Case No. VSO-0094, 26 DOE ¶ 82,753 (H. O. Lipton Aug. 7, 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: April 25, 1996

Case Number: VSO-0094

This Opinion concerns the eligibility of XXXXX (hereinafter "the individual") to hold an access authorization.<1> The regulations governing the individual's eligibility are set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." This Opinion will consider whether, based on the record testimony and other evidence presented in this proceeding, the individual's suspended access authorization should be restored.

I. BACKGROUND

On March 14, 1996, the Acting Associate Manager for National Security of the Department of Energy's XXXXX Operations Office (DOE/XXXXX) issued a Notification Letter, informing the individual that information in the possession of the DOE created substantial doubt pertaining to his eligibility for an access authorization in connection with his work. In accordance with 10 C.F.R. §710.21,

the Notification Letter included a detailed statement of the derogatory information. It specified two areas of concern. The first area concerned information that indicated that the individual trafficked in or sold, transferred, possessed, used, or experimented with a drug or other controlled substance (such as marijuana, cocaine, amphetamines, barbiturates, narcotics, etc.). 10 C.F.R. §710.8(k) (hereinafter Criterion K). This concern was based on the fact that on August 27, 1995, the individual tested positive for the presence of amphetamine and methamphetamine, and the fact that during a Personnel Security Interview (PSI) conducted on October 3, 1995, the individual admitted to using "speed" in August 1995.

The Notification Letter set forth a second area of concern. The letter stated that the individual engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable, or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of the national security. Such conduct includes violation of a promise upon which the DOE previously relied to favorably resolve an issue of access authorization eligibility. Section 710.8(l) (hereinafter Criterion L).

The concerns under Criterion L are based on the fact that the individual signed a DOE Drug Certification form on March 23, 1988, giving his assurance that he would not use or be involved with illegal drugs. The Notification Letter states that the individual violated this agreement in August 1995 when he used "speed."

The Notification Letter informed the individual that he was entitled to a hearing before a Hearing Officer in order to respond to the information contained in that letter. On March 19, 1996, the individual requested a hearing. The individual's request for a hearing was forwarded by DOE/XXXXX to the Office of Hearings and Appeals (OHA). On April 30, 1996, I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was convened in XXXXXXXXXXXXXXXXXXXXX, on XXXXXXXXXXXXX.

At the hearing, the individual represented himself and testified on his own behalf. He presented as a witness a friend and co-employee at the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. <2> He also presented the testimony of Dr. XXXXXXXXXXXXXXXX, a psychologist and head of the Employee Assistance Program (EAP) at XXXX. The DOE/XXXXX Counsel presented the testimony of a security specialist; that of a DOE consultant psychiatrist, Dr. XXXXX; and finally that of XXXXXXXXXXXXXXXXX, Medical Review Officer at XXXX.

II. FINDINGS OF FACT

The following facts in this case are not in dispute. The individual is XXXXX years old and is employed at the XXXX. He is a

XXXXX. In 1988, when the individual was initially being considered for an access authorization, he admitted that he used marijuana while he was in high school. As a result of that admission, he was asked to sign a Department of Energy Drug Certification Form. On March 23, 1988, he signed that form, indicating his commitment not to use illegal drugs while he is the holder of a DOE access authorization or security clearance. In March 1995, the individual agreed to participate in the Personnel Security Assurance Program (PSAP). See 10 C.F.R. Part 710, Subpart B. In connection with PSAP, he signed a statement agreeing to supervisory review, medical assessment and testing for the use of illegal drugs. <3>

On August 27, 1995, the individual was notified that he was to report for a random drug test under the PSAP. The result of the test, which was performed that day, was that the individual tested positive for the presence of amphetamine and methamphetamine in his urine. In a PSI conducted on October 3, 1995, the individual admitted to using "speed" either one or two days prior to the drug test. Transcript of October 3, 1995 PSI at 20 (hereinafter PSI Tr.). He stated that he and a friend visiting from XXXXX were about to go on a fishing trip. He indicated that he was feeling tired and that his friend urged him to take the "speed" in order to stay awake for the trip. He stated that he used less than a "Q-Tip" size amount of speed. PSI Tr. at 9-10. He admits that he made a "terrible mistake" and a "terrible choice." PSI Tr. at 16.

The record also indicates that beginning in October 1995, the individual participated in a rehabilitation program that included the following elements: a three-week, twelve hour a day, six day a week outpatient program with XXXXXXXXXXXXXXXXXXXXXX, attendance at three Alcoholics' Anonymous (AA) meetings a week, and monthly counseling sessions with Dr. XXXXXXXXX for the past nine months. The individual also underwent at least eleven random, follow-up drug tests. He submitted the laboratory results of the tests, all of which were negative for the presence of drugs and alcohol.

III. ANALYSIS

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

A. Criterion K

1. Derogatory Information

There is no dispute as to the fact that the individual took an illegal drug, "speed," which produced the positive drug test. I therefore find that the DOE/XXXXX properly invoked Criterion K in suspending the individual's access authorization.

2. Mitigating Factors

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

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. In this type of case, we are dealing with a different standard, which is designed to protect national security interests. A hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). The burden is on the individual to come forward at the hearing with evidence to convince the DOE 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. § 710.27(d). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Dept' of Navy v. Egan, 484 U.S. 518,531 (1988) ("clearly consistent with the national interest" standard for the granting of security clearances indicates "that security determinations should err, if they must, on the side of denials"); Dorfmann v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)(strong presumption against the issuance of a security clearance). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 at 85,511 (1995). As discussed below, I find that the individual in the present case has not carried his burden in this regard, and I will therefore recommend that his access authorization not be restored.

At the hearing, testimony was presented concerning mitigation of the DOE security concerns under Criterion K regarding this individual. Dr. XXXXX, the DOE consultant psychiatrist, testified that at the time of his evaluation of the individual, on November 14, 1995, he saw no signs that the individual was dependent on or addicted to controlled substances. He believed that the individual was not a user or abuser of controlled substances as a matter of habit or dependence. Transcript of XXXXXXXXXXXXX Hearing at 71 (hereinafter Tr.). Dr. XXXXXXXXX testified that he saw the individual about one month prior to the drug use incident regarding another matter, and a drug test performed at that time was negative. Tr. at 96, 99. This indicates that there was at least one negative drug test for this individual prior to the August 1995 positive test.

As discussed above, there was also testimony from Dr. XXXXXXXXX and the individual that the individual entered a rehabilitation program which required him to attend meetings twelve hours a day, six days a week over a three week period. Tr. at 104. See also, Tr. at 160. The individual provided a letter from the chemical dependency counselor of the treatment program indicating that the individual attended all the required meetings and completed all assignments, that all drug tests were negative for any type of mood altering drugs during the period of the program, and that he progressed "relatively well" in treatment. Letter of November 10, 1995 from XXXXXXXXXXXX, Chemical Dependency Counselor XXXXXXXXXXXXXXXXXXXXXX, to Dr. XXXXXXXXXXXXXXXX. The individual also stated that for the past nine months he has attended three AA meetings a week. Tr. at 161. Dr. XXXXXXXXX testified that he has counseled this individual once a month for the past nine months. Tr. at 96.

Dr. XXXXXXXXXXXXX, the Medical Review Officer of the PSAP program at XXXX, testified that he could not tell from the amphetamine and methamphetamine levels found in the individual's drug test exactly how much speed the individual had taken. Tr. at 156. Nevertheless, according to Dr. XXXXX, those levels were not inconsistent with the small amount of drug use asserted by the individual. Tr. at 157-58.

A friend of the individual testified that he has known the individual since 1984 or 1985. Tr. at 14. He has had contact with him in the Air Force, as a colleague at XXXX and personally, outside the work environment. Tr. at 14, 19-21. Thus, there has been a prolonged and significant relationship between these two individuals. The friend indicated that he has never known the individual to use illegal drugs in the past, and does not believe the individual would use such substances in the future. Tr. at 22.

Thus, there is evidence presented in this case to show some mitigation of security concerns related to drug use. <4>

I am not convinced, however, that this evidence overcomes other significant evidence in the record or that, overall the DOE's security concerns regarding this individual have been mitigated. As stated above, the individual contends that the drug use was a one-time affair, and involved a very small amount of speed. He also states that there was no premeditation, and that the drug was supplied by a visiting friend, who urged him to try the substance. These assertions, if true, tend to mitigate the seriousness of the occurrence. They are the types of mitigating factors that I am to consider under 10 C.F.R. § 710.7(c), set out above. They relate directly to the nature, extent and seriousness of the conduct, the circumstances surrounding the conduct, the frequency and recency of the conduct and the motivation for the conduct.

In order to find mitigating circumstances alleged by an individual involved in a proceeding under Part 710 exist, I must receive appropriate evidence to show that the circumstances described by the individual are true. The more allegations that an individual raises in order to attempt to mitigate the DOE's security concerns, the more evidence he must bring forward to convince me.

In this case, in order for me to be persuaded that the rehabilitation program undertaken by the individual was appropriate, and sufficient to mitigate the DOE's security concerns, I must be convinced that the program was commensurate with the seriousness of drug use by the individual. See Personnel Security Hearing (Case No. VSO-0090), 25 DOE ¶ _______ (July 30, 1996); Personnel Security Hearing (Case No. VSO-0085), 25 DOE ¶ ______ (July 29, 1996). I do not believe the evidence brought forward in this case adequately supports the individual's version of the events surrounding his drug use. Therefore, I am not convinced as to his overall truthfulness with respect to the mitigating circumstances surrounding the drug use, the suitability of his program and the overall sufficiency of his rehabilitation.

As an initial matter, I am skeptical about the individual's key assertion here that his drug use was a one-time affair. A one-time drug use, followed one or two days later by a random drug test, while not inconceivable, is in my view unlikely. I am thus not inclined to accept the individual's assertion that this use was a single event, absent some corroboration. While I recognize that proving a negative is difficult, the individual here has not even attempted to bring forth substantial corroborative evidence. For example, he could have presented a solid slate of colleagues and friends who are well-acquainted with his life-style, who could testify about their knowledge of his drug use, or even as to his views of drug use. He brought forward only one friend to testify as a character witness. Although that witness and the individual appeared to have a long term relationship and the testimony was positive, I am not persuaded by this witness' testimony alone as to the extent of the individual's drug use. <5>

The testimony of this friend suggested to me that in spite of their long-term acquaintance, he actually did not have an in-depth knowledge that could shed light on the drug use habits of the individual. For example, he stated that drug use was "just not one of their subjects." Tr. at 25. Their subjects were fishing and their children. Tr. at 26. The fact that this friend and the individual did not discuss drugs does not provide particularly strong support for the individual's assertion that this was a one-time drug use. It does not suggest to me that the individual does not use drugs. Rather, the statement suggests to me that the individual did not confide in this particular friend on drug issues. Thus, I conclude that this friend has no real knowledge about the very area under scrutiny: whether the event being considered here is a one-time affair.

In this regard, the friend stated "I know that he never has before and never has since" [used controlled substances]. Id. However, the individual himself admitted that he used marijuana in high school and further that, in a separate incident, he was in an automobile in which a marijuana cigarette was found.<6> PSI Tr. at 14. Thus, the individual's friend appears to be uninformed about some important and highly relevant aspects of the individual's past. See also, Tr. at 16. He made an extremely broad assertion that was untrue about a key issue in this case.

Moreover, the individual appears to have told this friend very little about the drug use incident involved here. The friend testified that the individual revealed the drug use incident to him to unburden himself. Tr. at 28. However, the friend seemed to know few details about the event itself. Tr. at 15. The individual did not reveal when it happened, or the identity of the out of town guest. Tr. at 16, 27. The friend also did not seem to know many details about the individual's rehabilitation program. Tr. at 29.

I therefore conclude that this friend did not have in-depth knowledge of the individual's personal life, that the individual did not share very many confidences with this friend regarding the event under consideration here, or regarding his views of drug use, in general. I therefore cannot accord great weight to this witness' testimony.

The individual also submitted five letters from managers who have worked with him and/or supervised him. The writers of these letters all attested to the individual's good character and his fine job performance. Most stated specifically that they had no reason to believe that the individual presented any threat to national security.

The views of these individuals are not particularly convincing. There is no indication that they were aware of the drug use issue involved in this proceeding when they wrote the letters. Only one letter-writer seemed to be aware that the individual's PSAP certification was an issue. None discussed whether to their knowledge the individual used drugs. <7>

At least one letter raised issues which I believe needed exploration. Specifically, one letter-writer stated that the individual "continues to address his personal issues that he has been confronted with and is making great effort to modify his personal lifestyle to meet the merits of his professional life at the laboratory. In many conversations with him, I have been convinced that he is sincere in his endeavor to modify his lifestyle to meet the expectations set forth for him." I would have liked to have had the signer of this letter before me at the hearing so that I could question him about what personal issues he believed were confronting the individual, and what modifications he believed that the individual was making. It is certainly conceivable that this letter-writer had some personal knowledge bearing on the issues in this case.

There was no opportunity to question these letter-writers and judge their familiarity with the circumstances surrounding this case when they wrote the letters. I had no way of evaluating their knowledge, expertise and credibility.

For these reasons I find the character evidence presented by the individual to be rather weak. This evidence certainly does not adequately support his assertion of a one-time drug use.

Moreover, the individual has presented no persuasive evidence to support the contentions that the event was unpremeditated and involved a very small amount of speed taken on a one-time basis. The individual did not bring forward the very person who could support these assertions. He provided only the most general description as to his identity. He stated that the person who offered him the drug was a friend visiting him from XXXXX. He indicated that they served together in the Air Force, but that they had not seen each other since that time (a period of at least seven years). The individual refused at the PSI to reveal the name of this friend. PSI Tr. at 40.

I find this refusal to be highly significant. It shows me that the individual was not willing to be completely candid with the DOE as to the circumstances surrounding the illegal drug use. It seems to me that he may have elevated a desire to protect a friend above the DOE's security concerns.

I am also concerned that this unwillingness to reveal the identity of the friend may indicate that the individual's assertion of a minimal, unpremeditated, one-time drug use with a friend from out of town may not be reliable. In this regard, I noticed in the transcript of the PSI several small, but troubling, inconsistencies and ambiguities in connection with the individual's descriptions of the friend. For example, the individual stated: "...my friend had taken off from work, you know, and he came over." PSI Tr. at 26. This sounds like the individual had a rather casual visit with a local friend, who took the day off and went over to the individual's home. Later in the interview, however, the individual indicated that the friend was staying with him. PSI Tr. at 32. This does not seem entirely consistent with the phraseology, "he came over." Using that expression is not the normal manner of referring to a visiting house guest who comes from a city thousands of miles away.

At another point in the PSI, the individual stated that he and the person from XXXXX are "good friends." PSI Tr. at 20. Later, the individual indicated that it was the friend's first visit since they were in the Air Force. PSI Tr. at 32. It has been a period of at least seven years since the individual was in the Air Force. The individual and his friend from XXXXX, appear not to have been in the habit of having regular visits. Yet the individual describes the person from XXXXX as a "good friend." It is not inconceivable that they remained good friends. Nevertheless, my overall impression here is of a description of two different people: an out of town guest and a local friend. In fact, at one point the individual stated "I supervise him" [i.e. the friend]. PSI Tr. at 32. <8> This further suggests that this person was not a friend from XXXXX, but a person with whom the individual has a current working relationship.

This is not to say that the individual's statements were necessarily false and cannot be reconciled. However, I find a troubling inconsistency and ambiguity here that should have been cleared up by identifying the friend and calling him to testify. As I stated above, in this proceeding, it was the individual's burden to bring forward this type of information to confirm, as he has asserted, his key assertions that this was a one-time, minimal and unpremeditated drug use with a friend from out of town. <9>

Moreover, the testimony of Dr. XXXXXXXX, manager of the Employee Assistance Program at XXXX, and the individual's own treating psychologist, was equivocal, and did not provide strong support for the individual. Dr. XXXXXXXXX' testimony was replete with hesitations and qualifications concerning the individual's rehabilitation.

For example, when Dr. XXXXXXXXX was asked whether he believed that the individual was rehabilitated from drug use, he indicated that generally if a person is a drug abuser or drug dependent and then goes through a treatment program and remains drug free, one would say he is in "remission." However, he stated that did not wish to use the concept of rehabilitation in this case, since there was no indication of drug abuse or dependence. He preferred the term "reformation." Tr. at 122. Dr. XXXXXXXXX qualified this, however, by stating that "from our information" there was a one time use, and that the individual "gives the impression" that he plans to refrain from any further drug use. Tr. at 121. Dr. XXXXXXXXX seemed unwilling to make a direct and unqualified statement as to the rehabilitation status of the individual, nor would he squarely affirm that he believed that the individual's use of speed was a one time event.

When pressed further as to whether he believed that the individual would use drugs again, Dr. XXXXXXXXX responded:

...he certainly would not seek to subject himself to the likelihood of being in this situation again. Now, that is not to say that he never would. I'm saying that if we have to go on probability, opinion, 51/49, I would say more than likely that he would seek to refrain from further use of drugs...in this environment [while employed at XXXX].

Tr. at 122-23.

This is certainly not a very strong recommendation. Dr. XXXXXXXXX sees virtually no more than an even chance that the individual will refrain from drug use in the future. Although I asked Dr. XXXXXXXXX if he thought that possibility might be greater than 51/49, he would commit to saying no more than probably so, and that the individual would probably not use drugs again in the XXXX environment. However, he did not provide numerical probability other than the 51/49 figure. Tr. at 123. I conclude from this that Dr. XXXXXXXXX believes that there is not strong evidence that the individual is sufficiently rehabilitated or reformed, and that Dr. XXXXXXXXX is not especially optimistic about the prognosis in this case.

Moreover, as indicated in the passage cited above, Dr. XXXXXXXXX qualifies his overall opinion by stating that "our information" was there was a one-time drug use, rather than testifying in a straightforward manner that he believes that there was a one-time use. Although he never directly challenged the individual's version of the circumstances of the drug use, Dr. XXXXXXXXX did not appear to me to be strongly convinced about the individual's assertions regarding the drug use event. <10>

Overall, I find a scarcity and inconsistency in the evidence brought forward here. I further find the individual's own psychologist to be rather uncertain about this individual's veracity and the level of his rehabilitation. I am therefore not convinced by the individual's account of the circumstances surrounding his drug use, including the amount, and the extent of the usage. I am also not persuaded by the individual's description of the friend who allegedly supplied the drug. I therefore cannot find that the rehabilitation program he undertook was appropriate, and his 10 month period of abstinence from drugs is sufficient. See Albuquerque Operations Office (Case No. VS0-0023), 25 DOE ¶ 82,761 (1996); aff'd, Personnel Security Review (Case No. VSA-0023) 25 DOE ¶ _____ (November 14, 1995). See also Personnel Security Review (Case No. VSA-0049), 25 DOE ¶ 83,011 (1996). Accordingly, I cannot conclude that the individual has shown that he has been rehabilitated from his use of drugs.

In view of the above considerations, I find that the DOE's security concerns arising under Criterion K have not been mitigated.

B. Criterion L

1. Derogatory Information

As indicated above, the individual signed a drug certification form in 1988, giving his assurance that he would not use illegal drugs. Further, he agreed to participate in the PSAP, giving his commitment to maintaining the highest standards of human reliability. His admitted violation of both of those promises gives rise to a DOE security concern with respect to this individual's trustworthiness, honesty and reliability under Criterion L. As indicated with respect to Criterion K above, I must consider whether mitigating circumstances exist which would allay those security concerns. See 10 C.F.R. §710.7(c).

2. Mitigating Factors

At the hearing, there was considerable testimony regarding this individual's judgment and reliability from both Dr. XXXXX and Dr. XXXXXXXXX. Dr. XXXXX testified that he had a concern as to this individual's judgment and reliability. Specifically, he indicated that for someone with the individual's extensive background in security awareness, use of an illegal substance easily and in a friendly atmosphere reflects a deficit in judgment and reliability. Tr. at 72-74. He testified that such a deficit would be overcome by showing good judgment or reliability over a period of time. Tr. at 75. He thought that the individual's treatment program will probably help him to display good judgment in the future. Tr. at 78. Dr. XXXXX also testified that it was a good indicator of restored reliability if the individual had not used drugs again since the positive drug test. Tr. at 81-82. However, Dr. XXXXX had evaluated the individual only once, in November 1995. Thus, his views of the individual's current status are not as informed as those of Dr. XXXXXXXXX, who has had repeated contact with the individual.

Dr. XXXXXXXXX' opinion regarding the individual's judgment and reliability was mixed. In response to the question as to whether he believed that the individual's judgment would be questionable in the future, and whether his judgment had improved, Dr. XXXXXXXXX stated the following to the individual:

...none of us knows the future. But just in terms of the fact that this incident has had a high impact on your life, on your self-esteem, on your employment here..., it has been a focus of your efforts to regain your self-esteem your reputation. And certainly proved to those around you that...you are not someone who uses drugs and someone who could not be trusted and someone who is a poor performer. I have spoken with some of your supervisors since you've been in the program to get an update on how you have been doing and have been told that you were doing well in terms of your job responsibilities.

Tr. at 119.

This testimony indicates that reports about the individual suggest that his work performance is good and that he is not thought of as someone who cannot be trusted. Yet, Dr. XXXXXXXXX avoided directly expressing his own opinion here on the individual's reliability and trustworthiness. In this interchange, he reported only what others told him. Moreover, Dr. XXXXXXXXX addressed the issue of the individual's performance on the job. While reliability at work is of some relevance, it certainly does not cover the subject of DOE security concerns as a whole. Thus, this answer by Dr. XXXXXXXXX is at best incomplete. Further, I certainly cannot give great weight to the statements of unidentified XXXX employees, as reported by Dr. XXXXXXXXX. In sum, this testimony of Dr. XXXXXXXXX does not strongly support the individual.

In an attempt to ascertain Dr. XXXXXXXXX' own position on the individual's reliability I subsequently posed the following question: "What is your view of [the individual's] reliability at this point?" His response was as follows:

...from the information that I've been able to obtain from [the individual], from people who have been observing him prior to this incident and subsequent to this incident, there has been a definite effort on his part to show that he is reliable, in terms of coming to work and doing his job.

Tr. at 124.

Dr. XXXXXXXXX again only referred to the individual's reliability on the job, and his efforts in that regard. He did not offer any opinion as to reliability from a broader perspective. For example, he did not express a view as to the individual's overall reliability in non-work related circumstances. An access holder's reliability and trustworthiness outside his employment are clearly important aspects of the DOE's security concerns. <11> Further, Dr. XXXXXXXXX once again qualified his opinion by stating that it was derived from information obtained from the individual and from others who have observed him. He did not offer an opinion based on his own observation.

I find Dr. XXXXXXXXX' resistance to offering an opinion of his own in unequivocal terms to be highly significant. Dr. XXXXXXXXX testified that since July of 1995 he has seen the individual for treatment nine times, and that the sessions lasted from 30 to 45 minutes. Tr. at 96, 100. The most recent of these sessions was two days before the hearing date. Tr. at 99. In addition, the individual testified that he told Dr. XXXXXXXXX more about this incident than anyone else. Tr. at 117-18. In spite of this intense, direct contact with the individual over a significant period of time, ending with a meeting as recently as two days prior to the hearing, Dr. XXXXXXXXX still did not seem confident enough to testify clearly and decisively for the record that in his opinion the individual was reliable and that his good judgment had been restored. His testimony was guarded, hesitant and tempered by qualifications. He did not respond easily and directly to the questions posed. I found him to be a reluctant witness.

I therefore conclude that this testimony does not adequately support the individual in this case and does not outweigh the concerns that I expressed above regarding the lack of corroboration in this case of key assertions made by the individual. I am not convinced about the truthfulness of his account of the circumstances surrounding the drug use. I am therefore not persuaded as to his current reliability and trustworthiness. See Personnel Security Hearing (Case No. VSO-0051), 25 DOE ¶ 82,784 (1995); aff'd, Personnel Security Review (Case No. VSA-0051), 25 DOE ¶ ______ (May 17, 1996). Moreover, I am concerned that there may be other issues about which the individual will be less than candid when it comes to DOE security concerns.

IV. CONCLUSION

I therefore find that the individual has failed to present mitigating evidence to overcome the security concerns raised by the DOE/XXXXX under Criteria K and L. In view of the record before me, I am not persuaded that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I find that the individual's access authorization should not be restored.

The regulations set forth at 10 C.F.R. Section 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W. Washington, D.C. 20585-0107, 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.

Virginia A. Lipton

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.

<2>/ XXXXXXXXXXXXXXXXXXXXXXXXXXXX is the DOE contractor that operates the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX in

XXXXXXXXXXXXXXXXXXXXX.

<3>/ A detailed description of PSAP is set forth in Personnel Security Hearing (Case No. VSO-0012), 25 DOE ¶ 82,754 (1995).

<4>/ The DOE Security Specialist testified about the DOE's security concerns involved in this case. Since there is no issue as to the nature of those concerns, I will not give them direct consideration in this Opinion.

<5>/ In a letter of June 10, 1996, I indicated to the individual that he should support his drug use claims by bringing in witnesses who would be able to discuss whether they had ever known him to use drugs. I made the same point about the necessity of presenting several witnesses during our June 11, 1996 pre-hearing telephone conference. The individual nevertheless asked only one character witness to testify on his behalf.

<6>/ The individual states that he was cleared of this incident.

<7>/ In the June 10 letter, I also indicated to the individual that character testimony in the form of letters might not be sufficient because the letters would not provide me and the DOE Counsel with an opportunity to examine the letter-writers and judge their knowledge, demeanor and credibility.

<8>/ After this statement, the transcript contains the notation "inaudible." Thus, there is certainly a possibility that there is an explanation for the individual's statement that is consistent with the account that he has given. Nevertheless, without some outside testimony on this point, I am not convinced by the individual's version of the event.

<9>/ The DOE Security Specialist who conducted the PSI told the individual that if he did not provide the name and location of his friend, the DOE might not be able to confirm the statement regarding his use of speed. PSI Tr. at 40. Thus, the individual has been on notice that this was a matter of some importance.

<10>/ XXXXXXXXXXXX, the individual's chemical dependency counselor during his rehabilitation program, stated in the November 10 letter referred to above: "I cannot state without some doubt if in fact [the individual] is chemically dependent." It therefore appears that the individual's drug counselor was also not totally convinced about the level of the individual's rehabilitation or his assertion that the drug use was a one time event. Dr. XXXXXXXXX referred to conversations that he had with Mr. Arnold regarding the individual's rehabilitation. According to Dr. XXXXXXXXX, Mr. XXXXXX "couldn't come to a final conclusion but decided on the probability more likely than not [that the individual was] not someone who had a problem." Tr. at 117. Thus, once again there is some hesitation and uncertainty on the part of an expert as to the individual's drug use status. However, since Mr. XXXXXX was not before me, it is difficult for me to gauge his views as to this individual's drug status. I cannot accord them significant weight.

<11>/ Dr. XXXXXXXXX did state that he "did not have the impression that [the individual] was a likely candidate for coercion." Tr. at 124. Thus, on this issue, Dr. XXXXXXXXX did offer his own impression for the record. However, while this is an assertion that is somewhat favorable to the individual, it does not address the reliability question. A holder of an access authorization could be resistant to coercion, yet still be unreliable in other ways.