June 9, 2000). In this case, the only corroborating information that the individual has submitted concerning her alleged one-time drug use is the letter from her friend, referred to above, who stated that in the six years that she has known her, she has not witnessed or heard of any drug use by the individual. This untested, general statement does not convince me that since 1978, the individual used illegal drugs only on one occasion, at a party where marijuana was unexpectedly offered to her. (4)

Further, even if I accept as true all of the individual’s assertions regarding her illegal drug use, the alleged period of honesty has only been about ten months, a rather short time frame. I find that a longer period of truthful, honest behavior is necessary to mitigate the Criteria F and L concerns regarding falsification and trustworthiness. See Personnel Security Review (Case No. VSA-0289), 27 DOE ¶ 83,025 (2000); aff’d (OSA May 18, 2000).

VI. Conclusion

As indicated by the foregoing, I cannot conclude that granting this individual 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 request for access authorization should not be approved. 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 request 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 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 5, 2001

(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)The concerns set forth in the regulations are by now well known and have been cited numerous times. I will therefore not include the regulatory language here. Generally, the concerns relate to providing false information to the DOE (Criterion F); and lack of reliability and honesty (Criterion L).

(3)With respect to Criterion L, the Notification Letter also reiterated as a security concern the fact that the individual was dishonest about her most recent marijuana use.

(4)At the hearing, the individual testified that the recent one-time marijuana use took place sometime after her birthday, at a party with a few other people, and that the marijuana was offered to her. Transcript of Personnel Security Hearing at 30-31. In the Statement of Issues, the individual asserts that the circumstances of the marijuana use were as follows: “I was alone and it was my birthday.” This inconsistency is certainly troubling. It leads me to suspect that even at this late stage of the administrative review process, the individual has not yet been completely candid with the DOE about her illegal drug use.