Case No. VSO-0363, 28 DOE ¶ 82,760 (H.O. Gray August 30, 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 30, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing:May 9, 2000

Case Number: VSO-0363

This Opinion addresses the eligibility of XXXXXXXXX (the Individual) for access authorization, pursuant to the regulations found at 10 C.F.R., Part 710. The Individual has been an employee at a facility of the Department of Energy (DOE) for approximately twenty years.(1) He tested positive for cocaine on a recent random drug test.(2) The positive drug test gives rise to concerns about his eligibility for continued access authorization.(3) As explained below, I do not believe the Individual has resolved the concerns. It is therefore my opinion that his access authorization should not be restored.

A. Background

After the positive drug test, a DOE security specialist conducted a personnel security interview (PSI) with the Individual. In the course of the PSI, the Individual admitted to a twenty-three-year history of illicit drug use.(4) He acknowledged that he had used cocaine at least once a month between 1977 and 2000. During the six months preceding the drug test, he snorted cocaine two or three times a month, using 1/4 gram on each occasion. The Individual also admitted to smoking marijuana at least once a week for a twelve-year period between 1977 and 1989.(5)

The Individual gave a detailed account of his history of cocaine use. He typically spent $50 to $100 a month for cocaine.(6) His cocaine supplier was not a personal friend. The Individual used the cocaine by himself in his home, usually late at night when his family was in bed.(7) His wife did not know he was using cocaine until after he told her of the positive drug test.(8) The Individual’s method of ingesting cocaine was to snort it.(9)

Following the PSI, the Individual went to a clinical psychologist for an evaluation. The psychologist diagnosed the Individual as cocaine dependent, and referred him to a treatment center. At the treatment center, the Individual was placed under the care of a certified substance abuse counselor.(10) The counselor also diagnosed the Individual as cocaine dependent, noting that the Individual, while using cocaine, had experienced paranoia, short- term memory loss, mood swings, loss of appetite, increased tolerance to cocaine, and sleeping difficulties.(11)

The Individual completed an intensive outpatient treatment program at the treatment center.(12) The program consisted of approximately six weeks of one-hour counseling sessions three times a week.(13) Since the conclusion of the intensive outpatient program, the Individual attends a weekly meeting of a twelve-step group. He also attends a weekly group counseling session with his wife.(14)

The counselor, following the criteria set out in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) testified at the hearing that the Individual is currently in the sustained partial remission stage of cocaine dependence, based on his complete abstinence from cocaine for less than six months.(15) She declined to state that he had attained full rehabilitation, but said rather that the Individual is “doing what he needs to do.(16)

After the Individual’s positive drug test, it was found that the Individual had failed to list his use of illicit drugs on three forms he had filled out to obtain or retain his access authorization.(17) On a Personnel Security Questionnaire in 1984, he denied ever using any narcotic. On Questionnaires for Sensitive Positions he completed in 1990 and 1996, he denied using cocaine and marijuana within the previous five years.(18) In light of the Individual’s admitted use of cocaine and marijuana during the relevant periods, all three statements are clearly falsifications.

Based on the above information, the manager of the DOE facility sent the Individual a Notification Letter, informing him that his access authorization was suspended. The Notification Letter included a Statement of Charges, identifying the derogatory information that led to the suspension. The cited charges were that (1) the Individual deliberately falsified his history of illicit drug use, which raises a security concern as specified at 10 C.F.R. § 710.8(f) (Criterion F); and (2) the Individual had illicitly used marijuana and cocaine, which raises a security concern as specified at 10 C.F.R. § 710.8(k) (Criterion K).(19)

After his access authorization was suspended, the Individual requested a hearing to provide evidence in support support of his eligibility for access authorization.(20) 10 C.F.R. § 710.21(b)(6). At the hearing, the Individual presented the testimony of his drug abuse counselor, his wife, and six friends and family members. He also testified on his own behalf. The DOE presented the testimony of a personnel security specialist.

B. Analysis

A DOE administrative review proceeding under Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. Personnel Security Hearing , Case No. VSO-0078, 25 DOE ¶ 82,802 (1996). In a Part 710 case, the standard is designed to protect national security interests. Once the DOE has made a showing of derogatory information, the burden is on the individual 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. 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).

In the present case, the DOE has brought forward two separate items of derogatory information: the Individual’s admitted use of illicit drugs, and his admitted falsification related to that use. The sole question in assessing the Individual’s eligibility for access authorization is whether he has presented sufficient evidence to resolve the security concerns arising from his conduct.

1. Criterion K

In the Part 710 administrative review process, the hearing officer has the responsibility for assessing whether a person with a drug- or alcohol-related security concern has presented sufficient evidence of rehabilitation or reformation to resolve security concerns. Personnel Security Hearing (Case No. VSO-0106), 26 DOE ¶ 82,767 (1997), aff’d, Personnel Security Review (Case No. VSA-0106), 26 DOE ¶ 83,009 (1997). The DOE does not have a set policy on what constitutes rehabilitation and reformation; rather, the hearing officer makes a case-by-case determination based on the available evidence. Personnel Security Hearing, (Case No. VSO-0154), 26 DOE ¶ 82,794 (1997), aff’d, Personnel Security Review, 27 DOE ¶ 83,008 (1998) affirmed OSA, 1998. In making their recommendations, hearing officers accord great deference to the expert opinions of psychiatrists and other mental health professionals regarding rehabilitation and reformation. See, e.g., Personnel Security Hearing (Case No. VSO-0146), 26 DOE ¶ 82,788 (1997) (affirmed by OSA, 1997); Personnel Security Hearing, (Case No. VSO-0027), 25 DOE ¶ 82,764 (1995); Personnel Security Hearing, (Case No. VSO-0015), 25 DOE ¶ 82,760 (1995).

In most of the cases in which an individual has claimed to have been rehabilitated from substance-related disorders, we found that there is not sufficient evidence of rehabilitation until the individual has abstained from the use of all psychoactive substances for a period of at least twelve months, and a competent mental health professional has given an opinion that the individual is rehabilitated. See, e.g., Personnel Security Hearing, Case No. VSO-0063, 25 DOE ¶ 82,789; Personnel Security Hearing, Case No. VSO-0018, 25 DOE ¶ 82,758 (1995); Personnel Security Hearing, Case No. VSO-0014, 25 DOE ¶ 82,755 (1995); Personnel Security Hearing, Case No. VSO-0005, 24 DOE ¶ 82,753 (1995), affirmed, 25 DOE ¶ 83,013 (1995), affirmed, OSA, (1995).

The basis for requiring a minimum of twelve months of abstinence is that, as the DSM-IV states, “the first 12 months following Dependence is a time of particularly high risk for relapse.(21) The testimony of the Individual’s counselor also supports a requirement that the Individual undergo a minimum of twelve months of abstinence to establish rehabilitation. The counselor stated that, in her experience, one-half of all cocaine users in therapy will relapse in the first year after beginning treatment.(22) She also stated that cocaine use causes problems in mental functioning that can persist for up to twelve months after use of cocaine is stopped.(23)

The twelve-month standard is not a hard and fast rule. It must be applied flexibly on a case-by-case basis. However, we have not deviated from this standard without a showing of significant mitigating circumstances by an individual and a clear finding by a competent expert. Case No. VSO-0103, supra; Personnel Security Hearing, Case No. VSO-0130, 26 DOE ¶ 82,779 (1997), affirmed OSA, 1997; Personnel Security Hearing, Case No. VSO-0179 (1998).

In the present case, the Individual has presented some mitigating evidence. His addiction counselor described his prognosis for rehabilitation as good.(24) She stated that he appeared to be motivated in his desire to achieve rehabilitation, and was diligently participating in his rehabilitation program. The Individual testified convincingly of his commitment to remain drug- free.(25) He also provided testimony from a number of friends and family members, which demonstrated that he has a strong support network that can help him remain free of drugs. His wife testified that she had learned through the aftercare sessions how to help her husband in his efforts toward rehabilitation.(26)

Nevertheless, I do not believe that the Individual can be considered rehabilitated in view of the relatively short time he has been abstinent and in the absence of a finding of rehabilitation from a competent mental health expert. The testimony of the Individual’s counselor, while supporting the view that the Individual is making progress, did not indicate that he had yet attained rehabilitation. The Individual entered the therapy program only four months before the hearing, after having consumed cocaine for twenty-three years. There is undoubtedly much the Individual can still learn about maintaining a drug-free life. Moreover, I find no basis for believing that four months of abstinence and treatment constitutes adequate rehabilitation from the Individual’s long-term use of a powerfully addictive drug such as cocaine.

2. Criterion F

I find that the issue of the Individual’s falsification is closely connected with his drug use. His dishonesty seems to be limited to his failure to disclose his drug use before his positive drug test. The Individual’s counselor testified that it is typical for an addict, while his addiction is active, to deny his use of the drug.(27) I also note that, since the positive drug test revealed the Individual as a user of cocaine, he has been candid about his involvement with drugs; for example, he volunteered information about his use of marijuana. There have been no other indications that he falsified or concealed any information about himself. The Individual’s counselor, and several of the Individual’s character witnesses credibly described the Individual as honest.(28)

Nevertheless, the Individual’s falsification regarding his drug use is a serious matter. Because the Individual’s dishonesty arose from his cocaine dependency, I cannot find that he has resolved the issue of falsification until he has, at a minimum, demonstrated rehabilitation from his drug use.

C. Conclusion

The Individual has shown that he has made significant progress in recovering from cocaine dependency. He has not shown, however, that at the time of the hearing he has been rehabilitated. Therefore, in view of the criteria set forth in 10 C.F.R. Part 710, and the testimony and documents in the record, I believe that the Individual's drug use and falsification casts substantial doubt as to whether restoring his access authorization would not endanger the common defense and would not be clearly consistent with the national interest. The substantial doubt has not been resolved by this part of the administrative review process. It is therefore my opinion that the Individual’s access authorization should not be restored.

Warren M. Gray

Hearing Officer

Office of Hearings and Appeals

Date: August 30, 2000

(1) Personnel Security Interview (PSI), 19.

(2) Random Test Report, Hearing Exhibit Book, Tab 2, Exhibit 6; PSI, 15-16.

(3) Transcript of Hearing (Tr.), 24.

(4) Tr., 25.

(5) Tr., 26; PSI, 36-39.

(6) PSI, 30.

(7) PSI, 47; 62-64.

(8) Tr., 11; 13-14.

(9) PSI, 53.

(10) Tr., 33. The counselor has worked in the field of substance abuse for about sixteen years. Tr., 34. She is a certified substance abuse counselor, but neither a psychiatrist nor a psychologist. Tr., 33.

(11) Tr., 35; Individual’s Exhibit 1, Discharge Summary.

(12) Tr., 47.

(13) Tr., 34.

(14) Tr., 34, 58, 110.

(15) Tr., 41-2.

(16)” Tr., 49.

(17) Tr., 26-27.

(18) Hearing Exhibit Book, Tab 3, Exh. 1-3.

(19) Hearing Exhibit Book, Tab 2, Exh. 3.

(20) Hearing Exhibit Book, Tab 2, Exh. 1.

(21)” DSM-IV at 179.

(22) Tr., 56-57.

(23) Tr., 52-53.

(24) Tr., 39, 47-48.

(25) Tr., 110-11, 114-15.

(26) Tr., 20.

(27) Tr., 30-31.

(28) Tr., 32; 89; 96; 101.