Case No. VSO-0243, 27 DOE ¶ 82,808 (H.O. Cronin June 23, 1999
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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.
June 23, 1999
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALS
Hearing Officer's Opinion
Name of Case: Personnel Security Hearing
Date of Filing: October 20, 1998
Case Number: VSO-0243
This Opinion concerns the eligibility of XXXXXXXX (the Individual) to hold an 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.” (1)/ The Individual’s access authorization was suspended by the Manager of a Department of Energy (DOE) Operations Office pursuant to the provisions of Part 710. Based on the record before me, I am of the opinion that the Individual’s access authorization should not be restored.
I. Background
A. Procedural History
The Individual was formerly an employee of a contractor at a DOE facility. While the Individual was employed at the DOE facility, the Operations Office discovered potentially derogatory information concerning the Individual's consumption of alcohol and his alleged falsification of information provided to the DOE concerning his prior marijuana use. Since the DOE was unable to resolve the security concerns in a manner favorable to the Individual, the Operations Office suspended the Individual’s access authorization, and obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.
After the Manager of a DOE Operations Office has authorized the suspension of an individual’s access authorization, and has obtained the authority to conduct an administrative review proceeding, the individual is notified of the basis for the suspension and provided “the option to have the substantial doubt regarding eligibility for access authorization resolved in one of two ways: (i) By the Manager, without a hearing, on the basis of the existing information in the case; (ii) By personal appearance before a Hearing Officer (a 'hearing').” 10 C.F.R. §§ 710.10(b), (d), 710.21(a), (b)(3). If a hearing is requested, the individual [has] the right "to appear personally before a Hearing Officer; to present evidence in his own behalf, through witnesses, or by documents, or both; and . . . to be present during the entire hearing . . ..” 10 C.F.R. § 710.21(b)(7).
The administrative review proceeding in this case began with the issuance of a Notification Letter to the Individual. See DOE Exhibit 3 (Notification Letter); 10 C.F.R. § 710.21. That letter informed the Individual that information in the possession of the DOE created a substantial doubt concerning his eligibility for access authorization. The Notification Letter included a statement of that derogatory information and informed the Individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization. The Individual requested a hearing, and the DOE forwarded the Individual’s request to the Office of Hearings and Appeals (OHA). The Director of OHA appointed me as the Hearing Officer in this matter. A telephone conference and hearing were subsequently held pursuant to 10 C.F.R. § 710.25(f) and (g). At the hearing, only two witnesses presented testimony: a DOE-contractor Psychiatrist (DOE Psychiatrist) and the Individual.
B. The Basis for the DOE’s Security Concern
The derogatory information cited in the Notification Letter issued to the Individual falls within the ambit of paragraphs (f) and (j) of 10 C.F.R. § 710.8 (Criteria F and J respectively). See DOE Exhibit 2. With respect to Criterion F, the Notification Letter states that the DOE has information indicating that the Individual provided false answers to a 1993 Questionnaire for Sensitive Position and at a September 1997 Personnel Security Interview when he indicated that he had not used marijuana. Subsequently, in a January 1998 Personnel Security Interview with the DOE, the Individual admitted that he had used marijuana. See 10 C.F.R. § 710.8 (f). The Notification Letter also stated that the DOE possessed information indicating that the Individual “has been, or is, a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist as alcohol dependent or as suffering from alcohol abuse.” See 10 C.F.R. § 710.8 (j). Specifically, the DOE stated that a DOE-contractor psychiatrist had evaluated the Individual in 1997. The DOE Psychiatrist, in a written report (Report), diagnosed the Individual as suffering from Alcohol Abuse. See DOE Exhibit 11. The Notification Letter also details a series of alcohol-related arrests and incidents.
C. The Standard for Review
“The 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 considering the question of the Individual's eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c): 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 voluntariness of the 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 continuance or recurrence; and other relevant and material factors.
The hearing is “for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization.” 10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising security concerns, the burden is on the individual to come forward at the hearing with evidence to convince the DOE that 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. § 710.27(d). See Personnel Security Hearing, (Case No. VSO-0002), 24 DOE ¶ 82,752 at 85,511 (1995) (aff’d OSA, 1995). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national interest” standard for the granting of security clearances indicates “that security determinations should err, if they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance). For the reasons discussed below, I find that the Individual has not met his burden in this case.
II. Analysis
A. Criterion F
1. Findings of Fact
Criterion F pertains to information that a person has “Deliberately 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, or proceedings conducted pursuant to § 710.20 through 710.31.” 10 C.F.R. § 710.8 (f). The facts surrounding the alleged falsification are not disputed and are briefly presented below as my findings of fact regarding the Criterion F information in this case.
In a January 28, 1993, Questionnaire for Sensitive Positions (QSP), the Individual checked the “No” box in response to Question 25 in the QSP. Question 25 asks:
In the last 5 years have you used, possessed, supplied, or manufactured any illegal drugs? When used without a prescription, illegal drugs include, marijuana, cocaine, hashish, narcotics (opium, morphine, codeine, heroin, etc.), stimulants (cocaine, amphetamines, etc.), depressants (barbiturates, methaqualone, tranquilizers, etc.) hallucinogenics (LSD, PCP, etc.).
DOE Exhibit 7 at 8. Several years later, the Individual reported to security personnel at the DOE Operations Office that he had been arrested. The DOE Operations Office then conducted a personnel security interview with the Individual on September 24, 1997 (9/97 PSI). See DOE Exhibit 8 at 4. During this interview the Individual was asked if he had ever tried marijuana. The Individual stated, “No, I’ve been around it I mean I know people that do that sort of thing, but I don’t.” Id. at 24. The interviewer went on to explain to the Individual, “Let me explain the word use to you. One toke, one puff off a joint would be a use. Having heard the word ‘use,’ have you at any time used or tried marijuana?” Id. at 24-25. The Individual replied, “No.” Id. at 25.
On January 27, 1998, the DOE Operations Office conducted another personnel security interview (1/98 PSI) with the Individual. See DOE Exhibit 9. During this interview, the Individual was asked, “When was the last time you [the Individual] had so much as a single puff from a marijuana cigarette?” Id. at 39. The Individual replied, “Oh, I don’t know. I mean I’ve tasted it.” Id. When asked again when was the last time he had taken a puff he stated “That was way before I worked here. I mean I can’t give you a date. It was just . . . probably ’89 or ’90 or something like that.” Id. Later in the interview, the Individual states that the last time he “was sober and consciously smoked it [marijuana] was prior to working here ’91 or ’92.” Id. at 41. At the hearing, the Individual stated that he had smoked some marijuana his wife had obtained for him in 1995. Transcript of May 13, 1999 Hearing (Tr.) at 43, 54.
2. Analysis
At the hearing, the Individual denies that he intentionally misled the DOE about his prior marijuana usage. Tr. at 54. The Individual believed that the questions about marijuana at issue here only asked if he was a regular or semi-regular user of marijuana. Id. at 55. Because the Individual had only used marijuana perhaps half a dozen times, he did not consider himself to be a regular user of marijuana. See id. at 54-56. Consequently, he answered no to the questions in the QSP and the 9/97 PSI. The Individual also testified that in the 9/97 PSI he had been subjected to a barrage of questions regarding his regular alcohol use and that those questions influenced his interpretation of the question regarding marijuana usage in the same interview. Id. at 55. The Individual noted that when he was re-interviewed in the 1/98 PSI he understood what type of usage the interviewer was asking about and answered in the affirmative concerning his prior use of marijuana. Id. at 56.
The Individual’s explanation as to the falsified answer he provided to the DOE in the QSP and the 9/97 PSI is unconvincing. Question 25 of the QSP is unambiguous in asking if the Individual had ever used illegal drugs such as marijuana. It does not ask if one is a regular user of the drug. I am even more troubled regarding the Individual’s answers in the 9/97 PSI. The interview specifically told the Individual that use refers to “one toke, one puff off a joint.” DOE Exhibit 8 at 24. Given this detailed question it is not plausible that the Individual could have reasonably believed that the interviewer was asking about some type of regular use. While I recognize that the Individual had been subject to a number of questions regarding his regular alcohol use and alcohol problems in this interview, the interviewer specifically explained to the Individual what would constitute using marijuana. Consequently, I find that the DOE had a sufficient basis to invoke Criteria F.
There is no other evidence in the record to mitigate the security concerns raised by the Individual’s falsification. At the hearing, I believe that the Individual provided truthful answers when questioned. However, this fact does not mitigate the Individual’s relatively recent falsifications. A clearance holder’s trustworthiness is essential to DOE’s security program. Falsification by an employee with an access authorization raises serious, legitimate doubts about whether he should be entrusted with access to classified materials. Personnel Security Hearing, Case No. VSO-0170, 26 DOE ¶ 82,802 at 85,857 (1997), aff’d, 27 DOE ¶ 83,004 (OHA 1998) (aff’d OSA, 1998). In this case, moreover, the falsification concerns illegal drug use, which raises potential security concern in its own right. The unmitigated security concerns arising from the Individual’s falsifications would in themselves justify a recommendation that the Individual’s clearance not be restored.
B. Criterion J
1. Findings of Fact
Criterion J pertains to information that a person has “Been, or is, a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse.” 10 C.F.R. § 710.8(j).
The facts regarding his alcohol usage and his attempt at rehabilitation are essentially undisputed in this case and are briefly presented below as my findings of fact in this case with respect to Criterion J.
The Individual has had a number of alcohol-related arrests. On January 23, 1989, the Individual was arrested for Driving Under the Influence (DUI). DOE Exhibit 9 at 10-11. In 1991, the Individual was received citations for possessing an open container of alcohol and Public Intoxication. Id. at 14-15. On November 20, 1996, the Individual was arrested for Assault on a Police Officer. (2)/ Id. at 30-31. The Individual was again arrested in 1997 for DUI and in January 1998 for Public Intoxication. DOE Exhibit 9 at 26, 32. (3)/
The Individual’s alcohol consumption began in 1976 when for a year he would consume a 12-pack of beer once or twice a month. DOE Exhibit 9 at 4-5, 7. Subsequently, the Individual’s consumption of beer decreased to six to seven containers of beer over a weekend. DOE Exhibit 9 at 8-9. This pattern of consumption lasted for approximately the next 11 years. DOE Exhibit 9 at 9. During the period 1989 to 1991, the Individual stated that occasionally he would consume 12 or more beers for three or four days consecutively and that he would become intoxicated approximately once or twice a week. DOE Exhibit 9 at 12-13. After this period, the Individual’s alcohol consumption occurred primarily on the weekends and he would become intoxicated approximately once a month. Id. at 13. In the 1/98 PSI, the Individual stated that at his then current level of alcohol consumption he would become intoxicated approximately twice a month and that he would have to consume a 12-pack of beer before he considered himself intoxicated. Id. at 23.
In July 1998, the Individual sought treatment for his alcohol problem at an alcohol treatment facility. Tr. at 9; Individual’s Exhibit 1. The program consisted of sixteen treatment sessions held two or three times a week. The Individual’s treatment sessions sought to reduce and control the Individual’s consumption of alcohol. Tr. at 11-12. The Individual completed the treatment program and now participates in an Aftercare program consisting of meeting with a counselor every two or three weeks. Id. at 9, 12. The Individual’s current alcohol consumption is two or three drinks once a week. Tr. at 14.
2. Analysis
The Individual admits that he has an alcohol problem. Tr. at 9; DOE Exhibit 9 at 28-29. Given the Individual’s lengthy history of alcohol related arrests and his self-reported alcohol consumption and frequency of intoxication, I find that the Individual has been a user of alcohol habitually to excess and that the Operations Office properly invoked Criteria J. (4)/
Habitual excessive alcohol use raises serious security concerns. Individuals who abuse alcohol are susceptible to being coerced or exploited to reveal classified matters. Further, when an individual is under the influence of alcohol his or her judgement and reliability are impaired. These security concerns have been recognized by a number of hearing officers in similar cases. See, e.g., Personnel Security Hearing, (Case No. VSO-0221), 27 DOE ¶ 82,792 (1999); Personnel Security Hearing, (Case No. VSO-0200), 27 DOE ¶ 82,770 at 85,628 (1998) (aff’d OSA 1998) and cases cited therein.
A finding of derogatory information does not, however, end the evaluation of the evidence concerning the Individual’s eligibility for access authorization. See Personnel Security Hearing, (Case No. VSO-0154), 26 DOE ¶ 82,794 (1997), aff'd, 27 DOE ¶ 83,008 (OHA 1998) (aff’d OSA, 1998). In this case, the Individual asserts that his treatment program has enabled him to drink in a “responsible” fashion and that his alcohol consumption is no longer a security concern.
The Individual testified that as a result of his treatment program his alcohol consumption is now controlled and that he practices “responsible drinking.” Tr. at 12-13. The Individual defines “responsible drinking” as learning to consume alcohol without becoming intoxicated. Id. at 13. The Individual states that the limit of his alcohol consumption is now two or three drinks and that his alcohol consumption has been under control since August 1998. Id. at 14, 30-31. The Individual’s treatment program was designed to enable participants to have a fuller understanding of the problems that played a role in their drinking problems and to try to get them to explore other solutions to these problems. Id. at 10. The Individual noted in this regard that his relationship with his wife may have been a contributing factor in his excessive drinking. Id. at 14-15. The Individual is currently separated from his wife and that since the separation he asserts that it has been easy for him to abstain from “regular extensive drinking.” Id. at 15. The program also entailed discussions as to social situations that promoted excessive alcohol consumption. Id. at 26-27. While the Individual admitted that the treatment program’s primary goal is to get people to be total abstinent it also accepted people who only sought to control their alcohol consumption rather than be totally abstinent. Id. at 11. The Individual stated that he sought treatment in controlled drinking rather than total abstinence because he did not want to undergo a complete change of lifestyle, including acquiring new friends. Id. The Individual is now in the Aftercare treatment program offered by the facility. Id. at 9, 12. The program consists of one-on-one meetings with a counselor every two or three weeks. Id. at 17. Since entering the treatment program, the Individual has not operated a motor vehicle after consuming an alcoholic beverage. Id. at 25. Additionally, the Individual is currently working for another non-DOE employer. Id. at 19.
At the hearing, the DOE Psychiatrist was offered an opportunity to ask questions of the Individual and to testify as to the Individual’s medical condition and his rehabilitation. The DOE Psychiatrist’s testimony is summarized below. The DOE Psychiatrist commented that “it is really to [the Individual’s] credit that he went for treatment.” Tr. at 39. However, the DOE Psychiatrist could not offer an opinion as to whether the Individual could be considered reformed and rehabilitated since he did not believe that he had enough information to formulate such an opinion. Tr. at 52-53. The DOE Psychiatrist also declined to offer an opinion as to the efficacy of “controlled drinking” programs. Tr. at 52. The DOE Psychiatrist stated that his treatment preference was that individuals suffering from alcohol problems abstain from consuming alcohol. Id. He noted that the general “rule of thumb” for the treatment time required necessary for rehabilitation of alcohol problems was two years. Id. However, he also stated that this was a flexible standard that depended on other available evidence concerning an individual’s particular condition. Id.
After reviewing the available evidence, I cannot conclude that the Individual is sufficiently rehabilitated or reformed to allay the security concerns associated with his alcohol problem. While I find that the Individual has attended and completed a treatment program, I do not have enough evidence before me concerning the treatment program to make a judgement regarding its effectiveness. In this regard, I note that the Individual himself testified that his treatment center’s preference would have been for the Individual to abstain from alcohol consumption. While I recognize that the Individual’s alcohol consumption seems to have been under control since August 1998, this does not in itself give me sufficient assurance that the Individual will not slip into a pattern of excessive alcohol consumption. The Individual’s alcohol problem is of a long-standing nature. Consequently, I believe that the Individual’s current 10-month period of controlled alcohol consumption (as of the date of the hearing) provides insufficient evidence for me to conclude that the Individual is rehabilitated or reformed.
III. Conclusion
I find that the Individual has falsified information in a QSP and a PSI. Further, I can find no factors that would mitigate the concerns raised by the Individual’s falsifications. Consequently, the Individual’s falsifications raise significant security concerns as to his trustworthiness. I also find that the Individual has been a user of alcohol habitually to excess. The Individual has not presented sufficient evidence for me to find that he has been rehabilitated. The Individual’s alcohol problem thus raises significant security concerns. After reviewing all the evidence in the record, I cannot conclude that restoring the Individual’s access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. It is therefore my opinion that the Individual’s access authorization should not be restored. 10 C.F.R. § 710.27(a).
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 20874-1290Richard A. Cronin, Jr.
Hearing Officer
Office of Hearings and AppealsDate: June 23, 1999
(1)/ Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a). Such authorization will be referred to variously in this Opinion as access authorization or security clearance.
(2)/ The Individual asserts that the assault resulted from his blood sugar level becoming too low from his failure to inject his insulin combined with his alcohol consumption. Tr. at 19, 21. The Individual was convicted on this charge. Id. at 19-20.
(3)/ The Individual reported in the 1/98 PSI that the 1997 arrest was later dismissed for unknown reasons. DOE Exhibit 9 at 26; Tr. at 29.
(4)/ The DOE presented testimony from the DOE Psychiatrist. The DOE Psychiatrist had issued a June 1997 written report diagnosing the Individual as suffering from Alcohol Abuse. DOE Exhibit 11. However, at the Hearing, the DOE Psychiatrist declined give an opinion regarding the Individual’s condition or whether his diagnosis of Alcohol Abuse was still applicable to the Individual. Tr. at 45. The DOE Psychiatrist did opine that the Individual had been a habitual user of alcohol to excess. Id. at 51.