Case No. VSO-0075, 25 DOE ¶ 82,799 (H.O. Goering Apr. 18, 1996)

Case No. VSO-0075, 25 DOE ¶ 82,799 (H.O. Goering Apr. 18, 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

Case Name: Personnel Security Hearing

Date of Filing:December 5, 1995

Case Number:VSO-0075

This Opinion concerns the continued eligibility of XXXXX [hereinafter "the individual"] to hold a level "Q" access authorization<1> 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." On September 20, 1995, the individual's access authorization was suspended by the Director, Office of Safeguards and Security (OSS) of the Department of Energy (DOE) pursuant to the provisions of Part 710. In this Opinion, I will consider whether, based on the record before me, the individual's access authorization should be restored. As indicated below, I believe that the individual's access authorization should not be restored.

I. Background

The individual has been employed since 1988 by XXXXXXX. To perform his job, the individual received a "Q" clearance from the DOE. During a routine reinvestigation of the individual, the Office of Personnel Management found evidence that the individual had submitted false information on forms submitted to the DOE and the United States Army. This prompted the DOE to conduct a personnel security interview (PSI) with the individual on July 18, 1995.

During the course of the reinvestigation, the DOE discovered derogatory information that it believed created questions regarding the individual's eligibility for access authorization. Accordingly, the Director, OSS, suspended the individual's level "Q" access authorization and initiated an administrative review proceeding.

On October 31, 1995, the DOE issued a letter to the individual notifying him that the DOE possessed information which created a substantial doubt concerning his continued eligibility for a "Q" access authorization. Letter from XXXXX to the individual (October 31, 1995) [hereinafter Notification Letter]. The Notification Letter specifically identified the derogatory information at issue and explained how that information came within the scope of the criteria set forth at 10 C.F.R. § 710.8(f) and (l). In addition, the Notification Letter informed the individual of his right to file written answers to the derogatory information and to request a hearing before a hearing officer.

On November 16, 1995, the individual filed a request for a hearing with the Director of OSS. Letter from individual's attorney to XXXXX (November 16, 1995). The OSS transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA) Director on December 1, 1995. Memorandum from XXXXX to George Breznay, Director, OHA. The OHA Director appointed me as hearing officer in this case on December 13, 1995. I convened a hearing on XXXXX.

At the hearing, the individual was represented by an attorney and testified on his own behalf. The DOE called as witnesses XXXXXXXXXXXXXX, a DOE XXXXX security investigator, and XXXXXXXXXXXXXXXXX, a security investigator from the DOE's XXXXX Office.

II. Substantive Regulatory Criteria At Issue

According to the Notification Letter, the derogatory information in the possession of the DOE falls within the scope of subsections (f) and (l) of 10 C.F.R. § 710. 8. Criterion (f) concerns information which reveals that a person has

[d]eliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, a personnel qualifications statement, a personnel security interview, written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization, or proceedings conducted pursuant to § 710.20 through § 710.31.

10 C.F.R. § 710.8 (f). Criterion (l) pertains to information evidencing that a person has

[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of the national security. Such conduct or circumstances include, but are not limited to, criminal behavior, a pattern of financial irresponsibility, or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.

10 C.F.R. § 710.8(l).

III. Findings of Fact

Based on my consideration of all the evidence in the record, which includes the transcript of the XXXXX Personnel Security Hearing and all documents submitted by the parties to the OHA, I make the following findings of fact.

The individual served in the Marine Corps Active Reserve from 1956 through 1962. Transcript of XXXXX Hearing at 127 [hereinafter Tr.]. He then served on active duty in the Marine Corps from 1962 through 1975. Id. at 126-27. After joining the Marines, the individual began pilot flight training, which was discontinued because he failed to pass the advanced portion of this training. Id. at 123-24, 172. Instead, he was trained as a naval flight officer. Id. at 124, 172-73. In 1975, the individual was honorably discharged from the Marine Corps. DOE Exhibit 5(a); Individual's Exhibit 43. Upon his separation from the Marine Corps, the individual received a DD Form 214, Report of Separation from Active Duty. DOE Exhibit 5(a). Box 16a of this form listed the individual's "Primary Specialty Number and Title" as "7586 - Elec Warfare Airborne ReconO." Id.

From 1979 through 1991, the individual served in the Army Active Reserve. Tr. at 126-27. In 1988, the individual applied for the training necessary to become a helicopter pilot. Tr. at 134-37; Individual's Exhibit 1(b). The individual completed this training, and served as a helicopter pilot until 1991. Id. at 137. In 1991, the individual received a memorandum from the Army stating:

Under provisions of AR 600-105, para 3-7, you are temporarily suspended from flying duties effective 15 April 1991.

The Aviation Branch of the U.S. Army Reserve Personnel Center is currently attempting to establish your Aviation Service Entry Date (ASED) for the purpose of determining Total Operational Flying Duty Credit (TOFOC) under the Aircrew Incentive Pay Act. They have been unable to document your completion of a military flight training program. They have documented that you were eliminated from the U.S. Navy pilot training program for flying deficiencies.

You are directed to provide documentation of completion of a military flight training program to this headquarters NLT 1 May 1991. Failure to do so will result in a request for a Flying Evaluation Board to be convened to determine your aviation status.

DOE Exhibit 9.

In response to this memorandum, the individual submitted a copy of the DD Form 214 he received upon separation from the Marines. DOE Exhibit 5(a). However, the individual had altered this form by replacing the title "Elec Warfare Airborne ReconO" with the title "Naval Aviator, EA6A, RF4B, Recon & Operations Off." Id.

On July 11, 1991, the Army initiated an involuntary suspension action against the individual. The stated basis for this action was

his intentional omission or misstatement of facts in official statements or records, for the purpose of misrepresentation, to wit: officer indicated that he had never been restricted or suspended from flight duty when, in fact, he was discontinued from the Naval flight program for flight failure. Also, officer submitted an altered DD Form 214 to indicate he had been a Naval aviator and various other altered documents to show he had been a rated Naval aviator.

DOE Exhibit 5(g). The individual requested a transfer to the Army Retired Reserve in lieu of involuntary separation proceedings. DOE Exhibit 5(f). This request was approved. Id.<2>

In 1992, the DOE's Office of the Inspector General (IG) conducted an investigation to determine whether the individual falsified a Standard Form 171, Application for Federal Employment (SF-171) which he submitted to the DOE in 1987. DOE Exhibit 32. The IG found that the individual declared on the SF-171 that he had received a Bachelor's degree from XXXXX and a Master's degree from XXXXX, when in fact he had not received a degree from either institution. Id. As a result of this investigation, the XXXXX Director issued a written reprimand to the individual and directed him "to prepare a new copy of your SF-171, reflecting with absolute accuracy your academic history . . . ." Id. The individual submitted a revised SF-171 on September 29, 1992, which stated that he was a "candidate for" the degrees in question. DOE Exhibit 25. In addition, in his revised SF-171, the individual stated that he was a "former naval aviator." Id. He also answered "no" to Question 38 of the form, which asks whether during the last 10 years he had been fired from any job, quit after being told he would be fired, or left by mutual agreement because of problems. Id. In his 1987 SF-171, and the revised form provided in 1992, the individual stated that he had completed Basic Flight School in Pensacola, Florida (1992 SF-171) and that he possessed "graduation certificates for" this school (1987 SF-171). DOE Exhibits 25, 31. In addition, the individual completed a Standard Form 86, Questionnaire for Sensitive Positions (SF-86) on July 5, 1994. DOE Exhibit 28. The individual answered "no" to Question 22 on this form, which asked whether the individual had left a job under unfavorable circumstances in the last 15 years. Id.

During his July 18, 1995 PSI, the individual stated that he had not altered his DD Form 214. E.g., DOE Exhibit 27 at 68, 69. However, he admitted later in the interview that he had altered this document. Id. at 83. He also claimed he had not submitted any other fraudulent documents to the Army or made false statements to the Army related to his pilot flight training. Id. at 83-84. In response to the question, "What was the reason for his retirement" from the Army Reserve, the individual responded, "Well, there's no squadron there anymore." Id. at 53.

IV. Analysis

The applicable DOE regulations state that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a). The regulations require that I considered the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding his conduct, including knowledgeable participation; the frequency and recency of his conduct; his age and maturity at the time of the conduct; the voluntariness of the participation; the absence or presence 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 or material factors. 10 C.F.R. §§ 710.7(c), 710.27(a). As discussed below, after careful consideration of the record in view of the standards set forth in 10 C.F.R. Part 710, I find that the DOE properly invoked the criteria set forth in the Notification Letter in suspending the individual's "Q" clearance. I further find that the arguments advanced by the individual in his defense do not sufficiently mitigate the security concerns cited by the DOE. Therefore, it is my opinion that the individual's access authorization should not be restored.

A.Derogatory Information Under Criterion (l)

1. Alteration of DD Form 214

I turn first to the individual's alteration of DD Form 214. As an initial matter, the individual confirmed at the hearing that has never been a navy pilot. Tr. at 169. The individual also testified that, had the Army known this in 1988, he would not have been trained as a helicopter pilot. Id. In 1991, the Army asked the individual to submit documentation related to his Naval flight duty. DOE Exhibit 9. In response, the individual submitted an altered DD Form 214 on which he replaced the original Military Occupational Specialty with "Naval Aviator." DOE Exhibit 5(a). At the hearing, the individual explained his motive for altering the document:

"I thought they were harassing me and I just felt like I was going to end all this bureaucratic garbage by just sending them what they want. They wanted something, I gave it to them, here. . . . [T]he worst part about it is that it ended what I wanted to get done. I really did it so that I could get on with flying and -- and get over all the bureaucratic hassle when, in fact, it ended everything."

Tr. at 139.

The individual argued in his defense that the DD Form 214 was accurate even after he altered it because he had, in fact, been a naval aviator. DOE Exhibit 27 at 85. Indeed, there is evidence that supports the individual's claim that he was a naval aviator.<3> But this argument misses the point. Any alteration of the document would have been inherently dishonest because the individual was purporting that the document he was presenting was the same as the original, when clearly it was not. Whether it was "accurate" or not is irrelevant. Moreover, the misunderstanding between the individual and the Army was not related to his status as a naval aviator. The Army wanted to know when he became a Navy pilot. DOE Exhibit 9. In response, the individual altered the DD Form 214 with the stated intent to give them "what they want," i.e. mislead the Army into thinking that he had been a pilot.

2. Falsification of Other Documents Submitted to the Army

At the hearing, the individual denied altering three other documents submitted in response to the Army's inquiries. Tr. at 146-47, 165; DOE Exhibits 5(d)(4), 5(d)(5), 5(d)(7). However, the Army alleged that the individual had submitted "various other altered documents to show he had been a rated Naval aviator." DOE Exhibit 5(g)(2). The individual correctly pointed out that the Army's allegations were not proven, because a hearing before a board of officers was never convened after the individual chose to transfer to the Retired Reserve. Tr. at 170. Nonetheless, a hearing was convened in the present matter, and even to this civilian hearing officer each of these military documents appears altered. In each document, the allegedly altered portions relate to occupational specialty title (naval aviator) or code (7542, the Military Occupational Specialty code for "pilot"), essentially the same type of information the individual admits to have altered on his DD Form 214. DOE Exhibits 5(d)(4), 5(d)(5), 5(d)(7). In two of the documents, the vertical positioning of the allegedly altered type is clearly lower or higher than other entries on the same line, and the typeface of the altered portions in all three documents are visibly different from all other type on the forms. Id. Given the individual's expressed motive to give the Army "what they want" and "end all this bureaucratic garbage" in order to fly, I conclude that these documents were also altered by the individual.

In contrast, it is not clear, as the Army and the DOE alleged, that the individual was being dishonest when he signed a document stating that he had never been restricted or suspended from flight duty. DOE Exhibit 5(g)(3). There is no dispute that the individual washed out of pilot flight training. However, the record contains no clear and consistent definitions of the terms "restricted" or "suspended." As pointed out by the individual, neither term is defined in the glossary of the Army Flight Regulations. Post-hearing brief of individual at 6. In the civilian world, the word "restrict" means "to hold within limits" and the word suspend means "to bar for a period of time" or "to cause to stop for a period." Webster's II New Riverside University Dictionary 1002, 1166 (1984). Thus, the word "restrict" implies that, for example, a pilot or naval flight officer has been limited from certain duties that a pilot or naval flight officer would normally have, unlike in the present case, where the individual never became a pilot and nothing in the record indicates that the individual was ever restricted in his duties as an naval flight officer. Neither is there any evidence that, prior to his suspension in 1991, the individual was suspended from flight duty, i.e. barred from certain duties for a period of time and then returned to those duties. Therefore, I do not find that the individual's denials that he was ever restricted or suspended from flight duty constitute derogatory information under Criterion (l).

3. Documents Submitted to the DOE

In its Notification Letter, the DOE cites several answers on two SF-171s and an SF-86 filled out by the individual as a basis for its suspension of his security clearance. Notification Letter at Enclosure 1. However, I do not find that the individual was dishonest or misleading in answering the questions at issue. On Question 8a of his September 29, 1992 SF-171, the individual describes himself as a "former naval aviator." DOE Exhibit 25. As discussed above, there are documents in the record that support the individual's contention that he was being truthful in describing himself as a naval aviator. In the context of the alteration of his DD Form 214 this description was clearly intended to mislead the Army. However, there is no reason to mistakenly assume, based on the use of this title in his SF-171, that the individual was a pilot. This is also the case with the individual's representations on two SF-171s that he had completed Basic Flight School in Pensacola, Florida. DOE Exhibits 25, 31. The testimony at the hearing indicated that the individual had in fact completed Basic Flight School. Tr. at 123-24, 172-73. However, he completed flight school not as a Navy pilot, but as a naval flight officer. Id. Again, in perpetuating the Army's mistaken impression that he was a pilot, a statement by the individual that he had completed flight school would have been misleading. But the same statement appearing on the SF-171 implies nothing beyond what is written.

Regarding a question on the SF-86 pertaining to past employment, the individual testified that he assumed this question was referring only to civilian jobs. Tr. at 122. Thus, after he transferred to the Army Retired Reserve in lieu of involuntary separation in 1991, he answered "no" to questions which asked whether he had left a job under unfavorable circumstances in the last 15 years. DOE Exhibit 28. He also stated on his 1992 SF-171 that he had not been fired from any job, had not quit after being told he would be fired, and had not left by mutual agreement because of problems. DOE Exhibit 25. I find the individual's interpretation of these questions perfectly reasonable. Both forms contain separate questions and sections relating to military service, e.g., whether the individual was honorably discharged from the military, and whether he was ever subject to a court martial. DOE Exhibits 25, 28. It is not clear to me that the questions regarding past employment on these forms are in fact intended to include military service. Therefore, I find that the individual did not answer these questions with the intent to hide the circumstances of his retirement from the Army Active Reserve.

4. July 18, 1995 Personnel Security Interview

It is not disputed that the individual stated during his PSI that he had not submitted an altered DD Form 214 or other altered documents to the Army. E.g., DOE Exhibit 27 at 68, 69. The individual now admits that he altered a DD Form 214. Tr. at 120. In addition, I concluded above that he submitted several other altered documents to the Army. Thus, these statements at the PSI were obviously false. However, regarding his contention at the PSI that he did not make false statements to the Army about restrictions or suspensions from flight duty, I find for the reasons stated above that these statements at the PSI were not false.

B. Derogatory Information Under Criterion (f)

In its Notification Letter, the DOE cites under Criterion (f) much of the same derogatory information it listed as a basis for suspending the individual's security clearance under Criterion (l). Therefore, I will not repeat here my analysis of these allegations, specifically the falsification of documents submitted to the DOE and certain of the individual's statements at his July 18, 1995 PSI. In addition, I do not agree with the DOE that the falsification of documents submitted to the Army is the type of information encompassed under Criterion (f). Criterion (f) applies only to falsifications involving information provided in (or omitted from) "a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, a personnel qualifications statement, a personnel security interview, written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization, or proceedings conducted pursuant to § 710.20 through § 710.31." 10 C.F.R. § 710.8(f). Documents the individual submitted to the Army do not fall into any of the enumerated categories of documents. Criterion (l), by contrast, lists specific types of conduct and circumstances, but explicitly states that derogatory information under that criterion may include but is "not limited to" the listed examples. 10 C.F.R. § 710.8(l).

There are, however, statements given by the individual at his PSI that are cited by the DOE under Criterion (f) but not under Criterion (l). Specifically, the individual was evasive in responding to questions regarding his retirement from the Active Army Reserve in 1991. For example, when first asked the reason for his retirement, the individual responded, "Well, there's no squadron there anymore." DOE Exhibit 27 at 53. There is uncontroverted testimony in the record that the base where the individual served was scheduled to be closed. Tr. at 139-40. Nonetheless, the individual's answer was obviously less than candid.

C. Security Concerns

The security concerns raised by the derogatory information presented under Criteria (f) and (l) were well articulated by DOE security investigator XXXXXXXXXXXXXXXXXX:

I detected in my review of the file . . . a pattern of falsifications, some of which standing alone perhaps were not significant, but when taken in the total picture, coupled with others that were significant, seemed to indicate that the person was one who, in my mind as a security representative, would be a risk from the standpoint of being able to safeguard classified information or special nuclear material national security information. . . . Falsification of official government documents and providing information that's less than candid in a personnel security interview indicate -- raise a question about the individual's honesty and integrity and -- and the nexus in my mind is, from a security standpoint, would that person violate the security rules or bend and break security rules, and is that person -- can that person be relied upon to safeguard classified information or special nuclear material if given access to those? . . . [I]ndividuals who are willing to provide false documents may do the same thing when entrusted with classified information, in other words, not follow the rules as they are told to follow the rules.

Tr. at 111-13.

These security concerns are heightened because the alteration of documents in 1991 and dishonesty at the 1995 PSI are both preceded and followed by similar instances of dishonesty. The individual admits falsely representing his educational attainments on the SF-171 he submitted to the DOE in 1989. Tr. at 123. Although this fact was not directly relied upon by the DOE in its Notification Letter, it is derogatory information in the record I cannot ignore. Finally, the individual's continued denial of the allegation that he submitted altered documents to the Army other than the DD Form 214 indicates an ongoing pattern of dishonesty. See Personnel Security Hearing, No. VSO-0001, 24 DOE ¶ 82,751 at 85,507, 85,508 (1994) (citing "disturbing pattern of altering" documents and troubling "pattern of falsification"), aff'd (OSS March 7, 1995).

D. Mitigating Factors

Under the Part 710 regulations, I am instructed to consider the individual's motivation for his conduct. In his post-hearing submission, the individual states that "[a]ll of the issues regarding falsification of documents center on one point: they were done for the purpose of being in a combat unit, not for personal gain." Post-hearing brief of individual at 3. However, the individual did not need to be a pilot to serve in a combat unit, as he so valorously demonstrated during two tours of duty in Vietnam. Tr. at 125-30. In any event, there is no evidence that the individual's conduct was motivated by a desire for personal gain. And there is ample evidence that the individual has selflessly and courageously served his country throughout his life, and that he altered documents so he could serve once again, this time as an Army pilot.

However, even these noble intentions cannot excuse the conduct in the present case, and do not lessen the resulting security concerns. As DOE security investigator XXXXXXXXX pointed out, an individual who is willing to break the rules by falsifying documents may also not follow rules in the security context. Tr. at 113. The individual argues that nothing in his "long history of classified work suggests that he has ever compromised his country's security." Post-hearing brief of individual at 4. However, a hearing officer must determine whether an individual's behavior in the future "will not endanger the common defense and security and will be clearly consistent with the national interest to grant or continue access authorization to the individual . . . ." 10 C.F.R. § 710.27(d). Unfortunately, the individual's past and continuing pattern of dishonest conduct indicates that he may not follow the rules in the future when they appear to him to amount to "bureaucratic hassle." Tr. at 139. The demonstrated willingness of an individual with access authorization -- even the most decorated war hero -- to decide unilaterally which rules are worth following and which are not can present a risk to the common defense and security, despite that individual's best intentions.

VI. Conclusion

As explained in this Opinion, I am convinced that the DOE properly invoked 10 C.F.R. § 710.8(f) and (l) in suspending the individual's access authorization. In view of this criteria and the record before me, I cannot find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I find that the individual's "Q" access authorization should not be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, U.S. Department of Energy, Washington, DC 20585-0107, and served on the party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b). The address to which submissions must be sent for purposes of serving them on the Office of Security Affairs is as follows:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874-1290

Steven J. Goering

Hearing Officer

Office of Hearings and Appeals

<1>Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a). Such authorization will be referred to variously in this Opinion as access authorization, security clearance, or "Q" clearance.

<2>The DOE several times in its Notification Letter characterizes the individual's retirement from the Army Active Reserve as "involuntary." Notification Letter at Enclosure 1. However, the record does not support this characterization. The individual was given a choice between transferring to the Retired Reserve in lieu of involuntary separation, resigning as a Reserve Commissioned Officer in lieu of involuntary separation, and requesting a hearing before a board of officers. DOE Exhibits 5(g)(1), 5(g)(2).

<3>The record indicates that the term "naval aviator" as used by the Navy applies to both pilots and naval flight officers. See, e.g., Individual's Exhibits 9, 44.