Case No. VSO-0023, 25 DOE ¶ 82,761 (H. O. Schwartz July 21, 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

Dates of Filing:March 7, 1995

July 11, 1995

Case Number:VSO-0023

VSZ-0003

VSZ-0004

This Opinion concerns the continued eligibility of XXXXX (hereinafter referred to as "the individual") to hold a level "Q" access authorization<1> under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." Several months ago, the individual's access authorization was suspended at the direction of the Manager of the Department of Energy's XXXXX Operations Office (DOE/XXXXX) pursuant to the provisions of Part 710. In this Opinion, I will consider whether, based on the record before me, the individual's access authorization should be restored. As indicated below, I am of the opinion that the individual's access authorization should not be restored at this time.

I. Background

The individual has been employed for approximately nine years by XXXXX, a DOE contractor that performs construction, maintenance, utility and engineering work for the XXXXX.<2>During this time, the individual received a "Q" clearance from the DOE enabling him to work at the facility. In 1993, the individual took a drug test, on which he tested positive for marijuana. This prompted the DOE to conduct a personnel security interview (PSI) with the individual, which took place on July

28, 1994. In that interview, the individual admitted that he had smoked marijuana once in 1993, but that he had never smoked marijuana before or since that occasion. After subsequently learning that the individual had also tested positive for marijuana in a test given in 1992, the results of which had not been reported to the DOE, a further interview of the individual was conducted on October 27, 1994. During this interview, the individual stated that he did not remember smoking marijuana in 1992, but admitted to using marijuana twice during the period 1976-1980, when he was serving in the Marines.

The DOE/XXXXX determined that the information obtained regarding the individual's past drug use and lack of candor was substantially derogatory and created questions regarding the individual's eligibility for access authorization. Accordingly, the DOE/XXXXX's Manager suspended the individual's level "Q" access authorization and obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

On January 26, 1995, the DOE/XXXXX commenced the administrative review proceeding by issuing a letter to the individual notifying him that the DOE possessed information which created a substantial doubt concerning his continued eligibility for a "Q" access authorization. See Letter from XXXXX, Assistant Manager for Management and Administration, DOE/XXXXX, to the individual (January 26, 1995) (hereinafter Notification Letter). The Notification Letter specifically identified the derogatory information at issue and explained how that information came within the purview of two criteria set forth in 10 C.F.R. § 710.8, i.e. (f) and (k). In addition, the Notification Letter informed the individual of his right under the regulations to file a written response to the derogatory information and to request a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his continued eligibility for access authorization.

On February 16, 1995, the individual filed with the Manager of the DOE/XXXXX a request for a hearing concerning this matter. The DOE/XXXXX transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA) Director pursuant to the provisions of 10 C.F.R. § 710.25(a) on March 7, 1995. The OHA Director appointed me as Hearing Officer in this case on March 14, 1995. I convened a hearing in this matter in XXXXX, on XXXXXXXXXXXX.

At the XXXXXXXXXXXX hearing, the individual was represented by an attorney and testified on his own behalf. In addition, the individual called the following three witnesses to testify on his behalf: Mr. XXXXXXXXXXXXXX, a clinical social worker who provided drug rehabilitation services to the individual, XXXXX, the individual's former supervisor, and XXXXX, the individual's current supervisor. The DOE/XXXXX also presented two witnesses at the hearing, Ms. XXXXXXXXXXXXX, a DOE Personnel Security Specialist, and XXXXX, an employment supervisor at XXXXX.

II. Substantive Regulatory Criteria At Issue

As noted above, the Notification Letter issued to the individual on January 26, 1995, included a specific description of information in the possession of the DOE that the agency regards as derogatory and which, in the opinion of the DOE, creates a substantial doubt as to the individual's eligibility to hold a "Q" clearance. According to the Notification Letter, the information can be categorized as falling within the ambit of two regulatory criteria, subsections (f) and (k) of 10 C.F.R. § 710. 8. Criterion (f) concerns information which reveals that a person has

[d]eliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, a personnel qualifications statement, 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 (k) describes information that a person has

[t]rafficked in, sold, transferred, possessed, used, or experimented with a drug or other substance listed in the Schedule of Controlled Substances established pursuant to Section 202 of the Controlled Substances Act of 1970 (such as marijuana, cocaine, amphetamines, barbiturates, narcotics, etc.) except as prescribed by a physician licensed to dispense drugs in the practice of medicine, or as otherwise authorized by law.

10 C.F.R. § 710.8(k).

III. Preliminary Procedural Matters

Before considering the bases on which the DOE/XXXXX relies for suspending the individual's access authorization, I will address a number of procedural challenges that the individual raised at the onset of the hearing, some of which I refrained from ruling on until the record could be more fully developed. These challenges consist of the following: a motion to dismiss based on the DOE/XXXXX's lack of authority to conduct the proceeding (OHA Case No. VSZ-0003); a claim of unfair, selective enforcement of the access authorization regulations by DOE/XXXXX in violation of 10 C.F.R. § 710.4(b); and a motion to strike certain documentary evidence (OHA Case No. VSZ-0004).<3>

A.Motion to Dismiss

The individual's attorney moved to dismiss the proceeding because there was no evidence in the record that certain initial procedural steps had been followed. Tr. at 8-10. As he correctly pointed out, sections 710.10(d) and 710.21(a) require that following a decision to suspend an individual's access authorization, the Manager of the appropriate DOE Operations Office must request, and receive, from the Director of the Office of Safeguards and Security the authority to conduct an administrative review proceeding. After establishing that the entire file was not in the possession of the DOE Counsel, the individual or me, I did not rule on this motion prior to the hearing, but rather left the record open to obtain testimony on this matter. Through the Personnel Security Specialist, we learned that the documents prepared in satisfaction of these requirements are generally not made part of the administrative review materials. Tr. at 34. During the hearing, the DOE Counsel agreed to provide these documents to the individual's attorney. Tr. at 119. After reviewing the documents, the individual's attorney renewed his motion to dismiss because the letter notifying the individual of the DOE's concern about the individual's eligibility for access authorization was delivered to the individual in violation of 10 C.F.R. § 710.21(a). That section provides that the notification letter must be delivered to the individual within 30 calendar days of the Manager's receipt of the Director's directive. In this case, the letter was delivered to the individual on January 26, 1995, more than 30 days after December 19, 1994, the date on which the Manager received his authority to conduct the administrative review proceeding. Letter from Individual's Attorney to Hearing Officer, June 5, 1995.

I will deny this motion. Based on the documents obtained from the individual's security file and provided after the hearing, it is clear that the Manager had properly obtained authority to conduct an administrative review proceeding regarding the individual's access authorization. Moreover, I see no manner in which the individual's position was compromised by this minor delay. The regulations themselves provide that statements of processing times are "the agency's desired time frames in implementing [these access authorization] procedures. . . . They shall have no impact upon the final disposition of an access authorization . . . and shall confer no rights upon an individual whose eligibility for access authorization is being considered." 10 C.F.R. § 710.34. Therefore, I find that the seven-day delay in delivering the notification letter to the individual was harmless error. Accordingly, I deny the individual's motion to dismiss this proceeding (Case No. VSZ-0003).

B.Request for Further Investigation

The individual's attorney also expressed a concern at the outset of the hearing that the DOE access authorization procedures were being employed against the individual for an improper purpose in violation of the DOE policy set forth in 10 C.F.R. § 710.4(b). He characterized the alleged improper purpose as selective enforcement of the access authorization regulations against members of the individual's ethnic group. Tr. at 12. He presented a response (later labelled Exhibit Y) from the Director of the local DOE operations office's Personnel Security Division to his inquiry into such selective enforcement. He then asked me, pursuant to the regulations, to request the local director of security "to arrange for additional investigation on any points which are material to the deliberations of the Hearing Officer and which the Hearing Officer believes need further investigation or clarification." 10 C.F.R. § 710.26(p). Addressing the DOE's concern that this was the improper forum to address this issue, the individual's attorney relied on Department of the Navy v. Egan, 484 U.S. 518 (1988) and Hill v. Department of the Air Force, 844 F.2d 1407 (10th Cir. 1988) as support for his contention that investigation of potential constitutional violations is relevant to this proceeding. Tr. at 13-14. At that time I stated that I had no evidence before me that indicated any improper purpose and suggested that he attempt to develop his position during the course of the hearing. Tr. at 14.

I have since reviewed Egan and Hill and have concluded that they do not support the individual's contention that this proceeding is the appropriate forum for considering a selective enforcement claim. The relevant portions of those cases hold that the Merit Systems Protection Board and the federal courts lack the authority to "review the merits of grant or denial of security clearances." Egan, 484 U.S. at 530; Hill, 844 F.2d at 1409. I find no guidance in either case that would instruct a hearing officer to entertain a claim of selective enforcement. However, the preamble to the regulations governing this proceeding provides some guidance. The preamble makes it clear that individuals are entitled "to assert affirmative defenses based on the alleged misconduct of DOE agents or officials during any stage of the process for determining eligibility for access authorization." 59 Fed. Reg. 35180 (July 8, 1994). Although I recognize that this language is set forth in the context of affording protection to whistleblowers who allege that the administrative review process may be used against them in reprisal for disclosures of health, safety and environmental concerns or waste, fraud, abuse and mismanagement, the principle expressed is equally applicable to other allegations of improper purpose. Nevertheless, no evidence has been presented in this proceeding to support the individual's assertion of selective enforcement of the access authorization regulations on the basis of race and ethnicity. I will therefore not invoke section 710.26(p) to request further investigation into this issue.

C.Motion to Strike

At the beginning of the hearing, the individual's attorney moved to strike two of the laboratory test reports submitted by the DOE to establish that the individual used marijuana. The first, produced in July 1988 (Exhibit 13), reported evidence of marijuana, yet was not considered a positive test for marijuana because the measurement, while well above normal, fell below the threshold for "positive" in effect at the time. The individual's attorney contends that the DOE has already resolved its concern about the individual's 1988 marijuana usage. The second laboratory report, produced in November 1992 (Exhibit 12), reported that the individual had tested positive for marijuana but, the individual alleges, he was never informed of the positive finding, and was therefore never given the opportunity to respond to or challenge that finding, contrary to the DOE's stated policy of conducting its security program "consistent with traditional American concepts of justice and fairness," 10 C.F.R. § 710.4(a), and the Drugfree Workplace Act, 41 U.S.C. § 701. Tr. at 115. I did not rule on the motion to strike at that time, but rather chose to permit factual development regarding these documents during the hearing. The record is now closed and I will now rule on this matter.

I have reviewed the 1988 laboratory report, a Case Reference Sheet used by the security office to annotate concerns about the report (Exhibit R), and the testimony that was received regarding this report. As a factual matter, I do not concur with the individual's assertion that Exhibit R demonstrates that the DOE resolved its security concerns about the individual after it had received the 1988 report, as his attorney argued. Tr. at 15-16, 120. In fact the recommendation contained in that exhibit indicates quite the opposite: an interview to address possible drug usage, dishonesty and potential for coercion. Exhibit R at 3. Under these circumstances I find that the report, though negative, is relevant and material to determining the issues involved in this proceeding. 10 C.F.R. § 710.26(h) (In ruling on admissibility, "the utmost latitude shall be permitted with respect to relevancy, materiality, and competency."). I will consider the 1988 report as evidence in the record, and as trier of fact I will assign weight to it in accordance with the purpose for which it is used.

As stated above, the individual's motion to strike the 1992 laboratory test report rests on his statements that he was never informed that it included a positive test result for marijuana and, consequently, was never provided an opportunity to challenge these results. Tr. at 16. Therefore, he argues, the 1992 report must be stricken from the record. I do not agree. In contrast to the 1988 test results, the 1992 results established the presence of marijuana metabolites in excess of the threshold concentration level then in effect. These results are clearly relevant and material evidence with respect to the charges at issue in this proceeding. To the extent the results may be less reliable because the individual never had an opportunity to challenge them, I will accord them less weight in reaching my findings. Accordingly, I will deny the individual's motion to strike the 1988 and 1992 laboratory test reports (Case No. VSZ-0004).

IV. Findings of Fact

Based on my consideration of all the evidence in the record in this proceeding, which includes the transcript of the May 31, 1995 Personnel Security Hearing, the documents the DOE/XXXXX submitted to OHA in connection with that hearing, and all other papers the parties have filed with me, I make the following findings of fact:

With respect to the DOE's allegations that the individual used marijuana between 1976 and 1980, and in the years 1988, 1992, and 1993, I find as follows. The individual has admitted that he used marijuana twice while serving in the Marines, during the period 1976 to 1980, and also admits to using marijuana once prior to taking a drug test on November 30, 1993. However, the individual denies using marijuana in 1988 and 1992. The DOE has presented evidence of drug tests taken by the individual on July 26, 1988, and November 12, 1992. The test given in 1988 detected cannabinoids in the individual's urine, but at a level (110 ng/mL) below the threshold for a positive test result (200 ng/mL). The results of the 1992 test were positive for marijuana.

Because it is not disputed that the results of the 1988 test were negative for cannabinoids, there is not sufficient evidence to find that the individual used marijuana in 1988. The threshold level for a positive test was presumably based on the reliability of the test at that time. See Exhibit R. Although the threshold level has since been lowered, such that the concentration reported in 1988 would now (and since 1990) be considered a positive indicator of marijuana usage, the concentration level was not sufficient to be considered positive indication of marijuana usage in 1988. Tr. at 41. It is reasonable when interpreting the results of a 1988 drug test to apply the threshold in effect at that time. Therefore, the 1988 report cannot be interpreted as a positive test for marijuana. Because there is no other evidence that supports the use of marijuana at that time, I must find that there is insufficient evidence to suggest that the individual smoked marijuana in 1988.

As for the 1992 drug test, the individual has presented no evidence to challenge the positive result for marijuana, although he denies that he used marijuana at that time.<4>In this situation, I am faced with a conflict of inconsistent evidence: a laboratory report indicating that the individual used marijuana in 1992 and verbal assertions by the individual that he did not. In my opinion, the individual's veracity, at issue in this proceeding, is not so unimpeachable that it outweighs the documentary evidence of marijuana usage. I therefore conclude that the individual did smoke marijuana in 1992, as alleged by the DOE.

With respect to the DOE's allegation that the individual "[d]eliberately misrepresented, falsified, or omitted significant information" in a 1984 Personnel Security Questionnaire (PSQ), a 1990 Questionnaire for Sensitive Positions (QSP), and a July 1994 PSI, I find as follows. First, though the individual now admits that he used marijuana twice between 1976 and 1980, he responded "no" to a question on a October 12, 1984 PSQ which asked whether he had been "a user of any narcotic, hallucinogen, stimulant, depressant, or cannabis (to include marijuana and/or hashish) . . . ." Exhibit 8. Similarly, in his July 28, 1994 PSI, the individual stated that he could not recall ever smoking marijuana prior to 1993, despite his use in the 1976-1980 period and in 1992. In his hearing testimony, the individual contended that he did not mention his 1976-1980 usage at his July 1994 PSI because he did not remember it until he was specifically questioned about this period at his October 1994 PSI. Tr. at 107. I do not find this testimony credible. During his October 1994 PSI, however, the individual indicated that he did not disclose his prior marijuana use on his 1984 PSQ because he feared he would not get a job, and stated that his reason for not mentioning his prior use in his July 1994 PSI was "probably fear of losing my job . . . ." See Transcript of October 27, 1994, Personnel Security Interview (hereinafter October 1994 PSI Tr.) at 36, 39. These statements are inconsistent with his testimony at the hearing that he simply did not remember the earlier marijuana use: under one rationale, the individual denies having any memory of using marijuana, while under the other, he remembered but chose not to divulge. Moreover, the individual continues to deny using marijuana in 1992, despite persuasive evidence to the contrary. My common-sense impression is that the individual has not been forthright with the DOE with respect to his marijuana usage. I therefore find that the individual deliberately omitted information regarding his prior drug use from both his 1984 PSQ and his July 1994 PSI.

However, the DOE has not shown that the individual was dishonest in his answers to the 1990 QSP. The individual responded "no" to the following question on the QSP: "Do you now use or supply, or within the last 5 years have you used or supplied, marijuana, cocaine, narcotics, hallucinogens, or other dangerous or illegal drugs?" Exhibit 7. The only evidence in the record that could contradict this statement is the results of the 1988 drug test, which are discussed above.<5> However, because this evidence has already been found to be inconclusive on the question of whether the individual smoked marijuana in 1988, the record does not support a finding that the individual deliberately omitted information from the 1990 QSP.

V. Analysis

The applicable DOE 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 will consider in rendering a determination concerning the individual's access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding his conduct, including knowledgeable participation; the frequency and recency of his conduct; his age and maturity at the time of the conduct; the voluntariness of the 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 or material factors. 10 C.F.R. §§ 710.7(c), 710.27(a). It is the totality of these facts and circumstances that will guide me in evaluating whether the individual's access authorization should be restored. As will be discussed below, after careful consideration of the record in view of the standards set forth in 10 C.F.R. Part 710, I find that the DOE/XXXXX properly invoked the criteria set forth in the Notification Letter in suspending the individual's "Q" clearance. I further find that the arguments advanced by the individual in his defense mitigate the security concerns with respect to the security concerns underlying only one of the two criteria. Therefore, it is my opinion that the individual's access authorization should not be restored.

The DOE/XXXXX relies on 10 C.F.R. § 710.8(f) and (k) as the bases for suspending the individual's "Q" access authorization. Since the falsification charge, based on section 710.8(f), stems from statements the individual made regarding his marijuana usage, I will begin by examining the evidence about the nature and extent of his involvement with marijuana, a discrete charge based on section 710.8(k).

A.Marijuana Use

1. Derogatory Information

To support its contention that the individual has trafficked in, sold, transferred, possessed, used or experimented with marijuana, the agency relies on the following sources of information: (i) transcripts of personnel security interviews (PSIs) held on July 28, 1994 and October 27, 1994; and (ii) reports of drug tests to which the individual submitted on July 26, 1988, November 12, 1992 and November 30, 1993. According to the DOE, the information obtained as the result of the PSIs, taken in conjunction with the drug test reports, reveals a pattern of marijuana use for nearly 20 years. In addition, the DOE/XXXXX offers the Personnel Security Specialist's opinion at the hearing that marijuana usage raises security concerns from the DOE's perspective.

It is clear from the evidence in the record that the individual has smoked marijuana at least three times since 1976. By his own admission he smoked marijuana two times while he was in the Marines between 1976 and 1980. October 1994 PSI Tr. (Exhibit 4) at 17. He also admitted to using marijuana in November 1993 at the July 28, 1994 PSI. Transcript of July 28, 1994 Personnel Security Interview (hereinafter July 1994 PSI Tr.) (Exhibit 3) at 19. This admission is corroborated by a positive test for marijuana taken on November 30, 1993. Exhibit 11 at 2. Each of these episodes falls within the criterion set forth in 10 C.F.R. § 710.8(k). The results of two earlier drug tests, from 1988 and 1992 (Exhibits 12 and 13), are disputed by the individual, who claims that he did not use marijuana between 1980 and 1993. October 1994 Tr. at 18-23.

At the hearing, the Personnel Security Specialist stated the DOE's security concern with respect to trafficking, selling, transferring, possessing, using or experimenting with illegal substances. Any involvement with illegal drugs demonstrates a disregard for the law. Tr. at 28. In addition, an individual who uses marijuana opens himself to blackmail or other forms of coercion, because he may want to conceal his usage. Id. Moreover, while the individual is under the influence of drugs, he "may be less likely to remain silent regarding classified information," and not realize that he is divulging classified information. Id. at 27. Finally, any drug usage while the individual possesses a "Q" clearance and is aware of the DOE's policy of absolute abstention demonstrates poor judgment.

After considering the evidence of marijuana usage in the record in light of the DOE's security concerns as stated by the Personnel Security Specialist, it is my opinion that the individual's behavior regarding marijuana raises a legitimate security concern, and that it was reasonable for the DOE/XXXXX to rely on 10 C.F.R. § 710.8(k) to reach the same conclusion. Even if I were to disregard entirely the 1988 and 1992 test results, I would nevertheless hold the same opinion, because the 1993 episode of marijuana usage triggers this concern.

2. Mitigating Factors

For each admitted or documented episode of marijuana usage, the individual has advanced facts and circumstances that, he contends, mitigate the DOE's security concerns about his marijuana usage. For example, his attorney argues that the two times he admittedly smoked marijuana in the Marines occurred at least 15 years ago, and we must consider that these episodes were neither frequent nor recent. Tr. at 22. With respect to the 1988 and 1992 tests, he maintains that he did not use marijuana during that period, and surmises that the positive readings may be accounted for as the result of unknowing ingestion of second-hand smoke from being near others smoking marijuana. Tr. at 104, 108. Finally, he has stated on several occasions that his one-time usage of marijuana in 1993 was forced upon him by his brother, who was injuring himself and threatened not to stop unless the individual smoked with him. See, e.g., July 1994 PSI Tr. at 19, 21; Tr. at 105.

The DOE regulations state that my decision as to access authorization is to be "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). Employing this common-sense approach, even after considering the litany of mitigating factors listed above in the light most favorable to the individual and according little weight to the results of the 1988 and 1992 drug tests, I reach my opinion that the individual's involvement with marijuana-- voluntary or not-- forms sufficient grounds for revoking the individual's access authorization under 10 C.F.R. § 710.8(k).

Nevertheless, after the 1993 incident, the individual elected to pursue an employer-imposed treatment plan as a condition of continued employment. Tr. at 61. As of March 18, 1994, he had completed the terms of the plan, which included attending Alcoholics Anonymous or Narcotics Anonymous meetings five times per week for 90 days, meeting with his mentor, a certified employment assistance professional, at least twice during that period, submitting to random drug tests during the period and for one year thereafter, and abstaining completely from all mind-altering drugs. Id. According to the employment supervisor and the individual's employment assistance professional, both of whom testified at the hearing, the individual successfully completed the program. Tr. at 61, 79. The employment supervisor also testified that the individual had submitted to two random tests since March 1994 and both were negative. Id. In addition, the individual submitted at the hearing the report of a third test taken shortly before the hearing, which also indicated a negative result for presence of marijuana metabolites in the sample. Exhibit X.

The employment assistance professional further testified that, in his opinion, the individual did not have a serious drug problem, had used marijuana only minimally, and appeared "not truly addicted." Tr. at 81. He stated that his diagnosis of cannabis abuse rather than cannabis addiction was borne out during the months of treatment by his observations of the individual's ability to stop using marijuana and maintain his sobriety. Tr. at 81, 84. He also testified that the individual maintained an "entirely positive" attitude toward his treatment. Tr. at 79. Moreover, in October 1994, he reported to the DOE that the individual's marijuana abuse was in remission. Exhibit 15. The individual himself testified that he now abstains from marijuana and his intentions are to abstain from all illegal drugs in the future. Tr. at 110, 112. He also testified that he will avoid being coerced into using illegal drugs by his brother, by avoiding his brother under such circumstances. Tr. at 113.

There is no evidence in the record concerning the amount of time that must pass for the individual to be considered rehabilitated from his particular form of marijuana abuse. There is, however, a good deal of evidence that the individual was presented with a treatment plan, pursued that course of action willingly, and completed it successfully. There is also evidence that the individual remained drug-free for a year beyond the treatment period and, in fact, up to the present. In light of the employment assistance professional's assessment that the individual's level of marijuana usage was minimal and is in remission, I find that this extended period of abstinence, when combined with his successful completion of a employer-prescribed course of treatment and his commitment to avoid being in the presence of persons using illegal drugs in the future, is sufficient basis to convince me that the individual has been rehabilitated from his abuse of marijuana. I therefore find that the individual does not at this time present a security concern sufficient to support the revocation of his clearance on the basis of his use of illegal drugs.

B. Misrepresentation and Falsification

1. Derogatory Information

10 C.F.R. § 710.8(f) sets forth a category of derogatory information, based on misrepresentation, that the DOE considers to create a question concerning an individual's eligibility for access authorization. To support its contention that the individual deliberately misrepresented, falsified or omitted significant information from a Personnel Security Questionnaire (PSQ), a Questionnaire for Sensitive Positions (QSP), or personnel security interview, the agency relies on the following sources of information: (i) transcripts of personnel security interviews (PSIs) held on July 28, 1994 and October 27, 1994; (ii) a PSQ dated October 14, 1984 and a QSP dated July 16, 1990; and (iii) reports of drug tests to which the individual submitted on July 26, 1988 and November 12, 1992. The DOE contends that information obtained during the October 1994 PSI and from the 1988 and 1992 laboratory test reports demonstrates that the individual consistently misrepresented to the DOE his involvement with marijuana. In addition, the DOE/XXXXX offers the Personnel Security Specialist's opinion at the hearing that such falsification raises serious security concerns from the DOE's perspective.

Concerning the issue of falsification, the Personnel Security Specialist stated that "when someone provides false information," either on PSQ or QSP forms or at personnel security interviews, "it creates a doubt in DOE as to whether that person can be trusted, because the personnel security program is a program that's based on trust. And if someone violates that trust, a person loses credibility as to whether they can be trusted to safeguard classified information or security regulations, and therefore it is a concern with DOE." Tr. at 25-26.

I note that all the evidence presented by the DOE indicates that the scope of the individual's misrepresentations is restricted to his use of marijuana. It is clear from the evidence in the record that the individual admitted to smoking marijuana while he was in the Marines between 1976 and 1980. It is also clear that the individual was questioned, both orally and in writing, a number of times since then concerning his history of involvement with illegal drugs. Until his October 1994 PSI, the individual did not admit to using marijuana at any time prior to the November 1993 incident. He has also consistently maintained that he did not use marijuana between 1980 and 1993, despite the existence of the 1988 and 1992 laboratory test reports.<6>

Some of the DOE's enumerated episodes of falsification are based on the individual's alleged drug usage in 1988 and 1992. Specifically, the individual answered "no" to Question 24b on his 1990 QSP, which asked, among other things, whether he had used marijuana within the previous five years. Exhibit 7. In addition, the DOE contends that the individual also lied when, during his July 1994 PSI, he stated that he had never used marijuana before the November 1993 incident. Obviously, these denials of marijuana usage constitute misrepresentations only if the denials were in fact deliberately and falsely made. If I were to conclude that the underlying episodes of marijuana usage did not occur or the weight of the evidence of its occurrence was so light that it should not serve as a foundation for a charge of falsification, then the dependent charge could not stand.

I need not reach a conclusion regarding the DOE's charges of misrepresentation that rely upon the 1988 and 1992 laboratory reports. Even if I interpret those incidents of purported falsification in the light most favorable to the individual, the remaining evidence clearly supports my opinion that the individual misrepresented and falsified information that he provided to the DOE to such an extent that his continued access authorization would endanger the common defense and would not be clearly consistent with the national interest. Setting aside those charges of misrepresentation based on the truth of the 1988 and 1992 reports, the evidence presented in the DOE's submissions and at the hearing establishes that the individual deliberately misrepresented his previous marijuana usage when he answered "no" to question 11A on his 1984 PSQ, which asked, "Are you now, or have you ever been, a user of . . . marijuana . . . except as prescribed by a licensed physician?" Exhibit 8. The individual also deliberately misrepresented his marijuana usage when, during his July 1994 PSI, he repeatedly denied any involvement with marijuana before the November 1993 incident. E.g., July 1994 PSI Tr. at 14, 15, 16, 19, 21, 22, 37, 57.

2. Mitigating Factors

I find the individual's pattern of falsification to be a very serious matter. In considering the mitigating factors set forth at 10 C.F.R. § 710.7(c), I find that they weigh heavily against restoring the individual's access authorization. First, as stated by the Personnel Security Specialist, an individual's trustworthiness is essential to the DOE's security program. Falsification by an individual entrusted with access authorization raises serious, legitimate doubts about whether he should be entrusted with responsibility for safeguarding classified materials. In this case, moreover, the falsification concerns drug abuse, a serious matter in its own right.

At the hearing and at the October 1994 personnel security interview, the individual revealed two different motives for concealing his earlier marijuana usage. In October 1994 he stated that he had feared he might lose his job if he told the truth. October 1994 PSI Tr. at 36; Tr. at 36. At the hearing his position was that in July 1994 he did not think back as far as his Marines experiences:

Q: When you stated to the interviewer in July that you had never used marijuana before, were you lying to her?

A: I didn't feel I was. At the time I didn't remember, I didn't go all the way back to when I was in the service.

Tr. at 103. At the October 1994 PSI, he also stated that the Marines period had been "many years ago," and the occurrences had been few. October 1994 PSI Tr. at 36, 38. I note that these explanations for falsifying are not entirely compatible with each other, and neither truly provides mitigating circumstances for omitting information that was later elicited fairly readily, though not voluntarily, in the course of a PSI. My opinion is that the individual's motivation for falsification was entirely self-serving and, as such, cannot mitigate the falsification charges at issue in this proceeding.

Moreover, the falsifications were not merely the result of youthful indiscretion. Although some of the underlying incidents of marijuana smoking occurred when the individual was in his teens and early twenties, the episodes of misrepresentation continued until less than a year ago. As a mature adult with a wife and three children, he must now be held accountable for his conduct. His pattern of misrepresentation may not be mitigated by lack of maturity.

In arriving at an opinion, the Hearing Officer is required 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 misrepresentation. These are two distinct issues, and present quite different considerations. Although I indicated above that I believe that the individual has shown rehabilitation from marijuana abuse, I do not believe that this showing is necessarily coextensive with or identical to rehabilitation from misrepresentation and falsification.

As an initial matter, I recognize that unlike drug rehabilitation, there is no obvious medical or other type of expert who can appear on behalf of the individual to support rehabilitation from falsification. There are no established programs that can be followed, such as those that exist for drug and alcohol abuse. I must therefore look at the statements of the individual and facts surrounding the falsification incidents to assess whether the individual has rehabilitated himself from falsifying and whether restoring his clearance would pose a threat to national security.<7>

As discussed above, the individual consistently misrepresented his involvement with marijuana. Throughout the hearing, he concentrated on the fact that his own admission concerning drug use in the Marines demonstrates his honesty. See, e.g., Tr. at 21. Although I recognize that this demonstration of honesty may in fact be indicative of the individual's true nature, the evidence in the record shows that he refrained from reporting his drug usage to the DOE for more than ten years, and admitted it only in the course of an investigatory interview. In addition, it came to light at the hearing that he failed to inform his employment assistance professional during the course of treatment of his prior marijuana usage. Tr. at 82. I find that this lack of candor demonstrated a greater concern for concealing potentially harmful information than for ensuring his own rehabilitation from drug abuse.

Other than his demonstration of honesty by admitting to using marijuana while in the Marines, the individual in this case has not presented any evidence of his rehabilitation from falsification. Although he might no longer need to lie about his drug use because he had been rehabilitated, he did not demonstrate that he would not misrepresent other matters to the DOE, should it be expedient to do so. The individual did not indicate that his treatment program included any counseling concerning falsification. In light of the lack of evidence demonstrating that he is unlikely to misrepresent information to the DOE in the future and the lack of other circumstances mitigating the falsifications discussed above, I am not convinced that the individual will be entirely truthful and reliable in his future communications with the DOE.

VI. Conclusion

As explained in this Opinion, I am convinced that the individual has been rehabilitated from his use of illegal drugs for purposes for mitigation of the charges raised by the DOE/XXXXX in invoking 10 C.F.R. § 710.8(k). I further find that the DOE/XXXXX properly invoked 10 C.F.R.§ 710.8(f) in suspending the individual's access authorization. In view of this criterion and the record before me, I cannot find 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. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer's 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 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 within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b). The address to which submissions must be sent for purposes of serving them on the Office of Security Affairs is as follows:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

William Schwartz

Hearing Officer

Office of Hearings and Appeals

<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 variously in this Opinion as access authorization, security clearance, or "Q" clearance.

<2>From 1984 to 1986, the individual worked for XXXXX, the contractor that preceded XXXXX.

<3>The individual also challenged the timing of this hearing, contending that it was taking place beyond the 90-day period permitted under 10 C.F.R. §710.25. As I pointed out at the hearing, the 90-day period commences with the Office of Hearings and Appeals' receipt of the individual's request for hearing, not the date of the request itself. Transcript of May 31, 1994 Hearing (hereinafter Tr.) at 10-11; 10 C.F.R. § 710.25(g). Because the OHA received the request for hearing on March 7, 1995, the 90-day period was to expire on June 5, 1995, six days after the date of the hearing.

<4>Counsel for the individual contended in his closing argument that passive smoking would be a "reasonable explanation" for the positive test results, but offered no evidence that passive smoking could account for the level of marijuana metabolites found in the individual's urine in 1992. See Tr. at 115.

<5>Although the Notification Letter also cites evidence of the individual's marijuana usage in 1976 to 1980, 1992, and 1993, the DOE Counsel conceded at the hearing that this evidence does not bear on the question of whether the individual used illegal drugs during the five years preceding the 1990 QSP. See Notification Letter; Tr. at 19-20.

<6>I reached the opinion above that there is insufficient evidence to conclude that the individual smoked marijuana in 1988, despite the existence of a laboratory report that indicates that the individual's sample contained traces of the drug. On the other hand, I concluded that the 1992 laboratory report establishes that the individual used marijuana at that time, though the individual raised a number of concerns regarding the reliability of that report.

<7>The individual offered testimony from his current and previous supervisors to support his position that he is a trustworthy worker. Tr. at 85-100. Both supervisors stated that they trusted the individual; both also stated, however, that they had never known him to use illegal drugs. Id. Their testimony, limited as it was to their knowledge of the individual's performance on the job, was unstintingly praising of the individual and leaves me with the impression that he is truly an exemplary employee. This impression, however, is not relevant to the concern of this hearing, because the testimony received from these witnesses related to job performance, not security clearance. An excellent worker, such as the individual, may nevertheless pose a security risk to the DOE, and my responsibility is focused upon the latter area of concern.