Case No. VSO-0012, 25 DOE ¶ 82,754 (H. O. Gray Apr. 4, 1995)

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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 XXXXX's.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: November 22, 1994

Case Number: VSO-0012

This Opinion considers the eligibility XXXXX ("the Respondent") to have his level "Q" access authorization and Personnel Security Assurance Program (PSAP) access authorization restored. The regulations governing the Respondent's eligibility are set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." As explained below, it is my opinion that the Respondent's level "Q" and PSAP access authorization should be restored.

STATEMENT OF THE CASE

On October 11, 1994, the Office of Safeguards and Security (OSS) of the Department of Energy's (DOE) XXXXX Operations Office (the Operations Office) issued a Notification Letter to the Respondent. The Notification Letter charged that the Respondent had engaged in conduct subject to 10 C.F.R. § 710.8(k) (Criterion K) and 10 C.F.R. § 710.8(l) (Criterion L).

Criterion K concerns the use of a drug or other substance listed in the Schedule of Controlled Substances (Section 202 of the Controlled Substances Act of 1970). Criterion L concerns unusual conduct or circumstances that "tend to show [the Respondent] is not honest, reliable, or trustworthy, or that furnishes a reason to believe that he may be subject to pressure or duress that may cause him to act contrary to the best interests of national security." The regulations give several examples of such behavior. The example cited in the Notification Letter is "violation of any commitment or promise upon which DOE has previously relied to favorably resolve an issue of access authorization eligibility."

The Notification Letter explained that the Respondent's conduct caused the OSS to have substantial doubts about his continued

eligibility for access authorization. Because of these doubts, the OSS informed the Respondent that his access authorization was suspended, pending administrative review under 10 C.F.R. Part 710.

In his response dated November 12, 1994, the Respondent requested a hearing to answer the charges in the Notification Letter. The Office of Hearings and Appeals received the case on November 22, 1994, and a hearing was held before the undersigned hearing officer on XXXXXXXXXXXXXXXXX. The Respondent and six other witnesses, three presented by the DOE and three by the Respondent, testified at the hearing. The Office of Hearings and Appeals received the transcript of the hearing on March 10, 1995.

FINDINGS OF FACT

There are no material disputes about the facts in this case. The Respondent has admitted to the factual allegations made in the Notification Letter.

The Respondent has worked as an XXXXX with a contractor at the Operations Office since June 1992. In October 1992, the Respondent was granted a level "Q" access authorization. Although the Respondent did not have access to classified information or materials, he did regularly work in secured areas.

In March 1994, the Respondent was placed in the PSAP.<1>The PSAP provides for continual evaluation of persons who work in highly sensitive positions. At least once a year, each person in the PSAP must undergo a supervisory review, a medical assessment, a management evaluation, and a security determination. The medical assessment includes a comprehensive medical examination, an examination for excessive use of alcohol, and possibly a psychological or psychiatric evaluation. The regulations governing the PSAP provide that the standards for eligibility and procedures for administrative review are the same as those for a level "Q" access authorization. 10 C.F.R. §§ 710.56(c), 710.60(f).

The Respondent was placed in the PSAP because he frequently worked in areas where special nuclear materials were stored. When the Respondent entered the PSAP, he signed a document entitled "Acknowledgment and Agreement to Participate in the Personnel Security Assurance Program." The document states that:

I, [the Respondent], acknowledge that I am seeking to occupy or retain a PSAP position.

I recognize that the Department of Energy (DOE) has the highest of national security and public health and safety interests in assuring that individuals occupying PSAP positions meet the highest standards of human reliability.

I acknowledge that I have been advised of the requirements for occupying or continuing to occupy, a PSAP position. I have also been advised of my responsibilities under the program. The PSAP components, including supervisory review, medical assessment, examination for the use of alcohol habitually to excess, psychological examination, testing for the use of illegal drugs and alcohol abuse, management recommendation, and the DOE security review and clearance determination, have been fully explained to me.

I hereby consent and agree to submit to all components under the PSAP and further consent and agree to cooperate fully with [the contractor] and/or the DOE in the assessment of my eligibility or access to a PSAP position.

In January 1994, the Respondent took a drug test for entry into the PSAP; the results were negative. He also attended a course entitled "PSAP for Employees." In the course, the Respondent learned that employees in the PSAP were subject to periodic drug tests. If a test showed that an employee had used an illicit drug, he would be removed from the PSAP position and his PSAP certification would be revoked.<2>Since the Respondent signed the PSAP form, and attended the PSAP course, he was aware that employees in the PSAP were required to abstain from illicit drug use. Thus, while the Respondent remained in the PSAP, he was under an implied commitment to be drug-free. He did not make, however, an explicit commitment to abstain from drugs.

On May 31, 1994, the Respondent returned to work from the Memorial Day holiday. He knew four or five days in advance that he was scheduled for a routine annual medical examination, including a drug test, on that day. The results of the drug test showed that the Respondent had recently used a cannabinoid (i.e., one of the chemical constituents of marijuana or cannabis).

Because of the positive drug test, security personnel at the Operations Office interviewed the Respondent about his involvement with drugs. The Respondent told the security personnel that his drug use originated with a visit he received from a group of three friends.<3>The members of the group, who had been away at college, invited the Respondent on a fishing trip at a nearby lake on the Sunday before Memorial Day. While at the lake, one member of the group produced some marijuana cigarettes. The whole group, including the Respondent, shared five or six marijuana cigarettes.

The Respondent admitted that he was not pressured by the group to smoke the marijuana, but tried it out of curiosity. He was aware that he had the option of postponing his annual physical, but apparently knew so little about the effects of marijuana that he did not think his usage would be revealed on a drug test.

After learning of the Respondent's use of marijuana, his employer set up a drug rehabilitation program for him. The program consisted of ninety Alcoholics Anonymous meetings in ninety days, five sessions with a therapist specializing in treating substance abuse, random drug and alcohol testing, and total abstinence from alcohol and mood-altering drugs. The Respondent completed all the requirements of the program. He was discharged from the program by the therapist in January 1995.

The Respondent was removed from the PSAP in June 1994, and his level "Q" access authorization was suspended in October 1994. The review of the Respondent's eligibility by the security staff at the Operations Office was thus completed before the Respondent finished his rehabilitation program. As a result, the security staff did not consider the Respondent's rehabilitation in reaching the decision to suspend his access authorization.

With respect to Criterion K, the DOE's security concerns arise solely from the marijuana incident. The DOE's security specialist explained the rationale behind the concerns:

An individual involved with illegal drugs becomes susceptible to bribes through the revelation of their drug use or habit, they have to come in contact with the criminal element in order to obtain or purchase the illegal drugs. The individual by their illegal behavior has shown a propensity to disobey the law and place their judgment above the requirements of the law and the DOE security regulations and requirements which serve to protect national security.<4>

With respect to Criterion L, the DOE's security concerns derive from the fact that the Respondent held a PSAP access authorization. The security specialist explained that:

The Department of Energy's personnel security program is built on trust.... Also, an individual that's participating in the PSAP program ... [is] put under more scrutiny ... than the individual with the regular Q clearance in that there are requirements that have to be made ... to participate in this program. And that requirement is to remain drug free, not to become involved in any type of illegal substance. And they have to sign an acknowledgment of understanding of these requirements. And this is training that's given prior to the individual being put in this position. And that ... agreement ... that was made with the Department of Energy was violated more or less by [the Respondent], and that's the concern as far as this criteria is concerned.... [The Respondent] did not use good judgment by ... becoming involved with illegal drugs knowing that the agreement and acknowledgment stated that you will not.<5>

The Respondent was XXXXX years old when the marijuana incident occurred. The incident was the first and only time he had used marijuana or any controlled substance.<6>The Respondent's testimony on this point was consistent and convincing, and there was no evidence alleging otherwise. The fact that the Respondent did not realize his smoking would be revealed on the drug test further suggests his innocence of previous drug use. Both the Respondent's supervisor, who had known him since he was six years old, and the Respondent's fiancee testified that they had never known him to use drugs and were surprised on learning that he had received a positive drug test. Moreover, the therapist concluded in his assessment of the Respondent that the marijuana incident was an experimental use.

In both the security interview and the hearing, the Respondent has assured the DOE that he will not use drugs again.<7>He stated at the hearing that he has "learned his lesson" about drugs. He testified that he learned from his rehabilitation program that the use of drugs "screws up your life, it shortens your life, and it also starts making you lie and cheat."<8>He no longer associates with the group that introduced him to marijuana, and no longer considers them friends.<9>He has been given one random drug test since the incident, which did not detect the presence of any drugs.

The Respondent's therapist testified at the hearing about the Respondent's rehabilitation and behavioral changes since the marijuana incident.<10>The therapist found the Respondent to have a "sincere intention to be clean and sober, that is to use no drugs or alcohol for the duration."<11>In discussing the Respondent's experimentation with marijuana, the therapist observed that:

young age and lack of life experience produces two possible vulnerabilities in the process of experimenting with drugs. I think in many ways those two factors worked against [the Respondent] in his use of cannabis.... I don't think he fully realized the impact it would have if he got caught. And I think when he got caught, it really opened his eyes in a lot of ways. I think he grew up in a hurry, if you will, and realizes that he wants very much to continue his career and doesn't want to jeopardize it in any way.<12>

The therapist did not find any sign that the Respondent had been addicted to a substance. He explained that requiring a client, such as the Respondent, to attend ninety Alcoholics Anonymous meetings in ninety days "is often done where it seems like a person does not have an addiction problem, but has used illegal ... drugs in an experimental or recreational way, and needs to learn about the dangers of the abuse of drugs."<13>

Besides dealing with the issue of substance abuse, the therapist counseled the Respondent on the need to live up to commitments. He found that the Respondent had made important steps toward understanding his responsibility to uphold commitments. At the conclusion of the rehabilitation program, the therapist gave the Respondent a prognosis of "fair to good" for continued compliance and sobriety. He described his prognosis at the hearing as the most positive prognosis available for abstinence from drugs. The therapist explained his prognosis by pointing out that "drugs [and] alcohol are always available in the world, and people have some possibility of making bad choices in their lives.... My belief is that [the Respondent] is not going to use drugs or alcohol in the future."<14>

CONCLUSIONS

I have examined the evidence in light of 10 C.F.R. Part 710, and assessed the credibility and demeanor of the witnesses who gave testimony at the hearing. The regulations require that I make specific findings as to the validity of each allegation in the Notification Letter. 10 C.F.R. § 710.27(c).

The DOE has established the existence of derogatory information regarding the Respondent under Criterion K and Criterion L. Thus, the DOE has established a prima facie case with respect to both criteria. The burden now shifts to the Respondent to show that restoring his clearance would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(d); Personnel Security Hearing, VSO-0002, 24 DOE ¶ 82,752 (January 31, 1995).

In resolving questions about Respondent's eligibility for access authorization, I must consider the relevant factors and circumstances connected with the Respondent's conduct. These factors, which are set forth at 10 C.F.R. § 710.7(c), include "the nature, extent, and seriousness of the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of participation; the age and maturity of the individual at the time of the conduct; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; and the likelihood of continuation or recurrence."

With respect to Criterion K (the use of marijuana), I recognize the importance of the DOE's security concerns as articulated by the security specialist. After considering factors listed in 10 C.F.R. § 710.7(c), however, I conclude that the Respondent's has adequately answered those concerns.

While the Respondent did indulge in an experimental use of marijuana, he does not have a drug habit or propensity toward substance abuse. He was young and inexperienced when he had a chance encounter with the drug. The Respondent has not attempted to purchase or sell an illicit drug, nor has he initiated contact with any person to obtain an illicit drug. The motivation for his conduct was nothing more than thoughtless curiosity. The Respondent found himself inadvertently exposed to marijuana and lacked the maturity at the time to refuse it. Since the incident is known to the DOE and his employer, and the Respondent has already completed a rehabilitation program, there is little opportunity for coercion, exploitation, or duress.

Furthermore, the Respondent has shown his intent to remain clean and sober. He has completed an intensive drug rehabilitation program that included an intensive series of educational meetings of Alcoholics Anonymous and one-on-one interactional sessions with a therapist. At the conclusion of the program, he received a favorable prognosis from his therapist. On his own initiative, he severed ties with the other persons involved in the marijuana incident. Finally, the Respondent has given the Department credible assurances that he will not use drugs again. His involvement with drugs is unlikely to recur.

Considering the factors set forth at 10 C.F.R. § 710.7(c), I find that the Respondent has successfully mitigated the DOE's security concerns with respect to Criterion K.

With respect to Criterion L (the violation of the PSAP commitment), I find again that the Respondent has satisfactorily answered the security concerns. The Respondent's exposure to marijuana came about without planning or forethought on his part. Other than this isolated incident, the Respondent has not exhibited behavior that would suggest he is irresponsible or lacks good judgment. He has taken responsibility for his actions. At the hearing, he admitted that he had "learned his lesson" and matured, and his therapist evaluated him as having shown marked growth and increased sense of responsibility since the incident.<15>Moreover, he has proved his ability to fulfill a commitment by completing an intensive rehabilitation program.

Considering the factors set forth at 10 C.F.R. § 710.7(c), I find that the Respondent's involvement with drugs was an unpremeditated, one-time occurrence, uncharacteristic of the Respondent's conduct as a whole. The Respondent's immaturity at the time was a significant factor in his conduct. His violation of the PSAP commitment is unlikely to recur due to his intensive rehabilitation program and growth in maturity.

I cannot conclude that one mistake, arising from youth and inexperience, demonstrates that the Respondent is irresponsible or lacks good judgment. I therefore find that he has successfully mitigated the DOE's security concerns with respect to Criterion L.

In view of the criteria set forth in 10 C.F.R. Part 710, I find that restoring the Respondent's access authorization and PSAP status would not endanger the common defense and security and would be clearly consistent with the national interest. It is therefore my opinion that the Respondent's level "Q" access authorization and PSAP access authorization should be restored.

The regulations governing this proceeding provide that either the DOE's Office of Security Affairs or the Respondent may file a request for review of this Opinion. 10 C.F.R. § 710.28(a). The request must be filed within thirty calendar days of receipt of this Opinion. Within fifteen calendar days of filing such a request, the requesting party must file a statement specifying the issues upon which it seeks review. The other party may file a response to the statement of issues. It must do so within twenty calendar days of receipt of the statement of issues.

All submissions must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Avenue, S.W., Washington, D.C. 20585. In addition, a party must send a copy of each of its submissions to the other party.

Warren Gray

Hearing Officer

Office of Hearings and Appeals

<1>The PSAP is described at 10 C.F.R. Part 710, Subpart B.

<2>According to the local PSAP administrator, the policy of the Operations Office provided that if an employee received a positive drug test, he would be removed from the PSAP before any consideration had been made of his efforts at rehabilitation. Transcript (Tr.) at 77.

<3>For the Respondent's account of the marijuana incident, see Personnel Security Interview (PSI), dated June 16, 1994; Tr. at 22-23.

<4>Tr. at 9.

<5>Tr. at 10-11.

<6>PSI at 13; 16; 36; 45-46; Tr. at 23. The Respondent has occasionally used alcohol in the past, but gave it up because it causes him severe indigestion. Tr. at 42.

<7>PSI at 37; Tr. at 23.

<8>Tr. at 24.

<9>Tr. at 25.

<10>The therapist is a licensed independent social worker, a board-certified diplomate in clinical social work, and a certified employee assistance professional qualified to evaluate alcohol and drug problems. He has 18 years of experience as a social worker, and 15 years of experience in the field of employee assistance. Tr. at 37-38.

<11>Tr. at 42.

<12>Tr. at 43-44.

<13>Tr. at 40.

<14>Tr. at 46.

<15>Tr. at 26; 46; 88.