Case No. VSO-0013, 25 DOE ¶ 82,752 (H. O. Lipton Mar. 23, 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 29, 1994

Case Number: VSO-0013

This Opinion concerns the eligibility of XXXXX (hereinafter "the individual") for continued "Q" access authorization. The regulations governing the individual'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." The Department of Energy's XXXXX Operations Office (DOE/XXXXX) suspended the individual's access authorization under the provisions of Part 710. This opinion will consider whether, based on the record testimony and other evidence presented in this proceeding, the individual's access authorization should be restored.

I. BACKGROUND

This administrative review proceeding was commenced by the issuance of a Notification Letter dated November 3, 1994. In that letter, the individual was informed that information in the possession of the DOE/XXXXX created a substantial doubt concerning his continued eligibility for a "Q" access authorization. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement of the derogatory information in the possession of the DOE/XXXXX that created the substantial doubt concerning the individual's eligibility for access authorization. In particular, it specified the following two areas of concern:

(1) The individual deliberately misrepresented, falsified, or omitted significant information from his Questionnaire for Sensitive Positions (QSP). See Section 710.8(f). [Criterion (f)].

(2) The individual has trafficked in, possessed, and used a drug or other substance listed in the Schedule of Controlled Substances established pursuant to Section 202 of the Controlled Substances Act of 1970. See 10 C.F.R. Section 710.8(k). [Criterion (k)].

The Notification Letter informed the individual that he was entitled to a hearing before a Hearing Officer in order to respond to the information contained in that letter. On November 17, 1994, the individual requested hearing and submitted a response to the DOE/XXXXX's allegations in which he stated that he had been voluntarily involved in a rehabilitation program since February 1994. The individual's request for a hearing was forwarded by the DOE/XXXXX to the Office of Hearings and Appeals (OHA). On December 14, 1994, I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. Section 710.25(e) and (g), the hearing was convened in XXXXX, on XXXXXXXXXXXXXXXXX.

At the hearing, the individual represented himself. The following witnesses were called to testify: (i) a DOE/XXXXX Personnel Security Specialist; (ii) the individual; (iii) an employment supervisor at XXXXX<1>; (iv) an employee in occupational medicine with the XXXXX Employee Assistance Program (EAP); (v) a XXXXX Staff Engineer ; (vi) a XXXXX Stationery Equipment Branch Superintendent; (vii) a XXXXX employee who participated in the Alcoholics Anonymous (AA) Program with the individual.

II. FINDINGS OF FACT

The facts in this case are not in dispute. The individual is an employee with XXXXX. He has worked for XXXXX since January 17, 1991, as a facilities engineer.

The record indicates that on January 18, 1994, the individual was tested for drug use as part of a regular physical examination administered in connection with his employment. The result of the

drug test was positive for use of marijuana. Thereafter, a Personnel Security Interview (PSI) was recommended.

On July 28, 1994, a PSI was held with the individual in order to resolve questions about the drug use and gather further information concerning his access authorization. During that interview the individual admitted that he first used marijuana in 1971 while he was attending college. The individual continued to use marijuana regularly until January 1994, when he quit entirely. During the PSI the individual also said that there were periods in his life when he used marijuana frequently, from several times a week to daily. At other times in his life, he stated that he only smoked marijuana on weekends. The individual indicated that during the period from 1985 through 1990, he used marijuana only on the weekends. Thereafter, until the time of the January 1994 drug test, the individual said that he continued to use marijuana only on weekends, either alone or with friends. The individual also stated that he used hashish, cocaine and speed sometime before 1975. He indicated that he used these substances infrequently. In spite of this regular drug use, the individual admitted at the PSI that he had responded negatively to Question 24(b) of the QSP, "Do you now use or supply or within the last five years have you used or supplied marijuana, cocaine, narcotics, hallucinogens or other dangerous or illegal drugs?"

The record also indicates that soon after the positive drug test, the individual enrolled in a rehabilitation program developed for him by his employer. The program included the following elements: (i) attending 90 AA meetings in 90 days; (ii) meeting once every two weeks for three months with a XXXXX EAP counselor, and then meeting with the counselor once every month for the next three months; (iii) random drug screening for one year; (iv) abstaining from all mood altering drugs; and (v) maintaining the level of work performance required by his supervisor.

III. ANALYSIS

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the DOE/XXXXX and the individual, and to render an opinion based on that evidence. See 10 C.F.R. §710.7(a).

As a practical matter, the process of weighing and balancing the evidence may be viewed in the following way. The DOE/XXXXX counsel must present a reasonable level of evidence to support the derogatory allegations (i.e. present a prima facie case). The prima facie case is detailed in the Notification Letter. The individual then has the burden of going forward with information that would rebut, refute, explain, extenuate or mitigate the allegations. The ultimate burden of persuasion as to whether the individual's access authorization should be granted or restored lies with the individual. The Hearing Officer must decide whether granting or restoring the individual's access authorization would not endanger the national defense and be clearly consistent with the national interest. 10 C.F.R. §710.27(a). This standard implies that there is a strong presumption against the granting or restoring of a security clearance when derogatory information raises security concerns. Consequently, given the significant potential national security issues concerned and the resulting implied presumption against the issuance of a security clearance, it is most appropriate to place the burden of persuasion on the individual.

The regulations state that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a).

Among the factors I have considered in rendering this Opinion concerning the individual's eligibility for access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; his age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct, the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. 10 C.F.R. §§ 710.7(c), 710.27(a).

The discussion below reflects my application of these criteria to the derogatory information presented by the DOE/XXXXX in this case.

A. Use of Illegal Drugs and Rehabilitation

There is a strong factual basis for the DOE/XXXXX's invocation of 10 C.F.R. § 710.8(k) as grounds for revoking the individual's access authorization. As discussed above the individual has admitted to using marijuana over a period of more than 20 years, and has used other drugs for brief periods. The individual has also admitted to purchasing marijuana for his own use.

With respect to Criterion (k), the security concern of the DOE, as stated by the DOE Security Specialist, is that involvement with marijuana reflects a deliberate disregard for state and federal laws prohibiting its use. The drug user puts his own judgment above the requirements of the laws, by picking and choosing which laws he will obey or not obey. It is the further concern of the DOE that the drug abuser might also pick and choose which DOE security regulations he will obey or not obey with respect to protection of classified information. Further, there is a concern for coercion, exploitation and blackmail. Finally, the Security Specialist stated that there is a risk that a drug abuser may inadvertently reveal some classified information while under the influence of the drugs. Transcript of XXXXX Hearing (hereinafter TR.) at 12-13.

However, as stated above, Section 710.7(c) provides that DOE officials shall consider absence or presence of rehabilitation in resolving a question of access authorization. In this regard, I believe that it will be useful here to review, based on the testimony at the hearing and other record information, the DOE/XXXXX's approach to the suspension of access authorizations in drug use cases, in connection with the DOE/XXXXX's consideration of the drug rehabilitation issue. The purpose of this review is simply to shed light on the process that DOE/XXXXX uses to determine whether to suspend an individual's access authorization.

As part of the detailed history taken from the individual concerning his drug use, the interviewer at the PSI extensively questioned him about his rehabilitation program. They discussed the elements of the program, the AA meetings that the individual attended, the number of counseling sessions that the individual attended, the opinion of the counselor that the individual's use level was not serious, the random drug testing that occurred and the individual's assertions that he had fulfilled the requirements

of the program as of the date of the interview. Transcript of July 28, 1994 Personnel Security Interview at 86-100 (hereinafter PSI TR.).

Further, the case evaluation sheet prepared by the interviewer after the PSI described the interview in a narrative form and included a reference to the rehabilitation program. The case evaluation sheet also included a section for recommended outcome. In this instance, the interviewer, who is also considered the case analyst, recommended that the case be referred for an administrative review process. The areas of concern cited by the interviewer included Criteria (f) and (k).<2> Two reviewers concurred with the interviewer's recommendation that the case be referred for administrative review.

At the hearing the DOE Security Specialist was questioned extensively about the DOE/XXXXX's process for suspending clearances in drug use cases and the DOE/XXXXX's review of the rehabilitation progress of an individual whose clearance is suspended due to drug use. The Security Specialist indicated that after an analyst makes a recommendation as to whether an administrative review process should take place, the matter is finally decided by the area manager, after additional review. TR. at 19. The Security Specialist indicated that if, at the time of the decision to suspend clearance, there has been a rehabilitation period of less than one year, the question of whether the individual had been rehabilitated is not considered by the DOE/XXXXX. TR. at 20.

The Security Specialist also indicated that once the recommendation to suspend clearance has been adopted and the case has moved into the administrative review phase, the DOE/XXXXX does not review the matter later to see if rehabilitation has subsequently taken place.

He agreed with the proposition that once the clearance was suspended, there is no second look at rehabilitation at a later point. It becomes the role of the OHA Hearing Officer consider the question of rehabilitation.

Q: So once a respondent's clearance has been suspended, the XXXXX office does not go back and then look at the rehabilitation.... in other words, you will not now review it. We're into the administrative review process and you're not going to look now to see whether the respondent has been rehabilitated now, it's sort of within our purview, the Office of Hearings and Appeals' purview to judge rehabilitation as an issue?

A: Right....

TR. at 24-25.

This testimony suggests that in some cases involving the DOE/XXXXX, the hearing stage may well be the first time that the efforts of an individual to rehabilitate himself from drug use are given full consideration.

The Security Specialist also testified that with respect to the present individual, the DOE/XXXXX had followed the process described above. The Security Specialist indicated that the DOE/XXXXX did not consider whether rehabilitation had taken place at the time the present individual's Q clearance was suspended, because less than a year of rehabilitation had occurred at the time of the recommendation to suspend.

Q: Did anybody look at any rehabilitation factors in this case?

A: I don't believe that was...addressed due to the fact that there was--there had been recent usage. There had been less than a year's rehab.

Q: ...and assuming that there was a year's rehab, what is the way that we come out of this situation? Does security look again now that a year has elapsed and give another review to the rehabilitation issue?

A: I think if we use that method there wouldn't be any need for this process here.

Q: That's what I'm asking, why is this not happening? Why are we here? Why hasn't anybody looked at rehabilitation?

A: Because as far as the Department of Energy is concerned there hasn't been adequate time of rehab.

Q: Even as of today, would you say that as of today?

A: Well, I don't really know....see, he tested positive in January of last year.

TR. at 20-21.

As this testimony indicates, the DOE/XXXXX did not review that suspension again to see whether, after a period of 12 months, rehabilitation had occurred.

In sum, the DOE/XXXXX's determination to suspend the individual's "Q" clearance was made immediately after the PSI, which took place approximately six months after the positive drug test.<3> It appears that at the six-month time frame the DOE/XXXXX essentially adopted a presumption that no rehabilitation could have taken place. Therefore, no real consideration was given to whether the individual was rehabilitated at the time of the decision to suspend clearance.

The DOE/XXXXX did not then revisit the issue of rehabilitation at any later date, apparently taking the position that once an individual's clearance is suspended for drug use, the matter falls within the purview of the Office of Hearings and Appeals Hearing Officer. Thus, at the hearing phase of this proceeding, more than twelve months after the positive drug test, the issue of the individual's rehabilitation is essentially still one of first impression. I will therefore perform the first full review of this matter in this Opinion.

At this point, the individual has brought forth a considerable body of evidence to mitigate the derogatory information, and show that rehabilitation has in fact taken place. His rehabilitation program incorporated the very factors referred to by the Security Specialist.

Specifically, the individual has shown willing and active participation in the XXXXX drug rehabilitation program that he was required to undergo. First, the individual provided evidence that he attended the 90 AA meetings in 90 days, as required by the program.<4> The individual brought forth testimony at the hearing from another XXXXX employee and AA participant, who stated that the individual was an active participant at those meetings and also took a leadership role at some AA meetings. TR. at 67-69.

At the hearing, there was also extensive testimony from an employee in occupational medicine at XXXXX EAP. This witness stated that he is a certified employee assistance professional and a licensed New Mexico clinical mental health counselor. TR. at 74. He indicated that the individual was cooperative during the counseling process and fulfilled all of his obligations under the rehabilitation program. TR. at 73.

The counselor also testified that at the time of the positive drug test, the individual's level of use of marijuana was at the early problem stage. TR. at 72-73. He stated that the individual had not developed a physical dependence on marijuana. TR. at 76. He based this conclusion on the results of two screen devices. The first, the Minnesota Multiphasic Personality Inventory (MMPI), has scales that indicate deviancy, among other activities. This test

indicated that during the assessment phase of the individual's treatment program, "there was a likelihood of an alcohol/drug problem having existed in the past or presently ongoing. Prognosis for therapeutic involvement is good." TR. at 75-77. The individual was also screened through the Substance Abuse Subtle Screening Inventory (SASSI), which is used to measure the individual's level of addiction. The SASSI "indicated a definite characteristic as having potential to be abusive or having been abusive." TR. at 77.

The XXXXX EAP counselor further stated that given that the individual's abuse was in the early stages, a year's abstinence was

a good indication that he would be able to continue with that abstinence, particularly in view of the individual's lifestyle changes. TR. at 84. These changes include the fact that the individual has gotten married and now has a young son, and has made a commitment to spend more time with his family.

The individual's rehabilitation program also required him to maintain an appropriate level of work performance, including attendance, as required by his supervisor. The individual's supervisor testified to his overall excellent performance at work. TR. at 94. The individual's supervisor also emphasized that the individual had fully accepted responsibility for the consequences of his drug use "without reservation, without quibbling, without equivocation." The supervisor described the individual's attitude in the following way: "He says, I'm going to do what's necessary to rehabilitate myself,...and he didn't skip a beat in his stride in doing his job." TR. at 101. This supports the individual's contention that he has accepted responsibility for his action and that he has a strong desire to rehabilitate himself.

The individual also submitted the results of two random drug tests that he had taken since January 1994. Both were negative for drug use.<5> The individual indicated that he has not used any illegal drugs for approximately 13 months. Given that the counselor stated that the individual's level of marijuana use was at the early stage, I find that this 13-month period of abstinence is a sufficient period to gauge whether rehabilitation has taken place.

The individual testified on his own behalf concerning his thoughts about his drug use. In particular, he emphasized his commitment to his family, his resolution to avoid being in the presence of a person using illegal drugs and his strong intention never to become involved with illegal drugs in the future. TR. at 40, 111-113.

There was no direct evidence entered into the record that strongly challenged the individual's rehabilitation. The DOE did not present the testimony of a drug rehabilitation expert or mental health professional to the effect that the individual had not been rehabilitated. The DOE/XXXXX's Security Specialist did not directly controvert the position that rehabilitation has taken place.

The Security Specialist did offer some general testimony regarding rehabilitation from the use of illegal drugs. He indicated that the time necessary for drug rehabilitation to take place varies with the extent of the drug abuse, the time that an individual has devoted to attending support programs, and an individual's overall family support, participation in civic activities and job performance. TR. at 24.

The Security Specialist further testified that in a case with facts such as those presented by the individual, he would say that "good steps" were taken "in recovery and reformation, definitely." TR. at 51. However, he added, "I couldn't say whether ... he has completely recovered or not." Id. When asked his opinion as to rehabilitation in a hypothetical case with facts identical to the instant case, the Security Specialist stated: "I would say that it would be positive." Id. Thus, the testimony by the DOE/XXXXX's Security Specialist did not contravene the position that the individual was rehabilitated, and, taken as a whole, was not unfavorable to the individual on this issue.<6>

I am convinced by this evidence that the individual has shown rehabilitation from use of illegal drugs.<7> He actively participated in the program set out for him by his employer. He

indicated that he has not used illegal drugs for more than one year and he convincingly spoke of his commitment not to use illegal drugs in the future. He pointed out his lifestyle changes, including a commitment to his family. At the hearing, the counselor indicated that after a year's abstinence in a case such as this, there is a likelihood of continued abstinence. TR. at 84. I therefore find that the individual does not at this time present a security concern in connection with the use of illegal drugs.

B. Misrepresentation and Falsification

As indicated above, the DOE/XXXXX's second cause of concern in connection with the individual's security clearance is his falsification on a QSP. On July 16, 1991, the individual completed a QSP on which he certified that he had not within the last five years used marijuana. However, as stated above, he has now admitted that he used marijuana on a daily to monthly basis from 1971 through January 1994, when he tested positive for marijuana. The individual himself recognized the difficulty of rehabilitation from falsification of the QSP document. "There is nothing I can do about the past as far as falsification of the document." TR. at 111-112.

In connection with the falsification, the DOE/XXXXX Security Specialist stated that:

The security program is based on trust, and once an individual has breached that trust, then there is a question as to whether that individual can be trusted to comply with the security regulations. . . . Once an individual breaches that trust . . . there will always be question as to whether that individual can be trusted in the future. . . . I am not aware of anything that can be done when it comes to honesty. Unlike other areas of rehabilitation, I don't believe that there is a period of rehabilitation. TR. at 11-12.

I find this falsification to be a very serious matter. In considering the factors set forth at Section 710.7(c), referred to above, I find that they weigh heavily against restoring the individual's access authorization. First, the issue that the individual falsified concerned illegal drug use, a serious matter. The falsified information certainly was not inconsequential or immaterial.

Further, the extent of the falsification was substantial. As stated above, at the time he completed his QSP, indicating that he had not used illegal drugs within the previous five years, the individual had a 20-year history of regular drug use. This is an extended period of time. In addition, the individual used drugs frequently, even on a weekly basis, virtually until the time of his positive drug test. Thus, while he could have immediately ceased all illegal drug use after falsely completing the QSP, the individual continued the illegal activity for several years after the date he filled out the QSP, thus, in effect, continuing the falsification.

In this regard, in view of his frequent marijuana use, the individual was asked at the hearing how he was able to pass the pre-employment drug test. The individual indicated that he briefly ceased his drug use for the purpose of passing that test. Transcript at 37. See also PSI TR. at 118. This behavior indicates a propensity and a willingness to fashion a scheme for the very purpose of falsification.

Moreover, the falsification was not a mere youthful indiscretion. While the individual was only 18 years old at the time of his first use of marijuana, he continued this use until he was 41. At the time he made the false statement he was 38 years old. Thus, there is no basis for ascribing this falsification to immaturity.

Section 710.7(c) requires a consideration of the motivation for the conduct. At the PSI, the individual suggested that the falsification on the QSP was caused by his own self-denial that he had a problem with drug use. PSI TR. at 110. It is possible that "denial" might cause the individual to respond negatively to a question regarding whether he had a drug problem or abused drugs.

However, the question posed by the QSP was "do you now use or supply or within the last five years have you used or supplied marijuana, cocaine, narcotics, hallucinogens or other dangerous illegal drugs." See PSI TR. at 110. This is a very different sort of question, not calling for a judgment by respondent as to whether he had a problem. It calls for a response of a factual nature.

Given that the individual's own drug counselor found that the individual's level of use of marijuana was at "the early-stage problem level," it is simply not plausible to me that the individual was in such a state of denial over his drug use that he was not aware that he used drugs. The individual's assertions concerning his denial of his drug use are not coherent or convincing. See PSI TR. at 110.

I am thus not persuaded that the individual was completely candid even at the PSI on the very matter of his falsification of the QSP. As the individual finally admitted, when pressed by the interviewer at the PSI, he was ultimately concerned about jeopardizing his job prospects. PSI TR. at 111, 113. In sum, I believe that the real motivation for the falsification was actually that the individual feared he would not be offered a cleared position with XXXXX if he told the truth. This was the testimony of the individual at the hearing. TR. at 35. Thus, the motivation for the falsification was an entirely self-serving one.

In making a determination, the Hearing Officer is required by Section 710.7(c) to consider the absence or presence of rehabilitation or reformation and the likelihood of continuation or recurrence. I believe that it is important here to distinguish rehabilitation from drug use and rehabilitation from falsification. These are two distinct issues, and present quite different considerations. While I indicated above that I believe that the individual has shown rehabilitation from drug use, I do not believe that this showing is necessarily coextensive with or identical to rehabilitation from lying and falsification.

As an initial matter, I recognize that unlike drug rehabilitation, there is no obvious medical or other type of expert that can be brought in by the individual to support rehabilitation from falsification. There are no well-known programs that can be followed, such as the ones that exist for drug and alcohol abuse. I must therefore look at the statements of the individual and facts surrounding the falsification in order to assess whether the individual has rehabilitated himself from the falsehood and whether restoring the clearance would pose a threat to security.

As discussed above, the individual lied about a twenty-year involvement with drugs. He also planned and executed a scheme so that this drug use would not be detected. I am not persuaded that a mere 13-month period during which this individual has refrained from drug use constitutes adequate evidence of rehabilitation from a demonstrated propensity to falsify and conceal derogatory information when it is useful to him.

In fact, in this case, the individual did not present any evidence at all regarding his steps toward rehabilitation from his past willingness to lie. While the individual might no longer lie about drug use, because he has been rehabilitated, he did not present evidence to show that he would not be willing to lie or falsify in the future about other matters, should an occasion arise in which he believed it would be useful to him to do so. The individual did not indicate that the falsification issue was included in his counseling program. Other than his own word, there is no evidence that the individual would not misrepresent in the future.

I note here the extended nature of the individual's misrepresentation, the calculation with which it took place, his dubious assertion at the PSI that the falsification was part of an overall self-denial of drug use, and the fact that only 13 months has elapsed since the misrepresentation was uncovered. Given these facts, I am simply not convinced that the individual has met the burden of persuasion here of establishing rehabilitation with respect to falsification in this case. I am not persuaded that the individual would not be prepared to lie in the future to the DOE if he believed that it would be useful to him.

IV. CONCLUSION

As explained in the above Opinion, I am convinced that the individual has been rehabilitated from his use of illegal drugs for purposes of mitigation of the allegations raised by the DOE/XXXXX in invoking 10 C.F.R. Section 710.8(k).

I further find that the DOE/XXXXX properly invoked 10 C.F.R. Section 710.8(f) in suspending the individual's access authorization, due to his falsification of a response on his QSP. In view of the record before me, I am not persuaded that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I find that the individual's "Q" access authorization should not be restored.

The regulations set forth at 10 C.F.R. Section 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W. Washington, D.C. 20585, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response with 20 days of receipt of the statement.

Virginia A. Lipton

Hearing Officer

Office of Hearings and Appeals

<1>/ XXXXX is the prime subcontractor to the XXXXX, performing construction, maintenance, engineering and custodial work.

<2>/ In the "recommendation section" the interviewer also referred to Criterion (l). Section 710.8(l) includes derogatory information to the effect 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 any 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." This criterion was not raised in the notification letter.

<3>/ The positive drug test took place on January 18, 1994. The record indicates that the decision to recommend an administrative review of the access authorization was made on August 2, 1994.

<4>/ Although the individual was not diagnosed as having an alcohol dependency problem, he was permitted to attend either Narcotics Anonymous (NA) or AA meetings as part of his overall rehabilitation program. This is apparently a common practice in the XXXXX area, since are few NA meetings available in that city. TR. at 38-40. The individual stated that the concepts used by AA

and NA are the same. He indicated that, as instructed by his counselor, he would, in his mind, substitute "marijuana" for "alcohol" when he attended AA meetings.

<5>/ Although the individual's rehabilitation contract with XXXXX specified that he was to undergo twelve random drug tests, he was, in fact, asked to undergo only two. It is not clear why he was not asked to undergo the additional tests. TR. at 87.

<6>/ The Security Specialist's only concern appeared to be that the individual did not continue with the steps outlined in the program beyond those actually required of him. TR. at 52. The DOE's cross examination of the witnesses presented by the individual did not refute their testimony that the individual was rehabilitated.

<7>/ In reaching this conclusion, I bear in mind the other factors set forth in Section 710.7(c), including the nature, extent and seriousness of the conduct, the frequency of participation and the age of the participant. An analysis of these other factors is set forth in Subsection B, below, with respect to the falsification issue. However, in connection with the drug abuse issue, I find that the strong evidence of rehabilitation outweighs the other factors.