Case No. VSO-0073, 25 DOE ¶ 82,794 (H.O. Brown Mar. 11, 1996)
For full history of this case, and links to other cases, click here.
* 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 Opinion
Name of Petitioner: Albuquerque Operations Office
Date of Filing: November 17, 1995
Case Number: VSO-0073
This Opinion concerns the 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, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."<1> The Department of Energy's XXXXX Operations Office (DOE/XXXXX) denied the individual's request for an access authorization, pending administrative review under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony presented in this proceeding, the individual should be granted an access authorization.
I. Background
The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE contractors, agents, DOE access permittees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 generally provides that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all 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).
Since April 1994, the individual has been employed as XXXXX with XXXXX, a contractor operating at DOE's XXXXX under the jurisdiction of DOE/XXXXX. Having been informed by XXXXX that a "Q" level access authorization was required in conjunction with his employment, the individual made application for an access authorization by submission of a Questionnaire for Sensitive Positions (QSP), which was signed November 17, 1994. On April 7, 1995, the individual submitted to a personnel security interview (PSI) to resolve certain apparent omissions in the individual's QSP as well as derogatory information that was received by DOE incident to the security investigation of the individual. Pursuant to the PSI, the individual was referred to a DOE consultant/psychiatrist, Dr. XXXXX, who performed a psychiatric evaluation of the individual on July 28, 1995, and issued a report of the evaluation one month later, on August 28, 1995 (XXXXX Report). Subsequently, on October 25, 1995, DOE/XXXXX issued a Notification Letter to the individual informing him that his requested security clearance was being withheld since substantial doubt remained concerning his eligibility. The specific derogatory information cited by DOE/XXXXX in support of its determination is set forth in Enclosure 2 accompanying the Notification Letter, and is summarized below.
Enclosure 2 of the Notification Letter states that the derogatory information regarding the individual falls within the purview of the disqualifying criteria set forth in 10 C.F.R. § 710.8, on two grounds. First, the Notification Letter alleges that the individual has "[a]n illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist . . . causes, or may cause, a significant defect in judgment or reliability." 10 C.F.R. § 710.8(h). In this regard, the Notification Letter states that in his report of psychiatric evaluation, Dr. XXXXX diagnosed the individual as having Antisocial Personality Disorder (ASPD) based upon diagnostic indicators established in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). In addition, Dr. XXXXX opines that the individual meets the diagnostic criteria for other of the so-called "Cluster B, Personality Disorders", including Borderline Personality Disorder and Narcissistic Personality Disorder. Dr. XXXXX further maintains that the individual's mental condition causes or may cause a significant defect in judgment or reliability, and that his condition could be exacerbated by the individual's alcohol use since Dr. XXXXX also determined that the individual must be categorized as a "problem drinker."
Secondly, the Notification Letter specifies disqualifying derogatory information under 10 C.F.R. § 710.8(l), that the individual has "[e]ngaged 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 interests of the national security." In this regard, Enclosure 2 of Notification Letter states that the PSI and subsequent investigation revealed the individual's numerous financial difficulties, including: (1) a federal tax lien totalling more than $15,000 as a result of unpaid taxes from 1984, 1985 and 1987; (2) an unpaid state tax (XXXXX) lien amounting to approximately $2,900; (3) an unpaid civil judgment (Third Judicial District Court, XXXXX) totalling $5,745.93, for failure to pay electric service charges; (4) another unpaid judgment from the court in the amount of $4,220, relating to unpaid services; and, (5) three delinquent collection accounts with a cumulative outstanding balance of more than $1,000. Finally, Enclosure 2 states that on October 5, 1988, the individual was arrested by the XXXXX Department of Fish and Game, and charged with Possession of a Butchered Moose Out of Season, to which the individual pled no contest and was fined $500. However, DOE/XXXXX's information revealed that the individual failed to pay the fine and consequently, on September 21, 1992, the District Court for the State of XXXXX issued a bench warrant for the individual's arrest.
In a letter that was forwarded to OHA by DOE/XXXXX on November 17, 1995, the individual exercised his right under Part 710 to request a hearing in this matter, 10 C.F.R. § 710.21(b), and on December 4, 1995, I was appointed as Hearing Officer in this case. After conferring with the individual and the DOE Counsel that was appointed by DOE/XXXXX in this case, 10 C.F.R. § 710.24, I set a hearing date of January 25, 1996. The DOE Counsel subsequently filed a compilation of documents relied upon as evidence by DOE/XXXXX in support of the derogatory information contained in the Notification Letter, which was followed by a submission of three documents from the individual.<2> The hearing in this matter was convened as scheduled, in XXXXX. The DOE Counsel called four witnesses: the individual; Dr. XXXXX, the DOE consultant/psychiatrist; Mr. XXXXX, a personnel director; and finally, Ms. XXXXX, a DOE personnel security specialist. The individual elected to call two witnesses: Mr. XXXXX, his supervisor, and Mrs. XXXXX, his wife. The transcript that was taken of that hearing shall be hereinafter cited as "Tr.".
II. Analysis
I have thoroughly considered the record of this proceeding, including the submissions of the parties, the evidence presented and the testimony of the witnesses at the January 25, 1996 hearing convened in this matter. In resolving the question of the individual's eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c): the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of the participation; 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; the likelihood of continuance or recurrence; and other relevant and material factors. After due deliberation, it is my opinion that the individual's access authorization should not be approved since I am unable to conclude that such approval would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings which I make in this matter are discussed below, segmented in accordance with the derogatory information alleged in the Notification Letter under sections 710.8(h) and 710.8(l).
A. Section 710.8(h), Illness or Mental Condition
(1) Derogatory Information
As noted above, Part 710 provides that an individual may be ineligible to hold an access authorization when the DOE is unable to resolve derogatory information that the individual has a "mental condition of a nature which, in the opinion of a board-certified psychiatrist, . . . causes, or may cause, a significant defect in judgment or reliability." In the present case, Dr. XXXXX diagnosed the individual with having Antisocial Personality Disorder (ASPD) based upon the criteria set forth in DSM-IV. The DSM-IV specifies four criteria that must be met for a clinical diagnosis of ASPD, in summary:
A. There is a pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years, as indicated by three (or more) of the following:
(1) . . . repeatedly performing acts that are grounds for arrest
(2) deceitfulness . . . lying
(3) impulsivity and aggressiveness . . .
(4) irritability and aggressiveness, as indicated by repeated physical fights or assaults
(5) reckless disregard for safety of self or others
(6) consistent irresponsibility [regarding work or financial obligations]
(7) lack of remorse . . .
B. The individual is at least age 18 years.
C. There is evidence of Conduct Disorder . . . with onset before age 15 years.
D. The occurrence of antisocial behavior is not exclusively during the course of Schizophrenia or a Manic Episode.
DSM-IV at 649-650 (these criteria shall be referred to as Criterion A1 through D, respectively). Regarding the "A" criteria, Dr. XXXXX found on the basis of this information that the individual meets criteria A1, A2, A3, A5, A6 and A7, as described in his 54-page report. XXXXX Report, DOE Exh. 7. In summary, Dr. XXXXX's report sets forth the following table which itemizes the number of behavioral incidents on the part of the individual which Dr. XXXXX determined to be appropriately categorized under each Criterion:
CRITERION
NUMBER OF TIMES CITED
A1
15
A2
60
A3
3
A4
0
A5
3
A6
28
A7
2
See XXXXX Report, DOE Exh. 7 at 49.
In reaching the conclusion that the individual suffers from ASPD, Dr. XXXXX not only relied upon his clinical interview of the individual and associated tests, but considered a substantial volume of derogatory information presented in the individual's DOE security file, most notably the individual's OPM Investigation Report (OPM Report), the individual's PSI and QSP. This information generally concerns matters involving the individual beginning in the early 1980's, during which the individual resided in the States of XXXXX (until August 1987), XXXXX (August 1987 to August 1990), XXXXX (August 1990 to June 1992), XXXXX (June 1992 to February 1994), and finally XXXXX (March 1994 to present). See QSP, DOE Exh. 6, at 2. More particularly, a substantial portion of the derogatory information relates to legal incidents during the individual's residency in XXXXX, and allegations of behavioral misconduct, deceitfulness as well as legal incidents during his residency in XXXXX when he owned and operated a general store/liquor store (XXXXX) with his current wife.
During the hearing, the individual disputed the factual basis for a number of Dr. XXXXX's determinations, claiming that the information relied upon Dr. XXXXX was either misleading or inaccurate. Since this aspect of Dr. XXXXX's report is critical to my evaluation of his diagnosis, the most salient points of information relied upon by Dr. XXXXX under Criteria A1, A2 and A6 are examined separately below. Based upon the following, I have determined that notwithstanding the individual's explanations, more than ample evidence remains to support Dr. XXXXX's conclusion that the individual meets three or more of the ASPD "A" criteria, as required under the DSM-IV.<3>
Criterion A1
As set forth in the table above, Dr. XXXXX found 15 occurrences of behavior on the part of the individual that were grounds for arrest. Indeed, in several of those instances, the individual was in fact arrested. For instance, during the early 1980's while residing in XXXXX, the individual was arrested twice on the charge of Driving While Intoxicated (DWI); on another occasion the individual was arrested and jailed for failure to answer an outstanding traffic warrant; and still in another incident the individual was charged in a theft investigation. See XXXXX Report at 36-37. During the time period that the individual resided in XXXXX, the individual allegedly stole heating oil from neighbors' tanks, attempted to sell a freezer and generator that he had not paid for, and had accepted food stamps for liquor at XXXXX. See id. at 16, 17 and 33. In addition, the individual was charged in 1988 in XXXXX for poaching a moose, to which he pled no contest.
During the hearing, the individual contested the accuracy and characterization of certain of these matters. The individual claims that he has no recollection of being charged for theft while he resided in XXXXX, but only recalls speaking to the police concerning the matter. Tr. at 49-50.<4> The individual denies that he ever stole heating oil while in XXXXX,<5> or ever attempted to sell a freezer or generator that were not paid for. Tr. at 58-60, 79. Both the individual and his wife vehemently deny ever accepting food stamps for the sale of liquor at their store. Tr. at 60. Finally, the individual claims that while he pled no contest on the charge of Possession of a Butchered Moose Out of Season, he was innocent of that crime and was not involved. The individual claims, contrary to other evidence in the record, including his own prior statements, that he was only in the vicinity along with "the rest of the town," and was indiscriminately charged by the game officer since he had red paint on his shoe which the officer mistakenly believed to be blood. Tr. at 48-49.<6>
Despite the individual's explanations and denials, I find that ample evidence that supports Dr. XXXXX's assessment that Criterion A1 is applicable. The DWI and traffic warrant arrests remain uncontroverted, and I find the documentary evidence regarding the XXXXX theft investigation more reliable than the individual's recollection. Moreover, even were I to accept the individual's present account of the moose incident, I am disturbed by the fact that the individual having pled no contest to the charge failed to pay the $500 fine that was ordered, resulting in the issuance of a bench warrant that remains pending.<7> This kind of disregard for legal authority cannot be overlooked.
Criterion A2
Of all the "A" criteria, Dr. XXXXX found the most numerous (60) instances under this criterion based upon Dr. XXXXX's own observations and a substantial body of evidence in the record demonstrating ostensible deceitfulness and/or lying on the part of the individual. In his report, Dr. XXXXX notes many examples during the individual's PSI where the individual's account of incidents in which he was arrested or accused of potentially illegal conduct varies markedly from the reports and statements of persons interviewed in the OPM Report. Some of the matters are described above in considering Criterion A1, but there are other instances relating to the individual's conduct, business dealings and representations made to third parties.
A major issue with respect to the individual's truthfulness concerns his use of alcohol. Dr. XXXXX states that at the outset of his clinical examination, the individual stated that his last drink was "3-4 cans of beer last night." See XXXXX Report at 41. The laboratory blood test administered at that time by Dr. XXXXX, however, showed that the individual had drank substantially more since he still had a detectable amount of alcohol (17 mg/dl) in his blood. Indeed, a Carbohydrate Deficient Transferrin (CDT) test that was administered showed with a 96.7% level of certainty that the individual had consumed more than 5 cans of beer daily for 7 - 10 days prior to the test. Id. The individual later conceded this level of consumption to Dr. XXXXX and during the hearing. Tr. at 85-86. This inconsistency regarding his alcohol consumption typifies other disparate accounts by the individual: (1) contrary to his admitted level of beer consumption, during his PSI the individual insisted that he drank only a 12 pack per week (PSI at 28); and (2) the individual responded that he never consumed alcohol while working (PSI at 37), but later admitted sometimes consuming a 12 pack per day while running the store in XXXXX although he claims that this amount did not intoxicate him. Tr. at 85. These discrepancies also come in the face of reports from sources, which the individual denies, that in XXXXX he was sometimes so drunk that he had to shut the store and that, when employed at the ranch in XXXXX, he was frequently intoxicated on the job. See OPM Report at 22-26.
In addition, there are a number of reports of untruthful statements made by the individual. For instance, the individual is reported to have claimed that he is an Army veteran who served in Vietnam. During the PSI, the individual adamantly denied ever telling anyone this: "I told you no -- not to my knowledge. I haven't, wasn't there, haven't been there, don't plan on going there. You must have me confused with somebody else." PSI at 81-82. During the hearing, the individual modified this account, stating that he had told his current wife that he served in Vietnam to "impress" her (Tr. at 56), but to his knowledge she was the only person he had told this. Tr. at 66-67. However, the record reveals another person who states that the individual told her that he was in the military and served in Vietnam. See OPM Report at 41. Similar to the Vietnam matter is a report that the individual told people that he was in the antique business and owned a Stradivarius violin. During the PSI, the individual denied making any such statement. PSI at 54. At the hearing, the individual's wife explained that the matter of the Stradivarius violin was a simple misunderstanding, resulting from a family joke involving an old violin which she had refurbished for her daughter. Tr. at 53-54. Nonetheless, the individual apparently led persons to believe that he was serious in making this claim. See OPM Report at 28. Finally, the individual admits lying when he told persons before leaving XXXXX that he'd received a large settlement pursuant to the Exxon Valdez oil spill in Alaska. PSI at 92.
Dr. XXXXX also found significant a number of apparent omissions in the individual's QSP. For example, the individual: (1) failed to list his former spouses, although the individual was married five times previous to his present wife whom he married in 1986 (QSP no. 21); and (2) despite his DWIs, answered "no" to questions concerning whether he had ever been charged with an offense related to alcohol (QSP no. 23). See XXXXX Report at 28. The individual testified at the hearing that he omitted these matters because he was instructed by his employer before completing the form that he need only go back ten years. Tr. at 68-70. The DOE Counsel was able to confirm that the individual had in fact received these instructions from a XXXXX employee and therefore stipulated that the individual was required to go back only 10 years on his QSP. Tr. at 72. However, this would not explain the individual's failure to list a Bankruptcy Petition which he and his wife filed in 1991, and delinquent credit accounts and unpaid judgments, under "Your Financial Record" (QSP no. 27), which existed within the 10-year time frame.
In sum, although the individual denies or attempts to explain many of these matters, the fact is that there remains many examples that support Dr. XXXXX's concerns about the individual's dishonesty under Criterion A2. According to Dr. XXXXX, he did rely to a great extent on sources of information presented in the OPM Report in assessing "the honesty issue", but saw no reason why these persons would give and corroborate false information concerning the individual. See Tr. at 55, 57. Dr. XXXXX maintains that in comparison to the nearly two hundred security files he has examined, "in this case there was markedly -- or a very high number of discrepant pieces of information between what the sources would say and what [the individual] would say." Tr. at 101. According to Dr. XXXXX, there is more than ample basis to support a finding under Criterion A2 even taking away half of the instances of dishonesty which he found, and I also find, evident in the record. Tr. at 100. I therefore agree with Dr. XXXXX's conclusion.
Criterion A6
There is a considerable body of documentary material evidencing behavior on the part of the individual under this criterion, particularly relating to the individual's repeated failure to honor financial obligations. Certain of these instances are specifically identified in the Notification Letter. During the hearing, the individual explained or clarified the status of these financial matters. As discussed below, however, I am again unable to avoid the conclusion that the individual's pattern of financial irresponsibility falls clearly within the A6 ASPD criterion.
First, concerning the federal income tax lien, the individual admits signing an agreement dated October 7, 1994, with the IRS to pay monthly installments of $150.00 on a delinquent tax liability amounting to $15,177 for tax years 1984 and 1985. Tr. at 18; see DOE Exh. 15. The individual submitted copies of money order purchase receipts in the amount of $150.00 to evidence his payment of this liability. Tr. at 20; Ind. Exh. 5. Based upon certain information which he discovered in the OPM Report, however, the individual now believes that the IRS tax lien may have already been satisfied by his forfeiture of certain real estate property in XXXXX under a quit claim deed in 1991. Tr. at 17-19.<8> The simple fact remains, however, that the individual failed to pay his requisite amount of federal income taxes for a period of time during the mid 1980's, as result of dubious deductions which were disallowed by the IRS (OPM Report at 18), and failed to satisfy this obligation for a number of years.
Turning to the matter of the unpaid XXXXX state income tax lien, the individual concedes that the lien exists, as indicated in the individual's credit report obtained by the DOE. Tr. at 23; DOE Exh. 16. Nonetheless, the individual maintains that the underlying state income tax assessment is incorrect: "[t]his is a contested amount of money. I do not owe them, I have not owed them, and I have fought with the State of XXXXX and so, no, I am not going to pay them." Tr. at 23. The individual says that he does not intend to open any negotiations with the State of XXXXX to rectify this matter, but simply remains adamant that he will not pay them. Tr. at 25; PSI at 81.<9>
Next, the individual provided additional information with respect to the two unpaid civil judgments (Third Judicial District Court, XXXXX) identified in the Notification Letter. The first of these judgments was in an action filed by XXXXX, against the individual for unpaid electric service charges amounting to $5,745. At the hearing, however, the individual submitted an Acknowledgment of Satisfaction from the court clerk showing that this default judgment had been satisfied by the individual. Tr. at 26; Ind. Exh. 4. Again, however, the fact that the electric company was required to file suit for payment is a reality that cannot be overlooked. The second unpaid court judgment in the amount of $4,220 was in an action filed by a Mr. XXXXX for unpaid services, relating to Mr. XXXXX boarding three horses that belonged to the individual and his wife. See OPM Report at 30-31. According to the individual, the judgment was satisfied by Mr. XXXXX who kept the horses as payment. Tr. at 28-29. The individual was unable to provide any evidence in support of this claim, and Mr. XXXXX instead maintains that the horses were worth less than the amount of the judgment. OPM Report at 30.
Finally, the individual does not dispute the existence of three delinquent collection accounts amounting to more than $1000, itemized in the Notification Letter. DOE Exh. 16. He maintains, however, that these accounts would not appear on a more recent credit report since they are now "too old." Tr. at 34. The individual did not explain his reasons for failing to pay these accounts for such a long period of time.
Thus, the explanations proffered by the individual with respect to the derogatory information described in the Notification Letter did little to detract from Dr. XXXXX's determination under Criterion A6. While one or two of these occurrences viewed in isolation may have been attributable to bad luck, the totality of these circumstances amount to a flagrant pattern of irresponsibility in meeting his financial obligations.
Other Criteria
Finally, although not as determinative, Dr. XXXXX also found occurrences under Criterion A3 (e.g. the individual's XXXXX marriages, some of which were spontaneous and lasted only a few months) and A5 (e.g. DWI arrests). It is also clear that Criteria B and D of the DSM-IV criteria for ASPD diagnosis are satisfied. However, Criterion C requires separate discussion.
Criterion C requires that "[t]here be evidence of Conduct Disorder with the onset before age 15 years."<10> In his report, Dr. XXXXX noted that he had no reliable information concerning the individual's childhood, but states that "in clinical practice, the Diagnosis of Antisocial Personality Disorder is often made without the ability to also diagnosis a Conduct Disorder in childhood because of lack of data." XXXXX Report at 49. Based upon the available information, however, Dr. XXXXX states that even without the Criterion C data, in the individual's case "I am > 95% certain, that the subject meets DSM-IV criteria for Antisocial Personality Disorder." Id. at 49 (emphasis in original). On the basis of the record before me, I conclude that Dr. XXXXX's diagnosis of ASPD is adequately supported by evidence.<11>
Finally, and most critically, I must also concur with Dr. XXXXX assessment that the individual's mental condition (ASPD) "has caused in the past, is causing in the present, and will most likely cause in the future, a significant defect in his judgment and reliability." XXXXX Report at 53. Dr. XXXXX states in this regard that the individual's ASPD has manifested itself in three main ways: dishonesty, irresponsibility, and treating others with reciprocal fairness. Id. at 51. Thus, Dr. XXXXX maintains that he questions the individual's judgment and reliability since he has "an impairment in his sense of right and wrong" and his "antisocial value system could and most likely would affect his willingness to follow rules and regulation." Id. at 52. According to Dr. XXXXX, the individual's ASPD exists up until the present as evidenced by his deceitfulness regarding his alcohol consumption during his clinical interview and financial irresponsibility in not paying taxes. During the hearing, I asked Dr. XXXXX whether the individual's explanations of a number of events changed his opinion. Dr. XXXXX maintained that notwithstanding these explanations, "there were so many examples in the records of discrepancies between what sources would say and what [the individual] would say that it just led me to conclude that his problem with judgment and reliability has to do with basic honesty . . . in my opinion, his antisocial personality disorder causes him to have a significant defect in his judgment and reliability based upon -- around the core issue of honesty and truthfulness." Tr. at 120-121.
Moreover, I am further persuaded by Dr. XXXXX's observation that the individual's alcohol consumption could exacerbate the negative impact upon judgment and reliability caused by his ASPD. Based upon the individual's two DWI arrests, the results of laboratory tests taken at the clinical interview, discussed above, and the individual's admitted alcohol consumption at present and in the past, Dr. XXXXX categorized the individual as "a problem drinker." XXXXX Report at 47.<12> It is clear from the record that the individual's alcohol consumption is substantial, ongoing and has caused him difficulty in the past. Thus, I agree that there is significant likelihood that the individual's alcohol consumption could result in a further diminution of his judgment and reliability beyond that caused by his ASPD.<13>
(2) Mitigating Circumstances
In considering the applicability of the ASPD "A" criteria above, I have already described many of the individual's denials and explanations which mitigated some of the derogatory information, but ultimately I find them unavailing. Often, the individual urges that I accept his word against that of one or more sources; however, the uncontroverted record of this case establishes that the individual tends to be less than truthful. Recent efforts by the individual to remedy certain of his financial difficulties are too little, and they come too late. Although the individual has made some progress in settling his federal tax lien, and resolving some credit defaults and outstanding court judgments, many matters remain unresolved and, more importantly, he has failed to overcome the serious, negative impression that I am compelled to draw from his longstanding pattern of financial irresponsibility.
Before turning to the alternative disqualifying Part 710 criterion alleged in the Notification Letter, I must address one other potentially mitigating factor, the disparate results of a psychological test administered by Dr. XXXXX which bears upon the viability of the ASPD diagnosis. Following his clinical interview, Dr. XXXXX had the individual take the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), a self-report test in which personality types can be purportedly recognized by the pattern of answering 567 True-False questions. The test inherently includes a "validity scale" based upon disguised corroborative questions to determine whether the subject is being forthright in their responses. The MMPI-2 is scored by a computer program which generates a report of the results. In the case of the individual, the MMPI-2 report states that the individual was "open and cooperative" in answering the questions and therefore the test "was probably a good indication of his present level of personality functioning." XXXXX Report, MMPI-2 Attachment, at 3. The report then goes on to say, in pertinent part, concerning the individual:
This MMPI-2 clinical profile is within normal limits, . . . . He seems to have no unmanageable psychological conflicts or stressors at this time, and his personal adjustment appears to be adequate. He seems to be dealing effectively with situational demands . . . . He appears to be a confident and emotionally stable individual. . . . He has an average interest in being with others and is not socially isolated or withdrawn.
Id. In his report, Dr. XXXXX notes these comments, which ostensibly run counter to his ASPD diagnosis, but attributes the MMPI-2 results to the individual's "emotional coolness" and further points out that "the MMPI-2 has not been validated against DSM-IV diagnostic criteria for making diagnoses. They are separate and independent instruments." XXXXX Report at 45; see Tr. at 93-94. During the hearing, Dr. XXXXX reaffirmed his position that the MMPI-2 is a tool for making an independent assessment which does not in any way supplant his diagnosis, and states further that "if I had to go more on what I know to be his life history versus the way he answered the test, I would put more of the weight on the information that I know about his life history." Tr. at 111.
In previous cases, we have considered the probative value of MMPI-2 test results in assessing the validity of a psychiatric diagnosis, and have generally concluded that although the MMPI-2 is relevant, it should not be accorded such weight as to overcome an independent psychiatric diagnosis based upon demonstrated behavior. For instance, in Personnel Security Hearing, Case No. VSO-0032, 25 DOE ¶ 82,765 (1995), the Hearing Officer sustained a psychiatrist's diagnosis of a DSM-IV Cluster B personality disorder, Borderline Personality, based upon demonstrated behavior, despite an independent MMPI test which "revealed no underlying personality disorder, mood disorder or psychotic functioning." 25 DOE at 85,602. Conversely, in Personnel Security Hearing, Case No. VSO-0021, 25 DOE ¶ 82,763 (1995), the Hearing Officer found the DOE psychiatrist's Personality Disorder diagnosis untenable based upon more persuasive evidence presented in the record, despite MMPI test results that were "outside the normal range." 25 DOE at 85,590. Thus, in considering the individual's disparate MMPI-2 test results in the present case, I place greater weight on the substantial body of derogatory evidence regarding the individual's pattern of behavior. Although the MMPI-2 test result is relevant, it does not cause me to doubt the validity of Dr. XXXXX's diagnosis, or lead me to doubt that the individual's mental condition, coupled with his alcohol consumption, result in a significant defect in his judgment and reliability.
B. Section 710.8(l), Reliability and Trustworthiness
The Notification Letter also alleges that the individual should be denied an access authorization under section 710.8(l), more specifically that the individual has "[e]ngaged in [] unusual conduct or is subject to [] circumstances which tend to show that the individual is not honest, reliable, or trustworthy . . . ." I have concluded that the individual access authorization should also be withheld on this basis.
The reasons for denying the individual's Q clearance under section 710.8(l), itemized in the Notification Letter, are essentially the same behavioral incidents and circumstances that support Dr. XXXXX's diagnosis of ASPD. See Notification Letter, Enclosure 2 at 2. As discussed in considering the legitimacy of that diagnosis, the individual has failed to rebut the adverse inferences that must be drawn from the individual's recurrent failures to: (1) adhere to legal authority; (2) honor financial commitments, and (3) interact honestly in personal as well as business relationships. Despite the individual's protestations and rationalizations, a substantial body of derogatory information remains undisturbed. The individual is 52 years old and thus has a substantial life history prior to applying for this initial security clearance; unfortunately, that life history reflects a pattern of irresponsibility and misconduct which is inconsistent with the reasonable interests of security.
III. Conclusion
As explained in this Opinion, I find that DOE/XXXXX properly invoked 10 C.F.R. §§ 710.8(h) and 710.8(l) in denying the individual's access authorization. It is my opinion that, within the meaning of those provisions, the individual has a "mental condition of a nature which, in the opinion of a board-certified psychiatrist, . . . causes, or may cause, a significant defect in judgment or reliability" and, the individual has "[e]ngaged in [] unusual conduct . . . which tend[s] to show that the individual is not honest, reliable, or trustworthy . . . ." In view of these criteria and the record before me, I cannot find that granting the individual's access authorization would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find that the individual should not be granted an access authorization.
The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of 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 other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b). 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 20874-1290
Fred L. Brown
Hearing Officer
Office of Hearings and Appeals
Date:
<1> A "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 an access authorization, security clearance, or "Q" clearance.
<2> The documents submitted by DOE Counsel on January 17, 1996, principally include: (1) the Notification Letter, (2) the individual's hearing request, (3) the transcript of the April 7, 1995 PSI, (4) the individual's QSP; (5) the psychiatric evaluation report of Dr. XXXXX, dated August 19, 1995; (6) copies of court judgments (District Court of XXXXX); (7) the September 1992 Bench warrant; (8) documents relating to the IRS lien; and (9) credit reports. In addition, on January 19, 1996, I received three documents on behalf of the individual, identified as follows: (1) an Acknowledgment of Satisfaction, dated November 7, 1995, with a cover letter; (2) a letter dated January 13, 1996, from the individual's wife to DOE Counsel; and (3) 2 pages of a credit report dated January 12, 1996. Finally, during the hearing, I received three additional documents from the individual, including another Acknowledgment of Satisfaction, copies of traveler's check purchase receipts and a Notice of Default and Sale. DOE Counsel submitted one additional document at the hearing, a copy of the individual's Office of Personnel Management (OPM) Investigation Report. All of these documents were made part of the official record of this proceeding and constitute exhibits to the transcript of the hearing. The DOE exhibits shall be cited in this Opinion as "DOE Exh." and the individual's exhibits as "Ind. Exh.".
<3> Regarding his qualifications, Dr. XXXXX testified that he is a medical doctor and a psychiatrist, having completed his formal training in 1975. Dr. XXXXX holds a medical degree from the University of XXXXX, and completed his psychiatric residency at both XXXXX University and the University of XXXXX. Dr. XXXXX has been previously licensed to practice in XXXXX, but is currently licensed only in XXXXX. Tr. at 91.
<4> As identified in Dr. XXXXX's report, however, information released by the XXXXX Attorney's Office, as set forth in the OPM Report states:
[The individual] was arrested by XXXXX Sheriff's Office for theft 4/12/83. Case was filed with the County Attorney's Office 10/12/83 and charges were dismissed 3/2/92. Record was purged from XXXXX Sheriff's Office.
OPM Report at 47-48.
<5> Dr. XXXXX cited information in the OPM Report that the individual was accused by neighbors of riding around at night and stealing people's heating oil by putting it in 55 gallon drums that he hauled around on his snowmobile. On the basis of information introduced at
the Jan. 25 hearing, the DOE Counsel stipulated that the individual did not steal heating oil
while in XXXXX. Tr. at 41, 46.
<6> However, the arrest record concerning this matter reads: "Following up on a tip, the arresting officer found [the individual] and another individual within a few feet of a partially butchered moose. Initially, he claimed he had found it floating in a nearby lake, but observation showed the moose shot 4 times. The two men had blood on their clothing and hands." OPM Report at 28-29. During the PSI, the individual admitted some involvement in the incident:
Interviewer: What were you doing there?"
Individual: I was going to help them . . . off. I mean, I was involved it --
Interviewer: Okay.
Individual: I mean, I'm not denying that.
Interviewer: Well, the way it came out it sounded like you'd been, uh --
. . . not appropriately charged.
Individual: Right. No, no, I, I was involved. I can't argue there with you, or I wouldn't have been there.
PSI, DOE Exh. 3, at 100.
<7> The record indicates that the court imposed a fine $500 and required the individual to perform 100 hours of community service with the XXXXX Volunteer Fire Department, and 500 hours with the XXXXX Hockey Program. See OPM Report at 29. The individual states that he performed only the community service with the fire department, and now concedes that he did not pay the $500 fine although during his PSI he suggested that he had paid the fine. Tr. at 36-37; PSI at 48. The individual does not deny the existence of the bench warrant for his arrest, issued September 21, 1992, by the District Court for the State of XXXXX. DOE Exh. 12. However, the individual notes a statement in the OPM Report that the bench warrant may be invalid, as beyond the authority of the court for a fish and game violation. Tr. at 37; see OPM Report at 29. Concerning his failure to pay the fine, the individual stated only that he'd forgotten about it but now "I think I will go ahead and pay the fine." Tr. at 40.
<8> The OPM Report states, in pertinent part, "the U S Internal Revenue Service assessed him a corrected tax lien as of 3/29/91, of $12,469.20. . . . However, the XXXXX State Recorder's Office notes the above amounts, and that [the individual's wife] and [the individual] enacted a quit claim deed to area property as of 11/91/91 after notice of default 2/19/91. Apparently the offer was acceptable to the IRS." OPM Report at 29.
<9> During his OPM investigation interview, the individual did not even acknowledge the existence of this state income tax lien. See OPM Report at 18.
<10> The DSM-IV states that "[t]he specific behaviors characteristic of Conduct Disorder fall into one of four categories: aggression to people and animals, destruction of property,
deceitfulness or theft, or serious violation of rules." DSM-IV at 646.
<11> In a prior case, it was determined that Criterion C "is a critical element in a diagnosis of Antisocial Personality Disorder that is . . . based on the DSM-IV." Personnel Security Hearing, Case No. VSO-0040, 25 DOE ¶ 82,773 at 85,654 (1995). In that case, we determined that a diagnosis of ASPD was not appropriate in the absence of this factor, where there was otherwise insubstantial evidence to support this diagnosis, and other evidence that showed that the subject's behavior may have been caused by substance (alcohol) dependency. Id. However, I do not find these type of circumstances present in this case. Instead, the record is replete with evidence demonstrating ASPD behavior over a long period and I therefore find the lack of Criterion C data to have negligible bearing in considering the validity of Dr. XXXXX's diagnosis.
<12> In evaluating the individual's alcohol consumption, Dr. XXXXX utilized the DSM-IV for Substance Dependence. Dr. XXXXX stopped short of categorizing the individual as "Alcohol Dependent" since, despite the individual's admitted beer consumption, the laboratory tests (liver enzymes) showed no adverse health effects, and the individual denied suffering any adverse impacts upon personal, social, psychological or recreational
functioning as a result of his alcohol use. See XXXXX Report at 42-43, and at 45-47.
<13> As noted above in discussing the Notification Letter, Dr. XXXXX also determined that the individual meets various criteria for other of the so-called "Cluster B" Personality Disorders described in the DSM-IV, including Borderline Personality Disorder and Narcissistic Personality Disorder. See XXXXX Report at 50. In view of my conclusive findings regarding the individual's ASPD disorder, I will not address this aspect of Dr. XXXXX's report.