Case No. VSA-0075, 26 DOE ¶ 83,005 (OHA Nov. 8, 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.

November 8, 1996

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Case Name: Personnel Security Review

Date Filed: XXXXX, 1996

Case Number: VSA-0075

This Opinion considers a request filed by XXXXXX ("the individual") for review of a determination issued by a Hearing Officer on XXXXX, 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." Personnel Security Hearing, VSO-0075, 25 DOE ¶ 82,799 (1996) ("Hearing Officer's Opinion").

The Hearing Officer I appointed to hold the Hearing in this matter recommended against the restoration of the individual's access authorization. He found that the individual had altered four government documents and submitted these documents to the United States Army to mislead Army officials into believing that he had served as a pilot while in the United States Marines. He determined that the individual lied to the Department of Energy ("DOE") concerning the alteration of these documents. The Hearing Officer also concluded that the DOE properly invoked 10 C.F.R.§ 710.8 (f) and (l) in suspending the individual's access authorization and that the individual failed to show circumstances that would mitigate the security concerns caused by his pattern of falsifications.

The individual contends that the Hearing Officer's determination is flawed and should be reversed. The grounds asserted are that: (1) the individual's alteration of one document (DD Form 214 (DOE Exhibit 5(a)) did not constitute a misrepresentation because the altered information was true; (2) the Hearing Officer failed to comply with 10 C.F.R. §710.7(c), because he failed to consider factors that would mitigate the security concerns caused by the individual's alteration of documents; (3) DOE failed to prove that the individual altered one

of the four documents (the individual's Flight Time Report for XXX (Exhibit 5(d)(4)); and (4) the individual has been rehabilitated.

For the reasons detailed below, I find that the individual's contentions are without merit or unconvincing. Accordingly, I agree with the Hearing Officer that the individual's access authorization should not be restored.

I. PROCEDURAL BACKGROUND.

The XXXXXXXXXXXXXXXXXXXXXXXXXXXXX, issued a Notification Letter informing the individual that DOE had information that created a substantial doubt about his eligibility to maintain an access authorization under subsections (f) and (l) of 10 C.F.R. § 710. 8 ("Criterion (f)" and "Criterion (l)"). Criterion (f) concerns information that reveals that a person has:

[d]eliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, a personnel qualifications statement, a personnel security interview, 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, or proceedings conducted pursuant to § 710.20 through § 710.31.

Criterion (l) pertains to information evidencing that a person 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 reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of the national security . . . .

The individual requested a hearing before a Hearing Officer with the Office of Hearings and Appeals ("OHA"). A Hearing was held on XXXXXXXX. At the Hearing, two security investigators testified on behalf of the DOE. The individual, who was represented by counsel, testified on his own behalf.

On XXXXXX, the Hearing Officer issued an opinion recommending against the restoration of the individual's access authorization. On XXX, the individual filed a "Request for Review of the Hearing Officer's Opinion." On XXX, the individual filed a "Statement in Support of Appeal." On XXX, XXX informed OHA that it had no "remarks or information to add to the record." On XXX, the administrative record was closed.

II. FACTUAL BACKGROUND.

A. The Documents Submitted to the Army.

The individual has had a long and distinguished military career. For many years, the individual has wanted to be a military pilot. Statement in Support of Appeal at 11.

The individual served in the United States Marine Corps from XXX. While in the Marines, he tried to become a Naval pilot, but failed to complete the training. He did, however, serve as a Naval flight officer. A Naval flight officer is a person who operates the tactical and communication systems in a Navy plane. There is evidence that the Navy considers Naval flight officers and Naval pilots both to be "Naval aviators." Hearing Officer's Opinion at 85,819 n.3. The individual was aware of the Naval definition of this term. Transcript of XXX Hearing at 154-155 ("Hearing Transcript").

The individual served in the Army Active Reserve from XXX through XXX. The Army trained the individual to be a helicopter pilot. The individual admits that he received this training because Army officials believed that he had been a pilot while in the Marines. Hearing Officer's Opinion at 85,819. As the individual admitted during the Hearing, in contrast to the Navy, the Army uses the term "aviator" narrowly to include only "pilots." Hearing Transcript at 154-155.

In XXX, the Army notified the individual that it had information that he was eliminated from a Naval pilot training program for flying deficiencies. The Army temporarily suspended the individual from flying. The Army also directed him to prove that he had completed a military flight training program. In other words, as the Hearing Officer stated, the "Army wanted to know when he [the individual] became a Navy pilot." Hearing Officer's Opinion at 85,819.

In response to this direction, the individual did not inform the Army that he had never been a Naval pilot. Rather, as the individual admitted during the Hearing, he altered a government document (DD Form 214 (DOE Exhibit 5(a)) to indicate that he had been a Naval aviator while he was in the Marines and submitted this document to the Army. Hearing Transcript at 120, 139. The individual did this by changing the title of his primary specialty from "Elec Warfare Airborne ReconO" to "Naval Aviator, EA6A, RF4B, Recon & Operations Off." DOE Exhibit 5(a).

The individual testified that he was motivated to alter this document because he wanted to "end all this bureaucratic garbage by just sending them [the Army] what they want." Hearing Transcript at 139. He further indicated that he altered the document because he wanted to continue to fly for the Army. Id.

The Hearing Officer found that the individual altered the DD Form 214 to indicate that he had served as a Naval aviator to "mislead the Army into thinking that he had been a pilot." Hearing Officer's Opinion at 85,819. The record supports this conclusion. The Army was not interested in the individual's status as a Naval aviator, but as a Naval pilot. Id. Thus, the individual was not directly responding to the Army's inquiry when he altered the document. Rather, the individual altered the form to indicate that he had been a Naval aviator because he knew that Army officials would misinterpret the term "aviator" to mean "pilot."

The Hearing Officer found that the individual also altered three other documents to convince the Army that he had been a Naval aviator (and therefore a pilot) while he was in the Marines. DOE Exhibit 5(d)(4), 5(d)(5), 5(d)(7). The Hearing Officer based this conclusion on the following: (1) the information altered on these documents was similar to the information altered on the DD Form 214, and the individual would have been motivated to alter these documents so that the Army would permit him to continue to fly; and (2) there are differences in the typeface between the altered portions of each of these documents and the remainder of each document. Hearing Officer's Opinion at 85,820.

Although the individual admits that he altered DD Form 214, he has continued to deny altering the other documents. However, the individual has only appealed the Hearing Officer's finding that he altered one of these documents -- the Military Occupational Specialty ("MOS") code on the individual's Flight Time Report for XXX (Exhibit 5(d)(4)).

B. The SF-171.

The individual has been employed since XXX with XXX. In XXX, DOE's Office of the Inspector General ("IG") found that the individual inflated his academic credentials on the Application for Federal Employment ("SF-171") submitted XXX. <1> Based on this finding, the XXX directed the individual to correct his SF-171. The individual complied with this direction.

C. The PSI.

During a routine reinvestigation of the individual,<2> the Office of Personnel Management discovered that the individual had submitted false information to the Army and the DOE. A Personnel Security Interview ("PSI") was conducted with the individual on XXX, to discuss these matters.

During this PSI, the individual first denied that he had altered the DD Form 214. DOE Exhibit 27, at 68, 69. However, he later admitted that he had altered this document. Id. at 83. He denied altering any other documents. Id. at 83-84. The individual did not express remorse for his actions and did not appear to consider his conduct to be wrong. Id. at passim; Hearing Transcript at 60.

D. The Hearing Officer's Conclusion.

The Hearing Officer recommended against the restoration of the individual's access authorization. The Hearing Officer found that the individual had engaged in a pattern of dishonesty that included: (1) altering four documents with the intent of misleading Army officials into believing that he had served as a pilot while in the Marines; (2) making false statements during a Personnel Security Interview ("PSI"); and (3) inflating academic credentials on a SF-171. The Hearing Officer concluded that the DOE properly invoked 10 C.F.R. § 710.8 (f) and (l) in suspending the individual's access authorization and also determined that the individual failed to demonstrate circumstances that would mitigate the security concerns caused by his misrepresentations.<3>

III. THE INDIVIDUAL'S APPEAL.

The individual contends that the Decision should be reversed for four reasons:

(1) The Hearing Officer failed to consider the individual's argument that the alteration of a document (DD Form 214 -DOE Exhibit 5(a)) did not constitute a misrepresentation because the altered information was true;

(2) The Hearing Officer did not comply with 10 C.F.R.§710.7(c), as he failed to consider factors that would mitigate the security concerns caused by the individual's alteration of documents;

(3) DOE failed to prove that the individual altered the Military Occupational Specialty ("MOS") code on a Flight Time Report for XXX (DOE Exhibit 5(d)(4)); and

(4) The individual has been rehabilitated.

IV. ANALYSIS.

After reviewing the issues raised by the individual and the record in this case, I concur with the Hearing Officer's recommendation that the individual's access authorization should not be restored.

Part 710 generally provides 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, and 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). The regulations require that, in reaching the decision as to access authorization, the Hearing Officer consider the existence of mitigating factors including the nature, extent and seriousness of the conduct at issue and the motivation of the individual for engaging in the conduct. 10 C.F.R. §710.7(c). The individual has the burden of proving the existence of mitigating factors. See Personnel Security Hearing, VSO- 0093, 26 DOE ¶ ___ (1996).

A. Whether Alteration of DD Form 214 Was a Misrepresentation.

The individual claims that he had not misrepresented when he altered DD Form 214 (DOE Exhibit 5(a)). He alleges that it was correct to alter the Form to specify that he had served as a Naval aviator because the individual had, in fact, served as a Naval aviator. The Hearing Officer properly rejected this defense.

The individual is correct that there is evidence that the Navy defines the term "Naval aviator" to include both Naval pilots and Naval flight officers. Hearing Officer's Opinion at 85,819 n.3. It is uncontested that the individual served as a Naval flight officer. Therefore, evidence supports the individual's contention that he was a Naval aviator as the term is understood by the Navy.

However, this is not the end of the matter. Under 10 C.F.R.§710.8 (l), I must determine whether the individual's alteration of this document tends to show that the individual was not "honest, reliable or trustworthy." To resolve this issue, I must consider more than whether the individual was actually a Naval aviator. I must also consider the motivation for his conduct.

In terms of motivation, the record confirms that the individual altered the document to mislead Army officials into believing that he was a pilot because he desperately wished to continue to fly. See " Factual Background," supra. As the Hearing Officer pointed out, the Army was not asking the individual to prove that he was an aviator. Rather, "the Army wanted to know when he became a Navy pilot." Hearing Officer's Opinion at 85,819. The individual never told the Army that he had not been a pilot while in the Marines. Rather, the individual secretly altered a document to indicate that he had been a Naval aviator because he hoped that Army officials would misunderstand the term "aviator," and believe that he had been a Naval pilot.

Further, the individual's clandestine alteration of the document further supports the conclusion that the individual was motivated to mislead the Army. The individual's argument that he was forced to alter this document because it was inaccurate as written is without merit. First, the Army had not required the individual to submit a DD Form 214. He chose to submit this document. If this document contained erroneous information, the individual was free to submit other evidence. Moreover, if the individual wished to correct misinformation contained in the DD Form 214, he should have followed official procedures that are available for correcting mistakes contained in government documents.

For these reasons, I find that the individual's conduct in altering the DD Form 214 tends to show that he is not "honest, reliable or trustworthy"under Criterion (l). I further find that it is irrelevant that the individual was a Naval aviator because the individual altered this document in order to mislead the Army for a personal benefit -- so that he could continue to function as a pilot.

.

B. Consideration of Mitigating Factors.

Section 710.7(c) requires that, in reaching the decision as to access authorization, the Hearing Officer consider the existence of mitigating factors including the nature, extent and seriousness of the conduct at issue and the motivation of the individual for engaging in the conduct. The individual contends that the Hearing Officer violated this regulation because he ignored the nature of and motivation for the conduct at issue. More specifically, the individual complains that the Hearing Officer failed to consider the "truth" of the altered DD Form 214 and that the individual altered the documents because he wanted to serve his country. This position lacks merit.

The Hearing Officer addressed the nature of the conduct at issue. As detailed above, this conduct involved the individual's secret alteration of an official document issued by the Marines and the submission of this document to mislead the Army. The individual's intent to mislead the Army is the basis of the security concerns which led to the suspension of his access authorization.

Similarly, the Hearing Officer clearly considered the individual's motivation for the alteration of these documents. The Hearing Officer found that the individual acted so that he could be an Army pilot and that he was not motivated by a desire for personal gain.<4> The Hearing Officer noted that the individual "selflessly and courageously served his country throughout his life." Hearing Officer's Opinion at 85,822.

However, despite the fact that the Hearing Officer found that the individual's motivation and prior military service were mitigating factors, the Hearing Officer concluded that these factors did not ameliorate the security concerns caused by the individual's conduct. The Hearing Officer, adopting the testimony of a DOE security investigator, found that the individual's pattern of falsifications, including the alteration of official government documents and providing information that is less than candid in a PSI, raises questions concerning his honesty, integrity and willingness to safeguard classified information or special nuclear material. The Hearing Officer concluded that, despite his other laudable characteristics, the individual's failure to follow rules indicates that he is not trustworthy, and that he is a security risk. Hearing Officer's Opinion at 85,821-22.<5> Thus, there is no merit to the claim that the Hearing Officer ignored the nature of and the motivation for the conduct at issue here.

C. The Individual's Alteration of the MOS Code.

In addition to DD Form 214, the Hearing Officer found that the individual altered three other documents, including the Military Occupational Specialty ("MOS") code on the individual's Flight Time Report for XXX (Exhibit 5(d)(4)). The individual contends that there was insufficient evidence to support the conclusion that he had altered the MOS code.<6> This argument is also without merit.

The Hearing Officer cited two reasons in support of his conclusion that the MOS code was altered. First, as the MOS code contained information that was similar to the information altered on the Form DD 214, the individual would have been motivated to alter the MOS code so that the Army would permit him to continue to fly. Second, there are differences in the typeface in the document between the MOS code and the remainder of the individual's Flight Time Report for XXX. DOE Exhibit 5(d)(4).

I will sustain the findings of the Hearing Officer concerning the alteration of the MOS Code on the Flight Time Report. This is a factual finding that is entitled to great deference on appeal. I also note that the individual failed to produce any evidence, other than his own testimony, that he had not altered the MOS code. Finally, if this finding were in error, such error would be harmless because the individual has admitted or not appealed the fact that he has altered three other documents. Thus, there is sufficient evidence in the record to justify the revocation of the individual's access authorization on the grounds of alteration or falsification of documents.

D. Rehabilitation.

The individual claims that the Hearing Officer should have recommended that his access authorization be restored because he has been rehabilitated.<7> The individual argues that his correction of past misdeeds, the passage of time and his testimony at the Hearing prove his rehabilitation. The individual has failed to meet his burden of proof on this issue.<8>

The individual specifically contends that the correction of his SF-171 shows rehabilitation. This is unconvincing. The individual submitted the SF-171 in XXX. The individual admits that the SF-171 was not corrected until XXX, when the IG discovered the misrepresentation, and OSS directed the individual to correct the document. The individual did not come forward to correct this document until he was directed to do so after the misrepresentation had been discovered. An involuntary action is no evidence of rehabilitation.

Nor does the passage of time support the individual's claim of rehabilitation. Contrary to the individual's testimony, he has not yet taken responsibility for his misrepresentations. The individual has lied about the alteration of the DD Form 214 as recently as his PSI in XXX. Even after he admitted altering this Form, he did not express remorse for his conduct. Hearing Transcript at 60. Moreover, as in the current Appeal, the individual continues to maintain that the alteration of DD Form 214 and the submission of this Form to the Army did not constitute serious misconduct because the altered information was not technically false, an argument which I reject as irrelevant and unconvincing. Based on these actions, I am unable to conclude that the passage of time shows that the individual is sufficiently rehabilitated or reformed from his pattern of providing false or misleading information to the government.

The individual also contends that his testimony at the Hearing, in which he said that he was sorry for his actions, proves that he has been rehabilitated. This argument is flawed. First, this alleged expression of remorse is contradicted by his refusal to acknowledge, much less express remorse for, his other misdeeds. Second, words alone from an individual seeking restoration of a clearance are not sufficient to prove rehabilitation. The presence of a powerful self-interest requires that we view such testimony with skepticism. The existence of actions demonstrating the acceptance of responsibility is a necessary precondition for rehabilitation, and here there is no evidence of remorse or acceptance of responsibility. See Personnel Security Hearing, VSO-0093, 26 DOE ¶___ (1996) (individual must provide objective, outside corroboration of factual basis for mitigation arguments). <9>

V. Conclusion

After considering the specific issues raised by the individual in his Statement in Support of Appeal and the record in this matter, I find that the individual's access authorization should not be restored because 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(a). In reaching this conclusion, I further find that DOE properly invoked 10 C.F.R. §710.8 (l) and (f) in suspending the individual's access authorization. Criterion (l) was properly cited based on the individual's alteration of official documents with the intent to mislead the Army into believing that he had served as a Naval pilot and on the individual's false statements during a PSI. Criterion (f) was appropriately relied upon based on the false statements made by the individual during his PSI. I also find that the individual has not met his burden of proving the existence of factors that would mitigate the security concerns caused by the individual's pattern of falsifications.

The regulations specify that the Director, Office of Security Affairs, will make a final determination regarding restoration of the individual's access authorization based upon a complete review of the record. 10 C.F.R. § 710.28(e). The Director, Office of Security Affairs, shall through the Director, Office of Safeguards and Security, inform the individual and his counsel in writing of the final determination, and provide a copy of the present opinion. Copies of the correspondence shall be provided to the Director, Office of Hearings and Appeals, the Manager, DOE Counsel and any other party. In the event of an adverse determination, the correspondence shall indicate the findings by the Director, Office of Security Affairs, with respect to each allegation contained in the Notification Letter. 10 C.F.R. § 710.28(f).

George B. Breznay

Director

Office of Hearings and Appeals

Date: November 8, 1996

<1>The individual's misrepresentation of his academic credentials was not directly listed in the Notification Letter. However, the Hearing Officer correctly found that this misrepresentation can be considered as part of a pattern of alleged falsifications that demonstrates that the individual may be a security risk.

<2>The United States Office of Personnel Management reinvestigates a person with an access authorization every five years to determine whether it is appropriate for that person to retain an access authorization. Hearing Transcript at 20.

<3>The Hearing Officer also resolved many issues in favor of the individual. For example, he concluded that the individual did not misrepresent the facts when he signed a document stating that he had never been restricted or suspended from flight duty.

<4>I do not agree with the Hearing Officer that the individual did not alter documents for personal gain. Given the individual's strong desire to be a pilot, being permitted to fly constituted a personal benefit. Thus, I do not find that the individual's motivation is a factor that would mitigate the security concerns raised by his conduct.

<5>The individual cites Personnel Security Hearing, VSO-0069, 25 DOE ¶ 82,795 (1996), in support of his position that we should restore his access authorization. This case is inapposite. In Case No. VSO-0069, the individual failed to file tax returns in a timely fashion because she was disorganized. She never made intentional misrepresentations to a government agency. Moreover, she did not benefit from her inaction as the Federal and state governments both owed her a tax refund. In the instant case, the individual sought to intentionally mislead Army officials into believing that he had been a pilot while in the Marines. Moreover, he hoped to profit from this misrepresentation by being permitted to continue to fly as a helicopter pilot.

<6>The individual did not appeal the Hearing Officer's findings that he altered the two other documents.

<7>In his Statement in Support of Appeal, the individual refers to his rehabilitation argument as a "Request for Reconsideration" under 10 C.F.R.§710.31 (b)(2). A Request for Reconsideration of this type may be considered only after there has been a final determination which revokes the individual's access authorization and there has been a bona fide offer of employment which requires a security clearance. As these events have not yet occurred, a Request for Reconsideration is not the proper vehicle for determining this issue. This argument will therefore be treated in the same fashion as the other issues raised in the individual's appeal.

<8>The individual mistakenly cites Personnel Security Hearing, VSO-0027, 25 DOE ¶82,764, affirmed (OSS 1995), in support of his rehabilitation argument. Case No. VSO-0027 involved the issue of whether an individual had been rehabilitated from his alcohol problem. A ruling on the time and circumstances necessary for alcohol rehabilitation bears little or no relation to the issue here of whether there has been rehabilitation from making intentional misrepresentations to agencies of the United States government.

<9>The individual also claims that his volunteer efforts with the XXX are evidence of his rehabilitation. While the individual is performing a valuable service by volunteering at the XXX, such service does not indicate that he is rehabilitated from his actions of providing misinformation to the government.