Case No. VSA-0227 (OHA June 24, 1999)

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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 24, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: April 29, 1999

Case Number: VSA-0227

This Opinion considers a request for review filed by XXXXXXXXX XXXXXXXXX (the individual) concerning the suspension of his access authorization, also referred to as a security clearance. 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 Instant Case

This case concerns the suspension of the individual’s access authorization. A DOE office conducted Personnel Security Interviews (PSIs) with the individual in 1984, 1992, 1993, 1994, 1996, and 1998. In those interviews, the DOE office questioned the individual about his financial problems, which he attributed mostly to his wife’s medical problems. In addition, in the 1998 interview, the DOE office questioned the individual about an incident in which the individual used a DOE travel order and credentials to obtain a rental car for personal use, kept the car for two months, accumulated a $3,000 rental fee, and did not pay the fee until two months after he returned the car. The individual attributed this incident to a pressing family matter and a lapse in judgment.

After the 1998 PSI, the DOE office issued a notification letter to the individual. The notification letter cited derogatory information, including the following:

· the individual was arrested for writing a bad check in 1978;

· the individual acknowledged the existence of numerous delinquent accounts over the period 1984 to the present, and his inability to provide complete information concerning the status of those accounts;

· the individual failed to keep two government-issued credit card accounts current even though the DOE had reimbursed him for his DOE travel expenses;

· three houses that the individual owned were the subject of foreclosure;

· the individual’s wages had been garnished by at least four creditors;

· the individual’s automobile was repossessed;

· the individual's delinquent accounts and judgments totaled roughly $80,000; and

· the individual violated DOE regulations by renting a car for his personal use, using a DOE travel order and credentials.

The notification letter stated that the individual’s financial situation and conduct raised a security concern under 10 C.F.R. § 710.8(l) (Criterion L) that the individual is not “honest, reliable, or trustworthy,” and that the individual may be subject to “pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of national security.” Notification Letter at 1.

The DOE notified the individual of his opportunity to request a hearing at the Office of Hearings and Appeals (OHA). The individual requested a hearing, and a hearing officer was appointed.

At the hearing, the DOE presented the testimony of the security specialist. The individual testified and presented the testimony of three former supervisors. The individual maintained that his problems were attributable to circumstances beyond his control (his wife’s medical problems and other pressing family matters) and some admitted lapses in judgment. The individual also maintained that he would never compromise national security.

The hearing officer issued an opinion recommending that the individual’s access authorization not be restored. Personnel Security Hearing (VSO-0227), 27 DOE ¶ 82,798 (1999). The individual requested review and identified five issues upon which he sought review. The DOE Office of Safeguards and Security filed a response, stating that it concurred with the recommendation of the hearing officer, and had no additional information to submit. On June 18, 1999, the record was closed.

II. The Hearing Officer Opinion

The hearing officer found that the individual’s financial situation and the car rental episode raised security concerns. The hearing officer noted that the individual did not dispute that he had numerous delinquencies, that his current indebtedness was approximately $80,000, and that he had used a cancelled DOE travel order and credentials to obtain a car for personal use. The hearing officer found that the individual’s excessive indebtedness and his numerous delinquencies rendered him subject to pressure or coercion. Moreover, the hearing officer found that some of the underlying conduct raised a question about the individual’s reliability and honesty. The hearing officer cited various conduct, including the following: the individual’s failure to keep two government-issued credit card accounts current even though the DOE had reimbursed him for his DOE travel; the individual’s immediate purchase of a second and third home after the respective foreclosures on the first and second; the individual’s unkept promises to the DOE to address his financial problems; and the rental car incident.

The hearing officer found that the individual had not mitigated the foregoing concerns. First, the hearing officer noted that the individual had only recently begun to address his financial problems, and still had not followed up on his statement that he would seek bankruptcy protection. Second, the hearing officer found that, even if the individual filed for bankruptcy protection, that would not mitigate the DOE’s security concerns, arising from the incidents mentioned above, that the individual was not reliable and honest. Third, the hearing officer rejected the individual’s argument that the lack of any evidence that he had compromised national security mitigated the security concerns. Fourth, the hearing officer rejected the individual’s alleged stature as an organizational scapegoat as irrelevant to whether the individual’s conduct raises security concerns.

III. 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, the individual does not challenge the hearing officer’s findings that the individual has excessive indebtedness, numerous delinquencies, and is unable to meet his financial obligations. The individual also does not challenge the hearing officer’s findings that some of his conduct reflected poor judgment. Finally, the individual does not challenge the hearing officer’s finding that the individual presented a DOE travel order and credentials to obtain a car for personal use. Instead, the individual reiterates, and expands upon, some of his previous arguments.

First, the individual reiterates his argument that he has mitigated the security concerns arising from his excessive indebtedness and delinquencies. He maintains that his financial problems are mostly attributable to his wife’s medical problems, which are beyond his control.

As the hearing officer recognized, a pattern of excessive indebtedness and financial delinquencies (i) raises doubts concerning whether an individual would comply with security regulations and (ii) increases the possibility that an individual could be coerced or influenced by offers of money. 26 DOE at 85,711, citing Personnel Security Hearing (Case No. VSO-0108), 26 DOE ¶ 82,764 at 85,599 (1996); Personnel Security Review, 25 DOE ¶ 83,010 at 86,545 (1996). Accordingly, once there is a pattern of financial problems, the individual must demonstrate that these problems are not a security concern.

The individual has not resolved the security concerns raised by his excessive indebtedness and delinquencies. As an initial matter, the individual has not corroborated his assertion that his wife’s medical problems account for most of his excessive indebtedness and delinquencies.(1)Moreover, the record indicates that the individual’s poor judgment concerning financial matters generally has contributed to his financial problems. Finally, and most importantly, regardless of the underlying cause of the individual’s financial problems, the severity of those problems raises, to an unacceptable level, the possibility that the individual may be subject to pressure or coercion. Accordingly, the individual has not mitigated the security concern arising from his financial problems.

Second, the individual reiterates his argument that the car rental episode does not reflect adversely on his honesty. The individual asserts that he did not make any verbal misrepresentation that the car rental was for government travel, i.e., the individual was not “trying to either coverup facts nor particularly clarify facts.” Statement of Issues at 7.

The individual has not mitigated the concern that he is not honest. As an initial matter, the individual has not corroborated his assertion about the nature of his conversation with the rental car agent and, therefore, I am not prepared to accept the individual’s assertion as a fact. Moreover, the asserted lack of any verbal misrepresentation does not change the deceptive nature of the individual’s behavior. The individual intended to deceive the car rental company; he carried out this deception through the presentation of a DOE travel order and credentials. Whether or not he made a verbal representation that the rental was for DOE travel does not change the deceptive nature of his actions. The individual’s argument that, despite his actions, he is not responsible for the deception reinforces, rather than mitigates, the concern about his honesty.

Third, the individual maintains that the security concerns about whether he is honest, reliable, and trustworthy are mitigated by the fact that there is no evidence that he has compromised national security. The individual reasons that since he has worked in his job for many years and not compromised security, it is fair to predict that he will not compromise security in the future.

The individual’s position that he is eligible for a security clearance in the absence of evidence that he has compromised national security is incorrect. First, as the hearing officer indicated, the security regulations are designed to limit the risk that national security is compromised, rather than simply provide for after-the-fact corrective action. Thus, actions or conduct that increase the risk that security will be compromised are a source of legitimate concern by the DOE. Second, although the security regulations are designed to limit the risk of intentional compromises of national security, the regulations are also designed to avoid unintentional compromises resulting from a failure to comply with security regulations. Thus, an individual is not eligible for a security clearance if there is an unresolved concern about whether he is honest, reliable, or trustworthy. Accordingly, the individual’s argument that he has not compromised national security does not address the relevant security regulations and concerns.

Fourth, the individual reiterates his assertion that he is being made a scapegoat because of internal problems in his organization. As the hearing officer correctly stated, under Part 710, the focus is on a specific individual’s eligibility for a clearance under the security regulations, not the alleged motives of those raising the concerns.

Fifth, the individual maintains that he has been punished enough for his financial problems and conduct. The individual cites (i) a ten-day suspension for his use of the DOE travel order and credentials to obtain the rental car and (ii) his removal from the Personnel Assurance Program.

This argument misses the mark. The criteria for eligibility for a security clearance are designed to limit access authorization to those individuals who are acceptable risks. Thus, the extent to which a person has or has not been “punished” for given behavior is irrelevant to whether that behavior gives rise to an unresolved security concern. Accordingly, the other consequences of the individual’s conduct are irrelevant to whether he is eligible for a clearance.

IV. Conclusion

As is evident from the above discussion, the matters raised by the statement of issues indicate that the individual disagrees with the hearing officer’s opinion. However, that disagreement does not mitigate the security concerns raised in the notification letter. Based on the entire record, in view of the individual’s excessive indebtedness and financial delinquencies, his exercise of poor judgment, and his misuse of DOE documents and deception in the car rental incident, I cannot conclude that a grant of access authorization will not endanger the common defense and security and 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: June 24, 1999

(1)In general, we require that an individual provide written evidence or testimony to corroborate his assertions. Although the individual has corroborated his assertion that his wife has ongoing medical problems, he has not corroborated his implicit assertion that medical insurance did not cover those problems. For example, although the individual submitted a list of pharmacy invoices, there is nothing in the record to indicate whether or not the individual received reimbursement for those charges. Similarly, although the individual has maintained that his wife’s recurring health problems make employment for her problematic, the individual has not explained why, over a ten year period, the family was unable to adjust to having only one income.