Case No. VSA-0118, 26 DOE ¶ 83,012 (OHA June 9, 1997)

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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.

June 9, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

OPINION OF THE DIRECTOR

Case Name: Personnel Security Review

Date Filed: March 18, 1997

Case Number: VSA-0118

I. PRELIMINARY STATEMENT

This Opinion considers a request filed by XXXXXXXXXXXXX (the individual) for review of a determination issued by a Hearing Officer on February 7, 1997, 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, Case No. VSO-0118, 26 DOE ¶ 82,769 (1997) (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 determined that the individual has been involved in a long pattern of criminal activities, including two recent crimes of domestic violence. The Hearing Officer also found that the individual made false statements to the Department of Energy (DOE) during a Personnel Security Interview (PSI). Based on the above, the Hearing Officer concluded that substantial questions existed concerning the individual's judgment, trustworthiness, and ability to control his actions. He also determined that the individual failed to show circumstances that would mitigate the security concerns caused by his conduct.

The individual contends that the Hearing Officer's determination is flawed and should be reversed. The grounds asserted are that: (1) the DOE failed to prove that the individual had committed the November 1995 crime of domestic violence or made false statements concerning this crime at a PSI; and (2) the individual had proved the existence of factors that mitigate the security concerns caused by his criminal activities and false statements. As

detailed below, I have concluded 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.

II. PROCEDURAL BACKGROUND

DOE issued a Notification Letter to the individual that suspended his access authorization on the grounds that DOE had information creating a substantial doubt concerning his eligibility to maintain an access authorization under 10 C.F. R. §710.8 (f) and (l) (Criterion F and Criterion L). Under Criterion F, the Notification Letter indicated that DOE had information that the individual deliberately misrepresented information during a PSI. Under Criterion L, the Notification Letter indicated that DOE had reliable information that the individual had a substantial criminal record and had been involved in two recent crimes of domestic violence. The Notification Letter indicated that these criminal activities tend to show that the individual is "not honest, reliable, or trustworthy."

The individual requested a hearing before a Hearing Officer with the Office of Hearings and Appeals (OHA). At the Hearing, the individual testified on his own behalf, and called his former girlfriend, former girlfriend's son, ex-wife, two supervisors, a counselor, and a substance abuse specialist. The police officer who arrested the individual in November 1995 testified for DOE.

On February 7, 1997, the Hearing Officer issued an opinion recommending against the restoration of the individual's access authorization. On March 18, 1997, the individual filed a request for review of the Hearing Officer's Opinion. On March 31, 1997, the individual filed a "Statement of Issues for Review." On April 23, 1997, the Office of Safeguards and Security informed OHA that it concurs in the recommendation of the Hearing Officer, and "does not wish to submit any additional information at this time."

III. THE HEARING OFFICER'S OPINION

The Hearing Officer recommended against the restoration of the individual's access authorization. The Hearing Officer found that the individual had been involved in a long pattern of criminal activities, including two recent crimes of domestic violence, and had made false statements during a PSI. The Hearing Officer found that these activities raised substantial security concerns and that the individual failed to show circumstances that would mitigate these security concerns.

A. Criterion L - The Hearing Officer's Factual Findings

The Hearing Officer found that the individual has engaged in a long pattern of criminal activities. Chart No. I summarizes the Hearing Officer's findings concerning the criminal charges filed against the individual:

CHART NO. I

DATE AND CHARGE	DISPOSITION	CIRCUMSTANCES
March 1971 - Breaking and Entering and Grand Larceny.	Pled Guilty to Grand Larceny; Dismissal of Breaking and Entering; Sentenced to 1-7 years incarceration (suspended); three years probation.(1)	Unknown.
September 1972 - Disorderly Conduct and Menacing Threats.	Found Not Guilty.	Unknown.
September 1972 - Threatening in a Menacing Manner.	Unknown.	Unknown.
September 1972 - Probation Violation.	Unknown.	Unknown.
June 1973 - Disorderly Conduct.	Found Guilty; Sentenced to serve ten days in jail and pay fine.	Unknown.
April 1985 - Reckless Driving.	Found Guilty; Fined.	Unknown.
April 1986 - Driving While Intoxicated.	Pled Guilty; Sentenced to serve three days in jail and pay fine.	Because he pled guilty, the Hearing Officer rejected individual's explanation that he had not had very much to drink.
December 1987 - Driving While Intoxicated.	Found Guilty; Sentenced to serve forty-five days in jail and to pay fine.	Individual stressed because of death of an aunt who was "like a mother." After wake, consumed tranquilizer and beer. Interaction caused intoxication.
February 1989 - Disorderly Conduct (Fighting).	Payment of a $46 waiver.	Hearing Officer rejected individual's claim that he was the passive victim of assault because he did not contest charge.
March 1994 - Domestic Violence.	No Contest; Sentenced to thirty days suspended; Two years probation; Must attend domestic violence counseling.(2)	Individual admits he hit his girlfriend when she intervened in an argument involving his daughter. Unclear whether blow was intentional.
November 1995 - Domestic Violence and Aggravated Assault.	Indicted only on Domestic Violence; Pled guilty to Domestic Violence misdemeanor. Sentenced to six months (suspended to twenty days); Must be evaluated for substance abuse and attend domestic violence program.	Hearing Officer found that (1) individual minimized events that led to Domestic Violence charge, (2) events that led to Domestic Violence charge unclear, and (3) individual pulled gun after police came. (3)

B. Criterion L - The Hearing Officer's Analysis

As detailed below, the Hearing Officer divided the individual's criminal record into three periods: (1) criminal charges filed between 1971-1973; (2) criminal charges filed between 1985-1989; and (3) criminal charges filed between 1994-1995.

1. 1971-1973

The Hearing Officer gave little weight to the charges against the individual during this period because (1) the incidents upon which these charges were based occurred more than twenty- three years ago when the individual was a young man, (2) the disposition of certain of these charges (September 1972 "Threatening in a Menacing Manner" and" Probation Violation") was unavailable, and (3) the individual had been found not guilty of the September 1972 "Disorderly Conduct and Menacing Threats" charge. However, the Hearing Officer concluded that the charges that the individual did not dispute (March 1971 "Grand Larceny" and June 1973 "Disorderly Conduct" ) should not be ignored, and must be evaluated in the context of the entire record.

2. 1985-1989

The Hearing Officer concluded that the four charges brought against the individual between 1985-1989 raised security concerns. The Hearing Officer noted that the individual was a mature adult in his thirties during this period. He also determined that the driving offenses, particularly those involving alcohol, demonstrate a "serious lack of judgment." He found, however, that the following mitigating circumstances existed: (1) the incidents occurred between eight and twelve years ago; (2) the individual has not been involved in any alcohol- related incidents for more than nine years; and (3) the individual was under stress because of his aunt's death at the time of the December 1987 "Driving While Intoxicated" charge.(4)

Nevertheless, the Hearing Officer found that these circumstances were not sufficient to alleviate completely the security concerns raised by the individual's actions during this period. Moreover, he indicated that the individual's inability to exercise good judgment at the time of his aunt's death was troubling because it indicated that stress could cause the individual to have impaired judgment in the future. Based on the above, the Hearing Officer concluded that the individual's actions in the 1980s raised security concerns and should be viewed as part of a larger pattern of criminal conduct.

3. 1994-1995

The Hearing Officer found that the individual's behavior during the March 1994 "Domestic Violence" and November 1995 "Domestic Violence and Aggravated Assault" charges raised serious security concerns that were not mitigated. As to the March 1994 "Domestic Violence" charge, the Hearing Officer found that the individual's act of striking his girlfriend, whether intentional or unintentional, shows poor judgment and/or an inability to control his actions. As to the November 1995 charges, the Hearing Officer could not conclude with certainty what occurred before the police arrived. However, he found that the individual had minimized the seriousness of the circumstances that were the basis for the Domestic Violence charge. He also found that the individual exercised extremely poor judgment in taking out a gun after the police arrived.(5) The Hearing Officer found that the individual was not rehabilitated based on his attendance in a domestic violence counseling program in 1994 because he had failed to control his behavior in November of 1995.(6)

C. Criterion F

The Hearing Officer found that the individual provided false information to the DOE regarding his November 1995 arrest during a December 1995 PSI. The Hearing Officer specifically found that the individual lied when he denied that he had been drinking or had gone to a bar on the night of the incident because the individual later admitted that he had been drinking at a bar.

The Hearing Officer also found that the individual lied at the PSI when he stated that he had not hit his girlfriend. Although the Hearing Officer indicated that it was impossible to know with certainty what occurred on the night of the incident before the police arrived, he concluded that people (including the individual) involved in the incident were minimizing the seriousness of events in their recent statements and at the hearing. The Hearing Officer also noted that the individual had testified at the hearing that he and his girlfriend were engaged in horseplay at the time of the incident, and that he had slapped his girlfriend with something like a towel.

The Hearing Officer determined that security concerns arising from these misrepresentations were somewhat mitigated by the individual's voluntarily reporting other information to Security Affairs.

IV. ANALYSIS

The individual contends that the decision of the Hearing Officer should be reversed for two reasons. First, the individual alleges that DOE failed to prove that he committed the 1995 crime of domestic violence or made false statements concerning this crime during a PSI. Second, the individual claims that he has shown circumstances that mitigate the security concerns caused by the derogatory information. After reviewing the issues raised by the individual and the record here, I have determined that these arguments are without merit, and I concur with the Hearing Officer's recommendation that the individual's access authorization should not be restored.

A. DOE Properly Suspended the Individual's Access Authorization

The individual claims that the Hearing Officer erred because DOE failed to prove that he committed domestic violence in November of 1995 and made false statements at a PSI. The individual does not contest that DOE had reliable information that he had pled guilty to the 1995 charge of Domestic Violence, and that he made statements about this crime during a PSI that were inconsistent with other statements. Rather, he contends that he did not commit this crime, or lie about it during a PSI. The individual's argument is without merit. He fails to understand who has the burden of proof in Part 710 proceedings.

An administrative review proceeding under Part 710 is designed to protect the national security. It is not a criminal proceeding, which has procedures that are designed to protect an individual from unjust imprisonment. DOE does not have to prove "beyond a reasonable doubt" that an individual has committed a crime or engaged in other inappropriate behavior to justify the revocation of his security clearance. Rather, there is a presumption against granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988).

Under Part 710, DOE may suspend an individual's access authorization "where [derogatory] information is received which raises a question concerning the continued eligibility of an individual for DOE access authorization. . . ." 10 C.F.R. §710.10 (a). DOE does not have to prove the truth of the derogatory information to suspend an individual's access authorization. Rather, DOE need only have reliable information that reasonably tends to establish that an individual has been involved in activities that create a question as to the individual's eligibility for access authorization. 10 C.F.R. §710.9 (a).

Here, the individual does not dispute that he entered a plea of guilty to the November 1995 Domestic Violence charge or that statements he made at a PSI were inconsistent with his other statements concerning the incident. Therefore, he cannot contest that DOE had sufficient derogatory information to justify the suspension of his clearance.(7)

B. The Individual Failed to Demonstrate Mitigating Circumstances

From 1971 until 1995, the individual has been found guilty, entered a plea of guilty, or failed to contest criminal charges on eight separate occasions. Most recently, in 1994 and 1995, the individual's criminal activities involved two charges of Domestic Violence. The individual also made false statements to the DOE. These actions raise serious questions concerning the individual's judgment and reliability.

The individual contends that he has presented evidence that would mitigate the security concerns associated with each act of misconduct. He claims that the Hearing Officer erroneously failed to find that these circumstances mitigated the security concerns. As detailed below, I find that the individual's arguments are unconvincing.

1. The individual's burden of proof

After a question concerning an individual's eligibility for an access authorization has been raised, the burden shifts to the individual who must support his eligibility for access authorization. See 10 C.F.R. §710.21(b)(6). He must come forward with convincing factual evidence that "the grant or restoration of access authorization to the individual would not endanger the common defense and security and would be clearly consistent with the national interest." See 10 C.F.R. § 710.27(a). In short, the individual must demonstrate that the derogatory information is false or the existence of other circumstances that would mitigate the security concerns caused by the derogatory information.

Where misconduct has been alleged, the individual may meet his burden of proof by demonstrating that he did not commit the misconduct alleged. This is a heavy burden. See Personnel Security Hearing (Case No. VSO-0051), 25 DOE ¶ 82,784 (1995), aff'd, 25 DOE ¶ 83,012 (1996) (individual failed to show that passive inhalation of marijuana smoke at a night club caused his positive drug test); and Personnel Security Review, VSA-0078, 25 DOE ¶ 83,016 (1996) (individual failed to show that it was more likely than not that someone else forged his credentials).

2. The individual's claimed mitigating circumstances

Chart No. II sets forth the individual's arguments concerning the circumstances that mitigate each act of misconduct.(8)

CHART NO. II

Crime or Misconduct	Claimed Mitigation
Entire Pattern of Criminal Activity	Work Record.
March 1971 - Grand Larceny	Event Occurred More Than 25 Years Ago.
June 1973 - Disorderly Conduct	Event Occurred More Than 25 Years Ago.
April 1985 - Reckless Driving	Event Occurred More Than 10 Years Ago.
April 1986 - Driving While Intoxicated	(1) Event Occurred More Than 10 Years Ago; (2) No DWI's for More Than 9 Years; (3) Not Alcohol Dependent; and (4) Admitted Responsibility. (9)
December 1987 - Driving While Intoxicated	(1) Event Occurred More Than 9 Years Ago; (2) Stress Because of Aunt's Death; (3) Inebriation Caused by Interaction of Tranquilizer and Beer; (4) No DWI's for More than 9 Years; and (5) Not Alcohol Dependent.
February 1989 - Disorderly Conduct	Individual Was Passive Victim.
March 1994 - Domestic Violence	(1) Stress Caused by Former Wife and Children Living with Individual, his Girlfriend, and her Children; (2) Stress caused by Overwork; (2) Admitted Responsibility; (3) Did Not Intend to Hit Girlfriend; and (4) Rehabilitated.
November 1995 - Domestic Violence	(1) Did Not Commit Crime; and (2) Rehabilitated.
December 1995 - False Statements at PSI	(1) Did Not Make False Statements; and (2) History of "Forthrightness."

a. The 1995 crime of Domestic Violence

The individual has claimed that he is not guilty of the 1995 charge of Domestic Violence. He alleges that, despite his innocence, he entered a guilty plea to obtain a favorable plea bargain. As detailed below, the individual's position is without merit. He misunderstands the conclusive effect of a guilty plea in a subsequent judicial or administrative proceeding.

Under the regulations, all DOE officials involved in a proceeding under Part 710 are charged with making a common-sense judgment concerning the appropriateness of granting an access authorization to a certain individual. See 10 C.F.R. § 710.7(a). Here, as a matter of common sense, I must conclude that the individual is guilty of the November 1995 charge of Domestic Violence. The fact that the individual entered a guilty plea is wholly conclusive on this issue. The individual's contention that he entered a guilty plea to obtain a favorable plea bargain is contradicted by the determination of the state criminal court that the individual's guilty plea was based on fact.(10)

Moreover, even if there were not a clear common sense basis for this conclusion, the doctrine of collateral estoppel prevents the individual from re-litigating in this proceeding the issue of his guilt with regard to the November 1995 charge. Collateral estoppel precludes a party from litigating an issue in a judicial or administrative proceeding when: (1) the party against whom the doctrine is currently being asserted was a party to an earlier action; (2) there has been a final judgment on the merits in the earlier case after a full and fair opportunity to litigate the issue; (3) the issue has been admitted or actually decided, and was necessary to the final judgment; and (4) the issue in the second suit is identical to the issue involved in the prior suit. Balboa Ins. Co. v. S.S.D. Dist. System, Inc., 672 N.E.2d 718(Ohio 1996).(11)

These elements are present here. First, the individual was clearly a party to both actions. Second, the state court entered a final judgment in the criminal matter, and the individual had a full and fair opportunity to litigate the issue of his guilt. The fact that the individual chose not to litigate this matter is irrelevant. See Rodriguez v. Schweiger, 796 F.2d 930 (7th Cir. 1986) (entry of guilty plea not inconsistent with defendant having been provided a full and fair opportunity to litigate the issue of his guilt). Third, the individual admitted his guilt when he entered a guilty plea, and the state court judge found that the individual was guilty of the crime. This finding of guilt was necessary to the final judgment in the action. Fourth, the issue raised in this proceeding -- whether the individual was guilty of the 1995 charge of Domestic Violence -- is identical to the issue raised and determined by the state criminal court.

Based on the above, I conclude that the individual is estopped from re-litigating in this proceeding the issue of his guilt of the November 1995 charge of Domestic Violence. See Graybill v. United States Postal Service, 782 F.2d 1567 (Fed. Cir. 1986) (employee who had pled guilty to criminal charge collaterally estopped from attempting to prove innocence in administrative personnel action); Blohm v. Commissioner, 994 F.2d 1542 (11th Cir. 1993) (collateral consequences of a guilty plea may not be avoided by claim of innocence).(12)

b. False statements at a PSI

The individual has also failed to meet his burden regarding the truth of statements that he made during a PSI concerning his November 1995 arrest for Domestic Violence. He claims that his statements at the PSI denying that he had hit his girlfriend, been to a bar, or consumed any alcoholic beverages on the night of his arrest, were true. However, the individual later admitted that he had consumed part of an alcoholic drink at a bar and hit his girlfriend with something like a towel. DOE Exhibit 7 at 7,11,16,17; Transcript of Personnel Security Hearing at 139-140. These inconsistent statements completely undermine the individual's position that he did not make false statements concerning those matters at the PSI. The individual has, therefore, failed to meet his burden of proof on this issue.

c. The individual's work record

The individual's work record is the only circumstance offered by the individual to mitigate the security concerns caused by the entire pattern of his criminal conduct and the false statements that he uttered during the PSI. He points to the fact that he has had no work related incidents of bad judgment in the eighteen years that he worked for a DOE contractor. The individual argues that his excellent work record shows his good judgment and mitigates his misconduct.

The individual's excellent work record is evidence in his favor.(13) However, an excellent work record is not sufficient to mitigate the security concerns associated with serious misconduct for several reasons. First, the individual's poor judgment and self-control outside of work indicates that he is at increased risk for using poor judgment and self-control while at work. Good job performance in the past does not mean that risky behavior will not soon cause poor work-related behavior. Moreover, the individual's criminal actions make him prone to blackmail to "cover up" his criminal conduct. Finally, the individual's lack of respect for the criminal law indicates that he cannot be trusted to follow other laws -- including security regulations. Thus, the fact that an individual might still be a dependable worker does not eliminate the security concerns associated with a long pattern of criminal conduct and the making of false statements during a PSI. See Personnel Security Hearing, Case No. VSO- 0075, 25 DOE ¶ 82,799 (1996); Personnel Security Hearing , Case No. VSO-0068, 25 DOE ¶ 82,804 (1996).

d. Events that occurred more than ten years ago

The Hearing Officer found that the passage of time mitigated, but did not erase, the security concerns associated with events that occurred more than ten years ago. The Hearing Officer concluded that an event more than ten years old should not be ignored in this proceeding. He concluded that it alone does not justify the revocation of the individual's security clearance. However, such an event should be considered as part of a larger pattern of incidents that create a serious security concern. The Hearing Officer's analysis of this factor is sound. I do not agree with the individual that it provides grounds for reversal. Personnel Security Hearing, Case No. VSO-0096, 26 DOE ¶ 82,756 (1996).

e. Stressful circumstances

The individual claims that stressful circumstances caused some of his criminal conduct. He claims that his living situation and overwork caused the March 1994 domestic violence incident, and that the 1987 DWI occurred because of the death of his aunt. The Hearing Officer found that the individual's stress did not excuse his criminal behavior.

In the past, we have found that extremely stressful events may partially mitigate the security concerns associated with nonviolent conduct. See Personnel Security Hearing, Case No. VSO-0045, 25 DOE ¶ 82,774 (1995) (individual's stress because of wife's illness partially mitigated security concerns caused by one-time drug use). Thus, I must make a common- sense judgment based on the facts of this particular case to determine whether, and to what extent, stressful circumstance mitigate the security concerns caused by the individual's misconduct. See 10 C.F.R. § 710.7(a).

It is my opinion that stress can rarely serve as a basis for excusing violence towards others. Accordingly, I agree with the Hearing Officer that the stress described by the individual as the cause of the 1994 Domestic Violence charge does not excuse his violent behavior toward his girlfriend.

However, I find that the individual's behavior after his aunt's wake is an example of an excusable reaction to intense grief. According to his account, because of his grief, a sympathetic family member gave the individual a tranquilizer. He was not accustomed to the drug. He consumed a beer and was not prepared for the interaction. Although taking a tranquilizer without a prescription is probably a crime and caused the individual to commit a DWI, under the circumstances I find it does not reflect a continuing lack of judgment that would mandate the revocation of a security clearance. My conclusion would be different if this event did not occur immediately subsequent to his aunt's wake or if such behavior were to continue over time.

f. Reckless behavior

The individual claims that the security concerns associated with the 1994 and 1995 charges of Domestic Violence are mitigated because some of his actions were "unintentional." The individual claims that he did not intend to hit his girlfriend in 1994, or get his gun after the police arrived in 1995. The individual has mischaracterized his actions. He did not act inadvertently. He did not make an innocent mistake. Rather, during both these incidents, the individual was acting with a reckless disregard of the consequences of his actions. I agree with the Hearing Officer that these incidents demonstrate that the individual is unable to control his behavior. The real issue is not whether the individual's conduct was intentional, but whether the individual has demonstrated a lack of reliability by engaging in the conduct. The reckless nature of the individual's conduct is not a mitigating factor.

g. Rehabilitation - domestic violence

The individual next claims that the Hearing Officer wrongly rejected his contention that he had taken responsibility for his tendency to engage in domestic violence and had been rehabilitated after he attended a counseling program in 1994. The individual contends that the Hearing Officer erroneously believed that the individual again resorted to domestic violence in 1995. I disagree. Because of his guilty plea, it was reasonable for the Hearing Officer to find that the individual resorted to domestic violence in 1995. Moreover, as detailed above, the individual is estopped from attempting to demonstrate that he was not guilty of the charge of "Domestic Violence" in 1995 because he entered a plea of guilty to this charge. As such, the Hearing Officer's assumption was correct, and the individual has not met his burden of proving rehabilitation.

h. Rehabilitation - alcohol-related problems

The individual further claims that the security concerns caused by his DWIs have been mitigated because he has taken responsibility for his first DWI and has been rehabilitated from his alcohol problems. He says that he has not been involved in any alcohol-related incidents for more than nine years. I agree with the Hearing Officer that these facts (together with the passage of time) reduce substantially, but do not erase, some of the concerns caused by the driving incidents. I also agree with the Hearing Officer's conclusion that these offenses themselves do not alone justify the revocation of the security clearance, but are properly considered as part of a larger pattern of conduct.

i. The individual's general "forthrightness"

The individual alleges that his general "forthrightness" in reporting past arrests and other unfavorable matters to Security Affairs mitigates the concerns caused by the false statements that he made during the PSI. The individual's argument is not persuasive. The individual is required to report all arrests to Security Affairs. The individual's compliance with this obligation will not excuse his noncompliance with his other obligations. According, I do not believe that the individual's general "forthrightness" mitigates the security concerns engendered by the individual's act of making false statements during a PSI.

V. CONCLUSION

After considering the specific issues raised by the individual in his Statement of Issues for Review 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. § 710.28 (d). 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 past pattern of criminal conduct and two recent incidents of domestic violence. Criterion F was appropriately relied upon based on the false statements the individual made during his PSI. I also find that the individual has not met his burden of proving the existence of factors that would mitigate completely the security concerns caused by his misconduct.

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: June 9, 1997

(1)The Hearing Officer found that this charge and the June 1973 "Disorderly Conduct" charge were not disputed by the individual. The information concerning the disposition of these charges was obtained from the Notification Letter. DOE Exhibit 3.

(2)The information on sentencing for this charge and the November 1995 charge of "Domestic Violence" was obtained from the Notification Letter. DOE Exhibit 3.

(3)The record indicates that the individual has claimed that he is innocent and pled guilty to obtain a favorable plea bargain. Under the plea bargain, the individual pled to a lesser offense and was incarcerated for short periods of time on days that he was not working. See DOE Exhibit 12.

(4)The Hearing Officer discounted the individual's explanation of the circumstances surrounding the February 1989 "Disorderly Conduct" charge because the individual had failed to contest this charge.

(5)The individual claims that he inadvertently pulled out the gun when he sought to retrieve papers that would show the police officer that he had attended classes in domestic violence.

(6)The Hearing Officer also found that the individual's participation in a second rehabilitation program in 1996 is laudable, but that there was insufficient evidence of lasting behavioral changes to overcome the security concerns raised by the individual's arrests in 1994 and 1995.

(7)Moreover, the Hearing Officer found, and the individual has not challenged, that the individual has been found guilty, entered a plea of guilty, or failed to contest seven other criminal charges since 1971. Thus, even without the Hearing Officer's findings concerning the 1995 charge of Domestic Violence or the making of false statements at a PSI, DOE had a sufficient basis to suspend the individual's access authorization.

(8)Because the Hearing Officer did not consider criminal charges when the disposition was unknown or the individual was acquitted, Chart No. II contains only those criminal charges that resulted in an adjudication of guilt, or the entry of a guilty plea, or were not contested by the individual.

(9)The individual's claims that he admitted responsibility for his acts of domestic violence and his problems with alcohol will be treated as a subset of his rehabilitation arguments.

(10)Based on a colloquy with the individual, the state court judge found that the individual (1) committed the misdemeanor offense of Domestic Violence, (2) understood the nature of the charges against him, and (3) understood the consequences of his plea of guilty. DOE Exhibit 12.

(11)The Full Faith and Credit Clause of the Constitution, as implemented by Congress in 28 U.S.C. §1738, requires that federal courts give the same preclusive effect to a state court judgment as would be given by the law of the state where the judgment was rendered. Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982).

(12)In a proceeding under Part 710, an individual is generally permitted to submit evidence concerning the circumstances surrounding a crime. However, if the other elements of collateral estoppel are present, an individual will be estopped from submitting evidence of such circumstances if they were at issue, resolved, and necessary to the judgment in a previous criminal action.

Under Part 710, the Hearing Officer must make a common sense judgment of whether an individual presents a security risk. It is noteworthy that many matters relevant in a later proceeding under Part 710 would not have been at issue during a prior criminal action. For example, an individual's maturity at the time of a crime, or an individual's subsequent rehabilitation, are generally not resolved during a criminal case. By contrast, such considerations could be raised in a subsequent proceeding involving the individual's eligibility for an access authorization. See Chaney v. City of Chillicothe, 746 F. Supp. 722 (S. D. Ohio 1990) (when constitutional issue was not raised and determined in criminal case, it may be litigated in subsequent civil proceeding).

It is important to note that if the individual were found "not guilty" of a crime by a state criminal court or jury, DOE would not be estopped from using evidence of the individual's criminal conduct in a Part 710 proceeding. First, DOE was not a party to the criminal case. Second, the issue determined in the criminal case would not be the same as the issue that must be determined in Part 710 proceeding. There is a much higher burden of proof in a criminal case. A determination by a court or a jury that an individual is not guilty of a crime only means that the government has failed to prove "beyond a reasonable doubt" that the individual is guilty. DOE, on the other hand, does not need to prove guilt beyond a reasonable doubt. It simply needs to have reliable information that reasonably tends to establish that an individual has been involved in an activity that creates a question as to the individual's eligibility for access authorization. See 10 C.F.R. § 710.9. At that point, the burden shifts to the individual to prove that he did not commit the act..

(13)Contrary to the individuals' assertions, his work record is not unblemished. The Hearing Officer found that individual made false statements at a PSI. The individual participated in the PSI because it was required by his employer. When the individual made false statements at the PSI, he clearly used poor judgment.