Case No. VSO-0087, 25 DOE ¶ 82,208 (H.O. Schwartz July 11, 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: March 8, 1996

Case Number: VSO-0087

This Opinion concerns the eligibility of XXXXX (hereinafter referred to as "the Individual") to retain a level "Q" 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>The Department of Energy's XXXXX Operations Office (DOE/XXXXX) suspended the Individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony in this proceeding, the Individual's access authorization should be restored. For the reasons stated below, it is my opinion that access authorization be restored.

I. BACKGROUND

The Individual has been employed since 1991 by XXXXX and its predecessor. Since that time, the Individual has held a "Q" clearance. On September 15, 1995, the DOE requested that the Individual submit to a random urine screening test. It is uncontested that the Individual's urine tested positive for the presence of cannabinoids.<2>

A DOE personnel security specialist conducted a personnel security interview (PSI) with the Individual on October 2, 1995, in which he was questioned about the positive drug test result. The Individual denied that he had ever used marijuana. See Transcript of PSI (PSI Tr.) at 11, 19. He stated that when he was informed that he had tested positive for marijuana, he could not believe it, and arranged to have another test performed. When he learned that the result of this second test was also positive, he "was absolutely floored." Id. at 4-5. After thinking over his activities with his wife's help, he arrived at the explanation he offered during the PSI: that after consuming a considerable quantity of beer on the evening of September 12, 1995, he accompanied his wife to a party at an unknown location, where he consumed more beer and ate at least two cookies. These cookies were identified as "cool cookies" and were offered to him by an unknown man under conditions which the Individual, in hindsight and sobriety, regarded as suspicious. Id. at 5, 8, 10. He further stated that he could not conceive of any other way in which the marijuana could have entered his body. Id. at 21.

This interview did not resolve DOE/XXXXX's concerns and on December 20, 1995, the Manager of DOE/XXXXX suspended the Individual's access authorization and subsequently obtained authorization from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding. See 10 C.F.R. § 710.9. The administrative review process was commenced by the issuance of a February 6, 1996 letter which notified the Individual that information possessed by the DOE created a substantial doubt concerning his continued eligibility for access authorization (Notification Letter). The Notification Letter was accompanied by an enclosure (Statement of Charges) that detailed the derogatory information that DOE/XXXXX possessed.<3>The Notification Letter specifies three areas of derogatory information described in 10 C.F.R. § 710.8. First, under Criterion F (10 C.F.R. § 710.8(f)), DOE/XXXXX alleges that twice during the PSI the Individual denied ever using marijuana and that his "responses in the interview regarding [his] denial of the use of marijuana and including a detailed, fabricated scenario regarding the way the marijuana entered into [his] system are viewed as falsification." Notification Letter at 3.

Second, the Notification Letter presents allegations under Criterion K (10 C.F.R. § 710.8(k)). DOE/XXXXX charges that the Individual had "trafficked 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." The DOE/XXXXX stated that the Individual tested positive for marijuana in the September 15, 1995 drug screen urinalysis test and that the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Occupational Medical Program's Medical Review Officer, Dr. XXXXXXXXXXXXXX, had determined that the Individual had used marijuana. Id. at 3-4.

Third, the DOE/XXXXX charged under Criterion L (10 C.F.R. § 710.8(l)) that the Individual has "engaged 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." In support of that charge, DOE/XXXXX noted three closely related concerns: that the Individual had tested positive for marijuana use, which is an illegal activity; that he chose to use an illegal substance even though he understood the DOE's policies of random urine testing and intolerance of drug use, which tends to indicate that he is not honest or trustworthy; and that he attempted to conceal his use of marijuana during the PSI, which tends to show that he "may be subject to pressure, coercion, exploitation or duress which could cause [him] to act contrary to the best interests of the national security." Id. at 4.

On February 6, 1996, the Individual requested a hearing, and on February 21, through his representative, he filed a response to the allegations contained in the Notification Letter. The Individual's request for a hearing was forwarded by DOE/XXXXX to the Office of Hearings and Appeals (OHA) on March 8, 1996, together with a copy of the Notification Letter and his response. I was appointed the Hearing Officer in this matter on March 11, 1996. In accordance with 10 C.F.R. § 710.25(f), a prehearing telephone conference was held on May 16, 1996. The hearing was convened in XXXXXXXXXXXXXXXXXX on XXXXXXXXXXXX. At the hearing, the DOE presented two witnesses, XXXXX, a DOE/XXXXX personnel security specialist, and XXXXXXXXXXXXXXXXX, M.D., the medical director for the XXXX. The Individual testified on his own behalf and called two further witnesses, both present and former supervisors.

During the course of this proceeding, 22 exhibits have been submitted by the parties. See List of Exhibits. In accordance with OHA practice, all exhibits were provided directly to the OHA and became part of the record automatically. On June 11, 1996, the OHA received a copy of the transcript of the hearing, see Transcript of Hearing, Case No. VSO-0087 (hereinafter cited as "Tr.") and on that date the record was closed.

II. FINDINGS OF FACT AND ANALYSIS

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency and the Individual, and to render an opinion based on that evidence. See 10 C.F.R. § 710.27(a). 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. See 10 C.F.R. §§ 710.7(c), 710.27(a). The discussion below reflects my application of these criteria to the testimony and exhibits presented by both sides in this case.

A. Criterion K

DOE/XXXXX's allegation under Criterion K concerns the positive results the Individual received on the drug test performed by XXXXXXXXXXXXXXXXXXXXXXXXXX, a laboratory certified by the Substance Abuse and Mental Health Services Administration (SAMHSA), the division of the United States Department of Health and Human Services charged with setting standard laboratory practices for drug testing. Employee urine samples are required to be analyzed pursuant to procedures set out in the Mandatory Guidelines for Federal Workplace Drug Testing Programs promulgated by the U.S. Department of Health and Human Services (Mandatory Guidelines), 59 Fed. Reg. 29,908 (June 9, 1994). See 10 C.F.R. § 707.5(a) (requiring DOE contractors to establish drug-testing programs consistent with the Mandatory Guidelines).

XXXXXXXXXXXXXXXXXXXX performed the initial immunoassay to screen the specimen involved in this case for illegal drugs. Exhibit 9. The test result revealed the presence of cannabinoid metabolites at an unspecified level above 50 nanograms per milliliter (ng/ml), the initial test cutoff level set in Section 2.4(e) of the Mandatory Guidelines. Id.; Tr. at 91-92. At Dr. XXXXXXXXX's request, XXXXXXXXXXXXXXXXXXXX then performed a confirmatory gas chromatography/mass spectrometry (GC/MS) test on a frozen portion of the same urine sample. Id. XXXXXXXXXXXXXXXXXXXX discovered carboxy-THC, a metabolite of THC, to be present in the Individual's urine at a level of 47 ng/ml, which is above the cutoff value for that test, 15 ng/ml. Id. The Individual has not challenged the methodology or results of the testing procedures.

The process of fact-finding, as well as the ultimate opinion, regarding disqualifying and mitigating factors under each criterion must be based on a "comprehensive common-sense judgment of all the relevant information, favorable or unfavorable." 10 C.F.R. § 710.7(a). As the personnel security specialist testified, an allegation of marijuana use is a very serious matter, as this activity indicates a disregard for the law and raises questions about the user's reliability regarding obeying the law and other areas of his or her life. Tr. at 19-20. The proof that the Individual used marijuana lies in the uncontroverted positive drug test. Given the positive test for marijuana, the sole issue to be considered under Criterion K, then, is whether the circumstances surrounding the Individual's use of marijuana mitigate the DOE's security concerns to such a degree that, despite the charge, the Individual's access authorization should not be revoked.

Throughout the proceeding the Individual has consistently contended that the only way in which marijuana could have entered his system is through his unintentional consumption of cookies, identified only as "cool cookies," at a party he attended on the evening of September 12, 1995. At the hearing, the Individual again related his story: that after drinking at least four pitchers of beer at a bar with his wife, he and his wife were invited to a private party in a rural area north of XXXXX. His wife drove because he knew he had already drunk too much. He did not know the location of the party, the host, or any of the guests. At one point during the evening, ten men were standing outside around a beer keg, when one of them offered the "cool cookies" to the Individual from a plastic bag. All the other partygoers, including his wife, had moved inside. The cookies tasted like applesauce cookies, and were the only food other than beer he consumed at the party. He asserts that the only way in which marijuana could have entered his system is by his eating the "cool cookies." He also asserts that he had no knowledge or suspicion at the time he ate the cookies that they might have contained marijuana. Tr. at 34-41; PSI Tr. at 7-10, 17, 20. After he received the results of his second urinalysis test, the Individual and his wife attempted to locate the site of the party and individuals who attended the party. At the hearing, the Individual testified that they spent a Sunday driving around the area where the party occurred but failed to identify any familiar landmarks. He stated that he hoped he would be able to find the individual who offered the cookies and convince him to "come forward and clear [me]. I don't think he'd do it but I still tried anyway." PSI Tr. at 11.

The critical issue in this case is whether the Individual's explanation of his marijuana use is credible. DOE/XXXXX's position is that it is not, and that position forms the basis for most of its allegations against the Individual. After considering all of the evidence and testimony in the record on this issue, I have concluded that the Individual's testimony on this issue is credible, that there is no evidence contradicting his testimony of how he ingested marijuana, and that therefore I believe that his explanation for his positive drug test is truthful. I will discuss the pertinent portions of the record concerning the Individual's credibility below.

In the Notification Letter, DOE/XXXXX deemed the explanation the Individual offered at the PSI, and from which he has not wavered in the course of this proceeding, to be a "detailed, fabricated scenario." At the hearing, the personnel security specialist stated that she believed the explanation was not plausible. Tr. at 18. When questioned concerning that belief, she explained that it was "based primarily on experience in doing interviews and the way that [the Individual] behaved in the interview." Id. at 22. The personnel security specialist testified that she has worked as an investigator for eight years, during which time she has interviewed thousands of individuals. Id. at 25. She also testified that during the interview the Individual's behavior caused her to question his credibility, because he "looked frequently at the floor and at the table, and there was very little eye contact." Id. She admitted on cross-examination, however, that her belief was influenced to some degree by information she received from Dr. XXXXXXXXX or a member of his staff which she understood to mean that no significant amount of marijuana could be ingested through the gastrointestinal tract. Id. at 22. See also id. at 80; Notification Letter at Statement of Charges I.2. Dr. XXXXXXXXX testified later in the hearing that he had not explained that statement sufficiently and acknowledged that it may have been misunderstood. Tr. at 80.

I fully respect the personnel security specialist's opinion regarding the Individual's credibility, particularly in light of her considerable experience in her field. However, I am charged in the regulations with considering each witness's demeanor at the hearing. 10 C.F.R. § 710.27(b). Based on my own observations during the course of the three-hour hearing, I observed little if any behavior that corroborated the personnel security specialist's opinion concerning his credibility. The testimony the Individual gave at the hearing was entirely consistent with that which he provided at his PSI. He appeared to be entirely candid in responding to the questions posed by the DOE/XXXXX counsel. He did not waver in his responses and was straightforward in admitting what he did and did not know. He appeared to answer fully all questions except those for which he had no response at all. I did not observe any verbal or non-verbal behavior that indicated to me that the Individual was attempting to falsify, confuse, or hedge in his testimony. I therefore conclude that the Individual was making every effort to be forthright during the hearing. By reaching this conclusion, I need not address the possibility that the misunderstanding concerning oral ingestion of marijuana unduly influenced the personnel security specialist's opinion concerning the Individual's credibility.

At the hearing, DOE/XXXXX also challenged the Individual's credibility, on this issue and in general, by drawing attention to the fact that the Individual, by all accounts a careful, methodical, reliable worker, Tr. at 98, 105 (testimony of supervisors), admitted to very little recollection of the details of the party where he claims to have eaten the "cool cookies." Id. at 113. DOE/XXXXX pointed out that the Individual's failure to observe or recall details does not jibe with his nature as observed in the workplace. This argument neither advances nor detracts from a finding regarding the Individual's credibility. If I were to find that the Individual's explanation is not credible, then his failure to recall details supports that finding. If I were to find, as I do here, that his explanation is credible, this same failure supports that finding, because his drunkenness at the time of the incident explains not only his inability to recall details of what occurred while he was drunk, but also the discrepancy between his impaired faculties at the party and on the job, where he has always been observed to be sober. See id. at 98, 100, 101.

Two additional issues of credibility surfaced during Dr. XXXXXXXXX's testimony at the hearing. The first is DOE/XXXXX's contention that the Individual should have known that he had ingested marijuana because he would have felt its physiological effects. This contention was not supported by the testimony received at the hearing. Dr. XXXXXXXXX testified that the results of the gas chromatography/mass spectrometry (GC/MS) quantitation assay performed on the Individual's September 15th urine sample on December 1, 1995, indicated a presence of THC, the primary psychoactive ingredient in marijuana, of 47 ng/ml. Id. at 67. He also testified that a person who has ingested sufficient marijuana to test above the cutoff levels for testing purposes (15 ng/ml for the GC/MS test) has ingested enough to feel its intoxicating effects. Id. at 68. However, upon further questioning, he stated that the effects of alcohol and the effects of marijuana are similar, and a person already inebriated on alcohol would be hard pressed to discern the effects of marijuana. Id. at 83. Therefore, although Dr. XXXXXXXXX's testimony clearly supports a finding that the Individual ingested marijuana in some manner, it also undercuts DOE/XXXXX's allegation that he should have been able to ascertain its intoxicating effects.

DOE/XXXXX also impliedly argues that the fact that the Individual tested positive for marijuana in the second urinalysis test 14 days after his ingestion of "cool cookies" indicates that he used marijuana on one or more occasions after September 12, 1995. If this assertion could be supported, it would clearly raise a question concerning the Individual's credibility. As stated above, I believe that Individual's testimony that when he learned of his positive test results, he did not believe it, and arranged with his doctor to have a second test at his own expense. This test was performed and the results released to the Individual on September 26, 1995 at the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. Id. at 46-48. Dr. XXXXXXXXX stated at the hearing that he found it difficult to believe that XXXXX's positive reading for marijuana could be caused by the ingestion of "cool cookies" fourteen days earlier, on September 12. Id. at 87.

I will accord little weight to DOE/XXXXX's assertion that the Individual must have used marijuana more than once for the following reasons. Dr. XXXXXXXXX testified that XXXXX's testing facilities are not certified by SAMHSA. Id. at 71. No testimony was presented in this case concerning the cutoff levels XXXXX uses, above which levels the laboratory deems a test result positive. See id. at 77. Dr. XXXXXXXXX further testified that his "suspicion" was that XXXXX employed a cutoff of 50 ng/ml for determining a positive test result for cannabinoids, and "at fifty, that two weeks out, we just won't see a cutoff two weeks out from a one time hit." Id. at 86. Although his expertise in this field is not to be questioned, Dr. XXXXXXXXX's assertion that the Individual must have used marijuana after the September 12 incident is based on an assumption without foundation in the record. Consequently, this challenge to the Individual's credibility, as well as a number of others, such as questioning why the Individual did not mention the "cool cookies" when Dr. XXXXXXXXX first notified him of his positive marijuana test, id. at 73, are based on mere speculation. I find that they are too insubstantial to warrant doubting the Individual's credibility.

Because I find that the Individual is credible and that his explanation of how he ingested marijuana before the random drug test on September 15, 1995 is truthful, I must now determine what effect his actions have on the allegations under Criterion K. As stated above, the DOE regulations provide that I consider a number of different issues when forming my opinion regarding an individual's eligibility for access authorization. Among them are the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and recency of the conduct; voluntariness of participation; the motivation for the conduct; and the potential for pressure or coercion as a result of the conduct. See 10 C.F.R. § 710.7(c). Thus, I have taken into consideration the fact that the evidence against the Individual in this case, even at its most detrimental, establishes only one drug incident within the past 12 months. See, e.g., PSI Tr. at 7, 14-15 (random tests annually since 1991 all negative); Tr. at 90 (monthly testing). Moreover, and absolutely critical to this case, is the fact that the Individual did not knowingly or voluntarily use marijuana. As I interpret the evidence presented in this case, his lack of willful participation and the steps he has taken (discussed in the Criterion L section below) to curtail his drinking, the admitted cause of his participation, should ensure that the behavior does not recur. I note that the Individual was not required to enter any counseling or therapy regarding his drug usage, nor does that seem an appropriate treatment in a case such as this, where participation was unknowing. Finally, the Individual is unlikely to be the subject of pressure or coercion as the result of his one-time drug use because his wife and co-workers are all familiar with the details, PSI Tr. at 15, and no evidence was presented to support a finding that this was a potential security concern.

Accordingly, I find that the Individual has mitigated the DOE/XXXXX's security concerns with regard to Criterion K.

B. Criterion F

It is important to note at the outset that Criterion F does not apply to all misstatements and omissions, but only those that are deliberate and involve significant information. See Pittsburgh Naval Reactors Office (Case No. VSO-0041), 25 DOE ¶ 82,775 at 85,665 (1995), request for review pending (Case No. VSA-0041). The basis for DOE/XXXXX's allegations under this criterion is the Individual's response during the PSI to the charge of marijuana use.

Under this criterion, DOE/XXXXX's security concerns rest on the opinion of the personnel security specialist that the Individual intentionally falsified information during the PSI. The first alleged falsification occurred when, on two distinct occasions during the PSI, the Individual stated unconditionally that he had never used marijuana. PSI Tr. at 11, 19. DOE/XXXXX's position is that such a denial must be false in light of the positive drug test result. However, I must consider the entirety of the circumstances in which these responses were given. The first response was elicited immediately after the individual recounted in extensive detail his version of what had occurred on the evening of September 12, 1995. Id. at 5-11. The second was elicited after a lengthy conversation concerning his drinking habits and exposure to marijuana and immediately after being informed of the criminal penalties for making false statements. In light of the context, I believe the only logical reading of the Individual's responses is that he intended to say that he had never used marijuana at any time other than the incident under discussion and that he had never knowingly and intentionally used marijuana. To interpret his responses as denials of the September 12 incident that was discussed at considerable length in the same session defies reason. There is no evidence in the record that the Individual has ever used marijuana or any other illegal substances prior to this incident. Consequently, because I believe the Individual's explanation of the incident, I find that his contemporaneous denials of drug use in the PSI do not constitute deliberately falsified statements under Criterion F.

The second basis for the Criterion F allegation is that the explanation he provided during the PSI of how he unknowingly ingested marijuana before his random drug test on September 15, 1995, was a "detailed, fabricated scenario." Because I have found, in the section above regarding Criterion K, that the Individual's explanation was truthful, I must reject this basis. After fully considering all the evidence and testimony in the record in this case, I conclude that there is no factual support for the DOE/XXXXX's allegations under Criterion F. Accordingly, I find that the Individual did not falsify any information he provided to DOE/XXXXX during the PSI regarding the September 12, 1996 incident.

C. Criterion L

The derogatory information alleged under this criterion is based on the same positive drug test that serve as the basis for Criterion K allegation. Having found that this allegation does not establish a basis for revoking the Individual's clearance under that criterion, and that there are sufficient mitigating factors, I make a similar finding with respect to Criterion L. That criterion refers to information that an individual has "[e]ngaged 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 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." 10 C.F.R. 710.8(l).

In the Notification Letter, DOE/XXXXX specifies three security concerns to support its charge that the Individual's behavior falls within the scope of Criterion L: that the use of marijuana is an illegal activity; that using marijuana with the knowledge that he was subject to random testing and that the DOE does not tolerate its use tends to indicate that he is not honest or trustworthy; and denying ever using marijuana indicates that he "may be subject to pressure, coercion, exploitation or duress which could cause [him] to act contrary to the best interests of the national security." In my opinion, the fact that the incident occurred only once, and unintentionally, mitigates the first two security concerns: the Individual clearly did not intend to engage in an illegal activity. The third concern was addressed in the Criterion F section above: I do not believe that the Individual's unconditional denials of marijuana use during the PSI can be construed logically to include a denial of the use on September 12, 1995, when those denials were made in the context of a discussion concerning his ingestion of marijuana on that evening. Further, no evidence was presented that would indicate his use of marijuana at any other time or his desire to conceal such use. Accordingly, I find that the Individual has mitigated the DOE/XXXXX's security concerns with regard to Criterion L as expressed and supported in the Notification Letter.

I would be remiss, however, if I did not raise my own concern with respect to Criterion L. In my opinion the Individual exercised extremely poor judgment when he permitted himself to drink alcohol to such an extent that he was no longer able to discern a suspicious offer from a sincere one. See PSI Tr. at 10 (Individual later realized the suspicious nature of the offer). Therefore the Individual's alcohol consumption, at least on this one occasion, concerns me. At the hearing the personnel security specialist testified that one of DOE/XXXXX's concerns was that a person who places himself in compromising situations raises questions of reliability about himself. Tr. at 19. I agree with this statement. However, I note that the Individual in this case successfully completed a three-month group therapy outpatient program in December 1995 concerning his drinking habits. See Exhibit 6. He testified at the hearing that he has continued to attend an "after-care" maintenance program since that time and has not drunk since October 1995. Tr. at 57-58. In all, according to a letter from his treatment program, Exhibit 6, and the Individual's testimony at the hearing, he had abstained from alcohol for seven months at the time of the hearing. Because DOE/XXXXX has not alleged a security concern on the basis of the Individual's alcohol consumption habits, I need not determine whether he is now rehabilitated and has reformed his behavior with respect to alcohol consumption. However, I may consider this evidence in reaching a conclusion with respect to the security concerns regarding the Individual's reliability. The Individual has convinced me that, by continuing to abstain from alcohol and continuing to participate in an alcohol treatment program, he is in effect eliminating the possibility of recurrence of the circumstances under which he exercised the poor judgment that caused him, however unintentionally, to use marijuana. In addition, his testimony at the hearing indicates that he has developed a thorough understanding of the chain of causation that led to his one-time use of marijuana, that he is capable of not permitting it to happen again, and that he sincerely wishes to avoid any high-risk behavior of this type in the future. Tr. at 108-109. Consequently, I am of the opinion that the Individual has mitigated this Criterion L concern as well.

III. CONCLUSION

For the reasons set forth above, I conclude that the DOE/XXXXX does not have a sufficient basis for invoking Criterion F under the circumstances under which the DOE has suspended the Individual's access authorization. Furthermore, the Individual has shown mitigating circumstances with respect to DOD/ID's allegations under Criteria K and L. Accordingly, I conclude that DOE/XXXXX had a sufficient basis for invoking Criteria K and L but that the Individual has demonstrated that restoring his clearance would not endanger the common defense and would be clearly consistent with the national interest. Accordingly, it is my opinion that the Individual's access authorization should 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 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 with 20 days of receipt of the statement.

William Schwartz

Hearing Officer

Office of Hearings and Appeals

Date:

<1>/ An "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, security clearance, or "Q" clearance.

<2>/ Cannabinoids are the psychoactive substances found in the common hemp plant, Cannabis sativa (marijuana). The primary psychoactive cannabinoid is tetrahydrocannabinol (THC). The presence of cannabinoids in a urine sample indicates with high probability that the individual has ingested marijuana or other THC-containing substances.

<3>/ All subsequent references to the Notification Letter also include the Statement of Charges.