Case No. VSO-0044, 25 DOE ¶ 82,780 (H.O. Tao Nov. 22, 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:June 26, 1995

Case Number: VSO-0044

This Opinion concerns the eligibility of XXXXX (hereinafter referred to as "the individual") to retain a level "L" access authorization 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."<1>

I. Background

Since 1978, the individual has been employed XXXXX by the XXXXXXXXXXXXXXXXXXXXXXXX, the management and operating contractor at the Department of Energy's (DOE) XXXXXXXXXXXXXXXX in XXXXXXXXXXXXXXXXXXXX. Since a XXXXX at XXXXXXX may be required to enter structures where classified materials are kept, all XXXXXXX XXXXXX must obtain and maintain security clearances. As part of that process, the Safeguards and Security Division of the DOE/XXXXX Operations Office (DOE Security) periodically reinvestigates all clearance holders to determine whether a reevaluation of their security status is warranted. Following such a reinvestigation of the individual, DOE Security determined that information existed which was substantially derogatory and created questions regarding the individual's continued

eligibility for access authorization. Accordingly, the Manager of the XXXXX Office suspended the individual's level "L" access authorization and obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

On May 24, 1995, the Manager commenced the administrative review proceeding by informing the individual that information possessed by the DOE created a substantial doubt concerning his continued eligibility for an "L" access authorization. I will hereinafter refer to this letter as the Notification Letter. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement of derogatory information possessed by the DOE. Specifically, the Notification Letter included information described in 10 C.F.R. § 710.8(f) and 710.8(l). The Notification Letter also informed the individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his continued eligibility for access authorization.

In a June 8, 1995 letter, the individual requested a hearing on this matter. The Manager forwarded the individual's request to the Office of Hearings and Appeals on June 26, 1995. I was appointed the Hearing Officer in this matter on June 28, 1995. In accordance with 10 C.F.R. § 710.25(f), a prehearing telephone conference was held on September 6, 1995. The hearing was convened at the XXXXXXXXXXXXXXXX in XXXXXXXXXXXXXXXXXXXX on XXXXXXXXXXXXXXXXXX.

Twelve witnesses testified at the hearing. XXXXXXXXXXXX, a Personnel Security Specialist, testified for the DOE. Testifying for the individual were XXXXX all co-workers of the individual, XXXXX, an Employee Assistance Counselor with the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, and the individual himself.

II. Statement of Derogatory Information

As indicated above, the Notification Letter issued to the individual on May 24, 1995, included a statement of derogatory information in possession of the DOE that created a substantial doubt as to the individual's eligibility to hold an "L" clearance. On the basis of that derogatory information, the XXXXX Manager believes that the individual "[d]eliberately misrepresented, falsified, or omitted significant information" from a Personnel Security Questionnaire (PSQ), a Questionnaire for Sensitive Positions (QSP) and a Personnel Security Interview (PSI). See 10 C.F.R. § 710.8(f). Specifically, the Notification Letter states that during PSIs conducted on June 6, 1979 and August 29, 1989, the individual indicated that his use of illegal drugs was limited to trying marijuana twice in 1971 and that he had never used any other types of illegal drugs. During the August 1989 PSI, the individual also stated that he never bought any marijuana. However, during PSIs conducted on May 26, 1994 and July 26, 1994, the individual revealed a far more extensive pattern of drug usage.<2> The individual further explained in his 1994 PSIs that he was untruthful regarding his drug usage because he was afraid of losing his clearance.

The XXXXX Manager's Notification Letter also states that information in the possession of the DOE indicates that the individual has also "[e]ngaged in . . . unusual conduct or is subject to . . . circumstances which tend to show that the individual is not honest, reliable, or trustworthy . . . or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of the national security. Such conduct or circumstances include, but are not limited to, criminal behavior . . . or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility." 10 C.F.R. § 710.8(l). Specifically, the Notification Letter cites four instances where the individual demonstrated conduct that indicates that he is not honest, reliable or trustworthy.

In the first instance, the Notification Letter states that during the July 1994 PSI, the individual indicated that he left the scene of a traffic accident in 1975 because he had been drinking, and did not divulge his alcohol use to the police for fear of additional punishment or to the DOE for fear of jeopardizing his security clearance. Second, the Notification Letter states that the individual did not abide by his verbal commitment when he gave his verbal assurance to the DOE in a June 6, 1979 PSI that he would not use illegal drugs. In addition, the Notification Letter states that the individual was not honest in this PSI when he stated that his last drug usage was in 1971. Third, the individual acknowledged in his July 1994 PSI that he was aware of the DOE's policy regarding illegal drug use at the time of his 1979 PSI; however, he admitted having used cocaine on several occasions from 1981 to 1985, and lying about his illegal drug usage on his August 25, 1987 PSQ. Finally, the Notification Letter states that in PSIs conducted on February 9 and March 4, 1994, the individual was asked whether there were any security concerns that had not yet been discussed, and that instead of divulging the true extent of his past drug use, the individual stated that there were no further security concerns.

III. Analysis

The criteria for determining eligibility for security clearances set forth at 10 C.F.R. §§ 710.1 et seq. dictate that in these proceedings, a Hearing Officer must undertake a careful review of all of the relevant facts and circumstances. In fact, the applicable DOE regulations require the Hearing Officer to make a "common-sense judgment . . . after consideration of all the relevant information." 10 C.F.R. § 710.7(a). I must therefore consider all information, favorable or unfavorable, that has a bearing on the question of whether restoring the individual's security clearance would compromise national security concerns. Specifically, the regulations compel me to consider the nature, extent, and seriousness of the individual's conduct; the circumstances surrounding his conduct; the frequency and recency of the conduct; the age and maturity of the individual at the time of the conduct; the voluntariness of participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the individual's potential for being susceptible to pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence of the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c). It is the totality of these facts and circumstances that will shed light on whether the individual could fail to perform his security responsibilities adequately. Although it is impossible to predict with absolute certainty an individual's future behavior, as the Hearing Officer, I am directed to make a predictive assessment. Thus, it is incumbent upon the individual to demonstrate that restoring his 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). After careful consideration of all of these factors, as well as all the evidence in the record in this proceeding, I find that the individual has failed to make this showing, and that his clearance should therefore not be restored.

The individual has admitted that he lied to the DOE during two PSIs before 1994 and on his August 1987 PSQ. Hearing Transcript at 148-49. Although the individual does not dispute that he deliberately falsified information, the individual contends that mitigating circumstances exist to explain his pattern of lying. Specifically, the individual states that his lying during that time period was a symptom of his alcoholism and drug abuse, illnesses from which he is currently in recovery. Hearing Transcript at 149. Moreover, the individual argues that his recovery from his addictions has afforded him a "new lease on life" and that he has grown, both personally and professionally, as a result of his recovery from alcoholism and substance abuse, and that he is now a reliable and honest person whose access authorization should be restored. Hearing Transcript at 154-167.

In support of his contention that lying was a symptom of his illnesses, the individual relies on the testimony of an XXXX counselor. The XXXX counselor, who oversees XXXX's substance abuse monitoring program and who has had several years to observe the individual, provided some history regarding the illnesses from which the individual is currently recovering. Specifically, she testified that the individual first contacted her in 1992 seeking information concerning XXXXXXXXXXXXXXXXXXXXXXX's procedures and policies regarding employees who seek professional help in overcoming alcohol problems. She stated that after the individual's April 1992 stay in an inpatient alcoholism treatment facility, she conducted follow-up counseling with him for about a year. During this time, she testified, the individual attended Alcoholics Anonymous (AA) meetings regularly, and obtained a sponsor to help guide him through the AA's 12 step program. She further stated that the individual "progressed nicely" through this follow up period, and that she saw no evidence that the individual had suffered any relapse. Hearing Transcript at 100-01. The XXXX counselor also testified that there is "about a 100 percent" chance that an alcohol or drug abuser will lie to himself, to his family and to his friends, and to his employer to conceal his addiction. Hearing Transcript at 101-04. She added that an integral part of an alcoholic's rehabilitation is for the alcoholic to correct these lies and deceptions, and that she felt that the individual had atoned for his past dishonest statements and deeds. Hearing Transcript at 101-103.

The individual also provided the testimony of several other witnesses to demonstrate that following his inpatient treatment program, he became a noticeably different person with a new outlook on life. All of these witnesses who testified are employed with the individual XXXXX, and all of them, except for one witness, testified that the individual is honest and reliable or has an excellent reputation for honesty and reliability, and that he has made significant personal and professional progress since beginning his recovery from alcoholism and substance abuse. <3>

After reviewing this testimony, I have no doubts that the individual has made substantial progress since seeking treatment for his alcoholism in April 1992. I found the XXXX counselor's testimony concerning the individual's recovery and the propensity of substance abusers for lying and deception to be convincing and significant. I am also convinced by the testimony of the individual's character witnesses that the individual's job performance has improved markedly since the beginning of his recovery, and that the witnesses believe the individual to be honest and reliable.<4> However, I find all of this favorable testimony to be outweighed by several more recent and significant incidents which raise serious doubts concerning the individual's honesty and reliability.

The first factor that causes me to have serious doubts about the individual's reliability is a discrepancy in two of his 1994 PSIs concerning his admitted levels of prior drug use. In his May 1994 PSI, more than two years after the beginning of his recovery, the individual stated that he had used cocaine only "a couple of times." May 26, 1994 PSI at 5. In his July 1994 PSI, he admitted using cocaine approximately 10 times and also purchasing the drug approximately five times. July 26, 1994 PSI at 39-40. When asked to explain this discrepancy, the individual attributed it to a bad memory, caused by his alcohol and drug use. Hearing Transcript at 174. I find it very hard to believe that under direct questioning, the individual, even with a bad memory, could simply have forgotten about numerous other occasions where he used cocaine, especially since he actually purchased the drug five times. If the individual purchased the drug five times, he certainly should have remembered using cocaine more than just "a couple of times." Thus, I find that the individual intended to provide less than full disclosure and minimize his cocaine usage in the May 1994 PSI.

In addition, I find that the individual never attempted to come forward during his period of atonement to correct his past falsehoods concerning his drug use, despite being given at least two opportunities to do so. These opportunities occurred at the conclusion of the February and March 1994 PSIs. Specifically, the individual was asked if there were any other questions or security concerns that needed to be discussed, and on both occasions, the individual answered that there were not. February 9, 1994 PSI at 28, March 4, 1994 PSI at 26. During the Hearing, the individual explained that both of these PSIs focused primarily on his alcohol use, and it was this subject that the individual had in mind when he responded that there were no further concerns. Hearing Transcript at 166-167, 169. The individual further stated that in November 1993 he authorized the DOE to obtain the records of his treatment at the inpatient facility he attended, that he knew that information concerning his history of drug abuse was a part of those records, and that, by signing the release, he intended to make a full disclosure to the DOE of that history. Hearing Transcript at 166-67, 170.

The individual's claim that he thought that the questions at the conclusion of the February and March PSIs referred only to his alcohol use is undermined by the comprehensive nature of those questions. At the conclusion of the February PSI, the interviewer asked: "Is there anything that we haven't discussed that would be of a security concern to you?" The interviewer also stated that she wanted "to make sure you have every opportunity to add whatever you'd like to the record." February 9, 1994 PSI at 28 (emphasis added). At the conclusion of the March PSI, the interviewer provided the individual with an "opportunity to put anything on the table that you'd like or ask any questions." March 4, 1994 PSI at 26 (emphasis added).

It was not until the May 1994 PSI, that the individual admitted under direct questioning, that he had lied to the DOE regarding his previous drug use. Furthermore, I am not convinced that, by authorizing the release of records from his alcoholism treatment center, the individual intended to make a full disclosure of his past history of drug abuse to the DOE. In his May 1994 PSI, the individual was asked whether he had considered coming forward earlier to correct his previous misrepresentations concerning drug use. Rather than referring to his release of the records as a previous disclosure, the individual stated that he considered himself to be coming forward with that information at that time.

Finally, much of the information upon which the DOE relies in making security clearance determinations is obtained from the prospective or actual clearance holders through QSPs and PSIs. Accordingly, it is of the utmost importance that the people who provide this information be willing to disclose relevant information bearing on security issues. If a person fails to disclose relevant information, that person loses credibility and ultimately the trust that he will comply with the regulations protecting our national security. I am not confident that the individual merits that trust. Indeed, during the Hearing, the individual was asked whether he would have come forward with information regarding the true extent of his previous drug use if the DOE had not made specific inquiries on the subject. The individual replied, albeit honestly, that he did not know. Hearing Transcript at 173-74.

All of these recent examples demonstrate that the individual has continued to be less than forthright with regard to problems in his past. The individual has only been honest, and not 100 percent of the time, when directly questioned on a subject during a PSI. If these recent incidents were the only examples of dishonesty in the individual's past, I might view them in a more positive light. However, when viewed against the backdrop of the individual's 16 year history of deception and self-serving statements to protect his job, I can only believe these recent incidents demonstrate that the individual is not fully reformed from his pattern of dishonest behavior. Thus, I find that the individual deliberately falsified information during several PSIs and engaged in conduct demonstrating that he is not honest, reliable or trustworthy within the meaning of 10 C.F.R. § 710.8(f) and 710.8(l).

IV. Conclusion

The individual deliberately withheld relevant information and provided false information to the DOE repeatedly over the course of 16 years. The individual now requests that I recommend that his clearance be restored based upon a period of rehabilitation that is of much shorter duration. Although the individual has made great strides in his alcohol and drug rehabilitation, based on the record in this proceeding, I am unable to conclude that granting the individual 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 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 the 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. 20585-0107, 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 within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b).

Leonard M. Tao

Hearing Officer

Office of Hearings and Appeals

Concurrence

TAO _______________

<1> / A level "L" access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to variously in this Opinion as access authorization, a security clearance, or an "L" clearance.

<2> / The individual stated that during the period from 1971 to 1974, he smoked marijuana from three to five nights a week; used hashish twice and hash oil once; used LSD five times; used mescaline and psilocybin once; used amphetamines "a few times;" and used Seconal, a barbiturate, once. The individual further stated that during this period he purchased marijuana on numerous occasions, and tried to grow it. The individual also admitted that during the period from 1974 to 1985, he used marijuana on five occasions, psilocybin once, and cocaine 10 times. In his July 26, 1994 PSI, the individual also stated that he had not been truthful concerning his past alcohol consumption. In a PSI conducted on August 29, 1989, the individual stated that although he had described his past alcohol use as "moderate" in earlier PSIs, his alcohol usage was in fact "heavy."

<3>/ The other witness testified that he had minimal contact with the individual, and therefore could not discern any significant differences in the individual's behavior since treatment of the individual's alcoholism and substance abuse began. Hearing Transcript at 144.

<4> / It appears, however, that the individual may have been honest and forthcoming in some areas of his life, yet remained dishonest in others. In this regard, I find it noteworthy that one of the witnesses stated that he thought the individual to be honest and reliable even before the individual began treatment for his alcoholism, a period during which the individual has admitted lying repeatedly concerning his alcohol and drug use. Hearing Transcript at 58. Also, two other witnesses who testified under direct examination that the individual is honest and reliable, stated under cross- examination that they were not aware that the individual had lied to the DOE in previous PSIs and on his August 1987 PSQ. Hearing Transcript at 65, 72.