Case No. VSO-0448, 28 DOE ¶ 82,816 (H.O. Fishman August 17, 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 17, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: March 30, 2001

Case Number: VSO-0448

This Opinion concerns the eligibility of XXXXXXXXXXXXXX (the Individual) to retain a DOE access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.” The Department of Energy (DOE) suspended the Individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony in this proceeding, the Individual's access authorization should be restored. For the reasons stated below, it is my opinion that the Individual's access authorization should not be restored.

I. BACKGROUND

In October 2000, the Individual reported on a Questionnaire for National Security Position (QNSP) that he had illegally used marijuana in 1996. In two previous QNSPs, dated May 1999 and May 2000, the Individual indicated that he had not used illegal drugs during the previous seven years. DOE Exhibit Nos. 9 and 10 at 8. The local DOE Security Office subsequently conducted a Personnel Security Interview (PSI) with the Individual on January 30, 2001. See DOE Exhibit 6. Because of the concerns raised by the Individual’s marijuana use and his failure to disclose his use, access authorization was suspended. See 10 C.F.R. § 710.9. The DOE then issued a letter notifying the Individual that information the DOE possessed created a substantial doubt concerning his eligibility for access authorization. See March 5, 2001 Letter from Director, Personnel Security Division, to Individual (March 5, 2001 Notification Letter); 10 C.F.R. § 710.21.

The March 5, 2001 Notification Letter specifies three areas of derogatory information described in 10 C.F.R. § 710.8. First, the Notification Letter charges that the Individual has “deliberately misrepresented, falsified, or omitted significant information from a [QNSP] and written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization.” March 5, 2001 Notification Letter, Attachment at 1; 10 C.F.R. § 710.8(f) (Criterion F). The Notification Letter also charges that the Individual “has trafficked in, possessed, used, or experimented with a drug or other substance listed in the Schedule of Controlled Substances established pursuant to Section 202 of the Controlled Substances Act of 1970.” March 5, 2001 Notification Letter, Attachment at 1; 10 C.F.R. § 710.8(k) (Criterion K). Finally, the Notification Letter charges that the Individual “has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable, or trustworthy; or which furnished 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.” March 5, 2001 Notification Letter, Attachment at 1; 10 C.F.R. § 710.8(l) (Criterion L).

The Individual filed a request for a hearing. This request was forwarded to the Office of Hearings and Appeals, and I was appointed Hearing Officer. A telephone conference and Hearing were subsequently held pursuant to 10 C.F.R. § 710.25(f) and (g). At the Hearing, the DOE Counsel presented three witnesses: the Individual, the Individual’s supervisor, and the Personnel Security Specialist. The Individual was represented by an attorney and called four witnesses, all friends. As discussed below, the Individual has not convinced me that restoring his security clearance would not endanger the common defense and would be clearly in the national interest.

II. STANDARD OF REVIEW

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency and the Individual, and to render an opinion based on that evidence. See 10 C.F.R. § 710.27(a). The regulations state that the access authorization decision “is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.7(a). I have considered the following factors in rendering this Opinion: the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; the Individual's age and maturity at the time of the conduct; the voluntariness of the Individual's participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct, the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. See 10 C.F.R. §§ 710.7(c), 710.27(a).

III. CONCLUSIONS OF LAW AND FINDINGS OF FACT

Using Illegal drugs and later lying about it raise serious security concerns because they may reflect an inability to safeguard classified information and special nuclear material. False statements made 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) (terminated by OSA, 2000).

When an individual becomes involved with illegal drugs, that individual exhibits an unacceptable and disturbing disregard for laws prohibiting their use. Such disregard for the law raises concerns that the Individual may similarly disregard other laws, including those which protect classified information and special nuclear materials. See Personnel Security Hearing (Case No. VSO-0116), 26 DOE ¶ 82,765 at 85,602 (1997) (citing Personnel Security Hearing (Case No. VSO-0013), 25 DOE ¶ 82,752 at 85,512 (1995)). Further, the use of illegal drugs (and the disregard for law and authority that such use suggests) indicates a serious lapse in judgment and maturity. Involvement with illegal drugs may also render the user susceptible to blackmail or coercion. The concerns raised by an individual’s illegal drug use are heightened when the drug use occurs while the Individual maintains a DOE security clearance, since avoiding illegal drug use is a requirement of both the DOE's safety and security regulations. Moreover, in light of the DOE’s policies against any involvement with illegal drugs, any illegal drug use by an individual who maintains a DOE access authorization evidences poor judgment. Personnel Security Hearing, Case No. VSO-0289, 27 DOE ¶ 82,823 (1999) (citing Personnel Security Hearing, Case No. VSO-0023, 25 DOE ¶ 82,761 at 85,579 (1995)).

Criterion F

The Local Security Office asserts that the Individual deliberately “misrepresented, falsified, or omitted significant information from a [QNSP] and written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization.” DOE Ex. No. 1, Attachment 1 at 1; 10 C.F.R. § 710.8(f). The Local Security Office claims that the Individual falsified two QNSPs dated May 25, 1999, and May 2, 2000, when he stated that he had not used illegal drugs during the previous seven years or while holding a security clearance. Id. In addition, the Local Security Office claims that the Individual provided false information during his background reinvestigation in September 2000 by denying his marijuana usage to the investigator.(1) Id. The Individual does not dispute the fact that he lied on his QNSP.

The Individual asserts that he omitted the information because he felt it to be so insignificant that it did not warrant being divulged. Response to Notification Letter dated February 27, 2001. While the Individual claims that he just felt his use of marijuana was so insignificant that it didn’t warrant reporting, he eventually changed his mind. At the Hearing, the Individual’s attorney attempted to show that the Individual’s failure to answer the question on the QNSP could have been related to his Attention Deficit Disorder (ADD). The diagnosis was made based upon concerns regarding the Individual’s poor memory. Hearing Tr. at 25. Before he began taking his medication in 1998, the Individual had to be very careful and diligent completing his paperwork at work. Id. at 26. He testified that he now takes a drug, Ritalin, that has made it easier for him to complete forms without making as many mistakes. Id. at 30. However, the Individual also stated that completing the QNSPs was not affected by his ADD. Id. at 34. He knew what was being asked on the forms. Id. Given the Individual’s own testimony, I cannot find that ADD contributed to his falsifying the answers on his QNSP. I believe, and he has stated, that he knew he was lying on the forms, despite whether he believed the drug usage to be insignificant.

Providing false information on a QNSP is a serious matter. The DOE security program is based on trust. If an employee breaks a written promise to the DOE, that trust is violated. The Individual’s failure to report the marijuana use despite his statement on the QNSP that his “statements on this form, . . . , are true, complete, and correct to the best of my knowledge and belief and are made in good faith,” DOE Exhibit Nos. 8, 9, and 10 at 9, calls into question the Individual’s reliability and trustworthiness. In sum, the Individual has failed to mitigate the security concerns raised by his failure to respond honestly to the question on the QNSP concerning his illegal drug usage.

Criterion K

In the present case, I find that the Individual has presented sufficient evidence to resolve the security concern raised by his marijuana use under Criterion K. In considering whether to recommend restoring the DOE Security Clearance of an individual who has used marijuana, I find the following factors to be particularly significant: (1) the extent of the individual’s marijuana use, (2) whether the individual’s marijuana use results from an ongoing medical or psychiatric condition, (3) the length of time since the individual’s last use of marijuana, (4) the individual’s demonstrated commitment to avoiding future drug involvement, (5) whether the individual’s marijuana use violated a DOE Drug Certification, and (6) the circumstances under which the individual’s marijuana use came to the DOE’s attention. Personnel Security Hearing (Case No. VSO-0402), 28 DOE ¶ 82,787 (2001), aff’d (OSA April 20, 2001); Personnel Security Hearing (Case No. VSO-0321), 27 DOE ¶ 82,842 (2000), rev’d, 28 DOE ¶ 83,007 (OHA 2000), aff’d (OSA 2000)

The Individual’s actual marijuana use appears to have been brief. He states he first smoked a couple of puffs of marijuana in June 1996 on a hike. He states he smoked on two subsequent hikes, also in June 1996. He states he never provided the marijuana on the hike and declined all future offers after June 1996. The Individual stated that he knew he was violating DOE policy, but he continued to use marijuana. DOE Exhibit 6 at 11. However, the Individual stated at the Hearing that he has not used illegal drugs since June 1996 and there was no evidence to the contrary that he has. I believe the Individual drug use to be of a very limited duration, less than one month, and very limited use, a couple of puffs each of the three times.

My impression of the Individual, formed at the Hearing, is that he is a competent and dedicated employee who seems to recognize the seriousness and the significance of his drug use. He appears sincerely committed to avoiding future drug use. Further, the marijuana use was of a very short and limited duration. His use was not the result of an ongoing medical or psychiatric condition. He last used marijuana five years ago. Moreover, his use did not violate a DOE Drug Certification. More importantly, I am convinced that the Individual’s involvement with marijuana was limited. He was candid and reliable at the Hearing. I therefore find that the Individual has mitigated the DOE’s security concerns with regard to Criterion K.

Criterion L

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 DOE’s security concerns under Criterion L are based largely upon the Individual's failure to report his marijuana use on three subsequent QNSPs. I find that DOE properly invoked Criterion L in suspending the Individual's clearance.

Lying on the QNSP is a serious matter. The DOE security program is based on trust. Similar to Criterion F, if an employee breaks a written promise to the DOE, that trust is violated. The Individual’s lengthy failure to report the marijuana use calls into question the Individual’s reliability and trustworthiness. I find that the Individual’s failure to report his drug use on the QNSP demonstrates his willingness to disobey the law. It causes me to conclude that he might not willingly abide by security regulations or safeguard classified information. 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 local DOE Security Office’s concerns under Criterion L.

IV. CONCLUSION

As explained in this Opinion, I find the Individual did mitigate the DOE’s Criterion K concerns regarding his marijuana use. However, he has not mitigated the concerns regarding Criteria F and L that he has engaged in unusual conduct and misrepresented, falsified, or omitted significant information from a QNSP on a matter relevant to a determination regarding eligibility for DOE access authorization. I am therefore unable to find that restoring 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 restored.

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

Janet R. H. Fishman

Hearing Office

Office of Hearings and Appeals

Date: August 17, 2001

(1)My review of the background investigation and the January 31, 2000 Personnel Security Interview (PSI) does not show that the Individual was asked about his marijuana use. DOE Exhibit 6; Individual Exhibit A. A reading of the PSI transcript indicates that the PSS assumed that the Individual had been asked about his drug usage. I do not believe there is sufficient evidence to show that the Individual lied during a background investigation. However, this does not affect the outcome of my Opinion that the DOE properly invoked Criterion F and the Individual did not sufficiently mitigate the concern in regard to his lying on his QNSPs.