Case No. VSO-0289 (H.O. Augustyn November 18, 1999)

Case No. VSO-0289 (H.O. Augustyn November 18, 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.

November 18, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:July 22, 1999

Case Number: VSO-0289

This Opinion concerns the eligibility of xxxxxxxxxxxxxxxx (the individual) for restoration of his access authorization(1) under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria for Access to Classified Matter or Special Nuclear Material." As discussed below, after carefully considering the record before me in light of the relevant regulations, I recommend against restoring the individual’s access authorization.

I. Background

The individual is employed by a Department of Energy (DOE) contractor in a position that requires him to maintain an access authorization. On xxxxxxxxxxxxx, the Department of Energy (DOE) issued a Notification Letter to the individual suspending his access authorization and identifying the following derogatory information as security concerns: the individual’s multiple violations of a 1982 drug certification, his deliberate omission of significant information from a 1987 security questionnaire, and his failure to disclose fully the extent of his post-1982 drug use in a 1998 security form that he was required to file. According to the DOE, the derogatory information falls within the purview of 10 C.F.R. § 710.8(f) and (l) (Criteria F and L respectively).(2)

On July 13, 1999, the individual filed a response to the allegations contained in the Notification Letter together with a request for a hearing regarding those allegations. The DOE transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA) Director on July 22, 1999, and the OHA Director appointed me as Hearing Officer in this case on July 28, 1999. 10 C.F.R. § 710.25(a), (b). I convened a hearing in this matter within the time frame prescribed by the regulations governing the administrative review process. See 10 C.F.R. § 710.25(g). At the hearing, the DOE presented the testimony of one witness, a Personnel Security Specialist. The individual offered his own testimony and that of 12 other witnesses, including his wife, a long-term friend, two social acquaintances, a xxx xxxxxx official, and several high level managers employed by the contractor. On October 19, 1999 I received the hearing transcript at which time I closed the record in this case. See 10 C.F.R. § 710.27(e).

II. Findings of Fact

Most of the facts in this case are not in dispute. The individual executed a drug certification on xxxxxxx, 1982, to allay the DOE’s concerns about his prior illegal drug use in the xxxx and xxxxx. Exhibit (Ex.) 10, Appendix B. The DOE granted the individual a security clearance in 1982 based on the individual’s written assurance provided in the drug certification that he would refrain from using or becoming involved in any way with illegal drugs while holding a DOE access authorization. Id. Within a year or two of receiving his access authorization,(3) the individual violated his drug certification several times(4) by smoking marijuana.

In 1987, the individual completed a Personnel Security Questionnaire (PSQ) as part of a routine five- year security reinvestigation. Ex. 9. On that questionnaire, the individual responded affirmatively to a question asking, in relevant part, if he had ever used any cannabis, including marijuana. Id. As required by the instructions on the PSQ, the individual explained his affirmative response as follows:

I was associated with xxxxxxxxxxxx [sic] during the late xxxx's and the xxxx's when it was very common to try marijuana. My experimentation with this drug did not lead to any dependence or lead to “harder” drugs. It has no part of my present life. I have discussed this with and signed statements (dated xxxxxxx, 1982) for the DOE prior to the issuance of my “Q” clearance that it has no part now in my life.

Id.

When the individual’s next routine five-year security reinvestigation occurred in 1993, he completed a Questionnaire for National Security Position (QNSP). Ex. 11. Question 25 on the 1993 QNSP queried whether the individual had used illegal drugs in the past five years. Id. The individual responded negatively to this question. Id.

By 1998, the QNSP question regarding drug use had been revised. On February 22, 1998, the individual executed another QNSP in connection with another routine five-year security reinvestigation. Question 24b on that QNSP read, in pertinent part, as follows: “Have you ever illegally used a controlled substance while . . . possessing a security clearance . . . ?” The individual answered “yes” to this question, revealing for the first time that he had used marijuana “less than ten times in approximately 1983-84.” Ex. 7.

To explore the extent of the individual’s post-1982 drug use, the DOE conducted a Personnel Security Interview (PSI) with the individual on March 2, 1999. During the PSI, the individual explained he did not recollect the precise time frames he used marijuana after he executed the drug certification. Ex. 6. The individual stated in the PSI that, to the best of his recollection, he used illegal drugs between 1983 and 1984. Id. at 19. When pressed further on this issue by the personnel security specialist, the individual asserted that he did not know if he used marijuana after 1984, but he was certain he did not use drugs after 1986-87 because he began toxxxxxxxxxxxxxxxxxx xxxxxxxxxxx in the 1986-87 time frame. Id. at 19-24.

III. Analysis

I have thoroughly considered the record of this proceeding, including the submissions of the parties, and the testimony of the witnesses at the hearing convened in this matter. 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 his conduct; the circumstances surrounding his conduct, including knowledgeable participation; the frequency and recency of his conduct; his age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct; the potential for pressure, coercion, exploitation, or duress, the likelihood of continuation or recurrence; and other relevant and material factors. 10 C.F.R. §§ 710.7(c), 710.27(a). It is the totality of these facts and circumstances that have guided me in evaluating whether the restoration of the individual’s access authorization would be clearly consistent with the national interest and not endanger the common defense. After due deliberation, it is my common-sense judgment that the individual’s access authorization should not be restored.

A. Derogatory Information

As noted earlier in this Opinion, the derogatory information in this case arises from the individual’s knowing use of illegal drugs after signing a drug certification and his failure to disclose the nature and extent of that illegal drug use on two security questionnaires. For the reasons discussed below, I find that the DOE properly invoked 10 C.F.R. § 710.8(l) in suspending the individual’s clearance based on the individual’s admitted violation of the drug certification. I find, however, that only one of the two allegations the DOE cites in the Notification Letter under 10 C.F.R. § 710.8(f) is supported by evidence in the record.

1. Criterion L

It is undisputed that the individual used marijuana after signing the drug certification. While there is some uncertainty about the number of times and years the individual smoked marijuana, I found in Section II above that the individual used marijuana multiple times between 1982 and the summer of 1984, possibly, although not probably, as late as 1987. The individual’s violation of the drug certification raises a number of serious security concerns. As the personnel security specialist testified at the hearing, the individual’s violation of the drug certification constitutes a serious breach of trust, calling into question his honesty, reliability and trustworthiness. Tr. at 23. In addition, a person who violates a drug certification raises the concern that he/she will pick and choose which DOE security regulations he/she will obey or not obey with respect to classified information. Moreover, there is a concern that a person who violates a drug certification might be susceptible to blackmail, coercion and undue influence. Finally, it has also been noted that “any drug usage while the individual possesses [an access authorization] and is aware of the DOE’s policy of absolute abstention demonstrates poor judgment.” Personnel Security Hearing, Case No. VSO-0023, 25 DOE ¶ 82,761 at 85,579 (1995).

2. Criterion F

Regarding the individual’s alleged transgressions under Criterion F, the DOE cites in the Notification Letter the individual’s responses to questions in a 1987 PSQ and a 1998 QNSP. At the hearing, the individual acknowledged his error in omitting information about his post-1982 drug use on his 1987 PSQ. The individual’s action in failing to disclose on the 1987 PSQ his post-1982 use of illegal drugs reflects negatively on his judgment (i.e. attempting to conceal his drug use) and his reliability (i.e. providing incomplete information on the security questionnaire despite being warned on that form of the consequences of such action.) The individual’s deliberate omission also raises a security concern that he might be susceptible to coercion, pressure, exploitation, or duress arising from the fear that others might learn of the information being concealed.

With respect to the DOE’s charge that the individual did not fully disclose the extent of his drug use on the 1998 QNSP, the individual adamantly denies that he deliberately misrepresented or falsified information on that form. After carefully reviewing the transcript of the Personnel Security Interview conducted on xxxxxxxxxx, and the testimony presented at the hearing, I find that the individual’s responses contained in his 1998 QNSP do not support the DOE’s invocation of Criterion F. The individual provided credible, compelling testimony at the hearing explaining the seeming discrepancy between the information he provided on the 1998 QNSP and that which he related during the 1999 PSI. The individual testified that when he completed the 1998 QNSP, there were no memorable events or special occasions connected with his use of marijuana that enabled him to recall when he used the drug. Tr. at 144. For this reason, on his 1998 QNSP the individual used the adverb “approximately” before “1983-84" to indicate his inability to affix a precise date or dates to his last drug use.

As for the 1999 PSI, the individual never admitted, as set forth in the Notification Letter, that he “actually used marijuana . . . up until sometime in 1986 to 1987.” A close reading of the PSI transcript reveals that the individual did not affirmatively relate that he used marijuana during 1986- 87; he only stated it was a possibility. At the hearing, the individual reiterated that he simply could not recollect the year he last used illegal drugs during the 1999 PSI. The individual stated that during the 1999 PSI he reaffirmed his vague recollection of drug use in the 1983-84 time frame. He also provided for the contingency that his recollection might be faulty during the PSI by selecting a line of demarcation, 1986-87, beyond which he knew with certainty he did not use illegal drugs. Ex. 6 at 23-24. The individual stated he chose the 1986-87 time frame because he was absolutely certain he never used drugs after he began to xxxxxxxxxxxxxxxxxxxxxxxxxxxxx. The individual further explained he expanded the dates only in an effort to provide for the worst case scenario, a practice he customarily employs in his xxxxxxxxxxxxxxx.

In my opinion, the individual’s explanation of the seeming discrepancy between the substance of what he communicated to the Personnel Security Specialist in the 1999 PSI and the information he supplied on the 1998 QNSP is clear, consistent and convincing. It is certainly understandable that a person may not be able to recall events that occurred 10-14 years earlier. What the individual sought to do in the 1999 PSI was, in my view, to fix a moment in time beyond which he could not possibly have used drugs, and nothing more. He did not admit to drug use in 1986-87 during the 1999 PSI; rather, he tried to err on the side of caution by providing the latest possible year he could have used marijuana. His actions do not appear to me to rise to the level of a deliberate attempt to falsify or misrepresent information, or deceive the DOE. Therefore, I find that the individual did not deliberately fail to disclose the extent of his drug use in the 1998 QNSP, or provide false information during the 1999 PSI.

In conclusion, I find that the DOE advanced a legitimate security concern under Criterion F only with respect to the individual’s deliberate omission of significant information on his 1987 PSQ, i.e., his use of illegal drugs after 1982. Next, I will consider whether the individual has made a showing of facts and circumstances sufficient to overcome the security concerns the DOE has brought under both Criteria F and L.

B. Mitigating Circumstances

A DOE administrative proceeding under 10 C.F.R. Part 710 is not a criminal case, 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 are dealing with a different standard which is designed to protect national security interests. A hearing is “for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization.” 10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information the individual must come forward with evidence to convince the DOE that restoring his access authorization “would not endanger the common defense and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). 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). 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). In the present case, I have reached the opinion that the individual has not successfully carried his burden in this regard and, accordingly, his security clearance should not be restored.

1. The Individual’s Violation of the Drug Certification

At the hearing, the individual expressed remorse for his poor judgment in violating the drug certification. Tr. at 162. He testified that he took the drug certification seriously when he executed it, noting that immediately after signing that document he went home and disposed of all the marijuana and drug paraphernalia in his house. Tr. at 158. In his defense, he pointed out that the attitude towards drugs 20 years ago was much different than it is now. Ex. 2, Tr. at 133-34. He related that he used marijuana only in a social setting after 1982. Id. at 162. He claims that he did not reflect upon the drug certification on those occasions that he violated it. Id. at 177. Rather, he experienced “a mental sensation that [he] shouldn’t be doing it [drugs]” each time he smoked marijuana after 1982. Id. The individual also submits that he is a more mature person now than he was when he violated the drug certification, noting that he has more knowledge and experience than he did 12-15 years ago. Id. at 179. He also points out the following other factors: (1) 12-15 years has passed since he last breached his promise to the DOE, (2) it was he who disclosed his transgressions to the DOE, (3) he has earned the trust and faith of management officials at xxx and the contractor over the last 12-13 years, (4) his reputation is one of strictly adhering to security rules and regulations; and (5) he has made valuable contributions to the mission of the DOE, particularly in xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. Id. at 167-179. In addition, numerous witnesses provided compelling, credible testaments that the individual is extremely honest, trustworthy, and reliable in the workplace. For example, one witness testified that in 35 years he has dealt with many highly professional, highly competent people whose job it is to xxxxxxxxxxxxxxxxxx. Id. at 72. According to that witness, the individual is one of the most scrupulous, conservative people he has observed xxxxxxxxxxxxxxxxxxxxxxxx. Id. Other witnesses’ testimony include comments that “the individual’s commitment to security was total and complete,” “he was a xxxxxxx,’” “he was very fastidious about security to a fault,” and he was “a security hawk.” Id. at 104, 194, 209.

In evaluating the evidence in this case, I accorded substantial weight to the opinions of those witnesses who have consistently observed the individual professionally day after day for up to 13 years, sometimes under the most stressful of conditions. Id. at 40-60; 64-76; 80-93; 101-107; 117- 120; 191-94; 200-207; 209-213. It is significant that these witnesses’ own positions require them to be careful, conservative, and cautious about all matters impacting xxxxxxxxxxxxxxxxx, including supervising employees such as the individual who are entrusted with the highest access associated with the xxxxxxxxxxxxx. Their cumulative testimony suggests that the individual’s professional reputation is that of a man of integrity. (5)

I am also convinced from the individual’s own testimony and the documentary evidence he presented that he has remained drug-free since 1987. See Ex. A. The individual testified, for example, that there have been recent occasions when he could have anonymously partaken of marijuana at concerts but did not. Tr. at 159. The individual’s self-discipline in this regard is to be commended and suggests that he now takes his drug certification seriously. Moreover, the weight of the evidence suggests that the individual’s breach of his drug certification is unlikely to recur. He convinced me that beginning in 1987, he decided not to violate the drug certification again.

While the individual’s “on the job” behavior over the last 12-15 years and his apparent self- commitment in 1987 to remain drug-free are factors in his favor, I find that the weight of other factors in this case militates against a finding that the individual has mitigated the security concerns associated with his violation of the drug certification.

As an initial matter, this is not a situation where a person is clinically dependent on illegal drugs and unable to control his cravings for drugs absent medical treatment. Rather, this case involves a person who indulged recreationally in marijuana, placing his own desires above his personal commitment to the DOE and, in the process, flouted national security. I cannot excuse the individual’s transgressions as an isolated incident because he breached his agreement with the DOE on multiple occasions. Cf. Personnel Security Hearing, Case No. VSO-0045, 25 DOE ¶ 82,774 (1995) (affirmed OSA 1996) (individual’s use of marijuana was a solitary occurrence). I also cannot excuse the individual’s actions on the basis that he forgot about his drug certification due to the passage of time. Cf. Personnel Security Hearing, Case No. 0172, 27 DOE ¶ 82,762 (1998), aff’d, Personnel Security Review, 27 DOE ¶ 83,009 (1998) (affirmed OSA 1998) (11 years had passed between the signing of the drug certification and the use of drugs). In this case, the individual’s drug use occurred within a year or two of his execution of the drug certification. Moreover, the individual’s multiple abrogations of his solemn promise to the DOE cannot be excused as youthful indiscretions. The individual was a highly educated man in his xxxxxxx when he elected to breach the trust the DOE had placed in him and smoke marijuana.

As for the individual’s defense that attitudes toward drug use have changed radically over the last twenty years, I find his perception of public sentiment on this matter to be irrelevant. What is relevant here is that he (1) violated the law by using drugs while holding a security clearance, (2) flagrantly disregarded his written agreement never to use drugs again after his execution of the drug certification, and (3) ignored the DOE’s warnings that future drug use after the execution of the drug certification might lead to the reconsideration of his eligibility or continued eligibility for a security clearance. See Ex. 10. It was clear to me after hearing the individual’s testimony and reviewing the record that the individual only made a serious, sustained commitment to keep his signed promise after he began xxxxxxxxxxxxxxxxxxx. I do not believe he took the drug certification or the ramifications of breaching that certification seriously before that time. It must be emphasized that the Part 710 regulations demand the same high standards from all access authorization holders regardless of their level of responsibility in the security program.

Regarding the individual’s so-called voluntary self-reporting of his drug certification violation, the circumstances surrounding that disclosure are telling. The individual waited more than a decade to reveal his multiple violations of his drug certification. His disclosure was made only after he was confronted with the choice of lying again or being truthful on a security form. By his own admission, the individual would not have disclosed his violation in 1998 had the question on the 1998 QNSP regarding drug use been worded as it had been in the 1993 QNSP. Tr. at 185. It seems to me that if the individual were truly the “security hawk,” “the xxxxxxxxxxx’,” and the person whose “commitment to security was total and complete,” he would have taken affirmative steps to disclose his major transgressions sometime during those 12-15 years he was earning the trust and faith of those managers who testified on his behalf. The incongruity between the individual’s professional persona and secret past is troubling.

It appears to me that the individual is much less susceptible to coercion or blackmail now that he has admitted his past drug use. However, I am also convinced that given his deception, the individual could have compromised national security during the 12-15 years that he concealed his past drug use from the DOE. Nevertheless, there is no evidence in the record that the individual’s violation of the drug certification was connected with the compromise of classified information. Tr. at 76.

I recognize that as a matter of public policy the DOE wants to encourage clearance holders to admit their previous mistakes. At the same time, I do not believe the DOE wishes to encourage clearance holders to wait a decade to admit those mistakes while blackmail possibilities loom in the interim. In the end, I believe the individual’s multiple violations of the drug certification cannot be absolved without diminishing the purpose and effect of the drug certification. In my opinion, a person’s willingness to violate the drug certification on several occasions increases the risk that there could have been other breaches of trust. Allowing security clearance holders to pick and choose what rules or regulations they will or will not follow is unacceptable. I find that the individual has not mitigated the risk to national security by coming forward after demonstrating a total disregard for the DOE’s security program as many as nine times. (6)

2. The Individual’s Omission of His Post-1982 Drug Use in the 1987 PSQ

The individual explained at the hearing that he did not disclose his post-1982 drug use on the 1987 PSQ because he wanted to emphasize that drugs were not part of his life in 1987. Tr. at 132. He testified further that he did not want to reveal his “few transgressions, mistakes in [his] life, [and] poor judgment” because he was uncertain of the repercussions that would come from the DOE. Id. He adds that at the time he completed the 1987 PSQ, he did not feel he was subject to blackmail, coercion, etc. because these problems were in his past. Id. In his defense, the individual points out that it was he who disclosed his omission, and explains that he disclosed the information in 1998 in the interest of national security. In addition, the individual reiterates that he is a more mature person than he was in 1987 when he falsified the PSQ.

Finally, the individual contends that his 1987 falsification does not reflect his overall character or current behavior. Tr. at 242. He suggests that the way in which he has conducted his life in the last 12-13 years should mitigate DOE’s concerns about his conduct. Id. at 160. As noted in Section III.B.1. above, numerous high level managers corroborated the individual’s professional reputation for honesty, reliability, and trustworthiness. At the hearing, a social acquaintance who has known the individual for almost 20 years attested to the individual’s integrity and dependability and his commitment to his family and community. Id. at 220. The individual’s wife also testified that the individual is an excellent husband and father, a man who is totally trustworthy. Id. at 238.

As an initial matter, I find the individual’s falsification of the 1987 PSQ and his concomitant concealment of his drug certification violation to be very serious matters. I simply cannot excuse the individual’s conduct on the basis of self-interest, i.e., that he feared the DOE might take some adverse action against him. The individual’s motivation in this regard suggests that his response on the 1987 PSQ was deliberate, calculated, and designed to conceal the truth from the DOE. Furthermore, I will not accept the individual’s defense that he wanted to emphasize in the 1987 PSQ that drugs had no part of his life at that time. The individual could have informed the DOE of this fact after responding honestly to the question posed on the PSQ. Moreover, for the reasons discussed in Section III.B.1. above, I am not impressed by the individual’s so-called voluntary disclosure of his falsification, particularly because of the individual’s admission he would not have disclosed the information had the 1998 QNSP been worded differently. I find further that there is no basis for ascribing the individual’s falsification to immaturity. The individual was a highly educated man in his late xxxxxxxx in 1987 when he executed his PSQ. While it is true that the individual’s falsification is not recent since it occurred almost 12 years ago, the individual’s concealment of the truth and deception of the DOE lasted until February 1998. During the decade that the individual concealed his falsification, I believe he was vulnerable to blackmail, extortion, and coercion. That risk seems to have lessened, however, in view of the individual’s admission in the 1998 QNSP.

With regard to the issue of rehabilitation or reformation, there is no obvious medical or other type of expert that can opine about the length of time one needs to be considered rehabilitated from lying. See Personnel Security Hearing, Case No. VSO-0013, 25 DOE ¶ 82,752 (1995) affirmed, (OSA 1995). In other cases, OHA has stated that it is the subsequent pattern of responsible behavior that is the key to abating security concerns that arise from irresponsible action. See Personnel Security Hearing, Case No. VSO-0241, 27 DOE ¶ 82,794 (1999) (eight-month period after bankruptcy was not sufficient to establish a pattern); Personnel Security Hearing, Case No. VSO-0153, 26 DOE ¶ 82,795 (1997) (individual took actions to cure his financial problems approximately three years before the hearing and continued that pattern consistently, thereby mitigating the security concern regarding financial irresponsibility); Personnel Security Hearing, Case No. VSO-0013, 25 DOE ¶ 82,752 (1995) affirmed, (OSA 1995) (13-month period subsequent to covering up use of illegal drugs did not constitute a sufficient pattern of honest behavior). In this case, a period of 19 months has elapsed between the time the individual disclosed his falsification to the DOE and the hearing date. At this point, I am unwilling to consider this period adequate for rehabilitative or reformation purposes in this case. I am especially troubled by the individual’s revelation that he would not have disclosed his drug certification violations and his 1987 falsification had the 1998 QNSP been worded as it had been in 1993. This concern undermines the image many witnesses painted of the individual: that of an honest man who goes beyond the technical requirements of security. To be sure, it was apparent to me at the hearing that this entire experience involving the suspension of the individual’s access authorization has been a humbling experience for him. In the end, the risks associated with a person who deceived the DOE for 12 years by concealing his illegal drug use and his multiple violations of his drug certification are too great to dismiss after a period of 19 months. (7)

C. Summary

This entire case centers on the individual’s dishonest actions. The individual manifested his dishonesty in several ways. First, he violated the drug certification on several occasions, thereby breaching the solemn promise he made to the DOE in order to obtain his security clearance. Second, he deceived the DOE in 1987 when he responded to a question on the PSQ regarding his past drug use. His response on that security form appears to have been carefully crafted to conceal significant information from the DOE. Third, he concealed the derogatory information about his illegal drug use in the 1980s and his abrogation of the drug certification for more than a decade, a fact that I consider to constitute a pattern of long-term deceit. As explained above, I have concluded that the individual has failed to mitigate adequately the legitimate security concerns raised by his dishonesty.

IV. Conclusion

As explained in this Opinion, I find that the DOE properly invoked 10 C.F.R.§710.8(l) in suspending the individual's access authorization. I further find the DOE properly relied on 10 C.F.R. §710.8(f) with regard to the allegation that the individual deliberately falsified, omitted, or misrepresented significant information in his 1987 PSQ. After considering the totality of the circumstances, I find that the arguments advanced by the individual in his defense do not mitigate the security concerns accompanying those criteria. In view of Criteria L and F and the record before me, I cannot find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, in my opinion, the individual's access authorization should not be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that either 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. The party seeking review of the Opinion must file a statement identifying the issues that it wishes to contest 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). Submissions must be served on the

Office of Security Affairs at the following address:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD. 20874

Ann S. Augustyn

Hearing Officer

Office of Hearings and Appeals

Date: November 18, 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 from time to time in this Opinion as access authorization or security clearance.

(2)Criterion F concerns, in relevant part, information that a person has “[d]eliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, . . . , a personnel 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). Criterion L concerns information that the individual “has engaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of the national security.” 10 C.F.R. §710.8(l).

(3)There is a material factual dispute regarding the time frame during which the individual used illegal drugs after executing the drug certification. Given that the individual’s drug use occurred more than a decade ago, it is understandable that he cannot recollect the specific time that he used illegal drugs. The individual estimated in a February 1998 Questionnaire for National Security Position that he used marijuana in approximately 1983- 84. He reaffirmed his recollection of drug use in the 1983-84 time frame during a 1999 personnel security interview, but added that his drug use never extended beyond 1986-87. Ex. 6 at 23-24. His certitude regarding the 1986-87 time frame stems from his knowledge that he never used drugs after he began xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx in 1987. Id., Ex. 2. The individual provided credible testimony that there was no event of significant demarcation, other than his work with xxxxxxxxxxxxxxxxxxxxxx, to jog his memory regarding his last use of marijuana. Transcript of Hearing (Tr.) at 154. Based on the individual’s credible testimony, I find that he chose the 1986-87 time frame to mark the possible outside parameters of his drug use and nothing more. The only testimony on this issue other than that of the individual is from one of the individual’s long-term friends who testified that she last observed the individual smoke marijuana in the summer of 1984. Tr. at 227. Based on the evidence before me, and the credible demeanor and testimony of the individual, I find that the individual used illegal drugs sometime between 1982 and the summer of 1984, and possibly, although not probably, as late as 1987.

(4)The individual stated in his February 1998 Questionnaire for National Security Position (QNSP) that he used marijuana after 1982 less than ten times. Ex. 7. At the hearing, the individual testified that he may have overestimated his post-1982 drug usage on the QNSP. It is possible, according to the individual, that he smoked marijuana on less than five occasions after 1982. Tr. at 186. He simply cannot recall. From the evidence in the record, it is not possible to know whether after 1982 the individual smoked marijuana four times, nine times, or some number in between. In the end, the relevant finding is that the individual smoked marijuana multiple times after 1982, each time abrogating the promise he made to the DOE.

(5)As a general observation, I do not believe that many of the managers who testified on the individual’s behalf grasped the seriousness associated with violating a written pledge made to the DOE. One witness admitted at the hearing that he does not understand “the formality involved in violating a drug certification.” Tr. at 60.

(6)The regulations prohibit me from considering the effect of the loss of the individual’s access authorization on the mission of the DOE. 10 C.F.R. § 710.27(b). Accordingly, I have not given any weight in this Opinion to the numerous testimonial accounts of the individual’s technical competence and professional contributions to the DOE.

(7)During his closing argument, the individual’s counsel cited extensively from Personnel Security Hearing, Case No. VSO-0255, 27 DOE ¶ 82,801 (1999), in which an Hearing Officer recommended restoring a person’s access authorization under circumstances similar to the one before me. I disagree with the reasoning and recommendation of the Hearing Officer in Case No. VSO-0255. That recommended opinion has been appealed, and the Director, Office of Security Affairs, has not yet made a final determination in that case pursuant to 10 C.F.R. § 710.28(e).