Case No. VSO-0101, 26 DOE ¶ 82,766 (H. O. Tao Jan. 28, 1997)

For full history of this case, and links to other cases, click here.

* 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.

January 28, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing:June 21, 1996

Case Number:VSO-0101

This Opinion concerns the eligibility of XXXXXXXXXXXX (hereinafter referred to as "the individual") to retain an 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

The individual is an employee of a Department of Energy (DOE) contractor. As a condition of his employment, the DOE and the individual's employer require that the individual obtain and maintain a security clearance. Upon learning from the individual that he had recently passed out from taking too many pills, the Personnel Security Division of the DOE (DOE Security) conducted a Personnel Security Interview (PSI) with the individual. Following this interview with the individual, DOE Security determined that information existed that was substantially derogatory and created questions regarding the individual's continued eligibility for access authorization. Accordingly, a DOE Official suspended the individual's access authorization and obtained authority from the Director of the DOE Office of Safeguards and Security to initiate an administrative review proceeding.

On May 16, 1996, the DOE Official 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 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), 710.8(k), 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 3, 1996 letter, the individual requested a hearing on this matter. A DOE Official forwarded the individual's request to the Office of Hearings and Appeals (OHA) on June 21, 1996. The Director of the OHA appointed me the Hearing Officer in this matter on June 25, 1996. In accordance with 10 C.F.R. § 710.25(f), I conducted a prehearing telephone conference with the parties on September 11, 1996. Later that month, I convened a hearing involving all of the parties. The individual was the only witness to testify at the hearing.

At the hearing, I permitted the individual the opportunity to supplement the record to support his statement that he had successfully completed a substance abuse counseling program. Hearing Transcript at 27 and 30-31 (hereinafter referred to as Tr.). On October 8, 1996, the individual submitted a signed statement from his former substance abuse counselor that raised additional important questions regarding the individual's recovery from an addiction problem.<2> In an October 9, 1996 conference call, which included the DOE Counsel, the individual stated that the substance abuse counselor was willing to answer additional questions. In an October 29, 1996 letter, I requested that the individual have his former substance abuse counselor respond in writing to seven questions. The individual did not provide a response from the counselor to these questions. Accordingly, I officially closed the record and notified the parties of this action in a December 30, 1996 letter.

II. Statement of Derogatory Information

As indicated above, the Notification Letter issued to the individual on May 16, 1996, included a statement of derogatory information in the possession of the DOE that created a substantial doubt as to the individual's continued eligibility to hold a security clearance. On the basis of that derogatory information, the DOE Official believes that the individual: (1) "deliberately misrepresented, falsified or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, a Personnel Qualifications Statement, a personnel security interview, in written or oral statements made in response to an official inquiry regarding . . . [the individual's] eligibility for DOE access authorization, or during proceedings conducted pursuant to Sections 710.20 through 710.31, inclusive, of Title 10, Code of Federal Regulations, Part 710"; (2) "[t]rafficked in, sold, transferred, possessed, used, or experimented with a drug or other substance listed in the Schedule of Controlled Substances established pursuant to Section 202 of the Controlled Substances Act of 1970"; and (3) "[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." See 10 C.F.R. § 710.8(f), (k), and (l). Specifically, the Notification Letter states that the individual used marijuana on three occasions in December 1995 and has a history of abuse of prescription drugs. Furthermore, the Notification Letter charges that, during the individual's January 1996 PSI, the individual deliberately misrepresented his use of marijuana and problems with prescription drugs. Finally, the Notification Letter states that the individual's use of marijuana and awareness at that time of the DOE policy regarding illegal drug usage for security clearance holders demonstrates that the individual is not honest or reliable.

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 these factors and all the evidence in the record in this proceeding, I find that the individual has failed to make this showing. I must recommend, therefore, that DOE Security not restore his clearance.

A. Falsification

The DOE Official alleged in the Notification Letter that the individual deliberately misrepresented his usage of marijuana during the January 1996 PSI. The DOE Official based this charge on a medical record from a doctor who wrote that the individual had tested positive for marijuana in April 1995. DOE Exhibit 9. The DOE Official alleged that the doctor's medical record contradicted the individual's statement in the January 1996 PSI that he had used marijuana only three times since he was a teenager and that these occasions all were in December 1995. At the hearing, the parties stipulated that the date of the positive test for marijuana recorded in the medical record in question was, in fact, a mistake. Tr. at 13-14. The parties agreed at the hearing that the individual did not enter this doctor's care until May 1995 and that the positive test for marijuana this doctor referred to in his report was actually a test in December 1995. Tr. at 13-14. Since the DOE has acknowledged this doctor's error, there is no evidence indicating that the individual deliberately misrepresented his usage of marijuana during his January 1996 PSI. Accordingly, I find that the individual was truthful during his January 1996 PSI regarding his marijuana usage.

The DOE also contends that during the January 1996 PSI, the individual deliberately misrepresented his history of prescription drug abuse. I find that the individual did not knowingly falsify information during this PSI regarding prescription drug abuse. The facts to support this finding are clear. The interviewer asked the individual during the PSI, "[d]id you feel that you were addicted to any prescription medication?" DOE Exhibit 8 at 8 [emphasis added]. The individual responded that he did not feel that he was addicted nor did he feel that he had a serious problem regarding prescription medication. DOE Exhibit 8 at 8-9. Although several medical reports written around the time of the PSI indicate that others believed the individual had a problem with prescription medication abuse, I have no reason to believe that the individual ever saw those reports or believed himself that he had a problem. Before the PSI, one doctor informed the individual that he believed the individual had a problem with prescription drugs, but the individual admitted this fact during the PSI. DOE Exhibit 8 at 8; Tr. at 37. The individual testified that he only came "to terms" with his addiction problem "over the course of the entire treatment" he received at a substance abuse counseling center in January and February 1996.<3> Tr. at 17, 23. I believe the individual answered the interviewer's questions in the January 1996 PSI based on his personal feelings at that time regarding the state of his addiction problem. I do not believe that the individual intended to deceive the interviewer. The interviewer asked the individual how he felt regarding a possible addiction problem, not how others had evaluated him. There is simply no evidence before me to indicate the individual himself believed he had a problem with prescription drugs. Accordingly, I find that the individual did not deliberately falsify information during his January 1996 PSI.

B. Illegal Use of Controlled Substances

1. Marijuana

From the record in this case, there can be no doubt that the individual used marijuana on three occasions in December 1995. The individual's admitted marijuana usage clearly satisfies the factors outlined in 10 C.F.R. § 710.8(k). The individual claims however, that there are mitigating circumstances regarding his marijuana usage. Specifically, the individual stated that following his divorce, he dated a woman who smoked marijuana and that he smoked it with her in December 1995 because he did not want to be alone at Christmas. Tr. at 15, 39. The individual testified that smoking marijuana with this woman was a mistake, that it occurred at a "weak moment," and that he would not do it anymore. Tr. at 15, 39-40. Also, the individual noted that he is no longer dating this woman. Tr. at 40.

I find that the individual's explanation for smoking marijuana is insufficient to mitigate his use of the illegal drug. Even accepting the individual's claim that he had a "weak moment" during a stressful time in his life, I do not believe the circumstances surrounding his illegal drug usage excuse his behavior. I believe the individual, who admits he was aware at the time of the DOE policy regarding illegal drug usage, simply did not take seriously his responsibility to abide by it. Although he now admits his mistake, the individual's "weak moment" demonstrates a casual and deliberate disregard of the law and DOE policy. I do not find this an acceptable explanation, standing alone, to serve as a mitigating circumstance regarding his use of marijuana. See Personnel Security Hearing (Case No. VSO-0065), 25 DOE ¶ 82,798 (1996), affirmed, 26 DOE ¶ 83,002 (1996); (DOE Office of Safeguards and Security revoked the clearance in 1996).

2. Prescription Medications

The individual used prescription pain medications to relieve chronic neck pain and headaches over a period of several years following a car accident in 1988. Tr. at 14- 15. He admits that he became addicted to a prescription medication called Esgic. Tr. at 15. Furthermore, the individual's medical records indicate the individual had an addiction to pain medications, abused Valium and other prescriptions, lost consciousness at home from medications, and eventually received treatment for drug abuse. DOE Exhibit 9. In a medical record dated January 9, 1996, one doctor noted, "[a]t this time the patient has not fully complied with recommendations for his drug rehab . . . [t]hus the patient is discharged from the program for noncompliance." Id. Another doctor noted in a medical record that the individual's sister told him that the individual had a problem with drug abuse for "about 20 years" and that "he gets some type of narcotic or sedative to take every day." Id. The medical records also state that the individual has had a drug abuse problem. Id. The individual also conceded during the hearing that since 1993, he has had "a long history of drug abuse." Tr. at 33.

The individual contends that he did not knowingly abuse prescription medications and that he lost consciousness at home as a result of mistakenly combining prescriptions from two different doctors. Tr. at 41. He also stated that since he has now successfully completed counseling for his drug abuse and has found alternate means of dealing with his pain and headaches, he is no longer addicted to or taking any medications. Tr. at 17-19. The individual also responded to several statements made about him in the medical records. First, the individual stated that the doctor who wrote that "the patient is discharged for noncompliance" since he did not attend his employer's drug rehabilitation program, did not realize that the individual had just begun, on the day before, a drug counseling program at a substance abuse counseling center. Tr. at 24. Second, the individual stated that, when his sister made statements to his doctor concerning drug abuse, "she was mad at me . . . and she's a hot-head . . . and it's not a true statement." Tr. at 29. Third, the individual stated that he did not know why one of the doctors wrote that he abused Valium. The individual testified, "[h]e prescribed it, I asked to go off the Valium, and he put me back on it. . . . I don't think that I abused the Valium, but it's his opinion, I guess, that I did." Tr. at 33. Finally, the individual also states that the doctor who wrote that he had a history of both drug and alcohol abuse "didn't even know me. . . . He was an emergency room doctor. . . .I've not had any history of alcohol abuse, period." Tr. at 33.

In support of his contention that he successfully completed the substance abuse counseling center program, the individual submitted, more than a week after the hearing, a statement from his substance abuse counselor dated September 30, 1996. In this statement, the counselor attested that the individual completed outpatient treatment on February 15, 1996. However, the September 1996 statement contradicted some recommendations made by the same counselor in a discharge summary dated February 15, 1996. The February 1996 discharge summary states,

[The individual's] prognosis is favorable but contengent [sic] on his follow up with his discharge plans.

Discharge Plan: Attend three AA/NA [Alcoholics Anonymous/Narcotics Anonymous] meetings per week, Attend Continuing Care support group one time weekly times one year, and attend Continuing Care education group one time weekly times 16 weeks.

DOE Exhibit 9. The September 1996 statement states,

[the individual's] prognosis at the time of discharge was favorable and remains so as of this writing. His current risk of relapse is seen as low and his treatment a success. The fact that [the individual] . . . chose not to attend Continuing Care as often as I suggested has no bearing on his ability to remain free of mood altering substances.

Individual's Exhibit 1. The individual admitted during his testimony that he did not attend AA, NA or Continuing Care meetings after May 1996. Tr. at 37-39. In order to clarify the substance abuse counselor's contradictory statements and since the individual did not present the counselor as a witness, I requested that the counselor respond to an additional seven written questions provided in part by the DOE Counsel. The individual stated that the counselor was willing to answer these questions, but, in fact, he never filed a response with the OHA or offered any explanation as to why the substance abuse counselor might have been unavailable. Absent the DOE Counsel's ability to directly cross-examine, or at least question the counselor regarding his September 1996 statement, the post hearing submission is of little evidentiary value.

I do not believe the individual has sufficiently mitigated the concerns surrounding his admitted addiction and drug abuse problems. Although there remain many unanswered questions regarding the success of the individual's rehabilitation from prescription drug problems, a few facts are clear. First, the individual admitted he had a "history of drug abuse" and three different doctors in three different medical records also recognized this fact. Tr. at 33; DOE Exhibit 9. Second, the individual eventually sought treatment at a substance abuse counseling center and completed the program in February 1996. DOE Exhibit 9. Third, the individual attended Alcoholics Anonymous, Narcotics Anonymous and Continuing Care programs until May 1996. Tr. at 37-39. Finally, the individual stopped attending all these programs before the recommended one year or 16 weeks, because he did not "feel the need to" since he believed he was no longer a risk. Tr. at 38-39.

The individual relies on his testimony to prove that he is over his drug problem and that he did not need a full year of treatment programs to rehabilitate himself. I find that the individual's testimony alone is simply not enough for me to believe that he is completely rehabilitated from his addiction problem. The individual is not qualified to render a medical opinion regarding the likelihood that his addiction problem will reoccur. While I believe the individual is sincere in his belief that he will not abuse prescription medication, I do not believe the individual has provided adequate assurances. Although the individual completed a drug rehabilitation program, the fact that he did not follow up with the recommended treatment plan makes me question his potential for being successfully rehabilitated. Accordingly, I find that the individual has failed to submit evidence sufficient to mitigate the security concerns related to 10 C.F.R. § 710.8(k).

C. Reliability and Trustworthiness

Finally, I believe that valid security concerns exist relating to § 710.8(l). That paragraph defines as derogatory any information showing that an individual has engaged in "any unusual conduct . . . which tend[s] 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 or duress. . . . Such conduct include[s] . . . criminal behavior. . . . " In this regard, the individual has demonstrated that he is not trustworthy. The individual admitted that he used marijuana three times in December 1995 with the knowledge that his usage was illegal and contrary to DOE policy. DOE Exhibit 8 at 19. The individual stated that he used marijuana because he smoked it with a woman he was dating then. The individual's willingness to violate DOE policy manifested itself on three separate occasions. This type of behavior, attributed to a "weak moment," or here several weak moments, evinces a repeated willingness to break the law. Ultimately, these actions demonstrate the unreliable nature of the individual during times of stress. In the absence of any additional mitigating evidence concerning this issue, I conclude there exist valid security concerns related to paragraph (l).

IV. Conclusion

Based on the record in this proceeding, I am unable to conclude that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Although I find that the individual did not deliberately falsify information during his January 1996 PSI, I find that he abused prescription medications and knowingly violated DOE policy when he used an illegal drug. Based on these actions, I find that the individual does not have the honesty, reliability and trustworthiness necessary under the regulations to carry an access authorization. Accordingly, I recommend that DOE Security not restore the individual's access authorization.

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. A party must file such a request with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and serve a copy 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. They must file this statement 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

Date: January 28, 1997

<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 or as a security clearance.

<2> The DOE provided its written response to the October 8 submission in an October 24, 1996 letter.

<3> The individual testified that his treatment at the substance abuse counseling center began on January 8, 1996 and lasted for about six weeks. Tr. at 17, 23.