Case No. VSO-0172, 27 DOE ¶ 82,762 (H.O. Mann April 3, 1998)

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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.

April 3, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: August 20, 1997

Case Number: VSO-0172

This Opinion concerns the eligibility of XXXXXXXXXXXXXXXXXX (hereinafter referred to as "the individual") to hold an access authorization (also called a security clearance) under the Department of Energy (DOE) regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." As explained below, I recommend against reinstating the individual’s access authorization.

Statement of the Case

The individual was originally granted an access authorization in 1981 to work for a contractor at a DOE facility. At that time, the individual signed a DOE Drug Certification and promised not to use illegal drugs for as long as he held a job requiring a DOE access authorization. In December 1992 he tested positive for cocaine on a random drug screen. During a personnel security interview (PSI) conducted in January 1993, the individual admitted to using cocaine on four occasions (each lasting three or four days) between July 1992 and December 1992. During the January 1993 PSI, the individual also admitted that he purchased cocaine twice. In February 1993, the DOE suspended his access authorization. The individual entered a drug rehabilitation treatment program that was offered through his employer. A Notification Letter was issued to the individual in April 1993, charging him with using an illegal drug under 10 C.F.R.§710.8(k), and violating his Drug Certification under 10 C.F.R.§710.8(l). The individual requested a hearing to answer the charges in the 1993 Notification Letter. But in August 1993, before a hearing could be held, there was a reduction-in-force (RIF) at the DOE facility. The individual was laid off in the RIF, and his security clearance was terminated.

For the next two years, the individual worked in jobs outside the DOE complex. During this layoff period, the individual was arrested three times (and convicted twice) for driving under the influence of alcohol (DUI), and arrested one time for driving with a suspended license after his second DUI conviction. Although the individual had been drinking when he was arrested for driving with a suspended license, his blood alcohol level tested below the legal limit and he was not charged with DUI on this occasion. Following the DUI convictions, the individual successfully completed a required alcohol rehabilitation program.

In 1995, he was rehired by the same DOE contractor, who requested that the individual’s access authorization be reinstated. As part of the process of applying for reinstatement of his clearance, the individual was required to fill out two standard security forms, a Questionnaire for Sensitive Positions (QSP) and a Questionnaire for National Security Positions (QNSP).

On the QSP (which he completed in October 1995), the individual answered “No” to the following questions: “In the last 5 years, have you used, possessed, supplied, or manufactured any illegal drugs?” and “Have you experienced problems (disciplinary actions, evictions, formal complaints, etc.) on or off a job from your use of illegal drugs or alcohol?” The individual gave those negative answers even though his access authorization had been suspended by the DOE in 1993 after the positive drug test in 1992, and he had admitted in his answer to an earlier question on the same QSP to having been arrested two times for driving under the influence (DUI) in 1993 and 1994. The local DOE security office conducted a second PSI with the individual in January 1996. In the January 1996 PSI, the individual acknowledged that he had used cocaine before his positive drug test in 1992, but he denied ever having purchased cocaine, even though during the PSI held three years earlier, he had admitted that he bought cocaine twice.

On the QNSP (which he completed in April 1996), the individual indicated he had used cocaine on one occasion in December 1992, and that he had been arrested twice for DUI in 1993 and 1994. The local DOE security office conducted a third PSI with the individual in December 1996. In the December 1996 PSI, the individual maintained that he had only used cocaine one time, even though he had stated during the January 1993 PSI that he snorted the drug on four occasions from July 1992 to December 1992.

During the December 1996 PSI, the individual also admitted that he had been arrested a third time in August 1994 for DUI but had failed to list this arrest on his 1995 QSP and 1996 QNSP, or mention it during his January 1996 PSI. The individual also revealed for the first time during the December 1996 PSI that he had been arrested for driving with a suspended license in 1994 or 1995 after his second DUI, and admitted to having driven up to six times with a suspended license. He had failed to mention these arrests during his January 1996 PSI, or list them on his April 1996 QNSP. Finally, during the December 1996 PSI, the individual indicated that he was currently consuming alcohol occasionally and had done so for the previous two years, even though he had stated during the January 1996 PSI that he “did not drink.”

A DOE consultant psychiatrist evaluated the individual after the December 1996 PSI and concluded that he had no active alcohol or drug abuse problems. Nevertheless, the local DOE security office was concerned that the individual had deliberately omitted significant information about his former drug use, his current alcohol consumption, and his past alcohol-related traffic arrests from the QSP, the QNSP, and a PSI. The DOE was also concerned that the individual had violated his Drug Certification in 1992, and that he had engaged in a pattern of illegal activity including the several arrests for alcohol-related traffic offenses during the two-year period (1993 through 1995) after the layoff. Because of these security concerns, the case was referred for administrative review.

The DOE issued a Notification Letter to the individual in 1997, stating that information in its possession created a substantial doubt concerning the individual's eligibility for access authorization. Based on the events summarized above, the Notification Letter charged that the individual had engaged in conduct subject to the criteria set forth in 10 C.F.R. § 710.8 (f) and (l). Criterion F concerns information that a person has:

[d]eliberately 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....

10 C.F.R. § 710.8(f). In pertinent part, 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....

10 C.F.R. § 710.8(l).

The individual filed a request for a hearing on the charges in the Notification Letter. DOE transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA), the OHA Director appointed me as Hearing Officer in this case, and I convened a hearing.

At the hearing, the individual testified on his own behalf, and his attorney called one witness to testify as an expert in personnel security and a co-worker to testify as a character witness. The individual’s attorney and the DOE Counsel stipulated that several other character witnesses who had been subpoenaed, if called, would have given similar, favorable testimony. The individual’s attorney also submitted a report from a psychologist which confirmed the conclusion of the DOE consultant psychiatrist that the individual had been rehabilitated from his former pattern of substance abuse. The individual submitted five written exhibits. DOE presented one witness at the hearing, the DOE Personnel Security Specialist who had conducted the December 1996 PSI and later recommended that the case be referred for administrative review. The DOE Counsel submitted 16 written exhibits.

At the conclusion of the hearing, the individual’s attorney requested an opportunity to review the individual’s DOE security file and the background investigation conducted by the Office of Personnel Management (OPM), and to submit documents favorable to the individual if any were culled from either source. At the suggestion of the DOE Counsel, the individual’s attorney also requested an opportunity to have the individual’s reading comprehension tested, and to submit the test results. I granted both of these requests. The individual’s attorney did not submit any information from the DOE personnel security file or the OPM background investigation, but he did submit a report on the individual’s reading skills on March 12, 1998, after which I closed the record.

Standard of Review

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). In resolving questions about the individual’s eligibility for access authorization, I must consider the relevant factors and circumstances connected with the individual’s conduct. These factors are set out in § 710.7(c):

the nature, extent, and seriousness of the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of participation; the age and maturity of the individual at the time of the conduct; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; and the likelihood of continuation or recurrence.

A DOE administrative review proceeding under 10 C.F.R. Part 710 is authorized when the existence of derogatory information leaves unresolved questions about an individual’s eligibility for access authorization. It is not a criminal proceeding, where the burden is on the government to prove the individual guilty beyond a reasonable doubt. 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). The burden is on the individual to come forward 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. § 710.7(a). See Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) and cases cited therein. The individual has not met this burden. For the reasons discussed below, I recommend that his access authorization not be reinstated.

Findings of Fact and Analysis

The two different charges in the Notification Letter need to be considered separately. I will treat the allegations under Criterion F first, and then turn to the allegations under Criterion L.

Charges under Criterion F

The facts in this case are not disputed. The record contains ample evidence to support the charges under Criterion F in the Notification Letter that there were inconsistencies in the individual’s various responses to the two written security questionnaires completed in 1995 and 1996 and questions in the January 1996 PSI. The record also shows that with each successive encounter with DOE security officials, the individual corrected some but not all of the erroneous information he had previously provided to the DOE, until the December 1996 PSI when he finally made a full disclosure of his arrest history. At the hearing, the individual tried to explain why he had not immediately given full and complete answers to certain questions about his past behavior. He maintained that he did not intend to deceive the DOE, and claimed that once a number of misunderstandings were clarified, he had voluntarily provided complete and honest answers to questions about his former involvement with cocaine and alcohol.

Analysis of Mitigating Evidence Submitted on Behalf of the Individual

Some of the evidence at the hearing did tend to support the individual’s position. It showed that certain minor discrepancies in the individual’s account of his drug use several years earlier were not significant, and that his failure to report a third DUI arrest on the 1995 QSP could have been based on advice he received from the attorney who represented him in that case. Thus, I conclude that these minor discrepancies do not show that the individual deliberately withheld significant information from the DOE, but were attributable instead to his fading recollection of events surrounding his drug use in 1992, and to his literal interpretation of legal advice about not having to report the third DUI arrest.

For example, the individual attempted to explain why, during the January 1996 and December 1996 PSIs, he stated that he used cocaine only one time, even though the DOE knew, from statements in his 1993 PSI, that he had used the drug on four occasions. Five years later at the hearing, he testified that he regarded his cocaine use in 1992 as constituting “one time.” See Hearing Transcript (hereinafter cited as “Hrg. Tr.”) at 159-162. When I questioned him further, asking if he meant “that period of time of several months, not just one particular use on one particular day,” he replied: “Right. I was referring to the one time in my life, yes. . . . I’m talking about that period.” Id. at 161. And when the DOE Counsel asked him if that one six-month period was a “chunk of time, that counts as once,” he answered “Yes.” Id. at 162. I appreciate the DOE Personnel Security Specialist’s careful attention to disparities in the individual’s story, but my 30 years of experience as a lawyer teaches me that with the passage of time, a witness may not always describe an event in exactly the same way. Thus, I do not consider this more recent description of his 1992 drug use, in and of itself, to constitute a significant omission of information relevant to the individual’s eligibility for access authorization.

At the hearing, the individual and his personnel security expert also addressed the other minor inconsistencies noted by the DOE Personnel Security Specialist in the individual’s subsequent statements, between the 1993 PSI and the December 1996 PSI, about the reasons why he had used cocaine in 1992. See Hrg. Tr. at 50-51 (DOE’s witness); id. at 184-187 (the individual); id. at 217 (individual’s expert). The individual testified that he realizes now with hindsight that tension over a threatened layoff at work and a pending divorce at home led to his drug use in 1992, even though he did not mention those factors in the 1993 PSI. When the DOE Counsel asked him to explain why he would not have “talked about all that then,” the individual replied: “I would think that the answer [in the December 1996 PSI] would be different. Not as far as trying to lie, but I think because I wasn’t involved in drugs or alcohol. I was able to see things a lot different.” Id. at 184-187. Similarly, the individual explained his statements in the January and December 1996 PSIs that he did not recall purchasing cocaine in 1992 to a combination of his failure to remember exactly what he had said in the 1993 PSI, and an effort to put that part of his life behind him and forget about it. December 1996 PSI Tr. at 77. At the hearing, the individual acknowledged that he admitted in the 1993 PSI to having purchased cocaine. Id. at 163-166.

The individual’s personnel security expert offered the following observation about the reason why the individual’s perspective, and therefore, his statements, on his 1992 drug use had changed over time:

He [the individual] never said he didn’t do it. He just changed it a little bit each time; and then at the end toward ?96--and I thought that’s been brought out well in the cross- examination--was in ?96 all of a sudden, I think his motivation for him doing what he did from ?92 to ?95-96 became clear after he got rid of the drugs and the alcohol and I think it cleared up and you [i.e. the DOE Personnel Security Specialist who conducted the December 1996 PSI and testified at the hearing] got the straightest answer when you interviewed him the last time.

Id. at 217. The individual’s explanation of his different perspective after the passage of five years makes sense to me, especially in light of his rehabilitation during the interim, and his greater insight into the reasons why he had used drugs in 1992.

In addition, I am persuaded that the individual’s different characterizations of his current alcohol use in the January 1996 and December 1996 PSIs are not significant, and do not constitute the omission of material information relevant to his eligibility for access authorization for purposes of Criterion F. In the January 1996 PSI, he stated “I don’t drink,” and in the December 1996 PSI, he stated that he was currently drinking and for the previous two years, had consumed alcohol approximately once every two or three months. Id. at 175-176. The individual claimed that the January 1996 PSI came at time when he had not drunk at all for a few months. Id. at 178. He offered this explanation for his different answer in the December 1996 PSI: “I drank occasionally and I think if somebody would come up and ask me if I drank, I mean if I had one beer, would that be that I’m a drinker? I mean that’s the way I’m looking at it.” When I asked the individual what he understood the word “drinking” to mean, he said “I guess I picture somebody who is like huddled up somewhere at a bar and sitting down there drinking and staying for the wee hours.” Id. at 177. Although the individual maintained that the term “drinking” meant problem drinking to him, rather than occasional social drinking, and he claimed that both answers were true when he gave them to the DOE, he conceded to the DOE Counsel that his different characterizations of his current alcohol use in the two 1996 PSIs seemed to be “in conflict” and “inconsistent.” Id. at 179-180. There may be inconsistencies between these two characterizations, but they are minor, and in my view, the individual has mitigated the security concern stemming from his statements about current alcohol use.

Another charge advanced under Criterion F concerns the individual’s repeated failure, in the 1995 QSP, the January 1996 PSI, and the April 1996 QNSP, to disclose information about a third DUI arrest that occurred during the 1993-1995 layoff period while he worked outside the DOE complex. The individual’s explanation is that the attorney who represented him in that matter had advised him that the arrest would not be on his record, and that he did not need to reveal it to anybody. December 1996 PSI Tr. at 147-149; Hrg. Tr. at 89, 167. It is credible to me that initially, this individual could have believed his lawyer’s counsel that the third DUI arrest, for which he was never convicted, was “not on his record” and therefore did not need to be reported to anyone, even the DOE. The individual took that attorney’s advice literally, and did not reveal the third DUI arrest to the DOE at his earliest opportunity, which was on the 1995 QSP. With respect to this first instance, i.e. his failure to reveal the third DUI arrest on the 1995 QSP, I find that the security concern is mitigated by the individual’s reliance on legal advice.

It is for the reasons discussed above that I find in favor of the individual on several charges under Criterion F, namely those based on minor inconsistencies in his statements about drug use and alcohol consumption that are attributable to the passage of time, and his initial failure (in the 1995 QSP) to disclose the third DUI arrest based on legal advice received from the attorney who represented him at the time.

However, on what I consider to be the more serious charges under this criterion, I find against the individual. These include his failure to fully disclose his previous drug and alcohol problems on the 1995 QSP, and his failure to disclose the third DUI arrest and the arrest for driving with a suspended license during the January 1996 PSI, or on the April 1996 QNSP. Once it became clear in the January 1996 PSI that the DOE security office was concerned about the accuracy and completeness of the information the individual had supplied in the 1995 QSP about his past drug use and alcohol- related traffic arrests, he should have set the record straight then and there. Instead, he failed to disclose the third DUI arrest and the arrest for driving with a suspended license, which is clearly significant information relevant to his eligibility for access authorization, in the January 1996 PSI and again on the April 1996 QNSP. He kept this information from the DOE until it was painstakingly extracted from him during the December 1996 PSI.

At the hearing, the individual attributed his failure to give accurate and complete answers to the 1995 QSP about whether he had used drugs within the previous five year period, and whether he had experienced problems on or off the job from the use of drugs or alcohol, to his alleged inability to understand the written questions. While the individual had answered both of these questions in the negative, the DOE knew about his drug use in 1992. The DOE also knew about his two DUI convictions during the two years (after the August 1993 RIF) while he was working outside the DOE complex, because he had given that information elsewhere on the very same QSP. At the hearing, the individual claimed that he misunderstood the question in Item 25(a) about recent drug use, which contained a string of verbs (“used, possessed, supplied, or manufactured”), and maintains that he never intended to mislead the DOE. Hrg. Tr. at 128-130. The individual explains his negative answer in this way: “I felt like this question is more than just one question because no, I didn’t possess; no, I didn’t supply; no, I didn’t manufacture illegal drugs.” Id. at 128. On cross- examination, the individual admitted that since he had used cocaine, he had also “possessed” cocaine. Id. at 129. According to the individual, although he had questions about Item 25(a), he thought he was answering it correctly, and he had nobody to ask for help. Id. at 129-130.

Similarly, the individual testified that he did not understand the question in Item 25(b) about whether he had experienced “problems” from the use of drugs or alcohol: “That question, I was puzzled. I don’t know what they mean by problems. I mean what are they talking about as problems? To me, I felt like it is a question, you know, I can answer yes and be wrong, I can answer no and I can be wrong.” Hrg. Tr. at 150. As with Item 25(a), the individual told the DOE Counsel that he could not get help: “We don’t have anybody that we can go and talk to here.” Id. at 154.

The individual’s attempts to excuse his failure to answer the questions correctly in Items 25 (a) and (b) on the QSP are simply not credible. The meaning of the words in these questions should have been clear to him. The individual argues that he did not intend to hide anything from the DOE and that he supplied some of the missing information in his subsequent January 1996 PSI. The act of supplying correct information in piecemeal fashion during a series of encounters with DOE security officials does not mitigate what I believe was the individual’s deliberate attempt to minimize his history of problems with drugs and alcohol on his QSP. It is true that subsequent to his 1995 QSP, the individual supplied more information about his past drug problems, but only after the DOE security interviewers confronted the individual with his prior inconsistent statements in the 1993 PSI. However, he still did not supply all the missing information about his alcohol-related traffic arrests and driving with a suspended license in the January 1996 PSI or on the April 1996 QNSP, but kept this important information from the DOE until the December 1996 PSI. For these reasons, I conclude that valid security concerns exist relating to 10 C.F.R. § 710.8(f) and that the individual has failed to mitigate those concerns.

The individual’s personnel security expert tried to excuse the individual’s inconsistent answers to the questions in Item 25 on the QSP:

Mr. [the individual], in my opinion from my interview with him, compartmentalizes--and I don’t know what that is. If it’s because of a learning disability, whether it’s because of a thought process that occurs--but he thinks when he reads a question, he looks at it from a different perspective than I would or other people would.

Id. at 216.

The expert’s allusion to a “learning disability” or a “thought process” that leads the individual to read a written question “from a different perspective,” relates to a critical aspect of the individual’s defense to the security concerns raised under Criterion F, namely his claim that he did not read the questions on the security forms correctly. For that reason, the DOE Counsel, the individual’s attorney and I agreed that it would be relevant to the issues in the case to allow the individual the opportunity to get his reading comprehension tested, and submit those test results into the record. Hrg. Tr. at 193, 216, 242. The individual had his reading skills tested at a local community college, and submitted the results of the “Test for Adult Basic Education” (TABE). His vocabulary score ranked in the 61st percentile, equivalent to the eighth grade, and his comprehension ranked in the 78th percentile, equivalent to the tenth grade, fourth month. His comprehension strengths included “finding the main idea” and “interpreting an event.” The evaluator concluded that “[the individual’s] reading comprehension skills are a strength. He appears to be able to use vocabulary skills best in context of the written word. In real world situations, this ability will help counteract any vocabulary weaknesses.” March 10, 1998 TABE Report. This TABE Report confirms my belief that the individual could certainly understand the meaning of the written questions on the QSP and the QNSP.

As charged in the Notification Letter, the individual failed to mention his arrest for driving with a suspended license (which occurred some time after his second DUI conviction), either on the two security forms or in the January 1996 PSI. The individual had also been drinking at the time of this incident, although his blood alcohol content tested below the legal limit for DUI. Again, the individual’s excuse for failure to mention this arrest until the December 1996 PSI is based on his alleged failure to understand the words used by the DOE. His explanation is he believed that since he had not yet gone to court or been convicted, he was not required to mention this arrest in response to the question “Have you ever been charged with or convicted of any offenses related to alcohol or drugs?” According to the individual, he thought that he was not “charged” until he went to court. Id. at 174.

I am not persuaded by the semantic excuses the individual offered for his repeated failure to fully disclose his drug, alcohol and traffic arrest history. The record shows that he either knew or should have known he was obliged to report this information to the DOE as an applicant for reinstatement of his clearance. While he held a DOE access authorization for 12 years before it was suspended in 1993, and again as an applicant for reinstatement of access authorization after being rehired in 1995, the individual was required to have periodic security briefings. According to the individual’s training history, which was submitted into the hearing record as DOE Exhibit P, he had security briefings, lectures or “refreshers” in 1997, 1996, 1995, 1992 and 1981. He was also given written materials in which he was informed of his obligation to report to the personnel security office if he was “arrested, detained, or charged by any law enforcement authority regardless of the outcome of the action. Such reports must be made within five days and include traffic fines of $100 or more.” See “Employee Handbook,”(March 1992), DOE Exhibit M, at page 25. The reporting threshold for traffic fines was later increased from $100 to $250. 1995 Security Refresher Briefing, DOE Exhibit O. All of the traffic fines the individual was assessed exceeded those threshold levels, and they should have been reported to the DOE security office. The individual’s history of personnel security training seriously undermines his claims that he did not understand that he was obliged to reveal information about all of his alcohol-related traffic arrests in response to the questions asked on the two security forms he completed in 1995 and 1996, and during his January 1996 PSI.

For the reasons above, I find that the explanations given by the individual for these events are not credible and that the individual intentionally omitted significant information from the two security forms and the January 1996 PSI. I am not convinced that the individual was unable to understand his obligations under the DOE personnel security rules, or the actual words that were used to question him about his drug, alcohol and traffic arrest history.

The individual’s personnel security expert attempted to downplay the seriousness of the individual’s conduct by saying,

People don’t lie; they minimize. They say, ?I know I did that, and they know I did it, so I’m not sure but I’m not going to tell them just everything....’

Hrg. Tr. at 217. Such minimizing in the context of a security form or a PSI violates the standard of honesty and forthrightness which is required for a security clearance holder. See Personnel Security Hearing (Case No. VSO-0125), 26 DOE ¶ 82,774 (1997). Generally, those who have shown themselves willing to falsify or omit significant information in response to questions from DOE security personnel are considered unacceptable risks. See, e.g., Personnel Security Hearing (Case No. VSO-0049), 25 DOE ¶ 82,785 (1996), affirmed, 25 DOE ¶ 83,011 (OHA, 1996), terminated (OSA, 1996) (submission of false information about DUI arrest on security form); Personnel Security Hearing (Case No. VSO-0041), 25 DOE ¶ 82,775 (1995) (failure to report judgments against the individual); Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 (1995) (failure to report marijuana arrests). The security program is based on trust, and once an individual has breached that trust, then there is a question as to whether that individual can be trusted to comply with the security regulations. Personnel Security Hearing (Case No. VSO-0013), 25 DOE ¶ 82,752 at 85,515 (1995).

In considering the factors enumerated in 10 C.F. R. § 710.7(c), I note that the individual was a mature adult at the time of the series of events that are described above, and there is ample evidence which would lead me to conclude that many of his actions were deliberate. Additionally, I find that the individual did not willingly disclose significant information about two of his alcohol-related traffic arrests, even after repeated encounters with the DOE security office, until it was finally coaxed out of him in the December 1996 PSI. As the Hearing Officer noted in Personnel Security Hearing, Case No. VSO-0164 (January 12, 1998), appeal filed, “the contradictory nature of some of the individual’s responses reflect negatively on the individual’s overall credibility and honesty.” Finally, while the individual did show contrition for some of his erroneous actions in the past, at the hearing he offered more excuses than apologies. I therefore conclude that the individual has failed to mitigate the more serious of the charges brought under Criterion F. Accordingly, it is my opinion that his access authorization should not be reinstated.

Charges Under Criterion L

The charges of “unusual conduct” under Criterion L are based on the uncontested facts discussed above. These charges include the individual’s violation in 1992 of a DOE Drug Certification, his record of three arrests for DUI and one arrest for Driving With a Suspended License, and his admission to driving with a suspended license on several occasions when he escaped detection. DOE Exhibit F at 2. In the context of this case, Criterion L requires me to consider whether the individual’s actions tend to show that he is not honest, reliable or trustworthy. Based on the record, I conclude that the individual has engaged in conduct which tends to show that he is not honest, reliable or trustworthy.

According to the DOE Personnel Security Specialist who testified at the hearing, this pattern of “criminal behavior,” including non-compliance with the DOE policy against illegal drug use, and repeated violation of the traffic laws, raises a concern that the individual may not be trusted to abide by the rules and regulations that are designed protect national security. Hrg. Tr. at 71. Illegal drug use also raises a concern that the individual might susceptible to exploitation or coercion. Personnel Security Hearing (Case No. VSO-0147), 26 DOE ¶ 82,792 (1997).

Analysis of Mitigating Evidence

I will now separately consider the individual’s claims of mitigation with respect to the security concerns raised by his violation of a DOE Drug Certification in 1992, and the concerns based on his pattern of traffic arrests and his failure to make a full and timely disclosure of information about his arrest history on the two security forms in 1995 and 1996, and in the January 1996 PSI.

a. Violation of Drug Certification

As noted above, in 1981, the individual signed a DOE Drug Certification in which he promised not to use illegal drugs while holding a position requiring DOE access authorization. DOE Exhibit F at 2; Hrg. Tr. at 180-182. The individual tested positive for cocaine in 1992, and also admitted purchasing cocaine the same year. 1993 PSI Tr. at 8.

An OHA Hearing Officer previously considered mitigating evidence for violation of a DOE Drug Certification in Personnel Security Hearing (Case No. VSO-0045), 25 DOE ¶ 82,774 (1995). In that case, although the Hearing Officer stated that “an individual’s use of [drugs] in violation of a DOE Drug Certification raises serious issues of honesty, reliability, and trustworthiness above and beyond a violation of DOE’s general anti-drug policy,” the individual was able to successfully mitigate the security concerns arising from the violation. Id. at 85,659. The Hearing Officer recommended that the individual’s clearance be restored. Id. at 85,662. Among the mitigating factors that the Hearing Officer considered significant were: (1) evidence of rehabilitation; (2) elimination of the circumstances that may have caused the drug abuse; (3) frequency and recency of the conduct; and (4) the length of time between execution of the Drug Certification and the drug use. Id. When I apply the considerations which formed the basis for the Hearing Officer’s recommendation in that opinion to the facts in this case, I find that this individual has mitigated the concerns raised by his violation of the Drug Certification, which, it must be emphasized, took place over five years ago.

First, the record contains substantial evidence of successful rehabilitation from the drug use that occurred in 1992. A DOE consulting psychiatrist evaluated the individual in 1996 and found that the individual did not have a substance abuse problem. Hrg. Tr. at 64. The DOE security office did not consider drug abuse to be an issue in the 1997 Notification Letter and it was not mentioned in the Statement of Charges. Id. at 177. Five years have passed with no further episodes of illegal drug use by this individual. In fact, the DOE Personnel Security Specialist testified that “ if you look at the time span, five years I think is more than enough for rehabilitation and reformation, so he does meet that mitigating factor.” Id. at 74-75. The DOE Personnel Security Specialist also testified that the individual stated “as a matter of record” that “he would never use drugs again.” Id. Second, the stress in the individual’s life that led to his drug use appears to have been substantially reduced as a result of his re-employment, the resultant improvement in his financial situation, and the resolution of his marital problems. Id. at 135, 139. Third, there is evidence in the record of the isolated nature of his past drug use, which was confined to one short period in 1992. Id. at 158-162. As stated above, the DOE concluded that the individual does not have a current substance abuse problem. Id. at 64. Finally, 11 years had passed from the signing of the Drug Certification until the individual’s drug use in 1992. This is a substantial number of drug-free years, which tends to show that the drug use occurred within an isolated period and was not characteristic of the individual’s conduct while employed by the DOE contractor.

I conclude that the individual has made a convincing showing that his violation of DOE drug policy is unlikely to recur due to his successful rehabilitation, the isolated nature of his past drug use, and the length of time between signing the certification and the instance of drug use. See Personnel Security Hearing (Case No. VSO-0045), 25 DOE ¶ 82,774 at 85,660-85,662. Therefore, I find that the individual has successfully resolved the security concerns surrounding his violation in 1992 of the Drug Certification. As indicated elsewhere, however, my favorable opinion on the Drug Certification charge is not sufficient to warrant a recommendation to reinstate the individual’s clearance.

b. The Traffic Arrests and Driving with a Suspended License

The individual was arrested four times between 1993 and 1995 for alcohol-related traffic offenses. Id. at 136-138. This pattern clearly raises questions about the individual’s judgment and reliability. The behavior was not isolated (he was arrested four times in two years) and it was relatively recent (the last arrest occurred approximately two years before the hearing). However, there is also evidence that the individual successfully completed a mandatory course of alcohol rehabilitation after his second DUI arrest. Id. at 139. In addition, the individual testified that the pressures of raising two children alone after separating from his wife occasionally forced him to drive on a suspended license in order to meet the children’s needs for food and transportation. Id. at 138. While this mitigating evidence is favorable to the individual, it is not enough to resolve the security concerns which ultimately arose as a consequence of his traffic infractions.

c. Failure to Disclose Information to the DOE

The individual’s record of failing to disclose significant information about his history of alcohol- related traffic arrests and driving with a suspended license clearly raises a security concern under Criterion L. After a careful review of the evidence discussed above in connection with Criterion F, I find that the individual has engaged in conduct which tends to show that he is not honest, reliable or trustworthy. There is no mitigating evidence to excuse the individual’s omission of significant information about his arrest history from the two security forms he completed in 1995 and 1996, and his failure to reveal this information in the January 1996 PSI. In previous opinions, OHA Hearing Officers have stated that “[a] good test of the individual’s honesty, reliability and trustworthiness is the individual’s willingness to discuss events in a candid way with DOE personnel security specialists.” Personnel Security Hearing (Case No. VSO-0148), 26 DOE ¶ 82,796 (1997), quoting Personnel Security Hearing (Case No. VSO-0037), 25 DOE ¶ 82,778 (1995), affirmed (OSA 1996). As discussed in connection with Criterion F, above, I find that the individual was far from candid in his interactions with security personnel. See also Hrg.Tr. at 128-131; 145-148. The individual was a long-time DOE contractor employee who was well aware that security officials were to be notified of arrests and serious traffic fines. If the individual had corrected these omissions promptly by reporting the arrests to DOE once he realized his mistake, I might be inclined to recommend reinstating his clearance. See Personnel Security Hearing (Case No. VSO-0037), 25 DOE ¶ 82,778 (1995), affirmed (OSA 1996). Instead, he withheld information and gave incomplete answers in two security forms and the January 1996 PSI, and finally made a full disclosure only after extensive questioning during the December 1996 PSI. This behavior tends to show that the individual is not honest, reliable, or trustworthy. Therefore, I must conclude that the individual has not resolved the security concerns surrounding his omission of significant information about his traffic arrests and his driving with a suspended license.

Conclusion

Based on the foregoing discussion, I find that the individual did make false statements to DOE on the two security forms and in a PSI, and that he did withhold significant information that was relevant to his eligibility for access authorization. Making false statements and withholding significant information by an individual in the course of an official inquiry on a matter that is relevant to a determination of eligibility for DOE access authorization raise serious issues of honesty and trustworthiness. Personnel Security Hearing (Case No. VSO-0060), 25 DOE ¶ 82,788 (1996). After considering all of the evidence, I therefore conclude that the individual has not resolved all of the security concerns raised under Criterion F, 10 C.F.R. § 710.8(f). For the same reasons, I find that he has not resolved all of the security concerns raised under Criterion L, 10 C.F.R. § 710.8(l).

For the reasons explained in this Opinion, I find that the individual has failed to show that reinstating his access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I recommend that the individual's access authorization not be reinstated.

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

Thomas O. Mann

Hearing Officer

Office of Hearings and Appeals

Date: April 3, 1998