Case No. VSO-0103, 26 DOE ¶ 82,761 (H.O. Fine Oct. 24, 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.

October 24, 1996

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: July 8, 1996

Case Number: VSO-0103

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 Office (DOE) 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 the Individual's access authorization should not be restored.

I. BACKGROUND

The events leading to the present proceeding began when the Individual, pursuant to a routine reinvestigation of the Individual's eligibility to maintain a security clearance, signed and dated a standardized security questionnaire (the questionnaire). The questionnaire generally consists of thirty sections of questions pertaining to the Individual's fitness for a security clearance. The person completing the form is required to sign and date the following certification:

My statements on this form, and any attachments to it, are true, complete, and are made in good faith. I understand that a knowing and willful false statement on this form can be punished by fine or imprisonment or both. (See section 1001 of title 18, United States Code).

Questionnaire at 9. Section 24 of the questionnaire is entitled "Your Use of Illegal Drugs and Drug Activity." It consists of three questions:

(A) Since the age of 16 or in the last 7 years, whichever is shorter, have you illegally used any controlled substance, for example, . . . cocaine, . . . ?

(B) Have you ever illegally used a controlled substance . . . while possessing a security clearance; or while in a position directly and immediately affecting the public safety?

(C) In the last 7 years, have you been involved in the illegal purchase, manufacture, trafficking, production, transfer, shipping, receiving or sale of any narcotic, depressant, stimulant, hallucinogen, or cannabis for your own intended profit or that of another?

Questionnaire at 8 (emphasis in the original). The Individual signed and dated a questionnaire in which he answered each of these questions in the negative. Twenty-three days later, the Individual was arrested for possession of cocaine.

On the next working day, the Individual reported his arrest to his employer's medical officer and requested to be placed in a substance abuse treatment program. As a result of these events, a DOE Personnel Security Specialist conducted a Personnel Security Interview (PSI) with the Individual in which he was questioned about the arrest, his past drug use and his representations in the questionnaire that he had neither used drugs in the past 7 years nor illegally used a controlled substance while possessing a security clearance. During the PSI, the Individual admitted that he had: (1) used cocaine from late 1994 until the date of his arrest; and (2) intentionally provided false information when completing his questionnaire.

Since this interview did not resolve the security concerns raised by the Individual's use of cocaine and intentional provision of false information, his access authorization was suspended and an administrative review proceeding was initiated. See 10 C.F.R. § 710.9. The administrative review process was commenced by the issuance of a 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 specifies three areas of derogatory information described in 10 C.F.R. § 710.8. First, the Notification Letter presents allegations under Criterion K that the Individual used cocaine. <2> Notification Letter at 2. Second, under Criterion F, the Notification Letter alleges that the Individual intentionally provided false information when completing his questionnaire. Notification Letter at 1. <3> Third, the Notification Letter 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." Notification Letter at 2-3. The Individual filed a request for a hearing in which he made a general denial of the allegations contained in the Notification Letter. This request was forwarded to the Office of Hearings and Appeals (OHA) and I was appointed as Hearing Officer.

At the hearing, the DOE presented only one witness, the DOE Personnel Security Specialist who had conducted the Individual's PSI. The Individual testified on his own behalf and called three other witnesses. The first two witnesses called by the Individual were his present and past supervisors. The Individual then called his substance abuse counselor (the Individual's expert) to provide both expert testimony and testimony based upon the counselor's personal knowledge of the Individual and the Individual's treatment program. The record of this proceeding was closed when OHA received a copy of the transcript of the hearing, See Transcript of Hearing, Case No. VSO-0103 (hereinafter cited as "Tr.").

II. STANDARD OF REVIEW

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 factors to the testimony and exhibits presented by both sides in this case.

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. See Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,802 (1996). Instead, a different standard, designed to protect national security interests is used. 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). Once the DOE has made a showing of derogatory information raising security concerns, 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 Department of the 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); Dorfmont 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). In the present case, I have reached the opinion that the Individual has not met his burden of proving that restoring his clearance is clearly in the national interest.

III. FINDINGS OF FACT AND ANALYSIS

A. Criterion K

There is no dispute that DOE's allegations under Criterion K are valid. The Individual has admitted that he used cocaine on a weekly basis for a period of 15 to 18 months previous to his arrest. PSI at 10-12; Tr. at 24-25. This period was punctuated by a gap of three months when the Individual attempted to refrain from using cocaine, but eventually relapsed. PSI at 11; Tr. at 141-42, 180-81, 212. An allegation of cocaine use is a very serious matter, as this activity indicates a disregard for the law, raises questions about the user's reliability, opens the user to possible blackmail or other forms of coercion, and demonstrates poor judgment. In the present case, the record shows that the Individual's cocaine use actually caused a specific defect in his judgment which led to his intentional provision of false information to the DOE.

The sole issue to be considered under Criterion K is whether the Individual has been sufficiently rehabilitated from his cocaine use to resolve the serious security concerns raised in the Notification Letter. The Individual asserts that he has mitigated the DOE's security concerns under Criterion K by undergoing a successful chemical dependency rehabilitation. In support of this contention, the Individual has provided: the testimony of his expert witness, documentary evidence of his frequent attendance at Alcoholics and Narcotics Anonymous meetings, selected treatment records, and his own testimony.

As an initial matter, I note that in order to determine whether an Individual has been rehabilitated from cocaine use I must consider the nature and extent of his cocaine use. The Individual has been diagnosed as chemically dependent. Continuing Care Program (CCP) Discharge Summary at 1; Intensive Outpatient Program (IOP) Discharge Summary at 1; Testimony of Individual's expert, Tr. at 93. Since his cocaine use was a symptom of his chemical dependency, I cannot conclude that he has mitigated the Criterion K security concerns arising from his cocaine use until he has established rehabilitation from his chemical dependency.

I am impressed by the commitment and effort exhibited by the Individual in addressing his chemical dependency. Immediately after his arrest for cocaine possession, the Individual sought treatment and was referred to a nationally recognized substance abuse treatment center where he was placed in an intensive out-patient treatment program (IOP) for a period of three weeks. According to the IOP discharge summary, his prognosis upon completion of the IOP was "fair to good." Id. The discharge summary further recommended that the Individual participate in the facility's continuing care program (CCP), which included both group and individual therapy sessions. According to the CCP Discharge Summary, the Individual "completed all treatment plan assignments and appeared to gain benefit from them." CCP Discharge Summary at 1. The CCP Discharge Summary went on to note:

Other good indicators of his progress in early recovery has [sic] been his attendance and participation in 12-step groups and this facility's Continuing Care Group. During this course of treatment he has been attending AA/NA groups on the average of 7 times per week and consistently attended the weekly continuing care group sessions.

CCP Discharge Summary at 1. The Individual has also submitted an After Care Meeting Attendance Record which shows that he has attended Alcoholics and Narcotics Anonymous meetings on an almost daily basis.

The Individual's expert cited the following factors as positive signs that the Individual's recovery will succeed: (1) his recovery has been internally motivated (Tr. at 113), (2) a relative absence of external stressors (Tr. at 115-16), (3) his highly enthusiastic participation in his treatment program (Tr. at 120 and 124), and (4) his frequent attendance of Alcoholics and Narcotics Anonymous meetings. The Individual's expert further testified that the Individual's chemical dependency disorder is currently considered to be in Early Full Remission under the diagnostic criteria set forth in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders - IV (DSM-IV) [at 178-181] because the Individual has not used alcohol or drugs for a period of approximately six months. Tr. at 121 and 157.

The evidence set forth above has convinced me that the Individual is fully committed to his rehabilitation. Unfortunately, however, the duration of the Individual's abstinence is not sufficient to resolve the serious security concerns raised by his cocaine use. The present inquiry is not a moral judgment, but rather an assessment of risk and reliability. Given the Individual's previous history of relapse, cocaine use over an extended period (from 15 to 18 months), cocaine dependency diagnosis, and the highly addictive nature of cocaine, a finding that he has been rehabilitated would be premature.

The Individual has testified that he had previously tried to discontinue his cocaine use, but had eventually suffered a relapse after approximately three months. Tr. at 180-181. This previous history of relapse after three months suggests that the Individual must establish a sustained period of abstinence before I could conclude that he does not present an unacceptably high risk of relapse.

A number of highly qualified expert witnesses have testified in previous DOE Security Hearings that individuals with substance abuse disorders are not sufficiently rehabilitated until they have abstained from the use of all psychoactive substances for a period of at least 12 months. See e.g., Personnel Security Hearing, Case No. VSO-0063, 25 DOE ¶ 82,789; Personnel Security Hearing, Case No. VSO-0005, 24 DOE ¶ 82,753, affirmed 25 DOE ¶ 83,013, terminated, (OSS June 7, 1995); Personnel Security Hearing, Case No. VSO-0014, 25 DOE ¶ 82,755; Personnel Security Hearing, Case No. VSO-0018, 25 DOE ¶ 82,758.

The testimony of these experts reflects a widely held view among substance abuse professionals. This consensus is also reflected in the DSM-IV's diagnostic course specifiers for Chemical Dependency Disorders which distinguish between Early Remission and Sustained Remission. Specifically, the DSM-IV states:

Because the first 12 months following Dependence is a time of particularly high risk for relapse, this period is designated Early Remission. After 12 months of Early Remission have passed without relapse to Dependence, the person enters into Sustained Remission.

DSM-IV at 179. As the quote indicates, this consensus among substance abuse professionals exists because substance dependent individuals present a significantly higher danger of relapse during the first 12 months following their sobriety date. This significantly higher rate of relapse provides a sound and reasonable basis for the experts' consensus opinion that a period of 12 months of abstinence from the use of alcohol and drugs is generally necessary to establish rehabilitation. This 12 month standard is not a hard and fast rule. It therefore must be flexibly applied on a case-by-case basis in the DOE's security clearance proceedings. However, Hearing Officers have not deviated from this standard absent significant mitigating circumstances.

The Individual's expert testified that there is no clinical significance to the 12-month standard. Tr. at 146. However, the Individual's expert conceded that the longer one remains abstinent, the less likely they are to relapse. Tr. at 157. More importantly, the Individual's expert, citing the DSM-IV standard, also conceded that the Individual would have to abstain for a period of at least 12 months to be considered in "full remission." Id. In light of the weight of evidence set forth above showing that the 12-month standard is widely recognized, I accord little weight to the Individual's expert testimony that there is no clinical significance to the 12-month standard.

I find that the Individual's use of a particularly addictive drug, his history of intentionally providing false information to the DOE when his disorder was in an active state and his prior history of relapse indicate that reducing the period of abstinence necessary to establish his rehabilitation from 12 months to 6 months is not warranted. I therefore find that the Individual has not mitigated the DOE's security concerns with regard to Criterion K.

B. Criterion F

Under this criterion, DOE's security concerns are based upon the Individual's admittedly intentional provision of false information in completing his questionnaire. PSI at 25-27; Tr. at 200. The Individual contends that the DOE's Criterion F security concerns are mitigated since his intentional provision of false information was symptomatic of his chemical dependency. The Individual further claims that as a result of his alleged rehabilitation from chemical dependency, such dishonest acts are unlikely to recur. In support of these contentions, the Individual's expert explained that denial and deceit are typical symptoms of the disease of chemical dependency. Tr. at 106-08.

The Individual's falsifications are confined to a single isolated incident that was obviously motivated by his desire to conceal his cocaine use. Moreover, at all times after his arrest, the Individual appears to have exhibited candor about his cocaine use. This candor was reflected in his testimony at the hearing and during his PSI. Even the Personnel Security Specialist who made the initial recommendation to discontinue the Individual's access authorization testified that he believed that the Individual had been honest and forthright with him at all times subsequent to this arrest. Tr. at 24-5 and 37-38. Both of the Individual's former supervisors who testified at the hearing believed the Individual to be honest and trustworthy. Tr. at 56 and 66. This evidence along with the expert witness' testimony linking the Individual's chemical dependency disorder to the falsification, has convinced me that the Individual's falsifications were symptomatic of his chemical dependency. I am therefore convinced that as long as the Individual's chemical dependency is in remission, he is not likely to repeat his prior history of intentionally providing false information to the DOE.

However, the Individual's past history of providing false information while his chemical dependency disease was in an active state evidences a high probability that the Individual would repeat his prior history of intentionally providing false information if his chemical dependency were to revert to an active state. Until the DOE can be assured to a reasonable degree of probability that the Individual's chemical dependency is unlikely to return to an active state, it would not be prudent allow him to maintain a security clearance. Since I have concluded that the Individual has not abstained from the use of psychoactive substances for a sufficient amount of time to convince me that he is unlikely to relapse, I find that the DOE's security concerns under Criterion F have not been mitigated.

C. Criterion L

Criterion L 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 specifies four security concerns to support its charge that the Individual's behavior falls within the scope of Criterion L.

The Individual's provision of false information and use of cocaine have raised serious doubts about his suitability to maintain a DOE access authorization. Both his use of drugs and provision of false information have shown that when the Individual's chemical dependency is in an active state, his judgment and reliability are seriously impaired and his trustworthiness cannot be assumed. When the Individual made the decision to use cocaine he knowingly violated the law as well as DOE regulations. By doing so, he put his career and even his freedom in jeopardy, thereby exhibiting extremely poor judgment.

The same can be said about the Individual's decision to provide false information on the questionnaire. The questionnaire specifically warned the Individual that intentional provision of false information would constitute a violation of both the DOE Regulations and at least two federal criminal statutes. Nonetheless, the Individual intentionally provided false answers to two of the questions in the questionnaire. The intentional provision of false information was a blatantly dishonest act which raises obvious questions about the Individual's honesty, judgment and reliability. Once again, I find that the Individual's disregard for the law and his career raise grave concerns about his judgment, reliability and trustworthiness.

DOE also contends that the Individual's statement to the police officer who frisked him on the night of his arrest that a lump in his pocket was marijuana when in fact the lump was cocaine is further evidence of the Individual's dishonesty, untrustworthiness, susceptibility to coercion or duress, or likelihood to act in a manner contrary to the national interest. I agree with the DOE's assessment of this statement and find it constitutes an unmitigated security concern under Criterion L.

DOE contends that the Individual's failure to seek drug treatment until he was arrested and concerned about the possibility of incarceration constitutes a Criterion L security concern. It is true that the Individual had exhibited poor judgment by failing to seek treatment at an earlier date. However, the Individual has mitigated this concern by entering treatment and by submitting evidence that he is highly self-motivated to recover.

Clearly, the Individual's cocaine use, provision of false information to the DOE and false statement to a police officer, indicates that at least until he began treatment, the Individual lacked the judgment, reliability and trustworthiness necessary to maintain a DOE access authorization. The Individual attributes his lapses in judgment and character to his chemical dependency. After reviewing the record, I am inclined to agree with him on that point. I am also inclined to agree that his chemical dependence is in remission. However, the chemical dependency has not been in remission for a long enough time to convince me that his risk of relapse is low enough to mitigate the DOE's security concerns. Accordingly, I find that the Individual has not mitigated the DOE's security concerns with regard to Criterion L as expressed and supported in the Notification Letter.

IV. CONCLUSION

For the reasons set forth above, I conclude that the Individual's chemical dependency has not been in remission for a long enough period to convince me that his risk of relapse is low enough to warrant restoration of his access authorization. The DOE therefore has a sufficient basis for invoking Criteria F, K, and L in the circumstances under which the DOE has suspended the Individual's access authorization. Since the Individual has not shown mitigating circumstances with respect to the DOE's allegations under Criteria F, K, and L, I conclude that the Individual has not demonstrated that restoring his clearance would not endanger the common defense and would be clearly consistent with the national interest. Therefore, it is my opinion that the Individual's access authorization should not be restored at this time.

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.

Steven L. Fine

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>/ Criterion K applies to information that the Individual has: "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 (such as marijuana, cocaine, barbiturates, narcotics, etc.) except as prescribed or administered by a physician licensed to dispense drugs in the practice of medicine, or as otherwise authorized by law." 10 C.F.R. § 710.8(k).

<3>/ Criterion F applies to information that the Individual has: "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, written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization, or proceedings conducted pursuant to § 710.20 through § 710.31." 10 C.F.R. § 710.8(f).