Case No. VSO-0242, 27 DOE ¶ 82,799 (H.O. Lazarus April 2, 1999)

For full history of this case, and links to other cases, click here.

* 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 2, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: October 19, 1998

Case Number: VSO-0242

This Opinion considers the continued eligibility of XXXX XXXXXX (the individual) for 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 individual is employed by a Department of Energy (DOE) contractor.

This case involves an individual who for the past ten years has been in the process of a personal transformation. Prior to October of 1989, the individual had been involved in several incidents of domestic violence, used a substantial amount of illegal drugs, provided false information to DOE, and frequently drank an excessive amount of alcohol. In October of 1989, the individual became a “born-again Christian.” The individual’s “spiritual awakening” marked the beginning of a gradual process of transformation. During this process, the individual has increasingly focused on spiritual matters, providing service to others, and his family responsibilities. As his commitment to these positive activities increased, the individual has been able gradually to eliminate his negative behavior patterns. By the time of the hearing in January of 1999, the individual was described by a counselor at his church as “a moral man who loves his family and serves God as best he can and exercises sound judgment.” Transcript of Hearing at 142 (Transcript).

In July of 1991, motivated by a sense of moral obligation, the individual “confessed” to a DOE personnel security specialist that he had used a variety of illegal drugs before October of 1989, and had also used marijuana on two occasions between October of 1989 and June of 1991.(1) Later, the individual “confessed” that he had violated a drug certification by taking “two tokes” of a joint of marijuana in 1996.(2) Based solely on information obtained from the individual during these confessions, the agency suspended the individual’s access authorization. As detailed below, because of the existence of mitigating circumstances, it is my opinion that the individual's access authorization should be restored.

I. PROCEDURAL BACKGROUND.

On September 15, 1998, DOE issued a Notification Letter that suspended the individual’s access authorization on the grounds that derogatory information created a substantial doubt concerning his continued eligibility for access authorization under 10 C.F.R. § 710.8(k) and (l) (Criterion K and Criterion L).(3) Under Criterion K, the Notification Letter stated that the individual had disclosed that he had used marijuana in 1996, and had previously disclosed that he had used a variety of illegal drugs between 1979 and 1991.(4) Under Criterion L, the Notification Letter indicated that the individual had admitted that he had used marijuana after he had signed a drug certification, and that he was aware of the DOE policy prohibiting the use of illegal drugs.

On October 19, 1998, the individual requested a hearing regarding his eligibility for an access authorization. At the hearing, DOE presented the testimony of a personnel security specialist and a former personnel security analyst. DOE also submitted the report of a psychiatrist who examined the individual at DOE's request, as well as other documentary evidence. The individual testified on his own behalf, and presented the testimony of his church counselor, who was certified as an expert witness, his former wife, and two longtime close friends. The individual also submitted documentary evidence.

II. FINDINGS OF FACT.

Many of the material facts of this case are not in dispute. It is uncontested that the individual admitted to a DOE personnel security specialist that he had used a variety of illegal drugs before 1989, and had smoked marijuana on two occasions between 1989 and 1991. It is also uncontested that the individual admitted that he had violated a 1992 drug certification by his one-time use of marijuana in 1996. Similarly, it is undisputed that, in the absence of the individual’s admissions, it is unlikely that DOE would have learned of the individual’s use of illegal drugs or breach of the drug certification. Further, it is uncontested that the individual is not currently using illegal drugs and that, at the present time, he does not have a substance abuse disorder or other mental illness that requires rehabilitation.

A. The Individual’s Conduct Before October of 1989.

The individual has been employed by a DOE contractor since 1978, and was granted a clearance in 1979. Transcript at 23. As detailed below, before October of 1989, the individual had used a variety of illegal drugs, drank an excessive amount of alcohol, provided false information to DOE, and been involved in at least three incidents of domestic violence.

1. The individual’s use of illegal drugs and alcohol

While at college, the individual started to smoke marijuana and drink beer. At that time, the individual would usually purchase marijuana once a month, and during school vacations would sometimes use the drug on a daily basis. Moreover, approximately every two weeks, the individual would drink beer until he was intoxicated. Between the time that he left college and 1986, the individual used very little marijuana and alcohol. However, between 1986 and 1989, the individual increased his marijuana use and consumption of alcohol because he was depressed as a result of marital difficulties. In April of 1989, after the individual separated from his wife, he attended Alcoholics Anonymous meetings, and abstained from using mood altering substances for nine months. DOE Exhibit 3; DOE Exhibit 4.

Between 1979 and 1986, in addition to marijuana, the individual used cocaine (six times), LSD (three times), psychotropic mushrooms (four to five times), speed (two or three times), and hashish (six times). DOE Exhibit 3.

2. The individual provided false information to DOE.

In 1985, the individual provided false information to DOE when he completed a Personnel Security Questionnaire (PSQ) and indicated that he had never used illegal drugs. DOE Exhibit 1. The individual made this misrepresentation during a routine re-investigation of his security clearance. Transcript at 23-25.

3. The individual was involved in three incidents of domestic violence.

Between 1985 and 1989, the individual was involved in at least three incidents of domestic violence. First, in November of 1985, the individual assaulted his (now former) wife. According to the police report, the individual knocked his wife to the floor and kicked her. She was treated at a hospital for cuts, abrasions and bruises. Although she did not file charges, the individual’s wife told the police that she had previously been assaulted by her husband on two occasions. Second, in September of 1987, the individual called the police and reported that his wife had a rifle and was waiting for him behind a door. According to the police report, the individual’s wife stated that she was armed because her husband had assaulted her in the past, and she was afraid that he would beat her again. No charges were filed as a result of that incident. Third, in April of 1989, the individual came home drunk, and, in response to a question from his wife, began to argue and beat her with a strap. According to the police report, the individual pulled the telephone out of the wall to prevent his wife from calling the police. The fight lasted for two hours, and the individual’s wife was subsequently treated for welts and bruises at a hospital. As a result of this incident, the individual was arrested and charged with assault and battery. Later, however, the individual’s wife dropped the charges, and the case was dismissed. DOE Exhibit 13 at 9-10; DOE Exhibit 3 at 11.

B. The Transformational Process.

1. In general.

In October of 1989, motivated by remorse over his previous misconduct, the individual became a “born-again Christian.” Transcript at 111-112. As detailed below, the individual’s “spiritual awakening” marked the beginning of a gradual process in which he has transformed almost every aspect of his life.(5) The individual’s transformation did not occur “overnight.” Moreover, the individual’s growth has not proceeded in a linear pattern of positive changes occurring at a uniform rate of speed. Rather, the individual has experienced erratic spurts of change wedged between fairly long periods of quiescence in which he adjusts to these growth spurts. Additionally, as a prelude to additional growth, the individual has also experienced brief regressions. See Transcript at 177-178.

2. The individual slowly changed his attitude and behavior towards the use of illegal drugs.

At the time of his spiritual awakening, the individual was not unequivocally committed to a drug free lifestyle. In fact, between October of 1989 and June of 1991, the individual smoked marijuana on two occasions. DOE Exhibit 3. However, soon after he used marijuana in June of 1991, the individual made substantial progress in his transformation from a drug-user to a person who is deeply committed to a spiritually- based drug-free lifestyle. Indeed, except for smoking a small amount of marijuana in 1996, the individual has been drug free since 1991. Transcript at 176.

a. In 1991, the individual confessed his use of illegal drugs to DOE.

Within weeks of the time that he used marijuana in 1991, the individual confessed to DOE that he had used illegal drugs. DOE Exhibit 3. Initially, the individual completed a Personnel Security Questionnaire (PSQ) and admitted that, among other things, he had used marijuana between 1987 and 1989. The individual was required to complete this PSQ as part of a routine re-investigation of his security clearance. Transcript at 24-26; DOE Exhibit 2. Subsequently, in July of 1991, when the individual was questioned about his responses to the PSQ at a Personnel Security Interview (PSI), he told the personnel security specialist (security specialist) that he had used a variety of illegal drugs between 1979 and 1989, and had smoked marijuana on two occasions between 1989 and 1991.(6) DOE Exhibit 3.

The individual also told the security specialist that he had become a “born-again” Christian in 1989. The individual indicated that he was motivated by his religious belief to “get everything in the open.” DOE Exhibit 3 at 93-96. He also told the security specialist that he could not change what happened, but he could “set things straight.(7) DOE Exhibit 3 at 94. After the security specialist told the individual that the use of illegal drugs could jeopardize his employment, the individual stated that he would abstain from using illegal drugs in the future. The individual also indicated that he would remain drug-free because of his involvement with the church, as well as his desire to continue as the custodial parent and to support his children. DOE Exhibit 3 at 54-66, 81.

After the PSI, the personnel security specialist stated that the individual “appeared to be truthful.” DOE Exhibit 4 at 3. She noted that if the individual had not admitted his use of illegal drugs in response to a question on the PSQ, DOE would not have become aware of it. Based on the individual’s past illegal drug use, the personnel security specialist recommended that the individual be re-interviewed, advised of DOE drug policy and asked to sign a Drug certification.(8) DOE Exhibit 4 at 4-5.

b. The 1992 PSI and the drug certification.

At a PSI conducted in 1992, the individual was again questioned concerning his use of illegal drugs. Transcript at 32-34. At this PSI, the individual stated that he had not used any illegal drugs since the last PSI, and that he has a “firm belief,” based on his faith and involvement with the church, that he will not use illegal drugs in the future. The individual explained that he now serves as the children’s minister in his church, and it would be hypocritical for him to preach abstinence to children while using illegal drugs. Moreover, the individual stated that he is also motivated to remain drug-free by his desire to be a good parent. The security specialist then explained DOE policy on the use of illegal drugs, and the individual agreed that he would sign a drug certification.(9) Exhibit 9. Based on the signed drug certification, as well as the other information provided at the PSI, the personnel security analyst concluded that the security concerns raised by the individual’s past use of illegal drugs and other misconduct had been resolved, and recommended that the individual be permitted to retain his access authorization. DOE Exhibit 10.

c. In 1996, the individual used marijuana in violation of the drug certification and subsequently confessed his misconduct to DOE.

In December of 1996, while visiting family in California, the individual took “one or two hits” of marijuana from a “joint” when it was passed to him. At the time of this incident, the individual was playing pool in the garage with his brother and some of his brother’s friends. The individual stated that he felt something snap, and had a strong feeling that he was committing a sin. DOE Exhibit 13 at 17-18.

In 1998, during a routine re-investigation of his security clearance, the individual told a security investigator about this incident. As a result of this disclosure, the individual was interviewed at a PSI. Transcript at 35; DOE Exhibit 7. During this PSI, the individual told the security specialist that he had used a small amount of marijuana on one occassion, and expressed remorse for his behavior. The individual stated that he is a leader in his church, and that he considers his conduct to have been morally wrong. The individual also stated that he has not used any other illegal drug since he signed the drug certification in 1992. DOE Exhibit 7 at 12-17; DOE Exhibit 16. Based on the individual’s admitted violation of a drug certification, the security specialist recommended that the individual’s access authorization be suspended. Transcript at 35-36.

C. The DOE Psychiatrist Concludes that the Individual Does Not Currently Have A Substance Use or Other Psychiatric Disorder.

DOE requested that a psychiatrist provide the agency with an assessment of the individual’s judgment, trustworthiness and reliability. In response to this request, a psychiatrist interviewed the individual, reviewed his records, and prepared a report. Transcript at 36; DOE Exhibit 13. In his report, the psychiatrist found that, in 1986 and at the present, the individual has not meet met the criteria set forth in the Diagnostic and Statistical Manual of the American Psychiatric Association, IVth Edition (DSM-IV), for any substance use or other psychiatric disorder.(10) In the absence of an illness or a mental condition, the psychiatrist concluded that the individual’s judgment, trustworthiness or reliability should not be evaluated as a mental health or substance abuse issue, but rather must be resolved as a question of national security. DOE Exhibit 13 at 19-23.

D. The Security Concerns Raised by the Individual’s Conduct.

At the hearing, a security specialist testified that a security clearance should only be awarded to an individual who demonstrates honesty and trustworthiness. The security specialist further testified that an individual who violates a drug certification demonstrates a lack of trustworthiness. She stated that the use of drugs is a crime, and an individual who violates a criminal statute has a greater propensity than others for violating a security regulation. Moreover, a drug certification is a promise made by an individual to DOE, and when an individual violates a drug certification there is a breach of trust. The security specialist further testified that, in this case, the use of marijuana reflects the individual’s lack of judgment because DOE had already allowed the individual to mitigate the security concerns associated with illegal drug use when he was permitted to sign the drug certification in 1992, and retain his clearance. She stated that the individual’s lack of judgment is further evidenced by the fact that he used marijuana even though he had been fully informed of the consequences of violating the drug certification. The security specialist also expressed her opinion that the individual’s honesty in disclosing his past illegal drug use to DOE does not offset these security concerns because the individual has continued to use illegal drugs despite the fact that he claims to believe that such conduct is immoral. Transcript at 46-56; 85-87.

E. The Individual’s Testimony at the Hearing.

At the hearing, the individual testified that he had become a “born-again” Christian because of the remorse that he felt over his past misconduct. Transcript at 111-112. Since that time, the individual explained, he has been doing “a progressive and improving Christian walk.” Transcript at 177. By referring to the testimony of the other witnesses, the individual indicated that he has changed his life by substituting positive activities for his negative behavior patterns.(11) Transcript at 176-177.

Moreover, except for “taking two tokes of a joint” in December of 1996, the individual stated that he has not used illegal drugs since 1991. Transcript at 176. To support his testimony, the individual submitted the results of six drug tests administered between 1996 and the time of the hearing in January of 1999.(12)

Transcript at 102-109; Individual’s Exhibit A; Exhibit B; Exhibit C; Exhibit G; Exhibit H.

The individual discussed the personal significance of his violation of the drug certification in 1996. He stated that from 1991 until 1996, he had been drug-free and “doing a very consistent, steady walk in my Christian life.” Transcript at 177-178. However, in December of 1996, he stumbled when he used marijuana in violation of the drug certification:

I made a bad mistake. I don’t know if it would be clinically termed a complete backslide, but it was definitely a stumble that I again, instantly regretted.

Transcript at 178.

The individual refers to this “stumble” as a “wake-up call,” and he testified that it has made him focus on the importance of avoiding future mistakes by focusing on the consequences of his actions:

That event . . . was a wake up call to me that it is possible to fall, it is possible to stumble, especially when you are not prepared to make those decisions instantly. I feel now that I have learned exponentially from that event to the point where I feel I would not make the same mistake again.

Transcript at 178.

The individual also testified about the profound impact these events have had on his life:

Since that time I have made it a point to make every single thought, decision and action that I do now, to make myself even more aware than ever before as far as what I do, is it right? In fact, that’s why I wear this bracelet, it says "WWJD," that means "what would Jesus do?"

Transcript at 178.

It is difficult to describe in words the profound impact this event has had on my life. In fact, it has been a life-changing moment that prompted me to seek out and become involved with an accountability group in my church . . . . This and other church activities have helped me to not only maintain a clean and sober lifestyle, but to understand what it means to be a man of integrity, and to tell the truth no matter what the cost, and in this case possibly the cost of my job which I have held dearly for 20 years.

I truly regret this stupid decision I made approximately two years ago, but I will never regret that I told the truth and confessed it.

Transcript at 189-190.

The individual testified that he was not coerced or influenced by others to use marijuana in 1996. Transcript at 178,189-190. He also testified that he is motivated to remain drug-free by his love for his family, and his desire to serve in his church and to continue to work for his employer. The individual expressed remorse for his conduct, and stated that he has consistently told others that he had made a serious mistake. Transcript at 186-187.

F. The Counselor’s Expert Testimony.

The head counselor at the individual’s church testified as an expert witness. He has a master’s degree in counseling, and has had substantial experience counseling people who have had a history of substance abuse problems.(13) Transcript at 125-127.

The counselor has known the individual since 1996. During the first year of their relationship, they had formal weekly meetings to discuss the individual’s personal and family issues. The counselor testified that the individual has told him about his past use of illegal drugs, including his 1996 use of marijuana in violation of a DOE Drug Certification. Transcript at 125-127.

The counselor described the individual as “a moral man who loves his family and serves God as best he can and exercises sound judgment.” Transcript at 142. The counselor reported that the individual attends church regularly and is “one of the ten percent of the people” who do “ninety percent of the work.” Transcript at 134. He also testified that the individual has a good reputation for trust, honesty and good judgment within the church community, and, as the single parent of two teenage boys, tries to set an example for his children. Transcript at 131-134.

The counselor stated that the individual’s judgment and reliability have been solid, and that he is also a steadfast participant at church which demonstrates that the individual has changed his lifestyle and thinking because he is involved with a different universe of influence and friends. Transcript at 133-134. The counselor stated that, although the individual has made mistakes, he can be trusted with classified information. He emphasized that the individual’s good judgment is based on a “moral compass,” and a desire to do the best he can. Transcript at 143.

The counselor testified that the individual’s drug use does not change his opinion concerning the individual’s judgment. The counselor stated that people who are addicted to drugs are untrustworthy. However, in the absence of an addiction, a person’s use of illegal drugs will not, by itself, render a person untrustworthy. The counselor stated that the individual has never been addicted to illegal drugs, and that he had done drugs in the past to mask pain, and when people use drugs to cope with pain, it does not change their character or their truthfulness. The counselor expressed his opinion that the individual’s use of drugs is not relevant to a determination of his trustworthiness. Transcript at 128-130.

Because he is aware of the high standards that the individual sets for his family, the counselor expressed surprise that the individual violated the drug certification by using marijuana in 1996. Transcript at 127. The counselor characterized the individual’s use of marijuana as a mistake that the individual regrets, and not reflective of his lifestyle. Although he does not have a good explanation for the individual’s use of marijuana, the counselor speculated that the individual was probably surprised when the drug was offered to him, and he made a bad choice. The counselor stated that he thinks the individual’s poor judgment was influenced by the fact that he was removed from his normal environment. Based on the changes that the individual has made in his lifestyle, the counselor thinks that there is a low risk of future drug use. Transcript at 128, 132, 136, 139.

The counselor reported that the individual had attempted to heal the breach of trust caused by his violation of the drug certification. The counselor stated that the individual’s confession is a critical element in reestablishing trust, and that the individual had confessed his drug use to DOE in an effort to rectify his mistake. He stated that, because DOE would not have discovered this drug use absent a confession, many people would have lied or failed to disclose such conduct. The individual, however, felt that he had a moral obligation to disclose this information in order to maintain a clear conscience before God. The counselor indicated that the people at church are proud of the individual for telling the truth. Transcript at 136-137. The counselor further stated that the individual’s admission of guilt and expression of remorse demonstrate that he has accepted responsibility for his actions, can learn from his mistakes and move on. Transcript at 144. The counselor stated under the totality of the circumstances, the individual has acted in a very moral way that is consistent with his character. Transcript at 137.

The counselor testified that the individual’s use of marijuana in 1996, and the events that flowed from that drug use, have served as a “wake up call” for the individual. Based on the individual’s reaction to these events, the counselor stated that he would be “flabbergasted” if the individual were to use illegal drugs again. Transcript at 144- 147.

G. The Individual’s Former Wife.

The individual’s former wife testified that they have been divorced for eleven years. She described the individual as a very good father and extremely involved with his children. She also indicated that the individual had encouraged her to become more involved with her children by requesting that she move to the area where he lives with their sons. In 1997, she complied with his request, and she stated that they are now parenting their children together. The individual’s former wife testified that they are now friends, and see each other once or twice a week, go to the movies, have dinner, and do things with their children. The individual’s former wife testified that since she returned to the area, she has not known the individual to use illegal drugs or to drink excessively. She also testified that the individual is very involved in church activities, has a close relationship with the pastor, and has many friends from church. She stated that the individual has "made great improvements" in his life, and changed the "bad parts." Transcript at 161. In conclusion, the individual’s former wife stated that the individual’s transformation has been "wonderful." Transcript at 158-162.

H. The Individual’s Friends.

Two close friends of the individual also testified on his behalf. The first witness stated that he met the individual at work, has been acquainted with the individual for twelve years, and has been close friends with the individual for five years. This witness described his relationship with the individual by saying that they “hang out” together. The witness testified that he eats lunch with the individual, and that they also play golf and softball and watch sports on television. He testified that the individual spends his free time with his family, at church, or helping others. This witness also stated that he was surprised when the individual told him that he had used marijuana in 1996, because he had never known the individual to use illegal drugs or associate with people who appeared to be drug-users. The witness indicated that the individual appeared upset when they discussed his 1996 drug use, and that the individual said that he would never use illegal drugs again. The witness testified that the individual is usually very dependable and has good judgment. Transcript at 114-124.

The second witness testified that he has worked with the individual for ten years, and that, after they saw each other at church three or four years ago, they had become good friends. This witness testified that he now sees the individual more frequently at church than at work. The witness also stated that he and the individual are “accountability brothers”- Christian men who help one another to develop integrity and grow in accountability. The witness stated that, as accountability brothers, they meet with two other men on a weekly basis to encourage each other. The witness testified that, as the individual’s accountability brother, he has seen the individual grow. This witness also testified that the individual has a gift for helping people, stating that “whenever someone needs help, he’s like the first one to volunteer.” Transcript at 150. He said that the individual has spent substantial time and effort serving as a “big-brother” to a fatherless boy, and assisting a woman who is wheel-chair bound. The witness stated that the individual had told him that he had made a mistake when he used marijuana in December of 1996, and the witness also stated that he was surprised by the individual’s use of drugs in 1996. The witness also stated that the individual has a very strong work ethic. Transcript at 147-158.

III. ANALYSIS.

As detailed below, based on my examination of the evidence and my assessment of the credibility and demeanor of the witnesses, I find that the security concerns caused by the individual’s use of a small amount of marijuana in violation of a drug certification in 1996, and his use of a variety of illegal drugs before 1991, are mitigated by the surrounding circumstances.

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). To restore the individual’s security clearance, I must find that restoring this access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. See 10 C.F.R. § 710.27(d).

In making a determination here, I will consider the relevant factors and circumstances connected with the individual's conduct. These factors, which are set forth at 10 C.F.R. § 710.7(c), include "the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the age and maturity of the individual at the time of the conduct; the voluntariness of 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; [and] the likelihood of continuation or recurrence. . . ."

A. The Individual’s Use of Marijuana in Violation of the Drug Certification.

I find that the security concerns that arise as a result of the individual’s use of marijuana in violation of the drug certification have been mitigated. Based on my assessment of the credibility and demeanor of the witnesses and my review of the evidence in the administrative record, I find that when the individual became a born- again Christian, he started a gradual process of transforming almost every aspect of his life. Before October of 1989, the individual used a variety of illegal drugs, drank an excessive amount of alcohol, provided false information to DOE, and had been involved in at least three incidents of domestic violence. Subsequently, the individual changed his life by substituting spiritually-based activities for these negative behavior patterns. Although this process has taken a substantial amount of time, and the individual has “stumbled” along the road, I am extremely impressed by the individual’s commitment, hard-work, and on-going personal growth.

Based on his demeanor at the hearing, I give great weight to the testimony of the church counselor. After reviewing all of the evidence in the record, I agree with his opinion that the individual is “a moral man who loves his family and serves God as best he can and exercises sound judgment.” Transcript at 142. This opinion is supported by substantial evidence. As noted above, the counselor stated that the individual as “one of the ten per cent of the people that does ninety per cent of the work” at church. He also testified that the individual has a good reputation for trust, honesty and good judgment within the church community, and, as the single parent of two teenage boys, tries to set an example for his children.

I was also extremely impressed by the testimony of the individual’s former wife. Prior to the individual’s transformation, his former wife had been the victim of at least three incidents of domestic violence. Notwithstanding the fact that she had been the victim of his abuse, she testified that the individual is now a very good father and extremely involved with his children. The individual’s former wife also testified that the individual is very involved in church activities, has a close relationship with the pastor, and has many friends from church. She concluded her testimony by stating that the individual has “made great improvements” in his life, and “changed the bad parts,” and that it is “wonderful” how far the individual has come. Transcript at 161.

There is considerable evidence in the record that the individual is known in the church community for helping others. I have heard testimony that the individual has spent substantial time and effort serving as a “big-brother” to a fatherless boy, and assisting a woman who is wheelchair bound. The evidence clearly reflects that he is a loving father, who tries to set an example for his children, as well as a trusted friend. These commitments are such an important element of the individual’s daily life that it appears extremely unlikely that he would be disposed to jeopardize them by further use of illegal drugs, even in an isolated manner as occurred in 1996, when he abused drugs on one occasion.

I also find that the individual’s use of marijuana in 1996 was the only time that he has used illegal drugs since 1991, and that it is extremely unlikely that this individual will ever use illegal drugs again. He is strongly motivated to remain drug-free by his religious conviction and by his love for his children. I further believe that the individual is genuinely sorry that he used this marijuana and has done everything possible to rectify the situation. Most significantly, the church counselor points to the individual’s acceptance of responsibility for his behavior as strong evidence that the behavior will not be repeated. Additionally, the individual has a strong support system that will help him remain drug-free. The counselor testified that the individual’s use of marijuana in 1996, and the events that flowed from that drug use, have served as a “wake up call” for the individual. Based on the individual’s reaction to these events, the counselor stated that he would be “flabbergasted” if the individual were to use illegal drugs again. Transcript at 145.

I am very favorably impressed by the individual’s decision to disclose voluntarily his drug use. Unlike most such cases, DOE had no independent basis to suspect drug use had taken place; had the individual not disclosed the event, it is a virtual certainty that this matter would never have come to light. I find that the individual acted with in tegrity when he made these disclosures, and that he was motivated to disclose his drug use by a desire to rectify his mistake. Again, I agree with the church counselor that the individual’s admission of guilt demonstrates that he has accepted responsibility for his actions, and that he can learn from his mistakes.

I agree with the counselor’s assessment that because DOE would not have discovered this drug use absent a confession, many people would have lied or failed to disclose such conduct. The individual, however, felt that he had a moral obligation to disclose this information in order to maintain a clear conscience before God. Moreover, as a matter of public policy, DOE wants to encourage people to admit their previous mistakes. For these reasons, I will recommend that the individual’s access authorization be restored. See Personnel Security Hearing, Case No. VSO-0232 (1999) (security concerns associated with use of marijuana mitigated by showing unplanned one-time lapse); Personnel Security Hearing, Case No. VSO-0045, 25 DOE ¶ 82,774, aff’d OSS (1995) (violation of drug certification mitigated by showing, among other factors, unplanned, isolated use of marijuana and acceptance of responsibility by individual); Personnel Security Hearing, Case No. VSO-0128, 26 DOE ¶ 82,784 (1996) (security concerns under criterion L mitigated by individual showing one-time drug use and honesty, reliability and trustworthiness).

B. The Individual’s Use of Illegal Drugs Between 1979 and 1991.

I find that the security concerns associated with the individual’s use of illegal drugs between 1979 and 1991 have been mitigated. First, the circumstances that mitigate the security concerns associated with the individual’s use of marijuana in violation of the drug certification also mitigate the security concerns that arise as a result of the individual’s use of illegal drugs before 1991. Second, as almost all of the individual’s drug use during this period occurred between ten and twenty years ago, the relevance of these events has been reduced by the passage of time. Third, as I have found that the individual radically changed his life when he became a “born-again” Christian in 1989, the misconduct that predates this transformation is not probative on the issue of the appropriateness of restoring the individual’s access authorization. See Personnel Security Hearing, Case No. VSO-0085, 26 DOE ¶ 82,751 (1996) (passage of time mitigates security concerns associated with the individual’s use of illegal drugs).

IV. CONCLUSION.

In view of the criteria set forth in 10 C.F.R. Part 710, I find that restoring the individual's access authorization would not endanger the common defense and security and would be consistent with the national interest. I believe that the individual is honest and trustworthy, and did not use illegal drugs between 1991 and December of 1996, or at any time thereafter. I also find that the individual’s testimony is credible and corroborated by independent evidence. The individual has also convinced me that he will not use illegal drugs again. Further, I find that the security concerns associated with the individual’s use of illegal drugs between 1979 and 1991 have been mitigated by the passage of time, and the fact that this illegal drug use predates, or occurred at the earliest stages of, the individual’s transformational process. For these reasons, I will recommend that the individual’s access authorization be restored.

The regulations governing this proceeding provide that either the DOE's Office of Security Affairs or the individual may file a request for review of this Opinion. 10 C.F.R. § 710.28(a). The request must be filed within thirty calendar days of receipt of this Opinion. Within fifteen calendar days of filing such a request, the requesting party must file a statement specifying the issues upon which it seeks review. The other party may file a response to the statement of issues. It must do so within twenty calendar days of receipt of the statement of issues. All submissions must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Avenue, SW, Washington, D.C. 20585-0107. In addition, a party must send a copy of each of its submissions to the other party.

Linda Lazarus

Hearing Officer

Office of Hearings and Appeals

Date: April 2, 1999

(1)In 1992, as a result of this confession, DOE asked the individual to sign a drug certification. The individual complied with this request.

(2)It is uncontested that, in the absence of these confessions, it is unlikely that DOE would have learned of the individual’s use of illegal drugs or breach of a drug certification.

(3)Section 710.8 sets forth the principal types of derogatory information that create questions as to an individual’s eligibility for access authorization. Criterion K involves information that an individual has possessed, used or experimented with an illegal drug. Criterion L involves information that an individual has engaged in unusual conduct or is subject to circumstances that tend to show that he is not honest, reliable or trustworthy or that furnish reason to believe that he may be subject to pressure, coercion, exploitation or duress that may cause him to act contrary to the national security.

(4)The Notification Letter indicated that, since 1979, the individual admitted that he had used marijuana, cocaine (six times), LSD (three times), psychotropic mushrooms (four to five times), white crosses, and hashish (six times) while holding a security clearance.

(5)After his spiritual awakening, the individual began to focus increasingly on participating in church activities, providing service to others, and parenting his children. As the individual’s commitment to these positive activities increased, he was able to gradually eliminate his negative behavior patterns. Thus, as detailed above, except for an isolated incident of using marijuana, the individual has been drug free since 1991. Moreover, the individual no longer has a problem with the habitual or excessive use of alcohol, domestic violence, or making false statements to DOE. See DOE Exhibit 4; DOE Exhibit 10.

(6)The individual also disclosed problems related to the use of alcohol, an arrest for domestic violence, treatment for depression, and severe financial problems. DOE Exhibit 2; DOE Exhibit 3.

(7)”At a PSI conducted in 1992, the individual reiterated that this confession had been motivated by his spiritual awakening, and also said that he was not just confessing to DOE, but was also confessing his sins to God. DOE Exhibit 9 at 48.

(8)The security specialist also indicated that it did not appear that the individual’s alcohol use, depression and financial situation were security concerns. DOE Exhibit 4 at 3-6.

(9)The Drug Certification signed by the individual provides, in relevant part:

I have been told that the Department of Energy (DOE) does not allow the use . . . of illegal drugs . . . by people whose job requires access to . . . classified information . . . .

I agree that I will not . . . use . . . illegal drugs . . . at any time, in any country, in any job in which I have been given a DOE access authorization or security clearance . . . .

I understand that if I break this agreement even once, I may lose my DOE access authorization or security clearance. I also understand that if I lose my DOE access authorization or security clearance, I may lose my job.

DOE Exhibit 5.

(10)The psychiatrist found, however, that the individual’s conduct met the DSM-IV criteria for Substance Abuse, Alcohol in the late 1980s, and Substance Abuse, Marijuana from the late 1980s to 1991.

(11)The individual, who has represented himself in this proceeding, made this statement during closing argument. As the individual was under oath at the time of the closing argument, I give these statements the same weight as any other testimony.

(12)The individual testified that he was drug tested because he had volunteered to participate in his employer’s employee assistance program (EAP), and because he had requested that both he and his children be drug tested after being informed by a school official that there was reason to believe that his children were using illegal drugs. Transcript at 105-108. Individual’s Exhibit A; Exhibit B; Exhibit C; Exhibit G; Exhibit H.

(13)The counselor indicated that most people who receive counseling at the church have had a history of using illegal drugs. He stated that a drug background often motivates a person to join the church as part of a sincere effort to change. Transcript at 126.