Case No. VSO-0021, 25 DOE ¶ 82,763 (H. O. Klurfeld Aug. 11, 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's.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing:February 16, 1995

Case Number:VSO-0021

This opinion concerns the eligibility of XXXXX [hereinafter the individual] to hold 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." The Department of Energy's XXXXX Operations Office (DOE/XXXXX) recently denied the individual access authorization under the provisions of Part 710. For the reasons stated below, it is my opinion that the DOE should grant the individual access authorization.

I. Background

The individual is a XXXXX for XXXXX with the XXXXX of XXXXX, a Department of Energy (DOE) contractor that operates the XXXXX in XXXXX, Tennessee. The individual has worked for XXXXX since XXXXX. XXXXX requested that the DOE grant the individual "Q" access authorization. Various circumstances in the individual's background prompted the DOE/XXXXX to question whether it should grant the individual access authorization. To help resolve these matters, the DOE/XXXXX conducted a personnel security interview (PSI) with the individual on June 24, 1994. During the interview, the DOE/XXXXX and the individual discussed matters that can be described as falling within the following categories: legal problems, job-related problems, financial difficulties, and affairs while married. As an aid to understanding this case, I will summarize that information in the next four paragraphs.

According to information furnished by the individual, he has been arrested twice. In March 1972, the individual was charged with felony theft, auto theft, and destruction of private property. See Transcript of Personnel Security Interview dated June 24, 1994, at 2-4 [hereinafter PSI Tr.]. According to the individual, the charges resulted from an evening when the individual and three of his cohorts got drunk, took a TV from an undisclosed location without permission, tore the number 5 off the 50-yard line of Texas Stadium, and drove down a one-way road the wrong way. PSI Tr. at 3. After the felony charges were dropped, the individual paid a $125 fine. Id. The individual also acknowledged that in another incident he spent one night in jail because the car that he was driving had a burned-out tail light. According to the individual, "a police officer pulled me over right at the gas station where I was going to get a fuse for the tail light and, uh, I don't know, he must have been having a bad day but he decided to put me in jail." PSI Tr. at 5.

The individual was also fired from his job in 1983 because of a poor evaluation by his supervisor. The individual attributed the poor evaluation to his refusal to relocate to his employer's office in another state. According to the individual, the request to relocate was made shortly after he had relocated at the request of his employer, and he did not want to relocate again so quickly. PSI Tr. at 5-6.

Over the past fifteen years the individual has experienced some financial difficulties. In 1988 a county tax lien was placed on property owned by the individual. The individual also faced an IRS tax levy in 1991. PSI Tr. at 7. In addition, the individual was delinquent in repaying a loan that he had obtained to purchase a time share. PSI Tr. at 9-11.

Marital infidelity has been a significant issue for the individual, who has disclosed involvement in three affairs during his marriage. PSI Tr. at 22. As a result of marital stress, the individual and his wife sought counseling by a marriage counselor in 1986. PSI Tr. at 18-19. In the fall of 1992, the individual experienced an episode of major depression as a result of his and his wife's mutual disclosure of marital affairs. Consequently, XXXXX, who referred the individual for therapy to XXXXX, a clinical psychologist. XXXXX saw the individual from December 1992 to August 1993. PSI Tr. at 14-18.

Because of this history, the DOE referred the individual to a board-certified psychiatrist, XXXXX, M.D., for a mental evaluation. Based upon his evaluation of the individual, the psychiatrist concluded that the individual has an illness or mental condition which causes or may cause a significant defect in judgment or reliability. On the basis of that report, the Director of the Personnel Security Division of the DOE/XXXXX determined that substantial doubt existed as to the individual's eligibility for access authorization, obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding, and denied the granting of the individual's "Q" security clearance.

On January 6, 1995, the DOE/XXXXX started the administrative review proceeding by issuing a letter to the individual notifying him that the DOE possessed information that created a substantial doubt concerning his eligibility for access authorization. See Letter from XXXXX, Manager, DOE/XXXXX, to the individual (January 6, 1995) [hereinafter the Notification Letter]. The Notification Letter specifically identified the derogatory information at issue and explained how the information came within the purview of the criteria set forth in 10 C.F.R. § 710.8(h). In addition, the Notification Letter informed the individual of his right under the regulations to file a written response to the derogatory information and to request a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization.

On January 19, 1995, the individual filed with the Manager of the DOE/XXXXX a request for a hearing concerning his matter. At that time the individual chose not to file a separate written response.

Under the regulations, this type of request for a hearing is deemed a general denial of all reported information listed in the Notification Letter. 10 C.F.R. § 710.21(b)(5). The DOE/XXXXX forwarded the individual's request for a hearing to the Office of Hearings and Appeals (OHA) Director pursuant to the provisions of 10 C.F.R. § 710.25(a) on February 9, 1995. The OHA Director appointed me as Hearing Officer in this case on February 23, 1995.

I convened a hearing in this matter on XXXXXXXXXXXX, in XXXXXXXXXXXXXXXXXXXX. See 10 C.F.R. § 710.25(e) and (g). At the hearing the individual was represented by a personal representative and called two witnesses to testify on his behalf: XXXXX, and XXXXX another clinical psychologist. The DOE/XXXXX presented only one witness at the hearing: Dr. XXXXX.

II. Regulatory Criteria At Issue

As indicated above, the Notification Letter included a specific description of information in the possession of the DOE that the agency regards as derogatory and which, in the opinion of the DOE/XXXXX, creates a substantial doubt as to the individual's eligibility to hold access authorization. On the basis of that derogatory information, DOE/XXXXX found that the individual has an illness or mental condition of a nature that in the opinion of a board-certified psychiatrist, other licensed physician, or a licensed clinical psychologist, causes, or may cause, a significant defect in his judgment or reliability. See 10 C.F.R. § 710.8(h).

III. Testimony and Analysis

A. Testimony Supporting the Denial of Access Authorization

As noted above, the DOE/XXXXX denied access authorization to the individual because a board-certified psychiatrist concluded that the individual has a mental condition that causes, or may cause, a significant defect in his judgment or reliability. During the processing of the request for the individual's access authorization, Dr. XXXXX reviewed the results of the individual's personnel security interview and conducted a psychiatric examination of the individual on August 23, 1994. After the one-hour interview with the individual, Dr. XXXXX had a perception that the individual tended to evade questions and minimize negative events in his life, including two job terminations, his arrests, and his financial difficulties. Transcript of Personnel Security Hearing dated June 7, 1995, at 13-17 [hereinafter Hearing Tr.].

To attempt to confirm or reject his interview-based conclusions, Dr. XXXXX asked the individual to take the Minnesota Multiphasic Personality Inventory [hereinafter MMPI]. The MMPI is a self-reporting inventory where the individual responds to hundreds of statements by indicating whether the statement is true, false, or occasionally cannot say. For analytic purposes when the test is scored, those statements are grouped into ten clinical scales and four validity scales. Each clinical scale was designed to measure a particular aspect of personality, such as depression. An individual's answers are compared to those of a control group. Each scale is scored separately. On the version of the MMPI that was taken by the individual, scores may range from zero to 120. However, the upper limit for responses in the normal range is 65 for each scale. In interpreting the results, one must consider the extent to which the limit of normalcy has been exceeded on any particular scale, as well as the scores on other scales that may show similar personality traits. Thus, certain score profiles are typical of specific disorders.

The response booklet can be scored manually or sent to a firm where a computer reads the answers and generates a report. In this case, Dr. XXXXX chose the latter course of action. According to the computer-generated MMPI report, the individual's results were slightly outside the normal range on one scale. On scale four the individual scored a 67. Any score above 65 is considered outside of the normal range. The computer-generated report interpreted this score to mean that "there was some tendency on [the individual's] part to present a favorable self-image." DOE Exhibit 7 at 3. The report also stated that the individual is "immature and impulsive, a risk taker who may do things others do not approve of just for the personal enjoyment of doing so . . . he may occasionally show bad judgment and tends to be somewhat self-centered, pleasure-oriented, narcissistic, and manipulative." Id. While Dr. XXXXX stated that the test's profile configuration for the individual "is not as well-defined as those of many other clients in this type of setting," and that the test "doesn't make a specific psychiatric diagnosis," the test "does make a diagnostic consideration" and is consistent with Personality Disorder NOS (Not Otherwise Specified). Hearing Tr. at 65-66.

Dr. XXXXX also explained at the hearing that the individual's treatment of negative events in his life is symptomatic of a personality trait that could be significant enough to cause a defect in his judgment and reliability. In providing examples of the individual's descriptions of these negative events, Dr. XXXXX testified that the individual "was picked up . . . by a policeman for not having a taillight or a defective taillight and put in jail and that's all I could get out of it. I have not seen the arrest report, I don't know, but his explanation was the cop must have been having a bad day because he put me in jail." Hearing Tr. at 14. He further testified that when the individual was twenty-two years old and charged with taking property from Texas Stadium, the individual said "we took the property inadvertently." Id. Not comprehending how exactly the individual could take property inadvertently, Dr. XXXXX concluded that it is that kind of minimization that concerned him. In this context, I note that Dr. XXXXX did not focus on the individual's history but rather on the individual's description of what happened. At a point during the hearing the individual's representative became concerned that Dr. XXXXX was focusing solely on the negative incidents that have occurred in the individual's life. I emphasized at that time that Dr. XXXXX was not testifying about the incidents which the individual disclosed to him, but about the individual's tendency to minimize negative events in his life. Hearing Tr. at 15. According to Dr. XXXXX, a tendency to minimize negative events is one aspect of a Personality Disorder.

In addition to formulating impressions that the individual possesses a tendency to minimize and to evade questions, Dr. XXXXX also concluded that the individual over-extended himself and possessed a lack of commitment as evidenced by his financial difficulties and his marital affairs. He stated that all of these qualities point to personality problems. However, Dr. XXXXX testified that his impressions were not sufficient for him to make a diagnosis after the evaluation interview; he thought he needed some confirmation of his impressions. Hearing Tr. at 35. Therefore, he asked the individual to take the MMPI. When the results were available, Dr. XXXXX concluded that they confirmed his initial impressions. Dr. XXXXX also believes that those results also confirmed his impressions that the individual's relationships are of a superficial quality. Hearing Tr. at 17-18. He based those impressions on information that the individual had participated in at least three casual affairs. Hearing Tr. at 18.

As a result of his review of the individual's PSI, the one-hour interview, and the results of the MMPI, Dr. XXXXX concluded that the individual suffers from a mental condition that Dr. XXXXX identified as Personality Disorder NOS with some suggestions of sociopathic and narcissistic traits. Hearing Tr. at 19. Dr. XXXXX also concluded that this condition causes or may cause a significant defect in the individual's judgment or reliability. Hearing Tr. at 21.

B. Testimony Supporting the Granting of Access Authorization

The individual called two witnesses to testify at the hearing: XXXXX and XXXXX stated that several years ago the individual was experiencing depression resulting from his marital problems and had been referred to him for therapy. XXXXX saw the individual 35 times during the period December 1992 through August 1993. Each session was 50 minutes in duration. Hearing Tr. at 84-85. XXXXX testified that he found the individual open about issues affecting his life during these sessions, including specifically his marital affairs. Hearing Tr. at 85. XXXXX also indicated that the individual did not minimize at all during the many sessions he had with him. He indicated that the individual probably perceived him as a "helper," because he assisted the individual in coming to terms with his depression. Hearing Tr. at 87.

XXXXX also testified that he believed that the individual does not have any form of mental illness, personality disorder, or personality characteristics that would render his judgment unreliable. Hearing Tr. at 85-86. XXXXX stated that he disagreed with Dr. XXXXX's findings and conclusions and was "quite surprised" after reading Dr. XXXXX's report. Hearing Tr. at 86. For example, Dr. XXXXX reported that the individual was immature and impulsive, while XXXXX did not believe those traits should be used to describe the individual. He stated that "I suppose any of us could have those characteristics from time to time but that is not my overall opinion of (the individual)." Hearing Tr. at 88 XXXXX noted that "when you are being evaluated and your job depends on it and you're felt to be under a microscope that it is not at all unusual to be a little bit guarded." Hearing Tr. at 111. In addition, he found that instead of being evasive and guarded, the individual produced more information than the average person would produce during 35 therapy sessions. Hearing Tr. at 110.

More interestingly, XXXXX did not note anything in the individual's MMPI scores that caused him any concern. Hearing Tr. at 90. Rather, he emphasized that the individual had only one elevated scale score (scale four), which he believes can indicate a number of categories or personalities. Hearing Tr. at 90. As an example, XXXXX stated that "college students often score higher on [scale four] and it is not because they are all sociopaths . . . but it is because they are in a situation where they are taught to think creatively and keep open options and things like that and very often that scale is elevated." Hearing Tr. at 91. According to XXXXX, he would not have been comfortable making a diagnosis of the individual based on one interview and a computerized MMPI report. Hearing Tr. at 91-92. More importantly, he indicated that scores on the MMPI would have to be much higher than those of the individual's before he could make a diagnosis as Dr. XXXXX did. If anything, XXXXX contends that in his opinion the individual's scale four score is not an unusual elevation at all and the MMPI doesn't contain reliable data to indicate diagnosis of any mental illness. Hearing Tr. at 96-97.

The final witness to testify on behalf of the individual at the hearing was XXXXX . XXXXX stated that he has manually scored over a thousand MMPI exams, and that computer scoring of MMPI tests, as used by Dr. XXXXX in making his evaluation, is very crude: "they tend to give a very gross impression that doesn't take into account the kinds of variables that are necessary . . . to do an accurate read of one of these tests." Hearing Tr. at 122. XXXXX stated that scale four, the scale on which the individual exceeded the cutoff for what the MMPI considers normal by two points, is a measure of a person's lack of fit with societal norms. He also testified that small elevations in scores on scale four measures "things like a person's non-conformity, a person's rebelliousness, a person's sense of alienation from the mainstream. . . . It also picks up on a person's innovativeness or a person's disgruntlement with authority figures." Hearing Tr. at 123. XXXXX opined that scale four "really picks up too many different things to be useful in the way that it was originally hoped to be useful during the construction of the test and it is used now more for measuring these other things that I mentioned." Hearing Tr. at 123-24. He noted that "a person whose score falls above a T score of sixty-five is considered to be statistically different than the normal," but that a two point higher score has a very slight interpretable value. Hearing Tr. at 124, 125. According to XXXXX, the individual "is a good example of this where the computer spits out what is an accurate description of somebody with a high scale four, but it is not accurate for this purpose in the sense that it doesn't take into consideration that other scale scores were close to that. It doesn't take into consideration the fact that the elevation was nominal at best and that's why I think these reports are really very limited in their usefulness." Hearing Tr. at 122-23. XXXXX crutinized the exam scores and concluded that the individual is a man without genuine psychiatric illness or personality disorder. Hearing Tr. at 128-29. Furthermore, XXXXX testified that the MMPI scores indicated that the individual was being straightforward and open in his responses to test questions. Hearing Tr. at 131.

In addition to reviewing the MMPI data, XXXXX administered a Projective Personality (Rorschach) Test. XXXXX described the individual's reaction to the test as one of "complete cooperation and even some mild enthusiasm and interest about this. He was curious about it and seemed to be open, straightforward with it." Hearing Tr. at 132. As a result of the individual's responses on the test, XXXXX concluded that, while the individual shows evidence of creativity, there is no evidence of psychosis, a significant affective disorder, a personality disorder, sociopathy, or difficulty with self-control or clarity of thought. Hearing Tr. at 133-34. According to his evaluation, the individual's reaction to the examination was open and forthcoming, and the individual's "conversational speech contained no evidence of gross perceptual disturbance or formal thought disorder." Projective Personality Evaluation dated May 25, 1995, at 1. As a result of his examination, XXXXX concluded that the individual "appears to be a reasonably well-adjusted individual who, like everyone, carries with him some remnants of problematic early experiences." Id. at 4. Concerning the individual's reported evasiveness in his interview with Dr. XXXXX, XXXXX speculated that there could be two reasons for the individual's reaction. First, XXXXX suggested that the individual may have had a sense of being interrogated. Second, XXXXX suggested that, as is the case with some patients, the interview may simply have started "on the wrong foot." Hearing Tr. at 136-38. While acknowledging that the sum of the individual's actions are "not normal for June and Ward Cleaver," XXXXX stated that "most people are not June and Ward Cleaver." Hearing Tr. at 152.

C. Analysis

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). Thus, the regulations compel me to consider the nature, extent, and seriousness of the individual's mental condition; the circumstances surrounding his mental condition; the frequency and recency of his personality problems; his potential for being susceptible to pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and any other relevant and material factors. 10 C.F.R. § 710.7(c). It is the totality of these facts and circumstances that will shed light on whether the individual has a mental condition that causes or may cause a significant defect in his judgment and reliability and whether the granting of access authorization is clearly consistent with the national interest. Thus, it is incumbent upon the individual to demonstrate to me that he does not have a mental condition that would cause a significant defect in his judgment and reliability that might compromise national security. After careful consideration of all of these factors, I am of the opinion that granting the individual's access authorization will not endanger the common defense and security and is clearly consistent with the national interest.

I find XXXXX and XXXXX testimony to be well reasoned and convincing for several reasons. First, while I believe that Dr. XXXXX can frequently make an accurate diagnosis based on a one-hour interview and a computerized MMPI report, I believe in this case Dr. XXXXX's initial impressions of the individual and the individual's slightly elevated scale four score do not form a sufficient basis to conclude that the individual suffers from a mental condition that calls into question his judgment and reliability. While he maintained that his diagnosis was correct, Dr. XXXXX himself did not appear completely sure of his diagnosis. Dr. XXXXX stated at the hearing that at the end of his interview with the individual, "I had a diagnosis, but I felt I needed some confirmation. That it did not reach the level that I was comfortable with." Hearing Tr. at 35. His demeanor at the hearing indicated to me that this is a borderline case. Indeed, Dr. XXXXX testified that after reading XXXXX interpretation of the individual's MMPI data, he found only one sentence with which he disagreed, apart from the ultimate conclusion. Hearing Tr. at 78-80.

On the other hand, even though XXXXX did not initially evaluate the individual for the purpose of determining whether he has a mental condition that could cause a significant defect in judgment and reliability, I believe his perception of the individual's overall personality traits is more reliable. XXXXX spent a significantly longer period of time with the individual. There is no doubt in my mind that XXXXX has had a better opportunity to observe and evaluate the significance of the individual's personality traits. As mentioned earlier, while XXXXX was not surprised at the raw data contained in the MMPI report administered by Dr. XXXXX, he was surprised by the conclusions that were drawn from the data. Hearing Tr. at 94. Second, I acknowledge as does XXXXX, that the aggregation of the individual's actions are "not normal for June and Ward Cleaver." Hearing Tr. at 152. However, XXXXX opined that the individual is normal as within the range of the standard population. Hearing Tr. at 127. Although I believe that the aggregation of all of the negative incidents in the individual's life are certainly significant, XXXXX seems to take a realistic view that many of these problems probably occur in the lives of the standard population. Third, I have had the opportunity to assess the credibility and to observe the demeanor of all of the witnesses at the hearing. Particularly in this case, my observations of the witnesses are critical in determining whether the individual has a mental condition that could cause a significant defect in judgment and reliability. I find that all of the witnesses, Dr. XXXXX, XXXXX and XXXXX, are credible, and all exhibited highly professional behavior. However, I find XXXXX and XXXXX testimony to be highly trustworthy. They both combined their professional judgments with what they believe are reasonable common sense judgments. For all of these reasons, I find that XXXXX and XXXXX testimony are more convincing than that of Dr. XXXXX.

It is undisputed that the individual has had several significant negative events occur in his life. However, I can not conclude that his descriptions and characterizations of these events would make him susceptible to pressure, coercion, exploitation, or even blackmail and compromise national security. For example, some of the incidents occurred a long time in the past. Additionally, while marital infidelity has been a significant problem for the individual, both the individual and his wife have mutually disclosed their marital affairs. Because of this disclosure, the individual's indication of remorse, and his admission that he does not think this is morally acceptable behavior, I do not believe that the individual would be susceptible to pressure or blackmail. Moreover, XXXXX has stated that as a result of his treatment sessions with the individual, he believes that "he does place much more emphasis on loyalty and fidelity now than he might have in the past years." Hearing Tr. at 102.

IV. Conclusion

While the individual has been diagnosed with Personality Disorder NOS, primarily having the tendency to minimize, evade questions, and present himself in a favorable image, I do not find that these particular personality traits exhibited by this individual would compromise the national security. In light of all of the testimony, I am convinced that these personality traits and the slight elevation on the individual's MMPI report do not rise to the level that causes, or may cause, a significant defect in the individual's judgment and reliability, and there is no indication in the record that it has. In fact, the individual's personality assessment shows that the above characteristics are borderline and marginally interpretable. In addition, I do not believe that the individual's psychiatric assessment shows any potential that the individual can be pressured, coerced, or exploited. For these reasons, I am of the opinion that the individual should be granted access authorization.

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 the Hearing Officer's 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. 10 C.F.R. § 710.28(b).

Roger Klurfeld

Hearing Officer

Office of Hearings and Appeals