Case No. VSO-0039, 25 DOE ¶ 82,779 (H.O. Breznay Nov. 22, 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: June 7, 1995

Case Number: VSO-0039

This Opinion concerns the continued eligibility of Dr. 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, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."<1>

I. BACKGROUND

Since 1990, the Individual, a XXXXXXXXX who holds a Ph.D., has been employed by the XXXXXXXXXXXXXXXXXXXXXXXX, the Department of Energy (DOE) contractor that operates the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX in XXXXXXXXXXXXXXXXXXXX.<2> The Individual also has held a "Q" clearance enabling him to perform his work for the XXXXXXXXXX.

From the beginning of his term at XXXX, the Individual's duties required him to spend a substantial amount of his time in the Washington, D.C. area. In late 1990, a member of the XXXX travel staff noted certain discrepancies in travel reimbursement documents that the Individual had been

submitting to the XXXXXXXXXX. After preliminary investigation, she suspected that the Individual might be defrauding the government in his claims for his travel expenses. She accordingly alerted the XXXXX Operations Office Personnel Security Division at XXXX. The Personnel Security Division referred the matter to the local branch of the DOE Office of Inspector General (IG).

The IG investigator interviewed the Individual, an official of the company which leased an apartment to the Individual, and personnel at the XXXX. Based on those contacts, he suspected that the Individual had been defrauding the government. He prepared an IG Report which was eventually forwarded to the XXXXX Operations Office's Office of Chief Counsel and the DOE Office of General Counsel. After considering the matter, the DOE attorneys began an action under the Program Fraud Civil Remedies Act of 1986, 31 U.S.C. §§ 3801-12 (PFCRA), as implemented by the DOE at 10 C.F.R. Part 1013. The PFCRA provides for an administrative civil collection action against those alleged to have defrauded government programs where the amount in controversy makes it impracticable to bring a case in district court. H.R. Conf. Rep. No. 1012, 99th Cong., 2d Sess., 257-60 (1986), reprinted in 1986 U.S.C.C.A.N. 3607, 3868, 3902-05. The DOE and the Individual eventually entered into a settlement before a hearing was held either in this case or on the PFCRA claim. Pursuant to its terms, the Individual paid DOE the full amount that the DOE alleged that it had been overbilled. In the settlement agreement, the Individual admitted no wrong-doing and the DOE stated that there had been no fraudulent intent.

In addition to the PFCRA claim, the Director of the Personnel Security Division of the XXXXX Operations Office determined that information uncovered during the investigation was substantially derogatory and created questions regarding the Individual's eligibility for access authorization. Accordingly, the XXXXX Operations Office's Acting Manager suspended the Individual's level "Q" access authorization and obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

The administrative review proceeding was commenced by the issuance of a November 8, 1994 letter which notified the Individual that the information possessed by the DOE created a substantial doubt concerning his continued eligibility for a "Q" access authorization. The enumeration of derogatory information was subsequently amended, and I will hereinafter refer to this amended letter as the Notification Letter.

On November 22, 1994, the Individual's attorney filed a request for a hearing with the XXXXX Operations Office Manager in order to resolve the substantial doubt regarding his continued eligibility for access authorization. The Individual filed a general denial to the information that raised the doubt concerning his access authorization. On June 7, 1995, the XXXXX Operations Office forwarded the Individual's request for a hearing to the Director of the Office of Hearings and Appeals (OHA) of the DOE.

On June 13, 1995, I elected to act as the Hearing Officer in this case. As Director of the Office of Hearings and Appeals, I gave the parties an opportunity to comment on my serving as the Hearing Officer. Both DOE Counsel and the attorney for the Individual consented to my acting as the Hearing Officer in this case.<3> In accordance with the regulations at 10 C.F.R. § 710.25(e) and (g), and after consulting with both parties, I originally scheduled a hearing on this matter for August 31, 1995. However, the attorney for the Individual sought a postponement due to a scheduling conflict and to allow more preparation time. The hearing was rescheduled for XXXXXXXXXXXXXXXXXX, and was convened as scheduled at the XXXXXXXXXXXXXXXXZXXXXXXXXXXXXXXXXXXXXXX on that date.

At theXXXXXXXXXXXXXXXXXX hearing, at which the Individual was represented by his attorney, seven witnesses testified, four for the DOE and three for the Individual. For the DOE I heard evidence from : (1) XXXXXXXXXXX, a Personnel Security Specialist <4>; (2) XXXXXXXXXXXXXXXXX, a representative of the Charles E. Smith Companies, the firm which managed XXXXX where the Individual rented an apartment in 1990 and 1991; (3) XXXXXXXXXXXXXXXX, an accounting analyst in the XXXX travel division; and (4) XXXXXXXXXXXXXXXX, the investigator substantially responsible for the IG Report. For the Individual, I took testimony from: XXXXX, the Individual's secretary at the time of the alleged fraud; (2) Dr. XXXXX, the Individual's supervisor at the time of the alleged fraud; and (3) the Individual. The record also consists of eleven exhibits submitted by the DOE and seventeen exhibits submitted by the Individual.<5>

II. STATEMENT OF DEROGATORY INFORMATION

In the Notification Letter issued to the Individual the XXXXX Operations Office found that the Individual was

Engaged in ... unusual conduct or is subject to ... 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 interest of the national security....

10 C.F.R. § 710.8(l). The integrity concerns protected by Criterion L are vital to the proper maintenance of security. As we recently said, "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." Personnel Security Hearing, VSO-0037, 25 DOE ¶ 85,7__ at 85,6__, slip op. at 8 (Nov. 20, 1995).

According to the Notification Letter, the XXXXX Operations Office based its Criterion L finding upon the following:

(A) That the IG investigation revealed that the Individual had submitted sixteen false travel vouchers during the period of January 1990 to May 1991 which resulted in the Individual receiving $5,604.07 in excess reimbursement for his lodging expenses.

(B) That the IG investigation revealed that the Individual had submitted six invalid, forged, or altered lodging expense receipts.

Exh. A at 3. At the hearing, the DOE Counsel from the XXXXX Operations Office stated that he was unable to produce the allegedly forged or altered receipts. During the hearing, I informed the parties that, in the absence of the original copies of the allegedly forged or altered receipts, I could not find that the Individual had forged or altered these receipts, and that I would not take any further testimony on those allegations. Accordingly, I stated I would not render an opinion unfavorable to the Individual on those particular matters.

III. FINDINGS OF FACT

Based upon my consideration of all the evidence in the record in this proceeding, including oral testimony taken at the September 21, 1995 Personnel Security Hearing (hereinafter Tr.), and all of the documents submitted as evidence to me by the parties, I make the following findings of fact.

The Individual came to work at the XXXXX Division of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX on January XXXXX, 1990. Tr. at 276.<6> He frequently spent time in the Washington, D.C. area as the XXXXXXXXXX representative on certain space and defense working and technical groups.<7> After consulting with his new supervisor, Dr. XXXXX, the Individual decided to keep an apartment at XXXXX, a 162 unit high-rise apartment building in the Crystal City section of Arlington, Virginia, which he had rented earlier in conjunction with his previous employment. Tr. at 77, 302- 03. The apartment was to serve as the Individual's lodgings while on official XXX business and to serve as his base of operations while in the Washington, D.C. area. It was only used on official travel. Tr. at 278. The Individual fully discussed this matter with his supervisor and received Dr. XXXXX's approval to be reimbursed up to his full rental payment because the apartment was only used for official travel. Tr. at 224, 247-48, 249, 278, 298, 309, 318.

Dr. XXXXX testified that he agreed to this arrangement because he thought it mutually beneficial both to the XXX and to the Individual. Tr. at 238. In particular, Dr. XXXXX stated that it was of great benefit to the XXX to have one central place where XXX officials knew that the Individual could be reached directly by telephone or by fax at all hours of the day on short notice, and where packages could be delivered safely. Tr. at 237, 238. A hotel room would not provide these advantages and would be more expensive than an apartment. Tr. at 238, 283. In addition, the apartment was used to store materials such as visual aids and exhibits that were used in the XXX's Washington, D.C. work. Tr. at 314. Dr. XXXXX states that he considered his approval of the Individual's use of the apartment and full reimbursement of rent to be a reasonable exercise of his supervisory discretion to benefit both the XXX and one of its employees. Tr. at 262.

In approving the apartment arrangement, Dr. XXXXX testified that he laid down four guidelines that the Individual had to follow: (1) that because of the political sensitivity of their work, the arrangement must be beyond reproach; (2) that the Individual could receive reimbursement up to the full cost of renting the apartment, but could not make any profit from the arrangement; (3) that the Individual not claim more than the maximum allowable per day rate for lodging <8> ; and (4) that the Individual claim and voucher his expenses in a manner acceptable to the XXXX travel office. Tr. at 238-40, 252. It is this last caveat that lies at the crux of this case.

The Individual testified that he consulted with his secretary at XXXX, XXXXX, as to the proper procedure to use for his travel and lodging reimbursement. The Individual first asked about "unreceipted lodging."<9> Tr. at 281. Ms. XXXXX informed the Individual in 1990 that the travel regulations had recently been changed and that a separate claim had to be made both for food and for lodging.<10> Id. In addition, he was informed that a receipt was required for the lodging. Id. The Individual then inquired of Ms. XXXXX whether he could simply turn in a monthly receipt and travel voucher after payment of his rent. He was told that receipts and vouchers had to be submitted after each trip. Tr. at 222, 311. Finally, Ms. XXXXX informed the Individual of the maximum amount he could claim per day for lodging in the Washington, D.C. area. Tr. at 226.

The Individual started travel for XXXX almost immediately. His first trip was from January 8, 1990 through January 13, 1990. When he returned, he submitted a travel voucher for his expenses. Exh. F1 at 1. On the voucher, he claimed lodging costs of $375.00. Id. He also received Meals and Incidental Expenses (M&IE) reimbursement for 5.5 days at $34.00 per day. Id. He calculated his lodging amount by some rough division. He took his monthly rent for the apartment of $1,135.00<11> and divided that by thirty. Tr. at 281. From this he came up with a daily rental payment of about $40.00. <12> Id. To this he added his permissible M&IE of $34.00. Id. He then rounded this sum off to $75.00. Id.

In support of his voucher, the Individual submitted an invoice from the Charles E. Smith Cos., the landlord for the XXXXX apartments. Exh. F1 at 4. At the hearing, the Individual stated that when he learned he needed to voucher each Individual trip, he explained his problem to Amy Berube who was then working in the management office at XXXXX. Tr. at 284-85. According to the Individual, Ms. XXXXXX stated that many tenants had similar reimbursement problems and that she would be glad to help him. Id. She offered to give the Individual invoices which he could prepare and she would sign. Tr. at 285. However, because the Individual did not have access to a typewriter, he would write the information in longhand and Ms. XXXXXX would type the Smith Cos. invoice and place it in his mail box. Id. The Individual used this invoice in support of his travel voucher for the January trip.

When the travel voucher for this first trip was prepared, the Individual noticed that the voucher showed both the $75.00 per day figure listed on the Smith Cos. invoice and the $34.00 M&IE per diem. Tr. at 281. Since the Individual had already included the $34.00 per diem for M&IE into his $75.00 figure, he questioned Ms. XXXXX about this. He states that she told him at that time that lodging and M&IE could not be combined to arrive at the $75.00 amount. Id. Rather, the two charges had to be listed and reimbursed separately. Id.

After being told that he had incorrectly determined his costs, the Individual recalculated his lodging costs. In figuring his new lodging costs, he used Dr. XXXXX?s guidance that he could recover his total apartment costs so long as he did not make money and did not exceed the G.S.A. per-day maximum. Thus, he took his apartment/furniture rent, added in a sum for the additional fees listed in footnote 11, and came to an average $1,200.00 cost per month for the apartment. Tr. at 281, 289, 290. He divided this figure by fifteen ($1,200 ÷ 15 = $80) . He chose fifteen because he expected to spend about half his time each month in residence at XXXXX. Tr. at 282. He then rounded his per day lodging costs down to $75.00. He said he considered this reasonable because it was cheaper than a hotel, was well below the G.S.A. maximum, and would approximate his actual total lodging costs. Tr. at 282, 284.

The Individual used this system and Charles E. Smith Cos. invoices typed by the XXXXX management office for his Washington, D.C. travel until the fall of 1990. At that point, the Charles E. Smith Cos. property manager at XXXXX, XXXXXXXXXXXXXXXX, was reviewing tenant records. Tr. at 96. <13> Having prepared some of the invoices for the Individual in the previous months, she was familiar with the amount the Individual had been claiming on the invoices. On reviewing the figures, she found that the $75.00 figure that had been used on the invoices did not accurately reflect the actual per calendar day cost of the Individual's apartment. Tr. at 80.<14> Ms. XXXXX testified that she told the Individual that she would no longer provide him with invoices that reflected daily leasehold costs, but only his rental amount. Tr. at 79, 80, 83.<15> The Individual testified that he found this acceptable because after that time he would be in Washington on virtually a full time basis. Tr. at 295. The record supports this testimony and the Individual's claimed per-day lodging costs dropped accordingly. See Exh. F13 at 7; Exh. F14 at 7; Exh. F15 at 6; Exh. F16 at 4. Ms. XXXXX testified that she did not give the Individual any more invoices after the fall 1990 conversation, although she did not know if other Smith Cos. employees did. Tr. at 86. Ms. XXXXX's signature, however, apparently appears on two of the invoices issued after the fall 1990 conversation. Exh. F15 at 6; Exh. F16 at 4.

It was also in the fall of 1990 that the Individual provided a different type of documentation for his lodging expenses. For his lodging for his stays at XXXXX for September 18, 1990 to October 20, 1990 and for October 24 through November 22, 1990, the Individual submitted typed, generic receipts. The first of these, Exh. F12 at 5, listed per day lodging costs of $75.00. It is signed by XXXXXXXXXX who is identified on the receipt as the Evening Manager. The second receipt, Exh. F13 at 7, apparently reflecting the Individual's conversation with Ms. XXXXX, lists per day lodging costs of $45.76 and is signed by XXXXXXXXXXXXXX who is identified on the receipt as the Night Manager.

How the Individual obtained these receipts was the subject of considerable attention at the hearing. Counsel for the DOE contended that the receipts may be invalid. The Individual testified that he obtained these receipts on nights or weekends when the management office was not open. Tr. at 293. He would see a group of people sitting behind the front desk watching television. Tr. at 306. He recognized at least one of the persons as a gentleman who did maintenance and other work around XXXXX. Tr. at 307-08. The receipts came from a book under the front desk. Tr. at 293. The Individual would handwrite the information to be placed on the receipt, id., and the typewritten receipt would either be slipped under his door or placed in his mailbox. Tr. at 307.<16> The Individual testified that he asked Ms. XXXXX about the propriety of submitting these generic receipts. According to the Individual, Ms. XXXXX told him that he should submit the receipts. Tr. at 292. He was told that if the Travel Department had any problems with the generic receipts, they would contact him, and this was the way travel problems were ordinarily handled. Tr. at 243, 252, 255, 292, 298, 309-10.

In December 1990, the Individual again started submitting Charles E. Smith Cos. invoices in support of his travel vouchers. See, e.g., Exh. F14 at 7. He continued submitting these Smith Cos. invoices until April of 1991 when the last of the three typed, generic receipts (and the last of the allegedly invalid receipts) appears in the record. Exh. F17 at 5. The per day costs listed on these invoices ranged from a high of $70.51 per day, Exh. F14 at 7, to a low of $42.53 per day. Exh. F 15 at 6. <17> Some of these were signed by a Smith Cos. employee, XXXXXXXXXXX. Others were apparently signed by Ms. XXXXX. Some of these invoices appeared to have had changes made to them regarding the time period and the per-day charge. Exh. F14 at 7; Exh. F15 at 6; Exh. F16 at 4.

These invoice alterations caught the eye of XXXXXXXXXXXXXXX, a senior XXXX accounting clerk who has done travel accounting for about eight and one-half years. Tr. at 118, 136. She also noted that the invoices were not traditional hotel bills. Tr. at 121, 137. She called Ms. XXXXX about the apparent alterations. Tr. at 136. It was at that time that she discovered XXXXX was an apartment building and the monthly rate that the Individual had been paying did not, in her view, support the daily rate he had been claiming. Id.

Ms. XXXX, in her testimony, explained that at the time there were two types of travel. Regular travel, travel for thirty days or under, and extended travel which is a change of station. Tr. at 122-23. Under regular travel, a person must make separate claims for M&IE and for lodging. Tr. at 123. The lodging must be supported by some documentation. Tr. at 121. The claim only can be up to an established G.S.A. maximum unless there is additional supporting paperwork authorized by the person responsible for the particular travel account being billed. Tr. at 121, 125-26. Ms. XXXX stated that the proper way to compute lodging costs in a situation such as the Individual's was to take the total lodging cost and divide by the number of days in the month. Tr. at 138-39, 151. That would produce a per-day lodging cost. That per day lodging cost would then be multiplied by the number of days the traveller actually used the lodging. Id. In her testimony, she noted that the Individual was not claiming lodging costs by this formula, and, therefore, she felt that his method was not proper. Tr. at 151. She stated that the Individual probably could have been reimbursed for the entire apartment amount, but that he had not done the proper paperwork. Tr. at 148, 157-59, 163-64. Therefore, she felt her suspicions that the Individual was not following the travel regulations were confirmed because of the incorrect manner of calculating and claiming his apartment expenses.

The other item that alerted Ms. XXXXe to a potential problem was the nature of the Individual's lodgings. Travelers, she stated, may only receive the lodging per diem if they stay in commercial lodgings which, according to Ms. XXXX, means an establishment open to the public renting accommodations for an evening or longer. Tr. at 144. XXXXX as a ordinary apartment complex does not fall under this definition. Once again, Ms. XXXX believed the Individual to be acting in manner which violated the XXXX travel regulations.

Ms. XXXX did not contact either the Individual or anyone in XXXXX Division with her suspicions. Tr. at 140, 156. Rather, she alerted her supervisor, Tr. at 140, and the matter was eventually brought to the attention of Security Affairs which also referred the matter to the IG. After undertaking an investigation, IG sent the matter to the XXXXX Operations Office's Office of Chief Counsel which referred the matter to the DOE Office of General Counsel (OGC) in Washington, D.C. After consulting with the Justice Department, OGC initiated the administrative proceeding under the PFCRA. That matter was settled after the Individual had requested a hearing on the suspension of his access authorization. In the settlement, the Individual agreed to pay $5,604.07, the amount the DOE alleged he had overcharged the government. Exh. 8 at 1. The settlement also recited that the "DOE has concluded that [the Individual] did not in any instance act with fraudulent intent and that his conduct does not constitute a basis for concern about his access authorization." Id. The settlement also provided that the DOE Counsel in charge of the case would recommend restoration of the Individual's clearance. Id. The DOE Counsel who was active on the matter at the time has written a letter to that effect and it has been made a part of the record in this proceeding. Exh. 12 at 1.

The scrutiny of the Individual's vouchering of the XXXXX apartment ended in the spring of 1991. At that time a new travel policy creating a third way of paying for lodging was created. Tr. at 269-72, It allowed XXXX to assume direct payment of apartment leases for persons like the Individual who spent extended time on travel without an assignment change. Tr. at 258-61, 269-72. The Individual's new secretary utilized this method of payment for the Individual's apartment at that time. Tr. at 300. This was at the time (and apparently continues to be) a common method of lodging and payment for employees on extended travel at other DOE facilities operated by the XXXXXXXXXXXXXXXXXXXXXXXX such as XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. Tr. at 256, 303.

IV. ANALYSIS

In this case, two categories of allegedly derogatory information led to the suspension of the Individual's access authorization: (A) the alleged defrauding of the government in obtaining reimbursement of lodging while the Individual was on travel in Washington, D.C. and (B) questionable documentation which may have been "invalid, forged, or altered" for some of his lodging claims. Exh. A at 3. Many of the facts surrounding these two categories are largely undisputed. There is no serious question, for example, about the amount the Individual paid for his lodgings, what he asked for in reimbursement, or why he asked for that amount. There is some question as to the validity of some of the supporting documentation that the Individual submitted. In resolving these matters, I am governed by the Part 710 regulations which dictate that in making the determination as to access authorization, the Hearing Officer must undertake a careful review of all of the surrounding facts and circumstances and make a "common-sense judgment . . . after consideration of all the relevant information." 10 C.F.R. § 710.7(a). Thus, pursuant to the regulations, I must consider all information "favorable or unfavorable" to the Individual and ultimately bearing on "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). I will do this with respect to each of the categories of derogatory information.

A. THE ALLEGED FRAUD

The fundamental question in this portion of the case is whether the Individual defrauded the government. We have previously held that fraud constitutes derogatory information that may warrant removal of a person's access authorization under 10 C.F.R. § 710.8(l) as negatively reflecting on a person's honesty, trustworthiness, and susceptibility to coercion. See Personnel Security Hearing, VSO-0001, 24 DOE ¶ 82,751 (1994). However, if there was no fraud by the Individual in this case, then these charges ought not be a bar to restoration of the Individual's access authorization. As XXXXXXXXXXX, the DOE Personnel Security Specialist, informed us at the hearing, if the Individual was acting in good faith and simply claimed an incorrect amount because of a misunderstanding, or if he was given incorrect information, there would be no security concern. Tr. at 63-65.

After considering all of the evidence, I believe that the Individual's reimbursement vouchers were submitted in good faith without intent to wrongfully overcharge the government. In reaching this conclusion, I express no opinion on whether or not the Individual complied to the letter with the XXXX travel regulations in effect for travel expenses in 1990 and 1991. I simply find that the Individual made a good faith attempt in his vouchering within the limits of his knowledge, the state of the travel regulations, the guidance provided by his supervisor, and the information provided by his secretary.

The XXXX regulations stated that a traveler could be reimbursed for his actual lodging costs up to the G.S.A. per-day maximum. Tr. at 124, 129. Much of the dispute over the Individual's reimbursement claim centers on this seemingly simple concept. In the Individual's view, his total lodging costs were his total rental payments because he kept and used the XXXXX apartment solely for official business. Tr. at 278, 284, 312, 316. Because he was unable to voucher monthly or, at the time, have XXXX pay the apartment rent directly, he prorated his total monthly rent over, and submitted vouchers based on, the number of days he used the apartment.<18> Tr. at 278-82. This approximately reimbursed him for his total, actual cost of the apartment. This method may have been incorrect. According to Ms. XXXX, the XXXX travel accountant who testified, what the Individual should have done was divided his rental payments by the amount of days in the month to arrive at a per-day cost. Tr. at 138, 151. That per-day cost should have been multiplied by the amount of days that the apartment was actually used by the Individual. Id. That is to say, in her view, the Individual could only claim the per-day cost of his apartment rental for the days he in fact was on official travel. According to Ms. XXXX, he could not claim the full cost of the apartment used only for official travel if he did not use the apartment full time for official business.

This is a somewhat subtle distinction, but essentially the one upon which the fraud claim rests. In finding that the Individual was making a good faith effort to comply with the vouchering requirements, I give substantial weight to the fact that there is universal agreement that when the Individual came to XXXX and started his travel, the XXXX travel regulations had recently undergone a significant change which had caused substantial confusion. Tr. at 128, 129, 240, 258, 281. A good part of that confusion revolved around the very issue in this case, the correct manner of reimbursement for lodging. Tr. at 129, 247-48. Further, the travel regulations themselves provide no guidance as to what constitutes "actual cost." Tr. at 162-63. In addition, the Individual had disclosed to his supervisor his intent to seek full reimbursement for his rental costs and his supervisor had specifically approved such an arrangement. Tr. at 224, 243, 247-48, 262, 268, 278, 298, 309, 318. It would be most unusual for a person to disclose and receive supervisory approval prior to deliberately defrauding the government.

In addition, given the Individual's understanding, and after examining the record, I do not believe they point to a conclusion of bad faith. As I have already noted, the Individual believed he could receive reimbursement for his total rental costs because he used the apartment only for official travel. This was not an inherently unreasonable assumption, and Ms. XXXX testified that he probably could have vouchered for the entire apartment rental had he known how to do the proper paperwork. Tr. at 163-64. At the time he started vouchering, his base rental costs were $1,135.00 per month, or approximately $37.83 per day for a typical thirty-day month. Exh. 15 at 2. The Individual initially anticipated being in Washington about half of every month. Tr. at 282. Thus, to recover his total rental cost he would need to multiply $37.83 by two. This yields a product of approximately $75.67. This is almost exactly the amount he claimed on his first few months of vouchers. In addition, the $75.00 per day figure is well below the $93.00 maximum he could have claimed for lodging had he been intent on maximizing any fraudulent scheme. Later, when his per-day lodging cost claims dropped on his travel vouchers, they still continued to reflect his actual total costs. For example, the Individual stayed in Washington for nineteen nights in December 1990 before returning to California for Christmas. For this period, he vouchered his costs at $70.51 per day. Exh. 14 at 7. His base rent at this time was $1,270.00 per month. Exh. 15 at 13. In addition, at this time he was paying about $70.00 per month in cleaning services. See Exh. 17 at 4-6. Thus, under the Individual's belief of what constituted total cost, he added the cleaning cost to the base rent to arrive at a payment of $1,340.00. Dividing this figure, his view of total cost, by nineteen, the number of days he used the apartment, gives a daily figure of approximately $70.53. This is the figure, almost to the penny, which the Individual claimed in his lodging voucher. This pattern repeats itself throughout the record.

As regards the confusion over commercial lodging, I once again do not need to resolve the dispute over the proper meaning of the XXXX travel regulations. Rather, taking the evidence as a whole, and placing a common sense interpretation on them, I do not believe that the Individual's actions add up to fraud. Ms. XXXX testified that in order to voucher as the Individual did, he needed to stay in commercial lodging. Tr. at 121, 122. Commercial lodgings, she explained, meant a place to which anyone could come and rent space for one evening or more. Tr. at 122, 144. XXXXX, where the minimum leasehold is three months, Tr. at 95, clearly does not meet this definition. However, the Individual could easily have reached a contrary conclusion without an intent to wrongly overcharge the government or violate the XXXX travel regulations. XXXXX, in fact, does have some characteristics of an establishment that caters to business travelers. For example, the Individual first learned of XXXXX from professional colleagues at XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX who used the apartments there as a base of operations when on extended travel to Washington. Tr. at 303. In addition, he knew from his conversations with Charles E. Smith Cos. employee XXXXXXXXXX that many corporate clients kept apartments at XXXXX for business travel. Tr. at 284-85. Thus, to the Individual, unfamiliar with the newly changed travel regulations, XXXXX could appear to be a commercial lodging establishment. Although he may have been mistaken, I do not believe the assumption to be so unreasonable as to call into question the Individual's judgment or reliability for retaining his access authorization.

As I have stated several times during this discussion, I make no findings as to whether the Individual complied with the XXXX travel regulations or overcharged the government in his travel reimbursement vouchering. However, I find that the Individual did not intentionally seek to unjustly enrich himself at the expense of the government. Rather, the evidence demonstrates that the Individual's actions were mistakes or misunderstandings of the application of the travel regulations. This is precisely the type of activity that the DOE Personnel Security Specialist specifically testified is not a security concern. Tr. at 63-65. Therefore, I find that the Individual's attempts at lodging reimbursement in 1990 and 1991 do not provide a basis to question the Individual's honesty, reliability or trustworthiness or to think that he is subject to coercion or pressure. 10 C.F.R. § 710.8(l). Accordingly, as to the first charge in the Notification Letter, I find that the restoration of his access authorization would not endanger the common defense or the national security.

B. INVALID, FORGED, OR ALTERED TRAVEL DOCUMENTATION

With respect to the second charge in the Notification Letter, the claim that the Individual submitted invalid, forged, or altered invoices in support of his reimbursement voucher claims, I ruled at the September 21 hearing that I could not find against the Individual as to altered or forged invoices. Tr. at 176-80, 211-16. I made this ruling because DOE Counsel could not produce the original questioned invoices or receipts at the hearing. The IG investigator responsible for this case had sent the original invoices to Washington, D.C. in connection with the PFCRA claim. Tr. at 172-75. The attorney in Washington, D.C. who used the documents apparently sent them back to the IG investigator who did not receive them. Tr. at 174-75. Wherever the documents may be, they were not available for examination at the September 21 hearing. Under these circumstances, I believe it would be fundamentally unfair in this case, without the original records, to find that the Individual forged or altered documents. As even DOE Counsel conceded, the original documents are necessary in this case before an adverse finding on the second item in the Notification Letter can be made against the Individual. See Tr. at 133 ("I think if you're going to make any findings on Part B we would have to have the original documents.... But if we're going to be making any sort of case about white-out or changes, or anything like that, we should have the actual documents in evidence. Otherwise, I don't see how we can ask for a finding on that.").

Further, to the extent evidence was produced on this subject, that evidence does not support a finding that any of the documents supporting the Individual's 1990-91 lodging costs were forged or altered. Thus, on the record before me, I would be unable to find that the Individual's clearance should be revoked on these grounds.

The only reason to revoke the Individual's access authorization on forgery or alteration grounds would be if the Individual forged or altered documents the documents himself. The evidence in the record does not support this. At the hearing, XXXXXXXXXXXXX, the XXXXX property manager, had before her copies of the original invoices from the DOE files. She also had before her copies of the invoices from the Charles E. Smith Cos. records. At our request, she compared a randomly chosen example of the invoices. Ms. XXXXX confirmed that the typewritten material on the copy in the record, Exh. F14 at 7, and the copy in the Smith Cos. records was identical. Tr. at 111-15. As a result, whatever alterations were made must have been made by Smith Cos. employees while the original was in their possession and not by the Individual. This is precisely what the Individual stated when he testified that from time to time his travel plans changed and at the last minute he had Smith Cos. employees make new or changed invoices to reflect the actual time he spent at XXXXX. Tr. at 286-87, 291. Therefore, such evidence as exists in the record strongly supports the Individual's claim that he did not alter or forge any of the invoices.

There was also a question raised regarding the validity of Ms. XXXXX's signature and whether it was forged on some of the invoices. Ms. XXXXX testified that she did not give the Individual any invoices after the conversation in the fall of 1990. Tr. at 86. In addition, in an interview, Ms. XXXXX stated that only three of the invoices with her name - Exh. F7 at 5, Exh. F10 at 4, Exh. F16 at 4 - had her actual signature. Exh. E8 at 3. She reaffirmed this in her testimony. Tr. at 106-07. Based on the evidence at the hearing, I believe Ms. XXXXX's memory is faulty. The Individual submitted a handwriting analysis by a distinguished handwriting expert, Dr. XXXXXXXXXXXXXX of Sanibel Island, Florida, who stated, without reaching definitive conclusions absent the original documents, that at least some of Ms. XXXXX's signatures on the later invoices did not seem to be forged. Exh. 7 at 3. Dr. XXXXX's conclusions are far too uncertain to be of much probative value. However, I note that at least one of the invoices with an undisputed XXXXX signature, Exhibit F16 at 4, was for the period March 4 through April 2, 1991. This is some months after the fall 1990 conversation, the point at which Ms. XXXXX testified she stopped giving the Individual invoices. Clearly, Ms. XXXXX's memory is cloudy on this issue. Conversely, I find the Individual's account credible on this matter. Accordingly, the evidence as it exists in the record does not support a finding that the Individual forged Ms. XXXXX's signature.

Finally, this leaves the matter of the three allegedly invalid, typed, generic receipts. Exh. F12 at 5; Exh. F13 at 7; Exh. F17 at 5. I have already recounted in some detail the testimony on this matter. Given the totality of evidence, I find the Individual's account believable. The Individual stated that because of his heavy work schedule, on some occasions he was unable to get to the XXXXX management office to obtain an invoice. Tr. at 292-93. This is consistent with the testimony of the Individual's supervisor that the Individual was working very lengthy hours. Tr. at 237. Further, I find his testimony as to the circumstances by which these three generic receipts were obtained to be entirely credible. In addition, I note that the Individual testified that he did not have a typewriter at the time. Tr. at 285. I believe this testimony to be highly credible because it was offered on a matter unrelated to the generic receipts. While a typewriter is not such an exotic item that I cannot say that one was never available to him, the fact that he did not have one substantially lessens the possibility that the Individual typed the generic receipts. In addition, this is also consistent with his other testimony and the evidence in the record to the effect that he wrote matters relating to the invoices and receipts in longhand. See, e.g., Exh. E-9; Tr. at 78, 285, 293 The only evidence in contradiction is the testimony of Ms. XXXXX. However, I find that her testimony on this subject is not as reliable as that of the Individual. Ms. XXXXXy testified alternately that XXXXX did not use generic receipts and that when they did, the receipts did not look like the ones in the record. Tr. at 100. Given the passage of half of a decade, it is not surprising that Ms. XXXXX's memory might be less than clear on such a minor point of office procedure. Based on the strength of the Individual's testimony and the established facts as opposed to the apparently cloudy recollection of Ms. XXXXX, I find that the Individual has made the much stronger case that there is nothing illicit in these generic receipts.

For all of these reasons, I believe that the record does not demonstrate that the Individual fabricated, altered, forged, or created any invalid receipt. Thus, the record does not support a finding that the Individual has acted in a manner that tends to show that he is not honest, reliable, or trustworthy, would be subject to coercion or duress, or would act contrary to the national security. 10 C.F.R. § 710.8(l). Accordingly, it is my recommendation that the Individual's access authorization be restored.

V. CONCLUSION

In this Opinion I have very carefully considered all of the evidence presented in the exhibits filed by the parties and the testimony elicited at the hearing. At that hearing, I listened to all of the witnesses. I found the Individual to be open and forthright. He made every attempt to tell the full story; and just as he disclosed his plan to use the XXXXX apartment to his supervisor, there is no indication that he tried to conceal any fact at the hearing from me.

In considering the evidence, I believe the record amply supports my conclusion that the Individual was not using official travel as a means to unjustly enrich himself. The Individual was a new employee who walked into a new and unsettled travel reimbursement landscape. He sought and received permission from his supervisor to seek reimbursement for his full apartment costs. Whether or not his attempts at figuring the actual cost of his apartment rent were in compliance with the XXXX travel regulations, I do not believe they were unreasonable or an attempt to wrongfully profit at the government's expense. Rather, the evidence demonstrates that while the Individual may have made claims inconsistent with the XXXX travel regulations, which at the time were new and sometimes confusing, he did so because of honest mistake and misinformation. This, the DOE Personnel Security Specialist testified, is not a security concern. I agree. In addition, I do not believe the record demonstrates that the Individual submitted false, forged, or invalid receipts in support of his travel reimbursement. Finally, because I find that the Individual did not intentionally overbill the government for costs he did not actually incur and the record does not support a finding that he submitted invalid, altered, or forged receipts, I need not consider the effect, if any, of the terms of the settlement agreement between the DOE and the Individual in the PFCRA case. In sum, the record does not support a finding that the Individual's actions with regard to his apartment rental and his claims for reimbursement for that apartment during 1990 and the first half of 1991 constitute unusual conduct calling into question the Individual's honesty, reliability, or trustworthiness. 10 C.F.R. §710.8(l). Nor does it support a finding that the Individual is subject to pressure, coercion, duress or would act contrary to the best interests of the national security. Id. Therefore, I believe that restoration of the Individual's clearance would not endanger the national security or the common defense and would be in the national interest. For these reasons, I find that the Individual's access authorization should 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 the Hearing Officer's Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, 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 reviewing official 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).

George B. Breznay

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>/ Besides its full name, I will variously refer to XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX as the XXX or the XXXXXXXXXX or by its common acronym, XXXX.

<3>/ As I informed the parties at the hearing in this case, I will recuse myself from all consideration of any request for review filed in this case. 10 C.F.R. § 710.28. I will delegate my authority under section 710.28 to a Deputy Director of the Office of Hearings and Appeals who will have complete autonomy to make any findings necessary on review.

<4>/ Ms. XXXXX' resume and credentials are in the record as Exhibit K.

<5>/ I conducted a prehearing tele-conference with the parties on September 14, 1995. At that time, the Individual's attorney objected to the inclusion in the record of portions of the documents submitted by the DOE Counsel. The Individual's counsel particularly objected to hearsay statements in those documents. I decided not to strike those documents from the record. However, I informed both attorneys that I would not consider the hearsay material in those documents as evidence for purposes of reaching this opinion.

<6>/ XXXXX Division's charter is to "explore the boundaries of the technically and the technologically feasible. And to push those boundaries back in the national interest as rapidly as ... judged to be feasible." Tr. at 233.

<7>/ Specifically, the Individual was a senior physicist responsible for examining "the technologies which we were developing and ... integrating for strategic defense purposes [those which] could be best employed to serve other elements of the national interest,

particularly with respect to the civilian and military uses of space." Tr. at 235.

<8>/ Under the XXXX travel policy then in existence, a traveller generally could receive reimbursement for two separate categories of expenses. The first was lodging. The second was meals and incidental expenses (M&IE). XXXX followed the General Services Administration (G.S.A.) standards for the maximum amount that could be paid to a traveller for these items based on the destination of the travel. The maximum per day lodging and M&IE costs for the Washington, D.C. area for 1990 were $93.00 and $34.00 respectively for a total of $127.00. 41 C.F.R. Ch. 301, App. A at 264 (1990). For 1991, the maximum Washington rates for lodging and M&IE were $97.00 and $34.00 per day for a total of $131.00. 41 C.F.R. Ch. 301, App. A at 159 (1991).

<9>/ The Individual had done post-doctoral work at the XXXXXXXXXXXXXXXXXXXXXXXX in the early 1980s. Tr. at 280. Under the travel rules then in effect, a traveller simply received a single per diem amount that covered lodging as well as meals and incidental expenses, and did not need to provide documentation in support of the reimbursement claim. Tr. at 129.

<10>/ The new XXXX travel policy came into effect on October 29, 1989, approximately two months before the Individual joined the XXX. Tr. at 129.

<11> / The Individual's monthly apartment rent for the first part of 1990 was $935.00, plus a monthly furniture rental fee of $200.00. See Exh. 15 at 2. In May of 1990, his apartment rent increased to $982.00 per month although his monthly furniture rental payment remained at $200.00. Exh. 15 at 6. Thus, the Individual's basic rental payments became $1,182.00 per month at that time. In December 1990, the monthly furniture rental increased to $288.00 per month making the basic rental payment $1,270.00 per month. Exh. 15 at 13. In addition, the Individual frequently incurred late charges on his rental payment. This late fee was usually $49.10. There was usually also what was apparently a $10.00 administration fee, making the usual total late fee $59.10. See Exh. 15 at 7, 8, 10, 11, 12, 14. The Individual apparently considered these late fees part of his rental payment and added them to his reimbursable lodging costs for purposes of receiving reimbursement from XXXX. Tr. at 289. He also added to his reimbursable rental costs cleaning fees ranging from $30.00 to $70.00 per month. Tr. at 109, 289, 290; Exh. 15 at 6, 7, 13; Exh. 17.

<12>/ The actual per day lodging amount was $37.83.

<13>/ Ms. XXXXX testified that these events took place in the late fall of 1990. Tr. at 83-84. The Individual states that this occurred in November 1990. Tr. at 288.

<14>/ Ms. XXXXX testified that she did not question the practice before her review because approximately two-thirds of the apartments at XXXXX have rental rates in the $75.00 per day range. The figure, therefore, did not seem unusual to her. Tr. at 95.

<15>/ By this Ms. XXXXX meant that the Individual requested invoices showing payment on a per-day

basis rather than a monthly basis as the XXXXX leases were structured. Tr. at 107. The Individual testified that Ms. XXXXX agreed to give him receipts reflecting the amount of time he stayed in the apartment and the amount he actually paid to XXXXX in rent. Tr. at 288.

<16>/ Ms. XXXXX testified that XXXXX never employed security personnel. Tr. at 100-02. In addition, she states that no one by the names listed on the receipts as the night or evening manager ever worked at XXXXX. Tr. at 100. With regard to the generic receipts, Ms. XXXXX testified alternately that XXXXX did not have or use generic receipts, and that the generic receipts used at XXXXX did not look like the ones the Individual had submitted to XXXX. Id.

<17>/ The actual per day costs during this period varied between $40.97 and $45.36, not including any late or cleaning fees, depending on the amount of days in the month.

<18>/ For most of this period, the Individual simply used an average, so that in some months he would come out ahead and in other months he would not receive his full costs. The intention seems simply to come out about even in the long run and to simplify the vouchering. Tr. at 284, 312.