Case No. VSO-0147, 26 DOE ¶ 82,792 (H.O. Klurfeld August 29, 197)

Case No. VSO-0147, 26 DOE ¶ 82,792 (H.O. Klurfeld August 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.

August 29, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: March 21, 1997

Case Number: VSO-0147

This opinion concerns the eligibility of XXXXX (hereinafter referred to as the individual) for continued access authorization. The regulations governing an individual's eligibility are set forth at 10 C.F.R. Part 710, Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material. In this opinion, I will consider whether, based on the record be fore me, the individual's access authorization should be restored. For the reasons stated below, I am of the opinion that the individual's access authorization should not be restored.

The individual works for a contractor at one of the Department of Energy's sites and holds an access authorization granted by DOE. A urine specimen that the individual provided tested positive for the presence of methamphetamine. As a result of the positive screening for the illegal drug methamphetamine, DOE security personnel interviewed the individual. At the interview the individual admitted to using methamphetamine a couple of times on weekends during the three-month period immediately prior to the positive drug screening. The interview did not resolve the matters which called into question the individual's continuing eligibility for access authorization, and thereafter DOE personnel requested from the Director of the Office of Safeguards and Security the authority to conduct an administrative review proceeding.

The administrative review proceeding began with the issuance of a Notification Letter. See 10 C.F.R. § 710.21. That letter informed the individual that information in the possession of the DOE created a substantial doubt concerning his continuing eligibility for an access authorization. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement specifying two areas of derogatory information described in 10 C.F.R. § 710.8. The Notification Letter also stated that the individual was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization. The individual requested a hearing, which request was forwarded to the Office of Hearings and Appeals. I was appointed the Hearing Officer in this matter. I convened a hearing at the DOE field site where the individual works. Five witnesses testified at the hearing: the individual, two co-workers, a personnel security specialist and a clinical psychologist. The transcript of that hearing is hereafter cited in this opinion as Tr.

The derogatory information cited in the Notification Letter falls within two regulatory criteria, subsections k and l of 10 C.F.R. § 710.8. Criterion k involves, in part, a concern regarding the use, possession, or experimentation with an illegal drug such as amphetamines. Criterion l covers information that shows that the individual has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable, or trustworthy, or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of the national security. 10 C.F.R. § 710.8(l).

The DOE regulations require that I make specific findings "as to the validity of each of the allegations contained in the notification letter . . . ." 10 C.F.R. § 710.27. In cases where there is evidence of a positive drug test, an affected individual must provide convincing evidence mitigating the security concerns related to the illegal drug use. Personnel Security Hearing, Case No. VSO-0102, 26 DOE ¶ 82,763 (1996), affirmed, Personnel Security Review, 26 DOE ¶ 83,008, affirmed (OSA 1997), citing Personnel Security Hearing, Case No. VSO-0051, 25 DOE ¶ 82,784 (1995), affirmed,Personnel Security Review, 25 DOE ¶ 82,784, affirmed (OSA 1996); Personnel Security Hearing, Case No. VSO-0019, 25 DOE ¶ 82,579 (1995). It is therefore the obligation of the individual to offer an explanation for the positive drug test that mitigates the DOE's security concerns and to establish the truthfulness of the explanation. Id. at 4-5, citing Personnel Security Review, 26 DOE ¶ 83,001 (1996). With respect to Criterion k, the individual has admitted that he used methamphetamine a number of times during the three-month period immediately before he tested positive for that drug use. Thus, derogatory information of this nature exists which calls into question the individual's continuing eligibility to maintain access authorization.

At the hearing, the individual attempted to mitigate this security concern. He testified that he has had a problem associated with drinking alcohol since high school. After the positive drug screen, he sought assistance from a clinical psychologist in the Employee Assistance Program at his place of employment. At the suggestion of the psychologist, he attended a residential treatment program for 28 days. After completing that program successfully, he continued seeing the psychologist each week for three months, and every other week after that for the next six months. Tr. at 57. The individual has also attended many Alcoholics Anonymous (A.A.) meetings. The individual testified that he has successfully reformed his life through total abstinence of alcohol. The clinical psychologist testified that he agreed with this assessment and that there was a good possibility that the individual would maintain his sobriety. Tr. at 65. He testified that he had seen verification that the individual had attended all the A.A. meetings that he was required to attend. Tr. at 61. The psychologist stated that "there are no indications that there had been relapse, and that he had been in what we call good recovery." Id. In fact, the psychologist has recently recommended reinstatement of the individual's commercial driver's license, which had been automatically suspended when the individual tested positive for illegal drug use.

While the individual is to be commended for dealing with his alcohol problem in a responsible fashion, this does not mitigate the concern of illegal drug use in this case. There is no indication that the individual's use of methamphetamine was anything other than the recreational use of the drug or was a part of a substance abuse problem which might have been related to his alcohol abuse. The individual himself characterized his use of methamphetamine as recreational. Tr. at 27. This is not a case in which the individual has shown that he used an illegal drug only once. Cf. Personnel Security Hearing, Case No. VSO-0116, 26 DOE ¶ 82,765, affirmed (OSA 1997). Indeed, even at this point in the proceeding the extent of the individual's use of methamphetamine is unclear. During his personnel security interview, he stated that he used the drug a couple of times during the three-month period immediately before the positive drug test. He repeated that statement at the beginning of the hearing. Tr. at 26. However, the extent of the individual's drug use was not clear to me. In response to my questions, Tr. at 33-34, the individual stated that while he is unsure how many times he used methamphetamine, he may have used the drug four or five times. Tr. at 34. This is clearly a pattern of illegal drug use that raises a security concern under Criterion k. The evidence concerning his treatment for alcohol abuse does not in my opinion mitigate the security concern associated with his recreational use of methamphetamine.

DOE also allege in the Notification Letter that the individual's conduct falls within Criterion l, which covers information that shows that the individual has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable, or trustworthy. I agree for two reasons. First, criminal behavior associated with the use of an illegal drug shows a lack of concern for the law and potentially makes one susceptible to exploitation or blackmail. Second, although the individual stated during his personnel security interview that he used methamphetamine a couple of times during a three-month period, the individual testified that he actually used the illegal drug four or five times. After hearing the individual's testimony and watching his demeanor at the hearing, I believe that the individual may still be minimizing his use of methamphetamine during that three-month period. This lack of candor constitutes conduct that tends to show that the individual is not honest, reliable, or trustworthy.

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). After carefully considering the record in view of the standards set forth in 10 C.F.R. Part 710, I find that the derogatory information presented by DOE in this case is accurate and that the individual has failed to present sufficient evidence to rebut or mitigate that derogatory information.

In view of the criteria set forth in 10 C.F.R. § 710.8 and the record before me, I am unable to find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, it is my opinion that the individual's access authorization should not 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'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, 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 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

Roger Klurfeld

Hearing Officer

Office of Hearings and Appeals

Date: August 29, 1997