Case No. VSO-0104, 26 DOE ¶ 82,758 (H.O. Goering, Oct. 4, 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:July 12, 1996

Case Number: VSO-0104

This Opinion concerns the eligibility of XXXXX (hereinafter referred to as "the individual") to receive access authorization<1> 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." Because reliable information in the possession of the Department of Energy's XXXXX Operations Office (DOE/XXXXX) created a substantial doubt about the individual's eligibility for a security clearance, the Manager of the DOE/XXXXX has authorized the institution of the administrative review procedures set forth at 10 C.F.R. Part 710. Based on the record before me, I am of the opinion that the individual should not be granted an access authorization at this time.

I. Background

The individual is currently employed by a DOE/XXXXX contractor. He was required to apply for access authorization so that he could perform his work in restricted locations. On June 16, 1995, the individual completed a Questionnaire for Sensitive Positions [hereinafter the QSP], and on December 18, 1995, DOE/XXXXX conducted a Personnel Security Interview [hereinafter the PSI] with the individual. As a result of DOE/XXXXX's investigation and review, the DOE/XXXXX determined that derogatory information concerning the individual created a substantial doubt about his eligibility for an access authorization. Specifically, the DOE/XXXXX discovered information regarding the individual's use of illegal drugs and other unusual conduct. Accordingly, the DOE/XXXXX's Manager obtained

authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

On May 29, 1996, the DOE/XXXXX commenced the administrative review proceeding by issuing a letter to the individual notifying him that the DOE/XXXXX possessed information which created a substantial doubt concerning his eligibility for access authorization. See Letter from Assistant Manager for Management and Administration, DOE/XXXXX, to the individual (May 29, 1996) [hereinafter Notification Letter]. The Notification Letter specifically identified the derogatory information at issue and explained how that information came within the purview of three criteria set forth in 10 C.F.R. § 710.8, which are discussed in Section II below. In addition, the Notification Letter informed the individual of his right under the regulations to file a written response to the derogatory information and to request a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization.

On June 21, 1996, the individual requested a hearing concerning this matter and filed a response to the derogatory information contained in the Notification Letter. Letter from the individual to Whom it May Concern (June 21, 1996) [hereinafter Response]. The DOE/XXXXX transmitted the individual's hearing request, pursuant to the provisions of 10 C.F.R. § 710.25(a), to the Director of the Office of Hearings and Appeals (OHA), who received it on July 12, 1996. The OHA Director appointed me as Hearing Officer in this case on July 15, 1996. I subsequently convened a hearing in this matter.

At the hearing, the individual represented himself and testified on his own behalf. The DOE/XXXXX called three additional witnesses, including a DOE/XXXXX personnel security specialist and XXXXX, M.D., a psychiatrist who interviewed and tested the individual at the request of the DOE/XXXXX. See Transcript of Personnel Security Hearing [hereinafter Hearing Tr.].

II. Substantive Regulatory Criteria At Issue

As noted above, the Notification Letter included a specific description of information in the possession of the DOE/XXXXX that the agency regards as derogatory and which, in the opinion of the DOE/XXXXX, creates a substantial doubt as to the individual's eligibility to hold a security clearance. The information concerned: (1) a psychiatric diagnosis that the individual suffered from substance abuse; (2) alleged use of illegal drugs by the individual; and (3) statements made by the individual at the PSI. According to the Notification Letter, the information falls within the ambit of three regulatory criteria, paragraphs (h), (k) and (l) of 10 C.F.R. § 710.8. Criterion (h) concerns information which reveals that a person has:

[a]n illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist, causes, or may cause, a significant defect in judgment or reliability.

10 C.F.R. § 710.8 (h). Criterion (k) describes information that a person has

[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 (such as marijuana, cocaine, amphetamines, barbiturates, narcotics, etc.) except as prescribed 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). Criterion (l) describes information that a person 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 national security. Such conduct or circumstances include, but are not limited to, criminal behavior, a pattern of financial irresponsibility, or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.

10 C.F.R. § 710.8(l).

III. Findings of Fact

Based on my consideration of all the evidence in the record in this proceeding, which includes the documents the DOE/XXXXX and the individual submitted to OHA in connection with the hearing and all other papers the parties have filed with me, as well as the testimony presented at the hearing, I make the following findings of fact:

A. Psychiatric Evaluation

The individual was interviewed for about one hour by XXXXX, M.D., a board-certified psychiatrist, on January 31, 1996. On the basis of the interview and other information in the possession of the DOE/XXXXX, Dr. XXXXX presented a report to DOE/XXXXX on February 19, 1996, in which he concluded that, with respect to the drug phencyclidine (PCP), the individual met the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) criteria for substance abuse. DOE Exhibit 8 at 54.<2> Those criteria are:

A. A maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12 month period:

(1) recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to substance use; substance related absences, suspensions, or expulsions from school; neglect of children or household)

(2) recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use)

(3) recurrent substance-related legal problems (e.g., arrests from substance-related disorderly conduct)

(4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights)

B. The symptoms have never met the criteria for Substance Dependence for this class of substance.

DOE Exhibit 8 at 51 (quoting DSM-IV at 182-83). Dr. XXXXX found that the individual met criteria A1 (based on his suspension from vocational school for excessive absences and his suspension from work after testing positive for PCP use), A2 (based on his positive drug test for PCP), A4 (based on his continued use of PCP and concealment of that use from his girlfriend after she demanded that he stop using), and B (because, although he met the criteria for Polysubstance Dependence,<3> he did not meet the criteria for PCP dependence). DOE Exhibit 8 at 5, 10-11, 51. Dr. XXXXX also found that the individual's mental condition causes, or may cause, a significant defect in judgment and reliability, based on the effects of PCP generally and on the individual in particular. In his report, Dr. XXXXX noted that "PCP intoxication produces some of the most dangerous and unpredictable behaviors known in psychiatry," and in his testimony stated that "[o]f all the drugs of abuse, PCP is by far the most problematic. When people are under the influence of it, they can get quite aggressive, irrational." DOE Exhibit 8 at 54; Hearing Tr. at 50. Since the manifestations of the diagnostic criteria are well documented in Dr. XXXXX's report and the individual has not presented any evidence to dispute the factual basis of Dr. XXXXX's conclusions, I find that the individual has been properly diagnosed according to the DSM-IV as having a mental condition, substance abuse, which causes, or may cause a significant defect in judgment or reliability.

B. Involvement With Drugs

With respect to the DOE/XXXXX's allegations of the individual's involvement with illegal drugs, the individual admits to using marijuana once in grade school and to using, more recently, both PCP and cocaine. Response at 1. The individual also admits that he has purchased and sold PCP. PSI at 58-59.

In its Notification Letter, DOE/XXXXX alleges that the individual "used PCP . . . from approximately 1980 until 1993 or 1994." Notification Letter, Enclosure 2 at 1. Although there is some ambiguity as to exact dates in the individual's statements, I conclude that the individual used PCP from approximately 1985 to early 1994 (at which time he tested positive for PCP use).<4> It is unclear from the record exactly how frequently he used PCP, but based on the individual's own statements, I conclude that he used the drug at least once a week and as many as four times a week during this period. PSI at 54-56.

As for his use of cocaine, the individual does not dispute that he used the drug in approximately 1988 or 1989, and also in 1995, prior to testing positive for cocaine on March 13, 1995.<5> The individual claims in his response that he used cocaine a total of four or five times in 1988. Response at 1. Yet, the individual contradicted this claim in the PSI, in which he stated he used cocaine "once a week" or "three, four, four or five times a month . . . ." PSI at 47. Of these two contradictory statements, I am more inclined to believe the individual's statement made against his own interest during the PSI, and therefore conclude that the individual used cocaine from three to five times per month.

C. Information Provided at the PSI

The individual has agreed with the following allegations in the Notification Letter regarding information he provided at the PSI: (1) "He stated that he used cocaine only once. However, after further questioning, he admitted to using on multiple occasions"; (2) "He has not told his live-in girlfriend or his mother the full extent of his drug use and could not inform them because they would not respect him"; and (3) "He lied to a substance abuse counselor regarding his substance abuse after a positive drug test . . . ." Response at 1.

The DOE also alleged in the Notification Letter that at the PSI the individual "stated he did not use marijuana. However, after further questioning, he admitted to using it." Notification Letter, Enclosure 2 at 2. The individual responded that, "I stated that I currently do not use marijuana but have used it in the past." Response at 1. I find that the DOE's allegation is true to the extent that the individual did first state in the PSI that he had not used marijuana, and immediately thereafter admitted that he had. PSI at 44 (when asked whether he had used marijuana, individual stated "No. I, I, I d -- yeah, I tried it, but it made me paranoid"). However, this admission was not obtained "after further questioning," as stated in the Notification Letter, and there is no evidence in the record indicating that the individual currently uses marijuana.

IV. Analysis

The applicable DOE 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).

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 granting 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 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, 24 DOE ¶ 82,752 at 85,511 (1995).

Among the factors I will consider in rendering a determination concerning the individual's access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding his conduct, including knowledgeable participation; the frequency and recency of his conduct; his age and maturity at the time of the conduct; the voluntariness of the 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 or material factors. 10 C.F.R. §§ 710.7(c), 710.27(a). It is the totality of these facts and circumstances that will guide me in evaluating whether the individual's access authorization should be granted. As will be discussed below, after careful consideration of the record in view of the standards set forth in 10 C.F.R. Part 710, I find that the DOE/XXXXX properly invoked the criteria set forth in the Notification Letter in questioning the individual's eligibility for a security clearance. I further find that the arguments advanced by the individual in his defense do not mitigate the security concerns underlying these criteria. Therefore, it is my opinion that the individual's access authorization should not be granted.

The DOE/XXXXX relies on 10 C.F.R. § 710.8(h), (k) and (l) as the bases for questioning the individual's eligibility for access authorization. I will begin my analysis by considering the mental condition charge, based on section 710.8(h). I will then consider the DOE concerns regarding the individual's involvement with illegal drugs, activities which are governed by section 710.8(k), and will conclude with an analysis of the individual's honesty, trustworthiness, and reliability, the standards for which are set forth in section 710.8(l).

A. The Individual's Mental Condition (Criterion (h))

I found above that the individual was properly diagnosed according to the DSM-IV as having a mental condition, substance abuse, which causes, or may cause a significant defect in judgment or reliability. The DOE personnel security specialist who testified at the hearing stated the individual's mental condition gave rise to a concern that, given the actual or potential effect of the condition on the individual's judgment or reliability, the DOE could not count on the individual to "follow security regulations or work in a secured area without any compromise to the area." Hearing Tr. at 37.

In his report, Dr. XXXXX also stated that he found no evidence of formal rehabilitation and inadequate evidence of reformation from substance abuse. DOE Exhibit 8 at 55-56. At the hearing, Dr. XXXXX was present during the testimony of the individual. Based on his observations, Dr. XXXXX testified that he would not change his report in any way. Hearing Tr. at 55. In Dr. XXXXX's opinion, complete abstinence from all psychoactive substances during a period of "active treatment" would constitute adequate evidence of rehabilitation. DOE Exhibit 8 at 56. Dr. XXXXX explained in his report:

Either one of two options would be acceptable as active treatment:

1. Satisfactory completion of a professionally led, outpatient, alcohol/drug treatment program, with a minimum of 50 hours of active, professionally led treatment over a minimum of 6 months.

or

2. Documentation of attendance at 12-step recovery programs--i.e., Alcoholics Anonymous (AA) or Narcotics Anonymous (NA)--for a minimum of 100 hours, at least once a week, for a minimum of 12 months.

Id. Dr. XXXXX stated that he would find adequate evidence of reformation (as distinct from rehabilitation) if the individual were to completely abstain from psychoactive substances for a minimum of two years. Id.

The individual has not entered into or completed a drug treatment program or attended a 12-step recovery program. He nonetheless contended at the hearing that he no longer has a problem with drugs and that he has no intention of abusing drugs in the future. Hearing Tr. at 21. He also claimed that Dr. XXXXX's opinion as to rehabilitation and reformation is based on his general knowledge, and that the doctor does not know him well enough as an individual to be able to predict whether he will relapse into drug abuse. Id. at 87-88.

Regarding the individual's expressed intention to refrain from using drugs in the future, Dr. XXXXX testified that these were "good intentions, but that is certainly no guarantee. When I was asked about rehabilitation and reformation, I felt that because of the long drug use history that he really needed two years of not using it to say that you're sort of reformed . . . ." Id. at 55. In addition, Dr. XXXXX testified that he had taken into account factors unique to the case of the individual in reaching his conclusion that he was not rehabilitated or reformed. The doctor recognized that the individual is in a relatively stable social situation (e.g., he is living with his girlfriend and is holding down a job) and that he had successfully stopped smoking tobacco. These factors the doctor saw as "good prognosis signs for not relapsing," but still believed there was too great a risk of relapse at present due to the individual's long history of drug use.

As discussed above, the law places a heavy burden of persuasion on the individual to overcome the security concerns raised by the DOE. Based on the record before me, I find that the individual has not presented sufficient evidence of rehabilitation or reformation from substance abuse.

B. The Individual's Involvement with Illegal Drugs (Criterion (k))

I have made the following findings of fact regarding the individual's involvement with illegal drugs. The individual used marijuana once in grade school, used cocaine three to five times per week in approximately 1988 and 1989 and at least once in 1995, used PCP two or three times per week from 1985 to approximately 1987 or 1988, used PCP between one and four times from approximately 1987 or 1988 until early 1994, and admits that he has purchased and sold PCP.

Several concerns are raised by evidence that an individual has engaged in trafficking, selling, transferring, possessing, using or experimenting with illegal substances. First, any involvement with illegal drugs demonstrates a disregard for the law. In addition, an individual who uses and/or sells illegal drugs opens himself to blackmail or other forms of coercion, because he may want to conceal his usage. Moreover, even if the individual is only an occasional user, while the individual is under the influence of drugs, he may be more susceptible to pressure, coercion, or exploitation.

As stated above, among the factors I am to take into account in reaching my opinion are the nature, extent, and seriousness of the individual's past conduct and the frequency and recency of that conduct. In this case, the individual's past drug use was long-term and relatively frequent. On the other hand, assuming that the individual has abstained from using illegal drugs for over one and one-half years, the chances are less that the individual may use illegal drugs in the future. However, based on the expert testimony of Dr. XXXXX, there is still a significant risk at the present time that the individual will relapse into substance abuse. On balance, the factors present render less reliable any assurances that the individual may now make regarding his intention not to use illegal drugs in the future.

Although the individual's efforts at reformation are commendable, the role of the Hearing Officer in these proceedings is to render an opinion as to whether access authorization can be granted or restored at the present time. Consistent with this role, prior Hearing Officer opinions have found that "it is premature for the individual to invoke her partially completed rehabilitation program as a mitigating factor to the security concerns raised . . . ." Personnel Security Hearing, 24 DOE ¶ 82,753 at 85,529, aff'd, 25 DOE ¶ 83,013 (1995). As discussed in the preceding section, the individual has not been abstinent long enough for me to conclude that he is yet reformed from his prior drug use.

The DOE regulations state that my decision as to access authorization is to be "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). Employing this common-sense approach, after considering the mitigating factors discussed above, I conclude that the DOE properly relied upon the criterion at 10 C.F.R. § 710.8(k) as a basis for questioning the individual's eligibility for a Q clearance.

C. The Individual's Honesty, Reliability, and Trustworthiness (Criterion (l))

I found above that the individual was dishonest in the PSI in response to questions about his use of marijuana and cocaine. The individual has admitted that he lied to a substance abuse counselor regarding his drug use. Hearing Tr. at 31-32. The DOE personnel security specialist testified at the hearing that these instances of dishonesty demonstrate "that he was not only deceptive to the Department of Energy, but there is a pattern of deception to other people in regards to the drug use . . . ." Id. at 41.

There are essentially no factors present in this case which would mitigate the concerns raised by the individual's lack of candor. The record reveals not only one isolated incident of dishonesty. Nor can I excuse the individual's false statements as youthful indiscretions, as the instances are quite recent and the individual is in his late twenties. As an adult, the individual must be held accountable for his conduct, particularly when that conduct reflects dishonesty.

It is therefore my opinion that the individual's dishonesty with the DOE forms a sufficient basis for the DOE/XXXXX to conclude that the individual has engaged in unusual conduct that tends to show that he is not honest, reliable, or trustworthy. Therefore, I find that the DOE/XXXXX had ample justification to rely on 10 C.F.R. § 710.8(l) in questioning the individual's eligibility for access authorization.

V. Conclusion

For the reasons set forth above, I am of the opinion that the record in this case supports a finding that the individual suffers from a mental condition, substance abuse, which causes, or may cause a significant defect in judgment or reliability, as set forth in 10 C.F.R. § 710.8(h), and from which he has not been sufficiently rehabilitated or reformed. I also find that DOE/XXXXX was justified in invoking 10 C.F.R. § 710.8(k) based on the individual's long history of involvement with illegal drugs. Finally, I find that because the facts presented raise serious questions regarding the honesty, reliability, and trustworthiness of the individual, the DOE properly invoked 10 C.F.R. § 710.8(l) in questioning the individual's eligibility for access authorization. Accordingly, I cannot find that granting the individual access authorization would not endanger the common defense and security and would be clearly consistent with the national interest, and it is my opinion that the individual should not be granted 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 this Hearing Officer's 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 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 within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b). The address to which submissions must be sent for purposes of serving them on the Office of Security Affairs is as follows:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874-1290

Steven J. Goering

Staff Attorney

Office of Hearings and Appeals

Date:

<1>Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a). Such authorization will be referred to variously in this Opinion as access authorization or security clearance.

<2>Dr. XXXXX also found that the individual met the criteria for "Polysubstance Dependence, Without Physiological Dependence." However, the DOE did not believe this diagnosis raised a security concern because of the doctor's finding that the condition was "probably in Sustained Full Remission." Exhibit 8 at 54, discussed in Hearing Tr. at 37-38 (emphasis in original).

<3>See supra note 2.

<4>Although the Notification Letter alleges that the individual began using PCP in 1980, the individual stated in the QSP that he began using it in 1985. QSP at 2. I find the individual's statement to be credible, as it is consistent with his answers in the PSI and at the hearing, in which he indicated that he started using PCP in high school. PSI at 53; Hearing Tr. at 15.

<5>Each of the two drug tests, the first which detected PCP and the second which detected cocaine, was taken by the individual at the request of a previous employer.