Case No. VSO-0057, 25 DOE ¶ 82,786 (H.O. Lipton Jan. 25, 1996)

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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

Name of Case:Oak Ridge Operations Office

Date of Filing:September 13, 1995

Case Number:VSO-0057

This Opinion concerns the eligibility of XXXXX (hereinafter "the individual") for reinstatement of a "Q" access authorization. The regulations governing the individual's eligibility are set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." This opinion will consider whether, based on the record testimony and other evidence presented in this proceeding, the individual's access authorization should be reinstated.

I. BACKGROUND

This administrative review proceeding was commenced by the issuance of a Notification Letter dated August 11, 1995. In that letter, the individual was informed that information in the possession of the Department of Energy's XXXXX Operations Office (DOE/XXXXX) created a substantial doubt concerning his eligibility for a reinstatement of his "Q" access authorization. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement of the derogatory information in the possession of the DOE/XXXXX that created the substantial doubt concerning the individual's eligibility for access authorization. In particular, it specified the following areas of concern:

A. The individual deliberately misrepresented, falsified or omitted significant information from two Questionnaires for Sensitive Positions, a

Personnel Security Questionnaire and during a Personnel Security Interview. See Section 710.8(f). [Criterion (f)].

B. The individual engaged in unusual conduct tending to show that he is not reliable honest or trustworthy, or which furnishes reasons to believe that he may be subject to pressure, coercion exploitation or duress, which may cause him to act contrary to the best interests of the national security. See Section 710.8(l) [Criterion (l)].

The concerns are based on the individual's admittedly false statements that he received a Bachelor of Science degree in mechanical engineering from Tuskegee University in 1982.

The Notification Letter informed the individual that he was entitled to a hearing before a Hearing Officer in order to respond to the information contained in that letter. On August 30, 1995, the individual requested a hearing. The individual's request for a hearing was forwarded by the DOE/XXXXX to the Office of Hearings and Appeals (OHA). On September 13, 1995, I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. Section 710.25(e) and (g), the hearing was convened in XXXXX, on November 29, 1995.

At the hearing, the individual was represented by counsel and he testified on his own behalf. There were no other witnesses.

II. FINDINGS OF FACT

The facts in this case are not in dispute. The individual is a training specialist with XXXXX, a subcontractor of XXXXX, which is a contractor with the DOE/XXXXX. Beginning in 1982, the individual was employed by XXXXX a contractor at the DOE's XXXXX Plant in XXXXX. He held an access authorization in connection with that position. The individual worked at that facility as an engineer until he was terminated in 1994.

The notification letter stated that the individual has on four occasions indicated to the DOE that he received a Bachelor's Degree in Mechanical Engineering from Tuskegee University in 1982. The individual made these assertions in a Personnel Security Questionnaire (PSQ) dated August 18, 1982, and in two Questionnaires for Sensitive Positions (QSP) dated November 27, 1991, and June 14, 1993 and during a Department of Energy Personnel Security Interview (PSI) of December 1, 1993. These false assertions took place while the individual was employed by XXXXX at the XXXXX plant.

After the DOE requested that the individual provide a transcript showing that he received a degree, the individual admitted that he did not completely finish his requirements for a degree.<1> See December 6, 1993 PSI at 2. The individual was then terminated from his position with XXXXX. Transcript of November 29, 1995 Personnel Security Hearing (hereinafter Tr.) at 22. The individual subsequently returned to Tuskegee, completed his course work, and was awarded a Bachelor's Degree in July 1994.

Thereafter, the individual applied for a position at the DOE/XXXXX, for which a security clearance was also needed. During DOE/XXXXX's the reinvestigation of this individual for purposes of reinstating his security clearance, the individual's prior falsehoods came to light and became the subject of this proceeding.

III. ANALYSIS

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the DOE/XXXXX and the individual, and to render an opinion based on that evidence. The 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. See 10 C.F.R. §710.7(a).

Among the factors I have considered in rendering this Opinion concerning the individual's eligibility for access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; his age and maturity at the time of the conduct; the voluntariness of his participation; the absence or present of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct, the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. 10 C.F.R. §§ 710.7(C) and 710.27 (a).

The discussion below reflects my application of these criteria to the derogatory information presented by the DOE/XXXXX in this case.

A. Criterion (f)

As indicated above, the DOE/XXXXX's cause of concern in connection with the individual's security clearance is his falsification on two QSP's, a PSQ and during a PSI. The falsification set out in the Notification Letter related to the individual's assertion that he had completed a college degree in mechanical engineering. We have on numerous previous occasions found that false statements made by an individual are grounds for revoking a security clearance. E.g., Personnel Security Hearing (VSO-0051), 25 DOE ¶ 82,784 (1995); Personnel Security Hearing (VSO-0041), 25 DOE ¶ 82,775 (1995), request for review pending (VSA-0041); Personnel Security Hearing (VSO-0045), 25 DOE ¶ 82,774 (1995); and Personnel Security Hearing (VSO-0013), 25 DOE ¶ 82,752 (1995).

It is important to note at the outset that Criterion (f) does not apply to all misstatements and omissions, but only to those that are deliberate and involve significant information. Personnel Security Hearing, 25 DOE at 85,665. There is no question that the falsehoods here were deliberate. The individual admittedly lied in order to be selected for the position at XXXXX. December 6, 1993 PSI at 3. Also, as discussed below in connection with the factors set out at Section 710.7(c), the falsification in the instant case involves significant information.

After considering the factors set forth at Section 710.7(c), I find that they weigh heavily against reinstating the individual's access authorization. First, the information that the individual falsified concerned whether he had been awarded a college degree. Such a degree was necessary in order for the individual to be eligible for the position for which he had applied. December 6, 1993 PSI at 4. The falsification was material and significant, since it went to the very heart of the individual's eligibility for the position with the DOE contractor.

Further, the extent of the falsification was substantial. The falsification continued for a period of eleven years from 1982 through 1993. This is an extended period of time. The individual could certainly have made an immediate effort to complete his degree, correct the untruthful statements and thus mitigate the period of falsification. However, he failed to do so.

Moreover, the falsification was not a mere youthful indiscretion. The individual was XXXXX years old at the time of the first falsification, and maintained the falsehood until 1993, when he was XXXXX years old. Thus, there is no basis for ascribing this falsification to immaturity.

Section 710.7(C) requires a consideration of the motivation for the conduct. The individual stated that he was "eager to start working and making money and be done with school." December 6 PSI at 3; Tr. at 19. He was thus simply concerned with his own personal financial comfort. This self-serving motivation cannot excuse this falsification.

In making a determination, the Hearing Officer is required by Section 710.7(C) to consider the absence or presence of rehabilitation or reformation and the likelihood of continuation or recurrence. In this regard, the individual provided evidence, in the form of a copy of a transcript from Tuskegee University, showing that he completed the course work necessary for his mechanical engineering degree, which was awarded in July 1994.

While this action showed some effort on the part of the individual to rehabilitate himself, I am nevertheless not persuaded that the falsehood has been mitigated. The individual only took that step once he was fired from his previous position for the false statement. He indicated that because of the termination he had free time available to complete the degree. Tr. at 22. Thus, the attempt at mitigation only took place after the falsehood was discovered and when it was convenient for the individual himself.

Although the individual asserts that he has made significant changes in his lifestyle, including volunteer activities and participation in Narcotics Anonymous, I do not believe that these behavioral changes, which are unrelated to the untruthfulness at issue here, are sufficient to overcome those very serious falsehoods. Given these facts, I am simply not convinced that the individual has met the burden of persuasion here of establishing rehabilitation with respect to falsification in this case.<2>

I also note the potential for coercion of the individual in connection with such falsification. At the hearing, the individual's attorney argued that in view of the depth of the investigation of the individual, the DOE is now aware not only of the falsehoods uttered by the individual, but also of several other unflattering incidents in the individual's past. The attorney therefore contends that there is no longer any risk of coercion or pressure with respect to this individual. I agree that there is little likelihood in the future that the individual may be coerced due to the falsehoods raised here by the DOE/XXXXX.

However, during the period of the concealment, there was certainly a possibility of coercion of the individual. The individual had good reason to be concerned that he might lose his job if his employer learned of the falsehood. In fact, he was terminated for this reason. The nature of the concealed information was such that it could have led the individual to succumb to pressure, resulting in a serious risk to national security. This lends further support for my overall conclusion that the falsehoods were very serious indeed.

Moreover, the individual has shown a pattern of untruthfulness. He falsified three DOE documents and then lied during a PSI with the DOE. He was sworn to tell the truth in connection with all of these utterances. This leads me to believe that the individual may have a propensity to falsify that could well lead to future coercion problems.

In sum, I find that these falsehoods form a sufficient basis for denying this individual a security clearance. The individual's falsifications on the two QSPs and on the PSQ, as well as the false statements at the PSI create a doubt as to whether the individual can be trusted to safeguard classified information or uphold security regulations. Personnel Security Hearing, 25 DOE at 85,671. I therefore find that there is a proper basis for not reinstating the individual's clearance under Criterion (f).

Additional Evidence

While it is not necessary to the determination reached above, there is some additional supporting evidence. This evidence first came to light during the hearing. The individual testified that he still has not revealed to his employer that he was terminated at his XXXXX position for submission of false information. Tr. at 23. Instead, he simply made his current employer aware that he was terminated from his previous position with XXXXX. The individual's reasoning was that the cause for the termination would come to light during the investigation process. Therefore, in the individual's mind there was no need to provide his current employer with the complete circumstances surrounding the termination. Tr. at 23.

This is a significant omission. I find that it falls within the purview of Section 710.8(f), which refers not only to deliberate misrepresentation, but also to omission of significant information. The individual rationalized this omission at the hearing by stating that he did not actually utter an outright falsehood. Tr. at 23. The omission of such a significant piece of information on the part of an employee requesting an access authorization raises serious, legitimate doubts about whether he should be entrusted with responsibility for safeguarding classified materials. See Personnel Security Hearing, 25 DOE at 85,673. It is questionable whether XXXXX would have offered the individual a position requiring a security clearance had it been aware of the reason for the termination. This additional evidence, although not necessary to my determination, confirms my overall judgment that the individual is not truthful, and might be inclined to make false statements or omit significant information in the future if he thought it useful.

B. Criterion (l)

As stated above, Criterion (l) involves information that an individual has engaged in behavior which shows that he is not honest, reliable or trustworthy or which furnishes reason to believe that he may be subject to coercion that would cause him to act contrary to the best interests of the national security. The derogatory information alleged by the DOE/XXXXX under this criterion is based on the same falsehoods discussed above under Criterion (f). The falsifications certainly raise serious issues of honesty, reliability and trustworthiness. The DOE security program is based on trust, and if an employee lies to the DOE, that trust is violated. Personnel Security Hearing, 25 DOE at 85,661. Further, having found that the DOE/XXXXX's allegations establish a basis for not reinstating the individual's clearance under Criterion (f), and that there are insufficient mitigating factors, I make the same finding with respect to Criterion (l)

IV. CONCLUSION

I therefore find that the DOE/XXXXX properly invoked 10 C.F.R. Section 710.8(f) and Section 710.8(l) in connection with the reinstatement of the individual's access authorization, due to his falsification in the two QSPs, a PSQ and during the PSI. In view of the record before me, I am not persuaded that reinstating the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I find that the individual's "Q" access authorization should not be reinstated.

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

Virginia A. Lipton

Hearing Officer

Office of Hearings and Appeals

Date:

<1>/ The individual failed to complete his senior design project.

<2>/ In an apparent effort to provide additional mitigating evidence, at the hearing the individual submitted eight letters from former co-workers. These letters generally attested to the individual's good performance at his job and to his trustworthiness. I find that they have no evidentiary value. The individual's job performance is not particularly relevant to the matter at issue. The co-workers' views of the trustworthiness of the individual are not credible. There is no indication that these former co-workers were aware of the circumstances involved in this proceeding when they wrote the letters, or that they have any knowledge of DOE security issues. There was certainly no opportunity to question these individuals and judge their expertise or credibility. I have therefore given these letters no weight in my deliberations.