Case No. VSO-0001, 24 DOE ¶ 82,751 (H. O. Augustyn Dec. 22, 1994)

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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.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer Opinion

Case Name: Personnel Security Hearing

Date of Filing: September 9, 1994

Case Number: VSO-0001

The matter before me concerns the questioned eligibility XXXXX (hereinafter "the individual") for continued "Q" access authorization, 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." The Department of Energy's XXXXX Operations Office (DOE/XXXXX) recently suspended the individual's access authorization under the revised provisions of Part 710. In this Opinion, I will consider whether, based on the record before me, the individual's access authorization should be restored.

I. Regulatory Framework

On December 8, 1993, the Department of Energy (DOE) published a Notice of Proposed Rulemaking in the Federal Register to amend its regulations regarding the criteria and process used to review determinations of eligibility for access to classified matter or special nuclear material. 58 Fed. Reg. 64509 (December 8, 1993). Interested persons were given an opportunity to submit written comments on the proposed procedures, and the final revised rule was published in the Federal Register on July 8, 1994. 59 Fed. Reg. 35178 (July 8, 1994). The amended regulations, codified as Part 710, Subpart A of Title 10 of the Code of Federal Regulations, became effective on August 8, 1994.

For a number of years, the DOE contracted for the services of Hearing Officers and Personnel Security Review Examiners to implement the regulations. In amending the regulations, the DOE decided to use federal employees to perform those functions. The functions were assigned to the Office of Hearings and Appeals (OHA), a DOE Headquarters office with a staff of professional Hearing Officers experienced in the conduct of adjudicative proceedings.

The Part 710 procedures govern the resolution of questions concerning the eligibility of individuals who are employed by or are applicants for employment with DOE contractors, agents, and DOE access permittees; individuals who are DOE employees or applicants for DOE employment; and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. (This access authorization is commonly referred to as a security clearance.) Part 710 lists twelve broad categories of information which may be regarded as derogatory and which might create questions as to an individual's eligibility for access authorization. 10 C.F.R. § 710.8(a)-(l). These categories constitute the criteria which the DOE uses to review all determinations regarding access authorization.

The regulations provide an opportunity for hearing and review in cases when it is determined that questions concerning an individual's eligibility for access authorization cannot be favorably resolved by interview or other action. This determination is initially made by the Local Director of Security, who submits the matter to the Operations Office Manager. 10 C.F.R. §§ 710.9(a), 710.10(a). If the Manager agrees with the determination of the Local Director, the Manager submits a request to the Director, Office of Safeguards and Security, for authority to conduct an administrative review proceeding. Id. §§ 710.9(a), 710.10(a), (d). In cases where the individual holds an access authorization, the Manager may authorize the suspension of the individual's access authorization pending final determination of the individual's eligibility. Id. § 710.10(b).

When the Director, Office of Safeguards and Security, has authorized an administrative review proceeding, a notification letter is sent to the individual setting forth the information which creates a substantial doubt regarding the eligibility of the individual for access authorization, and stating that the individual may file a request for hearing in writing with the Manager. Id. § 710.21(a), (b)(2), (b)(4). If the individual requests a hearing, the Manager assigns an attorney to act as DOE Counsel, and forwards the request to the OHA. Id. §§ 710.24(a), 710.25(a). Upon receipt of the hearing request, the Director of the OHA appoints a Hearing Officer. Id. § 710.25(b). The Hearing Officer determines the day, time, and place for the hearing. Id. § 710.25(e). The hearing is required to be held within 90 days of the receipt of the hearing request by the OHA, unless an extension is approved by the OHA Director. Id. § 710.25(g). The OHA issues the opinion of the Hearing Officer within 30 days of the receipt of the hearing transcript by the Hearing Officer, or the closing of the hearing record, whichever is later, unless the OHA Director grants an extension of time. Id. § 710.27(e).

II. Background

During a routine background reinvestigation of the individual in late 1993, the DOE discovered some derogatory information which it believes raises a substantial doubt about her continued eligibility for "Q" access authorization. The DOE has determined that the derogatory information concerning the individual falls within the purview of two criteria set forth in Part 710, subsections (f) and (l) of Section 710.8. Subsection (f) concerns information which 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.

10 C.F.R. § 710.8(f). Subsection (l) describes information that a person 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, but are not limited to, criminal behavior, a pattern of financial irresponsibility, or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.

10 C.F.R. § 710.8(l).

DOE/XXXXX attempted to resolve questions about the derogatory information at issue by conducting a Personnel Security Interview (PSI) with the individual on April 29, 1994. The PSI provided the individual an opportunity to explain or refute the information discovered by the background investigation, or present evidence to mitigate the security concerns raised by the alleged derogatory information. See generally Transcript of Personnel Security Interview (hereinafter DOE Exhibit 11) at 5. Prior to rendering a determination with regard to the status of the individual's access authorization, DOE/XXXXX afforded her the opportunity to provide some additional information for the record. See Transcript of November 16, 1994, Personnel Security Hearing (hereinafter Tr.) at 114. Neither the PSI nor additional information received thereafter resolved the DOE's questions about the derogatory information. Id. Consequently, DOE/XXXXX suspended the individual's access authorization. On August 3, 1994, DOE/XXXXX sent a letter to the individual enumerating the reasons for the suspension and informing her of her options, including a right to request a hearing under 10 C.F.R. Part 710. See Letter dated August 3, 1994, from XXXXX, Acting Assistant Manager for Safeguards and Security, to the individual. The individual filed a request for hearing concerning this matter with the Manager of DOE/XXXXX on August 9, 1994. On September 2, 1994, DOE/XXXXX sent the individual a second notification letter, identical in substance to the August 3 Notification Letter, but modified to accord with the revision of the Part 710 regulations. See Letter dated September 2, 1994, from XXXXX, Acting Assistant Manager for Safeguards and Security, to the individual. On September 7, 1994, DOE/XXXXX transmitted the individual's hearing request to the OHA Director pursuant to the amended Part 710 regulations. The OHA received the individual's request for hearing on September 9, 1994. The Director of the OHA appointed me the Hearing Officer in this case on September 13, 1994, and on XXXXX, I conducted the hearing in this matter in XXXXXX. The hearing was the first conducted under the amended Part 710 regulations.

III. Findings of Fact

The facts in this case are uncontroverted. Based on my consideration of all the evidence in the record in this proceeding, which includes the transcript of the XXXXX, Personnel Security Hearing, the exhibits submitted to the OHA by the DOE in connection with that hearing, and all other papers filed with me by the parties, I make the following findings of fact.

The individual is a XXXXX-year-old woman who is employed by the XXXXX at the DOE's XXXXX in XXXXX, in a position which requires her to possess a "Q" access authorization. See DOE Exhibit 10; Tr. at 42- 43. The individual has worked at XXXXX since 1977. DOE Exhibit 10. In March 1990 the individual's home was burglarized. Tr. at 17-18. The individual had purchased insurance policies from two different companies, each covering the same valuables. Tr. at 19-20. When these items were stolen, she submitted identical claims to both companies and received compensation from both. Id. Among the items stolen in the March 1990 burglary were a VCR and a camcorder for which she no longer had receipts. Tr. at 18-19; 46-50. For these two articles the individual submitted falsified receipts to the two insurance companies. Tr. at 18-19, 46-50. When the double compensation and the falsification of the receipts were uncovered, both the individual and her husband were charged with insurance fraud and placed in a Preprosecution Diversion Program. Tr. at 20.

In 1991, the individual's mother began experiencing financial difficulties. Tr. at 24-25. During this time, the individual's mother sold her house in anticipation of building a new one. Id. However, lenders denied financing to the mother. Id. At this point, the mother moved into the individual's home and appealed to the individual for financial assistance. Tr. at 24, 30, 76-78. In response to her mother's pleas for help, the individual sought loans from a variety of sources. Tr. at 25. When legal attempts to find money failed, the individual altered a mortgage payment receipt she had received from the XXXXX National Bank XXXXX to reflect that the first mortgage on her home, in the amount of $111,676, had been paid in full. Tr. at 54-58; DOE Exhibit 12. She then submitted the altered receipt to Household Finance Corporation (HFC) and obtained a home equity loan of $100,000. Tr. at 58-59. The individual's actions came to light in the summer of 1992, at which time she was questioned by the XXXXX Police. See DOE Exhibit 12. Prior to the police questioning, the individual's husband was unaware of his wife's actions as recounted above. Tr. at 23.

Finally, in November 1992, the individual was reported to the police for depositing three checks into her account at the Bank of XXXXX, two in the amount of $6,000 and one for $5,875. These checks were written against closed accounts which had been maintained by her or her husband at two other institutions. DOE Exhibit 4.

In 1993, the individual was charged with one count of forgery and five counts of fraud as a result of the series of incidents related above. DOE Exhibits 5, 6, 7. Under an August 30, 1993, plea agreement, the individual pled guilty to three felony fraud charges, one relating to her insurance claims, one for fraudulently obtaining a home equity loan from HFC, and another for depositing the $5,875 check written on a closed account. DOE Exhibits 8, 9. The individual was sentenced to four years' probation. Id. The terms of her probation require that she keep her loans current and maintain employment. Id.

In late 1993, the DOE commenced a routine background reinvestigation of the individual. See DOE Exhibit 10. As part of that process, the individual completed a Questionnaire for Sensitive Positions (QSP). Id. She signed the QSP and attested to its accuracy on December 1, 1993. Id. Question 23 on the QSP is a multi-part question which concerns an individual's police record. Id. The following is posed in Question 23(a): "Have you ever been charged with or convicted of any felony offenses?" The individual responded "no" to this question. Id. The individual also responded negatively to Question 23(e) which reads as follows: "In the last 5 years, have you ever been arrested for, charged with, or convicted for any offense(s) not listed in response to [question 23(a) or other subparts of that section]." Id.

As the reinvestigation proceeded, the DOE discovered the individual's criminal activities chronicled above. Tr. at 155. The DOE attempted to resolve this derogatory information by conducting a PSI of the individual on April 29, 1994. At the PSI, the individual admitted to all of the facts set forth above except the alteration of receipts for the stolen VCR and camcorder, which she denied. See DOE Exhibit 11 at 79-80. Regarding her failure to disclose her arrests and convictions on the QSP, the individual explained that because she never spent time in prison, she did not think she had really been arrested or convicted. DOE Exhibit 11 at 54-62.

At the XXXXX, hearing, the individual contradicted the statements she had previously given under oath at the PSI. Tr. at 79. She admitted at the hearing that she had "knowingly and deliberately" failed to disclose her criminal record in responding to the QSP because she was afraid of losing her job. Tr. at 79. She also admitted that she had submitted altered receipts in connection with the insurance claims described above, but claimed that at the time of her PSI she did not consider what she had done altering. Tr. at 48-50. Finally, the individual testified that her mother is currently not aware of either her criminal history or the instant proceeding. Tr. at 29, 88- 89.

IV. Discussion

The applicable DOE regulations state 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, as 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). Among the factors I will consider in rendering a determination concerning the individual's access authorization are the following: the nature, extent, and seriousness of her conduct; the circumstances surrounding her conduct, including knowledgeable participation; the frequency and recency of her conduct; her age and maturity at the time of the conduct; the voluntariness of her participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for her conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. 10 C.F.R. §§ 710.7(c), 710.27(a). As discussed below, after carefully considering the record in view of the standards set forth in 10 C.F.R. Part 710, I find that the two allegations advanced in the amended notification letter are meritorious. Accordingly, I conclude that the individual's access authorization should not be restored.

A. The Individual's Honesty, Reliability, Trustworthiness

and Susceptibility to Coercion

DOE/XXXXX relies on 10 C.F.R. § 710.8(l) as one of the bases for suspending the individual's "Q" access authorization. The agency asserts in the notification letter, as amended, that the individual's recent criminal conduct raises questions about her honesty, reliability and susceptibility to undue influence. At the hearing, XXXXX, the Personnel Security Specialist who testified on behalf of the DOE, explained that the DOE is concerned as a general matter that a person who knowingly violates the law might also knowingly disregard the security regulations. Tr. at 118. In this particular instance, Ms. XXXXX expressed concern that the individual had minimized the severity of her criminal conduct during the PSI. Tr. at 119. According to Ms. XXXXX, such an attitude in the security arena could jeopardize the national security. Id. Finally, Ms. XXXXX expressed concern that the individual might be susceptible to coercion since she has never told her mother about the fraud conviction which resulted from her efforts to obtain money for her mother.

In her defense, the individual indirectly contends that I should view her criminal activities as an isolated series of incidents over a two-year period and not as representative of her overall integrity. Tr. at 134. In addition, the individual suggests in a general way that she has been rehabilitated in that she has become a "reborn Christian" and has obtained some counseling to assist her in reframing the priorities in her life. Tr. at 78, 87, 90.

1. Criminal Activities

As noted above in Section III, the three separate incidents which triggered the criminal investigation of the individual and which ultimately led to her felony fraud convictions are undisputed. The import of each of those three incidents as it relates to DOE's security concerns is discussed below.

a. Insurance Fraud

The first incident at issue relates to the individual's recovery by fraudulent means for loss of certain items which were stolen during a burglary at her residence in 1990. Specifically, the individual obtained recovery for her stolen property twice, and fabricated or altered receipts for two of the items stolen, a VCR and camcorder. The individual admitted for the first time at the hearing that she changed the date on receipts which did not pertain to the stolen VCR and camcorder, xeroxed the receipts, and submitted them for reimbursement to two insurance companies. Tr. at 47.

At the hearing the individual revealed that while she now knows that recovering twice for the same losses was wrong, she only came to this realization because she "talked to several people about this after the fact." Tr. at 50. After hearing the testimony of the individual and her husband at the hearing and observing their demeanor, I am of the opinion that they did not believe it was illegal to submit claims for reimbursement under two separate insurance policies, both covering the same household items. It appears they thought that by paying premiums on two policies, they could recover for loss under both policies.

With respect to the alteration of receipts for the VCR and the camcorder, the individual reluctantly admitted in her hearing testimony that she had submitted falsified receipts for those two items to the two insurance companies. After extensive questioning as to why she did not reveal this fact at the PSI, the individual explained that at that time she did not consider what she had done to be "altering." I find it implausible that the individual did not realize or comprehend that she was defrauding the insurance companies at the time she consciously altered the receipts, xeroxed the same to mask the alteration, and then tendered the receipts as copies of the original receipts in an attempt to obtain reimbursement for the VCR and camcorder. Notwithstanding the individual's semantic justification, I find that her actions with regard to the falsification of the receipts evidence her dishonesty and untrustworthiness. Even assuming for the sake of argument that the individual did not understand the gravity of her actions in falsifying the receipts, her apparent failure to comprehend the implications of this conduct reveal, at a minimum, a defect in judgment. Such a defect in judgment could adversely affect the individual's reliability under other circumstances, specifically with regard to safeguarding classified information in the future.

b. Mortgage Fraud

The individual's actions as recounted above served as a prelude to subsequent criminal activity. In 1991, approximately 18 months after the first alteration incident, the individual devised a scheme to obtain by fraudulent means a home equity loan from HFC. The individual admitted at the hearing that she deliberately altered a receipt she had received from XXXXX National Bank, the first and second mortgagee on her personal residence, to reflect that the balance on the first mortgage was $0 instead of $111,676. DOE Exhibit 12. The individual submitted a xeroxed copy of the altered mortgage payment receipt to HFC, who in turn provided her with a home equity loan in the amount of $100,000. DOE Exhibit 13. This incident is clearly more disturbing than the insurance fraud described above because it involved a vastly larger sum of money. Like the insurance fraud, this crime reflects negatively on the individual's honesty and trustworthiness.

The second incident also raises the specter of possible coercion. With the exception of her husband, the individual has told no one about the incidents, or her subsequent arrest, conviction and four-year probation term. Most importantly, the record is clear that the individual wants to conceal her illegal activities from her ill mother. I also find it troubling that, at the very least, the individual has never informed her mother that the source of the money she provided to her mother was a home equity loan. Instead, the individual has untruthfully advised her mother that the source of the money was her husband's family. Tr. at 89. This is yet another instance where the individual has concocted a falsehood to mask an earlier wrongdoing.

While the individual maintained at the hearing that she would reveal these incidents and their aftermath to her mother if she were threatened with blackmail, I remain unconvinced. Tr. at 90. During the PSI and at the hearing, the individual expressed concern about the impact such information might have on her mother's frail health. Tr. at 89. Although the individual mentioned at the hearing that she has received some counseling and now realizes that her mother cannot take priority over her husband and children, this does not address the general concern that the individual might subordinate the interest of national security to her personal needs. Tr. at 78- 79. After reviewing all the evidence, and observing the individual's demeanor at the hearing, I believe there is a substantial risk that the individual might allow her desire to protect her mother to overwhelm her expressed willingness to conform her future actions to the requirements of national security.

c. Bank Fraud

The third incident leading to the individual's 1993 criminal conviction involved three checks written on closed accounts. Although the individual pled guilty to this fraudulent activity with respect to one of the checks, she maintained at the hearing that she never knew that the accounts on which any of the checks were written were closed. The individual's husband testified that he and his wife had retained the services of a credit counseling company. Tr. at 32-34. To this end, according to the husband, he and his wife placed many of their bills and notices unopened in an envelope and sent them directly to the company for appropriate disposition. Id. According to the husband, this firm failed to notify them that the accounts on which the individual wrote the checks at issue were closed. Id. Although accepting this testimony at face value could lead one to conclude that the individual harbored no criminal intent in depositing the checks, it would also mean that the individual wrote three checks totalling $17,875 within one week on three accounts despite knowing nothing of the status or current balances of any of the accounts. See DOE Exhibit 4. Even interpreting events in the light most favorable to the individual, this would raise serious additional questions as to the individual's judgment, and in turn whether she could be relied upon to protect classified information.

2. Mitigating Factors

a. Isolated Incidents

In responding to the concerns raised by the DOE, the individual suggests that the three incidents were isolated and should not be used as a measure of her overall integrity. She related that at the time she falsified the mortgage receipt, for example, she was subject to extraordinary pressures. She explained in this regard that she was pregnant with her third child at this time, her grandmother was dying of cancer, her aunt was undergoing heart surgery, and her mother, with whom she was extremely close, had begun to experience serious financial difficulties which ultimately caused the mother to move into her home. DOE Exhibit 11 at 7-10. The individual's husband confirmed at the hearing that his mother-in-law was putting tremendous pressure on his wife during this time. It was this pressure, opined the husband, that compelled his wife to engage in the fraudulent activity. Tr. at 30.

I have no doubt that the individual experienced an emotionally difficult period in her life at the time this incident occurred. This does not negate the fact that she consciously and deliberately contrived a scheme to obtain a substantial amount of money from HFC by fraudulent means, a scheme which she knew "was wrong." DOE Exhibit 11 at 30. As for any argument that I should excuse the individual's conduct because it should be considered an isolated series of events, I find that the cumulative effect of the first and second incidents is too substantial to ignore. I observe from the record a disturbing pattern of dishonesty, including altering or fabricating receipts for personal gain, which should not be disregarded as isolated. Therefore, I find no evidence to substantiate the individual's apparent contention that her criminal activities should be excused as isolated incidents triggered by extraordinary pressure.

b. Rehabilitation

I also remain unconvinced that the individual is "rehabilitated." She stated several times during the PSI and at the hearing as well that she has become a "reborn Christian," and for this reason, would never do anything again to hurt God, her family or her country. See, e.g., Tr. at 76, DOE Exhibit 11 at 64-65. However, one of the witnesses the individual called on her own behalf, XXXXX, her probation officer, expressed reservations about whether the factors which "triggered her need to do what she did . . . would not present themselves at a later time . . . ." Tr. at 102. Thus, Mr. XXXXX testified that he did not think that the individual "would deceive her country under normal circumstances" but under abnormal circumstances, "that's up in the air . . ." Tr. at 92-93. Moreover, it is my opinion that there are some problems with the individual's credibility. As will be discussed in greater detail in Section IV.B below, the individual has been less than candid on a number of occasions since the inception of the background reinvestigation. This fact makes it quite difficult for me to ascertain whether her expressions of contrition and remorse are genuine. It is important also to note that not enough time has elapsed since the incidents and the alleged rehabilitation to gauge the likelihood of rehabilitation. Based on the foregoing, I will accord no weight to the individual's rehabilitation arguments.

c. Other Factors

In evaluating the individual's conduct, I am cognizant that her crimes are fairly recent, having occurred from 1990 through 1992. I also note that the individual was a mature woman in her XXXXX when she engaged in these activities. Moreover, I find that the three incidents which gave rise to her criminal convictions are quite serious. These crimes of fraud are crimes of deception and directly impugn her honesty, reliability and trustworthiness.

3. Conclusion

According to the record, the individual devised and executed a series of fraudulent schemes, and attempted to conceal the most serious one from her family and others. The record also reveals a disturbing pattern of altering receipts to obtain money for personal gain. Because the individual falsified receipts not once but twice in two completely different contexts, I will not dismiss her illegal actions as isolated. In addition, while the motivation for the individual's conduct with respect to the second incident appears to have been an earnest desire to assist her mother, I cannot excuse the means the individual chose to achieve that end, namely criminal activity. I find that the criminal conduct in which the individual engaged casts doubt on her honesty, reliability, and trustworthiness. Furthermore, I find that the individual's past criminal activities might subject her to pressure, coercion, or exploitation because she has deliberately concealed from her mother everything relating to her criminal convictions. Also, because of the individual's credibility problems, I am unable to accept her rehabilitation defense. Lastly, I conclude that are no other mitigating factors present in this case which can overcome the security concerns raised by the DOE.

Accordingly, I find DOE/XXXXX was correct in advancing 10 C.F.R. § 710.8(l) as one of the bases for suspending the individual's access authorization. In light of 10 C.F.R. § 710.8(l), I cannot find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest.

B. The Individual's False Statements

The second criterion upon which DOE/XXXXX relied in suspending the individual's access authorization is 10 C.F.R. § 710.8(f), the subsection which concerns the falsification of statements to the DOE. Specifically, in the amended notification letter, the DOE cites the individual's failure to report on her Questionnaire for Sensitive Positions (QSP) the arrests and criminal convictions discussed above in Section IV.A. Ms. XXXXX, the DOE's Personnel Security Specialist, explained at the hearing that a "security clearance is based on a person's honesty, and if the person is dishonest in a questionnaire, then we're not sure where else the person may be dishonest." Tr. at 116.

The individual acknowledged in her hearing testimony that she intentionally omitted information regarding her criminal record from her QSP. Tr. at 79. Moreover, the individual testified at the hearing that she had made two other false statements under oath to the DOE. In her testimony,the individual recanted the sworn statements she made at the PSI that: (1) she did not intentionally provide false information on her QSP and (2) she never altered receipts to fraudulently obtain recovery from two insurance companies in the incident discussed supra. DOE Exhibit 11 at 80. The revelation of these additional false statements indicates a pattern of falsification on the individual's part which I find troubling. Moreover, the individual was warned in writing at the time she completed the QSP and orally during the PSI of the consequences of providing false information. I must therefore also question the individual's judgment in view of her choice on two occasions to deliberately make false statements despite warnings that she could be criminally prosecuted for so doing.

In her defense at the hearing, the individual obliquely refers to her alleged rehabilitation as a mitigating factor which might negate the severity of her falsification to the DOE. The individual raised this same defense during the PSI. In both instances, she cited her newly found religious convictions as testimony to her rehabilitation efforts. See DOE Exhibit 11 at 52-65. This defense was undermined when the individual revealed of her own accord at the hearing that a statement she had made under oath at the PSI was untrue, i.e. that she had not intentionally omitted the information concerning her police record from the QSP. DOE Exhibit 11 at 61; Tr. at 79. The admission not only revealed the frailty of the individual's rehabilitation defense, but tainted her credibility as well. Consequently, I will accord no weight to the rehabilitation defense as it pertains to the charge set forth under 10 C.F.R. § 710.8(f).

With respect to any other factors relevant to a determination concerning the individual's eligibility for access authorization, I note the following evidence in the record. First, as noted in Section IV.A above, the individual was a mature woman at the time she falsified information to the DOE. Second, the statements which triggered the falsification allegation are recent. Third, the individual disclosed that she failed to reveal her criminal background to the DOE because she feared losing her job. Tr. at 79. The individual's motivation in this instance does not mitigate the DOE's security concern regarding her falsification.

In conclusion, I find that the individual's deliberate omission of significant information from her QSP raises a substantial question as to her honesty, reliability and judgment. This omission was particularly brazen in light of the fact that the individual signed the QSP, and thereby attested to its accuracy, on December 1, 1993, little more than three months after her August 30, 1993, convictions. When viewed together with evidence brought out at the hearing that the individual was less than forthcoming in her April 29, 1994, PSI, there appears to be a continuing pattern of dishonesty on her part. Under the cumulative weight of this evidence, I am left with even more serious doubts regarding the individual's reliability and judgment. I conclude that the individual's deliberate falsification of her criminal history on the QSP is precisely the kind of behavior that falls under the criterion set forth in 10 C.F.R. § 710.8(f). Therefore, I do not find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest.

V. Conclusion

As explained in this Opinion, I find that DOE/XXXXX properly invoked 10 C.F.R. §§ 710.8(f) and (l) in suspending the individual's access authorization. In view of these criteria and the record before me, I cannot find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I find that the individual's "Q" access authorization should not be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response within 20 days of receipt of the statement.

Ann S. Augustyn

Hearing Officer

Office of Hearings and Appeals

/ Access authorization means an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a). / At the conclusion of the hearing, I granted the individual's request to provide a post-hearing affidavit from a witness who failed to appear at the hearing. Subsequently, I granted the individual an extension until December 16, 1994, to furnish me with the affidavit. On December 9, 1994, the individual orally withdrew her request to provide the subject affidavit, citing difficulty communicating with the affiant as the reason thereof. On that date, I closed the record in this case. / The XXXXX is the management and operating contractor for the Department of Energy at XXXXX. XXXXX held first and second mortgages on the individual's house. Tr. at 54. / Even one of the character witnesses who testified on behalf of the individual at the hearing, XXXXX, was unaware of the felony fraud convictions or any of the other events that are the subject of this proceeding. Tr. at 107-08. / I find incredible the individual's explanation at the hearing that the latter false statement was not intended to be deceptive because she did not consider changing the date on a receipt to be altering.