Case No. VSO-0037, 25 DOE ¶ 82,778 (H.O. Mann Nov. 20, 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: May 31, 1995

Case Number: VSO-0037

This Opinion concerns the continued eligibility of XXXXX (hereinafter referred to as "the individual") to hold a level "Q" access authorization under the regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." Several months ago, the individual's access authorization was suspended by the Manager of DOE's XXXXX Operations Office (DOE/XXXXX). As explained below, I recommend restoring the individual's access authorization.

Statement of the Case

The individual has been employed for 12 years by the management and operating contractor at DOE's XXXXX. To work at XXXXX, the individual received a "Q" clearance from the DOE. In March 1994, the individual reported to the DOE/XXXXX that she had been arrested for driving while intoxicated (DWI) in September 1993. This prompted the DOE to conduct a personnel security interview (PSI) with the individual, which took place on April 27, 1994. The information obtained during this interview led the DOE/XXXXX to request a mental evaluation of the individual by a board- certified psychiatrist. Based on this examination, and other information in the individual's Personnel Security file, the DOE-sponsored psychiatrist submitted a report which found that: "[The individual]'s history and data from her personnel security file do not indicate a problem with alcohol." But he also noted that "[t]he...information that she gives and what is given in the record does not exactly coincide. It is possible that this woman...may be denying a problem that may exist." Psychiatric Evaluation at 2. After receiving the psychiatrist's report, DOE/XXXXX conducted a second PSI with the individual, on August 24, 1994. The Manager of the DOE/XXXXX determined that the individual's statements at the time of her DWI arrest, to the DOE psychiatrist and during her two PSIs, contained discrepancies that created questions regarding her eligibility for access authorization. Accordingly, the Manager suspended the individual's access authorization and obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

On April 4, 1995, the DOE/XXXXX issued a Notification Letter to the individual. The Notification Letter charged that the individual had engaged in conduct subject to the criteria set forth in 10 C.F.R. §§ 710.8 (f) and (l). Criterion F concerns information 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....

10 C.F.R. § 710.8(f). Criterion L describes information 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....

10 C.F.R. § 710.8(l).

In support of these charges, the Notification Letter specified several examples which allegedly showed that the individual had misrepresented or falsified her statements about events connected with her arrest for DWI in September 1993, and an arrest for negligent driving in 1985.

On April 6, 1995, the individual filed a request for a hearing with DOE/XXXXX to resolve the doubts about her eligibility for a clearance. DOE/XXXXX transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA) on May 12, 1995. The OHA received the request on May 31, 1995, and the OHA Director appointed me as Hearing Officer in this case on June 1, 1995. I convened a hearing in this matter at the XXXXXXXXXXXXXXXX in XXXXXXXXXXXXXXXXXXXX on XXXXXXXXXXXXXXX, and received the transcript of the hearing on XXXXXXXXXXXXXXXX.

At the XXXXX hearing, the individual was represented by an attorney and testified on her own behalf. In addition, the individual called XXXXX, a friend who was with her on the night of the arrest, to testify about the matters cited in the Notification Letter. The individual also called eight character witnesses to testify on her behalf. DOE/XXXXX also presented four witnesses at the hearing: XXXXXXXXXXXXXXXX, a DOE Personnel Security Specialist, Dr. XXXXX, the psychiatrist who examined the individual at the request of DOE/XXXXX, Officer XXXXXXXXXXXXXXXXXX of the XXXXXXXX Police Department who arrested the individual for DWI on September 14, 1993, and Officer XXXXXXXXXXXXXk of the XXXXXXXX Police Department, who was summoned to back up XXXXXXX.

Findings of Fact

In 1985, the individual had been stopped for DWI. The charge was reduced to negligent driving after she registered a blood alcohol level of .07 on a breathalyzer test (under the legal limit in XXXXXXXXXX state).

For a number of years before the individual was arrested for DWI in September 1993, she had been experiencing medical problems, including an abnormal electrocardiogram with left bundle branch block, cardiac arrhythmias, hypertension, fatigue and shortness of breath. In November 1992, she had a minor stroke, after which she continued to be bothered by dizziness and headaches. On the day before her arrest, the individual gave her employer two weeks' notice that she was quitting her job for health reasons. However, the individual later reconsidered her decision, revoked her termination, and went out on disability from late September 1993 until she returned to work full-time in late November 1993.

After dinner on the evening of September 13, 1993, the individual and her friend went to the bar at XXXXX's, a restaurant in XXXXXXXX. They arrived around 7:30 and left at about 11:00. The individual testified that she sipped one drink (a Long Island Iced Tea) throughout that three and one-half hour period. The individual and her friend left the restaurant around 11:00, and talked in the parking lot for about an hour. As the individual was driving home from XXXXXXXX to XXXXXXXXX on a stretch of road where the speed limit increases from 40 MPH to 55 MPH in a short distance, she was pulled over for speeding by Officer XXXXXXX, near the XXXXXXXXXXXX bridge. Officer XXXXXXX states that the individual's breath smelled of alcohol and she was unsteady on her feet. The individual states that she was given one field sobriety test by XXXXXXX, which she was unable to perform. XXXXXXX insists that she was given three tests. The individual also maintains that she told XXXXXXX that she had consumed one drink, and his police report says she told him she had two drinks. The individual reports that she did not see Officer XXXX, who was summoned to cover XXXXXXX after the traffic stop, until after she was arrested for DWI and placed in XXXXXXX's police car. The individual maintains that she refused to take a breathalyzer test because of her medical condition. XXXXXXX did not offer the individual the opportunity to have blood drawn after she refused the breathalyzer test, and her blood alcohol level was never determined.

The individual's driver's license was suspended for one year after an administrative hearing in January 1994. The suspension was routine since she had refused the breathalyzer test. The individual did not notify the DOE/XXXXX of her arrest until March 1994. As a clearance holder, the individual was obliged to notify DOE "within 5 working days of all arrests...other than traffic violations for which a fine of $[250] or less was imposed...."

In connection with her DWI case, the court referred the individual to a substance abuse treatment agency, XXXXXXXXXXXXXXXXXXXXXX, for an evaluation to determine whether she had an alcohol problem. The addiction experts at XXXXXXXXXXXXXXXXXXXXXX concluded that the individual did not have a significant alcohol dependency problem in April 1994.

The DOE psychiatrist, Dr. XXXXX, evaluated the individual in July 1994. Dr. XXXXX's report reflects a degree of skepticism. First, he did not believe that the medical problems the individual was experiencing and the medicines she was using at the time of her arrest would have caused her to exhibit dizziness or shortness of breath. Second, he found it impossible that the individual would have exhibited the symptoms reported at the time of her arrest in September 1993 (alcohol-tinged breath, staggering and dizziness) if her one and only drink had been consumed several hours earlier. Finally, Dr. XXXXX thought it unlikely that the individual would have registered a blood alcohol level of 0.07% following a negligent driving arrest in 1985 if she had consumed her last drink five or six hours earlier. Dr. XXXXX concluded that:

[The individual]'s history and data from her personnel security file do not indicate a problem with alcohol. The two DWI episodes, one in 1985 and one in 199[3] are confusing in that the information that she gives and what is given in the record does not exactly coincide. It is possible that this woman who has been described in the past as being very defensive may be denying a problem that may exist.

Psychiatric Evaluation at 2.

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). In resolving questions about the individual's eligibility for access authorization, I must consider the relevant factors and circumstances connected with the individual's conduct. These factors are set out in § 710.7(c):

the nature, extent, and seriousness of the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of participation; the age and maturity of the individual at the time of the conduct; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; and the likelihood of continuation or recurrence.

The DOE/XXXXX relies on 10 C.F.R. §§ 710.8(f) and (l) as the bases for suspending the individual's "Q" access authorization. The examples cited in the Notification Letter for both of these criteria raise questions concerning the individual's honesty, reliability and trustworthiness in reporting the events related to the September 1993 DWI arrest and the negligent driving arrest in 1985.

The DOE/XXXXX personnel security analysts who considered this case decided that when the discrepancies in the individual's account of the events surrounding her two traffic arrests were viewed together, they showed falsification and untrustworthiness. Hearing Tr. at 39. Thus, I must examine each example of falsification and unusual behavior showing untrustworthiness alleged in the Notification Letter.

After considering the record, and assessing the demeanor and credibility of the witnesses who testified at the hearing in view of the standards set forth in 10 C.F.R. Part 710, I find that the evidence advanced by the individual in her defense mitigates the security concerns underlying those two criteria. Therefore, it is my opinion that the individual's access authorization should be restored.

DOE/XXXXX's Criterion F Allegations

False statements by an individual in the course of an official inquiry regarding a determination of eligibility for DOE access authorization raise serious issues of honesty and trustworthiness. The DOE security program is based on trust, and if a security clearance holder lies to the DOE that trust is violated. Personnel Security Hearing, 25 DOE ¶ 82,751 (1995). As evidence of falsification, the Notification Letter recites four separate examples in the individual's version of events in the two PSIs (conducted on April 27, 1994 and August 24, 1994) and her statements to Dr. XXXXX during his evaluation on July 20, 1994. As noted above, the individual has steadfastly maintained that she consumed a single Long Island Iced Tea prior to her arrest early on September 14, 1994, and that she was unable to perform a field sobriety test and refused a breathalyzer because of her medical condition. I will consider each of these examples in turn.

First, the Notification Letter relies on Dr. XXXXX's observation that "it would be impossible for [the individual] to have the smell of alcohol on her breath five and a half hours after her one and only drink," that "one drink would not produce the symptoms [dizziness] that she described" nor would any specific medical problems, and that "none of the medications she was taking would produce dizziness." Enclosure 1 to Notification Letter, ¶ I.A.1).

Dr. XXXXX's evaluation report apparently assumed the individual had consumed one regular drink immediately upon arrival at the bar, and nothing else for the rest of the evening. He testified that one drink (containing one and ½ ounces of alcohol) would be metabolized in about an hour, after which it would not cause alcohol-tinged breath. Hearing Tr. at 54, 62. A Long Island Iced Tea contains three shots of liquor, and is thus the equivalent of three drinks. August 1994 PSI Tr. at 11. Dr. XXXXX confirmed that a drink with several ounces of alcohol would take a longer time to be metabolized. Thus, if the individual drank one Long Island Iced Tea before leaving XXXX's around 11:00 p.m., her blood alcohol level would have been sufficient to produce alcohol-tinged breath at the time of her arrest.

In addition, the individual's attorney introduced evidence during the course of the hearing which indicated that dizziness is one of the side effects documented in the medical literature for each of the three different medications the individual was taking at the time of her arrest. Hearing Exhibits 22, 23 and 24. Dr. XXXXX conceded that the individual's medical history showed that she was experiencing dizziness while she was taking these drugs, and it ceased when she stopped taking them. Hearing Tr. at 71. Finally, Dr. XXXXX testified that the individual's cardiac arrhythmia condition could also cause her to experience tachycardia and dizziness, especially when she was feeling anxious. Id. at 57. Thus, there is medical evidence to support the individual's stated belief that she felt dizzy and appeared unsteady at the time of her arrest for reasons apart from drinking. It is equally understandable why Officer XXXXXXX observing the same events thought that the individual was drunk. The reality may be that the individual's medical condition and her alcohol consumption both contributed to her unsteadiness at the time. The hearing testimony leads me to conclude that the individual was not deceitful, and did not attempt to hide the truth from DOE. DOE/XXXXX might not have concluded that the individual falsified her statements about the cause of her dizziness if they had known the additional facts about the individual's medical condition that came out at the hearing.

I will combine consideration of the Notification Letter's second and third examples of alleged falsification by the individual, since they are closely intertwined. In the second example, the Notification Letter observes that the police report shows the individual stated that she had two drinks 45 minutes prior to her arrest, and the police report does not state that she refused the breathalyzer because of a medical condition. Enclosure 1 to Notification Letter, ¶ I.A.2). In the third example, the Notification Letter states that the individual was unsteady on her feet during the field sobriety test, and that "police procedure would have dictated that [the individual] be offered a blood test if any medical problems may have prevented her from performing the breathalyzer." Enclosure 1 to Notification Letter, ¶ I.A.3).

At the hearing, Officer XXXXXXX testified that he believed he wrote his report within an hour or so after the incident, but he could not recall the time. Id. at 88. However, the report itself shows that it was prepared at "1533 hours," some 14 hours after she was booked in at the police station. Hearing Exhibit 12. XXXXXXX stated that he did not take any notes during an arrest other than what he could write on his hand. Hearing Tr. at 98. The narrative portion of his report is three printed pages in length, and XXXXXXX admits that he had to prepare it from his recollection of the incident. Id.

From observing the demeanor of the witnesses, I find that XXXXXXX's account of the arrest is no more credible than the individual's account. XXXXXXX's demeanor at the hearing showed his exasperation with the individual. Based on his experience as a police officer, he believed she was drunk. Hearing Tr. at 95. Once he reached this conclusion, he interpreted every aspect of the individual's behavior in a manner consistent with that belief. This became clear when I specifically questioned XXXXXXX about why he thought the individual was impaired. Id. at 105. He replied by stating that the individual's answers to his questions showed a "pattern." I asked him to explain:

Q. What pattern?

A. The way she answered the questions. Where were you going, which street were you on? I was on XXXXX. Where were you going, what direction of travel? North, south, east or west is what we're looking [for]. I am going toward XXXXX.

Id. XXXXXXX went on to describe the answer the individual gave him when he asked her the time. His said that he expected "a rough estimate," yet he thought her response "after midnight" indicated impairment. He recounted a similar reaction when the individual told him the route number of the street she was on: "What is 82; is that a street number or street name?" Id. at 106. The individual's responses seem perfectly normal and coherent to me. Moreover, when this colloquy took place, the people in the hearing room exchanged a collective look of incredulity which indicated that everyone present also thought they would have given the same responses to XXXXXXX's questions as the individual. XXXXXXX's misinterpretation of the individual's answers shows that he simply stopped listening to her once he thought that she was intoxicated. At that point, XXXXXXX and the individual were no longer communicating with each other. This is confirmed in the next section of this Opinion which examines the breathalyzer issue.

XXXXXXX's police report does not indicate that the individual refused the breathalyzer because of a medical condition, yet during the April 27, 1994 PSI, the individual insisted that she told XXXXXXX three times that she had medical problems and could not take the breathalyzer. See April 27 PSI Tr. at 7, 20. After considering this discrepancy in light of the testimony at the hearing, I must again conclude that there was no falsification by the individual. XXXXXXX admits that the individual did tell him that she had high blood pressure, when he questioned her about medical conditions. Hearing Tr. at 102. However, he testified that "we have a set package to go through, and high blood pressure is not a reason not to blow." Id. XXXXXXX explained that only persons who have "emphysema or asthma or something then they couldn't blow and we would offer the alternative, which would be a blood draw." Id. at 103. Based on XXXXXXX's testimony, it is obvious that he ignored what the individual was saying about her reason for refusing to take the breathalyzer. Nevertheless, I find that the individual shares part of the responsibility for the miscommunication with XXXXXXX, since she was not sufficiently clear in describing the nature of her medical condition.

The Notification Letter compounds this misunderstanding when it states that "police procedure would have dictated that [the individual] be offered a blood test" if she had indicated medical problems may have prevented her from performing the breathalyzer. In XXXXXXX's mind, only two specific medical conditions could excuse the individual's refusal to take the breathalyzer. Since she did not have one of those conditions, he was naturally suspicious of "her behavior...when she didn't want to blow." Id. at 102. XXXXXXX's testimony also explains why the individual was not offered a blood draw as an alternative means of ascertaining her blood alcohol level at the time of the arrest. It is understandable why the individual was afraid of performing the breathalyzer, since she had nearly passed out from a pulmonary function test during a physical three months earlier, but she failed to explain this to the police. Hearing Tr. at 132, 141-142.

Finally, the individual admits that she was unsteady on her feet and unable to perform a field sobriety test. Enclosure 1 to Notification Letter, ¶ I.A.3). However, she attributes her incapacity on the test to her medical condition. There was ample testimony at the hearing about the individual's history of dizziness. For example, the individual testified that she became dizzy and unsteady on her feet when she arose from a sitting position, Hearing Tr. at 122-125, and when climbing stairs, Id. at 133. There is additional mention of her history of dizziness in her medical records. Hearing Exhibit 20. Dr. XXXXX, the DOE-sponsored psychiatrist, also recognized that the individual suffered from dizziness. Hearing Tr. at 57, 71. Thus, I am convinced that the individual did not falsify the account of her inability to perform the sobriety test.

The fourth and final example of alleged falsification in the Notification Letter concerns the individual's description to Dr. XXXXX in 1994 of her alcohol consumption when she was charged with negligent driving in 1985. According to the Notification Letter, the individual told Dr. XXXXX that some nine years ago she had registered a blood alcohol level of 0.07 on a breathalyzer test administered five to six hours after she consumed two mixed drinks. Dr. XXXXX stated in his evaluation that "it would be impossible to have that blood alcohol level with minimal alcohol use in the time frames described." Enclosure 1 to Notification Letter, ¶ I.B. In the hearing, the individual was specifically asked what she had reported to Dr. XXXXX about the 1985 episode:

Q. When you talked to Dr. XXXXX about the DWI arrest in 1985, and the number of drinks and the time span, were you absolutely certain about the time span and the number?

A. No, and I believe I told him that.

Hearing Tr. at 129. Based on this interchange, I believe the individual's memory of this incident was uncertain. Any discrepancy between the surmised facts surrounding that incident, and the portion of Dr. XXXXX's evaluation based on her present recollection of the incident to him, should not be accorded any significance. There is evidence from a variety of sources that the individual is a moderate social drinker who is not attempting to mask an alcohol problem. See Hearing Tr. at 147- 151; Hearing Exhibit 18. Even Dr. XXXXX did not conclude otherwise. The individual may have reported the details of that ten year old incident inaccurately to Dr. XXXXX, but there is no evidence that she tried to deceive him. It is perfectly credible that her memory of that incident would be eroded by the passage of time.

DOE/XXXXX's Criterion L Allegations

As noted above, the DOE security program is based on trust, and if a clearance holder engages in conduct that shows that she is not honest, reliable or trustworthy, that trust is violated. Hearing Tr. at 17. The Notification Letter gives three examples to support its charge that the individual engaged in unusual conduct that tends to show that she is not honest, reliable or trustworthy. Like the examples analyzed above in the section on Criterion F, those cited in connection with Criterion L concern the individual's reporting of events related to her 1993 DWI arrest. After considering the evidence relating to this criterion, it is my view that the security concerns about the individual's behavior were resolved in her favor at the hearing.

The first example cited in the Notification Letter for Criterion L is the individual's failure to report her September 1993 DWI arrest to the DOE until March 1994. Enclosure 1 to Notification Letter, ¶ II.A. The DOE Security Acknowledgment the individual signed in 1991 requires her to report all arrests by law enforcement authorities (other than traffic violations for which a fine of $250 or less was imposed) within five working days. Hearing Exhibit 17 at ¶ 7; Hearing Tr. at 33. The individual concedes that she was aware of this requirement, but testified that at the time of her arrest, she had just given her termination notice, and "totally forgot" about her obligation to report the arrest to the DOE. Hearing Tr. at 130. At that point in her life, the individual was mainly concerned about her health. Id. at 129. She admits she was negligent. Id. at 130. The individual returned to work two months after the arrest, and did not remember to report the incident to the DOE until "it hit me like a ton of bricks; you have to go and report this immediately and that's exactly what I did." Id. at 145.

Failure to report the DWI arrest promptly is the most serious allegation against this individual. Nevertheless, I am persuaded that while she was negligent, there are mitigating factors present in this case, and the delay in reporting her arrest does not show that the individual knowingly and deliberately attempted to deceive the DOE. I give greatest weight to the fact that it was the individual herself who first reported the arrest to DOE, before the Department could learn of the arrest from another source. The mitigating factors also include the fact that the individual was heavily preoccupied with her health problems at the time her arrest, so much so that had just decided to quit her job. My impression is the individual thought that without the job, she would no longer have access to classified matter or special nuclear material, so she would no longer need a security clearance. There was a security lapse, but the individual cured it herself. She has suffered as a result, and she has shown contrition for her mistake. If her clearance is restored, I find it extremely unlikely that the individual would ever have another lapse in complying with her obligations under the DOE Security Acknowledgment. Finally, there is a big difference between a case where a clearance holder is caught in a lie, and one in which a cleared individual is late, but comes forward herself to DOE to report an arrest.

OHA Hearing Officers have considered falsification charges under the same criteria in a number of previous cases. Those cases did not involve minor discrepancies or delays in reports of DWI arrests; instead they involved the deliberate falsification of Questionnaires for Sensitive Positions (QSPs) that the individuals had submitted to DOE in applying for access authorization. The matters those clearance holders concealed from the DOE were guilty pleas to felonies. See Personnel Security Hearing, 24 DOE ¶ 82,751 (1994) (concealment of guilty plea to three felony fraud charges); Personnel Security Hearing, 24 DOE ¶ 82,752 (1995) (concealment of guilty plea to sale of cocaine to undercover narcotics officer). In comparison, the nature of the individual's conduct in the present case is much less serious. This is a close call, but after considering the totality of the circumstances, I find that the voluntary reporting of the arrest by the individual shows that she acted in an honest, reliable and trustworthy manner.

The second set of examples cited in the Notification Letter to show the individual is untrustworthy consists of four discrepancies between her statements regarding the arrest and XXXXXXX's police report. Three of the four alleged discrepancies were resolved in the individual's favor by the testimony of DOE/XXXXX's own witnesses at the hearing.

First, the Notification Letter alleges that "[the individual] denies speeding prior to the arrest; however, the police report shows [she] was paced at a speed of 64 MPH in a 40 MPH zone for approximately 1/4 mile." Enclosure 1 to Notification Letter, ¶ II.B.1). At the hearing, the DOE Personnel Security Specialist conceded that this allegation was incorrect, since the police report states the speed limit was actually 55 MPH where the individual was clocked at 64 MPH. Hearing Tr. at 30, Hearing Exhibit 12 at 1.

Second, the Notification Letter alleges that "[the individual] testified that a second patrolman [Officer XXXX] was not at the arrest scene until after the [individual] was in the patrol vehicle; however, the police report states that a second officer (XXXX) was at the arrest scene prior to subject being placed in the patrol vehicle." Enclosure 1 to Notification Letter, ¶ II.B.3). There is simply no discrepancy between the individual's testimony and the police report, which does not mention XXXX's presence until she was patted down and placed into XXXXXXX's car. Hearing Exhibit 12 at 3. Even if there were such a statement in the police report, XXXXXXX's testimony explained that it is a routine practice for the "cover" (who is summoned to protect a fellow officer) to stand off in the dark, behind the lights, concealed from the person and the car they are investigating. Hearing Tr. at 96-97. XXXX confirmed this:

Q. Do you have any idea whether [the individual] might have noticed you pull up or witness the events?

A. Probably not because I didn't walk into the scene. I stayed back behind Officer XXXXXXX's light bar and just stayed where I was so as not to come into the scene and interrupt....

Hearing Tr. at 113. The testimony of the two officers makes it clear that the individual's failure to notice XXXX until she was placed in XXXXXXX's car was the intended result of the routine procedure the police followed on that night. It confirms her version of the events and constitutes further evidence that she was telling the truth during the PSIs.

Third, the Notification Letter observes that the police report shows the individual told XXXXXXX that she was at an "unknown" restaurant just prior to the arrest, but that she stated in the PSI that she was at XXXXX's. Enclosure 1 to Notification Letter, ¶ II.B.4). The individual states that she did not tell XXXXXXX the name of the restaurant because she felt "[i]t's none of his business as far as I'm concerned...People have a right to their privacy." August 24 PSI Tr. at 16. In my view, her statement to the police at the time of her arrest is irrelevant to the question of the individual's trustworthiness. At that point in time, she was not involved in a security investigation. Rather, she was a private citizen who was exercising her constitutional rights; she had no obligation to respond to XXXXXXX's questions. Id. The better test of the individual's honesty, reliability and trustworthiness was her willing disclosure of the fact that she had been at XXXXX's to the DOE/XXXXX analysts during their interrogation of her in the two PSIs. There is no evidence that the individual ever tried to conceal this information once the case became the focus of a security investigation.

The fourth alleged factual discrepancy cited in the Notification Letter concerns the individual's insistence that she was asked to perform one field sobriety test, and the description in the police report of three tests. Enclosure 1 to Notification Letter, ¶ II.B.2). XXXXXXX's police report describes three tests. Hearing Exhibit 12 at 2. In his hearing testimony, XXXXXXX also mentioned three tests, although he describes them in a different order from that written in the police report. Hearing Tr. at 90-93. XXXX's testimony describes two tests, including the one mentioned by the individual. Id. at 112-113. The individual has consistently testified that she was given only one test, which she was unable to perform. April 1994 PSI Tr. at 6; August 1994 PSI Tr. at 5; Hearing Tr. at 140. On the basis of the present record, there is no obvious explanation for the fact that three different witnesses have given three slightly different accounts of the event. Based on her demeanor at the hearing, I believe that the individual, who admits failing the test and for whom the arrest was a memorable experience, is giving an honest account. She may have perceived the entire procedure as consisting of one test while the officers honestly remembered it as consisting of two or three tests. Of the three witnesses, only the police officers would have any motive for embellishing the facts, since XXXXXXX testified that he was required to give three tests. Hearing Tr. at 104. I do not consider it to be significant that the individual recounts some details differently than XXXXXXX. My 28 years of experience as a lawyer and a Hearing Officer teaches me that it is natural for different witnesses to recall an event in slightly different ways.

The final example cited in the Notification Letter under Criterion L concerns an issue that I have already discussed in connection with Criterion F, namely, the apparent inconsistencies in the individual's statements to Dr. XXXXX about her use of alcohol prior to the 1985 negligent driving arrest and the 1993 DWI arrest. Enclosure 1 to Notification Letter, ¶ II.C.

Dr. XXXXX found that "[the individual]'s history and data from her personnel security file do not indicate a problem with alcohol." Psychiatric Evaluation at 2. In my view, the hearing in this case resolved the apparent inconsistencies which also led him to question whether the individual "may be denying a [drinking] problem that may exist." Id. As noted above, the individual concedes that she may have inaccurately related to Dr. XXXXX the number of drinks she had, and the time when they were consumed, prior to the 1985 incident. Nevertheless, I found no evidence whatsoever of any attempt on the individual's part to deceive Dr. XXXXX. With respect to the 1993 DWI arrest, Dr. XXXXX did not consider the fact that a Long Island Iced Tea contained 3 shots of liquor, which would explain why the individual had alcohol-tinged breath when she was arrested. Hearing Tr. at 82. Moreover, the hearing presented extensive evidence of the individual's medical problems, especially her history of experiencing dizziness when rising to her feet from a sitting position. Id. at 122-125. This would explain why the individual thought she was unsteady on her feet when she was arrested.

Conclusion

At the close of the hearing, the DOE Counsel characterized this case as a difficult one, that presented a number of discrepancies which the DOE/XXXXX had been unable to resolve internally. Hearing Tr. at 177-178. The testimony of the witnesses was overwhelmingly favorable to the individual, and it resolved any security concerns about her honesty, reliability and trustworthiness. The record shows that the individual does not have an alcohol problem. The individual had no motive to disagree with information in the police report, which she had seen during her DWI case, well before undergoing the two PSIs and the psychiatric evaluation. In fact, the case would never have reached this stage if she had simply agreed with the police report. Hearing Tr. at 23. I conclude that the individual was giving her best recollection of the events. Moreover, I find the substance of her recollection to be accurate, and accord no significance to the slight differences with the police report.

My conclusion that the individual has been honest is buttressed by the fact that most of the examples cited to support the charges in the Notification Letter were explained by the additional evidence that came out at the hearing. The remaining discrepancies, such as the number of drinks the individual consumed, and the number of field sobriety tests she was asked to perform, are not significant, since they can be attributed to normal differences in the observations and understandings of different people. Moreover, these specific discrepancies are irrelevant since the individual was convicted of DWI. She had been drinking on the night of September 13, 1993, and she may have been impaired. But we will never know her blood alcohol level since the individual was not offered an alternative to the breathalyzer. The hearing amply demonstrated that the individual had valid reasons for believing that her medical condition was the cause of her unsteady gait, dizziness and inability to perform the breathalyzer.

Finally, while the individual was late in reporting the 1993 DWI arrest to the DOE, there were mitigating circumstances, including her serious health problems and resignation from her job, that explain the delay. After she returned to work, as soon as she remembered her reporting obligation, she came forward immediately and volunteered the information to DOE/XXXXX herself. The individual may have been negligent, but there is no evidence that she deliberately attempted to conceal the facts from DOE/XXXXX. She has shown contrition for her actions, and I believe there is no likelihood of a recurrence.

As explained in this Opinion, I find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I recommend that the individual's "Q" access authorization be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer'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. 20585-0107, and served on the 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). The address to which submissions must be sent for purposes of serving them on the Office of Security Affairs is as follows:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

Thomas O. Mann

Hearing Officer

Office of Hearings and Appeals