Case No. VSO-0350, 28 DOE ¶ 82,756 (H.O. Jenkins-Chapman August 25, 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.

August 25, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Name of Case:Personnel Security Hearing

Date of Filing:March 23, 2000

Case Number: VSO-0350

This Opinion concerns the eligibility of XXXXXXXXX (the individual) for 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.” The individual’s access authorization was requested by one of the Department of Energy’s (DOE) Operations Offices. As explained below, it is my opinion that the individual’s access authorization should not be granted.

I. Background

The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE contractors, agents, DOE access permittees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 generally provides that “[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.7(a).

In this instance, a DOE contractor requested that the individual be granted an access authorization as a condition of his employment. However, the local DOE security office initiated formal administrative review proceedings by informing the individual that his access authorization would be held pending further consideration of certain derogatory information received by DOE that created substantial doubt regarding his eligibility. This derogatory information is described in a Notification Letter subsequently issued to the individual on February 24, 2000. More specifically, Enclosure (1) attached to the Notification Letter contains the DOE Office of Safeguards and Security’s (DOE Security) findings with respect to the individual that fall within the purview of potentially disqualifying criteria set forth in the security regulations at 10 C.F.R. § 710.8(h), (k) and (l). The bases for these findings are summarized below.

Enclosure (1) of the Notification Letter alleges initially that the individual has “an illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist . . . may cause, a significant defect in judgment or reliability.” 10 C.F.R. § 710.8(h) (Criterion H). In support of this assertion, Enclosure (1) states that on November 16, 1999, the individual was evaluated by a DOE consultant psychiatrist (DOE Psychiatrist), who diagnosed the individual with Cannabis Abuse and further concluded that the individual’s illness, particularly in relation to his continued use of marijuana, causes or may cause a significant defect in his judgment and reliability.

Secondly, the Notification Letter alleges that the individual has “[t]rafficked in, sold, transferred, possessed, used, or experimented with a drug or other substance listed in the Controlled Substances Act of 1970 (such as marijuana, cocaine, amphetamines, barbiturates, narcotics, etc.) . . .” 10 C.F.R. § 710.8 (k) (Criterion K). In this regard, Enclosure (1) refers to the DOE Psychiatrist’s evaluation of the individual on November 16, 1999. As part of the evaluation, the individual submitted to a drug screen and tested positive for marijuana.

Next, DOE Security alleges under section 710.8(l) that the individual has “engaged in unusual conduct . . . which tends 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) (Criterion L). The basis for DOE Security’s concern in this respect is that during a Personnel Security Interview (PSI) conducted on August 6, 1999, the DOE Drug Policy was fully explained to the individual and he was aware of the policy and of the consequences of using illegal drugs. In addition, on August 6, 1999 the individual signed a DOE drug certification assuring DOE Security that he would stop using or being involved with any illegal drugs. (2) However, the individual tested positive for marijuana three months later on November 16, 1999, during a drug screen conducted by the DOE Psychiatrist. DOE Security asserts that this positive test indicates that the individual is not honest or trustworthy.

In a letter received by the DOE Office of Hearings and Appeals (OHA) on March 23, 2000, the individual exercised his right under Part 710 to request a hearing in this matter. 10 C.F.R. § 710.21(b). On March 28, 2000, I was appointed as Hearing Officer in this case. After conferring with the individual and the appointed DOE Counsel, 10 C.F.R. § 710.24, a hearing date was established. At the hearing, the DOE Counsel called as witnesses the DOE Psychiatrist, a DOE personnel security specialist and the individual. The individual’s witnesses included his personal Psychiatrist, the individual’s supervisor, his Employee Assistance Program (EAP) counselor, his “significant other” and himself. The transcript taken at the hearing will be hereinafter cited at “Tr.” Various documents that were submitted by the DOE Counsel and the individual during this proceeding constitute exhibits to the hearing transcript and will be cited as “Exh.”

II. Summary of Findings

The following facts are essentially uncontroverted. The individual initially made application for a security clearance by completing a Questionnaire for National Security Positions (QSP). In the course of completing this QSP, the individual admitted that he had used marijuana and LSD. Tr. at 28. The reporting of this information led DOE Security to conduct a PSI with the individual. Id. at 29. During this interview the individual admitted to the use of marijuana, the use of hashish and the use of LSD. In the PSI, he further stated that his last use of marijuana was in June of 1998. At that time the DOE personnel security specialist fully explained to the individual DOE’s concern regarding the use of illegal substances. The individual then acknowledged that he understood this concern and signed a DOE drug certification promising to refrain from the use of illegal substances. Tr. at 29.

After a review of the individual’s personnel security file, DOE Security determined that due to the individual’s more recent use of an illegal substance, a psychiatric evaluation should be conducted. The individual was then referred to a DOE Psychiatrist in November 1999 who diagnosed the individual with Cannabis Abuse. The DOE Psychiatrist further found that this illness may cause a significant defect in the individual’s judgment and reliability. In addition, the DOE Psychiatrist submitted the individual to a urine drug screen, which was positive for marijuana.

The individual attempted to explain the circumstances of his positive drug screen. According to the individual’s original contention, the last time he used marijuana was on his birthday in 1998. Tr. at 51. However, he now admits that he relapsed approximately a week before he was evaluated by the DOE Psychiatrist. Id. at 52. The individual explained that he was entertaining dinner guests at his house when he and his significant other were asked if they wanted to smoke a marijuana cigarette. Id. The individual consented and explained that he then shared a single marijuana cigarette with his guests. Id. The individual further explained that he immediately regretted his relapse and that this was the only time he has smoked marijuana since signing the DOE drug certification. In addition, the individual acknowledged that he did not inform the DOE Psychiatrist of his most recent marijuana use because of his fear of immediate termination. Tr. at 55. After DOE Security initiated the administrative review process, the individual sought counseling through the EAP. Through the EAP, the individual was referred to a substance abuse counselor who conducted five treatment sessions with the individual. The individual is still currently receiving drug counseling through the EAP.

III. 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 are dealing with a different standard designed to protect national security interests. A hearing is “for the purpose of affording the individual an opportunity of supporting eligibility for access authorization.” 10 C.F.R. § 710.21(b)(6). Once DOE Security has made a showing of derogatory information raising security concerns, the burden is on the individual to come forward at the hearing with evidence to convince the DOE that restoring his access authorization “would not endanger the common defense and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Dep’t of Navy v. Egan, 484 U.S. 518 (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).

I have thoroughly considered the record in this proceeding, including the submissions tendered in this case and the testimony of the witnesses presented at the hearing. In resolving the question of whether the individual’s access authorization should be granted, 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 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’s access authorization should not be granted since I am unable to conclude that such 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). The specific findings I make in support of this recommendation are discussed below.

A. Criterion H, Mental Illness; Criterion K, Drug Use

DOE Security alleges in the Notification Letter that the individual has “a mental condition of a nature which, in the opinion of a board-certified psychiatrist . . . may cause, a significant defect in judgment or reliability.” 10 C.F.R. § 710.8(h). The Notification Letter further finds under Criterion K that the individual “has trafficked in, sold, transferred, possessed, used, or experimented with a drug or substance . . .” 10 C.F.R. § 710.8(k). I will consider concurrently the concerns of DOE Security under Criterion H and Criterion K since they are substantially interrelated. The individual’s “mental condition” which DOE Security alleges may result in “a significant defect in judgment and reliability” under Criterion H is the individual’s history of substance abuse under Criterion K.

DOE Security relies upon the report of the DOE Psychiatrist in reaching its findings set forth in the Notification Letter under both Criterion H and Criterion K. Exh. 3-1 (Report of Psychiatric Evaluation, dated November 22, 1999). After reviewing the individual’s DOE personnel security file and conducting a one-hour psychiatric interview with the individual, the DOE Psychiatrist diagnosed the individual with Cannabis Abuse as defined in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The DOE Psychiatrist points to a number of factors leading to his conclusions regarding the individual’s drug use, including the individual’s extensive use of marijuana from 1973 to 1998. He states that the individual “first started smoking marijuana at age 16. Another factor indicating it was quite severe is that he was using very heavily at one point in time. By the time he got to his early 20's, he was using several times a day.” Tr. at 70. The DOE Psychiatrist also points to the individual’s positive test on a drug screen despite the fact that the individual claimed that his last marijuana use occurred in June 1998. The DOE Psychiatrist speculated that in light of the fact that the individual used marijuana a week before a scheduled psychiatric interview, he would guess that the individual had used marijuana intermittently. Tr. at 78. The DOE Psychiatrist states that the individual’s positive urine drug screen is indicative of his continuous use of marijuana and thus may be indicative of a defect in the individual’s judgment and reliability.

The DOE Psychiatrist also indicated that the individual has been in denial about his marijuana problem and believes that he should maintain complete sobriety with respect to marijuana. He recommended that the individual participate in a structured outpatient treatment program for one year. Tr. at 81. According to the DOE Psychiatrist, based on the severity of the individual’s problem, he would recommend a treatment program of moderate intensity such as once a week either with a substance abuse counselor or in a 12-step program such as Narcotics Anonymous. Id. at 82. He further indicated that the risk of relapse is high in the first year. Id. at 81.

The individual does not dispute the factual findings underlying the DOE Psychiatrist’s diagnosis of Cannabis Abuse. I therefore find that there is ample evidence in support of the allegations set forth in the Notification Letter under Criterion H and Criterion K, related to the individual’s history of drug use. As a general matter, use of an illegal substance by an individual holding a security clearance is a source of serious concern since the ability to safeguard national security information is diminished when judgment and reliability is impaired, and individuals who use illegal substances may be susceptible to being coerced or exploited to reveal classified matters. These concerns are indeed important and have been recognized by a number of Hearing Officers in similar cases. See, e.g., Personnel Security Hearing, Case No. VSO-0221, 27 DOE ¶ 82,792 at 85,762 (1999); Personnel Security Hearing, Case No. VSO-0200, 27 DOE ¶ 82,770 at 85,628 (1998). I therefore turn to whether the individual has presented sufficient mitigating evidence to overcome the concerns of DOE Security relating to his use of marijuana. Based upon the record before me, I have determined that the individual has failed to carry his burden in this regard.

Mitigating Evidence

The individual maintains that he began to decrease his marijuana use in 1997 for a number of reasons including the fact that he was graduating from a technical institute and wanted to maintain a high grade point average, the fact that he was approaching 40 years of age and felt that he was at a point in his life where he needed to become more serious-minded, and the fact that once he graduated, a serious employer would mandate a drug-free environment. Tr. at 50. He now admits that he smoked marijuana approximately one week before his evaluation with the DOE Psychiatrist on November 16, 1999, and asserts that this was the only time he has used marijuana since signing the DOE drug certification. Id. at 54. When asked why he did not inform the DOE Psychiatrist that he had used marijuana a week before, the individual explained: “it was a one-time use. I did not feel that it spoke to the way I had behaved since my [last use] in ?98, and . . . it should be obvious that there was a fear of immediate termination.” Id. at 55. The individual further asserts that he has no intention of using marijuana in the future. Id. at 66. The individual states that he is currently participating in his employer’s EAP and has attended treatment sessions with a substance abuse counselor referred by the EAP.

The individual offered the testimony of his personal psychiatrist. In preparation for his testimony, the individual’s psychiatrist reviewed the individual’s personnel security file, reviewed the DOE Psychiatrist’s Report and conducted a two hour psychiatric interview with the individual. The individual’s psychiatrist testified that, based upon his examination of the individual, the individual appears to be in remission from his Cannabis Abuse. Tr. at 161. He based this diagnosis on the fact that, as far as he knows, the individual is not using marijuana at this time and is in treatment. The individual’s psychiatrist described the individual as one who felt guilty almost immediately after he used marijuana just before his evaluation with the DOE Psychiatrist. Tr. at 157. He opined that the individual is making efforts to take more responsibility in his life. Id. at 164. According to the individual’s psychiatrist, the individual is not likely to use marijuana anymore. Id. He further opined that the individual possesses the judgment to protect sensitive information. Id.

In addition, after the hearing, the individual offered a report prepared by a substance abuse counselor who treated him. Exh. F. This counselor assessed the individual as being Cannabis Dependent in early full remission according to the DSM-IV criteria. Id. According to his substance abuse counselor, “as part of regaining his self-esteem, he [the individual] was able to take complete ownership of his integrity question regarding the cannabis abuse after he signed the employee contract.” Id. The counselor also stated that “it may be reasonable to assume that he had not used cannabis for some time prior to the November 1999 incident.” He further indicated that the individual’s prognosis is considered excellent. Id.

Nonetheless, even assuming the individual’s claim of non-usage since 1999 is true, I conclude that the present period of abstinence undertaken by the individual is too short in duration to mitigate sufficiently the security concerns attached to his past marijuana use. As stated above, the individual now admits that he used marijuana approximately one week before he met with the DOE Psychiatrist (less than four months after he signed the DOE drug certification). The individual’s current period of abstinence of less than eight months is not assuring in view of the individual’s past failed attempt to stop using marijuana. The DOE Psychiatrist testified that there is a significant risk of relapse on the part of the individual prior to his achieving one year of sustained abstinence. Tr. at 81-82. This opinion of the DOE Psychiatrist is consistent with other cases involving diagnoses of marijuana abuse, finding that DOE Security’s concerns may be mitigated by evidence of successful completion of a viable drug treatment program combined with abstinence from illegal substances. Cf. Personnel Security Hearing , Case No. VSO-0051, 25 DOE ¶ 82,784 (1995); Personnel Security Hearing, Case No. VSO-0019, 25 DOE ¶ 82,579 (1995). Under these circumstances, I find that the individual has failed to adequately mitigate the concerns of DOE Security under Criterion H and Criterion K.

B. Criterion L, Unusual Conduct

Finally, DOE Security has asserted under Criterion L that the individual has “engaged in unusual conduct . . . which tends 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 interest of the national security.” 10 C.F.R. § 710.8(l) (Criterion L). The basis for DOE Security’s concern in this regard is that despite assuring DOE Security during a PSI and at the time he signed a DOE drug certification that he would stop using illegal substances, the individual again reverted to using marijuana.

The individual’s use of marijuana despite his assurances to DOE Security constitutes unusual behavior that calls into question the individual’s reliability and trustworthiness. I find that the individual’s drug use demonstrates his willingness to disobey the law and it causes me to conclude that he might not willingly abide by security regulations or safeguard classified information. In addition, the promise the individual gave when he signed the DOE drug certification was not an insignificant one. The DOE fully relied on it and relies on it in many other, similar cases. An individual who enters into one of these agreements must fully understand and accept that it requires a serious, sustained commitment to keeping a signed promise. I therefore do not consider the individual’s overall trustworthiness and reliability to measure up to the standards expected of holders of access authorization. Accordingly, I cannot find that the individual has sufficiently mitigated the DOE Security’s concerns under Criterion L.

IV. Conclusion

As explained in this Opinion, I find that DOE Security properly invoked 10 C.F.R. § 710.8(h), (k) and (l) in suspending the individual’s access authorization. For the reasons I have described above, I find that the individual has engaged in unusual conduct within the purview of section 710.8(l). In addition, the individual has failed to sufficiently mitigate the concerns of DOE Security that he has a mental condition with may cause a defect in his judgment and reliability, 10 C.F.R. § 710.8(h), and that he has possessed, used, or experimented with a drug listed in the Controlled Substances Act of 1970, 10 C.F.R. § 710.8(k). I am therefore unable to find that granting the individual’s access authorization would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find that the individual’s access authorization should not be granted.

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

Kimberly Jenkins-Chapman

Hearing Officer

Office of Hearings and Appeals

Date: August 25, 2000

(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).

(2)A drug certification is a written promise by the individual to the DOE stating that the individual will not use illegal drugs as long as he possesses an access authorization.