Case No. VSO-0002, 24 DOE ¶ 82,752 (H. O. Dugan Jan. 31, 1995)

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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.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: September 21, 1994

Case Number: VSO-0002

This Opinion concerns the eligibility of XXXXXX (hereinafter referred to as "the individual") to receive a level "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."<1>

I. BACKGROUND

The individual was hired as a XXXXX in February 1992 by XXXXX, a Department of Energy (DOE) contractor at XXXXX. Because XXXXX requested that the individual be provided a "Q" clearance, the individual completed and submitted a Questionnaire for Sensitive Positions (QSP) in September 1992. Pursuant to a request by DOE, the Office of Personnel Management (OPM) conducted a background investigation of the individual from December 1992 through March 1993. Information uncovered during the OPM investigation was determined by the Director of the Personnel Security Division of the DOE/XXXXX Operations Office (DOE/XXXXX) to be substantially derogatory and created questions as to the individual's eligibility for access authorization. Therefore, pursuant to 10 C.F.R. § 710.9(a), the DOE/XXXXX authorized the conduct of a recorded interview with the individual. That Personnel Security Interview (PSI) was conducted on July 15, 1993. Since the questions as to the individual's eligibility were not resolved through the PSI, the individual underwent a DOE-sponsored mental evaluation by a board-certified psychiatrist, XXXXX (DOE psychiatrist), on January 4, 1994. On February 19, 1994, the DOE psychiatrist issued his psychiatric evaluation regarding the individual. Since derogatory information remained unresolved,

DOE/XXXXX requested from the Director of the Office of Safeguards and Security the authority to conduct an administrative review proceeding.

The administrative review proceeding was commenced by the issuance of a Notification Letter dated September 7, 1994. See 10 C.F.R. § 710.21. In that letter, the individual was informed that information in the possession of the DOE created a substantial doubt concerning his eligibility for a "Q" access authorization. In accordance with 10 C.F.R. § 710.21, that Notification Letter included a statement of the derogatory information in the possession of the DOE that created the substantial doubt concerning the individual's eligibility for access authorization. In particular, it specified five areas of derogatory information described in 10 C.F.R. § 710.8.<2>The Notification Letter also informed the individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization. On September 9, 1994, the individual requested a hearing without filing a separate written response to the information that raised the doubt concerning his access authorization eligibility. Under the regulations, such a request for a hearing is deemed a general denial of all of the reported information listed in the Notification Letter. 10 C.F.R. § 710.21(b)(5). The individual's request for a hearing was forwarded by the DOE/XXXXX to the Office of Hearings and Appeals of the DOE. On September 22, 1994, I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. § 710.25(e) & (g), the hearing was convened in XXXXX, on XXXXXXXXXXXXXXXX.<3>

At the hearing on XXXXXXXXXX, at which the individual was represented by an attorney, the following witnesses were called to testify: (i) XXXXX, DOE Personnel Security Specialist; (ii) XXXXX, Psychiatrist for DOE; (iii) XXXXX, the individual's supervisor; and (iv) the individual. The documentary evidence submitted into the record in this proceeding includes the individual's QSP, the OPM background investigation, the PSI, and the DOE-sponsored psychiatric evaluation.

II. STATEMENT OF DEROGATORY INFORMATION

As indicated above, the Notification Letter issued to the individual on September 7, 1994, included a listing of the derogatory information in possession of the DOE that created a substantial doubt as to the individual's eligibility to receive a "Q" clearance. On the basis of that derogatory information, DOE/XXXXX found that:

  1. The individual had deliberately misrepresented, falsified, or omitted significant information from his QSP. See 10 C.F.R. § 710.8(f). The individual (a) omitted a prior arrest for possession of marijuana, (b) understated his involvement with illegal drugs in the last five years, and (c) neglected to mention that he had any children.
  2. The individual had been diagnosed by a board-certified psychiatrist as having an illness or mental condition of a nature which, in the opinion of that psychiatrist, causes or may cause a significant defect in judgment or reliability. See 10 C.F.R. § 710.8(h). The individual was diagnosed under the criteria in the Diagnostic and Statistical Manual III-R (DSM III-R) as suffering from Antisocial Personality Disorder and Psychoactive Substance Dependence Disorder, both disorders being of a nature which may cause a significant defect in judgment or reliability.
  3. The individual has been, or is, a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist as being alcohol dependent or as suffering from alcohol abuse. See 10 C.F.R § 710.8(j). The individual, in the opinion of a psychiatrist, uses alcohol habitually to excess without adequate evidence of rehabilitation and reformation.
  4. The individual has trafficked in, sold, transferred, possessed, used, or experimented with a drug or other substance listed in the Schedule of Controlled Substances established pursuant to section 202 of the Controlled Substances Act of 1970. See 10 C.F.R. § 710.8(k). The individual (a) has admitted using cocaine as recently as March or April of 1993, (b) was placed on one-year probation as a result of a November 1991 arrest for the possession of cocaine, (c) used marijuana for more than 12 years beginning 1975 or 1976, and (d) was arrested in March 1994 for possession of drug paraphernalia containing traces of cocaine.
  5. The individual has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable, trustworthy, or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interest of the national security. See 10 C.F.R. § 710.8(l). The individual (a) prevaricated concerning his use of illegal drugs, (b) has demonstrated a disregard for the law, and (c) failed to file federal and state income taxes for several years.

III.ANALYSIS AND FINDINGS OF FACT

The DOE Counsel must present sufficient evidence to support the alleged derogatory information (i.e., present a prima facie case).<4>The individual then has the burden of going forward with evidence to rebut, refute, explain, extenuate, or mitigate the allegations. The ultimate burden of persuasion as to whether an individual should be granted access authorization or whether an individual's suspended access authorization should be restored must lie with the individual. The Hearing Officer must render an opinion as to whether granting an individual an access authorization or restoring an individual's suspended access authorization would not endanger the common defense and would be clearly consistent with the national interest. See 10 C.F.R. § 710.27(a). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Dep't of Navy v. Egan, 484 U.S. 518, 531 (1988) ("clearly consistent with the national interest" standard for the granting of security clearances indicates "that security determinations should err, if they must, on the side of denials."); Dorfmont v. Brown, 913 F. 2d. 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance). Consequently, given the significant potential national security issues concerned and the resulting implied presumption against the issuance of a security clearance, it is most appropriate to place the burden of persuasion on the individual.

The 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 have considered in rendering this Opinion concerning the individual's eligibility for access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding his conduct, including knowledgeable participation; the frequency and recency of his conduct; his age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. See 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 derogatory information presented by the DOE/XXXXX in this case is factual and the individual has failed to present sufficient evidence to rebut or mitigate that derogatory information.

A. THE INDIVIDUAL'S DELIBERATE MISREPRESENTATION, FALSIFICATION, AND/OR OMISSION OF SIGNIFICANT INFORMATION

The DOE/XXXXX relies on 10 C.F.R. § 710.8(f) as one of the bases for denying the individual a "Q" access authorization. Subsection 710.8(f) concerns derogatory 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.

In her testimony at the hearing the DOE Personnel Security Specialist explained that the DOE's security program is based on trust, and when an individual breaches that trust by misrepresenting, falsifying, or omitting information during the access authorization review process, it is difficult for the DOE to trust that individual. See Transcript of XXXXXXXXXXXXXXXX, Personnel Security Hearing (hereinafter Tr.) at 15-16. The DOE must rely on individuals who are granted access authorization to be honest and truthful; this important principle underlies the criterion set forth in Subsection 710.8(f). The Notification Letter raises three areas of concern where it is alleged that the individual deliberately misrepresented, falsified, or omitted information provided to the DOE.

1. Omission of Prior Arrest from QSP

The DOE/XXXXX asserts in the Notification Letter that the individual omitted an October 25, 1982, arrest for possession of marijuana when he completed his QSP on September 2, 1992. See DOE Exhibit 2 at Item 23. The individual acknowledged at the hearing that he had omitted the October 1982 arrest when he completed his QSP. Tr. at 201. In explaining the omission, he stated that he had forgotten the arrest but pointed out that, when he was questioned about it during his PSI, he did not deny it. Tr. at 201-202. Notwithstanding the individual's later acknowledgment of the arrest for possession of marijuana, it is my opinion that the individual deliberately omitted the arrest from his QSP in an attempt to minimize or downplay the extent of his criminal record and his history of drug use. The fact that the individual admitted to the arrest when questioned directly during the PSI does not mitigate the seriousness of the initial omission. Indeed, the PSI reveals that, in spite of such an allegedly poor memory, the individual was able to provide a somewhat detailed account of the circumstances of the October 1982 arrest. See DOE Exhibit 3 at 42-49. Furthermore, the individual had the opportunity when completing the QSP to review his records before finally submitting the form to insure that he omitted no significant information. The individual's attempts to downplay the seriousness of this omission, as well as other omissions that were revealed during the course of these proceedings, are symptomatic of a serious lack of concern about the gravity of such matters as his criminal activity and the need for forthrightness in the security review process.

2. Misrepresentation and Omission of Significant Information Concerning Involvement with Illegal Drugs

In the Notification Letter, the DOE/XXXXX further states that the individual misrepresented the extent of his involvement with illegal drugs during the five years prior to the completion of the QSP. In this section, I will limit my considerations to the individual's misrepresentation, falsification, or omission of information concerning his use of illegal drugs; I will discuss his use of illegal drugs as it pertains to 10 C.F.R. § 710.8(k) in a later section of the Opinion. Question 25 of the QSP states:

In the last 5 years, have you used, possessed, supplied, or manufactured any illegal drugs? . . . If you answered "Yes" . . . provide information relating to the types of substance(s), the nature of the activity, and any other details relating to your involvement with illegal drugs or alcohol. Include any treatment or counseling received.

In response to Question 25 of the QSP, the individual indicated that his only involvement with illegal drugs in the five years prior to completing the questionnaire was a November 1991 arrest for possession of cocaine. DOE Exhibit 2 at Item 25. It is clear from the record before me that this was an incomplete answer.

The individual has subsequently admitted in the PSI and the psychiatric evaluation that the November 1991 occurrence was not an isolated incident of involvement with illegal substances. He has admitted on several occasions that he purchased and used cocaine and marijuana extensively during the five years prior to his completion of the QSP. Specifically, the individual admitted under oath during his PSI that he used cocaine in powder form during at least seven months of 1988 or 1989, that he began using rock cocaine in late 1990, and that, after an approximately four-month hiatus from March to June 1991, he resumed using rock cocaine sporadically until December 1992. DOE Exhibit 3 at 81-102. At the hearing, the individual testified that he purchased and used cocaine for approximately one year around 1988 and then resumed purchasing and using cocaine in 1991. Tr. at 221-228. In addition, the individual stated during his PSI and during the hearing that he purchased and used marijuana as recently as 1988 or 1989. DOE Exhibit 3 at 66-81; Tr. at 220-221. Failure to include this illegal drug activity on his QSP constitutes a very serious and, I believe, deliberate omission of significant information by the individual. From the record before me, it is clear that the individual deliberately omitted copious significant information concerning his purchase and use of illegal drugs during the five years prior to his completion of the QSP. The extent of the individual's drug use was such that I find it very difficult to believe that he could have merely forgotten his drug purchases or use when completing the QSP. Moreover, when subsequently admitting to instances of purchase and use of illegal drugs, the individual generally responded in an equivocal manner, offering contradictory or discrepant explanations of the charges that he omitted from his QSP. Tr. at 197, 201-202, 221-228; DOE Exhibit 3 at 49-55, 66-76, 81-116.

In addition, the individual's description of the one drug-related incident he mentioned on the QSP, his November 1991 arrest for possession of cocaine, is a misrepresentation of that incident. In response to Question 25, the individual wrote "COCAINE - INTRAPMENT" [sic]. DOE Exhibit 2 at Item 25. I believe that the individual's attempt to downplay that particular incident with a justification of entrapment was a deliberate misrepresentation of significant information. During his PSI, the individual described the November 1991 incident as follows (paraphrased):

A friend (or friends) came to visit and asked the individual to purchase rock cocaine. The individual went alone to a "crack house" and asked a stranger outside the house if rock cocaine was available indoors. The stranger replied that there was rock cocaine for sale, and the individual went into the house and asked another stranger inside the house if he was selling rock cocaine. The stranger replied affirmatively. The individual then asked the stranger if the stranger was a policeman. The stranger replied that he was not a policeman. After giving the stranger $20 in exchange for one rock of cocaine, the stranger arrested him for possession of a controlled substance. The individual admitted that he intended to use the rock cocaine with the friend. The individual pled guilty to the charge and was sentenced to one year of probation. DOE Exhibit 3 at 49-55.

The individual's contention that he was entrapped is rather unconvincing in light of the circumstances of the incident as he himself described them and in light of his guilty plea. Therefore, I agree with DOE/XXXXX's assertion in the Notification Letter that the individual went to the "crack house" for the purpose of purchasing rock cocaine for his own use as well as for the use of others. The individual's characterization of the incident as entrapment, in my opinion, misrepresents significant information and was not a completely forthright explanation of the incident. As in the preceding section, this leads me to believe that the individual was not being straightforward concerning significant information when completing the QSP.

Although not mentioned in the Notification Letter, another example of the individual's failure to be truthful with the DOE involving his past use of illegal substances involves his responses to questions regarding when he last used cocaine. During the PSI conducted in July 1993, the individual stated that he had last used cocaine in December 1992. DOE Exhibit 3 at 102. However, during the psychiatric interview conducted in January 1994, the individual acknowledged having used cocaine as recently as March or April of 1993. See DOE Exhibit 4 at 27. I believe the individual's failure to inform the personnel security interviewer in July 1993 of his use of cocaine within the preceding three to four months was another deliberate omission in order to conceal his ongoing use of cocaine at that time.

3. Failure to List Children on QSP

The DOE/XXXXX also contends that the individual failed to list his children on the questionnaire. Question 17 of the QSP requires that the respondent give full names and relationships of all relatives, living or dead. The individual did not list any children when responding to Question 17 of the QSP. Subsequent to completing the QSP, the individual has equivocated when asked to state whether he has children or not. The individual generally contends that there is no proof that he has any children, yet on several occasions has indicated that he has at least one, possibly two children--an eighteen-year-old daughter and a four-year-old son. Tr. at 167, 192-194; DOE Exhibit 3 at 31-36. Furthermore, many persons interviewed during the OPM investigation of the individual, including the individual's mother, stated that they believed that the individual was the father of either one or both of said children. See generally Individual Exhibit A (the OPM investigation report).

The individual's equivocal stance when responding to questions concerning children he has fathered is unusual. He simultaneously avers that there is no proof that he has any children, yet variously represents himself as the father of each child and/or both children. It is my opinion that the individual, when completing the QSP, deliberately omitted information about any children he has fathered or possibly has fathered as part of a larger effort to avoid including information on his QSP that possibly might reflect badly on him, viz., fathering children outside of marriage. Given the individual's general openness within the community regarding the possibility that these children are his, I do not believe that there is a danger of pressure, coercion, exploitation, or duress in this matter. Nevertheless, I believe that he deliberately omitted any reference to the children in order to conceal from the DOE information that he thought would be viewed as derogatory. While this omission is not as significant as his omission of prior arrests or illegal drug use, it is, in my opinion, another example of a lack of forthrightness on the part the individual.

In his testimony, the individual pointed out that on a number of occasions during his investigation he did not conceal information and gave truthful answers even though those answers would be self-incriminating. The individual is correct insofar as many of his responses to questions during the investigation have been truthful even though they revealed derogatory information. Often, however, at least with regard to his history of illegal drug use, these truthful statements have been made only after very specific questioning regarding incidents that were first revealed by the OPM investigation. DOE Exhibit 3 at 66-102, Tr. at 212-228. The fact that he has answered some questions truthfully, thereby revealing derogatory information, does not sufficiently mitigate what I believe were deliberate omissions by him of significant information at earlier stages of the process.

B. DIAGNOSES OF MENTAL ILLNESSES WHICH CAUSES OR MAY CAUSE A DEFECT IN JUDGMENT OR RELIABILITY

In its Notification Letter, the DOE/XXXXX stated that it possessed derogatory information concerning the individual as described in 10 C.F.R. § 710.8(h). Subsection 710.8(h) classifies as derogatory information any information that indicates that the individual has:

[a]n illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist, causes, or may cause, a significant defect in judgment or reliability.

The DOE/XXXXX has submitted into evidence testimony from a board-certified, DOE-sponsored psychiatrist along with his written psychiatric evaluation dated February 19, 1994, regarding the individual. In the February 19, 1994, psychiatric evaluation (the Report) and in his testimony, the psychiatrist diagnosed the individual as having two mental illnesses, (i) Antisocial Personality Disorder (APD) and (ii) Psychoactive Substance Dependence Disorder, Polysubstance Dependence (PSD). Further, in his evaluation and in his testimony, the psychiatrist expressed the opinion that each of these illnesses in the individual may cause a significant defect in the individual's judgment and reliability. At the hearing, the individual challenged the validity of the diagnoses made by the psychiatrist.

1. Diagnosis of Antisocial Personality Disorder

In his Report, the psychiatrist analyzed information from the individual's PSI and the OPM background investigation, and then summarized (i) the clinical impressions he obtained from his personal examination of the individual on January 4, 1994, (ii) the results of a psychometric test, the Minnesota Multi-Phasic Personality Inventory-2 (MMPI), administered to the individual, and (iii) the results of a urine test for drugs of abuse.<5>The Report states that, using the criteria listed in the Diagnostic and Statistical Manual III-R (DSM III-R), the individual suffers from APD. DOE Exhibit 4 at 37-38. At the hearing, the psychiatrist testified regarding his examination of the individual and how he applied the criteria listed in the DSM III-R to establish his diagnosis of APD. Tr. at 83-85. In both the Report and his testimony, the psychiatrist stated that in his opinion the individual suffers from APD and that this illness causes or may cause a significant defect in judgment and reliability in the individual. Tr. at 83, 85; DOE Exhibit 4 at 38.

During the course of the hearing, the individual challenged the psychiatrist's opinions on several grounds. The individual argues that the psychiatrist's opinion is biased and therefore is not credible. The individual alleges that this bias exists because the psychiatrist was paid by the DOE to examine the individual. Tr. 106-109. The individual further alleges that the psychiatrist may be prejudiced against the individual as a result of an argument the individual had with a member of the psychiatrist's staff on an earlier visit. From the record, it appears that during the individual's first visit to the psychiatrist's office on November 24, 1993, the individual was informed that the psychiatrist had a clinical emergency and could not see the individual for another hour. DOE Exhibit 4 at 3, Tr. at 68, 177-8. The individual testified that he was treated rudely by a member of the psychiatrist's office and then left the office. Tr. at 177. The individual testified that he subsequently called DOE/XXXXX to complain about his treatment and to inform DOE/XXXXX that he would prefer not to see the psychiatrist. Tr. at 177. The individual testified that, nevertheless, the DOE/XXXXX then set up another appointment with the psychiatrist. Tr. at 177-178. During his second visit on January 4, 1994, he informed the psychiatrist directly that he did not want to see him, stating "[t]here is a thousand dudes out there that got a Ph.D., and if you're too busy to see me, maybe I should see another psychiatrist." Tr. at 178. The individual further told the psychiatrist that he was only seeing him because the DOE required it. Id. The psychiatrist testified that he knew that the individual had complained about his office to DOE/XXXXX but did not think that the individual had any animus against him personally, only that he was upset over not being seen at the appointed time on November 24. Tr. at 148. The psychiatrist further testified that while the individual told him at the interview that he did not want to see him, that statement did not influence his examination of the individual and that he had experience in examining people who do not wish to be seen by a psychiatrist. Id.

The individual also argues that the psychiatrist's opinions may be flawed because of the psychiatrist's lack of experience in evaluating male African Americans. Tr. at 125. The individual elicited testimony from the psychiatrist that only approximately one to 1.5 percent of his patients were male African Americans. Tr. at 125. The individual apparently argues that the psychiatrist's unfamiliarity with male African Americans casts doubt on the validity of his professional opinions regarding the individual, who is a male African American.

Given the record before me, I am not convinced that the psychiatrist's opinion was based on any bias. The Report takes great pains to relate the psychiatrist's personal observations as well as his conclusions based on documented factual material available to him. In addition, the psychiatrist used standard diagnostic criteria to arrive at his opinion. Further, the demeanor of the psychiatrist did not appear to indicate to me that he had any animosity or bias toward the individual or African Americans in general. While the psychiatrist was paid for his work, almost all experts who testify at civil or criminal trials are compensated for their work. Thus the fact that the psychiatrist was compensated by the DOE does not devalue his testimony. With regard to the psychiatrist's alleged lack of experience with male African Americans, the psychiatrist testified that he had significant experience in treating male African Americans while he was a resident in psychiatry during 1970 and 1971. Tr. at 128, 153. The individual elicited testimony from the psychiatrist that he was not familiar with the names of the two largest African-American neighborhoods in XXXXX and was not familiar with a particular speech pattern that the individual used frequently during the interview. Tr. at 71, 125-126.<6>The psychiatrist also found the individual's hand movements to be exaggerated and unusual. Even assuming, as alleged by the individual, that these factors reflect a lack of cultural familiarity or sensitivity on the part of the psychiatrist, I would not find them sufficient to rebut the psychiatrist's opinion regarding the individual. In sum, I am not convinced that the psychiatrist's opinion regarding the individual was based on any bias.

At the hearing, the individual also argued that the specific application of two of the DSM-III-R criteria to the individual was improper and that consequently, the individual was improperly diagnosed as suffering from APD. The DSM III-R criteria for the diagnosis of APD consist of determinations that: (i) the individual is at least 18 years of age; (ii) the individual before the age of 15 engaged in at least three of 12 enumerated types of conduct listed in Section B of the criteria (Group B criteria); (iii) the individual since the age of 15 has engaged in at least four of 10 enumerated types of conduct listed in Section C of the criteria (Group C criteria) and; (iv) the antisocial behavior did not occur during the course of two other mental illnesses, Schizophrenia or a Manic Episode. See DSM III-R at 344-45. In his report and in his testimony, the psychiatrist, after reviewing the available information and after examining the individual, stated that the individual was over the age of 18 and that in his opinion the individual's behavior met three of the Group B criteria. DOE Exhibit 4 at 37; Tr. at 84. Specifically, in the psychiatrist's opinion, the individual met Criterion b(1), that the individual had been often truant; Criterion b(5), that the individual had attempted to force another into sexual activity with him; and Criterion b(12), that the individual had stolen with confrontation of a victim. Id. Further, in the psychiatrist's opinion the individual met six of the Group C criteria. The six Group C criteria were: Criterion c(2), that the individual had repeated arrests; Criterion c(4), that the individual had repeatedly failed to honor financial obligations; Criterion c(6), that the individual had no regard for the truth, as indicated by repeated lying, use of aliases or, "conning" others for personal profit or pleasure; Criterion c(7), that the individual had been reckless regarding his or her safety or the safety of others; Criterion c(9), that the individual has never sustained a totally monogamous relationship for more than one year; and, Criterion c(10), that the individual lacks remorse. Tr. at 84-85; DOE Exhibit 4 at 37. The psychiatrist also determined that none of the individual behaviors occurred during the course of Schizophrenia or a Manic Episode. DOE Exhibit 4 at 37.

The individual specifically challenged the psychiatrist's application of two of the DSM III-R criteria for the diagnosis of APD. One relates to the individual's truancy from school (Criterion b(1)). Although the individual testified that he "might have missed a few days," he alleges that he was never expelled or suspended from school. Tr. at 175. However, the psychiatrist testified that the individual indicated to him during the interview that he had been truant. Tr. at 156. According to the psychiatrist, the individual also stated that he had often been sent to the principal's office for bad behavior and had admitted statements to that effect in the MMPI. DOE Exhibit 4 at 33, Tr. at 84.<7>After reviewing the testimony and the Report, it is my opinion that the psychiatrist had a sufficient basis to determine that Criterion b(1) applied to the individual. Given the record before me, the individual has not produced sufficient evidence to rebut the psychiatrist's opinion regarding this criterion.

The individual also challenged the application of Criterion c(9), arguing that in fact he had maintained a monogamous relationship for longer than a year. Tr. at 180. Further, the individual challenged the validity of the criterion itself asserting that it may be a culturally-biased indicator. Tr. at 122. I find no evidence in the record that the individual has not maintained a monogamous relationship for more than one year. In fact, the evidence that exists on this issue appears to indicate that the individual has at least once maintained a monogamous relationship for more than one year. Individual Exhibit A at 32. Therefore, based on the record before me, I cannot find that the psychiatrist had a reasonable basis to apply Criterion c(9) to the individual. Excluding the applicability of this one criterion, however, does not affect the overall finding of the psychiatric report that APD exists, because the psychiatrist determined that five other Group C criteria were applicable, one more than is needed under the DSM III-R for a diagnosis of APD.

In sum, the DOE/XXXXX has presented a psychiatric evaluation report by a board-certified psychiatrist along with testimony by the psychiatrist stating that in his opinion the individual suffers from APD and that this disorder may cause a significant defect in his judgment and reliability. The psychiatrist's opinion is based on standard diagnostic criteria and in my opinion the psychiatrist had a sufficient factual basis for his opinion. None of the arguments the individual has raised concerning the validity of the psychiatrist's opinion rebuts that expert opinion. Further, there is no expert testimony before me stating that the individual is not suffering from APD, nor has evidence been offered that this disorder could not cause a defect in the individual's judgment or reliability. As explained at the beginning of part III of this Opinion, the burden of persuasion is on the individual; he has not met that burden in this matter. Consequently, I find that the individual has an illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist, causes or may cause a significant defect in his judgment and reliability.

2. Diagnosis of Psychoactive Substance Dependence Disorder

In the Report and in testimony at the hearing, the psychiatrist, who was stipulated by the parties as an expert on alcohol and drug abuse, made an additional diagnosis regarding the individual, viz., that the individual also suffers from Psychoactive Substance Dependence Disorder, Polysubstance Dependence (PSD). Tr. at 62, 73; DOE Exhibit 4 at 36. The psychiatrist made this diagnosis on the basis of the material contained in the PSI, the QSP, the OPM background investigation, and his examination of the individual.

The DSM III-R states that in order for an individual to be diagnosed as suffering from PSD, the individual must be found to have engaged in at least three of nine enumerated types of behavior (Group A criteria) and, in addition, some symptoms of the disturbance must have persisted for at least one month or occurred repeatedly over a longer period of time. DSM III-R at 167-8. In the Report and testimony, the psychiatrist found that the individual met three of the Group A criteria, specifically: Criterion a(1), that the individual had taken a psychoactive substance often in larger amounts or over a longer period than he intended; Criterion a(2), that the individual had a persistent desire or one or more unsuccessful efforts to cut down or control psychoactive substance use; and Criterion a(6), that the individual continued psychoactive substance use despite knowledge of having a persistent or recurrent social, psychological, or physical problem that is caused or exacerbated by the use of the substance.<8>Tr. at 73-82. Further the psychiatrist stated that the individual's problems have persisted well over a month. DOE Exhibit 4 at 36. In his testimony, the psychiatrist explained that a diagnosis of Psychoactive Substance Dependence Disorder, Polysubstance Dependence, requires that the usage of all psychoactive substances by the individual be considered together and that in making his findings of dependence disorder in this case he considered both alcohol and cocaine usage by the individual. Tr. at 76.

The individual specifically challenged the psychiatrist's application of Criteria a(1) and a(2). In applying Criterion a(1), the psychiatrist based his opinion on a determination that the individual had been under the influence of alcohol both times he came to the psychiatrist's office, and on the OPM investigation, which revealed that cocaine had been detected in a urine specimen of the individual collected on December 10, 1992, during one of the individual's visits with his probation officer. Because of the evaluative nature of these various appointments, the psychiatrist determined that the individual would have tried to stop using cocaine or alcohol had he been able to do so. DOE Exhibit 4 at 36; Tr. at 77, 81-82. In his determination that the individual was under the influence of alcohol during both office visits, the psychiatrist noted that, during the individual's November 24, 1993, visit to his office, his receptionist had smelled the odor of alcohol on the individual's breath, although the receptionist could not determine with certainty if the smell was from an alcoholic beverage. DOE Exhibit 4 at 2. During his examination of the individual on January 4, 1994, the psychiatrist requested that a urine drug test be performed on the individual that day. The test result indicated that the individual had an ethanol (alcohol) level of 31 milligrams per deciliter (mg/dl). DOE Exhibit 4 at 34; Tr. at 69.<9>Based on his knowledge that (a) alcohol is metabolized at a constant rate, (b) approximately three hours would have elapsed between the time the individual left XXXXX to drive to the psychiatrist's office in XXXXX and the time when he provided a urine sample to the lab, and (c) urine alcohol levels are approximately equal to blood alcohol levels, the psychiatrist estimated that the individual was probably legally intoxicated with a blood alcohol level of more than 80 mg/dl earlier that day. DOE Exhibit 4 at 29; Tr. at 69. The psychiatrist also noted that during the interview the individual's speech and movement seemed odd and that he exhibited jerking movements with his hands and frequently laughed. Tr. at 71. According to the psychiatrist, these factors also may have indicated that the individual was intoxicated during the interview. Tr. at 71, 128; DOE Exhibit 4 at 34.

The individual challenged the psychiatrist's determination that he was intoxicated during his January 4, 1994, visit to the psychiatrist's office.<10>With regard to the January 4, 1994, visit, the individual asserts that the psychiatrist's estimation method regarding the individual's blood alcohol level is flawed since the psychiatrist did not take into account various factors that might have been present and which could have affected the individual's blood alcohol level, such as the presence of other drugs or whether the individual had eaten prior to the urine test. Tr. at 112-18. The individual also challenged the psychiatrist's reliance on the December 10, 1992, positive drug test (for cocaine) in applying Criterion a(1), since the test result itself was reported as "inconclusive." Individual Exhibit A at 41; Tr. at 142.

After reviewing the evidence, I conclude that the psychiatrist had a sufficient basis on which to apply Criterion a(1) to the individual. With regard to the alleged positive cocaine test, the OPM report (based on testimony of the individual's probation officer) states that the test was reported as inconclusive but also states that trace amounts of cocaine were present. Individual Exhibit A at 41; Tr. at 141-142; DOE Exhibit 4 at 7. Further, the psychiatrist testified that the individual had informed him in their interview that he had a positive urine test for cocaine on that occasion. DOE Exhibit 4 at 29. That positive test occurred in December 1992 while the individual was on probation for an earlier cocaine possession conviction. Further, the psychiatrist's application of Criterion a(1) is supported by the results of the urine test the individual took after his psychiatric examination on January 4, 1994. The psychiatrist has testified that he had sufficient information to estimate the individual's blood alcohol level earlier in the day and that in his opinion, the individual probably would have had a blood alcohol level of approximately 200 mg/dl, significantly over the XXXXX limit of 80 mg/dl for intoxication. Tr. at 117. The psychiatrist further testified that even if the other factors that the individual cites as having a potential effect on blood alcohol levels had been present, they would not have lowered the blood alcohol level to such an extent as to be below the 80 mg/dl level. Id. The individual has failed to present any testimony by a competent expert which disputes the psychiatrist's methods of estimating blood alcohol levels. Even assuming, arguendo, that I accepted the individual's argument that he was not legally intoxicated at the January 4 visit, the psychiatrist would still have had a sufficient basis for the application of Criterion a(1). The fact that the individual tested with a urine alcohol level of 34 mg/dl at the time of his appointment with a psychiatrist evaluating him for alcoholism indicates clearly that the individual had been drinking prior to the examination. I am led to the opinion that, if the individual were able to control his alcohol use, he would not have appeared for his January 4, 1994, appointment with alcohol in his system. Similar reasoning holds with respect to his positive test for cocaine while he was on probation. In addition, although not cited by the psychiatrist, the testimony of the individual's probation officer during the OPM investigation indicates that the individual also tested positive for cocaine and alcohol the day he was sentenced in September 1992 for his November 1991 cocaine possession. Individual Exhibit A at 64. On the basis of all of these incidents, I find that the psychiatrist had a sufficient basis to conclude that the individual has used psychoactive substances in larger amounts over a longer period of time than intended, and therefore met Criterion a(1).

The individual also challenged the application of Criterion a(2) to the individual. In the psychiatrist's opinion Criterion a(2) was applicable because the individual informed him that he never drives when he drinks because he is afraid of being arrested for driving while intoxicated, yet, in the psychiatrist's opinion, the individual was intoxicated on both days that he drove to the psychiatrist's office for the appointments. Tr. at 77. Consequently, the psychiatrist concluded that the individual was unable to cut down or control his use of alcohol, despite a desire to do so. The individual argues that merely being afraid of drinking and driving is not a reasonable ground to apply Criterion a(2). Tr. at 133-35. The fact that at least on January 4, 1994, the individual drove to see the psychiatrist while having a significant urine alcohol level indicates that he was drinking and driving despite his stated intention not to do so. Moreover, as discussed in the next section, the individual was arrested for driving while intoxicated as recently as April 1994. Furthermore, with respect to the individual's cocaine use, the record shows that in January 1993, he entered a substance abuse treatment program. Nevertheless, by the individual's own admission, he used cocaine in March or April of 1993. Tr. at 225-226. These incidents lead me to find that the psychiatrist had a factual basis for concluding that the individual was unable to control his use of psychoactive substances despite attempts to do so (Criterion a(2)).

The DOE has presented expert testimony and a written evaluation by a psychiatrist who has been stipulated by the parties as an expert on alcohol and drug abuse. In the psychiatrist's opinion, the individual suffers from PSD and this disorder in the individual may cause a significant defect in judgment and reliability. None of the arguments raised by the individual regarding the appropriateness of the psychiatrist's diagnosis of PSD have been found to have merit. Further the individual has presented no expert testimony to rebut the psychiatrist's diagnosis that he suffers from PSD. Consequently, I find that the individual suffers from an illness, viz., Psychoactive Substance Dependence Disorder, Polysubstance Dependence, the nature of which causes or may cause a defect in judgment and reliability.

C. HABITUAL USER OF ALCOHOL TO EXCESS

In the Notification Letter, the DOE/XXXXX also states that it is in possession of derogatory information showing that the individual has:

[b]een, or is, a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse. 10 C.F.R. § 710.8(j).

Specifically, the Notification Letter states that the individual has been found by the psychiatrist to be a user of alcohol habitually to excess. As further support for this allegation, the Notification Letter points out that the individual stated in his PSI that he began drinking beer at age 23 and that since 1989 he has consumed a quart or two of beer on Friday nights and half of a pint of hard liquor on Saturday nights. Additionally, the Notification Letter states that the DOE is in possession of information indicating that the individual was arrested in XXXXX, on April 13, 1994, for driving while intoxicated.

In the Report and in his testimony, the psychiatrist stated that in his opinion, the individual is a user of alcohol habitually to excess. Tr. at 78; DOE Exhibit 4 at 36. The psychiatrist stated that the fact that the individual met the DSM III-R criteria for PSD with regard to his alcohol use along with other information described in the Report led him to conclude that the individual was a user of alcohol habitually to excess. Tr. at 78. The psychiatrist also noted that the individual informed him that he would drink a quart of beer and half of a pint of hard liquor over a Friday and Saturday. DOE Exhibit 4 at 29.

The individual has not challenged the DOE's claim that he consumes a quart or two of beer on Friday and a half of a pint of hard liquor on Saturday nights. In addition, the individual testified that during the week he sometimes purchases a quart of beer after work which he sometimes does not finish. Tr. at 204. Also, he testified that he drinks more on the weekends, possibly "a six pack or two" of beer on the weekends along with sometimes a half of a pint of E & J Brandy. Id. This admission confirms the individual's prior statements in the PSI regarding his level of ongoing usage. Further, the individual has admitted that he was arrested for driving while intoxicated and has admitted that during the night he was arrested, a weekday night, he had consumed two beers and a shot of hard liquor. Tr. at 208. The individual has not offered any substantial evidence to rebut any of the derogatory information which indicates that he is a user of alcohol habitually to excess and I find that the psychiatrist had a sufficient basis to conclude that the individual is a user of alcohol habitually to excess.

D. THE INDIVIDUAL HAS ILLEGALLY PURCHASED, SOLD, POSSESSED, AND USED DRUGS LISTED IN THE SCHEDULE OF CONTROLLED SUBSTANCES

The DOE/XXXXX further relies on 10 C.F.R. § 710.8(k) as a basis for denying the individual a "Q" access authorization. Subsection 710.8(k) concerns derogatory information which reveals that a person has:

[t]rafficked in, sold, transferred, possessed, used, or experimented with a drug or other substance listed in the Schedule of Controlled Substances established pursuant to section 202 of the Controlled Substances Act of 1970 (such as marijuana, cocaine, amphetamines, barbiturates, narcotics, etc.) except as prescribed or administered by a physician licensed to dispense drugs in the practice of medicine, or as otherwise authorized by law.

At the hearing, the DOE Personnel Security Specialist testified that the DOE's concerns about illegal drugs are twofold: (i) involvement with illegal drugs illustrates a disregard for the law and (ii) persons who are involved with illegal drugs may be susceptible to blackmail, pressure, coercion, or duress as a result of their involvement with those drugs and quite feasibly could divulge classified or sensitive information under those circumstances. Tr. at 23.

There are several sources of information in the record concerning the individual's involvement with illegal drugs. In order to better organize the information in the record on this matter, I have constructed the following table of instances of the individual's involvement with illegal drugs that are included in the various parts of the record of this proceeding.

Involvement

Date(s)

Source of Information

Possessed, used, purchased, and sold marijuana

1975-76 until approximately 1988 <11>

PSI & Hearing

Used, purchased, and possessed cocaine

1988-89; 1990-93

PSI, Psychiatric Report, & Hearing

Psychoactive Substance Abuse (cocaine)

Diagnosed--January 1994

Psychiatric Report & Hearing

Arrested and fined for possession of marijuana

October 1982

PSI & Hearing

Arrested and placed on probation for possession of cocaine

November 1991

QSP, PSI, Arrest Record, & Hearing

Arrested for possession of drug paraphernalia with traces of cocaine

March 1994 <12>

Arrest Record & Hearing

During the PSI and at the hearing, the individual admitted to possessing, using, purchasing, and selling marijuana over an extended period of time. During the PSI, the individual stated that he (i) first purchased and used marijuana in high school in approximately 1975 or 1976, (ii) used marijuana several times per year from 1976 until approximately 1988, and (iii) sold marijuana when he was between the ages of 14 and 16-17. DOE Exhibit 3 at 66-81. At the hearing, the individual testified that (i) he was aware that marijuana is an illegal substance, (ii) he sold marijuana in high school, (iii) he did not begin using marijuana until he was 21 years of age, (iv) from the time he was 21 he used marijuana once or twice per day until his mid- to late twenties, and (v) he stopped using marijuana altogether in 1988 or 1989. Tr. at 212-221. Although the individual's accounts of his involvement with marijuana are not entirely consistent, they at least indicate a regular involvement with marijuana from a relatively early age (as early as 14 yrs.) until well into maturity (30 yrs.), despite the individual's awareness that marijuana was an illegal substance.

Many of the specifics of the individual's involvement with cocaine have been discussed already in preceding parts of this Opinion. For example, in part III.A.2, I discussed the individual's cocaine usage pattern and his November 1991 arrest for possession of cocaine. In part III.B.2, I found that the individual was accurately diagnosed with Psychoactive Substance Dependence Disorder, Polysubstance Dependence in part because of his cocaine use. As for the individual's arrest in March 1994 for possession of drug paraphernalia with traces of cocaine, the individual indicated at the hearing that he believes this charge to be spurious. He contended that the drug paraphernalia was in fact a gerbil or hummingbird feeding tube and that the claim that there were traces of cocaine is a trumped-up charge. Tr. at 186-188, 228-230. At the time of the hearing, the individual had not gone to trial for this arrest. Whether or not the individual is convicted of possession of drug paraphernalia with traces of cocaine, his involvement with cocaine has been extensively documented through other portions of the record. Thus, I find the DOE/XXXXX's charges concerning the individual's involvement with cocaine to be accurately based and of great magnitude. Especially disturbing to me are the individual's involvement with cocaine up to and during the investigation process for security clearance and the fact that he began using cocaine as a mature adult at the age of 30 or 31. This extensive involvement with cocaine shows a disregard for the law and raises a very real possibility of susceptibility to blackmail, pressure, coercion, or duress. In sum, I find that the DOE/XXXXX's concerns about the individual's involvement with illegal drugs are accurate and supported by very substantial evidence.

E. LACK OF HONESTY, RELIABILITY, AND TRUSTWORTHINESS

The Notification Letter also claims that the individual's conduct in many instances tends to show that he is not honest, reliable, or trustworthy, and exemplifies behavior of the type covered by 10 C.F.R. § 710.8(l). Subsection 710.8(l) concerns derogatory information which reveals that a person has:

[e]ngaged 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.

In support of this allegation, the DOE/XXXXX states that the individual lied about his involvement with illegal drugs to a federal investigator on December 1, 1992, while under oath.

It is undisputed that the individual, while under oath, incorrectly told an OPM investigator that his only involvement with illegal substances was the November 1991 incident in which he was arrested for cocaine possession. Individual Exhibit A at 27. Subsequently, during the PSI, the individual admitted his history of marijuana use and his October 1982 arrest for possession of marijuana, as well as his use of cocaine as recently as December 1992. DOE Exhibit 3 at 66-102. As discussed earlier, given the extensiveness of his illegal drug use over the prior several years and the recency of that illegal activity, I do not believe the individual merely forgot his illegal drug activities when completing the QSP or when being interviewed in December 1992. Moreover, it is apparent that his statements regarding his drug use during the PSI also were not entirely truthful; his most recent use of cocaine had not been in December 1992, as he told the interviewer, but rather, according to his own later admission, in March or April of 1993, only 3-4 months prior to the PSI. DOE Exhibit 3 at 102; DOE Exhibit 4 at 27. His failure to be completely truthful in these interviews casts very serious doubt on his willingness and ability to be honest, reliable, and trustworthy in the future.

During the hearing, the individual observed that the OPM investigation report contained many summaries of interviews with his friends and acquaintances that characterized him as an honest and law-abiding citizen. In addition, the individual's current supervisor testified that he believed the individual to be an honest and reliable person. Tr. at 160-164. The individual is correct that the OPM report contains a number of positive character references. I have reviewed all of the interview summaries included in the OPM report very carefully, and, with the exception of the statement given by the individual's first probation officer, see Individual Exhibit A at 64, they are mainly positive and reflect the opinion that the individual is honest and has not abused alcohol or illegal substances. Nevertheless, because these statements were elicited without the benefit of cross-examination and questioning regarding the acquaintances' knowledge of specific activities of the individual, I must accord them less weight than the serious misrepresentations and omissions by the individual himself regarding his history of drug use. In addition, the testimony of the individual's supervisor, although generally positive, is outweighed by the significant derogatory information regarding the individual.

In addition to the arrests discussed in other parts of this Opinion, the Notification Letter also cites a number of other charges that DOE/XXXXX believes demonstrate a disregard for the law on the part of the individual. These charges include: (i) unlisted license plate, (ii) suspended license, (iii) driving with a revoked license, (iv) no insurance, (v) no emission sticker, and (vi) concealing identity by using another person's birth certificate to obtain false identification. The Notification Letter also cites the individual's failure to file his federal and state income tax returns for several years.

None of these charges is disputed by the individual.<13>In fact, the record reflects that he has admitted several of the charges, e.g., failure to pay taxes and concealment of identity. DOE Exhibit 3 at 10-20, 126-131. While some of the driving-related charges are not as significant as other matters, and one of these multiple charges might by itself be excusable if it were an isolated incident, together they reveal a chronic willingness to ignore legal requirements in spite of the negative consequences that result. Moreover, as already addressed earlier in this Opinion, the individual has a history of arrests and behavior which reflect a serious disregard for the law.

The individual's illegal drug use and other violations of the law have been frequent over the past 15 years, and instances of such behavior have continued within the past year. The many cited instances convince me of the likelihood that such behavior will continue in the future. Furthermore, it is very disturbing that the individual demonstrated very little remorse in his testimony for his illegal activity. Instead, he wishes to place blame for the consequences of his activities on other individuals and circumstances, e.g., the police, the psychiatrist, or the neighborhood where he grew up. Tr. at 177-181, 196-197. I must conclude from the record before me that there is little likelihood that the individual will change his behavior in the near future and demonstrate a higher regard for the law.

The DOE must be able to trust that employees to whom it grants access authorization will be honest, obey laws, and act in the interest of the national security. In view of the individual's history of disregard for the law and his falsifications during the administrative review process in an effort to conceal his illegal activity, I am of the opinion that the DOE cannot rely on the individual to meet these standards. I therefore find that the individual's behavior demonstrates that he is not sufficiently honest, reliable, and trustworthy to be granted access authorization.

IV. SUMMARY AND CONCLUSION

In the above sections of this Opinion, I have made a number of findings regarding the derogatory information in the possession of the DOE regarding the individual in this case. In particular, I have found that the DOE/XXXXX properly invoked 10 C.F.R. § 710.8(f), (h), (j), (k), and (l) in denying the individual access authorization. Specifically, I have found that: (i) the individual deliberately omitted significant information from the QSP he completed and also during a personnel security interview; (ii) he has been diagnosed by a board-certified psychiatrist as having mental disorders which cause or may cause a significant defect in his judgment or reliability; (iii) he has been diagnosed by a board-certified psychiatrist as being a user of alcohol habitually to excess; (iv) he has possessed and used illegal substances, i.e., marijuana and cocaine; and (v) he has exhibited conduct that shows he is not honest, reliable, or trustworthy. The evidence in the record regarding each of these areas of derogatory information is substantial, and in most cases is not only unrebutted but is actually admitted by the individual. Based on the evidence in the record regarding any one of these areas considered by itself, I would be unable to find that granting the individual access authorization would not endanger the common defense and security and would be clearly consistent with the national interest.

I have made a comprehensive, common sense analysis of all of the evidence, including any mitigating factors raised by the individual in his defense. As discussed in detail earlier, the individual has an extensive history of illegal drug use. That usage has been frequent and has occurred as recently as March or April of 1993 by the individual's own admission. His history of alcohol abuse has been as recent as April 1994 when he was arrested for driving while intoxicated. The diagnoses of his mental disorders occurred in January 1994 and were based almost entirely on the individual's behavior in the very recent past. At the time of his conduct on which all of these charges are based, he was a mature individual in his twenties and thirties. His illegal drug use, alcohol abuse, disregard for the law, and attempts to conceal his past behavior are all very serious matters. Moreover, it is very disturbing that the individual has demonstrated an ongoing pattern of illegal behavior even while being investigated for a "Q" clearance and that he appears to be willing to proceed with such behavior despite the negative consequences which have resulted from his past behavior. I can find no evidence in the record of significant rehabilitation or reformation and I am led to the conclusion that there is a very strong likelihood of recurrence of the same types of illegal behavior and disregard for the law in the future.

In view of the criteria set forth in 10 C.F.R. § 710.8 and the record before me, I am unable to find that granting the individual access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, it is my opinion that the individual should not be granted access authorization.

Richard W. Dugan

Hearing Officer

Office of Hearings and Appeals

<1>/ A level "Q" 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 variously in this Opinion as access authorization, security clearance, or "Q" clearance.

<2>The derogatory information as listed in the Notification Letter was divided into only four broad categories. However, one of those categories actually encompassed two different types of derogatory information according to the categorization of derogatory information in 10 C.F.R. § 710.8.

<3>/ I conducted a prehearing telephone conference between the parties on November 22, 1994, in accordance with 10 C.F.R. § 710.25(f). During the course of the prehearing conference, the parties agreed that the individual would be permitted to submit another psychiatric evaluation of the individual after the hearing and that DOE Counsel would be permitted to respond to that evaluation once submitted. Ultimately, the individual chose not to submit another psychiatric evaluation, and I deemed the administrative record closed as of January 3, 1995.

<4>/ However, DOE Counsel also must assist the Hearing Officer in bringing out a full and true disclosure of all facts, both favorable and unfavorable. 10 C.F.R. § 710.26(d).

<5>/ The MMPI is a commonly-used psychological tool which analyzes an individual's personality characteristics. It consists of more than 500 true or false questions. Tr. at 88.

<6>/ The individual frequently used the word "boom" in the middle of sentences.

<7>/ The report includes a copy of the evaluated MMPI, which indicates that the individual had marked the following statements as true: (i) I was suspended from school one or more times for bad behavior; and (ii) In school I was sometimes sent to the principal for bad behavior. DOE Exhibit 4 at 33.

<8>/ The psychiatrist also stated that the individual may also meet Criterion a(7), i.e., that he has a marked tolerance for a psychoactive substance. DOE Exhibit 4 at 36; Tr. at 79.

<9>/ The laboratory report attached to the Report states that the concentration of alcohol in the individual's urine was 34 mg/dl.

<10>/ The individual also challenged the psychiatrist's determination that he was intoxicated during his November 24, 1993, visit and the psychiatrist's reliance in part on hearsay, specifically, a statement by the psychiatrist's receptionist regarding the presence of alcohol on the individual's breath during that office visit. See DOE Exhibit 4 at 2; Tr. at 100. Because I find infra that the psychiatrist had a sufficient basis to apply Criterion a(1) to the individual and to determine that the individual was a user of alcohol to excess without considering the November 24, 1993, incident, I need not address these issues.

<11>/ The Notification Letter alleged that the individual continued to use marijuana less extensively after 1988. However, during the hearing, DOE/XXXXX amended the Statement of Charges portion of the Notification Letter to strike the allegation of less extensive use of marijuana after 1988. Tr. at 22.

<12>/ Although the individual was not arrested until March 29, 1994, the items were seized during the execution of a search warrant on the individual's vehicle on January 27, 1994. See DOE Exhibit 8 at 2.

<13>/ During the course of this proceeding, the individual has made efforts to file his overdue tax returns and pay the back taxes he owes. Tr. at 181-182.