Case No. VSA-0148, 27 DOE ¶ 83,007 (OHA April 3, 1998)

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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.

April 3, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: December 31, 1997

Case Number: VSA-0148

This Opinion considers a Request for Review filed by the Department of Energy Office of Safeguards and Security (DOE Security). DOE Security requests review of a Hearing Officer Opinion that recommended restoration of access authorization for XXXXXXXXXX (hereinafter referred to as "the Individual"). As explained below, I cannot conclude that restoring the Individual’s access authorization would be clearly consistent with the national interest.

I. Background

A. The Applicable Regulations

The Department of Energy (DOE) regulations governing this matter are set forth at 10 C.F.R. Part 710 (“Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material”). As the title indicates, these regulations specify both the criteria and the procedures for determining eligibility for access to classified matter or special nuclear material. The administrative determination that an individual is eligible for access to classified matter or special nuclear material is referred to as an “access authorization” or a “security clearance.”

B. The Notification Letter

A DOE office issued a Notification Letter to the Individual stating that the DOE office possessed information indicating that the Individual engaged in unusual conduct or is subject to

circumstances which tend to show that he is subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of national security. 10 C.F.R. 710.8(l) (Criterion L). The Notification Letter referred to the Individual’s citation for trespassing and his allegedly conflicting explanations of the incident.

The Individual requested a hearing, and a Hearing Officer was appointed. Three witnesses testified: the Individual and two co- workers.

The Hearing Officer issued an Opinion recommending restoration of the Individual’s access authorization. Personnel Security Hearing (VSO-0148), 26 DOE ¶ 82,796 (1997) (Hearing Officer Opinion). On December 31, 1997, DOE Security requested review of the opinion, arguing that the Individual had not resolved the stated security concern. On January 29, 1998, the Individual filed a response, but it did not address one of the issues identified for review. The Individual was given an additional opportunity to respond, and he filed a second submission on February 27, 1998. The record was closed on March 6, 1998.

C. The Hearing Officer’s Opinion

The Hearing Officer recognized that the trespass and inconsistent explanations about the trespass raised security concerns, but he found that the Individual had mitigated the concerns. The Hearing Officer noted that the Individual had completed his probation, showed remorse, and had an otherwise unblemished record. Opinion at 6. The Hearing Officer found that, regardless of the Individual’s prior inconsistent explanations of the trespass, the Individual had given consistent explanations at the PSI and at the hearing. Id. The Hearing Officer found that those consistent explanations, coupled with the Individual’s demeanor at the hearing, indicated that the Individual was being truthful. Id. at 7. Accordingly, the Hearing Officer found that the Individual had mitigated the security concerns that he was not honest, reliable, and trustworthy.

II. Analysis

A. Standard of Review

Part 710 provides that if, after considering all the factors in light of the relevant criteria, the OHA Director is of the opinion that it will not endanger the common defense and security and will be clearly consistent with the national interest to grant or continue access authorization to an individual, he shall render an opinion favorable to the individual; otherwise, he shall render an opinion adverse to the individual. 10 C.F.R. § 710.28(d). As discussed below, after reviewing the record in this case, I cannot conclude that it would be clearly consistent with the national interest to restore the access authorization of the Individual.

B. Statement of Issues

In the Statement of Issues, DOE Security contends that the Individual did not meet his burden of resolving the security concerns arising from the trespass and his inconsistent explanations of the incident. With respect to the latter point, DOE Security maintains that the Hearing Officer incorrectly found that the Individual gave consistent explanations of the trespass at the PSI and the hearing.

C. Whether the Individual Has Met His Burden of Resolving the Security Concerns

After reviewing the record, I have concluded that the Individual had not met his burden of resolving the identified security concerns. As indicated below, there is insufficient evidence in the record upon which I can conclude (i) that the Individual’s current explanation of the trespass is the correct explanation or (ii) that the Individual is honest, reliable, and trustworthy.

1. The Testimony at the Hearing

At the hearing, the Individual testified about the circumstances of the trespass. The Individual testified that between three and four o’clock in the morning, the Individual entered his neighbors’ yard, because he wanted to swim in their pool. Tr. at 33. The Individual testified that the neighbors were in the process of moving, id., and the Individual believed that they were spending the night at their new house, id. at 35. The Individual testified that he stepped into the pool and then noticed that the sliding glass door at the back of the house was open. Id. at 35. The Individual testified that he went over to the door and took five steps inside the door, which placed him in the living room. Id. The Individual testified that he saw the neighbors’ pitbull running toward him, so he fled the house. Id. at 36-37. The Individual testified that his neighbors confronted him and later called the police. Id. at 39-39.

The Individual testified that he lied to his neighbors about his intent in entering the house. The Individual testified that he first told his neighbors that he saw someone and was trying to chase them away. Tr. at 38. The Individual testified that he did not think his neighbors believed that story so later that day he gave the husband a different story. Id. The Individual testified that he told the husband that he (the Individual) was looking for marijuana. Id. at 39. The Individual testified that he made that statement in the hope that it might deter the neighbors from calling the police. Id.

The Individual also testified that, when asked by police whether he told his neighbor he was looking for marijuana, he said “yes” but did not tell the police that statement was not true. The Individual testified that he did not want to talk to the police, but that the police pressured him into answering their questions. The Individual testified that the neighbors had two children, and the police told him that, if he did not answer their questions, they would charge him with child molestation. Tr. at 45-46. The Individual testified that he did not want to do more than answer the questions posed by the police, so he did not explain to the police that his statement to his neighbor that he was looking for marijuana was not correct. Id. at 46-48.

The Individual testified at the hearing that his real reason for entering the house was curiosity and the possibility that he might find a guitar that he suspected the neighbors had stolen from him. Tr. at 35, 39, 47.

The Individual did not present any other witnesses concerning the trespass. Instead, the Individual presented two co-workers who testified generally to the Individual’s honesty but were unaware of the trespass.

2. The Sufficiency of the Evidence

The only evidence concerning the trespass is the Individual’s testimony at the hearing. The Hearing Officer found that the Individual’s testimony was truthful based on (i) the Hearing Officer’s finding that the Individual’s testimony was consistent with his statements at his PSI and (ii) the Individual’s demeanor when he testified.

DOE Security contends that the evidence is insufficient to resolve the security concerns. DOE Security argues that the Individual’s testimony at the hearing was inconsistent with prior explanations, including that given to the security specialist at the PSI. In response, the Individual denies that his statements at the PSI and the hearing were inconsistent.

After review of the PSI and the hearing transcripts, I find that the Individual’s testimony at the hearing concerning the trespass was not consistent with his statements at his PSI. At the PSI, the Individual stated that he was looking for marijuana, as indicated by the following:

Q: Okay. So you went in the home. Could you tell me why you went in the home . . .

A: I went in the home . . .

Q: . . . after you discovered the people?

A: . . . looking for some marijuana.

Q: Were you . . . these people involved in drugs?

A: Yes. At least I assumed they were. I would . . . I could smell it sometimes, coming from the back yard.

PSI Tr. at 19.

Q: But, you know, you said that you saw the door open so you thought you, uh, . . Go in and see if th-, there was marijuana in there?

A: Yeah.

Q: Why?

A: Just because.

Q: When was the last time you had . . . done any drugs?

A: It’s been years. Long . . . long time.

Q: And what made you that night decide?

A: I . . . I don’t know. Maybe I just . . . I just lost myself. I just . . . had a weak moment.

PSI Tr. at 33-34. As the foregoing indicates, the Individual stated during the PSI that he was looking for marijuana. At the hearing, the Indidivual denied that he was looking for marijuana. Tr. at 38-39, 46-49. Accordingly, the Individual’s testimony is not consistent with his statements at the PSI.

As just indicated, DOE Security has correctly identified an inconsistency between the Individual’s testimony at the hearing and his statements at the PSI. Moreover, the Individual’s testimony at the hearing is uncorroborated and standing alone not a sufficient basis upon which to conclude that he is now fully rehabilitated and honest, reliable, and trustworthy.

In the past, I have questioned whether the uncorroborated testimony of an individual is sufficient to meet the Individual’s burden to resolve a security concern. See, e.g., Personnel Security Review (VSA-0088), 26 DOE ¶ 83,003 at 86,518-19 (1996); Personnel Security Review (VSA-0087), 26 DOE ¶ 83,001 at 86,506-08 (1996). The value of such evidence, by definition, turns solely on whether the individual is being truthful. Although a hearing officer’s impression that an individual is being truthful is important, that belief by itself is generally not sufficient to meet an individual’s burden of resolving a security concern. An individual has too great an interest in continuing his access authorization to base important findings on that testimony alone. Accordingly, I have not recommended restoration of a security clearance where the record was limited to the uncorroborated testimony of the individual.

In this case, the Individual’s uncorroborated testimony at the hearing is clearly insufficient to resolve the concern arising from the trespass. The uncorroborated testimony conflicts with his prior statements to his neighbors, to the police, and to the security specialist during the PSI. Although two co-workers testified generally to the Individual’s honesty, the co-workers did not know of the trespass or the Individual’s various inconsistent explanations of the trespass. Thus, there is no basis, other than the Individual’s own word, for believing that his current explanation is the accurate one.

The Hearing Officer was in the best position to assess the Individual’s truthfulness, and I am reluctant to depart from the Hearing Officer’s conclusion on credibility. Nevertheless, even assuming that the Individual’s testimony at the hearing was truthful, the Individual has not resolved the security concerns about his honesty, reliability, and trustworthiness. The Individual entered someone else’s home without permission and then gave inconsistent explanations of the incident, including inconsistent explanations at the PSI and the hearing. Although the Individual’s counsel has argued that, at the PSI, the Individual was caught between the security specialist, who was encouraging the Individual to make a statement, and the advice of his lawyer not to say anything, that argument is not persuasive. I tend to view an individual’s excuse for lying with disbelief in the context of this personnel security program. See 10 C.F.R. § 710.8(l) (Criterion L, identifying dishonesty as derogatory information); Dep’t of Navy v. Egan, 484 U.S. 518, 531 (1988) (presumption against grant of a security clearance). The Individual gave an explanation at the PSI that he now says is not accurate. For this reason, truthful testimony at the hearing would be insufficient to resolve the concern whether the Individual is honest, reliable, and trustworthy.

III. Conclusion

As is evident from the above discussion, the Individual has not met his burden of resolving the security concerns arising from the trespass and the Individual’s inconsistent explanation of the trespass. Based on the entire record, I cannot conclude that a grant of access authorization would be clearly consistent with the national interest. 10 C.F.R. § 710.28(d).

The regulations specify that within 30 days of receipt of this opinion, 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 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: April 3, 1998