Case No. VSO-0102, 26 DOE ¶ 82,763 (H.O. Woods Nov. 14, 1996)

For full history of this case, and links to other cases, click here.

* 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.

November 14, 1996

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: June 26, 1996

Case Number: VSO-0102

This Opinion considers the continued eligibility of XXXXX (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." As explained below, it is my opinion that the individual's access authorization should be revoked.

I. BACKGROUND

On May 23, 1996, the Department of Energy's XXXXX Operations Office (DOE/XXXXX) issued a Notification Letter to the individual. The Notification Letter charged that the individual had engaged in conduct subject to 10 C.F.R. § 710.8(k) (Criterion K), and § 710.8(l) (Criterion L).

Criterion K concerns the possession, use or experimentation 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. With respect to Criterion K, the Notification Letter finds that in early 1996 the individual tested positive for cannabinoids (marijuana) during a random drug screen test conducted by his employer, a DOE contractor.

Criterion L concerns unusual conduct or circumstances that "tend to show [the individual] is not honest, reliable, or trustworthy, or that furnishes a reason to believe that he may be subject to pressure or duress that may cause him to act contrary to the best interests of national security." The Notification Letter makes two allegations with respect to Criterion L. First, it finds that the individual, by his own admission, elected to use marijuana several

times over the course of one weekend in early 1996, despite the fact that he was aware of his employer's and the DOE's drug policies, and was aware that the use of marijuana is illegal. The Notification Letter's second allegation relates to the same

incident. It finds that during a Personnel Security Interview (PSI) conducted after his positive drug test, the individual stated that he never used illegal drugs prior to the incident that resulted in his positive drug test. However, thirteen days prior to the PSI, the individual admitted to a drug counselor that he used marijuana once or twice more than twenty years ago when he was attending college.

The Notification Letter explained that the individual's conduct caused the DOE/XXXXX to have substantial doubts about his continued eligibility for access authorization. Because of these doubts, the DOE/XXXXX informed the individual that his access authorization was suspended, pending administrative review under 10 C.F.R. Part 710.

In his Response dated June 7, 1996, the individual requested a hearing to answer the charges in the Notification Letter. In the Response, he admitted the correctness of the concerns presented in the Notification letter. With regard to his admitted use of marijuana, he stated that "I am guilty of making a bad decision, but I am not a threat to my country or society." He also provided the following explanation concerning the incorrect statement that he made at his PSI:

The PSI was very stressful and anxiety-filled for me. I admit what I did, but it was not consciously or intentionally done to break the law or company policy. I realize that this incident is a blemish on my character, but it is by no means the sum of who I am. During my counseling session, which I knew would be on record, I did recall trying marijuana in college. I apologize for not having instant recall of an incident over twenty years ago.

The Office of Hearings and Appeals received the case on June 26, 1996, and a hearing was held before the undersigned hearing officer within ninety days of that date. The individual and four other witnesses, one presented by the DOE and three by the individual, testified at the hearing. The Office of Hearings and Appeals received the transcript of the hearing on October 15, 1996.

II. FINDINGS OF FACT

There are no material disputes about the factual information contained in the Notification Letter. The individual has admitted to the factual allegations made in that document. As discussed above, in March 1996, the individual submitted to a random drug test administered by his employer, a DOE contractor. The results of the drug test showed that the individual tested positive for cannabinoids (i.e., marijuana or cannabis).

Following the positive drug test, the individual participated in a PSI concerning his involvement with drugs. The individual told DOE security personnel that the positive drug test resulted from an incident that occurred on the weekend prior to his drug test. He stated that he went on a fishing trip with four old friends, and that in the course of that trip, he shared "about four" marijuana cigarettes that one of these friends produced and passed around. PSI at 17. He stated that he had known these individuals for twenty years or more, that they reside in a nearby city, that he had not seen them for some time, and that he was not aware until the time of the trip that any of them used marijuana. He further stated that this was the only time in his life when he had used marijuana. PSI at 13-24.

The record also indicates that since March 1996, the individual participated in a drug counseling program that has included eight sessions of counseling and a substance abuse assessment. See Individual Exhibit 1. When discussing his drug history with the counselor, the individual stated that prior to his recent instance of marijuana use, he used marijuana "once or twice" while attending college more than twenty years ago. DOE/XXXXX Exhibit 4 at p. 3. This admission of drug use took place thirteen days prior to the individual's statement in his PSI that he never used marijuana prior to his recent instance of usage.

The individual also underwent two random drug tests subsequent to his positive drug test in March 1996. He submitted the laboratory results of the follow-up tests, both of which were negative for the presence of drugs. He also submitted records indicating that prior to the March 1996 positive drug test, he was subjected to random drug testing in May 1990 and October 1992, and that both of these tests were negative for the presence of drugs. See Individual Exhibit 2 and Transcript of September 24, 1996 Hearing at 100-103 (hereinafter Tr.).

III. Regulatory Standard

In order to frame my analysis, I believe that it will be useful to discuss briefly the respective requirements imposed by 10 C.F.R. Part 710 upon the individual and the Hearing Officer. As discussed below, Part 710 clearly places upon the individual the responsibility to bring forth persuasive evidence concerning his eligibility for access authorization, and requires the Hearing Officer to base all findings relevant to this eligibility upon a convincing level of evidence. 10 C.F.R. § 710.27(b), (c) and (d).

A. The Individual's Burden of Proof

It is important to bear in mind that a DOE administrative review proceeding under this Part is not a criminal matter, where the government would have the burden of proving the defendant guilty beyond a reasonable doubt. The standard in this proceeding places the burden of proof on the individual. It is designed to protect national security interests. The 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 individual must 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). Personnel Security Review, (Case No. VSA-0087), 26 DOE ¶ ______ (September 30, 1996); Personnel Security Hearing (Case No. VSO- 0061), 25 DOE ¶ 82,791 (1996). The individual therefore is afforded a full opportunity to present evidence supporting his eligibility for an access authorization. The regulations at Part 710 are drafted so as to permit the introduction of a very broad range of evidence at personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R. § 710.26(h). Thus, by regulation and through our own case law, an individual is afforded the utmost latitude in the presentation of evidence to mitigate security concerns.

This is not an easy evidentiary burden for the individual to sustain. The regulatory standard implies that there is a presumption against granting or restoring 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"); Dorfman 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). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. In addition to his own testimony, we generally expect the individual in these cases to bring forward witness testimony and/or other evidence which, taken together, is sufficient to persuade the Hearing Officer that restoring access authorization is clearly consistent with the national interest. Personnel Security Hearing (VSO-0002), 24 DOE ¶ 82,752 (1995); Personnel Security Hearing (Case No. VSO- 0084), 26 DOE ¶ 82,754 (1996) (individual failed to meet his burden of coming forward with evidence to show that he was rehabilitated and that his exhibitionism and voyeurism were unlikely to recur).

In cases where there is evidence of a positive drug test, an affected individual must provide convincing evidence mitigating the security concern related to illegal drug use. Personnel Security Hearing (Case No. VSO-0051), 25 DOE ¶ 82,784 (1995), aff'd Personnel Security Review (Case No. VSA-0051), 25 DOE ¶ 83,012 (1996) (individual failed to show that passive inhalation of marijuana smoke at a night club caused his positive drug test); Personnel Security Hearing (Case No. VSO-0019), 25 DOE ¶ 82,759 (1995). In other words, an individual who has had a positive drug test has the burden to show that maintaining his access authorization is clearly in the national interest. It is therefore the obligation of the individual to offer an explanation for the positive drug test that mitigates the DOE's security concerns and to establish the truthfulness of the explanation. Personnel Security Review, (Case No. VSA-0087), 26 DOE ¶ ______ (September 30, 1996).<1>

B. Basis for the Hearing Officer's Opinion

In personnel security cases under Part 710, it is my role as the Hearing Officer to issue an Opinion as to whether granting 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 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 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 must examine the evidence in light of these requirements, and assess the credibility and demeanor of the witnesses who gave testimony at the hearing. The regulations require that I make specific findings as to the validity of each allegation in the Notification Letter. 10 C.F.R. § 710.27(c).

IV. ANALYSIS

A. Criterion K

There is no dispute as to the fact that the individual used marijuana, and that this use produced the positive drug test in March 1996. I therefore find that the DOE/XXXXX properly invoked Criterion K in suspending the individual's access authorization.

In rendering my opinion concerning whether access authorization should be restored, I must consider whether there are factors present to mitigate the DOE's security concerns. In this case, the individual asserts that he used marijuana on only one occasion in the twenty years since he graduated from college, i.e., during a two day fishing trip that took place the weekend before his positive drug test. The individual further asserts that as a result of the drug counseling he received through the Employee Assistance Program, he is fully rehabilitated from this limited instance of drug use.

After reviewing the entire record in this case, I find that the individual has not presented sufficient evidence to support his assertions with respect to the nature and frequency of his past use of marijuana. As a result, I do not accept his assertion that his recent use of marijuana was limited to one occasion, and I cannot sustain his assertion of rehabilitation based on limited usage of marijuana.

Aside from the individual's own testimony at the PSI and at the hearing, there is very little relevant evidence in the record concerning the frequency and duration of the individual's use of marijuana. As noted above, the individual states that he experimented with the use of marijuana once or twice while in college. He contends that his only other use of marijuana occurred more than twenty years later and immediately prior to his positive drug test, when he shared about four marijuana cigarettes with several old friends in the course of a two day fishing trip.

At the hearing, the individual presented this explanation in a straightforward and consistent manner. He did not appear evasive in responding to extensive questioning concerning the events that took place on his fishing trip. Tr. at 55-66. He also presented an effective description of his current lifestyle as family centered and lacking in opportunities for social interaction that would involve marijuana use. Tr. at 94-99. However, even though my evaluation of the individual's demeanor was positive, I still find a lack of sufficient evidence to accept the individual's assertion that his recent use of marijuana was limited to one occasion. This is a critically important factual issue in this proceeding. The duration and frequency of an individual's marijuana use are factors crucial in ascertaining the degree of rehabilitation and reformation which must be demonstrated by an individual seeking to mitigate concerns arising from drug use. For example, concerns over drug use can be mitigated even in cases of recent drug use where the usage was an isolated incident or an event infrequent enough to warrant acceptance of the individual's assurance that he/she will not be involved with drugs while holding a DOE access authorization. In contrast, where illegal drug use is not an infrequent event, a stricter standard is clearly appropriate. In such instances, at least a twelve month period of abstinence is generally required to demonstrate adequate evidence of rehabilitation and reformation. See Personnel Security Hearing, Case No. VSO-0005, 24 DOE ¶ 82,753 at 85,529 (1995), aff'd, 25 DOE ¶ 83,013, terminated (OSS June 7, 1995); Personnel Security Hearing, Case No. VSO-0013, 25 DOE ¶ 82,752 at 82,752 (1995) (Employee Assistance Program counselor testifies that with regard to an individual who had not developed a dependence on marijuana, a year's abstinence was a good indication that he would be able to continue that abstinence), access authorization revoked on other grounds, (OSS, May 22, 1995); Personnel Security Hearing, Case No. VSO-0023, 25 DOE ¶ 82,761 at 85,580 (1995) (rehabilitation found where individual who used marijuana "only minimally" remained drug free for a year beyond the treatment period); see also, Personnel Security Hearing, Case No. VSO- 0103, 26 DOE ¶ _____ (slip opinion at 6) (October 24, 1996) and cases cited therein.

At his PSI, in the statements made to his drug counselor, and in his testimony at the hearing, the individual consistently maintained that his recent use of marijuana has been limited to a single episode. However, the individual has a significant incentive and interest here in seeking to continue his access authorization and therefore in minimizing his previous use of marijuana. See Amadeo, 486 U.S. at 226. Consequently, I believe that the individual's assertions of a single episode of use must be treated with some skepticism and that standing alone they are inadequate. My skepticism also is supported by the fact that at the PSI, the individual either could not recall or did not choose to reveal instances of marijuana use in his college years that he had acknowledged in a counselling session only thirteen days before. This instance of contradictory testimony raises the concern that there may be other recent instances of marijuana use that the individual is failing to reveal.

My concern that there may be other recent instances of marijuana use by the individual is supported by the testimony of the individual's drug counselor. Under questioning, the counselor would not state that he accepted the individual's assertion that he used marijuana on only one recent occasion. Tr. at 113. His testimony indicated that he expected users of marijuana to underreport their use of the drug to a counselor, and to underreport their use to an even greater extent in a judicial proceeding. Tr. at 112-13. He also agreed that in his professional experience it was unusual for someone to use marijuana only once and then be identified in a random drug test. Tr. at 116. Especially in this case, some additional, objective evidence is needed to demonstrate that the version of recent events asserted by the individual is factual, and to support his attempt to establish that his drug use was extremely limited.

Mindful of the necessity for the individual to substantiate his assertions regarding limited drug use, I repeatedly suggested that he consider calling witnesses who could independently support his position. In my July 2, 1996 letter to him, I encouraged him "to identify witnesses who can provide corroborative testimony concerning [your]... assertions with respect to ... use of marijuana." I also noted that he could request subpoenas to summon witnesses to the hearing. In a July 19, 1996 letter to the parties in this proceeding, I recounted a subsequent telephone conversation with the individual in which I discussed the need for corroborative testimony.

As I stated in my conversation with [the individual], it is important for him to present the testimony of witnesses at this hearing who can corroborate his description of the circumstances relating to his use of marijuana. For corroborative purposes, it is crucial for him to present the testimony of individuals (preferably two or more) who were with him when he used the marijuana. In order to support his assertion that this marijuana use was an isolated episode, he should also present the testimony of family members and/or character witnesses who socialize with him on a frequent basis.

July 19, 1996 letter to the parties at 1. In an August 30, 1996 telephone conversation, the individual stated that none of the four individuals who accompanied him on the fishing trip appeared willing to testify at the hearing. In a letter confirming this conversation, I summarized my response as follows:

I told [the individual] that these individuals would not be required to incriminate themselves and that I would not reveal the nature of their testimony to their employers. I emphasized to [the individual] that corroborative testimony on this issue was absolutely crucial to his efforts to mitigate the DOE's concerns regarding his use of marijuana and to demonstrate rehabilitation.

I again noted that reluctant individuals can be required by subpoena to appear and testify at the hearing. August 30, 1996 letter to the parties at 2. Finally, when the individual stated at the September 10, 1996 conference call that he had had no success in enlisting the testimony of these persons, I suggested that he keep trying and offered to hear their testimony without prior notice. I also suggested that his wife or other persons who were aware of the fishing trip should be called to corroborate that the event took place. See Memorandum of September 10, 1996 telephone conversation with the parties.

In light of my repeated efforts to encourage the individual to provide convincing corroborative testimony, I find that his failure to do so reinforces my skepticism concerning his attempt to mitigate his positive drug test. This corroborative testimony could have supported two essential mitigating factors, i.e., that his recent use of marijuana has been limited to a single occasion, and that this single occasion of use occurred when marijuana was offered to him during a fishing trip with four old friends whom the individual had not seen for several years. For example, none of the persons who participated with the individual in the 1996 fishing trip appeared to testify at the hearing. Since the individual has described two of these persons as longstanding friends who attended his wedding, I find it unusual that he could not produce at least one of these persons to testify on his behalf. Nor did the individual present the testimony of knowledgeable friends in a position to corroborate his assertions with respect to drug use. As discussed below, even the individual's wife was unavailable to provide corroborative testimony.

The two character witnesses who testified on behalf of the individual at the hearing did not provide the kind of persuasive evidence concerning the individual's personal social activities which would have allayed my doubts about his allegedly limited drug use. Both know the individual through the workplace and currently have little outside social contact with the individual. The first of these witnesses to testify stated that he began carpooling with the individual about fifteen years ago. This carpooling ended about nine years ago when the witness moved to a different neighborhood. Tr. at 79. He provided the following description of his present social contact with the individual:

We'll chitchat on the phone a little bit from time to time and then get together sometimes on the weekends. Not too often but occasionally. Everybody's lives change, and [the individual] got remarried and he's had all these children and is real involved with their lives and so -- and we don't have children, so we get together but we don't get together as often.

Tr. at 82. Other than confirming the individual's assertion that he is very involved in the raising of three small children and a teenager, this witness could not offer much information concerning the individual's current social activities.

The other character witness called by the individual also indicated that his social contacts with the individual were quite limited. This witness stated that he saw the individual only about twice a year at social events outside the workplace. Tr. at 92. He indicated that these events centered around birthday celebrations and other events related to their children. Tr. at 88-89. Accordingly, I find that the testimony of these two witnesses are of very limited value in corroborating the individual's assertion that his marijuana use was an isolated event.

At the hearing, the individual maintained that because of the demands of raising three small children, he and his wife have very little social interaction with others and that the witnesses who testified on his behalf are their most frequent social contacts.

... like I've said, I've probably seen these two people [the witnesses] more in the last two years than anybody. We probably have somebody over to the house maybe two or three times a year. An average week for me socially would be to get out to church on Sundays but basically, we may go to the park with the kids.

... I usually try to get to work as early as I can so I can get home as early as I can. Usually when we get home, there are either activities around the home -- this summer, you know, we had things around the house, built a deck, a roof over that. That's what consumes my time.

If it's not, I deal with the kids when they get home. My wife works maybe one evening a week, and that's when I have what I call kid duty and I take care of them; but other than that, my days are going home and then I play with the kids.

Tr. at 95-96. Clearly, the individual's wife is the person who could best corroborate these assertions concerning the individual's attention to his family and his lack of other social activities. However, in spite of my specific suggestion that she testify at the hearing, she did not appear. When questioned about this, the individual offered the following explanation for her absence.

We had a little conflict with preschool today, and she needed to be there with my little one; so I made that decision to tell her to be with her.

Tr. at 66. In light of my repeated emphasis on the importance of corroborative testimony, I am troubled by the individual's apparent decision to allow a child-care problem to prevent his wife from testifying and answering questions concerning the individual's fishing trip, his use of drugs, and his social activities. Moreover, my impression of the individual's explanation is that it was offered as an excuse to justify his wife's absence from the hearing and that he was not interested in presenting her testimony. Under these circumstances, I view the individual's failure to present his wife as a witness as an indication that he may be reluctant to have her subjected to questioning that could prove damaging to his case.

At my suggestion, the individual did provide a post-hearing letter from his wife concerning his drug use. In that letter, she confirms his assertion that he went on a fishing trip with old friends that he had not seen since their wedding reception, more than six years before. She describes her reaction to news of his positive drug test for marijuana as follows:

I did not find out about his use of marijuana until that following Friday. Yes, I was very disappointed with [him], because this was very out of character for him. I have never known [him] to use any kind of drug! He has promised me that this would never happen again and I sincerely believe him and trust him. [He] would never want to put me or our family through this again.

Ind. Exhibit 3. She also confirms the individual's assertions that his social life is family centered.

[The individual] is very much a family man and is involved with the upbringing of our children. When we do get the opportunity to go out, which happens once every six months or so, we either spend it with friends over dinner or it's just the two of us.

Id.

The testimony of the character witnesses and his wife's letter provide support for the individual's assertion that he spends a great deal of time taking care of his home and family. His wife's letter also provides some support for his description of the events that occurred the weekend before he tested positive for marijuana, and contains her assertion that she has never known him to use any kind of drug. However, the weight that I can give to the statements contained in his wife's letter must be quite limited. Her written assertions do not carry the weight of sworn testimony and have not been subjected to questioning by the DOE/XXXXX counsel or myself. Nor have I had the opportunity to assess her demeanor in making assertions or responding to questions.

Aside from the written assertions of his wife, the only corroborative items of evidence in this proceeding concerning the individual's alleged lack of marijuana use are the results of two prior random drug tests performed by his employer. These tests indicate that in May 1990 and October 1992, the individual tested negative for the presence of marijuana and other drugs. Ind. Ex. 2 at p. 1. The tests are helpful to know about and add some weight to the individual's assertions. However, a period of almost three and one half years elapsed between the October 1992 negative drug test and the March 1996 positive drug test. While the negative drug tests strongly indicate that the individual was not a regular user of marijuana during the period 1990 through 1992, there was ample time for the individual to become a regular user of marijuana during the lengthy period between October 1992 and March 1996. The individual's positive drug test in 1996 raises a strong concern that he could be a frequent or regular user of marijuana. In addition, the testimony of the individual's drug counselor supports my concern that the individual may be minimizing the number of times he used marijuana prior to his positive drug test. This evidence is not effectively rebutted by negative drug tests from 1992 and 1990.

In conclusion, I believe that the weight of the evidence presented by the individual is insufficient to permit me to find that his use of marijuana in recent years was confined to a single, isolated instance. This is not a situation where a DOE access authorization holder has come forward voluntarily and confessed to a single occasion of marijuana use. Here, the individual's drug use was revealed involuntarily through a positive drug test, raising a strong concern that he may have been engaging in covert marijuana use on a frequent or regular basis. In these circumstances, evidence independent of the individual's own testimony is necessary if we are to accept a description of marijuana use where the limited duration and frequency of usage operate as mitigating factors to support a finding of rehabilitation. Personnel Security Review, (Case No. VSA-0087), 26 DOE ¶ ______ (September 30, 1996).

In this case, the individual's convincing account of his weekend fishing trip, coupled with his wife's supporting letter, lead me to conclude that during the weekend prior to his March 1996 drug test, he shared several marijuana cigarettes while on an overnight trip with four old friends. However, accepting this much of his story is not sufficient to mitigate the DOE's security concerns, because other crucial elements of his explanation are vague and uncorroborated. For example, his account of the events during his weekend trip has been consistently vague concerning the issue of who brought the marijuana cigarettes on the trip and passed them around. See Tr. at 61, PSI at 19. Accordingly, the individual has not persuaded me that he was offered marijuana by someone else on the trip rather than procuring the marijuana himself. Moreover, the individual has not convincingly established, through corroborative testimony or other evidence, that this was his only use of marijuana in recent years. Under these circumstances, I conclude that the individual has not brought forward effective corroborating evidence that his marijuana use is mitigated by having occurred as a unique, isolated event that was instigated by others. See Personnel Security Review (Case No. VSA-0051), 25 DOE ¶ 83,012 at 86,559 (1996).

In the present case, the individual seeks to demonstrate rehabilitation from marijuana use by completion of a formal treatment program and by seven months of abstinence from the use of marijuana.<2> In a September 11, 1996 letter to me, his drug counselor provided the following information concerning the individual's rehabilitation efforts.

[The individual] attended eight (8) sessions of counseling.... He has received a substance abuse assessment, including: (1) a history of his past and present use of drugs and alcohol, (2) The Short Michigan Substance Abuse Screening Test, (3) assessment of problems which are commonly associated with drug and alcohol abuse.

The counselor then offered the following diagnosis of the individual.

My clinical opinion is that [the individual] does not meet the DSM IV criteria for any Substance Abuse or Dependency Disorders, with the possible exception of Nicotine Dependence.

Id. At the hearing, this counselor testified that beginning in March 1996, the individual attended counseling sessions twice a month through July and once a month thereafter. At these sessions, the counselor worked with him to develop a plan for relapse prevention and stress reduction. Tr. at 107. The counselor offered his opinion that it is highly unlikely that the individual will use illegal drugs in this future.

I would say that the chances of him resorting to an illegal drug or excessive alcohol use have been greatly, greatly reduced by not only my program but also this hearing and other sanctions taken at work.

Tr. at 110. When asked to quantify the likelihood of a relapse, the counselor placed it at less than five percent. Tr. at 111. However, the counselor also indicated that the individual has not completed the formal counseling program. The counselor stated that he expected his monthly counseling sessions with the individual to continue for another five or six months. Tr. at 115.

Although the individual's counselor is optimistic concerning his progress toward rehabilitation, I am not convinced that the individual has met Part 710's requirements for demonstrating rehabilitation. As discussed above, in instances where recent drug use was an isolated incident or an infrequent event, the DOE may accept the individual's assurance that he/she will not be involved with drugs while holding a DOE access authorization. However, where illegal drug use is not an infrequent event, a twelve month period of abstinence is generally required to demonstrate adequate evidence of rehabilitation and reformation. Indeed, there is a consensus among substance abuse professionals that habitual users of marijuana and other drugs are not sufficiently rehabilitated until they have abstained from the use of all psychoactive substances for a period of at least 12 months. See Personnel Security Hearing (Case No. VSO-0005), 24 DOE ¶ 82,753 at 85,529 (1995), aff'd, 25 DOE ¶ 83,013, terminated, (OSS June 7, 1995); Personnel Security Hearing (Case No. VSO-0013), 25 DOE ¶ 82,752 at 82,752 (1995), access authorization revoked on other grounds, (OSS, May 22, 1995); Personnel Security Hearing (Case No. VSO- 0023), 25 DOE ¶ 82,761 at 85,580 (1995); see also Personnel Security Hearing (Case No. VSO-0103), 26 DOE ¶ _____ (slip opinion at 6) (October 24, 1996) and cases cited therein.

As discussed at length above, in the present case the individual has not established that his recent use of marijuana was an isolated or infrequent event. Indeed, his drug counselor was unwilling to state that he accepted the individual's assertions regarding the number of times he used marijuana. Tr. at 112-14. Accordingly, there is a distinct possibility that the individual is consciously minimizing his use of marijuana to his counselor and the DOE authorities and that he may have been a frequent recreational user of the drug. Under these circumstances, I believe that it is appropriate to require a full year of demonstrated abstinence by the individual in order to establish rehabilitation. Accordingly, I find that the individual has failed to present sufficient information under 10 C.F.R. §710.8(k) regarding his use of marijuana to permit me to find that he has mitigated the DOE's security concerns.

B. Criterion L

I also find that there is significant derogatory information in the possession of the DOE/XXXXX that provides a sufficient basis for invoking Criterion L. In particular, the individual has testified inconsistently concerning his past use of marijuana. Thirteen days after he admitted to his drug counselor that he experimented with the use of marijuana once or twice while in college, he took part in a PSI where he repeatedly asserted that he never used marijuana except during one recent weekend in 1996.

Questioner: So when was the first time you've ever used marijuana or experimented with marijuana?

Individual: That weekend.

Questioner: This is absolutely the first time you've ever used an illegal drug?

Individual: Uh, yes.

Questioner: You're certain of that?

Individual: I've always drank and my, I guess, my drug of choice.

Questioner: Has been alcohol? Okay. So this is the first time you used marijuana?

Individual: Yes.

PSI at p. 24.

False statements concerning drug use cannot be tolerated in security clearance holders. As pointed out by the Personnel Security Specialist in his testimony at the hearing, the security program is based on trust. If an employee lies to the DOE, that trust is violated. In an effort to mitigate the concerns raised by his false statements, the individual asserts that the feelings of stress and anxiety produced by the PSI caused him to forget the instances of college drug use that he had recalled thirteen days earlier in his counseling session. See June 7, 1996 Response to Notification Letter. I am not convinced by this explanation. The individual may be consciously minimizing his drug use out of legitimate fear of reprisal. Indeed, his counselor has testified that omissions and minimizations concerning illegal drug use are typical behaviors of persons involved in those activities. Tr. at 112-13. I agree with the Security Specialist's conclusion that the individual's statements constitute a violation of trust, and that he must demonstrate to the DOE that he can be trusted again. Tr. at 14.

The individual has not mitigated these concerns at this time. In certain instances, false statements made to the DOE and limited to the area of drug use can be mitigated by proof of rehabilitation and reformation from that drug use. See Personnel Security Hearing, Case No. VSO-0005, 24 DOE ¶ 82,753 at 85,528 (1995). As discussed above, the individual has failed to establish that he has achieved rehabilitation from the use of marijuana. Until his rehabilitation is complete, I find that a substantial doubt exists with respect to the individual's ability to respond truthfully to the DOE concerning his drug use, and with regard to his honesty, judgment, reliability, and trustworthiness for purposes of being entrusted with access authorization.

V. Conclusions

In view of the criteria set forth in 10 C.F.R. Part 710.8 and the record before me, I am unable to find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. It is therefore my opinion that the individual's level "Q" access authorization should not be restored.

The regulations governing this proceeding provide that either the DOE's Office of Security Affairs or the individual may file a request for review of this Opinion. 10 C.F.R. § 710.28(a). The request must be filed within thirty calendar days of receipt of this Opinion. Within fifteen calendar days of filing such a request, the requesting party must file a statement specifying the issues upon which it seeks review. The other party may file a response to the statement of issues. It must do so within twenty calendar days of receipt of the statement of issues.

All submissions must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Avenue, S.W., Washington, D.C. 20585. In addition, a party must send a copy of each of its submissions to the other party.

Kent S. Woods

Hearing Officer

Office of Hearings and Appeals

Date: November 14, 1996

<1>1/ Another possible defense to charges of drug use would be to allege rehabilitation. This method would also require appropriate factual support by the individual. Similarly, an allegation that the drug test itself was for some reason erroneous must be supported by credible evidence. See, Personnel Security Hearing (Case No. VSO-0019), 25 DOE ¶ 82,759 (1995), request for review dismissed, Personnel Security Review (Case No. VSA-0019), December 4, 1995.

<2>The individual's employer has subjected the individual to two random drug screens since he tested positive for marijuana in March 1996. These tests, conducted on June 11, 1996 and September 18, 1996, indicate that the individual has abstained from the use of illegal drugs in recent months. Ind. Ex. 2.