Case No. VSO-0430, 28 DOE ¶ 82,803 (H.O. Freimuth June 15, 2001)

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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.

June 15, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: January 9, 2001

Case Number: VSO-0430

This Opinion concerns whether XXXXXXXXXX (hereinafter "the Individual") is eligible for access authorization. As explained below, I recommend that the Individual be granted access authorization.

I. The Applicable Regulations

The Department of Energy (DOE) regulations governing this matter are set forth at 10 C.F.R. Part 710. Those regulations describe the criteria and procedures for determining eligibility for access to classified matter or special nuclear material, i.e., “access authorization” or a “security clearance.”

An individual is eligible for access authorization if such 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). Certain types of derogatory information raise a concern whether an individual can meet that standard. Id. § 710.8. The ultimate decision concerning eligibility is a comprehensive, common sense judgment based on a consideration of all relevant information. Id. § 710.7(a), (c). Such information includes the nature of the conduct at issue, the absence or presence of reformation or rehabilitation, and the impact of the foregoing on the relevant security concerns. Id. § 710.(7)(c).

The purpose of a hearing is to give an individual an opportunity to resolve any identified security concerns. 10 C.F.R. § 710.21. Thus, the burden is on the individual to present testimony or evidence to demonstrate that access authorization “will not endanger the common defense and security and will be clearly consistent with the national interest.” 10 C.F.R. § 710.27(a). This standard is designed to protect the national interest and thus differs from the standard applicable to criminal proceedings in which the prosecutor must prove guilt beyond a reasonable doubt.

In this case, the derogatory information is the Individual’s violation of a written commitment not to use illegal drugs while holding a DOE security clearance. That commitment is referred to as a “drug certification.” The violation of the drug certification is derogatory information under Criterion L, which concerns whether an individual is honest, reliable, and trustworthy. See 10 C.F.R. § 710.8(l).

II. Background

In 1994, the Individual applied for a job at a DOE facility, which required a security clearance. At that time, the Individual reported a history of illegal drug use, beginning in the 1970s and ending in the early 1980s (hereinafter the past use). As a condition to the grant of his clearance, the Individual signed a drug certification.

In 1999, the Individual was considered for an upgraded security clearance. In the Individual’s April 1999 security questionnaire, he reported that, in June 1997, he had used marijuana four times. A DOE security specialist interviewed the Individual. After the interview, the DOE notified the Individual that his reported June 1997 marijuana use violated his drug certification, thereby raising a concern under Criterion L whether he was honest, reliable and trustworthy. In response, the Individual requested a hearing.

The Individual does not dispute that the foregoing facts give rise to a Criterion L security concern. Instead, the Individual maintains that his reported June 1997 marijuana use was an isolated lapse attributable to a May 1997 diagnosis that he was suffering from hepatitis C and a related marital breakup. See 10 C.F.R. § 710.7(c).

Both DOE Counsel and the Individual submitted documents and presented witnesses at the hearing. At the hearing, DOE Counsel elicited testimony concerning the serious nature of the security concern arising from a violation of the drug certification. The Individual presented a number of witnesses to corroborate the circumstances surrounding his June 1997 marijuana use and his position that he is honest, reliable, and trustworthy. The Individual, who was not represented by counsel, posed questions to the witnesses to bring out relevant information. DOE Counsel also questioned those witnesses, eliciting testimony intended to emphasize the serious nature of the security concern at issue, as well as eliciting testimony relevant to the Individual’s mitigation arguments. As the foregoing indicates, the efforts of both parties contributed to a well-developed record.

III. The Evidence Presented

A. Documentary Evidence

The documentary evidence includes letters from the Individual’s primary care physician and the specialist who treated the Individual for hepatitis C (the treating specialist), the Individual’s medical records, as well as documents from the security background investigation conducted by the Office of Personnel Management in 2000 (the security background investigation).

The physician letters and medical documents confirm that, in May 1997, the Individual was diagnosed with hepatitis C, a life- threatening illness for which experimental interferon therapy had only a 15 to 20 percent cure rate. The documents also indicate that the Individual subsequently underwent interferon therapy and that the therapy was effective. The documents further indicate that, other than the Individual’s recent report to them concerning his June 1997 marijuana use, the physicians have no knowledge of any illegal drug use by the Individual.

The security background investigation interviews refer to the Individual’s illness, and the Individual’s former wife cites the impact of the illness on the Individual as a contributing factor to the breakdown of their marriage. The background investigation interviews also indicate that the interviewees were not aware of any illegal drug use by the Individual, other than what he told them about his past use.

The security background investigation documents also indicate that the breakdown of the Individual’s marriage was followed by a lengthy and bitter custody battle, but that the disputes between the Individual and his former wife have now been resolved.

B. The Testimony at the Hearing

Ten witnesses testified at the hearing. They were: the security specialist, the Individual, the Individual’s wife, the Individual’s former wife, the Individual’s former father-in-law, three friends, and two supervisors.

1. The security specialist

The security specialist testified about the security concern and her assessment of the mitigating circumstances. Transcript of Hearing (Tr.) at 31-41.

With respect to why a violation of the drug certification raises a security concern, the security specialist explained:

When an individual signs a drug certification indicating that he or she will not use drugs even once in the future while holding a DOE clearance, and that individual breaks that promise even once, DOE then has a stance that they no longer can trust that individual . . . .

Tr. at 36. The security specialist further indicated that trust is at the heart of granting an individual a clearance and, therefore, that a violation of trust is taken very seriously. Tr. at 36. This view was reiterated by one of the Individual’s supervisors. Tr. at 60.

With respect to the Individual’s explanation of the June 1997 marijuana use, the security specialist stated that she believed that the Individual was truthful about his marijuana use and his intention not to use illegal drugs in the future. See, e.g., Tr. at 37-38. She stated that the background investigation and reports did not disclose any illegal drug use, and she indicated that it was unlikely that the matter would have come to the DOE’s attention but for the Individual’s disclosure on his security questionnaire. Tr. at 34-35. When asked if the Individual attempted to “minimize or make excuses”, the security specialist answered, “No, he didn’t. I thought he was “very forthright, was very regretful about the incident.” Tr. at 40.

During the course of her testimony, the security specialist noted that mitigating factors included the fact that the Individual’s marijuana use was unrelated to a compromise of security, that the Individual brought the violation to the attention of the DOE when he reported it on his 1999 security questionnaire, and that the Individual renewed his commitment to the drug certification. Tr. at 34-35.

2. The Individual

The Individual testified about his June 1997 marijuana use. Tr. at 6-20. The Individual largely reiterated what he stated in his personnel security interview, i.e., that had used marijuana alone in his garage in June 1997. The Individual attributed the June 1997 marijuana use as a lapse related to his illness and the related breakup of his marriage. Tr. at 12-15. He described it as “a mistake that wouldn’t happen again.” Tr. at 17. When asked if he would relapse to marijuana use if he encountered highly stressful situations in the future, the Individual stated that he was “sure” that he would not, indicating that he had “learned a lesson.” Tr. at 101.

3. The Individual’s wife

The Individual’s wife testified about her knowledge of the Individual. Tr. at 79-84. The Individual and his wife met in 1998. Tr. at 80. Thus, the Individual’s wife did not know the Individual at the time of his June 1997 marijuana use.

The Individual’s wife stated that the Individual does not use illegal drugs. Tr. at 82. She stated her understanding that the June 1997 marijuana use was related to his illness and marital problems. Tr. at 83. She further stated that she believes that the Individual will not use illegal drugs in the future, and she expressed her own disapproval of illegal drug use. Tr. at 84.

Finally, the Individual’s wife stated that the Individual is honest and reliable. She testified, “I wouldn’t ever expect him to lie.” Tr. at 80. She summarized that the Individual is “a strong community person involved in the fire department and ambulance, EMT [emergency medical technician], great neighbor, good father, good husband, very honest person.” Tr. at 81.

4. The Individual’s former wife

The Individual’s former wife resides in California and testified by telephone. Tr. at 21-30. The Individual’s former wife was married and living with the Individual from 1985 until she left in July 1997.

With respect to the Individual’s June 1997 marijuana use, the Individual’s former wife stated that she did not know of the use at the time but she believes that it was an isolated incident. Tr. at 28. She referred to the “emotional and physical pain” that the Individual was going through at the time. Tr. at 28.

The Individual’s former wife also stated that the Individual “has always been honest.” Tr. at 23. She testified that on one occasion in a ski area parking lot she and the Individual discovered an envelope containing a large amount of cash, and she detailed the Individual’s successful efforts in returning the cash to its owner. Tr. at 22-24.

The Individual’s former wife further stated that the Individual helped others and contributed to the community. Tr. at 24-26. She stated that he was always willing to help a stranded motorist or someone in need. Tr. at 25. In addition, she stated that, as a volunteer, he obtained emergency medical technician training and worked in local search and rescue efforts. Tr. at 25 -26.

The Individual’s former wife indicated that the Individual is “extremely trustworthy,” and that the Individual’s isolated lapse would not recur. Tr. at 29. The Individual’s wife stated that the Individual is not facing the stresses he faced in June 1997, the Individual’s life is “back on track,” and that the Individual has a “supportive and wonderful” new wife. Tr. at 29.

5. The Individual’s former father-in-law

The Individual’s former father-in-law testified by telephone. Tr. at 42-50. The former father-in-law testified that he and the Individual had participated in a number of outdoor activities together such as fishing, hunting, and canoeing. Tr. at 43.

The Individual’s former father-in-law stated that he was surprised to hear the Individual had violated the drug certification. Tr. at 47-49. The former father-in-law indicated that he was not aware of any illegal drug use by the Individual other than some in the distant past, and he surmised that “it must have been some strange circumstances” that caused the illegal drug use at issue here. Tr. at 48.

The Individual’s former father-in-law also stated that the Individual was honest and law-abiding. Tr. at 45. The former father-in-law cited an example where the Individual reported himself to the game warden for unintentionally violating a hunting law. Tr. at 44-45. The former father-in-law stated that he and the Individual were on a hunting trip and found an elk skull and antlers and that the Individual took them home. When the former- in-law later heard from someone that taking those items violated a hunting law, the former-in-law told the Individual, who then reported the matter to the game warden. The former father-in-law testified that the incident shows that the Individual “didn’t want to do anything wrong.” Tr. at 45.

6. The Individual’s best friend

The Individual’s best friend testified. Tr. at 63-72. The Individual’s best friend is also a neighbor and is employed at the same DOE facility. Tr. at 63-64. The friend has known the Individual for eleven or twelve years. Tr. at 69. About seven years ago, the Individual became the friend’s neighbor, Tr. at 71, and they see each other regularly, an average of once a week, Tr. at 64. The friend testified that he and the Individual do a lot together - home improvement projects, sports, social activities, and church. Tr. at 63-65.

The friend stated that he has never known the Individual to use illegal drugs. Tr. at 69. The friend stated that the Individual expressed remorse with respect to the June 1997 marijuana use. Tr. at 70.

The friend stated that he trusts the Individual. Tr. at 70. The friend stated that Individual and his wife babysit for his children and that the Individual is free to come to his farm and borrow tools. Tr. at 64-66. Accordingly, the friend was supportive of restoration of the Individual’s clearance.

7. The Individual’s second friend

A second friend testified. Tr. at 73-79. The friend stated that he and the Individual are good friends and that he has known the Individual approximately two years. Tr. at 73, 77. The friend stated that he sees the Individual frequently: they scuba dive and rock climb together, and sometimes the friend spends the weekend at the Individual’s home, helping him with home improvement projects. Tr. at 74, 78. The friend recently became the Individual’s supervisor in his uncleared job at the DOE facility. Tr. at 73.

The friend stated that he would not associate with anyone who uses illegal drugs and he has never known the Individual to use illegal drugs. Tr. at 76. The friend stated that the Individual’s June 1997 marijuana use was “out of character.” Tr. at 76.

The friend stated that the Individual was honest and that he trusts the Individual. Tr. at 75-77. The friend cited the buddy system in scuba diving and rock climbing as situations requiring great trust. Tr. at 74-75.

The friend stated that the Individual follows all workplace security and administrative rules, stating that he “has never seen anything that would make [him] believe that the Individual would be a security risk.” Tr. at 77.

8. The Individual’s third friend

The Individual’s third friend is also a neighbor who lives approximately one-half mile from the Individual. Tr. at 93-101. The friend stated that he has known the Individual for approximately seven years and sees him approximately a couple of times a week. Tr. at 96.

The friend stated that he has never known the Individual to use illegal drugs. Tr. at 95-96.

The friend described the Individual as a good neighbor:

Yes, I consider you a very good neighbor, just good people to start out with, helpful, not only towards me but to any of the other neighbors, or anybody that needs any help or anything, that you’ve offered to help.

Tr. at 93. The friend described the Individual’s service as an emergency medical technician in the fire department as a real asset to the community. Tr. at 99.

The friend stated that the Individual was honest, reliable and trustworthy. DOE Counsel asked the friend whether the Individual’s violation of the drug certification surprised him, and the good friend responded:

A. Yes, it does, it really does.

Q. If he gave you his word about something, would you believe he would stick with it?

A. Yes, I do. He’s just not that kind of guy, in my opinion. He’s honest and trustworthy, from my experience.

Tr. at 95-96. In response to a question for specific incidents in which the Individual was particularly honest or trustworthy with the friend, the friend testified:

I guess the way I look at it, it’s just everyday life and the experiences of being around him and the type of person. He has never lied to me or done anything to make me think different.

Tr. at 97. The friend described the Individual’s reputation in the community as “tops.” Tr. at 97.

9. The Individual’s supervisors

Two supervisors testified, see Tr. at 50-62. and Tr. 85-92.

The first supervisor testified that the Individual was “very competent.” Tr. at 56. She stated that believed that “supervisors have been happy with the quality of his work, and he gets along well with other people.” Tr. at 56. With respect to security, she stated that she did not know of any security violations. With respect to other rules, she stated that the group has “never had problems” with the Individual and that he’s “always been very responsive” with respect to safety and administrative issues. Tr. at 62. With respect to the Individual’s violation of the drug certification, she stated that she “would not have expected it” and that an individual’s violation of the drug certification raises “real concerns.” Tr. at 59.

The second supervisor supervised the Individual directly for three years - until the Individual’s clearance was suspended and he was moved to an uncleared position. Tr. at 85, 90. The supervisor stated that his mother had rented her house to the Individual some time ago. Tr. at 90. The supervisor indicated that he was unaware of any use of illegal drugs other than the June 1997 incident reported to him by the Individual. Tr. at 91. He indicated that he believed the Individual’s explanation that the use was related to his illness, and that he did not expect that the Individual would use illegal drugs in the future. Tr. at 91. In response to the question whether the Individual was honest, reliable and trustworthy, the supervisor testified, “Well, all my dealings with [the Individual] during the time that I know [him] is that he has been all of the above.” Tr. at 89. The supervisor stated that on a scale of 1 to 10, he would rate the Individual a 9 or 10 and that he was anxious to have the Individual back. Tr. at 85, 87. (1) With respect to the Individual’s violation of the drug certification, the supervisor testified that the Individual had never broken any agreements with him and that he “wouldn’t expect any broken agreements in the future.” Tr. at 92.

IV. Analysis

A. The Security Concern

As mentioned above, it is undisputed that the Individual used marijuana in June 1997, thereby violating his 1994 drug certification. Indeed, the DOE relies on the Individual’s disclosure of that use on his 1999 personnel security questionnaire as the basis for the violation.

As the security specialist testified, violation of the drug certification is very serious. When an individual violates the drug certification, the individual breaks a commitment to the DOE, which then casts doubt on whether the DOE can trust the individual. Accordingly, I now turn to whether this serious security concern has been resolved.

B. The Mitigating Circumstances

Under Part 710 regulation, the decision as to eligibility for access authorization is a comprehensive, common sense judgment that the grant of 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). Under the regulations, relevant factors include the seriousness of the conduct, the motivation for the conduct, and the likelihood that the conduct will recur. Id. § 710.7(c).

I am aware of only four cases in which an individual who has violated the drug certification has been granted a security clearance. Those cases are: Personnel Security Hearing, VSO-0394, 28 DOE ¶ 82,781 (2001); Personnel Security Hearing, VSO-0307, 27 DOE ¶ 82,837 (2000); Personnel Security Hearing, VSO-0136, 26 DOE ¶ 82,778 (1997); Personnel Security Hearing, VSO-0045, 25 DOE ¶ 82,774 (1995). In each of these cases, the individual established that the particular circumstances of the case warranted a conclusion that, despite the individual’s violation of the drug certification, the individual was honest, reliable, and trustworthy.

I believe that two factors explain the small number of cases in which individuals who violate the drug certification are granted a clearance. The first is that many cases involving a violation of the drug certification also involve concerns of current drug use and falsification. The second is that violation of the drug certification is a breach of trust, which is very difficult to mitigate.

With the seriousness of the security concern in mind, I have carefully considered the evidence submitted in this case. As explained below, I believe that the Individual has brought forward sufficient evidence to resolve the concern arising from his violation of the drug certification.

As an initial matter, I note that it is undisputed that the Individual’s reported June 1997 marijuana use (alone, in his garage) was unrelated to any compromise of security.

The Individual has established that his violation of the drug certification was limited to the reported June 1997 use. The DOE security specialist believed the Individual’s explanation in the personnel security interview. I believed that the Individual testified honestly at the hearing. The Individual brought forward corroborating witnesses including family, friends, and supervisors. From the testimony, I concluded that the Individual spends much of his non-work time with family and friends, engaging in a wide variety of physical activities, including home improvement projects and outdoor recreational activities such as hunting, fishing, canoeing, scuba diving, and rock climbing. All of the family and friends expressed disapproval of illegal drug use and indicated that they did not believe that the Individual used illegal drugs. Accordingly, I believe that the Individual has sufficiently corroborated his assertion that his violation of the drug certification was limited to his reported June 1997 use.

The Individual has demonstrated unusual mitigating circumstances surrounding his June 1997 violation of the drug certification. The Individual brought forward extensive corroborating evidence to support his assertion that, at the time of the June 1997 violation, he was suffering from a life-threatening illness and that, partly as a result, his marriage was disintegrating.

The Individual has demonstrated reformation and rehabilitation. With respect to reformation, the Individual reported the violation on his 1999 personnel security questionnaire, and the Individual has expressed remorse. With respect to rehabilitation, the Individual has shown that the problems associated with the June 1997 marijuana use are resolved: the Individual has undergone successful treatment for his illness and has resolved all matters with his former wife and is happily remarried. In addition, the Individual has recognized that his prior problems do not excuse his illegal drug use, and he has expressed a commitment not to use illegal drugs in the future, regardless of what stressful situations might arise. Moreover, it has been two years since the Individual disclosed the matter to the DOE, and the Individual has brought forward a variety of witnesses who know him well and have testified that he is honest, reliable, and trustworthy. This testimony is consistent with the fact that the Individual reported his June 1997 marijuana use, despite the unlikelihood that it would otherwise have come to the DOE’s attention. My ultimate assessment is that the unusual and highly stressful circumstances associated with Individual’s violation of the drug certification, the Individual’s rehabilitation from those circumstances, the Individual’s disclosure of his violation to the DOE two years ago, and the testimony concerning the Individual’s honesty, when taken together, show reformation and rehabilitation from the Individual’s violation of the drug certification violation.

Based on the foregoing, I believe that the Individual has resolved the Criterion L concern arising from his violation of the drug certification. Accordingly, I have concluded that a grant of access authorization “will not endanger the common defense and security and will be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). For that reason, I recommend that the Individual be granted access authorization.

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 the 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, 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 within 20 days of receipt of the statement.

Janet N. Freimuth

Hearing Officer

Office of Hearings and Appeals

Date: June 15, 2001

(1)This assessment is consistent with the supervisor’s August 2000 formal evaluation of the Individual’s performance, which assigned the highest rating for each criteria.