Case No. VSX-0020, 25 DOE ¶ 82,793 (H.O. Lipton May 7, 1996)

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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 XXXXX's.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer Opinion

Case Name: Personnel Security Hearing

Date of Filing: January 31, 1996

Case Number: VSX-0020

This matter comes before me as a remand from the Director of the Office of Hearings and Appeals. In a determination of January 31, 1996, the Director ordered me to issue an Opinion making a recommendation concerning the eligibility of XXXXX (hereinafter "the individual") to hold a "Q" Level access authorization. Personnel Security Review (VSA-0020), January 31, 1996. In compliance with that directive, I have considered the merits of this case and issue the Opinion set out below.

Background

The procedural background of this case is fully set forth in the Director's January 31 Opinion and in Personnel Security Hearing (VSO-0020), 25 DOE ¶ 82,756 (1995). I will not reiterate those details here. For purposes of this Opinion, the relevant facts are as follows.

A Notification Letter issued to this individual on December 15 1994, indicated to him that the DOE/Albuquerque Operations Office (DOE/AL) was in possession of derogatory information that created a substantial doubt concerning his continued eligibility for the "Q" access authorization. Based on this information, the DOE/AL suspended the individual's access authorization under the regulations set forth at 10 C.F.R. Part 710. The derogatory information pertained to paragraphs (f), (k) and (l) of the criteria for eligibility for access to

classified matter or special nuclear material set forth at 10 C.F.R. §710.8.

Paragraph (f) defines as derogatory any "significant information" that the individual has "[d]eliberately misrepresented, falsified, or omitted" from a Personnel Security Questionnaire (PSQ), a Questionnaire for Sensitive Positions or a Personnel Security Interview (PSI). Paragraph (k) refers to information indicating that the individual "[t]rafficked in, sold, transferred, possessed, used, or experimented with" illegal drugs. Paragraph (l) concerns information indicating that the 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; or which furnishes reasons to believe that the individual may be subject to pressure, coercion, exploitation or duress....Such conduct or circumstances include, but are not limited to, criminal behavior,...or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility."

The information cited in the Notification Letter under each of these criteria relates to the individual's admitted usage of illegal drugs and his attempts to conceal that usage. Specifically, with respect to Criterion (f), the individual completed a PSQ on September 15, 1988, in which he answered negatively a question regarding whether he had ever used marijuana or narcotics. However, during a PSI conducted on June 30, 1994, he admitted to the use of marijuana, cocaine, hashish and amphetamines between approximately 1968 and 1983. With respect to Criterion (k), the individual admitted in a September 15, 1994 evaluation conducted by Dr. XXXXX, a DOE-consultant psychiatrist, that he had used marijuana recreationally for most of his life, and from March 1994 to the time of that evaluation he had used it on an average of about two or three times per week. He also admitted purchasing marijuana. With respect to Criterion (l), the Notification Letter states that Dr. XXXXX found that the individual is using marijuana to self-medicate for panic attacks and anxiety. Dr. XXXXX indicated that during the time when the individual is under the influence of the drug his judgment and reliability can be affected, and further that continued use of marijuana may cause defects in his judgment and reliability even between such periods of use.

In accordance with 10 C.F.R. § 710.25(e) & (g), a hearing on this matter took place on XXXXXXXXXXXXXX, in XXXXXXXXXXXXXXXXXXXXX. At the hearing, the individual represented himself. When given the opportunity to make an opening statement, the individual responded by stating that he had been advised not to say anything during the hearing, and therefore would not participate.

The DOE Counsel called the following witnesses to testify for the DOE: (i) a DOE/AL Personnel Security Specialist; and (ii) Dr. XXXXX. These witnesses provided information concerning the charges set forth in the Notification Letter. In keeping with his stated intention, the individual did not testify on his own behalf, submit to examination by the DOE Counsel, present any witnesses, cross-examine any DOE witnesses, nor submit any documents to support his position. Accordingly, I will base my determination in this matter on the unrebutted testimony presented by the DOE.

It was the testimony of the DOE security expert that the DOE security programs are based on trust. When an individual violates that trust by falsification, the DOE questions whether the individual can be trusted to comply with security regulations that protect national security. There is also a concern that an individual who is involved with illegal drugs may become susceptible to blackmail. Transcript of XXXXX Hearing (hereinafter Tr.) at 10-11.

At the hearing, Dr. XXXXX reiterated his diagnosis that the individual is a recreational user of marijuana for the purpose of escaping from stress, and that while he was under the influence of the drug, his judgment was impaired. Tr. at 18, 20. Dr. XXXXX discussed his recommendation that the individual participate in a drug rehabilitation program. Tr. at 24. He further indicated that the individual's use of marijuana is related to panic and anxiety attacks, and expressed some concerns regarding this individual's judgment during such attacks. He recommended treatment for the anxiety. Tr. at 30-33.

Analysis

In proceedings conducted under Part 710, 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). 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. § 710.7(a). Personnel Security Hearing (VSO-0060) January 31, 1996; Personnel Security Hearing (VSO-0005), 24 DOE ¶ 82,753 (1995)(appeal pending, Case No. VSA-0005).

A key factor in this case is that the individual refused to participate in the hearing. He refused to testify on his own behalf. See Personnel Security Hearing (VSO-0060), slip op. at 5. He did not rebut any of the evidence presented in this case. Clearly, he did not meet his burden. I therefore find that the individual (i) falsified significant information on a PSQ by lying about his use of illegal drugs; (ii) used several illegal drugs, and purchased marijuana; and, (iii) due to his use of marijuana to relieve stress, is unreliable. I have no alternative other than to recommend that this individual's clearance not be restored.

Additional Evidence

While it is not necessary to the determination reached above, there is some additional supporting evidence in this case that was provided to me after the issuance of the January 31, 1996 Opinion of the Director. This information was introduced into the record by the DOE Office of Safeguards and Security, as "new evidence" pursuant to 10 C.F.R. § 710.29. The additional evidence, which was submitted on February 12, 1996, indicates that the individual tested positive for marijuana in a random drug screening test conducted by his employer on February 5, 1996.

Pursuant to 10 C.F.R. § 710.29(b)(1), the individual was accorded an opportunity to respond to this additional evidence. However, he failed to communicate with me during the two-week time frame that I provided. Consequently, the record now contains additional and more-recent unrebutted evidence of this individual's drug use.

While I reached the determination that this individual's access authorization should not be restored even in the absence of the new evidence, the additional evidence confirms my overall view that due to his use of marijuana, this individual is unreliable and poses a security risk.

Conclusion

I conclude that the DOE/AL properly invoked 10 C.F.R. Section 710.8(f), Section 710.8(k) and Section 710.8(l) in connection with the suspension of the individual's access authorization. In view of the record before me, I am not persuaded that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I find that the individual's "Q" access authorization should not be restored.

The regulations set forth at 10 C.F.R. Section 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer 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, 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 with 20 days of receipt of the statement.

Virginia A. Lipton

Hearing Officer

Office of Hearings and Appeals