Case No. VSA-0287 (OHA April 24, 2000)

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

April 24, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: February 25, 2000

Case Number: VSA-0287

This Opinion considers a Request for Review and Statement of Issues filed by XXXXXXXXXXX (the individual) concerning his eligibility for access authorization(1) under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria for Access to Classified Matter or Special Nuclear Material." As discussed below, after carefully considering the record before me in light of the relevant regulations, I recommend against restoring the individual’s access authorization.

I. Background

The events leading to the suspension of this individual’s access authorization are fully set forth in Personnel Security Hearing (Case No. VSO-0287), 27 DOE ¶ 82,833 (2000). I will not reiterate all the details of that case here. For purposes of the instant security review, the relevant facts are as follows.

A DOE Security Office learned of certain derogatory information about this individual, which caused it to suspend his access authorization. That Office issued a Notification Letter to the individual, citing derogatory information that falls within 10 C.F.R. §§ 710.8(h) and (l) (Criteria H and L). (2)

With respect to Criterion H, the Notification Letter cited an evaluation performed by a DOE consultant psychiatrist (the DOE psychiatrist). The DOE psychiatrist concluded that it was likely that the individual had a pathological gambling disorder. However, since the individual denied any signs or symptoms, the DOE psychiatrist diagnosed the individual with “impulse control disorder not otherwise specified, gambling compulsion.” The DOE psychiatrist also diagnosed a “suspect mood disorder, either cyclothymia or Bipolar Disorder NOS.” The DOE psychiatrist found that these conditions cause or may cause a significant defect in the individual’s judgment and reliability within the meaning of Criterion H.

With respect to Criterion L, the Notification Letter referred to the fact that the individual filed for bankruptcy in 1998, and admitted that this was necessary due to irresponsible spending on his part. The Notification Letter further indicated that the individual (i) spent excessive amounts on gambling, especially in the year before his bankruptcy filing, which contributed to the bankruptcy; (ii) continued to gamble after the bankruptcy; (iii) purchased trucks in 1996 and 1997 that he could not afford; (iv) was unable to meet his financial obligations even after filing for the bankruptcy; and (v) does not have a budget and has not sought financial counseling.

A hearing was convened before an Office of Hearings and Appeals hearing officer in order to allow the individual to resolve the doubt regarding his continued eligibility for access authorization. At the hearing, the DOE presented the testimony of a personnel security specialist and the DOE psychiatrist. The individual offered his own testimony and presented that of a psychologist (individual’s psychologist).

II. Opinion of the Hearing Officer

The Hearing Officer did not recommend the restoration of the individual’s access authorization.

With respect to the Criterion H security concerns, the Hearing Officer noted that the DOE psychiatrist testified that in order to restore his confidence in the individual’s judgment and reliability, the individual would have to admit that he has a gambling problem, completely abstain from gambling and participate in a treatment program, such as Gamblers Anonymous, for one to two years. The Hearing Officer also noted that the individual’s own psychologist testified that the individual was not at the point of having his gambling problem under control, and had completed only five or six weekly counseling sessions of the 12-16 sessions that he recommended. Transcript of Personnel Security Hearing (Tr.) at 107. Given that the individual continued to gamble even while going through his Chapter 13 bankruptcy, the Hearing Officer found that the individual’s gambling behavior was excessive. The Hearing Officer concluded that a security concern continued to exist with respect to Criterion H.

With respect to the Criterion L concerns, the Hearing Officer found that the individual had a history of self-delusion with respect to financial matters. He pointed specifically to the individual’s purchases on credit of a truck in 1996 and a TV/VCR combination in 1997, when he knew or should have known that he could not afford them. Since the individual, even at the time of the hearing, had not received any professional financial guidance, did not have a formal budget and did not have complete awareness of how his money was being spent, the Hearing Officer was not confident that the individual would be able to maintain a pattern of financial responsibility, and avoid the problems that led to his bankruptcy. Therefore, the Hearing Officer found that the Criterion L security concerns had not been resolved.

The Hearing Officer concluded that the individual failed to resolve the Criteria H and L security concerns regarding his judgment and his reliability, and recommended that the individual’s access authorization not be restored.

III. Statement of Issues and Response

In his Statement of Issues, the individual argues that the Hearing Officer’s Opinion should be reversed. He objects to the diagnosis of the DOE psychiatrist that he is a pathological gambler. He states that he has completed more than the number of counseling sessions recommended by his psychologist. He therefore argues that the Criterion H concerns have been mitigated. With respect to the Criterion L concerns, the individual offers additional explanations about the expenses incurred for the trucks and the TV/VCR. He gives a further explanation about why it became necessary to have his debts discharged through bankruptcy. The DOE’s Office of Security Affairs (OSA) filed a Response to the Statement of Issues. The OSA indicated that it concurred with the Hearing Officer’s recommendation and did not wish to submit any additional information in this case.

IV. Standard of Review

Part 710 provides that if, after considering all the factors in light of the relevant criteria, the Director of the Office of Hearings and Appeals 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 a rule, the Hearing Officer is responsible for considering the demeanor and credibility of witnesses. 10 C.F.R. § 710.27(b). He also assesses the appropriate weight to be given to their testimony. Absent some error, I will not supplant my judgment for that of the Hearing Officer in such matters. Personnel Security Review (Case No. VSA-0084), 26 DOE ¶ 83,004 (1996). As discussed below, I see no errors in the Hearing Officer’s Opinion.

V. Analysis

A. Criterion H

In his Statement of Issues, the individual objects to the DOE psychiatrist’s diagnosis of a pathological gambling disorder. He admits to a “gambling problem,” as described by his own psychologist, but states that he has now completed 20 therapy sessions, more than the number that his psychologist recommended. He believes that this should alleviate the DOE’s concern regarding his gambling.

The individual has not submitted any evidence to support his assertion that he has successfully completed the counseling program. The individual was offered the opportunity to provide some written evidence from his therapist on this point but failed to submit this information. I cannot rely solely on the individual’s assertion on this issue. There is no corroborated evidence before me on the issue of the current status of this individual’s rehabilitation efforts that would cause me to reevaluate the Hearing Officer’s conclusion that the individual is not rehabilitated from his gambling problem. I will therefore not disturb the Hearing Officer’s determination on this issue.

B. Criterion L

With respect to Criterion L, the individual first discusses an issue that was raised in the Notification Letter, but which was not directly considered by the Hearing Officer. The Notification Letter indicated that the individual was unable to meet his financial obligations even after filing for bankruptcy. The individual points out that this refers to the fact that he was unable to adhere to a Chapter 13 plan for repayment of debts. He claims that the Chapter 13 reorganization plan was unrealistic for his family, and that there was an inadequate allowance for clothing and food under the plan. The individual indicates that he later filed for a discharge of all his debts under Chapter 7, and that he has been able to manage his finances since the discharge.(3)

I fail to see any meaningful mitigation of the Criterion L concern based on these assertions. The fact remains that due to his own financial irresponsibility, the individual ultimately was unable to pay his debts, and was forced to petition to have them discharged through bankruptcy. This creates a Criterion L security concern, which, as the Hearing Officer determined, the individual has failed to mitigate.

In his Opinion, the Hearing Officer found that the individual had made several irresponsible purchases, including a truck and a TV/VCR. The Hearing Officer stated that the individual knew or should have known that he could not afford these items.

The individual reargues these points. He contends that he purchased two trucks, one in 1996 and the other in 1997. He states that one of the trucks was ultimately sold, and the proceeds allowed him to pay other bills. He claims that he purchased the other truck because his car was too uncomfortable for a family of five. He also claims that his attorney advised him to make this latter purchase, and that this debt was reaffirmed in the bankruptcy and regular payments are being made on the vehicle. Finally, with respect to the TV/VCR, the individual states that this is just one small item purchased on credit, that the debt was reaffirmed in the bankruptcy, and it has now been paid off.

These contentions do not convince me that the individual did not act irresponsibly. What is clear is that the individual continues to rationalize his past behavior, rather than admit that it was irresponsible. Further, these arguments do not demonstrate that the individual is now on sure financial footing. They do not address the Hearing Officer’s finding that the individual has not shown at this point that he has a solid grasp of how to manage his finances. The individual did not submit any information that convinces me that he has a sustained pattern of financial responsibility and that a recurrence of the past irresponsibility financial pattern is unlikely. Personnel Security Hearing (Case No. VSO-0302), 27 DOE ¶ 82,832 (2000). Accordingly, I find that a Criterion L concern continues to exist with respect to this individual.

Finally, the individual asserts that he is a good employee who has never had a security infraction. This contention, even if true, does not change the result in this case. The issue here is not the individual’s performance on the job, or whether he has been involved in a security breach. It is whether the individual’s pattern of financial irresponsibility and excessive gambling pose an unacceptable security risk. Even if the individual has not violated any security rule, I believe, as discussed above, he has not mitigated the DOE’s security concerns. See Personnel Security Hearing (Case No. VSO-0227), 27 DOE ¶ 82,798 at 85,798 (1999).

VI. Conclusion

As indicated by the foregoing, I cannot conclude that the continuation of this individual’s access authorization will not endanger the common defense and security and will be clearly consistent with the national interest. Accordingly, it is my opinion that the individual’s access authorization should not be restored. 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 24, 2000

(1)1/ An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to from time to time in this Opinion as access authorization or security clearance.

(2)Criterion H concerns information that a person has “[a]n illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist, other licensed physician or clinical psychologist, causes, or may cause, a significant defect in judgment or reliability.” 10 C.F.R. § 710.8(h). Criterion L concerns information that the individual “has engaged 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. Such conduct or circumstances include. . . a pattern of financial irresponsibility. . . ” 10 C.F.R. § 710.8(l).

(3) The record indicates that the discharge of debts under Chapter 7 took place in February 1999. Tr. at 147. The amount of the unsecured debt was approximately $67,000. Tr. at 153.