Case No. VSO-0136, 26 DOE ¶ 82,778 (H.O. Hochstadt May 29, 1997)

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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 XXXXXXX's.

May 29, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: February 19, 1997

Case Number: VSO-0136

This Opinion concerns the eligibility of XXX ("the Individual") for continued access authorization under the regulations set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.(1) The Individual's access authorization was suspended by an office of the Department of Energy (DOE office). As explained below, it is my opinion that the Individual's access authorization should be restored.

I. Procedural Background

The Individual is employed by a contractor at a DOE facility in a position that requires an access authorization. In connection with a security reinvestigation, in December 1995 the Individual completed a Questionnaire for National Security Positions (QNSP). He answered "yes" to QNSP question 24b, which asked whether he had ever illegally used a controlled substance while possessing a security clearance. Pursuant to 10 C.F.R. § 710.9(a), a DOE Security Representative conducted a follow-up, recorded Personnel Security Interview (PSI) with the Individual in March 1996. Since that interview did not resolve the agency's security concerns about the Individual, the DOE office suspended his security clearance and requested from the Director of the DOE Office of Safeguards and Security the authority to conduct an administrative review proceeding under 10 C.F.R. Part 710, Subpart A.

The administrative review proceeding began with the issuance of a Notification Letter on January 7, 1997. In that letter the DOE office informed the Individual that "reliable information" in its possession had created a substantial doubt concerning his eligibility for an access authorization. In accordance with 10 C.F.R. § 710.21, Enclosure 1 of the Notification Letter contained a statement of that derogatory information. In a letter dated January 20, 1997, the Individual's attorney responded to the allegations in the Notification Letter and requested a hearing on the Individual's behalf. The DOE office forwarded the hearing request to the DOE's Office of Hearings and Appeals (OHA). The Director of OHA appointed me the Hearing Officer in this matter.

A prehearing telephone conference and the hearing were subsequently held within the time periods specified in 10 C.F.R. § 710.25(f) and (g). At the hearing, the DOE Counsel presented two witnesses: the Personnel Security Specialist who prepared Enclosure 1 of the Notification Letter and a former Personnel Security Supervisor who conducted a PSI with the Individual in October 1980.(2) In addition to the Individual, eight witnesses testified on his behalf: his wife, his personal physician, a long-time friend and co-worker, two supervisors at the DOE facility, a board-certified psychiatrist, a licensed psychologist, and a certified chemical dependence counsellor. During the course of this proceeding, DOE Counsel submitted 12 exhibits (DOE Exs.) and the Individual submitted 25 exhibits (Ind. Exs.). On May 14, 1997, I received the transcript of the hearing (hereinafter cited as Hearing Tr.).

II. Statement of Derogatory Information & Individual's Response

In Enclosure 1 of the Notification Letter, the DOE office alleges derogatory information under Section 710.8(l) (Criterion L). This criterion pertains to information that an individual has

[e]ngaged in any 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. 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). The information presented in Enclosure 1 in support of this allegation can be summarized as follows:

  1. During the October 1980 PSI the Individual stated that he had used marijuana approximately three times a year while in college from 1974 to 1979. He gave oral assurances that he did not intend to use any illegal drugs in the future and certified in writing that he would "not use or traffic any illegal substances . . . as long as [he was] employed in a position requiring DOE Access Authorization."
  2. In explaining his December 1995 affirmative response to QNSP question 24b, the Individual indicated in the questionnaire that he had used marijuana while holding a security clearance one time "more than 10 years ago."
  3. In the March 1996 PSI, the Individual acknowledged violating his Drug Certification when he used marijuana in about 1986 while visiting his former wife's brother. He further stated that the possibility existed that he would use marijuana in the future and refused to commit himself to the principle of never using illegal drugs while holding a security clearance.
  4. The Individual indicated that the reason he had used marijuana in the past and was unable to provide assurance that he would never again use illegal drugs was at least partially because of peer pressure.

DOE Ex. 2 Enclosure 1 at 1-2.

In his hearing request, the Individual, through his attorney, acknowledged that he used marijuana one time in violation of his 1980 Drug Certification. DOE Ex. 1 at 1. However, he argued that, under the circumstances of this case, this event does not create a substantial doubt regarding his continued eligibility to possess a security clearance. The submission also asserted that the excerpts from the March 1996 PSI in the Notification Letter pertaining to his alleged refusal to provide assurance that he would not use illegal drugs in the future were either inaccurate or quoted out of context. According to the submission, the Individual "is, and has been, willing to commit to the principle that he will not use illegal drugs while he is holding a security clearance, and believes that DOE's investigators were or should have been aware that this was the case . . . ." Id. at 2.

III. 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 are the nature, extent, and seriousness of the Individual's 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; and the likelihood of continuation or recurrence. See 10 C.F.R. §§ 710.7(c), 710.27(a). The discussion below reflects my application of these factors to the information presented by DOE and the Individual in this case.

It must be emphasized that 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 at 85,834, aff'd, 25 DOE ¶ 83,016 (1996) (VSA-0078). In this type of case, we are dealing with a different standard, one that 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). 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 him access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." VSO-0078, 25 DOE at 85,834 (quoting 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 Personnel Security Review (Case No. VSA-0057), 25 DOE ¶ 83,009 at 86,539 (1996) (citing Dep't of Navy v. Egan, 484 U.S. 518, 531 (1988), and Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)). 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, after carefully considering the entire record, I find that the Individual has met this burden.

IV. Findings of Fact and Analysis

A. Derogatory Information

There can be no doubt that the DOE office correctly identified security concerns under Criterion L, the only Section 710.8 criterion involved in this proceeding.(3) As indicated above, in the March 1996 PSI and in his hearing request, the Individual acknowledged that he violated the Drug Certification that he signed in 1980 when he subsequently smoked a marijuana cigarette.(4)During the PSI, the Individual recognized some of the security concerns raised by the use of illegal drugs: "There's a blackmail issue, there's a lost control issue, there's several other issues." PSI Tr. at 29. He also agreed with his interviewer that, since it is an illegal act, smoking marijuana is a security concern. Id.

In the hearing, the Personnel Security Specialist indicated that the Individual's violation of his Drug Certification raises a security concern under Criterion L regarding his trustworthiness. Hearing Tr. at 25. As DOE Hearing Officers have observed in other personnel security cases, the violation of a Drug Certification is a security concern since it "raises significant doubt as to [the individual's] honesty, reliability and trustworthiness." See Personal Security Hearing (VSO-0019), 25 DOE ¶ 82,759 at 85,564 (1995). See also Personal Security Hearing (VSO-0035), 25 DOE ¶ 82,767 at 85,617 (1995). Accordingly, I find that the Individual's violation of his Drug Certification raises important security concerns, and that the DOE office had sufficient grounds for suspending the Individual's security clearance under Criterion L.

B. Evaluation of Mitigating Factors

The finding of a security concern does not automatically justify the revocation of an access authorization. Under the Part 710 regulations, other factors must be considered including the absence or presence of reformation and other pertinent behavioral changes. See 10 C.F.R. § 710.7(c). Even the important security concerns raised by the violation of a Drug Certification can be mitigated. See Personal Security Hearing (VSO-0045), 25 DOE ¶ 82,774 (1995), aff'd (OSA 1/5/96) (security clearance restored)(5); Personnel Security Hearing (VSO-0113), 26 DOE ¶ 82,768 at 85,626 (1997) (appeal filed by individual on other issues pending). In the hearing, the Personnel Security Specialist testified as to the applicability of the mitigating factors set forth in Section 710.7(c) to the Individual and why he believed the concerns of DOE were not mitigated. Hearing Tr. at 25-27. In particular, he indicated that, on the basis of the Individual's prior violation of his Drug Certification and his statements during the March 1996 PSI, it was not evident to the agency that the Individual would avoid future illegal drug use. Id. at 27.

The Individual contends that there are mitigating factors that alleviate the agency's security concerns and justify the restoration of his security clearance. He asserts that his violation of the Drug Certification was a one-time event that occurred under unusual circumstances that will not happen again. While he denies that this incident occurred because he succumbed to peer pressure, he has presented testimony that he claims shows that he is unlikely to be swayed by such pressure to use illegal drugs in the future. Finally, he contends that his performance at work demonstrates that he is trustworthy and reliable, and that restoring his security clearance would not compromise classified information or otherwise endanger national security.

On the basis of the entire record developed in this administrative review proceeding, especially the testimony of the Individual and his witnesses at the hearing, I find that the Individual has amply mitigated the agency's security concerns. In arriving at this conclusion, I have been guided by the regulatory provisions of Section 710.7(a) and (c). I have also taken into consideration the non-binding Adjudicative Guidelines for Determining Eligibility for Access to Classified Matter and Special Nuclear Material (DOE/OSA, April 1994) (Adjudicative Guidelines). See Personnel Security Hearing (Case No. VSO-0116), 26 DOE ¶ 82,765 at 85,605 (1997), aff'd (OSA 3/19/97) (finding of mitigation based in part on Adjudicative Guidelines).

1. One-Time Illegal Drug Use

The DOE does not dispute the Individual's assertion that he violated his Drug Certification only once. However, in prior cases, DOE Hearing Officers have required that respondents provide additional evidence to corroborate assertions of one-time drug use in order to mitigate the agency's security concerns. See, e.g., Personnel Security Hearing (Case No. VSO-0094), 26 DOE ¶ 82,753 (1996), aff'd (OSA 10/29/96) (VSO-0094). In the present case, the Individual has provided such corroboration with credible testimony by himself and his witnesses. I therefore find that the Individual violated his Drug Certification only one time based upon the following testimony and other evidence in the record:

· The Individual. As he has done consistently throughout this proceeding, at the hearing the Individual stated that he smoked marijuana only once since signing the Drug Certification, and that he has not used any other illegal drug during this time period. Hearing Tr. at 157; see also PSI Tr. at 11-23. I find that the Individual's testimony on this issue is credible based on his demeanor and the forthright manner in which he responded to questions put to him not only by his counsel, but also by the DOE Counsel and the Hearing Officer. In accepting the Individual's testimony on this point, I have also taken into consideration in the Individual's favor the fact that the Individual brought the violation of his Drug Certification to the attention of the agency by his affirmative response to QNSP question 24b, a question that had not appeared in prior versions of the security questionnaire.(6) Thus, this case is significantly different from those in which a clearance holder claims that the only time in which he used drugs was just before a random drug test revealing drug use -- a claim that DOE Hearing Officers justifiably view with considerable skepticism. See Personnel Security Hearing (Case No. VSO-0102), 26 DOE ¶ 82,763 at 85,589 (1996), aff'd, 26 DOE ¶ 83,___, Case No. VSA-0102 (Mar. 25, 1997); VSO-0094 at 85,515; Personnel Security Hearing (Case No. VSO-085), 26 DOE ¶ 82,751 at 85,507 (1996), aff'd (OSA 10/8/96).

In reaching my finding on this issue, I have also taken into consideration the unique circumstances surrounding the violation of the Drug Certification, as described by the Individual during the hearing. See Hearing Tr. at 157-59. According to the Individual, in the early 1980s he and his former wife invited her brother (his "ex-brother-in-law") to live with them in order to help him quit his drug habit. The efforts of the Individual and his former wife were unsuccessful and the ex-brother-in-law continued to use marijuana on a regular basis. According to the Individual, he thoughtlessly accepted his ex-brother-in-law's offer to share a marijuana cigarette when he stumbled upon the ex-brother-law and another person smoking a "joint" at the home of his former wife's cousin. He further testified that this was the only time this occurred, that on other occasions he refused such offers by his ex-brother- in-law, and that he and his then wife finally evicted her brother because of his continued drug use.

In order for the Individual to corroborate his account of this incident and his statement in the March 1996 PSI that on other occasions he declined his ex-brother-in-law's offers to share a marijuana cigarette, at the prehearing telephone conference I asked him to try to have his former wife and/or her brother testify at the hearing. At the hearing, the Individual testified as to his unsuccessful efforts before and after the prehearing conference to locate his former wife, from whom he was divorced in 1990, and his ex-brother-in-law. Id. at 165-66. The Individual has persuaded me that he made a good faith effort to locate those potential witnesses. Moreover, despite the lack of direct corroboration, I find that his account of the incident with his ex-brother-in-law is believable and strongly supports his assertion that he used marijuana only one time after October 1980.

While the Individual's witnesses cannot reasonably be expected to account for every waking moment of the Individual in the more than 16 years since he signed the Drug Certification, their testimony, consistent on this point, provides ample corroboration for his assertion that he has not used marijuana or any other illegal drug during this period except for the one occasion to which he has admitted. Moreover, the Personnel Security Specialist indicated that an investigation by the Office of Personnel Management did not reveal any additional incidents of drug use. Hearing Tr. at 21, 33-34. Consequently, I find that the Individual violated his Drug Certification once and only once. Moreover, there is nothing in the record indicating that this one incident involved the compromise of classified matter, special nuclear material, injury to another or damage to, or theft of, property. See Adjudicative Guidelines at 28 (listing factors that would detract from mitigating effect of a proven, one-time violation of Drug Certification).

2. Assurance of Future Abstinence from Illegal Drugs

On the basis of the Individual's statements in the March 1996 PSI, the DOE office felt that the Individual had not provided adequate assurance that he would not violate his Drug Certification in the future. According to the Personnel Security Specialist, this was because the Individual (i) failed to unequivocally state that he would not use illegal drugs in the future and (ii) indicated that he might use illegal drugs in response to peer pressure. Hearing Tr. at 24-27. On the basis of the testimony of the Individual and his witnesses at the hearing, I find that the Individual has satisfactorily resolved the concerns raised by his responses during that PSI. Moreover, in view of this testimony, I also find that the Individual is sincerely willing to adhere to the commitment that he made when he signed the Drug Certification in 1980 and that he has provided ample assurance that he will adhere to that commitment.

In contrast to his apparent equivocation during the March 1996 PSI, the Individual at the hearing repeatedly and unequivocally stated that he did not intend to, and would not, use marijuana or any other illegal drug in the future. See, e.g., id. at 162-64, 178-79. I believe that the Individual's statements at the hearing were sincere and truthful. Moreover, I find there is a reasonable explanation for his apparent equivocation in the PSI; namely, his belief that one can never be totally certain what will occur in the future. For this reason, during the PSI the Individual refused to totally rule out the possibility that he would not use illegal drugs in the future as indicated by the following interchange:

Q: Okay. And still, you cannot assure that you would not use illegal drugs?

A: I mean, I can't tell you about every condition I will be in for the next 20 years.

PSI Tr. at 30. But there were also a number of occasions during the PSI in which the Individual clearly indicated that he did not intend to use illegal drugs in the future and that he had taken steps to insure that he would not get into the type of social situations in which he had used marijuana in the past. For example, shortly after the question and answer quoted above, the following exchange occurred:

Q. But can you tell me what your philosophy is about that.

A. My philosophy is, is that I won't [use illegal drugs]. I've arranged my life better so that I don't get that opportunity.

* * *

If things stayed the way they were now, for a long period of time, then the answer is . "No, I will never use it again."

Q. Okay. Do you see it as a possibility that you can control the situation?

A. Yeah.

Id. However, the Individual refused to state that he would "never" use illegal drugs again, e.g., id. at 32-33, 57, and, because of that refusal, the agency's security concerns were not resolved. While one might conclude that the Individual was being evasive or argumentative, a more reasonable explanation was provided at the hearing by the Individual's long-time friend. When asked for an explanation as to why the Individual would be unwilling to unequivocally state that he would never use drugs in the future, this witness testified as follows:

You have to understand the kind of work that we're in. Yes and nos are normally not acceptable. You have to be exceptionally precise in what you do. And I think that's part of the issue here in terms of interpreting those answers.

When we're working on something -- You know, [the Individual] is a XXX. Everything has to have caveats. And when someone says absolutely never, ever, then you know that is a hard thing for a person in his profession to respond to, because there's always a situation or an exception. And when you're a XXX, that exception is disaster. You have a tendency to be extremely precise in how you answer questions and how you state things.

And there's other aspects of our work as well where being extremely precise is required to perform the job functions. And I think you see that reflected in some of his answers. There's nothing that's absolute, and so you'll get that sort of response out of him.

And I have seen that several times. And that's also another part of this XXX kind of a mind set. You know, you're always looking for the exception. And I guess it doesn't surprise me that someone who was looking for -- Everyone knows what answer the interviewer is looking for. And it would not surprise me that he would have trouble with [the Individual's] response. Because of his career, that's kind of the way you talk.

Id. at 62-63. (8)

Different, but not inconsistent, exculpatory explanations for the Individual's refusal during the PSI to say "never" were given by the psychologist, who stated that it had to do with the Individual's being a "principled person," id. at 116, 120, and the chemical dependency counsellor, who indicated that it might have resulted from the Individual's attempt to be "totally honest." Id. at 94-95. From my observation of the Individual at the hearing and review of the entire record, including closely reading the PSI transcript numerous times, I believe that these witnesses have reasonably explained why the Individual was unwilling in the PSI to unequivocally state that he would never use illegal drugs in the future.(9)

It is also my opinion that at the hearing the Individual provided credible, unambiguous assurance that he would not violate his Drug Certification again. The Personnel Security Specialist testified that statements made by the Individual during the March 1996 PSI were the only evidence supporting the agency's concern that peer pressure might cause him to again violate his Drug Certification. Id. at 32-34. At the hearing, the Individual denied that his ex-brother-in-law pressured him to use marijuana. Id. at 159. However, he acknowledged that he was susceptible to pressure from others, and described the steps he took to withstand such pressure. Id. at 155, 174-75. He also described in detail work situations in which he has withstood pressure from managers and peers at his facility and at other DOE facilities for whom he had done work. Id. at 146-47, 149-50, 154.

There was also considerable testimony from the Individual's witnesses attesting to the fact that he is able to withstand "peer pressure." The three witnesses who work with the Individual testified that, in his work as XXX prior to the suspension of his security clearance, the Individual frequently resisted pressure by program managers and other employees to XXX One of these witnesses, the XXX at the DOE facility, stated that the Individual had been one of the best XXX because of his excellent judgment calls on difficult XXX issues and his resistance to peer pressure. Id. at 216-18. Similarly, the individual's long time friend and co-worker stated that the Individual "is a remarkable example of showing restraint to peer pressure." Id. at 51. After noting that there are many "gray areas" in which XXX have to make judgment calls, this witness indicated that on more than one occasion he had personally tried to pressure the Individual to make a XXX determination, but without success. Hearing Tr. at 52-53. In addition to stating that his performance as XXX was "extremely reliable," his immediate supervisor opined that the Individual demonstrated his resistance to undue pressure or influence while working as XXX at the DOE facility by XXX Id. at 230, 232.

Additional persuasive testimony that the Individual would be able to successfully resist pressure to use illegal drugs in the future was provided by his wife. She indicated that, because of his self confidence and forthrightness, the Individual is less susceptible to peer pressure than most people. Id. at 76. She described two occasions when the Individual refused offers of illegal drugs under circumstances in which, if he had partaken of the drugs, I believe it is highly unlikely that the DOE would have found out. Id. at 71-72. One of these occasions was in December 1994 when she observed him "emphatically" refuse an offer of free hashish while they were in a gondola in a ski resort in Canada. She also observed him "emphatically" refuse a street vendor's offer to sell him marijuana while they were vacationing in the West Indies in May 1996.(10) According to the Individual's wife, on that same trip, the Individual, who smokes cigars, refused a vendor's offer of Cuban cigars, knowing that it was illegal to bring them back to the United States. Id. at 81.

The psychologist and psychiatrist also testified that the Individual is unlikely to succumb to peer pressure. The former indicated that the Individual's resistance to pressure was reflected in his responses in the March 1996 PSI, where, in the psychologist's opinion, the interviewer was pressuring the Individual to unequivocally state that he would never use illegal drugs. Id. at 116-17. The psychiatrist based his opinion largely on the Individual's age and maturity. Id. at 204.

The Individual ascribed his one-time post Drug Certification drug use to "boredom" and described in detail the steps he has taken from that date to the present to avoid finding himself in a similar situation. Specifically, he described how he took steps to avoid being bored in subsequent visits to his former wife's cousin. Id. at 159. He also confirmed and elaborated on his wife's testimony about his many current social and recreational activities.(11) Id. at 150-53.

Regardless of whether the Individual's one-time violation of his Drug Certification is attributable to peer pressure or boredom (or both), I agree with his expert witnesses that there is no reason to believe that the Individual will use illegal drugs in the future. See id. at 89-90, 96-97 (chemical dependency counsellor), 114-16 (psychologist), 200 (psychiatrist). The Individual's abstinence from marijuana or any other illegal drug for at least 12 years (since early 1985 at the latest) is additional, strong evidence that he has reformed and is unlikely to violate his Drug Certification in the future. Accordingly, I find that the Individual has provided adequate assurance of his willingness to continue the commitment he made when he signed the Drug Certification and that he has mitigated the security concerns raised by the agency under Criterion L.

V. Conclusion

For the reasons set forth above, I find that the Individual's violation of his Drug Certification presents security concerns under 10 C.F.R. § 710.8(l). However, in resolving the issue concerning the Individual's eligibility for access authorization, I find that these security concerns are mitigated by (i) sufficient evidence that the violation occurred as a result of a one-time illegal drug use that did not involve the compromise of classified information, special nuclear material, injury to another or damage to or theft of property, (ii) the Individual's convincing statement on the record that he would not use illegal drugs in the future, and (iii) ample evidence that, as a result of reformation and other pertinent behavioral changes, the Individual is unlikely to violate his Drug Certification in the future. After considering all the relevant information in a comprehensive and common-sense manner, it is therefore my opinion that the Individual has demonstrated that he is trustworthy and reliable and that restoring his clearance would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, it is my opinion that the Individual's access authorization should be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., SW, Washington, DC 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 the party wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files a request for review. The party seeking review must serve a copy of the statement on the other party, who may file a response within 20 days of receipt of the statement.

Ted Hochstadt

Hearing Officer

Office of Hearings and Appeals

Date: May 29, 1997

(1)"An access authorization (also referred to as a "security clearance") 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)This PSI was not recorded. A contemporaneous summary of the PSI prepared by the Personnel Security Supervisor has been admitted into the record as DOE Exhibit 12.

(3)The DOE office has not invoked Criterion K, which pertains to derogatory information that an individual has "[t]rafficked in, sold, transferred, possessed, used, or experimented with" an illegal drug. See 10 C.F.R. § 710.8(k).

(4)During the hearing, the Individual stated that the incident occurred not in 1986, as indicated in the Notification Letter, but in late 1984 or early 1985. Hearing Tr. at 163, 185, 232-33. I accept as correct the Individual's statement as to the approximate date of the incident. It is consistent with his statement in the December 1995 QNSP that the incident occurred more than 10 years before (DOE Ex. 8 at 8) and his statements in the March 1996 PSI that the incident occurred before he left for an assignment at another DOE facility. See Transcript of March 1996 PSI (PSI Tr.) at 13, 53-54. From the Individual's statements in the PSI and hearing, it is also clear that the incident occurred at the home of his former wife's cousin and not the home of her brother, as alleged in the Notification Letter. See id. at 10; Hearing Tr. at 157-59.

(5)Final determinations of the Director of the Office of Security Affairs (OSA) are listed in 6 Fed. Energy Guidelines at 79,901 and on the OHA Internet website at <<http://www.oha. doe.gov/persecc.htm>>.

(6)Since the Individual provided the information about his drug use in response to a question on an official form, I disagree with his counsel's characterization of his affirmative answer to question 24b as "voluntarily" providing the information to the DOE. See Hearing Tr. at 39, 42. However, there can be no denying the fact that the Individual's response was commendably truthful.

(7)According to the chemical dependency counsellor, a test for marijuana could be positive even a year after the last use if the person had been a frequent user. Hearing Tr. at 92.

(8)The Individual's tendency to qualify his statements was also evident at the hearing. When asked about his recent performance evaluations, he stated, "pretty good. . . . but I need to perform better." Hearing Tr. at 138. In contrast, the supervisor who gave him those evaluations described him in unqualified terms as "outstanding." Id. at 227.

(9)At the hearing, the Individual indicated that his statements during the March 1996 PSI reflected his annoyance at the interviewer. Hearing Tr. at 165. I do not doubt that the Individual's responses during the PSI were attributable at least in part to his pique. But this does not alter the accuracy of the explanations provided by the three witnesses quoted above.

(10)I don't think that the significance of this refusal is derogated by the fact that it occurred after the March 1996 PSI. For one thing, it occurred prior to the suspension of the Individual's access authorization and the commencement of this administrative review proceeding. Moreover, the pendency of a security investigation or an administrative review proceeding does not automatically mean that a person will eschew the behavior that raises a security concern. See, e.g., Personal Security Hearing (Case No. VSO-0096), 26 DOE ¶ 82,756 at 85,541-42 (1996) (individual arrested for driving while under the influence of alcohol (DWI) one month after receiving Notification Letter alleging, inter alia, that he used alcohol habitually to excess); Personal Security Hearing (Case No. VSO-0018), 25 DOE ¶ 82,758, aff'd, 25 DOE ¶ 83,006 (1995) (DWI arrest 37 days after PSI related to suspected alcohol abuse).

(11)While it is important that the Individual has not had any contact for a number of years with his ex-brother-in-law, I think it is also significant that he does not particularly rely on this fact. Instead, his testimony evidences his recognition of his own responsibility for the violation of the Drug Certification and for seeing that it does not occur again.