Case No. VSO-0307, 27 DOE ¶ 82,837 (H.O. Mann March 9, 2000)

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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.

March 9, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: October 19, 1999

Case Number: VSO-0307

This Opinion concerns the eligibility of XXXXXXXXXX (hereinafter referred to as "the individual") to hold an access authorization (also called a security clearance). The individual's access authorization was suspended under the Department of Energy (DOE) regulations set forth at 10 CFR Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." As explained below, I recommend restoring the individual’s access authorization.

Background

The individual is employed by a contractor at a DOE facility and she held an access authorization before it was suspended. The local DOE security office issued a Notification Letter to the individual on August 23, 1999. The Notification Letter alleges under 10 CFR § 710.8(f) that the individual “has deliberately misrepresented, falsified, or omitted significant information from a Questionnaire for National Security Positions (QNSP).” The Notification Letter also alleges under 10 CFR § 710.8(l) that the individual “has engaged in unusual conduct or is subject to circumstances which tend to show that she is not honest, reliable or trustworthy; or which furnishes reason to believe that she may be subject to pressure, coercion, exploitation or duress which may cause her to act contrary to the best interests of the national security.” These allegations are based on the individual’s use of marijuana in October 1996, after she signed a DOE Drug Certification in June 1996, and her subsequent failure to list the October 1996 drug use on a QNSP she signed in August 1998.

Because of these security concerns, the case was referred for administrative review. The individual filed a request for a hearing on the concerns in the Notification Letter. DOE transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA), the OHA Director appointed me as Hearing Officer in this case, and I convened a hearing.

At the hearing, the DOE Counsel called one witness, a DOE personnel security specialist. The individual testified on her own behalf, and called five other witnesses, including her current and former supervisors at the DOE facility where she works, two personal friends, and her mother. The DOE submitted 16 written exhibits, and the individual submitted one written exhibit.

Standard of Review

The applicable DOE regulations state that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 CFR § 710.7(a). In resolving questions about the individual’s eligibility for access authorization, I must consider the relevant factors and circumstances connected with the individual’s conduct. These factors are set out in § 710.7(c):

the nature, extent, and seriousness of the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of participation; the age and maturity of the individual at the time of the conduct; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; and the likelihood of continuation or recurrence.

A DOE administrative review proceeding under 10 CFR Part 710 is authorized when the existence of derogatory information leaves unresolved questions about an individual’s eligibility for access authorization. A hearing is “for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization.” 10 CFR § 710.21(b)(6). Once DOE has presented derogatory information affecting an individual’s eligibility for access authorization, the individual must come forward with evidence to convince the DOE that restoring his or her access authorization “would not endanger the common defense and security and would be clearly consistent with the national interest." 10 CFR § 710.7(a). See Personnel Security Hearing (Case No. VSO-0013), 24 DOE ¶ 82,752 at 85,511 (1995) and cases cited therein. For the reasons discussed below, I am convinced that this individual's access authorization should be restored.

Findings of Fact and Analysis

Undisputed Facts

The individual admits the facts alleged in the Notification Letter, and the hearing focused on her assertion that mitigating circumstances exist that warrant restoration of her access authorization. Before turning to the issue of mitigation, it would be helpful to explain the circumstances underlying the concerns in the Notification Letter.

In June 1996, when the individual was XX years old, she was hired as a summer intern by the DOE contractor. Before she was granted the security clearance required for her summer job, the individual had a Personnel Security Interview (PSI) in June 1996, during which she was asked to sign a DOE Drug Certification because she disclosed on a QNSP (“the '96 QNSP”) that she had tried marijuana twice, in September 1995 and February 1996. The individual signed the Drug Certification, and worked until August 1996. When her summer job ended, her DOE badge was taken away from her, and she returned to high school. She had no assurance of getting another job at the DOE facility the following summer, and neither the contractor nor the DOE security office advised the individual that her clearance, and the DOE Drug Certification, were going to remain in effect after her job ended. The individual smoked marijuana one time in October 1996. That was the last time the individual used illegal drugs, and drug use, in and of itself, is not a concern in this case.

The individual got another job with the DOE contractor in the summer of 1997, and she continued as a student intern through the summer of 1998. In August 1998, the contractor decided to change the individual’s work assignment, which required an upgrade in her clearance level. The contractor had the individual complete a new QNSP (“the '98 QNSP”), which would be used to update the individual’s background investigation. The individual hurriedly filled out the '98 QNSP, without referring to the '96 QNSP form she had filled out two years earlier. The individual made a number of omissions on the '98 QNSP. Most importantly, she failed to mention the October 1996 marijuana use.(1)

In the fall of 1998, an OPM investigator interviewed the individual as a routine part of updating of her background investigation. During this interview, the individual told the investigator that she had used marijuana in October 1996. When DOE security reviewed this information, they saw that the individual had omitted her October 1996 marijuana use from the '98 QNSP, and that she had also violated the Drug Certification that she had signed in June 1996. The individual was called for a second Personnel Security Interview (PSI) in March 1999, and she admitted that she had failed to mention the October 1996 drug use on the '98 QNSP, and that while she was not aware of it at the time, this use had violated her Drug Certification.

Analysis of Mitigating Evidence

Although omission of information from a DOE form that is relevant to an individual’s eligibility for access authorization and violation of a Drug Certification are serious matters, this individual has convinced me that circumstances exist in her case that are sufficient to mitigate those security concerns. I will discuss the mitigating factors in the order they are mentioned in 10 CFR § 710.7(c), beginning with the concern under Criterion L, violation of a DOE Drug Certification, and then consider the concern under Criterion F, failure to mention the October 1996 marijuana use on the '98 QNSP.

Criterion L–Violation of the DOE Drug Certification

First and foremost, I find that the individual did not knowingly violate her Drug Certification when she used marijuana in October 1996, for the simple reason that the individual had the mistaken impression that her clearance and her Drug Certification were not then in effect. Hearing Transcript (Tr.) at 89-91. The language of the Drug Certification itself is ambiguous when applied to this individual’s situation as a summer job holder. It states, in pertinent part, that the individual will not use illegal drugs “at any time . . . in any job in which I have been given a DOE access authorization or security clearance.” At the hearing, the individual submitted a time line showing her periods of employment at the DOE facility. Individual’s Exhibit 1. It shows that in October 1996, the individual was back in high school, she did not have a job in which she had been given a clearance, and she had no assurance of being rehired the next summer. Moreover, the actions of DOE security and the badge office(2) had inadvertently created a situation that exacerbated the ambiguity about the continued applicability of the individual’s clearance and drug certification.

Two events contributed to this situation. The first event was a comment made by the Personnel Security Specialist who conducted the June 1996 PSI when the individual signed her Drug Certification that “this is mainly while you’re holding a security clearance.” See Tr. at 110-112, citing June 1996 PSI Tr. at 41. As the DOE Counsel noted during the hearing, “it’s possible that [the individual] could have been under the mistaken impression that this DOE drug certification held only if she was holding an active access authorization.” Tr. at 112. The second event occurred when the badge office took away the individual’s badge at the end of her summer job, and did not give any briefing to alert the individual and the other terminating summer employees to the fact that their clearances (and in the individual’s case, her Drug Certification) were being continued in effect, in case they were hired again. Tr. at 90-91. The DOE Personnel Security Specialist agreed this could have created a potential misunderstanding. Tr. at 24. Although the Personnel Security Specialist conceded that she did not know whether the badge office briefed the individual to alert her to the fact that her clearance would remain in effect after her job ended, she believed that the individual “still should have known she held an active clearance, because she knew she was going back to school.” Tr. at 23-25. The individual’s XXXXX works for the same DOE contractor, holds an active DOE access authorization, and has herself supervised student employees. According to the individual’s XXXXX, “I did not know that when [the individual] terminated employment in August that her clearance was active.” Tr. at 57. The individual’s XXXXX also noted that when she learned about her XXXXX’s October 1996 marijuana use several months after the fact, it never crossed her mind that the individual had violated her Drug Certification, “because really I didn’t even know if she was going to come back to [the DOE facility] at that time.(3) Tr. at 67-68. This evidence leads me to conclude that the individual did not know that she still held a security clearance in October 1996 and the Drug Certification still applied, and as a result, she did not knowingly violate her Drug Certification. The individual made a serious mistake, but it was an honest mistake.(4)

Criterion F–Failure to List the October 1996 Drug Use on the '98 QNSP

I turn next to the circumstances under which the individual failed to list her October 1996 drug use on the '98 QNSP. Again, I find that the while this omission was a serious mistake, it was the result of haste, inattention to detail, and inexperience, rather than an attempt to conceal the truth from the DOE. Shortly afterwards, when she was interviewed by the OPM investigator, the individual realized she had not mentioned the October 1996 drug use on the '98 QNSP, and volunteered the information to the investigator. As noted above, when she hastily filled out the DOE security form just before returning to college in August 1998, the individual made a number of other careless errors. She did not know that she should have asked for a copy of her '96 QNSP, and taken care to include all the same information on her new form. Of course, none of her other errors created a security concern, but the fact that she made them lends additional credence to the individual’s account of the haste in which she completed the '98 QNSP. For me, the telling piece of exculpatory evidence is that the individual readily volunteered the information to the OPM investigator shortly after she completed the '98 QNSP, as soon as she realized she had made a mistake. This is not the behavior of an individual who is trying to deceive the DOE by omitting information from a security form that is relevant to her eligibility for a clearance.

A review of previous OHA Criterion F “falsification” cases confirms that the situation involved in this case is comparatively trivial, and has much in common with cases in which the individual’s clearance was ultimately restored. Some prior cases involved the deliberate falsification of DOE security forms that the individuals had submitted in applying for access authorization. The matters those clearance holders concealed from the DOE were guilty pleas to felonies. See Personnel Security Hearing (Case No. VSO-0001), 24 DOE ¶ 82,751 (1994), (concealment of guilty plea to three felony fraud charges); Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 (1995) (concealment of guilty plea to sale of cocaine). By contrast, the nature of the individual's conduct in the present case is much less serious, attributable to a mistake on her part, and her failure to report the October 1996 marijuana use was mitigated by her voluntary disclosure to the OPM investigator as soon as she realized the mistake. This individual’s voluntary reporting of derogatory information is similar to the situation in a previous case in which I was the Hearing Officer, where I also concluded that the voluntary reporting of derogatory information by the individual showed that she acted in an honest, reliable and trustworthy manner. See Personnel Security Hearing (Case No. VSO-0037), 25 DOE ¶ 82,778 (1995), aff’d (OSA 1996). The same conclusion is warranted in this case.

In addition to convincing me that she did not knowingly violate her Drug Certification when she used marijuana in October 1996, and that she did not knowingly attempt to mislead the DOE when she failed to mention it on her '98 QNSP, the individual scores favorably on the other factors enumerated in 10 CFR § 710.7(c). The individual’s October 1996 marijuana use was an isolated event that took place when she was 16 years old, and the DOE does not consider her drug use to be a current security concern. It was a classic case of a youthful indiscretion, which no one claims has been repeated since. Thus, I find that what happened in October 1996 was neither “frequent” nor “recent” conduct. The individual, her mother, and two friends, including her best friend who is a fellow student at the individual’s university, all testified that the individual does not use drugs, does not associate with people who use drugs, and that she would walk away from any situation where drugs are being used. The individual also testified that she is willing to continue adhering to her promise not to use drugs. This shows that the individual has reformed her behavior. Her failure to list the October 1996 marijuana use on the '98 QNSP is mitigated by her voluntary disclosure of that information to the OPM investigator shortly thereafter, as soon as the individual realized her mistake. As a practical matter, I also find that the individual now understands that a clearance holder must exercise meticulous care to give accurate information on DOE security forms, and that she should make it a practice to review prior forms to refresh her recollection of the information she has submitted in the past. The individual has learned the hard way that DOE security forms are not a mere bureaucratic inconvenience, but a serious matter that deserves her careful attention. The testimony of the individual, her mother, and her several character witnesses attests to the fact that the individual has matured a great deal since the events occurred that gave rise to the Notification Letter. I find that the individual realizes she made two serious mistakes as far as DOE security is concerned, but that she learned her lesson from those errors, and it is highly unlikely that there will have any recurrence of the conduct that gave rise to concern.

Conclusion

Based on the entire record in this proceeding, I find that the individual has resolved the security concerns raised under 10 CFR § 710.8(f) and (l). I conclude that the individual has mitigated the concern that she deliberately misrepresented, falsified, or omitted significant information from a Questionnaire for National Security Positions (QNSP). I also find that she has mitigated the concern that she engaged in conduct which tends to show that she is not honest, reliable or trustworthy, and that she may be subject to pressure, coercion, exploitation or duress which may cause her to act contrary to the best interests of the national security.

For the reasons explained in this Opinion, I find that the individual has shown that restoring her access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I recommend that the individual's access authorization be restored.

The regulations set forth at 10 CFR § 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 CFR § 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, SO-21

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

Thomas O. Mann

Hearing Officer

Office of Hearings and Appeals

Date: March 9, 2000

(1) The individual also failed to mention several additional items on the '98 QNSP: (1) the September 1995 marijuana use she had previously listed on her '96 QNSP; (2) the names of several xxxxx siblings; (3) her xxxxx’s address where she had lived xxxxx in xxxxx; and (4) a xxxxx job she had when she lived with her xxxxx.

(2) The witnesses never indicated whether the badge office at the facility where the individual worked was run by DOE or the contractor.

(3)” Even though the individual’s xxxxx arguably has a personal interest in the restoration of her xxxxx’s clearance, she also is a clearance holder herself and understands the gravity of the administrative review process. In addition, her experience supervising summer students at the same DOE facility is directly relevant to factual circumstances of this case. I find that her testimony was candid and credible.

(4) Violation of the Drug Certification in this case was not connected with any incident involving compromise of classifed matter or special nuclear material.