Case No. VSO-0442, 28 DOE ¶ 82,815 (H.O. Cronin August 6, 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.

August 6, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing:March 21, 2001

Case Number:VSO-0442

This Opinion concerns the eligibility of XXXXXXXXXXX (the Individual) to receive an 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.” (1) The Manager of a Department of Energy (DOE) Operations Office, pursuant to the provisions of Part 710, sent the Individual a notification letter stating that it was in possession of information creating a substantial doubt as to the Individual’s eligibility for an access authorization. Based on the record before me, I am of the opinion that the Individual’s application for access authorization should be granted.

I. Background

A. Procedural History

The Individual is an employee of a contractor at a DOE facility. The Individual’s employer requested that the Individual apply for an access authorization. As part of the process to obtain a security clearance, the Individual completed a Questionnaire for Sensitive Position (QNSP) on December 22, 1999. In the QNSP, the Individual stated that he had not used illegal drugs since the age of 16. (2) DOE Exhibit 6. After performing a background investigation on the Individual, the Operations Office conducted a Personnel Security Interview (PSI) with the Individual in August 2000 to resolve several concerns raised by information discovered by the investigation. During the PSI, the Individual admitted that he had used marijuana and stated that he had ceased using marijuana in March or April of 1999. DOE Exhibit 7 at 7, 19. This admission contradicted the information the Individual had provided in his QNSP. Further, the Individual admitted that he had deliberately provided a false answer to a question concerning illegal drug use in the QNSP. Id. at 25. Because the concerns raised by this and other derogatory information remained unresolved, the Individual was interviewed on October 17, 2000 by a DOE consultant psychiatrist (DOE Psychiatrist). The DOE Psychiatrist issued an evaluation to the DOE in which he concluded that the Individual did not suffer from any condition that could cause a significant impairment in judgement. See Individual Exhibit D at 2.

The Operations Office ultimately determined that two items of derogatory information created a substantial doubt about the Individual’s eligibility for an access authorization. Specifically, the Operations Office believed that Individual had deliberately falsified his answer in the QNSP concerning his use of marijuana. The Operations Office alleged that this type of derogatory information falls within the ambit of 10 C.F.R. § 710.8(f) (Criteria F). (3) Additionally, the Operations Office asserts that the Individual had engaged in a multi-year pattern of illegal behavior in using marijuana. Such conduct, according to the Operations Office, is encompassed by 10 C.F.R. § 710.8(l) (Criterial L). (4) Accordingly, the Operations Office obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

The administrative review proceeding in this case began with the issuance of a Notification Letter to the Individual. See DOE Exhibit 2; 10 C.F.R. § 710.21. That letter informed the Individual that information in the possession of the DOE created a substantial doubt concerning his eligibility for access authorization. The Notification Letter included a statement of that derogatory information and informed the Individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization. The Individual requested a hearing, and the DOE forwarded the Individual’s request to the Office of Hearings and Appeals (OHA). The Director of OHA appointed me as the Hearing Officer in this matter. At the hearing convened pursuant to 10 C.F.R. § 710.25(e) and (g), the Individual, two of the Individual’s supervisors and both of his parents testified. The DOE Counsel submitted 7 exhibits and the Individual submitted 8 exhibits for the record in this matter.

B. The Regulatory Standard for Hearing Officer Recommendations

Section 710.7(a) provides 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 C.F.R. § 710.7(a). In considering the question of the Individual's eligibility for access authorization, 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 rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuance or recurrence; and other relevant and material factors.

After consideration of all the relevant information in the record, I conclude for the reasons set forth in this Opinion that the concerns raised by the derogatory information regarding the Individual have been mitigated. Consequently, it is my opinion that the Individual’s access authorization should be granted.

II. Analysis

A. Security Concerns Cited Under 10 C.F.R. § 710.8(f)

In a Questionnaire for National Security Position (QNSP) dated December 22, 1999, the Individual answered “No” to the following question (Question No. 24a):

Since the age of 16 or in the last 7 years, whichever is shorter, have you illegally used any controlled substance, for example, marijuana . . . .

DOE Exhibit 6 at 2 (emphasis in original).

On August 31, 2000, the Operations Office conducted a Personnel Security Interview with the Individual. In the PSI, when asked about his consultation in December 1998 with a mental health professional, the Individual disclosed that he had used marijuana in the past and that his last usage of marijuana had been in March or April 1999. DOE Exhibit 7 at 7, 11, 19. The Individual went on to admit in the PSI that the reason he had answered Question No. 24a “No” was because “I didn’t figure it would look good on my, on my application.” Id. at 25. Given these facts, I find that the Individual deliberately provided an false answer in his QNSP to avoid being rejected for a security clearance. Consequently, DOE properly invoked Criterion F concerning the Individual’s answer in the QNSP.

The basis for the DOE security concerns is obvious. False statements by an individual in the course of an official inquiry regarding a determination of eligibility for DOE access authorization raise serious issues of honesty, reliability, and trustworthiness. The DOE security program is based on trust, and when a security clearance holder breaches that trust, it is difficult to determine to what extent the individual can be trusted again in the future. See e.g., Personnel Security Hearing (Case No. VSO-0013), 25 DOE ¶ 82,752 at 85,515 (1995)(affirmed by OSA, 1995); Personnel Security Hearing (Case No. VSO-0281), 27 DOE ¶ 82,821 at 85,915 (1999), aff’d, 27 DOE ¶ 83,030 (2000) (case terminated by OSA, 2000).

A finding of derogatory information does not, however, end the evaluation of evidence concerning the individual’s eligibility for access authorization. See Personnel Security Hearing (Case No. VSO- 0244), 27 DOE ¶ 82,797 (1999) (affirmed by OSA, 1999); Personnel Security Hearing (Case No. VSO-0154), 26 DOE ¶ 82,794 (1997), aff’d, Personnel Security Review (Case No. VSA-0154), 27 DOE ¶ 83,008 (1998) (affirmed by OSA, 1998). Cases involving verified falsifications are nonetheless difficult to resolve because there are neither experts to opine about what constitutes rehabilitation from lying nor security programs to achieve rehabilitation. Therefore, Hearing Officers must look at the statements of an individual, the facts surrounding the falsification and the Individual’s subsequent history in order to assess whether the individual has rehabilitated himself from the falsehood and whether granting or restoring the security clearance would pose a threat to national security. See Personnel Security Hearing (Case No. VSO-0327), 27 DOE ¶ 82,844 (2000), aff’d, Personnel Security Review, 28 DOE ¶ 83,005 (2000) (affirmed by OSA, 2000); Personnel Security Hearing (Case No. VSO-0418), 28 DOE ¶ 82,795 at 85,705 (2001). In the end, like all Hearing Officers, I must exercise my common sense judgment whether the Individual’s access authorization should be granted after considering the applicable factors prescribed in 10 C.F.R. § 710.7(c).

The essential issue regarding the Criterion F security concern in the present case is whether the Individual has brought forward sufficient evidence to demonstrate that he can now be trusted to be consistently honest and truthful with the DOE. In considering this question, I note, as discussed above, that the nature of the Individual’s falsifications was serious. Lying on a QNSP subverts the integrity of the access authorization process. Further, the Individual knowingly and voluntarily provided false information. The record also indicates that the Individual’s motive, in part, in falsifying the QNSP was self-serving.

Balanced against these considerations is, first, the Individual’s immaturity at the time he provided the false answer on the QNSP. Described below is the relevant testimony concerning the Individual’s maturity at the time he filled out the QNSP and his current level of maturity.

At the hearing, the Individual testified that he was 21 years old when he completed the QNSP. Transcript of Hearing (Tr.) at 20. He testified candidly about his falsification and said that there is no acceptable reason for him to have provided a false answer to Question 24a. Tr. at 20, 23. He went on to state that part of the reason he provided the false answer was that he did not want his supervisors to know about his prior marijuana use. Tr. at 20, 24. He also did not want to embarrass his father who currently works at the facility and works with his current supervisors. Tr. at 20, 24. He also thought that any of his conversations with the mental health professional would be confidential. Tr. at 20, 24. Further, he also believed at the time he filled out the QNSP that his conduct in using marijuana was not a serious matter and that he would not be caught. Tr. at 24-25. He also understands that his conduct in using marijuana and lying creates reasons for the DOE to question his basic honesty and that DOE cannot entrust security clearance to a person they could see as “untrustworthy, a drug user or a criminal.” Tr. at 24.

The Individual described how his life and attitudes have has changed since he began working at the facility. The Individual used marijuana from about the age of 15 and stopped using marijuana in March or April 1999. Tr. at 19. He would use marijuana with a group of his friends he knew from high school. Tr. at 25, 29. At this point in his life he really did not know what to do with his life and that “partying” was one of his activities. Tr. at 26. At the hearing, he stated that he believed that his marijuana use occurred during a “confused” time in his life and was an “immature thing to do.” Tr. at 25. However, eventually realized that he needed to “move on” and get a job. Tr. at 25, 26. His lifestyle was sapping his motivation and he decided to change his life. Tr. at 26-27. He stopped smoking marijuana shortly before he accepted his position at the DOE facility. Tr. at 25. This position was his first “career-type” job. Tr. at 20. The Individual now associates with a different group of friends and rarely sees the friends with whom he used marijuana. Tr. at 29. He now would not use marijuana again because marijuana use is illegal and the DOE requires its employees to be drug-free at all times. Tr. at 25.

The father of the Individual testified as to the changes his son has undergone. He testified that the Individual used marijuana extensively in the past and began smoking it at age 15 or 16. Tr. at 69. He believed that the Individual’s use of marijuana accelerated while he away from home attending a university. Tr. at 70. He testified that he believed that the Individual’s time away from home was difficult for the Individual. The Individual had financial problems and his grades were poor. Tr. at 70. In his opinion the Individual was disappointed with his university experience and he lacked an obvious career path. Tr. at 70. He stated that his and his wife’s trust of the Individual was low and they encouraged him to see a mental health professional for counseling. Tr. at 71. After a few sessions from December 1998 to February 1999, the Individual stopped seeing the mental health professional and the Individual told his father that he believed that he could resolve his problems himself. Tr. at 71. His father testified that while he and his wife were skeptical that the Individual could make changes in his life, they were encouraged by the changes the Individual began to make. The father testified that in March or April of 1999, the Individual stopped using marijuana. Tr. at 71. He then enrolled at a local community college and took several classes. Tr. at 71. The Individual’s father suggested that he apply for openings at the facility for radiological control technicians. Tr. at 71. The Individual’s grades improved and he subsequently, after extensive self-study, passed the examination for radiological control technicians and was offered employment at the facility. Tr. 71- 72, 78.

The Individual’s father testified that the Individual’s conduct at home changed after he returned from the university and started taking classes at the community college. The Individual began to talk to his father about issues such as careers and life. Tr. at 79. The Individual began to assist him and his wife in maintaining the house. Tr. at 79-80. The Individual now has his own apartment and is now financially responsible for himself. Tr. at 81. The Individual’s father also stated that the Individual no longer associates with his former friends who used marijuana and described two of the Individual’s current friends, stating that their conduct was excellent. Tr. at 80-81. The Individual’s father stated that he now has absolute faith in the Individual’s honesty and trustworthiness and would not have put his own reputation at risk by recommending that the Individual work at the facility where he works. Tr. at 76, 78. (5)

The Individual’s direct supervisor testified that the Individual is an excellent worker and would rate him the top third or quarter of the employees that he supervises. Tr. at 47-48. He also stated that the Individual had openly and honestly revealed to him the problem he was having in obtaining a security clearance due to the falsification. Tr. at 49. The supervisor believes that the Individual’s maturity has improved greatly since working at the facility. Tr. at 48. He attributes this to the influence having his first “adult, real-life job” and his exposure to older employees who have families. Tr. at 48. He testified that he has complete faith in the Individual’s honesty and trustworthiness. Tr. at 54, 55. As an example of the Individual’s trustworthiness, the supervisor cited an example from summer of last year where the Individual was given responsibility for operating a lab at the facility during unusual hours with very limited supervision. Tr. at 50. Additionally, he cited his assignment of the Individual to support a Department of Justice investigation concerning allegations concerning improper disposal of waste at a location within the site. Tr. at 53-54. He stated his belief that the Individual could be trusted with classified information. Tr. at 50-51.

Another of the Individual’s supervisors testified to affirmed his belief in the Individual’s honesty. The supervisor testified that the Individual informed him that there was a problem with his obtaining a clearance relating to his failure to admit to prior marijuana usage. Tr. at 37, 39-40. He believes that the Individual’s maturity level has increased since he was first hired. Tr. at 36. The supervisor would rate the Individual’s work ethic as “very good” and that he has excellent work attendance. Tr. at 35- 36. He believes that the Individual has learned a lesson from the consequences that have ensued as a result of his falsification. Tr. at 37. He has absolute faith in the Individual’s honesty and trustworthiness. Tr. at 44-45. As an example of the level of trust that he has in the Individual, he cited the example of the assignment of the Individual to the Department of Justice investigation. Tr. at 38; see Tr. at 53.

Another mitigating factor is the isolated nature of the falsification. The record only indicates one single incidence of falsification. The isolated incident must be considered against the backdrop of evidence about the Individual’s current honesty and trustworthiness, including the Individual’s two supervisors testifying that they had complete faith in the Individual’s honesty as a result of their experience in working with him.

Regarding the extent of the Individual’s falsification, the record indicates that the Individual concealed his prior marijuana use for approximately 9 months. (6) While it is not a case of long-term deception, neither is it so short that it can be dismissed as insignificant. See Personnel Security Hearing, (Case No. VSO-0440), 28 DOE ¶ ________ , (July 9, 2001) (extent of falsification lasting for six months); cf. Personnel Security Hearing, (Case No. VSO-0057), 25 DOE ¶ 82,786 (1996), aff’d, 25 DOE ¶ 83,009 (1996)(affirmed by OSA, 1996) (11-year period of concealment constituted lengthy pattern of dishonesty); Personnel Security Review, (Case No. VSA-0255), 27 DOE ¶ 83,022 (1999), reversing, Personnel Security Hearing, (Case No. VSO-0255), 27 DOE ¶ 82,801 (1999) (affirmed by OSA, 2000)(eight-year period of concealment reflects a lengthy pattern of dishonesty).

I also find that any potential for pressure, coercion, exploitation or duress regarding the falsification at issue has been resolved. Both of the Individual’s parents and both supervisors have been aware for some time of his prior marijuana usage and his falsification on the QNSP. Tr. at 38-39, 51. Almost all of the Individual’s close family is aware of his prior marijuana usage. Tr. at 68.

Lastly, I believe that the Individual now fully understands the seriousness of his falsification. This belief is based upon my observation of the Individual’s demeanor at the hearing. In his testimony, the Individual took full responsibility for his action in providing a false answer on the QNSP. He did not try to make excuses or shift responsibility to anyone. With regard to falsification concerns, I believe that taking responsibility for one’s actions along with establishing a pattern of honest and responsible behavior since the falsification occurred can be significant evidence of true reformation. The testimony of the Individual’s supervisors, who have worked with the Individual, on a day-by-day basis, convinced me that the Individual has conducted himself in an honest and responsible manner for the past 18 months. I was also impressed by the Individual’s father’s testimony as to the changes in his son regarding his honesty and trustworthiness. While family members may have a bias towards a relative, the father has candidly and unflinchingly testified as to his lack of trust in his son during the period in his life when he smoked marijuana. Additionally, because the father works at the same facility for a firm that is the contractor for his son’s employer, I believe that the father has a particular incentive in providing accurate testimony regarding his son.

After weighing all the evidence, it is apparent that the Individual, in the approximately 18 months since his falsification on the QNSP, has matured a great deal. He has now assumed the role of a responsible self-supporting adult. His view of the world and the responsibility that he has been given has changed drastically. Is his record of 18 months of honest and responsible behavior from the date of the QNSP to the hearing sufficient for me to conclude that he has demonstrated reformation from an isolated incident of falsification? I believe it is. I find on the basis of the record before me that the Individual has fundamentally changed from the immature youth that falsified an answer to his QNSP to a mature adult. Unlike individuals in a number of cases where I have acted as Hearing Officer, the Individual in this case has taken full responsibility for his actions. The Individual has testified that the administrative review process concerning his application for a clearance has been a life-changing experience. Tr. at 31. From his demeanor during the hearing, I find this testimony very believable.

On balance, I believe this is a close case because of the seriousness of the admitted falsification. See Tr. at 84. However, based on the Individual’s testimony and that of the Individual’s supervisors and parents, the relative immaturity of the Individual at the time of the falsification and the relatively isolated nature and limited duration of the falsification, I find that the Individual’s behavior in the past 18 months convinces me that he intends to comport himself in an honest and upright fashion. See Personnel Security Hearing, (Case No. VSO-0394), 28 DOE ¶ 82,781 (2001) (concerns regarding falsification found mitigated in light of the fact that falsifications were isolated events, individual had established her honest character and incidents giving rise to concern occurred 13 years ago). Consequently, I believe the Individual has mitigated the security concerns raised by his falsification.

B. Security Concerns Cited Under 10 C.F.R. § 710.8(l)

The DOE cites one item of derogatory information which it asserts falls under the ambit of Criterion L. When asked in his PSI why in the past he had smoked marijuana when he knew it was against the law, the Individual stated:

I guess I didn’t feel that it was that big a deal as they say it was. I guess, you know, I kinda thought it was a good thing. Uh, that’s probably why. I didn’t really I didn’t figure they’d ever catch me or anything. I just didn’t figure it was that, I just didn’t see it as being that big a deal.

DOE Exhibit 7 at 24. The Operations Office believes that his conduct in smoking marijuana constituted a multi-year pattern of illegal behavior. DOE Exhibit 2 at 7 (Notification Letter).

Clearly when someone chooses to disregard the law, his reliability for purposes of access authorization comes in question. If one can not be trusted to obey federal or state laws, questions are raised whether such a person can be entrusted to follow regulations concerning the handling of classified material or special nuclear materials. Consequently, I believe that the Operations Office properly invoked Criterion L regarding the Individual’s use of an illegal drug.

The record indicates that the Individual began to smoke marijuana at the age of 15. He stopped in March or April 1999 at which time he was 20 years old.(7) The Individual has testified that he would not use marijuana in the future because marijuana use is illegal and the DOE requires its employees to be drug-free at all times. Tr. at 25. The Individual has also submitted two drug test results, one taken when he began employment at the facility (December 1999) and one taken when he was referred to a DOE psychiatrist (October 2000). See May 30, 2001 letter from DOE Counsel to the Individual’s representative; May 31, 2001 facsimile to Richard Cronin, OHA Hearing Officer. Both reports indicate negative test results for all illegal drugs. The Individual also submitted a report from the DOE Psychiatrist which opined that

In that the patient has exhibited no further . . . changes in behavior such as . . . recurrent use of marijuana, I feel that this represents a true adjustment process. Given the high level of motivation the patient [the Individual] has both to do well in his job as well as maintain permanent changes in his life, I feel his prognosis at this time remains quite good.

Individual’s Exhibit D at 2.

The concern arising from the Individual’s use of marijuana, as stated in the Notification Letter, references the Individual’s multi-year pattern of illegal behavior. However, the pattern of behavior occurred when the Individual was 15 to 20 years old. Given the age of the Individual at the time he used the marijuana, I believe that the Individual’s lack of maturity played a role in this conduct despite the fact that the Individual knew that marijuana use was illegal. See Tr. at 25. As discussed in the previous section, I believe that the Individual has matured and is committed to living a honest and trustworthy manner. This commitment is substantiated by the DOE Psychiatrist’s opinion, the drug test evidence indicating that the Individual has not used marijuana for over two years as well as the testimony of the Individual’s supervisors and parents. Given the evidence in the record, I believe that the Individual has reformed and is committed to fulfilling all the responsibilities that holding a security clearance entails. Consequently, I find that the Individual has mitigated the Criterion L security concerns arising from his prior use of marijuana.

III. Conclusion

In the final analysis, I am called upon to decide whether the Individual has demonstrated that granting his access authorization is clearly consistent with the national interest. After due deliberation that included carefully weighing all the evidence, both favorable and unfavorable, and consideration of the relevant regulations it is my common-sense judgment that the Individual’s access authorization should be granted. I find that granting the Individual an 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(a).

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'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. 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 C.F.R. § 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, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874-1290

Richard A. Cronin, Jr.

Hearing Officer

Office of Hearings and Appeals

Date: August 6, 2001

(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). Such authorization will be referred to variously in this Opinion as access authorization or security clearance.

(2)The question specifically asked “[s]ince the age of 16 or in the last 7 years, whichever is shorter, have you illegally used any controlled substance . . . .” DOE Exhibit 6 at 2 (emphasis in original). In the Individual’s case, the age of 16 is the shorter period.

(3)Criterion F refers to information indicating that an individual has “[d]eliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions . . . .” 10 C.F.R. § 710.8(f).

(4)Criterion L refers to information indicating that an individual has “[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable or trustworthy . . . .” 10 C.F.R. § 710.8(l).

(5)The Individual’s mother’s testimony was in accord with the father’s testimony concerning the Individual and his background and the maturity level of her son.

(6)I note that during the PSI the Individual voluntarily disclosed his prior marijuana usage, specifically, when asked about what he had discussed with his mental health professional. DOE Exhibit 7 at 7. At the time of the PSI, the Operations Office apparently had not obtained the records of the mental health professional. Id. at 25. However, I cannot credit the voluntariness of the Individual’s disclosure as a mitigating factor in this case since there is a possibility that the Individual’s disclosure may have been motivated in part by the realization that the Operations Office could have obtained the mental health professional’s records. See Tr. at 20, 24 (one reason why Individual failed to disclose marijuana use in QNSP was belief that his counseling records would remain private).

(7)Based upon the Individual’s testimony as to the date of his birthday, I have concluded that when he stopped smoking marijuana he would have been 20 years old. See Tr. at 19.