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Case No. VSO-0371, 28 DOE ¶ 82,767 (H.O. Mann October 11, 2000)

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* The original of this document contains information which is subject to withholding from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXXXX’s.

October 11, 1000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: June 2, 2000

Case Number: VSO-0371

This Opinion concerns the eligibility of XXXXX (hereinafter referred to as "the individual") to hold an access authorization (also called a security clearance). The individual's access authorization was suspended under the Department of Energy (DOE) regulations set forth at 10 CFR Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." As explained below, I recommend not restoring the individual’s access authorization.

Background

The individual is employed by a contractor at a DOE facility and held an access authorization before it was suspended. The local DOE security office issued a Notification Letter to the individual on May 5, 2000. 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, a Questionnaire for Sensitive Positions (QSP), a personnel qualifications statement, a Personnel Security Interview (PSI), written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization....” The Notification Letter also alleges under 10 CFR § 710.8(k) that the individual has “... possessed, used, or experimented with” marijuana.

The Notification letter lists several instances, starting with a 1990 QSP and most recently on a 1997 Questionnaire for National Security Positions (QNSP), when the individual allegedly gave false, misleading or incomplete statements about his marijuana use. According to the Notification Letter, the individual’s statements on those security forms that he had not used marijuana are contradicted by his admission in a January 13, 2000 PSI that he had used marijuana occasionally from the 1970s up until September 1999, when he tested positive for marijuana.

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 Hearing Officer in this case.

At the hearing that I convened, the DOE Counsel did not call any witnesses. The individual testified on his own behalf, and called three other witnesses: his personal psychiatrist, and two of his supervisors at the DOE facility. The DOE submitted 13 written exhibits.

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 of access authorization would not endanger the common defense and security and would be 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, 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 or her access authorization “would not endanger the common defense and security and would be 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 am not convinced that this individual's access authorization should be restored.

Findings of Fact

The individual admits the allegations in the Notification Letter. During the hearing, the individual presented evidence to mitigate the security concerns in the Notification Letter, and this opinion will focus on whether the individual met his burden of showing that restoring his access authorization is warranted under 10 CFR Part 710. The local DOE security office did not present any live testimony at the hearing, but chose instead to rely on written evidence (five security forms, the positive drug test, and the February 2000 PSI transcript). The testimony of the individual’s witnesses at the hearing helped provide additional contextual information that is relevant to my consideration of the DOE’s documentary evidence. The relevant facts are summarized below.

Although the security concerns in the Notification Letter involve the individual’s use of marijuana, he has had more of a history of problems with alcohol. The individual was arrested for Driving While Intoxicated (DUI) three times after being granted a clearance in 1990. Hearing Transcript (“Tr.”) at 39; DOE Exhibit 11 (1997 QNSP). In 1997, the individual was experiencing stress from the breakup of his marriage. He was arrested for DUI (his third time in seven years), and he voluntarily sought treatment for depression and alcohol dependence. He was hospitalized for a week and continued to receive treatment as an outpatient. At that time, the individual also began individual therapy with his personal psychiatrist, and began attending Alcoholics Anonymous (AA) meetings. When the individual reported his arrest and hospitalization to the DOE, his clearance was suspended. Id. at 40-42.

Following the suspension of his clearance in 1997, the individual continued to work on his recovery. He attended AA meetings, and saw his personal psychiatrist at regular intervals (every two or three months). Id. at 10. The psychiatrist testified that during those visits, he monitored the individual’s depression and used “medications and support to lessen the chance of a relapse.” Id. at 15. The local DOE security office also monitored the progress of the individual’s recovery efforts. In the summer of 1998, the local security office decided to let the individual participate in DOE’s “SARPO” program. Tr. at 45. (At the same time, the local security office apparently reinstated the individual’s clearance. See PSI Tr. (DOE Exhibit 13) at 8; Tr. at 44-45.) In this program the individual received substance abuse counseling, and he was tested monthly for drug and alcohol use. The program normally lasts for two years, but since the individual already had been going to AA meetings and individual therapy for about one and one-half years when he started SARPO, he was only required to undergo testing for a year. Id. The first eleven drug tests were negative, but on his very last drug test, which took place in September 1999, the individual tested positive for marijuana. See DOE Exhibit 12 (drug test report). When the local DOE security office learned of the positive drug test, it again suspended the individual’s clearance. See DOE Exhibit 1 (December 14, 1999 letter to the individual).

In the PSI held in February 2000, the individual admitted that he had used marijuana “once or twice a year” since the 1970s. PSI Tr. at 12. The individual maintained that he had not drunk any alcohol since April 1997, but he admitted that he had smoked marijuana a few times since his April 1997 DUI arrest, the last time being shortly before the positive drug test. According to the individual, he smoked the marijuana in September 1999 to help himself cope with stress from his family problems without resorting to alcohol. Id. at 14. The individual told the interviewer that he had not smoked any marijuana since September 1999, and that he did not intend to use marijuana or alcohol again. Id. at 20.

Mitigating Evidence Presented by the Individual

At the hearing, the individual presented evidence to show that his occasional marijuana use, which formed the basis for the security concerns in the Notification Letter, was related to the depression and the alcoholism for which he was being treated at the time of the positive drug test. The individual testified that as of the hearing date, he had abstained from the use of marijuana for approximately one year, and that he intended never to use it again. His psychiatrist described the individual’s treatment in a positive light, and gave the individual a good prognosis for remaining drug- and alcohol-free in the future.

1. The Individual’s Psychiatrist

The individual has seen his psychiatrist six times since the positive drug test in September 1999. During those visits the psychiatrist updates the individual’s clinical status, “how he’s feeling,” and “the status of his recovery from his chemical dependency.” Tr. at 12. When asked whether the individual “has been faithful in attempting to address the problems that he encounters in everyday life,” his psychiatrist praised the individual as “one of the more consistent and motivated people I have treated with alcoholism and depression.” Id. at 14-15. He opined that the individual was “in remission” from all three related conditions of “major depressive disorder, alcoholism and cannabis use.” Id. at 15; 21. The individual’s psychiatrist reported seeing no evidence that the individual had turned to drugs or alcohol to cope with stress at any time during the year after the positive drug test. Id. at 16.

However, on cross examination, the psychiatrist testified that his treatment of the individual focused on depression and alcohol, and he could not immediately recall whether the issue of marijuana use ever came up. After checking his notes, the psychiatrist found that the individual had mentioned marijuana once in relation to the problems he was having with his clearance, and that was in February 2000. The psychiatrist was certain, however, that marijuana use was discussed in the individual’s chemical dependency group therapy. Id. at 17-18. While the psychiatrist believed that the individual had not used any marijuana in the last year, he did not perform any testing to verify whether the individual was using drugs. Id. at 19. Instead, his opinion was based on his observations of the individual during their visits: “He was clear eyed. He was articulate. He had no slurred speech. He was not stumbling.” Id. at 20.

The individual’s psychiatrist declined my invitation to use the past tense “rehabilitated” to describe the individual because he believed that the “concept of recovery, it’s a day at a time. It’s an ongoing process.” He agreed with the notion that “a year is a good . . . prognostic benchmark of recovery or successful abstinence,” and stated that the individual “has participated in every aspect of his recovery and that plus the fact that he has not used [drugs] is a positive sign.” Id. at 22. The psychiatrist was optimistic about the individual’s recovery, noting that he

has been more involved. He has been more compliant with treatment. In other words, I would put him very much near the top of people I have treated with chemical dependency and depression over the years. So I think that speaks well for his prognosis. I think he’s a person who can learn from experience.

Id. at 23. When asked whether the individual was likely to use drugs in the future, the psychiatrist opined that “his prospects of continued sobriety are very good,” and that “he’s more likely than not to avoid substance abuse,” based on a year of abstinence, and the individual’s level of involvement in his treatment. Id. at 20.

2. The Individual

At the hearing, the individual affirmed his admission in the February 2000 PSI that he had used marijuana off and on for several years. He described what he did after the positive drug test:

I talked to [my psychiatrist] more in the context of the marijuana and what was going on in my life, and I talked to my sponsor – my AA sponsor – which it kind of all goes in together, you know, and I told them. I just – I’m not perfect. And my mental state, you know, the stress and all the family things, and it gets to tugging. And I used it as a release, you know . . . when it [the stress] gets to the limit . . . .

Id. at 47. The individual maintained he had not used marijuana since September 1999, but stated that he had not been tested since that month, unless a drug test was done on his annual physical and he was not told about it. Id. at 48. Ultimately, the individual conceded, we have to rely on his word that he has not used any marijuana since September 1999. Id. The individual expressed his belief that his main addiction problem was with alcohol, that he never considered that he had a problem with marijuana, but that through AA and his treatments, he came to the understanding that the two drugs were tied together. Id. at 49. However, the individual never indicated how often he attended AA meetings. The individual described the new coping mechanisms he learned to avoid another relapse, and repeated his assertion that he would never go back to using marijuana again. Id. at 50.

On cross examination by the DOE Counsel, the individual admitted that he had used marijuana “once or twice a year” from the mid-1970s until September 1999, and conceded that he had failed to disclose his drug use on the DOE security forms that he completed from 1990 through 1997. Tr. at 54-64; see also DOE Exhibits 7 through 11.

At the conclusion of the hearing, the individual repeated his resolve not to use marijuana or alcohol again: “I work at it real hard. I’m definitely not perfect, and I try like hell to keep all my stress down. And I’m going to say no.” He admitted he had weaknesses, and that he had “screwed up,” but insisted that “it’s kind of helped me in my treatment, because getting well is being truthful.” Id. at 67-68.

3. The Individual’s Supervisors

The individual also presented the testimony of two supervisors from the DOE contractor where he works. They both stated that the individual was a conscientious and reliable worker who showed no signs of drug or alcohol use on the job. One of these witnesses also confirmed that the individual’s employer did not do random drug tests. Id. at 38.

Analysis

For the reasons explained below, I do not agree with the individual that he has presented information sufficient to resolve the concerns about current marijuana use (Criterion K), and submission of false information on security forms about his past marijuana use (Criterion F). Thus, I must recommend against restoring the individual’s clearance.

1. Marijuana Concerns under Criterion K

It is clear that both the individual and his psychiatrist thought marijuana use was secondary to the individual’s main problems, depression and alcoholism. The individual only mentioned marijuana once to his psychiatrist, and that was in the context of problems with his security clearance in February 2000. The individual’s psychiatrist focused his treatment on depression and alcoholism, which he considered the individual’s principal ailments. The individual explained that he used marijuana to avoid drinking alcohol, which he viewed as a much more serious threat, in view of his history of alcohol-related problems. Based on the individual’s explanation of how and why he smoked marijuana, his resort to the drug to “take the edge off” (in the words of the DOE security interviewer) when he was feeling stress was more in the nature of self-medication than recreational drug use. Although marijuana may have helped this individual avoid drinking alcohol, his using an illegal drug as a palliative is no less problematic from a security standpoint. These circumstances lead me to conclude that the local DOE security office was justified in raising a concern under Criterion K about the individual’s marijuana use.

Illegal drug use raises a security concern because it may reflect an inability to safeguard classified information and special nuclear material. Involvement with illegal drugs exhibits a disregard for laws prohibiting their use. Such disregard for the law raises concerns that the individual may similarly disregard other laws, including those which protect classified information and special nuclear materials. See Personnel Security Hearing, Case No. VSO-0116, 26 DOE ¶ 82,765 at 85,602 (1997), citing Case No. VSO-0013, 25 DOE ¶ 82,752 at 85,512 (1995). Moreover, the use of illegal drugs (and the disregard for law and authority that it suggests) indicates a serious lapse in judgment. Involvement with illegal drugs may also render the user susceptible to blackmail or coercion. The concerns raised by an individual’s illegal drug use are heightened when the drug use occurs while the individual holds a DOE security clearance, since avoiding illegal drug use is a requirement of both the DOE's safety and security regulations.

The question remains whether the individual has shown sufficient evidence of reformation or rehabilitation in the year since the positive drug test to resolve the concern about his marijuana use. See 10 CFR § 710.7(c). The individual maintains that he has not used any marijuana in the year since his positive drug test, and his psychiatrist reports seeing no evidence of subsequent drug use whenever he saw his patient during that period. The individual’s case would certainly be stronger if he had been subject to drug testing during the last year, and could show a series of negative tests. In the end, I have only the individual’s word on which to rely, with the sole corroborating evidence being the testimony of his psychiatrist. The psychiatrist’s testimony is entitled to some weight as it is based on direct observations of an individual with whom he has had a long therapeutic relationship, his professional judgment of the individual’s compliance with his treatment, and his commitment to recovery.

Until the positive drug test in September 1999, the individual was obviously in denial when it came to the dangers–legal as well as medical–of his marijuana use. After that test, the individual claims he began to see his marijuana use as part of the alcohol problem he was striving to overcome. The timing of the positive drug test is particularly troubling. The fact that the individual succumbed to marijuana during the very last month of a year-long period when he knew he was being tested monthly for drug and alcohol use shows that he has trouble coping with stress without relapsing into substance abuse.

After weighing and balancing all the evidence in the record, I find the individual has not proved that he has reformed his behavior or achieved a sufficient level of rehabilitation to resolve the marijuana concern. In this case, it is significant that the individual’s marijuana use was not recreational, but related to an underlying psychiatric condition of depression and substance abuse (with the main substance of concern being alcohol). See Personnel Security Hearing, Case No. VSO-0321, 27 DOE ¶ 82,842, reversed (OHA June 29, 2000), affirmed (OSA September 7, 2000) (hearing officer may consider whether marijuana use results from an ongoing medical or psychiatric condition). As a result, the individual’s marijuana use, while sporadic, appears to have been part of a long-standing pattern, compulsive in nature, and difficult to control. The positive drug test, coming when it did at the end of a year of monthly testing in a DOE-sponsored rehabilitation program, and two years of AA and individual psychotherapy, was a serious relapse which shows that this individual was out of control at the time. By allowing the individual to participate in the SARPO program, the local DOE security office gave him a second chance. The individual was not being honest with himself when he resorted to marijuana as a substitute for alcohol. My impression is that the individual was so focused on his alcohol problem that he still has not admitted that using an illegal drug like marijuana is a serious concern in the security context. The evidence that the individual has remained drug-free during the past year is shaky, resting only on the word of the individual and the opinion of his psychiatrist. While the individual’s own testimony provides some evidence regarding his marijuana use, it is inherently suspect because it is in the individual’s interest to minimize that use. The psychiatrist had a limited opportunity to observe the individual during the past year, seeing him only during six office visits. The individual has an admitted history of using marijuana to cheat on his alcohol rehabilitation. There has been no drug testing to verify the individual’s claim that he has abstained from using marijuana during the past year. The individual has obviously made a serious effort to rehabilitate himself, and he is to be commended for trying. But the positive drug test at the end of the SARPO program was his third strike, and he has not dispelled the doubts raised by his past behavior. For these reasons I find that he has failed to resolve the marijuana concern under Criterion K.

2. Falsification Concerns under Criterion F

The individual admitted that he failed to disclose his marijuana use on his security forms, but he offered virtually nothing to mitigate the falsification concerns in the Notification Letter. It appears to me that this is part of the individual’s overall pattern of denial that his marijuana use was a problem from a medical, legal and security perspective. The DOE security program is based on trust, and once an individual has breached that trust, a serious question arises as to whether that individual can be trusted to comply with the security regulations. Personnel Security Hearing (Case No. VSO- 0013), 25 DOE ¶ 82,752 at 85,515 (1995), affirmed (OSA, May 22, 1995). At this point in time, I am not convinced that this individual appreciates the gravity of his having submitted false information about his marijuana use on five separate DOE security forms over a seven-year period. I therefore find that he has failed to resolve the falsification concern under Criterion F.

Gauging the individual’s conduct under the factors set forth in 10 CFR § 710.7(c), I find his marijuana use was part of a pattern of self-medication and denial related to depression and alcohol abuse that he had still not broken at the time of the positive drug test. In addition, I find that his participation was knowledgeable and voluntary, and the conduct took place when he was a mature adult. It is laudable that the individual has attempted to reform his behavior through abstinence, medical treatment, and participation in group therapy. However, I am not convinced the steps this individual has taken have resulted in his reformation and rehabilitation, and I cannot say with a reasonable degree of confidence that the conduct is unlikely to recur in the future.

Conclusion

Based on the entire record in this proceeding, I find that the individual has not resolved the security concerns raised under 10 CFR § 710.8(k), and under 10 CFR § 710.8(f). I conclude that the individual has not mitigated the concern that he used marijuana because the evidence indicates that his last use occurred approximately one year ago and that the individual has not convinced me that he is rehabilitated. I also find that he has not mitigated the concerns that he gave false or misleading information to DOE security that was relevant to his eligibility for access authorization.

For the reasons explained in this Opinion, I find that the individual has failed to show that restoring his access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I recommend that the individual's access authorization not be restored.

The regulations set forth at 10 CFR § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer's Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and served on the 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 within 20 days of receipt of the statement. 10 CFR § 710.28(b). The address to which submissions must be sent for purposes of serving them on the Office of Security Affairs is as follows:

Director

Office of Safeguards and Security, SO-21

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

Thomas O. Mann

Hearing Officer

Office of Hearings and Appeals

Date: October 11, 2000