Case No. VSA-0448 (OHA October 25, 2001)

For full history of this case, and links to other cases, click here.

* 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.

October 25, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: September 10, 2001

Case Number: VSA-0448

This Opinion considers a Request for Review and Statement of Issues filed by XXXXXXXXXXXX (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 Personnel Security Hearing (Case No. VSO-0448), 28 DOE ¶ 82,816 (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.

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(f), (k) and (l) (Criteria F, K and L). (2)

With respect to Criterion F, the Notification Letter identified the following derogatory information as a security concern: the individual’s deliberate omission of significant information about his illegal drug use from a May 25, 1999 Questionnaire for National Security Position (QNSP), and from a May 2, 2000 QNSP, by responding negatively to a question regarding whether he had illegally used any controlled substances in the previous seven years or while possessing a security clearance. In an October 18, 2000 QNSP, and in a January 30, 2001 Personnel Security Interview, he disclosed that he had in fact used marijuana three times in June 1996. The Criterion L concern as to the individual’s reliability involved the individual’s admitted use of marijuana in June 1996, when he held access authorization. This same marijuana use gave rise to the Criterion K security concern regarding the individual’s use of illegal drugs.

A hearing was convened before an Office of Hearings and Appeals hearing officer in order to allow the individual to resolve the doubt regarding his continued eligibility for access authorization. At the hearing, the DOE presented the testimony of a Personnel Security Specialist, the individual and the individual’s supervisor. The individual presented the testimony of four friends, who stated that they believed him to be honest and trustworthy.

II. Opinion of the Hearing Officer

The Hearing Officer found that the individual had mitigated the Criterion K concerns regarding his use of marijuana.(3) However, she found that he had not resolved the Criterion F falsification concerns and the Criterion L concerns regarding his reliability.

III. Statement of Issues and Response

In his Statement of Issues, the individual argues that the Opinion should be reversed because (i) the Hearing Officer failed to consider and accord due weight to the fact that the individual himself brought the illegal drug use to the DOE’s attention and (ii) the decision is contrary to public policy. The DOE’s Office of Security Affairs (OSA) filed a Response to the Statement of Issues indicating that it did not have any comments regarding the Statement of Issues.

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). She 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). As discussed below, I see no errors of any kind in the Hearing Officer’s analysis of the Criterion F and Criterion L issues, or in her overall conclusion.

V. Analysis

The Statement first contends that the Hearing Officer failed to give appropriate weight to the fact that the individual himself brought the falsifications to the attention of the DOE. In this regard, the Statement points out that the DOE would not have learned of falsification but for the honesty of the individual. The Statement therefore argues that the individual has demonstrated truthfulness and trustworthiness, that he has been rehabilitated from his falsehood and his access authorization should be restored.

I find no error in the Hearing Officer’s determination. I believe that the individual certainly took a step in the right direction by revealing the false statement he made on the QNSPs to the DOE. Nevertheless, I am mindful that the individual perpetuated his falsehood to the DOE for a period of more than four years. During that time he was therefore subject to coercion and duress, a very serious security concern. I do not find that the 11-month period of truthfulness is sufficient in this case to establish that the individual has undergone a behavioral change sufficient to warrant restoration of access authorization. Personnel Security Review (Case No. VSA-0371), 28 DOE ¶ 83,015 (2000); Personnel Security Review (Case No. VSA-0242), 27 DOE ¶ 83,019 (1999). I am not convinced that after a period of only 11 months that this individual has demonstrated that there is little likelihood of further episodes of untruthfulness with the DOE.

The Statement next maintains that disclosures of falsehoods will be discouraged if those who voluntarily come forward are denied access authorization. I am not persuaded that this type of “public policy” argument constitutes an appropriate basis for restoration the access authorization in this case. The standard applicable here is whether the individual has clearly demonstrated that it is in the national interest to grant him an access authorization. The “public policy” argument is thus not particularly relevant to deciding whether this individual meets that standard. Id. at 86,585.

Accordingly, after reviewing the entire record in this case, I see no basis for disturbing the Hearing Officer’s determination.

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: October 25, 2001

(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. Such authorization will be referred to from time to time in this Opinion as access authorization or security clearance.

(2)Criterion F concerns, in relevant part, information that a person has “[d]eliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions,. . . a personnel security interview, written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization, or proceedings conducted pursuant to § 710.20 through § 710.31.” 10 C.F.R. § 710.8(f). Criterion L concerns information that the individual “has engaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of the national security.” 10 C.F.R. § 710.8(l). Criterion K involves information that an individual has “possessed, used or experimented with a drug. . . listed in the Schedule of controlled Substances. . . such as marijuana,” other than as authorized by law.

(3)The Hearing Officer was convinced by the individual’s testimony that the drug use was limited to several puffs from marijuana cigarettes that were offered to him by friends during three hikes in 1996. Based on the alleged brief use and the individual’s assurances that he was committed to avoiding illegal drug use in the future, the Hearing Officer found the Criterion K concern mitigated. The Hearing Officer’s treatment of this issue was inconsistent with our precedents. E.g. Personnel Security Hearing (Case No. VSO- 0232), 27 DOE ¶ 82,788 (1999), aff’d (OSA 2000). The individual presented no corroborating testimony regarding the actual circumstances of his 1996 marijuana use. The Hearing Officer should have cited her attempts to encourage the individual to present corroboration on this point. There was some testimony from the individual’s friends regarding whether he currently uses illegal drugs. Transcript of Hearing at 68, 72-73, 88. The Hearing Officer should have analyzed this testimony, and discussed whether she believed it was convincing, rather than relying solely on the individual’s own statements about his current use of drugs. Personnel Security Hearing (Case No. VSO-0273), 27 DOE ¶ 82,814 (1999), aff’d, 27 DOE ¶ 83,026 (1999), aff’d (OSA 2000).