Case No. VSO-0229, 27 DOE ¶ 82,787 (H.O. Fine December 22, 1998)

Case No. VSO-0229, 27 DOE ¶ 82,787 (H.O. Fine December 22, 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.

December 22, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: August 5, 1998

Case Number: VSO-0229

This Opinion concerns the eligibility of XXXXX XXXXX (hereinafter referred to as "the Individual") to retain a level “Q” access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.” The Department of Energy's Oak Ridge Operations Office (the Operations Office) suspended the Individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony in this proceeding, the Individual's access authorization should be restored. For the reasons stated below, it is my opinion that the Individual's access authorization should not be restored at the present time.

I. BACKGROUND

The events leading to the present proceeding began when the Individual informed Operations Office Security that he had enrolled in an intensive treatment program for methadone dependency. Because this information raised security concerns, a Personnel Security Interview (PSI) of the Individual was conducted on XXXXXXXX. During this PSI the Individual informed the Operations Office that he had entered into a methadone maintenance program hoping that it would allow him to discontinue the use of prescription painkillers. The Individual eventually removed himself from the methadone maintenance program. However, soon afterwards, he began to obtain and use methadone illegally. Apparently, the Individual continued to illegally obtain and use methadone for approximately a year before he enrolled himself in the intensive drug treatment program.

Because the PSI failed to resolve the security concerns raised by the Individual's drug use, his access authorization was suspended and an administrative review proceeding was initiated. See 10 C.F.R. § 710.9. The Operations Office then issued a letter notifying the Individual that information the Operations Office possessed created a substantial doubt concerning his continued eligibility for access authorization (the Notification Letter). The Notification Letter specifies two areas of derogatory information described in 10 C.F.R. § 710.8. First, the Notification Letter alleges that the Individual has trafficked in, sold, transferred, possessed, or experimented with an illicit drug. 10 C.F.R. § 710.8(k). Second, the Notification Letter charges 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 Individual filed a request for a hearing in which he made a general denial of the allegations contained in the Notification Letter. This request was forwarded to the Office of Hearings and Appeals (OHA) and I was appointed as Hearing Officer.

At the hearing, the Operations Office presented one witness: a Personnel Security Specialist. The Individual testified on his own behalf and produced nine character witnesses. A consultant psychiatrist, who had examined the Individual for the Operations Office, testified by telephone at my request. The record of this proceeding was closed on November 23, 1998, when OHA received a copy of the transcript of the hearing. See Transcript of Hearing, Case No. VSO-0229 (hereinafter cited as “Tr.”).

II. STANDARD OF REVIEW

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency and the Individual, and to render an opinion based on that evidence. See 10 C.F.R. § 710.27(a). The regulations state that “[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.7(a). I have considered the following factors in rendering this Opinion: the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; the Individual's age and maturity at the time of the conduct; the voluntariness of the Individual's participation; 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; the likelihood of continuation or recurrence; and other relevant and material factors. See 10 C.F.R. § 710.7(c); § 710.27(a). The discussion below reflects my application of these factors to the testimony and exhibits presented by both sides in this case.

III. FINDINGS OF LAW AND FACT

A. Criterion K

Illegal drug use raises serious security concerns because it may reflect an inability to safeguard classified information and special nuclear material. Illegal involvement with drugs exhibits an unacceptable and disturbing disregard for state and federal laws prohibiting their use. Such disregard for the law raises concerns that the Individual may similarly disregard other laws, including those which protect classified information and special nuclear materials. See Personnel Security Hearing, Case No. VSO-0116, 26 DOE ¶ 82,765 at 85,602 (1997) (citing Personnel Security Hearing, Case No. VSO-0013, 25 DOE ¶ 82,752 at 85,512 (1995)). It is important to note that avoiding illegal drug use is itself a requirement of both the DOE's safety and security regulations. Moreover, the illegal use of drugs (and the disrespect for law and authority that such use suggests) exhibits a troubling lapse in judgment and maturity. The psychoactive effects of drugs can also cause alterations of consciousness and perception, relaxation of inhibitions and can diminish judgment. Finally, we note that illegal involvement with drugs may render the user susceptible to blackmail or coercion.

Therefore, the issuance of the Notification Letter based upon Criterion K was well founded. It is well settled that an individual must provide convincing evidence mitigating the security concerns related to illegal drug use.Personnel Security Hearing, Case No. VSO-0102, 26 DOE ¶ 82,763 at 85,587 (1996) (citing Personnel Security Hearing, Case No. VSO-0051, 25 DOE ¶ 82,784 (1995));Personnel Security Hearing, Case No. VSO-0019, 25 DOE ¶ 82,759 (1995). Therefore, once I determine that the Individual used illegal drugs, I need only consider below whether he has made a showing of mitigating facts and circumstances sufficient to overcome the Operations Office's security concerns arising from his illegal drug use. In the present case there are several factors I must consider in determining whether the questions raised under 10 C.F.R. § 710.8(k) by the Individual's illegal drug use are resolved.(1)

As an initial matter, I must first consider the nature and extent of the Individual's illegal drug use. In the present case, the Individual has been diagnosed as "mildly" opiate dependent by a consultant psychiatrist. Consultant Psychiatrist’s Report at 2-3. Therefore, in order to mitigate the Criterion K security concerns arising from his illegal drug use, the Individual must establish that he has been fully rehabilitated from his opiate dependency. One of the factors that must be considered in order to determine whether an individual has been fully rehabilitated from drug dependency is the duration that the individual has remained drug-free.

In the present case, the consultant psychiatrist opined that the Individual needs to completely abstain from the use of all psychoactive substances for a period of at least two years to establish rehabilitation and reformation. Id. When I asked the consultant psychiatrist why he believed that the Individual must refrain from using all psychoactive substances for a period of at least two years to establish rehabilitation and reformation, he explained that he was relying only upon scientific studies showing that 95% of those individuals who abstain for that period will not relapse. Tr. at 79. He further opined that 70% of those individuals who abstain for one year are able to avoid relapse. When asked what percentage of individuals who had abstained for 10 months (the period of time that the Individual indicated he has remained drug free) can be expected to avoid relapse the consultant psychiatrist said that he did not know.

While the consultant psychiatrist opined that the Individual needs to remain drug-free for two years, many highly qualified expert witnesses have testified in previous DOE Security Hearings that individuals with substance abuse disorders need to abstain from the use of all psychoactive substances for a period of at least 12 months. See e.g., Personnel Security Hearing, Case No. VSO- 0063, 25 DOE ¶ 82,789; Personnel Security Hearing, Case No. VSO-0005, 24 DOE ¶ 82,753,affirmed 25 DOE ¶ 83,013, terminated, (OSS June 7, 1995); Personnel Security Hearing, Case No. VSO-0014, 25 DOE ¶ 82,755;Personnel Security Hearing, Case No. VSO-0018, 25 DOE ¶ 82,758. The testimony of these experts reflects a widely held view among substance abuse treatment professionals. This consensus is also reflected in the DSM-IV’s diagnostic course specifiers for Chemical Dependency Disorders which distinguish between Early Remission and Sustained Remission. Specifically, the DSM-IV states:

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

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

The facts of the present case have not convinced me that the duration of the Individual’s abstinence is sufficient to resolve the serious security concerns raised by his illegal opiate use. Given the Individual’s previous history of illegal opiate use over an extended period, the opiate dependency diagnosis, and most importantly, the failure of his previous treatment program, a finding that he has been rehabilitated would be premature. I therefore find that reducing the minimum period of abstinence necessary to establish his rehabilitation from two years, as recommended by the consultant psychiatrist, or 12 months as reflected in the DSM-IV, to 10 months is not warranted in the present case.

Such a determination is not easily arrived at since the Individual presented some compelling evidence in his favor. The Individual presented a number of character witnesses at the hearing. I find two aspects of the character testimony presented in the Individual's behalf to be particularly significant. First, most of the character witnesses were security professionals and colleagues of the Individual. Security professionals can be expected to have a heightened understanding of the importance of safeguarding classified information and special nuclear material. As a result, their testimony is especially valuable when evaluating an individual’s character. Second, the security professionals who testified on behalf of the Individual and his character in the present proceeding each testified that they hold the Individual in extremely high regard. Each of these security professionals testified that they had complete confidence in the Individual’s ability to safeguard classified information and special nuclear materials. The Record also shows that the Individual has established a remarkable record as an employee. He has even saved lives on at least two occasions in the line of duty.

Nevertheless, the Individual’s illegal drug use raises serious and substantial concerns about his fitness to maintain a security clearance. The Individual has illegally obtained and used a narcotic drug while possessing a DOE security clearance, therefore risking his career and access authorization, violating DOE safety and security regulations, and potentially putting himself, his fellow employees and the national security at risk. For these reasons, I find that the Individual has not resolved the security questions raised by his illegal drug use. Accordingly, I find that restoring his access authorization would not be consistent with the national interest and the common defense.

B. Criterion L

Criterion L refers to information that an individual has “[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation or duress which may cause the individual to act contrary to the best interests of the national security.” 10 C.F.R. § 710.8(l).

Like many members of his generation, the Individual has a history of marijuana use as a youth. The Individual informed the Operations Office of this history during a previous security investigation. Operations Office security officials allowed the Individual to sign a DOE Drug Certification in which he agreed not to use illegal drugs, and the Individual was allowed to obtain his DOE Access Authorization. The Operations Office’s security concerns under Criterion L are based largely upon the Individual's illegal drug use after he signed the DOE Drug Certification. Consequently, I find that the Operations Office properly invoked Criterion L in suspending the Individual's clearance. The Individual's failure to honor his Drug Certification, and his violation of DOE's and his employer's drug policies, raise important security concerns. The DOE security program is based on trust. If an employee breaks a written promise to the DOE, that trust is violated. It was precisely because of the Individual's prior illegal drug use that he was asked to sign a Drug Certification, promising that he would never again use drugs illegally while employed in a position requiring an access authorization. He clearly violated this promise when he used methadone illegally.

My impression of the Individual, formed at the hearing, is that he is an extremely competent, enthusiastic and dedicated worker. It is clear that he recognizes the seriousness and the significance of his actions and is sincerely committed to obtaining the personal growth needed to avoid future drug use. This evidence, while helpful, is insufficient to resolve the present security questions.

Other than the Individual's knowing violation of his Drug Certification and disregard of DOE's and his employer's policies regarding illegal drug use, I am unaware of any other act of untrustworthiness or unreliability. Nevertheless, the Individual has not resolved the security questions raised by his conscious disregard of his Drug Certification and DOE's and his employer's drug policies. I therefore can not find that the Individual has resolved the Criterion L security questions raised in the notification letter.

IV. CONCLUSION

For the reasons set forth above, I conclude that the Individual has not shown that he warrants restoration of his access authorization. The Operations Office therefore has a sufficient basis for invoking Criteria K and L in the present circumstances. Since the Individual has not resolved the Operations Office’s allegations under Criteria K and L, I conclude that the Individual has not demonstrated that restoring his security clearance would not endanger the common defense and would be clearly consistent with the national interest. Therefore, it is my opinion that the Individual's access authorization should not be restored at this time.

The regulations set forth at 10 C.F.R.§ 710.28(a) provide that the Office of Security Affairs or the Individual may file a request for review of this Hearing Officer Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response with 20 days of receipt of the statement.

Steven L. Fine

Hearing Officer

Office of Hearings and Appeals

Date: Deember 22, 1998

(1)The Individual's use of marijuana in high school is substantially mitigated by the long period of time that has elapsed since then and by the Individual's youth at the time.