Case No. VSO-0065, 25 DOE ¶ 82,798 (H.O. Gray Apr. 15, 1996)

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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: October 26, 1995

Case Number: VSO-0065

XXXXX (the Individual) requested a hearing on the restoration of his access authorization, or security clearance ("clearance"). The Individual works for a contractor of the XXXXX Operations Office (XXXXX), a component of the Department of Energy (DOE).

On September 8, 1995, the manager of XXXXX issued a Notification Letter to the Individual. The Notification Letter informed the Individual that his clearance was suspended because of derogatory information in the possession of the DOE. On September 23, 1995, the Individual submitted a request for a hearing to XXXXX. The Office of Hearings and Appeals received the request on October 26, 1995.

The hearing was held before the undersigned Hearing Officer on XXXXXXXXXXXXXXXX. After considering the evidence in view of the relevant regulations, it is my opinion that the Individual's clearance should not be restored.

BACKGROUND

Regulations governing the Individual's eligibility for a clearance are found at 10 C.F.R. Part 710. The regulations set out the specific types of derogatory information that create a question as to an individual's eligibility for a clearance. 10 C.F.R. § 710.8. Here, the DOE alleges two types of derogatory information: that the Individual used an illicit drug (10 C.F.R. § 710.8(k)) (Criterion K), and that he engaged in conduct that called into question his honesty, reliability, or trustworthiness (10 C.F.R. § 710.8(l)) (Criterion L).

At the hearing, the Individual was represented by counsel. The Individual presented the testimony of four co-workers, a DOE security specialist, and the contractor's staff clinical psychologist. He also testified on his own behalf. The DOE presented no witnesses. Instead, the DOE relied on documents it entered as evidence in the case, particularly a personnel security interview (PSI) conducted with the Individual on July 11, 1995.

FINDINGS OF FACT

The Individual is a XXXXX-year-old XXXXXXXXXX who has worked at XXXX for more than twenty years.<1> Until the present case arose, he had no record of violating security regulations or procedures.<2> His supervisors and co-workers find the Individual to be a hardworking, conscientious, respected employee.<3>

The suspension of the Individual's clearance is based on two incidents that occurred in June 1995. The Individual does not dispute the facts concerning these incidents as given in the Notification Letter. The Individual took his 16-month-old granddaughter for a walk in a park. In the park, the Individual met a young woman and struck up a conversation with her. He brought the woman to his home, taking his granddaughter with him. At his home, the Individual and the woman smoked marijuana while his granddaughter napped on a couch.<4> He brought the woman back to his home two days later, where they again smoked marijuana.<5> Nine days after his second smoking incident, the Individual underwent a random drug test at his workplace. The test result was positive for marijuana.<6>

The Individual denies any involvement with marijuana or other illicit drugs before June 1995.<7> Soon after the positive drug test, the Individual began seeing a clinical psychologist. Between the time of the drug test and the hearing, the Individual saw the psychologist ten or eleven times.<8> During his sessions with the psychologist, the Individual took two drug tests. Both drug tests returned negative results.<9> As the result of his sessions with the Individual, it was the psychologist's opinion that his use of marijuana was not a symptom of "hard core substance abuse," but represented an act of experimentation.<10>

ANALYSIS

The Individual has admitted to the facts concerning his use of marijuana. The analysis of his eligibility for a clearance, therefore, turns on whether he can mitigate the security concerns raised by the derogatory information. In considering the facts and possible mitigating factors, the regulations provide that I am to consider:

the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; 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 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).

The security concerns raised by the use of an illicit drug such as marijuana are well known. See, e.g., Personnel Security Hearing, Case No. VSO-0013, 25 DOE ¶ 82,752 at 85,512 (1995). As an initial matter, I point out that the Individual's superior work record, by itself, is not sufficient to mitigate the security concerns raised in this case. Personnel Security Hearing,

VSO-0005, 24 DOE ¶ 82,753 at 85,530 (1995).

The DOE security specialist found the Individual to be honest and open in talking about his use of marijuana.<11> In his view, the Individual's use of marijuana was "an isolated incident or an infrequent enough event as to warrant acceptance of the Individual's assurance that he will not be involved with drugs while holding a DOE clearance.<12> The security specialist concluded that the Individual's clearance should be restored. From my review of the record and my observation of the Individual's demeanor, I also believe that he has been honest and open. In addition, I find no behavior by the Individual before June 1995 that would cast doubt on his eligibility for a clearance. However, for reasons stated below, I concur with the Personnel Clearance and Assurance Branch of XXXXX and reject the security specialist's evaluation.

The Individual has established that his use of marijuana represents a change from his longstanding behavior. As mitigating factors, he argues that he has a good work history, with no record of any disciplinary action; that his family and coworkers are aware of his marijuana use, ruling out the possibility of blackmail or coercion; and that the use of marijuana on only two instances does not create a security concern.<13>

Considering the Individual's abstinence from drugs as a younger man, the question arises as to why he would use marijuana at this stage of his life. The answer lies in his changed emotional state following his divorce. The Individual and his wife were divorced in August 1994, and his wife received custody of the couple's children.<14> The Individual believes that, were it not for the divorce, he would not have smoked marijuana.<15> The clinical psychologist was more guarded in his assessment, but agreed that the loss the Individual felt about his divorce and his oldest daughter leaving home contributed to his decision to use marijuana.<16> He characterized the Individual's use of marijuana as a "dumb mistake," and did not think he would repeat it.<17>

The regulations require me to make a comprehensive, common-sense judgment about the Individual's eligibility, after considering all of the relevant information in the record. 10 C.F.R. § 710.7(a). In so doing, I conclude that the Individual has not mitigated the security concerns raised by his use of marijuana.

In considering his conduct in light of the regulatory provisions, I note that the Individual is mature and aware of the dangers of drug use. Nevertheless, he knowingly and voluntarily accepted marijuana from a stranger, once in the presence of his young granddaughter.

Although I find the Individual's assertion that he had not previously used drugs to be credible, I do not think this mitigates the security concerns. At the time he smoked the marijuana, the Individual was emotionally troubled to an unprecedented extent.<18> I must therefore consider the Individual's drug use in the context of his changed emotional state, which neither the security specialist nor the psychologist seemed to do.

In the nine days preceding the drug test, the Individual smoked marijuana twice in three days. I would not characterize this level of use as infrequent or experimental, primarily because the Individual provided no evidence to show that he would have stopped using marijuana had he not failed the drug test. During the nine days in question, he did not try to break off relations with the woman who supplied him with marijuana. Although he knew that he was subject to random drug testing, he did not attempt to alert the security office or his supervisor to his drug use, nor did he seek drug counseling. Taking a comprehensive view of the Individual's behavior, I believe he was possibly embarking on a pattern of marijuana use, which ended only when he tested positive on the drug test.

Moreover, though the Individual is seeing a psychologist, I am troubled by the likelihood of recurrence. His sessions with the psychologist, which are ongoing, apparently concern issues other than drug use.<19> He has not undergone a drug rehabilitation program. Although the psychologist stated that he does not "anticipate" further drug use by the Individual, I consider this statement weak support for the Individual's case. The psychologist's statement suggests that the Individual probably will not use drugs again, but falls short of declaring him reformed or rehabilitated. It does not therefore provide the confidence level in the Individual's behavioral changes required for restoring a clearance.

Furthermore, almost one year after his divorce, the Individual was still so emotionally vulnerable that he used marijuana. I am therefore concerned about the possibility that another emotional trauma could render the Individual susceptible to an offer of an illicit drug, or to engage in other behavior that is incompatible with national security interests.

In summary, I believe that emotional problems led the Individual into a changed emotional state. This changed state included a reduction in judgment and reliability to the extent that the Individual used marijuana. At this time, I do not see sufficient evidence that the Individual has rehabilitated himself to the level required of persons holding a clearance. I conclude that he has not mitigated security concerns arising under Criterion K.

The Respondent's violation of his commitment to abstain from illicit drugs clearly raises concerns about whether he can adhere to security regulations and procedures. The Individual was aware that smoking marijuana violated the law and the policies of the contractor and the DOE. <20> On October 17, 1994, he signed a Security Acknowledgment with the DOE, stating that he understood that "any involvement with illegal drugs could result in the loss of my DOE security clearance.<21> Nevertheless, after smoking marijuana for the first time, and having had a chance to consider the consequences of his action, he smoked it again. Applying the factors set forth at 10 C.F.R. § 710.7(c), I consider his conduct to be a serious violation of his commitment to avoid the use of illicit drugs.

The Individual is a mature adult who knows the policies of his employer and the DOE forbidding the use of illicit drugs. He points to his divorce and his consequent loneliness to explain his conduct. I realize that a divorce can be emotionally traumatic. Nevertheless, I am not convinced that, ten months after the divorce decree was issued, the trauma adequately excuses the Individual's violation of his commitment to abstain from illicit drugs. I conclude, therefore, that he has not mitigated the security concerns raised under Criterion L.

CONCLUSION

The Individual has been considered a reliable, trustworthy employee in the past. It is possible that he will be one in the future. Presently, however, I am not confident that he has shown adequate evidence of rehabilitation or reformation.

In view of the criteria set forth in 10 C.F.R. Part 710, and the evidence in the record, I believe that valid and significant derogatory information has been established under Criteria K and L, and that the Individual has not mitigated those concerns. The derogatory information casts doubt about whether restoring the Individual's access authorization would not endanger the common defense and would be clearly consistent with the national interest. It is therefore my opinion that the Individual's access authorization should not be restored.

Warren M. Gray

Hearing Officer

Office of Hearings and Appeals

Date:

<1> Hearing Transcript (Tr.) at 58.

<2> Tr. at 14; 38-39; 54.

<3> Tr. at 14; 90;

<4> Tr. at 67; PSI at 10. The Individual's treatment of his granddaughter may provide an additional basis for an allegation that his conduct was not honest, reliable, or trustworthy. The granddaughter, however, was not mentioned in the Notification Letter, and hence this aspect of the Individual's conduct will not be considered in this Opinion.

<5> PSI at 10-11.

<6> Tr. at 67.

<7> Tr. at 61-62; 74-75.

<8> Tr. at 82.

<9> Tr. at 82.

<10> Tr. at 83.

<11> Tr. at 45.

<12>" Tr. at 44.

<13> The Individual also points out that the use of marijuana is widespread in society. I consider this argument irrelevant. The issue before me is whether the Individual's conduct meets the high standards required for a holder of a clearance, and not whether his conduct is common in some segments of society.

<14> Tr. at 76.

<15> Tr. at 78.

<16> Tr. at 86.

<17> Tr. at 88.

<18> Tr. at 78.

<19> Tr. at 67-68; 87.

<20> Tr. at 67-68.

<21>" Exhibit 7; Tr. at 61.