* 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.
April 25, 2002
DECISION AND ORDER
OFFICE OF HEARINGS AND APPEALSHearing Officer's Decision
Case Name: Personnel Security Hearing
Date of Filing: January 10, 2002
Case Number: VSO-0516
This Decision concerns the eligibility of XXXXXXX XXXXXXX XXXXXXX (hereinafter referred to as "the individual") to hold 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) A Department of Energy (DOE) Operations Office suspended the individual's access authorization under the provisions of Part 710.(2) This Decision considers whether, on the basis of the evidence and testimony presented in this proceeding, the individual’s access authorization should be restored. As set forth in this Decision, I have determined that the individual’s security clearance should not be restored.
I. Background
The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE, contractors, agents, DOE access permittees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 generally provides that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all relevant information, favorable and 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 C.F.R. § 710.7(a).
In this instance, the individual obtained a security clearance from DOE as a condition of his employment with a DOE contractor. However, the DOE Office of Safeguards and Security (DOE Security) initiated formal administrative review proceedings by informing the individual that his access authorization was being suspended pending the resolution of certain derogatory information that created substantial doubt regarding his eligibility. This derogatory information is described in a Notification Letter subsequently issued to the individual on December 18, 2001, and falls within the purview of potentially disqualifying criteria set forth in the security regulations at 10 C.F.R. § 710.8, subsections k and l. More specifically, Enclosure 2 attached to the Notification Letter (Enclosure 2) alleges that the individual has "[t]rafficked in, sold, transferred, possessed, used, or experimented with a drug or other substance listed in the Schedule of Controlled Substances . . .,” 10 C.F.R. § 710.8(k) (Criterion K), and 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 interests of the national security,” 10 C.F.R. § 710.8(l) (Criterion L). The bases for these findings, as stated in Enclosure 2, are summarized below.
Enclosure 2 states that on October 18, 2001, the individual took part in a random Department of Transportation (DOT) drug test. Pursuant to this drug test, a report was issued on October 25, 2001, specifying that the individual had tested positive for cocaine. In a Personnel Security Interview (PSI) conducted with the individual on November 1, 2001, the individual acknowledged that he knowingly used an illegal substance, cocaine, while holding an active security clearance. The individual further acknowledged that he was aware of the company’s anti-drug policy, as well as the DOE’s zero tolerance drug policy.
In a letter received by the DOE Office of Hearings and Appeals (OHA) on January 10, 2002, the individual exercised his right under Part 710 to request a hearing in this matter. 10 C.F.R. § 710.21(b). On January 14, 2002, I was appointed as Hearing Officer in this case. After conferring with the individual and the appointed DOE Counsel, 10 C.F.R. § 710.24, a hearing date was established. At the hearing, the DOE Counsel called as its sole witness the Personnel Security Specialist who conducted the PSI. Apart from testifying on his own behalf, the individual called as witnesses two of his work supervisors and his girlfriend. The transcript taken at the hearing will be hereinafter cited as "Tr.". Various documents that were submitted by the DOE Counsel and the individual during this proceeding constitute exhibits to the hearing transcript and will be cited as "Exh.".
Summary of Findings
The following factual summary is essentially uncontroverted. However, I will indicate instances in which there are disparate viewpoints regarding the information presented in the record.
The individual accepted a position with a DOE contractor and was required to obtain a security clearance as a condition of his employment. The individual was ultimately granted a security clearance in April 2001, after the resolution of certain derogatory information regarding the individual’s finances. However, the individual’s security clearance was suspended by DOE Security following a drug test administered on October 18, 2001, showing that the individual had tested positive for cocaine. The individual had been randomly chosen by his employer for the drug test under Department of Transportation regulations, since the individual holds a “Class A” commercial driver’s licence.
Upon receiving notice of the positive drug test result, DOE Security scheduled and conducted a Personnel Security Interview (PSI) with the individual. During the PSI, the individual admitted that he had willfully ingested cocaine the day before the drug test in a capsule mixed with prescription codeine that he obtained after suffering a hand injury at work. The individual stated that he was given the cocaine by an acquaintance at a motorcycle maintenance shop where the individual spends evenings working on motorcycles as a hobby. According to the individual, he overheard the person discussing cocaine and decided to ask for a small quantity. The individual explained that he has had a persistent problem with severe back pain since being involved in a motorcycle collision in 1983, and the condition had been aggravated by increasing work demands. The individual stated that he thought that the cocaine might relieve his back pain similar to the manner in which Novocaine and Xylocaine act as anesthetics, although he had no basis for this supposition. The individual reported that after going to bed, he became nauseous within a few hours of ingesting the cocaine/codeine capsule and vomited. The individual acknowledged during the PSI that at the time he decided to seek and use the cocaine, he was aware of his employer’s anti-drug policy and DOE’s zero tolerance drug policy.
Following the drug test, the individual reported the same facts and circumstances to his employer who reprimanded the individual, placed him on a two-day suspension without pay and required that the individual submit to an additional drug test. The employer also required that the individual obtain drug counseling, to which the individual agreed. The individual tested negative in the drug test required by his employer, administered on October 29, 2001, and also tested negative in a subsequent voluntary drug test administered on March 19, 2002. However, the individual has not undergone drug counseling as he agreed with his employer. Instead the individual obtained an assessment from a licensed psychologist that the individual does not meet the criteria for a diagnosis of substance abuse or dependency. The individual maintains that his use of cocaine in this instance was a one-time only incident which he deeply regrets, and vows he will never use cocaine or any other illegal drug again.
II. Analysis
A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal matter, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. See Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,802 (1996). In this type of case, we are dealing with a different standard designed to protect national security interests. A hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). Once DOE Security has made a showing of derogatory information raising security concerns, the burden is on the individual to come forward at the hearing with evidence to convince the DOE that restoring his access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.27(d). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) ("clearly consistent with the national interest" standard for the granting of security clearances indicates "that security determinations should err, if they must, on the side of denials"); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).
I have thoroughly considered the record of this proceeding, including the submissions of the parties, the evidence presented and the testimony of the witnesses at the hearing convened in this matter. In resolving 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 due deliberation, it is my opinion that the individual’s access authorization should not be restored since I am unable to conclude that such restoration would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(d). The specific findings that I make in support of this determination are discussed below.
A. Illegal Drug Use
In this case, the individual admittedly used an illegal drug, cocaine. While the individual maintains that it was an isolated, one-time occurrence, any use of illicit drugs raises the legitimate security concerns of DOE. As explained by the Personnel Security Specialist during the hearing, illegal drug use raises a security concern for the DOE for it reflects a deliberate disregard for state and federal laws prohibiting such use. Tr. at 69. "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 or 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 cocaine or other illegal drug may possibly 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).
DOE Security also suspended the individual’s security clearance based upon its finding that he has engaged in unusual conduct which tends to show that he is not honest, reliable or trustworthy. In this case, the individual was a security clearance holder at the time of his cocaine use and was well aware of DOE’s zero-tolerance drug policy. In view of the undisputed record in this case, I find that DOE Security appropriately invoked Criterion K and Criterion L in suspending the individual’s access authorization. I now turn to whether the individual has presented sufficient mitigating evidence to overcome the security concerns of DOE.
B. Mitigating Evidence
A number of Hearing Officers have considered cases in which an individual claims that a positive drug test was the result of a one-time only incident of drug use occasioned by a singular and uncharacteristic lapse in judgment. As it has previously been pointed out, a claim of this nature raises a degree of skepticism since while it is possible, it is certainly unlikely that a one-time ever drug use would happen to be followed in close proximity by a random drug test. See Personnel Security Hearing, Case No. VSO-0094, 26 DOE ¶ 82,753 at 85,515 (1996). Indeed, in the present case, this unlikelihood is heightened by the fact that this was the first time the individual was ever selected for a drug test,(3) conducted the very next morning after he admittedly ingested cocaine. Tr. at 17. Nonetheless, Hearing Officers have concluded that the security concerns arising from drug use under these purported circumstances may be overcome where the individual is able to present evidence corroborating the alleged incident of one-time use, and convincing evidence that the individual will not be involved in the use of illegal drugs again. See, e.g., Personnel Security Hearing, Case No. VSO-0116, 26 DOE ¶ 82,765 (1997), aff’d (OSA 1997); Personnel Security Hearing, Case No. VSO-0128, 26 DOE ¶ 82,784 (1997), aff’d (OSA 1997). However, failure to supply such corroborating and convincing evidence in similar cases of asserted one-time use has resulted in the Hearing Officer’s determination that the individual’s security clearance should not be restored. See Personnel Security Hearing, Case No. VSO-0273, 27 DOE ¶ 82,814 (1999), aff’d, 27 DOE ¶ 83,026 (OHA 1999), aff’d (OSA 2000); Personnel Security Hearing, Case No. VSO-0283, 27 DOE ¶ 82,822 (1999), aff’d, 27 DOE ¶ 83,028 (OHA 2000), aff’d (OSA 2000); Personnel Security Hearing, Case No. VSO-0294, 27 DOE ¶ 82,827 (1999), aff’d (OSA 2000); Personnel Security Hearing, Case No. VSO-0502, 28 DOE ¶ 82,846 (2002). On the basis of these standards, I have determined that the individual’s security clearance should not be restored in this case.
I initially find that apart from his own testimony, the individual has provided insufficient corroboration of the circumstances of his purported one-time use. The individual has been consistent in recounting his story to his supervisors, during the PSI and at the hearing that he sought the cocaine from an acquaintance at a motorcycle workshop, believing it might relieve his back pain. Exh. 4-2; Exh. 6-1 (PSI) at 14-15, 19; Tr. at 24-25. The individual’s girlfriend confirmed that the individual spends substantial time working at the motorcycle shop as a hobby but she does not spend time with him there. Tr. at 61. However, she is only vaguely acquainted with the individual’s friends whom she describes as “car guys” and she does know the man who gave him the cocaine. Tr. at 61, 64-65. The Personnel Security Specialist testified that the individual appeared to be honest and forthright during the PSI, Tr. at 68, and in my own observation the individual seemed to be candid during the hearing. Notwithstanding, I have only the individual’s own statement and little else to support his description of how he obtained and used the cocaine. Cf. Personnel Security Hearing, Case No. VSO-0116, supra (circumstances of one- time marijuana use at a party corroborated by testimony of friend who witnessed it).
I also find the record and testimony deficient to establish that the individual’s use of cocaine was patently inconsistent with his character and reputation. The individual’s work supervisors praised him as a valued employee but neither of them knows the individual on a personal basis. Tr. at 9, 12, 53-54. The individual has performed motorcycle maintenance work for one of the supervisors, but he has had little social interaction with the individual. Tr. at 9. The individual’s girlfriend testified that she has never observed the individual using drugs and was surprised to hear that he tested positive on the drug test. Tr. at 60. However, his girlfriend has known the individual for only one year, Tr. at 58,(4) and thus can provide limited evidentiary support for the individual’s assertion that this was a first-time cocaine use.
Moreover, I find weak justification in the individual’s explanation that he used the cocaine in a misguided attempt to relieve his back pain. The individual provided a police report showing that he indeed suffered a back injury in a motorcycle accident sustained in October 1983. Tr. at 28; Exh. B. Within one year of the accident, the individual began seeing a chiropractor to relieve his recurring problem with back pain resulting from the accident. Tr. at 23, 29. The individual states that he first received treatment on a frequent basis but he eventually improved to the point that he saw the chiropractor only once a year, Tr. at 23, and documentation from the chiropractor shows that the last time the individual received therapy for his back was January 1998. Exh. C. According to the individual, his back was fine until September 2001, when his work load with the DOE contractor substantially increased causing a resurgence in his back pain, which became severe. Tr. at 24, 30. The individual’s girlfriend confirmed that the individual experienced back pain during this time and took hot baths and over-the- counter medication to relieve the pain. Tr. at 59, 61-62.
However, the individual’s back pain was never so severe that it became necessary for him to miss a day of work, nor did he have to wear a back brace to perform work. Tr. at 31. Indeed, the individual’s supervisors were unaware that the individual had a problem with his back. Tr. at 55. According to the individual, he did not tell his supervisors because he considered it “a personal, physical condition,” Tr. at 30, and his girlfriend is the only one who knew about his condition. Tr. at 31. Furthermore, the individual elected not to go to a doctor or chiropractor, although this kind of therapy had served to relieve his condition in years past. Tr. at 47-48.(5) Instead, the individual states that he decided to try cocaine mixed with codeine as a homemade anesthetic, although he admittedly had no concrete basis for assuming that this illegal concoction would actually relieve his back pain. Tr. at 24, 47.
Having considered the record on this matter, I cannot accept the individual’s explanation of his drug use. I find it inconceivable that a back condition that was not so severe as to cause the individual to miss work, wear a back brace or seek medical treatment would compel his extreme measure in trying an illegal drug, cocaine, as a remedy. Such an act of desperation was simply unjustified by the circumstances.(6) Since I have lingering doubt regarding the individual’s explanation of his cocaine use, the security concerns attached to this incident remain essentially unabated. See Personnel Security Hearing, Case No. VSO-0502, 28 DOE ¶ 82,846 at 85,955 (2002). Moreover, even accepting the individual’s account of the circumstances, I am deeply unsettled by the fact that the individual did not consider the ramifications of his decision to experiment with cocaine in this manner. Had the cocaine somehow proved successful in alleviating his back pain and the individual gone undetected by the random drug test, I must presume that the individual may have willingly continued to use cocaine to relieve his back condition.
Finally, the individual has failed to impress me that he is completely reformed from his behavior. The individual is adamant that his cocaine use was “a one-time stupid occurrence which will not happen again.” Tr. at 22-23. The individual has tested negative on two drug tests subsequent to his positive drug test, and he is willing to submit to regular drug screens. Exh. E; Tr. at 45, 47. Nonetheless, I note that the individual has failed to solidify his claim of reformation by seeking drug counseling as he agreed. The individual acknowledges that he agreed to seek drug counseling during a meeting with his manager and supervisors following his positive drug test. Tr. at 37, 42.(7) In this regard, the individual provided documentation at the hearing showing that he contacted several drug counseling organizations. Tr. at 41; Exh. D. However, the individual chose not to enroll in any of these drug counseling programs, because some of them were “booked up” and others he believed were too involved to meet his circumstances, stating “I don’t think that I needed to be rehabilitated from a drug problem or an addiction . . . because I’m not an addict.” Tr. at 27-28. Instead, the individual chose to obtain a drug use assessment from a psychologist who conducted a one-hour interview with the individual. Tr. at 28, 81. The psychologist concludes in his brief letter report: “Relying solely on [the individual’s] self-report and my own clinical observations during our one session, I do not see any evidence that [the individual] meets the criteria for a diagnosis of substance abuse or dependency.” Exh. A. The individual believes that this assessment performed by the psychologist satisfies his agreement to obtain counseling. Tr. at 28, 42.(8) I do not agree.
It is clear from the psychologist’s report that his sole purpose was to evaluate the individual’s level of drug use, and not to counsel the individual. The psychologist clearly did not attempt to increase the individual’s level of drug awareness, or educate the individual on the dangers of drug use and how to avoid the temptations of drug use. Although I accept the individual’s assertions that he is not an addict or habitual drug user, I believe that the individual would benefit from drug counseling. The individual fails to recognize that although he is not a drug abuser, he made a conscious, willing decision to obtain and use cocaine, knowing full well that illegal drug use contravenes his employer’s policy and DOE policy. I further observe that this was not a situation where the individual was innocently placed in a setting where cocaine was being used or directly tempted by someone offering him cocaine. Rather, the individual overheard a conversation of an acquaintance he does not even consider a friend and then took steps to obtain cocaine from this person.(9) The fact that the individual believes that no drug counseling is necessary demonstrates that he has not yet fully grasped the severity of his actions.(10)
III. Conclusion
As explained in this Decision, I find that DOE Security properly invoked 10 C.F.R. §§ 710.8(k) and (l) in suspending the individual's access authorization. For the reasons I have described above, I find that the individual has engaged in the use of illegal drugs and 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 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.
Fred L. Brown
Hearing Officer
Office of Hearings and AppealsDate: April 25, 2002
(1) An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to variously in this Decision as an access authorization or security clearance.
(2) On September 11, 2001, the DOE issued revisions of the Part 710 regulations, amending procedures for making final determinations of eligibility for access authorization. 66 Fed. Reg. 47061 (September 11, 2001). The revised regulations were effective immediately upon publication and govern the present Decision.
(3) Prior to accepting employment with the DOE contractor, the individual was employed by a Department of Defense contractor for eighteen years, where he was also subject to random drug testing. Tr. at 16-17. However, the October 18, 2001 random drug test was the first time the individual was actually selected. Thus, unlike in other similar cases, the individual has no record of negative drug tests prior to the positive test, to support his contention of a first-time use. See, e.g., Personnel Security Hearing, Case No. VSO-0116, 26 DOE ¶ 82,765 (1997).
(4) The individual moved to the area approximately 1½ years ago, shortly before accepting employment with the DOE contractor. Tr. at 16. The individual previously lived in a neighboring State for eighteen years. Id.
(5) The individual stated that he did not have a chiropractor in the State of his present residence (see note 4, supra) and temporarily had a lapse in medical insurance coverage after assuming employment with the DOE contractor. Tr. at 33-34. I clarified during my questioning of the individual, however, that it was his own volition not to seek medical treatment for his back pain, prior to experimenting with cocaine as a pain reliever, and not a resort induced by a lack of medical insurance. Tr. at 47-48.
(6) The individual stated that he has now begun to see a chiropractor and a massage therapist for his back pain. Tr. at 25. However, by the time of the hearing, he had gone to see the chiropractor and massage therapist only once since testing positive for cocaine in October 2001. Tr. at 35. The individual does not take any prescription medication for his back pain. Tr. at 34.
(7) The meeting is described in a memorandum of the Program Manager, dated October 29, 2001, which states in pertinent part: “We will also require [the individual] to get counseling for this incident that he agreed to.” Exh. 4-2.
(8) Despite his insistence that the psychologist’s assessment sufficed for purposes of counseling, the individual indicated that he knows the difference between an assessment and actual counseling when describing the typical drug counseling program he chose not to enroll in: “[T]hey take you in for an assessment, and then they’re pretty much a long, drawn out course that you go through with them.” Tr. at 41.
(9) The individual stated that he has not seen the person who gave him the cocaine again. Nonetheless, the Personnel Security Specialist was concerned that the individual continues to frequent the motorcycle repair shop where he acquired the cocaine. Tr. at 79.
(10) Thus, in a similar case involving an alleged one-time use of cocaine, the Hearing Officer found the individual’s decision to promptly obtain and continue in drug counseling to be substantial mitigating evidence in accepting the individual’s promise to never use illegal drugs again. See Personnel Security Hearing, Case No. VSO-0128, 26 DOE ¶ 82,784 at 85,741-42 (1997).