Case No. VSO-0255, 27 DOE ¶ 82,801 (H.O. Goldstein April 26, 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.

April 26, 1999

DECISION AND ORDER

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: January 14, 1999

Case Number: VSO-0255

A Department of Energy Operations Office (the DOE office) suspended the access authorization of XXX XXX XXX (hereinafter referred to as "the individual") 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)As detailed below, because of the existence of mitigating circumstances demonstrated by the evidence and testimony in this proceeding, it is my opinion that the individual's access authorization should be restored.

I. Background

On December 24, 1998, the DOE office issued a Notification Letter informing the individual that his access authorization had been suspended because information in the possession of the DOE created substantial doubt concerning his eligibility. The specific information was set forth in an enclosure to the Notification Letter. In that enclosure, the DOE office stated that this information falls within the purview of two of the criteria set forth in 10 C.F.R. § 710.8, subsections 710.8(f) and (l).

First, the DOE office invoked 10 C.F.R. § 710.8(f) (Criterion F) because it had information which indicated the individual "misrepresented, falsified, or omitted significant information" from his 1990 Questionnaire for Sensitive Positions (QSP) and his 1996 Questionnaire for National Security

Positions (QNSP). See Criterion F. Both these falsifications concerned his illegal drug use. In 1998, the individual admitted that he had used marijuana in 1985 and in either 1992 or 1993. However, he had denied in a 1990 QSP and a 1996 QNSP having used drugs within time periods which included his drug use. See DOE Ex. 9 at 9, 26 (1998 Personnel Security Interview (PSI) Tr.); DOE Exs. 11-13. (2)

Second, the DOE office invoked Criterion L because it had information which indicated the individual has "[e]ngaged 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 the individual may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of the national security." In support of this statement, the Notification Letter specified that the individual had continued to use illegal drugs after signing a drug certification promising that he would not use illegal drugs at any time while holding access authorization.(3)During the 1998 PSI, the individual admitted using illegal drugs after signing a drug certification in 1982. He regularly smoked marijuana (although with decreasing frequency) until 1985, and smoked it once in 1992 or 1993. 1998 PSI Tr. at 9, 26; DOE Ex. 11. In addition, the individual used cocaine once, in 1983. See 1998 PSI Tr. at 9-11; Email Message from Individual to Hearing Officer (February 23, 1999).

In a letter forwarded to the DOE Office of Hearings and Appeals (OHA), the individual requested a hearing in this matter. 10 C.F.R. § 710.21(b). At the hearing, the DOE counsel called two witnesses: a DOE consultant psychiatrist and a DOE security specialist. The individual called eight witnesses: himself, his wife, his brother, a current colleague who is also a friend and former supervisor, a high-level supervisor, a longtime friend, a co-worker who is also a close friend, and another co-worker who is also the individual's former computer security officer.

II. Findings of Fact and Analysis

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal matter, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. See Personnel Security Hearing (Case No. VSO-0078), 25 DOE ¶ 82,802 (1996). In this type of case, we apply a different standard, one designed to protect national security interests. A hearing in this type of proceeding 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 identified derogatory information raising security concerns, the burden is on the individual to come forward at the hearing with evidence to convince the DOE that granting 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). This standard implies that there is a strong presumption against the granting or restoring of access authorization. SeeDepartment of Navy v. Egan, 484 U.S. 518, 531 (1988) ("clearly consistent with the national interest" standard for the granting of access authorizations 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) (strong presumption against the issuance of access authorization). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 at 85,511 (1995).

I have thoroughly considered the record of this proceeding, including the submissions of the parties, the evidence presented and the testimony of the witnesses at the hearing. In resolving 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. After due deliberation, it is my opinion that the individual has made a strong showing that the DOE security concerns have been mitigated and his access authorization should be restored. I conclude that such a restoration would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a).

A. Criterion F

1. The individual's misrepresentations

Criterion F concerns information that indicates an individual “[d]eliberately misrepresented, falsified, or omitted significant information” during an official inquiry concerning his eligibility for a clearance. In 1998, the individual admitted that he had used marijuana in 1985. However, he had denied in the 1990 QSP having used drugs within the previous five years.(4) See 1998 PSI Tr. at 9; DOE Ex. 13. In 1998, the individual also admitted that he had used marijuana once in 1992 or 1993. However, he had denied in the 1996 QNSP having used drugs within the previous seven years. 1998 PSI Tr. at 26; DOE Exs. 11 and 12. The individual admits the accuracy of the Notification Letter's statements that he deliberately failed to answer questions accurately about his drug use on his 1990 and 1996 security questionnaires and that this information is significant.

Moreover, the individual has disclosed other information, not mentioned in the Notification Letter, but which bears on the Criterion F concerns. In the individual's 1998 PSI, he was questioned as to whether he really meant his statement in a 1982 PSI that he intended to stop using illegal drugs. See DOE Ex. 17 (February 19, 1982 PSI Tr.) at 4. In the 1998 PSI, he responded with various explanations and eventually stated that he thought he probably lied in the 1982 PSI. 1998 PSI at 17-19. One week after the 1998 PSI, he sent a letter to the DOE security specialist admitting that he either knew or should have known in 1982 that he would not stop using illegal drugs at that time. In addition, he admitted that by the time of the 1982 PSI that "lying about illegal drug use had become routine." DOE Ex. 10; see also Tr. at 66, 68, 107. Further, the individual also disclosed at the hearing that in the 1982 PSI, he stated that he had stopped cultivating marijuana plants two years previously, when in reality, he stopped cultivating it either right before or right after the 1982 PSI. Tr. at 55, 66-67; 1982 PSI Tr. at 5-6. In addition, the individual disclosed that he had minimized the amount of his drug use in the 1982 PSI. Tr. at 55, 65-66. Finally, the individual admitted that there may have been sporadic other uses of marijuana between 1985 and 1993 that he does not recall. See Criterion L discussion. However, the individual presented the following testimony to mitigate the DOE security concerns.

2. Mitigating Evidence

First, at the hearing, the individual provided the following explanations for his past drug use and lies about his drug use and then discussed the sequence of events that led him to disclose these actions in 1998. He felt that his drug use in the early 1980s, as well as his falsifications during his 1982 PSI were a product of "those times," i.e., when there were more casual attitudes about drug use. Tr. at 67, 106. He also believed that his heavy use at that time led him to give false answers in the 1982 PSI. Tr. at 54, 67. He freely admitted that he did not believe until 1998 that lying on the security questionnaires about drugs was "that serious" a matter. Tr. at 124; 1998 PSI Tr. at 51. Yet, at the same time, he was afraid of being fired if he disclosed his drug use on the questionnaires. Tr. at 106-07. Overall, he felt that it was enough that he did not view himself as a security risk. Tr. at 54-55; 1998 PSI Tr. at 51.

However, a sequence of events occurred which changed his perceptions and ended his rationalizations. In 1998, he applied for another job, and was informed that a polygraph would be required. Tr. at 59-60. He knew that past drug use would most likely be a subject of questioning during that polygraph. Id. At first, he contemplated whether he could "beat" the polygraph examination by not disclosing his past use. Id.; 1998 PSI Tr. at 52-53. But he did not think he could fool the polygraph, so he chose to withdraw his job application. Tr. at 112, 125. At this time, he came to realize that his lying and drug use were much more serious than he had earlier believed. He also realized that he had been making up his own rules about drug use, and that this behavior was wrong. Tr. at 54-55, 72, 107; 1998 PSI Tr. at 54. He further came to understand how vulnerable he was to blackmail and wanted to reduce that vulnerability by disclosing his drug use and lying. Tr. at 61, 73, 114, 123. He also wanted to be able to stop lying to the DOE and have a clean record. Tr. at 128. After consulting with his supervisor, he then disclosed to the DOE office his past drug use and his lying about the drug use on the 1990 and 1996 security questionnaires. DOE Ex. 11.(5) His co-worker and his wife testified that the individual had reached a point where he was unwilling to keep lying, thereby compounding his problems, and wanted to disclose the truth so that he could make a new start. Tr. at 186-87, 193, 209.

In this case, the individual voluntarily came forward and disclosed his past lying and drug use. See Tr. at 62. At the time he came forward, he was not being investigated for drug use (or anything else) and there is no indication that DOE suspected the falsifications and drug use. Here, the individual voluntarily came forward, making his disclosures truly elective. Moreover, he made the disclosures despite his belief that the impact on his career would be extremely negative and that there was a good chance he would be fired. Tr. at 62; Tr. at 144 and 210 (corroboration by witnesses). This was a situation as one of his co-workers described it where he had "little to gain and a lot to lose." Tr. at 209. Voluntary disclosure is a mitigating factor. Personnel Security Hearing (Case No. VSO-0211), 27 DOE ¶ 82,782 at 85,695 (1998).

The second mitigating factor cited by the individual is that these falsifications do not accurately reflect his current behavior or overall character. He brought forward the testimony of seven witnesses who describe him as honest. These witnesses have all known the individual for a long time in different capacities, essentially covering the scope of his life. His wife testified that the individual turned in a wallet found in the gutter and another time, he went back into a store to pay for a coat which he had mistakenly not been charged for. Tr. at 196-97. I found the individual's wife to be credible and forthright. Furthermore, the security specialist who interviewed him in 1998 thought that the individual appeared to be straightforward and honest. Tr. at 17-18, 32. Also, the DOE psychiatrist who interviewed the individual in October 1998 and witnessed the individual and many other witnesses testify at the hearing, agreed that the individual was truthful, forthcoming and candid during the psychiatric interview. Tr. at 49-50. The individual's other witnesses brought up examples of his general honesty, trustworthiness and reliability, which are fully described in the Criterion L section below. In sum, they convey that the individual has, with the exceptions described in the Notification Letter, been conscientious about following security rules and maintaining integrity in his work.

Moreover, the individual has voluntarily disclosed other instances of derogatory behavior and falsifications on his part, described above. My evaluation of the individual's testimony is that the individual has attempted to be scrupulously honest in giving a detailed description, to the best that he can recall, of his history of drug use and lying about that use. I believe that the individual's disclosures indicate his attempt to be forthcoming.

There is no obvious medical or other type of expert that can be brought in by the individual to support rehabilitation from falsification. There are no well-known programs that can be followed, such as the ones that exist for drug and alcohol abuse. A Hearing Officer must therefore look at the statements of the individual and facts surrounding the falsification in order to assess whether the individual has rehabilitated himself from the falsehood and whether restoring the clearance would pose a threat to security. See Personnel Security Hearing (Case No. VSO-0013), 25 DOE ¶ 82,752 at 85,516-17 (1995). I have done so, and in the case at hand, it is a serious security concern that the individual falsified security questionnaires on two occasions. However, after weighing the mitigating factors, the individual's voluntary coming forward and disclosing the facts at issue, his scrupulous disclosure of all instances of derogatory information, his straightforward and complete discussion of all of his drug use, his presentation of specific testimony corroborating his honesty, and the DOE psychiatrist's opinion that the individual has been truthful and forthcoming, I find that reformation has occurred. The individual has demonstrated that he has decided to become an honest and forthright person. I also believe that the individual's testimony indicates that he has learned through his experience the risks of falsifying, the duress caused by living with untruthfulness, and that this experience will cause him to be more fully cognizant about the importance of candor than he otherwise might have been. Therefore, I believe the individual will not falsify in the future. Accordingly, I find that the individual has resolved the Criterion F concern.

B. Criterion L

1. The individual's drug use after signing a drug certification

The DOE office asserted 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 or exploitation. 10 C.F.R. § 710.8(l). The ground for the DOE's assertion is that the individual used illegal drugs despite signing a Drug Certification in 1982 stating he would no longer use illegal drugs. Specifically, the individual disclosed in his 1998 PSI that he regularly smoked marijuana (although with decreasing frequency) until 1985, and smoked it once in 1992 or 1993. 1998 PSI Tr. at 9, 26; DOE Ex. 11. In addition, the individual used cocaine once, in 1983. See 1998 PSI Tr. at 9-11; Email Message from Individual to Hearing Officer (February 23, 1999). At the hearing, the individual disclosed that there may have been a few other instances of marijuana use between 1985 and 1993 that he does not remember. Tr. at 58. His brother confirmed that he recalls the individual smoking marijuana once in possibly 1987 and once in 1989 or 1990, in addition to the 1992 or 1993 incident earlier disclosed. There may have also been another instance in the latter 1980s. Tr. at 82-83. Further, it appears that the individual retained marijuana in his home until about 1990, despite the fact that his regular use stopped in about 1985. Tr. at 56, 126.

2. Mitigating Evidence

The fact that the individual continued to use drugs after having signed a drug certification promising not to do so, raises a serious security concern. However, I believe this concern has been mitigated. The individual presented much testimony concerning his overall trustworthiness, honesty and reliability. For instance, a former computer security officer testified that the individual always conscientiously follows the complex computer security rules. Tr. at 247-49. In another example, the individual pointed out that the only way to keep a particular project going was to "slide by" security rules. He therefore recommended that the project not go forwards. Tr. at 131, 137-38. Another time, the individual proposed an important project that would be his responsibility. But because the individual then had some hesitancy about the technical qualifications and perspectives of some employees on the project, he ended up recommending that the project not go forward. Tr. at 138-40. In another situation, the individual reported the fact that some classified information had been disclosed to non-cleared employees. Tr. at 211-12. He disclosed this violation despite the "painful experience" caused by exposing the wrongdoing and the potential funding repercussions to the DOE site. Tr. at 212-13, 250-51. There was also a project where the individual recommended making sure that the proper legal and privacy issues were examined before it could be carried out. Tr. at 213-14. The individual was described variously as someone who always does the right thing and someone who is meticulous and thoughtful about following the rules, even more so than other employees. Tr. at 132, 134, 214-15. I find that the testimony presented at the hearing demonstrated the individual's overall honesty, reliability and trustworthiness. See also Tr. at 134-36, 153, 162, 171-72, 176, 190-95, 226, 252, 254-55.

The DOE psychiatrist concurred with these witnesses. He found that the individual takes care of his responsibilities. Tr. at 50. The DOE psychiatrist also noted that the individual XXXXXXXXXXXXX and found those facts to be indicative of good judgment, because of the close attention to detail and rules which is required.(6) The psychiatrist also noted that XXXXX must be able to make correct decisions quickly. Tr. at 50-51. Moreover, although the DOE psychiatrist found in his report that the individual had displayed defects in judgment in the past when he used illegal drugs and then lied about that fact in security questionnaires, he testified at the hearing that the individual currently displays no defect in judgment. DOE Ex. 15 at 5; Tr. at 40-43, 46.

It is also necessary to address whether the individual's drug use has ended. The DOE psychiatrist found no evidence that there is currently a substance abuse problem. Tr. at 44, 47, 180; DOE Ex. 15 at 5. He also believed that there is only a low possibility that the individual would return to drug use. Tr. at 51. At the hearing, the individual made it clear that, over time, his casual attitude towards the use of marijuana changed and that he felt that it was a change for the better. Tr. at 56-57. Significantly, the individual now understands the security concerns presented by drug use. Tr. at 109-110. He has convincingly vowed to never use drugs again even if he were to lose his clearance. Tr. at 147. The individual also noted that his one use of cocaine after signing the drug certification occurred in a peer pressure-filled situation at his brother's bachelor party in 1983. Tr. at 236. He explained that he is now able to withstand peer pressure because he understands the ramifications of his drug use, he does not associate with drug users, and he is not as concerned with social consequences that may occur from not using drugs. Tr. at 237-38. In addition, the individual made a very clear break from his past by telling close relatives who wished to continue using drugs in his presence that that behavior was completely unacceptable. Tr. at 77-78, 85, 103-05.

In the course of preparing for the hearing, I informed the individual that it was extremely important that he present the witnesses, his brother and brother-in-law, who had smoked marijuana with him in the most recent instance, in 1992 or 1993.(7) These witnesses would be the best means by which to corroborate the circumstances of that use. See Record of Telephone Conversation between Individual and Hearing Officer (March 5, 1999). It was naturally difficult for the individual to obtain this kind of witness testimony relating personal drug use. However, the individual was commendably able to provide his brother's testimony via telephone from a distant state.

His brother testified regarding the 1992 or 1993 incident that someone else produced the marijuana, and that the individual took no marijuana home with him. Tr. at 87-88. Further, although his brother had difficulty in clearly recalling this incident, he believes that it is likely that the individual took only one puff of the marijuana cigarette. Tr. at 79-80. Moreover, his brother provided strong corroboration of the individual's transformation from his past attitudes regarding drug use. His brother described that when family members were preparing to smoke marijuana in summer 1998, the individual "vehemently said . . . 'please ask them not to, . . . this can't be done . . . .' " Tr. at 85. According to his brother, the individual further said that the family members should "not ever do that again, and please understand the matter. [The individual] needed to be completely away from any use or any knowledge of [drug use], basically that was off limits for [the individual] from now on, or had been for some time." Tr. at 77-78. I found the brother's testimony to be forthcoming and believable. The testimony of family members must be carefully scrutinized because of a natural bias in favor of a relative. Personnel Security Hearing (Case No. VSO-0232), 27 DOE ¶ 82,788 at 85,736 (1999) (recommending clearance be restored in Criterion K context) (affirmed by the Office of Security Affairs, 1999). In this case, however, based on my assessment of his credibility and demeanor, I believe the testimony of the individual's brother is reliable, forthcoming and credible. In addition, the individual presented testimony of six additional witnesses (including five non- relatives) who have known the individual collectively over a long period of time, that covered the scope of his social and work life. Their testimony was candid and indicated that they had detailed knowledge of the individual. They corroborated that the individual's drug usage completely ended in either 1992 or 1993 and appears quite unlikely ever to start again, an opinion that the DOE psychiatrist concurred with. See Tr. at 77, 136, 167, 194, 216. I also find that the passage of six years since the individual's last use is strong support for his commitment to never use drugs in the future.

I believe the individual's willingness to come forward to disclose his drug certification violation, his demonstration of six years since his last use of drugs, the many instances testified to regarding his trustworthiness and reliability, his production of credible and forthright witnesses, and the DOE psychiatrist's opinion that the individual displays no current defect in judgment and is responsible, provide assurance of his reformation from his violations of the drug certification. The individual's gradual transformation process has resulted in an honest, trustworthy and reliable person. I also note that the individual has reduced his vulnerability to possible coercion by not only disclosing his actions to the DOE, but also by bringing forth witnesses and informing them as to what he had done. I further believe that he will not commit a dishonest, untrustworthy or unreliable act, since the individual has become so sensitized to the vulnerabilities created by performing such an act. Consequently, the evidence the individual presented is sufficient to resolve the concerns created by the derogatory information in the record. I therefore find that the individual has sufficiently mitigated the Criterion L concern.

III. Conclusion

As explained in this Opinion, I find that DOE properly invoked 10 C.F.R. §§ 710.8(f) and (l) in suspending the individual's access authorization. However, it is my opinion that, within the meaning of those provisions, the individual has fully mitigated the concerns presented by his following actions: (1) deliberate falsification of significant information on security questionnaires and (2) use of illegal drugs after having signed a drug certification. In view of the record before me, I find that restoring access authorization to the individual would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find that access authorization should be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer's Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, 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 within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b). The address where 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 20874-1290

Dawn L. Goldstein

Hearing Officer

Office of Hearings and Appeals

Date: April 26, 1999

(1)1/ An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.

(2)The transcript taken at the hearing shall be hereinafter cited as "Tr." Various documents that were submitted by the DOE counsel during this proceeding constitute exhibits and shall be cited as "DOE Ex." The individual has not submitted any exhibits.

(3)In the Notification Letter, the DOE stated that the year of the drug certification was 1992, but at the hearing, DOE counsel stipulated that that was a typographical error and the year of the certification was 1982. Tr. at 10.

(4)Upon reading the Notification Letter, it was unclear to me whether the 1985 drug use was encompassed by the October 30, 1990 form, since use prior to October 30, 1985 would not be within the scope of the question. See DOE Ex. 13. However, the individual, in his letter disclosing this derogatory information, stated that he had answered this question falsely. DOE Ex. 11. In addition, as discussed below, it appears that there were other drug use incidents within the scope of the question.

(5)I note that the individual chose to wait three months until XXXXXX had passed before he came forward, so that his lifetime medical benefits would vest. Tr. at 62. His friends/colleagues confirmed that the individual believed he might be fired immediately. Tr. at 144, 210. However, he also chose not to wait until his next routine re-investigation but to come forward sooner than that. 1998 PSI Tr. at 53. While it would have been preferable for him to come forward right away, I do not find this waiting period to significantly diminish the mitigating qualities of his voluntary disclosures.

(6)A good friend noted that he found the individual's XXXXX trustworthy enough to XXXX XXXXXXXXXXX with the individual. Tr. at 223.

(7)His brother is an even more significant witness because it appears that all of the individual's sporadic uses of marijuana between 1985 and 1993 occurred with his brother.