* 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.
July 2, 2002
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALSHearing Officer’s Decision
Name of Case: Personnel Security Hearing
Date of Filing: November 13, 2001
Case Number: VSO-0503
This Decision concerns the eligibility of XXXXXXXX (the individual) for continued access authorization (1) 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 individual’s access authorization was suspended by one of the Department of Energy’s (DOE) Operations Offices. Based on the record before me, I have determined that the individual’s access authorization should not be granted.
I. Background
The individual is employed at a DOE facility where his work requires him to have an access authorization. The local DOE security office issued a Notification Letter to the individual on October 15, 2001. The Notification Letter alleges under 10 CFR § 710.8(f) that the individual has “deliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire or a Questionnaire for Sensitive National Security Positions.” It also alleges under 10 CFR § 710.8(k) that the individual “has trafficked in, sold, transferred, possessed, used, or experimented with a drug or other substance.” In addition, the Notification alleges 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 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 CFR § 710.8(l).
The security concerns in the Notification Letter are based on the following factual allegations: In 1998, as part of a routine background investigation of the individual, the individual completed a Questionnaire for National Security Positions (QNSP). On Question 23 Part 2 of the QNSP, which inquired about whether the individual had any “Police Record,” the individual checked “Yes.” When asked to explain his “Yes” answer on this question, the individual cited only two arrests which occurred in 1995 and 1996, and wrote “Various Misdemeanors *Specific Info Unknown.” The Notification Letter cited 11 other charges and arrests attributed to the individual which the individual does not dispute. The individual also stated in a 1999 Personnel Security Interview (PSI) that the last time he smoked marijuana was in 1996. However, the individual had a positive drug screen in 1999. In addition, the Notification Letter cites various drug-related arrests and charges which support the DOE’s charge that the individual has used drugs. In further support of this charge, a DOE consultant psychiatrist concluded that the individual has had “an illness or mental condition which causes or may cause a significant defect in judgment or reliability,” specifically Polysubstance Abuse. The DOE considered all of these factual incidents in support of its charge 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.
Because of these security concerns, the case was referred for administrative review. The individual filed a request for a hearing on the concerns in the Notification Letter. DOE transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA), and the OHA Director appointed me as the Hearing Officer in this case.
At the hearing that I convened, the DOE Counsel called one witness, a DOE consultant psychiatrist. The individual’s counsel called two witnesses: the individual and the individual’s wife. The DOE submitted a number of written exhibits prior to the hearing, and the individual submitted one exhibit prior to the hearing and one exhibit during the hearing.
II. Standard of Review
The applicable DOE regulations state 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 or continuation of access authorization will not endanger the common defense and security and is clearly consistent with the national interest.” 10 CFR § 710.7(a). In resolving questions about the individual’s eligibility for access authorization, I must consider the relevant factors and circumstances connected with the individual’s conduct. These factors are set out in § 710.7(c):
the nature, extent, and seriousness of the conduct; the circumstances surrounding his conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of participation; the age and maturity of the individual at the time of the conduct; 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; and the likelihood of continuation or recurrence.
A DOE administrative review proceeding under 10 CFR Part 710 is authorized when the existence of derogatory information leaves unresolved questions about an individual’s eligibility for access authorization. A hearing is “for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization.” 10 CFR § 710.21(b)(6). Once DOE has presented derogatory information affecting an individual’s eligibility for access authorization, the individual must come forward with evidence to convince the DOE that restoring his access authorization “will not endanger the common defense and security and is clearly consistent with the national interest.” 10 CFR § 710.7(a). See, e.g., Personnel Security Hearing (Case No. VSO-0013), 24 DOE ¶ 82,752 at 85,511 (1995), and cases cited therein. For the reasons discussed below, I do not recommend granting this individual’s access authorization.
III. Findings of Fact
The individual admits the allegations in the Notification Letter. During the hearing, the individual attempted to present evidence to mitigate the security concerns in the Notification Letter, and this Decision will focus primarily on whether the individual met his burden of showing that granting his access authorization is warranted under 10 CFR Part 710. I will begin with a description of the events that gave rise to the security concerns to provide a context in which to consider the evidence of mitigation.
The record indicates that the DOE’s concerns first surfaced as a result of the individual’s answers to Question 23 on a 1998 QNSP. DOE Exhibit 6. Question 23 on the QNSP queried about the individual’s police record. Specifically, Question 23 (A) asked, “have you ever been charged with or convicted of any felony offense” and the individual checked “yes.” Id. Question 23 (D) asked, “have you ever been charged with or convicted of any offenses related to alcohol or drugs” and the individual checked “yes” to that question as well. Id. Next, Question 23 (F) asked “whether in the preceding seven years you had been arrested for any other offenses” and the individual also checked “yes” to that question. Finally, the QNSP asked the individual to explain any of his “yes’ answers. In response, the individual only listed two arrests, one for Possession of a Controlled Substance in 1995, and another arrest for Simple Possession in 1996. However, based on the individual’s background investigation and other information gathered in the individual’s security file, the DOE became aware of many other charges and arrests which the individual did not divulge on his QNSP. The Notification Letter cited the following 11 arrests and charges that were omitted from the questionnaire:
- December 30, 1976 - Charged with Armed Robbery
- March 15, 1979 - Arrested for Drunk and Disorderly
- January 8, 1980 - Charged with Violation of State Parole
- January 24, 1989 - Charged with Second Degree Burglary
- August 11, 1981 - Charged with two counts of Breaking into an Automobile
- March 14, 1983 - Arrested for Assault and Battery and Aggravated Assault
- July 7, 1987 - Charged with Second Degree Burglary and Petty Larceny
- January 11, 1990 - Charged with Assault
- April 12, 1991 - Charged with Assault
- April 11, 1992 - Charged with Violation of Probation
- July 7, 1995 - Arrested for Vandalism and Driving on a Revoked License
Id.
The record also reflects that during a 1999 Personnel Security Interview (PSI), the individual stated that he last smoked marijuana in 1996. Hearing Transcript (Tr.) at 25. However, the individual acknowledged testing positive for marijuana in 1999. He states that he did not actually smoke marijuana but was exposed to it during a trip to Kentucky. Id. at 27. He further acknowledged having smoked marijuana for about twenty-three years prior to 1996. In addition, the individual admitted to smoking cocaine, although not as frequently, in the early nineties. Id. at 35.
On September 17, 1999, a DOE consultant psychiatrist evaluated the individual and concluded that the individual had an illness which causes or may cause a significant defect in his judgment and reliability. DOE Exhibit 9. The DOE consultant psychiatrist specifically concluded that the individual has suffered from Polysubstance Abuse, which is defined as abuse of more than one substance, usually alcohol and drugs or alcohol and a variety of drugs. Tr. at 58. However, the DOE consultant psychiatrist further concluded that there are some indications that the individual was in remission. He stated that “while a diagnosis of substance abuse would be appropriate for [the individual’s] activities during most of his adult life, there does appear to be a change in his life over the last three years.” DOE Exhibit 9 at 4. He further opined that while he ordinarily feels more comfortable when a period of five years has elapsed since the last substance-related difficulty, it is quite possible that the individual has reformed and is embarking on a new lifestyle. Id.
IV. Analysis
A. Security Concerns Cited Under 10 C.F.R. § 710.8(f)
As noted earlier in this Decision, part of the derogatory information in this case arises from the individual having omitted information on the QNSP he executed on November 3, 1998. The individual disputes that he deliberately omitted or misrepresented information concerning his police record on this QNSP.
False statements or misrepresentations 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), 25 DOE ¶ 82,752 (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). Criterion F applies, however, only to misstatements that are “deliberate” and involve “significant” information. 10 C.F.R. § 710.8(f). Based on the record before me, I find that the individual deliberately omitted significant information in his QNSP to avoid being rejected for a security clearance. Consequently, DOE properly invoked Criterion F when it denied the individual’s security clearance.
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 or misrepresentations 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 misrepresentation and the individual’s subsequent history in order to assess whether the individual has rehabilitated himself from the falsehood and whether 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 (2001). In the end, as a Hearing Officer, 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).
Mitigation of Criterion F
The key issue in this 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 found that the nature of the individual’s misrepresentations and omissions was serious. Omitting information that forms the basis for determining eligibility for a security clearance subverts the integrity of the access authorization process. The DOE must rely on individuals who are granted access authorization to be honest and truthful; this important principle underlies the criterion set forth in 10 C.F.R. § 710.8(f). This principle has been consistently recognized by DOE Hearing Officers. See e.g., Personnel Security Hearing (Case No. VSO-0281), 27 DOE ¶ 82,821 at 85,915 (1999).
At the hearing, the individual was asked why he did not list the other numerous charges on his QNSP:
Q: Why did you not list these charges on your questionnaire?
A: The reason I did not is I must have misread it because I thought it said a certain amount of fine, if it was just fine, that was my understanding and my wife’s also, I believe, and all I have got is a GED and I got it in prison. And I’m not a very intelligent person as far as paperwork and she does all my paperwork for me. And that is why we did that. Our understanding was that a certain amount of the fine to be listed and I did turn in a copy of my police record with my questionnaire here when I turned it in to the company that I filed for this clearance.
Q: Let me ask you a question, [the individual], and I don’t want to overemphasize this, but if you look at Question 23 A, it asked have you ever been charged with or convicted of any felony offense. How would you interpret after reading that question that unless you received a fine that you didn’t have to list the charge?
A: Like I said, I just misunderstood it. I got fined but, like I said, sir, I just must have, I don’t know. It was not intentionally to be lying because I knew I was going to be interviewed and all that. I didn’t do it to intentionally lie.
Tr. at 25-26.
During the hearing, the individual was further questioned about the last time he smoked marijuana. The individual responded to the following:
Q: During the 1999 Interview you told the personnel security representative that you last smoked marijuana in 1996, is that correct?
A: Yes, Sir.
Q: Do you recall on topic during the 2001 interview concerning a positive drug test that you had incurred around May of 1999?
A: Yes, Sir.
Q: You do acknowledge the test was positive for marijuana?
A: Yes, Sir.
Tr. at 25-26.
The individual stated that the reason he received a positive drug test was that he was exposed to second-hand smoke, and that he did not actually smoke any marijuana. Id. at 26. He specifically explained that he went on a trip to Kentucky with some of his brothers and a friend. Id. He further explained that he stayed in a motel with his traveling companions for two days and two nights. During the course of the entire trip, the individual indicated that his brothers and friend smoked marijuana pretty frequently. Id. at 27. However, he maintains that they smoked the marijuana and he was only exposed to the smoke. Finally, the individual maintains that the last time he smoked marijuana was in 1996.
After considering all the evidence before me, I believe that the individual has failed to mitigate the concerns raised by his omissions or misrepresentations on his QNSP, and his positive drug screen in 1999. First, the record reflects that since 1979, the individual has been charged or arrested for a total of 14 times; four of those arrests were drug-related, several were for burglary and various other arrests for violent acts. I find this criminal record to be very troubling. I am not convinced that the individual simply misunderstood Question 23 of the QNSP. His interpretation of Question 23 (A) that he did not have to list the charge unless he received a fine is just not credible. In the space allotted to explain his “Yes” answers to Question 23, there is no mention of the term “fine.” In addition, the individual’s testimony that his wife does all of his paperwork for him is no excuse. The individual is accountable for his own actions. He signed his QNSP and is fully responsible for the accuracy of his answers. Furthermore, the individual’s testimony that he only received a GED in prison does not excuse him from omitting information on his QNSP. While the individual maintains that he did not deliberately omit information on his QNSP, I am not convinced by his testimony at the hearing that he has established his truthworthiness. Likewise, the individual’s explanation regarding his testing positive for marijuana in 1999 is also implausible. His testimony that he tested positive because he was exposed to second-hand smoke while on a trip to Kentucky with his brothers and a friend is suspect in light of the fact that he tested positive for marijuana approximately a week later. See Personnel Security Hearing, Case No. VSO-0051, 25 DOE ¶ 82,784 (1995) (two scientific witnesses presented by DOE opined that passive inhalation could not have produced the positive marijuana results in this case), aff’d, 25 DOE ¶ 83,012 (1996). I do not believe the individual was sufficiently forthcoming in his testimony. In addition, the individual did not present any corroborative evidence to bolster his explanation of his positive drug test, nor does the record contain any other reasonable exculpatory explanation for the positive drug test. A mere explanation from the individual is simply not enough to mitigate this security concern. In sum, the individual’s omissions and misrepresentations are related to legitimate security concerns. Accordingly, I find that the individual has failed to mitigate the security concerns raised by Criterion F.
B. Security Concerns Cited Under 10 C.F.R. § 710.8(k)
The individual’s use of illegal drugs is undisputed. The individual began using marijuana at the age of 13. He stated that he began using cocaine in the early nineties and has experimented with other drugs on occasion. The individual’s use of drugs has led to his incurring various drug-related criminal charges. He acknowledged that “basically everything I was charged with I was on some type of, probably marijuana or alcohol.” Tr. at 30. In addition, the individual was evaluated by a DOE consultant psychiatrist in September 1999. The DOE consultant psychiatrist was asked whether the individual has an illness or mental condition which causes or may cause a significant defect in his judgment or reliability. The DOE consultant psychiatrist concluded that the individual has had Polysubstance Abuse, but there were some indications that it may be in remission. Although the DOE consultant psychiatrist stated that he ordinarily feels more comfortable when a period of five years has elapsed since the last substance-related difficulty, he stated “with these testimonies and the fact that he is 39 years old (a time when people can begin to reform), it seems quite possible that he has reformed and is embarking on a new lifestyle.” DOE Exhibit 9 at 5.
Certainly, any use of illicit drugs raises legitimate security concerns. It has been noted on many occasions that illegal drug use raises a security concern for the DOE since it reflects a deliberate disregard for state and federal laws prohibiting such use. “The drug user puts his own judgment above the requirements of the laws, by picking and choosing which laws he will obey or not obey. It is the further concern of the DOE that the drug abuser might also pick and choose which DOE security regulations he will obey and not obey with respect to protection of classified information.” Personnel Security Hearing, Case No. VSO-0013, 25 DOE ¶ 82,752 at 85,512 (1995); see Personnel Security Hearing, Case No. VSO-0283, 27 DOE ¶ 82,822 (1999). In addition, a person who uses illegal drugs may open himself to blackmail or other forms of coercion, because he may want to conceal his use. It has also been noted that “any drug usage while the individual possesses a [security] clearance and is aware of the DOE’s policy of absolute abstention demonstrates poor judgment.” Personnel Security Hearing, Case No. VSO-0023, 25 DOE ¶ 82,761 at 85,579 (1995). Based on the foregoing, I find that the DOE has properly invoked Criterion K in this case.
Mitigation of Criterion K
At the hearing, the individual maintained that he has made a drastic change in his life regarding his drug use. Tr. at 46. Although he does not dispute his longstanding history of criminal activity, most of which was drug-related, he maintains that many of his charges and arrests occurred in the early eighties through the mid-nineties. Therefore, he argues that the remoteness in time of his criminal activity coupled with his changed lifestyle of abstaining from drugs demonstrates that he has reformed and is not a threat to security. Id. at 8. The individual further maintains that the DOE consultant psychiatrist’s evaluation and subsequent conclusions are consistent with his position that he has been reformed from drug abuse.
For the reasons explained below, I find that the individual has not presented information sufficient to resolve the security concerns raised by Criterion K. First, the individual argues that the last time he used marijuana was in 1996; however he tested positive for marijuana in 1999. As discussed above, I did not find the individual’s testimony that he was exposed to second-hand smoke while on a trip to Kentucky with his brothers and friend to be credible. Although the individual argues that he has completely changed his lifestyle and does not associate with family and friends who smoke marijuana and engage in other criminal activities, this incident remains troubling to me. The individual’s conduct with respect to his drug use shows that he is definitely not reformed.
Second and most importantly, the DOE consultant psychiatrist’s testimony raised serious doubt as to whether he would now consider the individual’s polysubstance abuse in remission or reformed. The DOE consultant psychiatrist testified as follows:
Q: I’m going to ask you a question with a couple of built-in conditions, . . . If, after testifying today, you were convinced that , one; everything [the individual] told you in 1999 was indeed truthful. And two; that he had totally abstained from drug use for five years, would you view it probable that he had reformed from drug use?
A: 1996 to 2002, Yes.
Q: Now, did [the individual] tell you when you saw him that in approximately May 1999, which would be just four months before you saw him that September, that he had tested positive for marijuana?
A: If I don’t have it in the Report, he didn’t tell me. I would not overlook anything like that.
Q: Your assumption was in fact there had been total abstention since 1996, correct?
A: Yeah, and I saw him then just a couple of months after what you describe as a possible occurrence. May to September.
Tr. at 67-68.
After he was told about the individual’s Kentucky trip incident, the DOE consultant psychiatrist was asked to what extent, if at all, he would want to scrutinize that explanation before rendering a diagnosis of reformation. Id. at 68. The DOE consultant psychiatrist testified that he would scrutinize the explanation very carefully and would have asked the individual additional questions to complete his evaluation. Id. However, when asked if he found the individual’s explanation not credible, the DOE consultant psychiatrist stated that “I would have to say then is that my conclusions would be in doubt.” Id. at 69. He further testified that “I do have a concern and one of the lines of questions I would ask is for a fellow who has so much trouble with drugs before to be riding with buddies, still has buddies who smoke so much marijuana, that is a little less of a lifestyle change than I would be comfortable with.” Id. at 73. Although he stated that he could not reach any firm conclusions with respect to the individual’s reformation now, the DOE consultant psychiatrist stated that the individual’s explanation of his positive drug test suggests that he is a “risk taker” and calls into question his conclusion that he is inclined toward reform. Finally, when told that the individual received a “contact high” from being around individuals who smoked marijuana, the DOE consultant psychiatrist noted that the individual must have had a fair dose of marijuana in his system if he tested positive a week later, although he could not be conclusive on the data given to him at the hearing. Id. at 82.
Based on the foregoing, the individual’s positive drug test in 1999, coupled with the DOE consultant psychiatrist’s concerns, have not resolved the substantial doubt in my mind with respect to his drug use. Therefore, I can not find that the individual has sufficiently mitigated the security concerns regarding Criterion K.
C. Security Concerns Cited Under 10 CF.R. § 710.8(l); Unusual Conduct
Criterion L relates to information indicating that an 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 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 national security. 10 C.F.R. § 710.8(l). In the present case, the DOE cites 14 charges or arrests incurred by the individual as well as the fact that the individual made omissions relating to these charges on his QNSP. The individual does not dispute his drug use, or the many drug-related charges and arrest. Given the individual’s omissions, his drug use and his numerous criminal activities, I believe that DOE properly invoked Criterion L.
Earlier in this Decision, I found that the individual deliberately omitted information on his QNSP to avoid being rejected for a security clearance. In addition, I found that the individual failed to mitigate the security concerns with regard to his drug use. The conduct of the individual casts serious doubt upon his judgment, reliability and trustworthiness. I therefore find that the individual has failed to adequately mitigate the security concerns the derogatory information presented under Criterion L.
III. Conclusion
As explained in this Decision, I find that the DOE properly invoked 10 C.F.R. § 710.8(f),(k) and (l) in suspending the individual’s access authorization. For the reasons I have described above, I find that the individual has deliberately omitted significant information from a QNSP, has engaged in the use of illegal drugs and has engaged in conduct that tends to show that he is not honest, reliable and trustworthy, and that the individual has failed to mitigate the legitimate security concerns stemming from these actions. I am therefore unable to find that granting the individual an access authorization will not endanger the common defense and security and is consistent with the national interest. Accordingly, I find that the individual’s request for an access authorization should not be granted.
Kimberly Jenkins-Chapman
Hearing Officer
Office of Hearings and AppealsDate: July 2, 2002
(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).