Case No. VSO-0321, 27 DOE ¶ 82,842 (H.O. Fine April 17, 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.

April 17, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: December 3, 1999

Case Number: VSO-0321

This Opinion concerns the eligibility of XXXXXXXXXXXX (hereinafter referred to as "the Individual") to retain a DOE access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.” The Department of Energy (DOE) suspended the Individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony in this proceeding, the Individual's access authorization should be restored. For the reasons stated below, it is my opinion that the Individual's access authorization should be restored.

I. BACKGROUND

The events leading to the present proceeding began when the Individual underwent a routine re- investigation of his eligibility to maintain a DOE access authorization. During this re-investigation, the Individual admitted he had intentionally used marijuana on six occasions. Because of the Individual’s marijuana use, his access authorization was suspended and an administrative review proceeding was initiated. See 10 C.F.R. § 710.9. The DOE then issued a letter notifying the Individual that information the DOE possessed created a substantial doubt concerning his continued eligibility for access authorization (the Notification Letter). The Notification Letter specifies two areas of derogatory information described in 10 C.F.R. § 710.8. First, the Notification Letter charges that the Individual has:

Trafficked in, sold, transferred, possessed, used, or experimented with a drug or other substance listed in the Schedule of Controlled Substances established pursuant to section 202 of the Controlled Substances Act of 1970 (such as marijuana, cocaine, amphetamines, barbiturates, narcotics, etc.) except as prescribed or administered by a physician licensed to dispense drugs in the practice of medicine, or as otherwise authorized by law.

10 C.F.R. § 710.8(k). The Notification Letter also charges 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, exploitation, or duress which may cause [him] to act contrary to the best interests of the national security.

10 C.F.R. § 710.8(l). The Individual filed a request for a hearing. This request was forwarded to the Office of Hearings and Appeals (OHA) and I was appointed as Hearing Officer.

At the hearing, the DOE presented two witnesses: the DOE Personnel Security Specialist and the Individual. The Individual called four witnesses and testified on his own behalf. The record of this proceeding was closed on March 17, 2000, when I received the Individual’s supplemental evidentiary submission.

II. STANDARD OF REVIEW

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency and the Individual, and to render an opinion based on that evidence. See 10 C.F.R. § 710.27(a). The regulations state that the access authorization decision “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). I have considered the following factors in rendering this Opinion: the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; the Individual's age and maturity at the time of the conduct; the voluntariness of the Individual's 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 continuation or recurrence; and other relevant and material factors. See 10 C.F.R. § § 710.7(c), 710.27(a). The discussion below reflects my application of these factors to the testimony and exhibits presented by both sides in this case.

When reliable information reasonably tends to establish the validity and significance of substantially derogatory information or facts about an individual, a question is created as to the individual's eligibility for an access authorization. 10 C.F.R. § 710.9(a). The individual must then resolve that question by convincing 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). In the present case, the Individual has convinced me that restoring his security clearance would not endanger the common defense and would be clearly in the national interest.

III. FINDINGS OF LAW AND FACT

The Individual had maintained a DOE Clearance for over five years. As one of the first steps in a routine re-investigation of the Individual’s eligibility to maintain that clearance, the Individual was required to complete a form entitled “Questionnaire for National Security Positions” (QNSP). In his QNSP dated April 28, 1998, the Individual indicated that he had used marijuana on six occasions during a period beginning in June 1993 and ending in January 1998. Because of the security concerns raised by the Individual’s marijuana use, a Personnel Security Interview (PSI) of the Individual was conducted on August 2, 1999. During this PSI, the Individual repeated his admission of marijuana use.

Illegal drug use raises serious security concerns because it may reflect an inability to safeguard classified information and special nuclear material. Involvement with illegal drugs exhibits an unacceptable and disturbing disregard for laws prohibiting their use. Such disregard for the law raises concerns that the Individual may similarly disregard other laws, including those which protect classified information and special nuclear materials. See Personnel Security Hearing, Case No. VSO-0116, 26 DOE ¶ 82,765 at 85,602 (1997) (citing Personnel Security Hearing, Case No. VSO-0013, 25 DOE ¶ 82,752 at 85,512 (1995)). Moreover, the use of illegal drugs (and the disrespect for law and authority that such use suggests) indicates a serious lapse in judgment and maturity. Involvement with illegal drugs may also render the user susceptible to blackmail or coercion. The concerns raised by an individual’s illegal drug use are heightened when the drug use occurs while the Individual maintains a DOE security clearance, since avoiding illegal drug use is a requirement of both the DOE's safety and security regulations. Moreover, in light of the DOE’s policies against any involvement with illegal drugs, any illegal drug use by an individual who maintains a DOE access authorization evidences poor judgment. Personnel Security Hearing, Case No. VSO-0289, (November 18, 1999) (citing Personnel Security Hearing, Case No. VSO-0023, 25 DOE ¶ 82,761 at 85,579 (1995)).

In considering whether to recommend restoring the DOE Security Clearance of an individual who has used marijuana, I find the following factors to be particularly significant: (1) the extent of the individual’s marijuana use, (2) whether the individual’s marijuana use results from an ongoing medical or psychiatric condition, (3) the length of time since the individual’s last use of marijuana, (4) the individual’s demonstrated commitment to avoiding future drug involvement, (5) whether the individual’s marijuana use violated a DOE Drug Certification, and (6) the circumstances under which the individual’s marijuana use came to the DOE’s attention. I have considered each of these factors and have found, that in the present case, they all favor the Individual.

Criterion K

In the present case, I find that the Individual has presented sufficient evidence to resolve the security concern raised by his marijuana use under Criterion K. My impression of the Individual, formed at the hearing, is that he is an intelligent, competent and dedicated worker. It is clear that he recognizes the seriousness and the significance of his actions and is sincerely committed to avoiding future drug use. Most importantly, I am convinced that the Individual is now an honest and responsible person and that his marijuana use is highly unlikely to recur.

There is no evidence that the Individual’s marijuana use is any more extensive than he has reported. There is however, strong evidence that his marijuana use was sporadic and limited to a relatively short period in the past. A licensed clinical psychologist (the Psychologist) testified on behalf of the Individual at the hearing. The Psychologist testified that she has been counseling the Individual for relationship and communication issues since March 21, 1994. Tr. at 9-10. Most importantly, the Psychologist testified that no evidence of a substance abuse problem had surfaced during her counseling of the Individual. Transcript of Hearing, Case No. VSO-0321 (hereinafter cited as “Tr.”) at 11, 13. The Psychologist noted that since she had counseled the Individual and his (now former) wife about relationship issues, if there were any substance abuse issues, they would have likely become apparent. Id. The Psychologist also testified that:

He’s very forthcoming. He’s one of the most diligent clients I’ve ever worked with. He not only works on whatever the issues are within the session, he works outside of the session. He’s dependable, reliable. I’ve never had any question in my own mind about whether I’m getting the truth about what’s happening in his life.

Tr. at 12.

The Individual has also submitted a Psychiatric/Chemical Dependency Evaluation Report (the Report) prepared by a physician (the Physician) who the Psychologist identified as “one of the top addiction specialists in the city.” Tr. at 12. The Individual was referred to the Physician for evaluation by a DOE contractor’s Employee Assistance Program (EAP). Report at 1. The Report indicates that the Physician formed the following impression of the Individual:

[The Individual] does not currently appear to be chemically dependent in any way, shape or form. It appears that he has ?abused’ marijuana in the past, well aware that it was illegal, also well aware that its use could possibly jeopardize his security clearance, ultimately his job. The patient appears to have first used marijuana unknowingly, it also appears that he was somewhat naive about marijuana, its effects, and the risk of continued use, at the time this all occurred.

Report at 4. As a result, the Physician formulated an Axis I Diagnosis of “Cannabis Abuse, episodic, in full remission.” Id. The Physician also indicated that he considered the Individual to be a valid historian. Id. Moreover, two character witnesses, both of whom know the Individual well, convincingly testified that illegal drug use is not part of the Individual’s lifestyle. Tr. at 93-96, 51- 52, 55. In addition, the Individual has entered into an agreement with his employer requiring him to submit to at least 12 random drug tests during the next 12 months. This agreement provides additional assurances of the Individual’s commitment to avoiding future illegal drug use. I am therefore firmly convinced that the Individual’s drug use has ceased and is unlikely to recur.

Two years have now passed since the Individual last used marijuana. The passage of this amount of time without marijuana use suggests that the Individual will be more likely to avoid future drug use. See Personnel Security Hearing, Case No. VSO-0103, 26 DOE ¶ 82,701 (1996) (noting consensus among medical addiction specialists that the longer an individual abstains from substance use the more likely that individual is to remain substance free). Moreover, the passage of time and the ordeal of having his clearance suspended have provided the Individual with an opportunity to reflect upon his actions. I believe the Individual has used this opportunity to learn from his mistake. These considerations, in addition to the fact that his use was sporadic and isolated rather than extensive, substantially mitigate the Criterion K concerns raised by the Individual’s marijuana use.

Criterion L

The Individual’s violation of federal, state and DOE laws prohibiting the use of marijuana and his passive concealment of his marijuana use raise serious security concerns under Criterion L. However, I am convinced that the Individual has now shown that he is honest and trustworthy. The best example of the Individual's trustworthiness was his honesty during the re-investigation when the Individual candidly admitted that he had used marijuana, even though he knew that it was unlikely that DOE would detect this illegal drug use without his admission. Moreover, both mental health professionals indicate that they are convinced that the Individual is honest and candid. Each witness called by the Individual considered him to be honest. Tr. at 11-12, 92, 53-54. Several witnesses convincingly testified that the Individual was particularly dependable and responsible. Tr. at 12, 92, 100-01, 104-105, 58-59.

I am also impressed by the contrition exercised by the Individual in facing up to the consequences of his marijuana use. He admitted his marijuana use to DOE Security officials during his 1998 re- investigation and recognized that he had made a serious error. At the hearing he stated:

I understand the context of my use, and I feel that I made a bad choice, and I feel that I violated my trust with the government in so doing. I believe I’m very clear about why I used marijuana. The part that, you know, I find difficult is the fact that my value system includes trust as an important component, and the fact that I violated that trust and violated my value system was simply a mistake and a misjudgment on my part.

Tr. at 70-71. In considering the serious security concerns raised by the Individual’s marijuana use, I must take into account that his self-reporting of his marijuana use was an act of integrity. If it were not for his candor, it is highly unlikely that DOE Security officials would have ever become aware of his transgression. Yet, the Individual admitted his use rather than lie to the DOE.

Although the Criterion L security concern raised by the Individual’s marijuana use is very serious in nature, I find that it has been satisfactorily resolved by the evidence in the record of this proceeding, which indicates that the Individual has admitted his marijuana use rather than lying about it, that he has learned from his mistake, and reformed his behavior so that he is not likely to use marijuana again.

IV. CONCLUSION

The present case is unlike any that has previously come before OHA. Other marijuana cases before OHA have fallen in to three categories. They either involved violations of DOE Drug Certifications, ongoing substance abuse or dependency, or individuals who were caught using marijuana. Accordingly, this case is readily distinguished from previous cases involving marijuana use.

First, the Individual has never signed a DOE Drug Certification. Compare, Personal Security Review, Case No. VSA-0242, 27 DOE ¶ 83,017, affirmed, OSA, November 22, 1999 (denying restoration of clearance to an individual who had self-reported his violation of DOE Drug Certification), Personnel Security Hearing, Case No. VSO-0289 (November 18, 1999) (recommending against restoration of clearance for a self-reporting individual who had violated a DOE Drug Certification). These cases reflect the serious nature of violating a DOE Drug Certification. Violation of a DOE Drug Certification involves the breaking of a promise to the DOE that the Individual will refrain from future drug use. (1) However, since the Individual’s marijuana use did not violate a DOE Drug Certification, these circumstances are not present in the instant case.

The second category of prior OHA marijuana cases involve individuals whose use of marijuana was found to be part of an ongoing substance abuse or substance dependency condition. In the present case, there is evidence in the record showing that the Physician diagnosed the Individual with cannabis abuse. (The Psychologist, whose experience with the Individual was much more extensive than the Physician, is firmly convinced that the Individual does not have a substance abuse problem. Tr. at 11). However, substance abuse was not one of the factors cited by DOE in the Notification letter. More importantly, the Physician who diagnosed the Individual with cannabis abuse found that it was in full remission. This fact and the Individual’s two year period of abstinence from marijuana use indicate that he is fully rehabilitated from his cannabis abuse.

The third category of marijuana cases involve individuals who were caught using marijuana either by drug tests, arrests or by DOE informants. These cases are clearly distinguishable from the present case where the Individual’s marijuana use was brought to the DOE’s attention by the Individual himself.

For the reasons set forth above, I conclude that the Individual has presented evidence that warrants restoration of his access authorization. Since the Individual has resolved the DOE’s allegations under Criteria K and L, I conclude that the Individual has demonstrated that restoring his security clearance would not endanger the common defense and would be clearly consistent with the national interest. Therefore, it is my opinion that the Individual's 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 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 with 20 days of receipt of the statement.

Steven L. Fine

Hearing Officer

Office of Hearings and Appeals

Date: April 17, 2000

(1) In these cases, OHA has found that even the self-reporting of illegal drug use cannot mitigate a violation of a DOE Drug Certification. But see Personnel Security Hearing, Case No. VSO-0313 (2000) (hearing officer opinion recommending restoration for a self- reporting individual whose one time marijuana use violated a DOE Drug Certification).