Case No. VSO-0096, 26 DOE ¶ 82,756 (H.O. Hochstadt Sept. 12, 1996)

Case No. VSO-0096, 26 DOE ¶ 82,756 (H.O. Hochstadt Sept. 12, 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: April 29, 1996

Case Number: VSO-0096

This Opinion concerns the eligibility of XXXXXXXXXXXXXXXX (hereinafter referred to as "the Individual") to obtain 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>As explained below, based upon the record before me, I am of the opinion that the Individual should not be granted access authorization.

I. BACKGROUND

In September 1994, the Individual applied for employment with a contractor at the Department of Energy's XXXXXXXXXXXXXXXXXXXXXXX in XXXXXXXXXXXXXXXXX. Before he could be hired, it was necessary that he obtain a security clearance. The Individual was therefore required to complete a Standard Form 86, Questionnaire for Sensitive Positions (QSP). As a result of information obtained from a full field background investigation conducted by the Office of Personnel Management (OPM), a personnel security interview (PSI) held on May 3, 1995, and a psychiatric evaluation on August 31, 1995, the Manager of the DOE's XXXXX Operations Office (DOE/OR) notified the Individual, in a letter dated January 18, 1996 (Notification Letter), that information possessed by the DOE created a substantial doubt concerning his eligibility for access authorization.

The Notification Letter specifies three areas of derogatory information described in 10 C.F.R. § 710.8. First, under Criterion F (10 C.F.R. § 710.8(f)), DOE/OR alleges that the Individual "deliberately misrepresented, falsified, or omitted significant information" in his responses to seven questions in the QSP. Notification Letter Enclosure 1 at 1-3. Second, DOE/OR alleges that the Individual has been or is "a user of alcohol habitually to excess, or [has] been diagnosed by a board-certified psychiatrist . . . as suffering from alcohol abuse," which is derogatory information under 10 C.F.R. § 710.8(j) (Criterion J). This allegation is based primarily on three arrests for driving while under the influence of alcohol (DUI) and the August 31, 1995 psychiatric evaluation. Notification Letter Enclosure 1 at 3-5.

Third, the Notification Letter presents allegations under Criterion L (10 C.F.R. § 710.8(l)). That criterion consists of derogatory information to the effect that an individual has engaged in unusual conduct or is subject to circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interests of the national security. The specific conduct referred to in the Notification Letter involves arrests on a variety of charges during the period from April 1968 through July 1994 and alleged financial irresponsibility. Notification Letter Enclosure 1 at 6-8.

In an undated letter received by DOE/OR on March 26, 1996, the Individual requested a hearing without filing a separate written response to the allegations in the Notification Letter. Under the regulations, such a request for a hearing is deemed a general denial of all of the reported information listed in the Notification Letter. 10 C.F.R. § 710.21(b)(5). The request for a hearing, together with a copy of the Notification Letter, was forwarded by DOE/OR to the Office of Hearings and Appeals (OHA), which received the submission on April 29, 1996. I was appointed the Hearing Officer in this matter on May 2, 1996. The DOE Counsel filed eight enumerated exhibits with the OHA on June 19, 1996. These exhibits include the QSP (included in Exhibit 6), the transcript of the PSI (hereinafter cited as "PSI Tr.") and a Personal Financial Statement signed and dated by the Individual on May 3, 1995 (both included as part of Exhibit 7), and Dr. XXXXX's psychiatric evaluation (included in Exhibit 8). In accordance with OHA practice, these exhibits became part of the record of this proceeding upon filing with OHA. The Individual was advised of his right to submit documents in support of his position, but did not do so.

The hearing in this matter was held on XXXXXXXXXXXXX. See Transcript of Hearing, Case No. VSO-0096 (hereinafter cited as "Hearing Tr."). At the hearing, DOE Counsel presented two witnesses: a DOE Personnel Security Specialist and Dr. XXXXX. The Individual testified on his own behalf, but did not present any witnesses. I received the hearing transcript on August 27, 1996.

II. FINDINGS OF FACT AND ANALYSIS

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency and the individual, and to render an opinion based on that evidence. See 10 C.F.R. § 710.27(a). The 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). Among the factors

I have considered in rendering this Opinion are: 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 presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct, the potential for pressure, coercion, exploitation, or duress; and the likelihood of continuation or recurrence. See 10 C.F.R. §§ 710.7(c), 710.27(a). The discussion below reflects my application of these factors to the information presented by DOE/OR in this case and to the testimony presented by the Individual.

Although the Individual for the most part does not contest the specific factual statements in the Notification Letter, he does deny factual conclusions based upon those statements. For example, while he acknowledged three arrests for DUI, he contended that he was not legally intoxicated on those occasions and therefore does not have a history of alcohol abuse. It must be emphasized that a DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. See Personnel Security Hearing (Case No. VSO-0078), 25 DOE ¶ 82,802 (XXXXX), aff'd, 25 DOE ¶ 83,016 (1996). In this type of case, we are dealing with a different standard which is designed to protect national security interests. A hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising security concerns, the burden is on the individual to come forward at the hearing with evidence to convince the DOE that granting him access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." Personnel Security Hearing, 25 DOE ¶ 82,802 at 85,834 (quoting 10 C.F.R. § 710.27(d)). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Oak Ridge Operations Office (Case No. VSA-0057), 25 DOE ¶ 83,009 at 86,539 (1996) (citing Dep't of Navy v. Egan, 484 U.S. 518, 531 (1988), and Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 at 85,511 (1995). As discussed below, after carefully considering the entire record, I find that the Individual has not met that burden.

A. Criterion F

As mentioned above, the Notification Letter lists seven items of derogatory information in support of DOE/OR's allegation concerning Criterion F. It is important to note at the outset that this criterion does not apply to all misstatements and omissions, but only those that are deliberate and involve significant information. See Personnel Security Hearing (Case No. VSO-0041), 25 DOE ¶ 82,775 at 85,665 (1995), aff'd, 25 DOE ¶ 83,005 (1996). I will discuss each of these items seriatim.

DOE/OR claims that the Individual failed to list one of his XXXXX wives in his answer to QSP Question 18. This allegation is based on Dr. XXXXX's account of his conversation with the Individual. At the hearing, the Individual stated that, if he had mentioned a XXXXX wife to the psychiatrist, he was referring to a "common law" wife with whom he had a relationship in Illinois in 1970 and 1971. Hearing Tr. at 65. However, from the Individual's testimony about the relationship, it does not appear that it can be accurately characterized as a common law marriage, since a couple cannot validly enter into a common law marriage in XXXXX. See XXXXX Stat. Ann. XXXXX (XXXXX 1993). In addition, there is nothing else in the record to indicate that the Individual had a XXXXX marriage. Since all the evidence before me indicates that the Individual has only been married XXXXX, I find that there was no falsification in his response to Question 18.

I reach a different conclusion with respect to DOE/OR's allegation concerning QSP Question 17. According to the Notification Letter, the Individual is the father of XXXXX children, but listed only XXXXX of those children in his response to that question. Question 17 requires the person completing the form to provide the names of all relatives in any of 16 categories of relationship, including children by birth or adoption. The Individual listed XXXXX children by his current wife, but Dr. XXXXX stated in his evaluation report that the Individual told him that he had a total of XXXXX children. At the hearing, the Individual denied telling Dr. XXXXX that he was the father of XXXXX children, but did acknowledge that he was the father of XXXXX children by the woman he referred to as his common law wife. Hearing Tr. at 66. Since those children were not listed in the QSP, it is undisputed that the Individual did not list all his children in response to Question 17. While the Individual stated that he thought the question asked only about one's "current family," Id. at 67, there is nothing in the form to that effect. Question 17 asks about "all relatives, living or dead," and the Individual in fact correctly listed one deceased relative, who could not be considered a member of his current family. I therefore find that the Individual deliberately omitted significant information in his response to Question 17.

I also find that the Individual deliberately omitted information in his answer to QSP Question 22. This question asks whether, within the past 15 years, the person completing the form was fired, quit a job after being told that he would be fired, or left a job by either mutual agreement following allegations of misconduct or unsatisfactory performance or under other unfavorable circumstances. The Individual responded to this question by indicating that in May 1981 he had quit a job at XXXXXXXXXXXXXXXXXXX after being told that he would be fired. In the PSI, however, in response to a question by the DOE Security Representative, the Individual acknowledged he had been terminated from a job at XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX in April 1991. PSI Tr. at 4. Although the Individual questioned the fairness of this termination, he agreed that he had been "fired." Id.; see also Hearing Tr. at 70. In the PSI and in the hearing, he stated that he could not explain why he omitted this firing from his response to Question 22, though he denied intentionally omitting the information to hide it from the DOE.<2> PSI Tr. at 4; Hearing Tr. at 70-72. However, since he listed the 1981 XXXXXXXXXXXXXXXXXXX termination and not the relatively recent XXXXXXX termination, I am persuaded that the omission of the latter termination was deliberate.

There is also support in the record for DOE/OR's allegation that the Individual deliberately failed to report that he was charged with a weapons violation. The Individual responded "No" to QSP Question 23b ("Have you ever been charged with or convicted of a firearms or explosives offense?"). However, in the PSI he informed the Security Representative that in November 1987 he was charged

with a weapons violation. PSI Tr. at 15. Thus, his negative answer to Question 23b was false. This finding is not affected by the fact that the charges against the Individual were apparently dropped.<3>The Individual asserted that he did not read the question carefully, and did not understand that he had to answer the question in the affirmative even if the charges were dropped. Id.; Hearing Tr. at 73-74. However, the question clearly requires an affirmative answer even if one has only been arrested. Moreover, in responding to the similarly worded alcohol and drug arrest question (23d), the Individual correctly listed an arrest in a case in which he had not been convicted (the charges were still pending). I am therefore not persuaded by the Individual's explanation for his failure to reveal this arrest, and find that his negative response to Question 23b was an intentional misstatement.

I also find that the Individual deliberately failed to report one alcohol-related arrest and one drug arrest in response to Question 23d ("Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs?"). The Individual answered "Yes" to this question and listed arrests for DUI in January 1989 and July 1994. However, the OPM investigation also revealed a June 1982 arrest for possession of marijuana and a January 1990 arrest for DUI. During the PSI, the Individual acknowledged that these arrests had in fact occurred, though he stated that a police officer told him that the DUI arrest would not be on his record. PSI Tr. at 13, 16-18. Since the Individual pled guilty and paid a fine of $655, I find it hard to believe that such a statement was made by an officer or, even if it were made, that the Individual had any reasonable basis for believing it. Thus, while the Individual's affirmative response to Question 23d was truthful, his failure to list two arrests was a deliberate omission.

Furthermore, I find that the Individual intentionally failed to report delinquent debts in response to Question 27b ("Are you now over 180 days delinquent on any loan or financial obligation?"). While the individual answered "No" to this question, during the PSI, he acknowledged that he had a past due credit card balance of $1,000 with XXXXXXXXXX and had not made a payment in three or four years. PSI Tr. at 30-31. In addition, in a Personal Financial Statement that he completed on May 3, 1995, the Individual listed the following debts that were more than 180 days delinquent: VISA, $1,400 (3 years);<4> XXXXXXXXXXXXXXXXXXXXXX, $300 (3 years); AT&T, $350 (1 year); H&R Block, $154 (1 year). It is thus clear that the Individual's negative response to this question was untrue.

However, I find that DOE/OR has not substantiated its allegation that the Individual intentionally failed to report two state tax liens. The Individual responded "No" to Question 27a ("In the last 5 years, have you . . . been subject to a tax lien . . . ?"). During the PSI he was asked about state tax liens of $456 (filed in November 1992) and $468 (filed in October 1993) that appeared on his credit report. PSI Tr. at 34-35. While the Individual did not deny that he owed income tax to some states, his answers indicated that he had no specific knowledge about them. For example, he stated that the $456 debt was owed to XXXXX, id. at 34, which does not have a personal income tax. See XXXXX Const. art. XXXXX and the Commentary to that section in XXXXX Stat. Ann. (XXXXX 1995). When asked what state the $468 lien was from, the Individual, after questioning whether the lien was for him, confusingly replied: "Probably XXXXX and XXXXX, XXXXX." Id. at 35. At the hearing, the Individual denied that he had ever been notified about any state tax liens. Hearing Tr. at 107-110. Since the Individual has acknowledged that he hasn't filed certain unspecified state tax returns for 1992 and 1993, Hearing Tr. at 82, there may well be outstanding tax liens against him. However, I cannot find that he deliberately omitted reporting information about tax liens on his QSP without some evidence that he had knowledge of any such liens. No such evidence has been submitted by DOE/OR. Accordingly, I find that the Individual's negative response to Question 27a was not a deliberate misstatement.

From the above discussion it is evident that the Individual omitted significant information in response to five questions on the QSP. The Individual claimed, however, that these omissions were not deliberate and advanced a number of explanations for his failure to fully and truthfully answer these questions. None of these explanations is persuasive. For example, the Individual asserted that the omissions probably resulted from a "misunderstanding," PSI Tr. at 39; Hearing Tr. at 67, but never exactly explained what that misunderstanding was except to say that he may not have read the form carefully. Hearing Tr. at 67. He also stated that during the time he was completing the form, he was very busy, working at a job in another state 12 hours a day and trying to complete the form on those weekends when he returned home. Id. However this does not explain why he listed some children, arrests and a firing, but not others. Nor does it explain why he falsely answered "No" to two questions (firearms arrest, delinquent debts). While a single omission could be overlooked as inadvertent, here there is a pattern of omissions of significant matters such as arrests, delinquent debts and a firing. Finally, the Individual asserted that he had provided the information on some other form that he filled out at around the same time as the QSP. Id. at 66 and 81. However, he was not able to identify the form or to produce a copy it. Accordingly, I find that the Individual deliberately omitted significant information from the QSP.

I also find that DOE/OR properly concluded that these omissions raise a security concern. At the hearing, the Personnel Security Specialist indicated that the omissions present a security concern to the agency because they raise a question as to the Individual's trustworthiness. Hearing Tr. at 26. I agree with this assessment, particularly in view of the fact that several of the omissions in this case pertain to information about arrests and financial irresponsibility, which raise security concerns in their own right. It is therefore my opinion that the Individual's failure to provide the information required by the QSP creates a doubt as to whether he can be trusted to safeguard classified information or uphold security regulations. See Personnel Security Hearing (Case No. VSO-0041), 25 DOE ¶ 82,775 (1995), aff'd, 25 DOE ¶ 83,005 (1996) (Pittsburgh I).

Finally, I am not persuaded that there are any mitigating factors in this case. We are concerned here with not just one or two minor, isolated omissions, but a pattern of significant omissions. And while the individual has denied that these omissions were deliberate, it appears that, for the most part, they were intended to prevent DOE/OR from obtaining derogatory information about the Individual. I

therefore find that DOE/OR properly relied on Criterion F to deny the Individual's request for access authorization.

B. Criterion J

The information presented in the Notification Letter in support of the Criterion J allegation can be summarized as follows:

The Individual was arrested for DUI in January 1989 and January 1990. In both cases, he pled guilty and paid a fine.

The Individual was arrested for DUI in July 1994 after he had consumed three to four beers.

According to the psychiatric evaluation report prepared by Dr. XXXXX, the Individual "appear[s] to exhibit ongoing abuse of alcohol."

At the hearing, Dr. XXXXX, a board-certified psychiatrist, stated that the three DUI arrests indicated to him that the Individual had a history of recurrent alcohol abuse. Hearing Tr. at 42. The Individual claimed that he occasionally consumes "a little beer." E.g., Hearing Tr. at 58. He also denied that he was intoxicated on the occasions when he was arrested for DUI. Id.

After considering the entire record in this case, I find that DOE/OR's allegation of derogatory information under Criterion J has been established. Specifically, I find that the individual "has been diagnosed by a board-certified psychiatrist . . . as suffering from alcohol abuse." It is undisputed that a board-certified psychiatrist, Dr. XXXXX, diagnosed the Individual as an alcohol abuser. However, this does not conclude my evaluation of the Criterion J allegation. It is my responsibility as Hearing Officer to ascertain whether the factual bases underlying a psychiatric diagnosis are accurate, and whether the diagnosis provides sufficient grounds, given all the other information in the record, for the denial of a security clearance. See, e.g., Personnel Security Hearing (Case No. VSO-0068), 25 DOE ¶ 82,804 (1996). Accordingly, I have evaluated the Individual's challenge to the information upon which Dr. XXXXX's diagnosis was based. On the basis of that evaluation, I find that Dr. XXXXX's diagnosis has a factual foundation.

My acceptance of Dr. XXXXX's diagnosis of alcohol abuse is based on the fact that the Individual was arrested three times for DUI during the six years prior to the psychiatric evaluation.<5>For the following reasons, I am unable to accept the Individual's contention that he was wrongfully arrested on each occasion. First, the Individual has acknowledged drinking more than a little beer prior to

each of those arrests.<6> Secondly, he pled guilty and paid substantial fines ($500 and $655, respectively) after the arrests in January 1989 and January 1990.<7> The Individual claimed that on each occasion he pled guilty because he wanted to quickly dispose of the case so that he could get to his job in another state and not because he was in fact guilty of driving while intoxicated. Hearing Tr. at 59-61. He further asserted that he wasn't even driving when he was arrested in 1990. Id. at 60-61. While I accept the Individual's statement that he wanted to dispose of these matters quickly, I am unwilling to accept his uncorroborated statements that he was not driving under the influence of alcohol on those two occasions. A guilty plea is "an admission or confession of guilt, and as conclusive as a verdict by a jury . . . ." 21 Am. Jur. 2d Criminal Law § 490 at 806. For this reason, it would take convincing evidence for me to disregard the legal and factual implications of his guilty pleas. The Individual has not presented such evidence.

Moreover, the circumstances underlying Dr. XXXXX's diagnosis, as well as the diagnosis itself, tend to be confirmed by the fact that in February 1996 the Individual was again arrested for DUI. See Hearing Tr. at 63-64. The Individual claimed that he had not been driving, but was only moving his vehicle in a service station area. Id. Although he also asserted that he had not consumed enough alcohol to be legally intoxicated while driving, he did acknowledge having consumed "probably four or five" beers. Id. at 64. The Individual has contested this DUI charge and the case is pending. Nevertheless, this incident is consistent with the behavior pattern in the earlier DUI arrests and with his acknowledgement that he has driven after drinking. See, e.g., PSI Tr. at 5, 27.

Since there is support in the record for Dr. XXXXX's diagnosis that the Individual suffers from alcohol abuse, I find that DOE/OR properly invoked Criterion J. A person who habitually drinks alcohol to excess or is suffering from alcohol abuse does not demonstrate reliability, stability and good judgment, and, accordingly, may unwittingly divulge classified information while under the influence of alcohol. It is for this reason that Hearing Officers in DOE security clearance proceedings have consistently found that alcohol abuse and the habitual excessive use of alcohol raise important security concerns. See, e.g., Personnel Security Hearing (Case No. VSO-0018), 25 DOE ¶ 82,758, aff'd, 25 DOE ¶ 83,006 (1995); Personnel Security Hearing (Case No. VSO-0042), 25 DOE ¶ 82,771 (1995).

The Individual has not persuaded me that the security concern presented by this finding has been mitigated. While he stated in the PSI that "eventually I will quit drinking alcohol totally because I don't really like beer," PSI Tr. at 29, the fact remains that he continues to drink.<8>Moreover, he continues to exhibit poor judgment by drinking and driving. Therefore, I find that DOE/OR properly relied on Criterion J to deny the Individual's request for access authorization.

C. Criterion L

Criterion L pertains to derogatory information that an individual has:

Engaged 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 . . . .

10 C.F.R. § 710.8(l). As stated above, the Notification Letter specifies two categories of derogatory information under Criterion L. The first consists of several instances in which the Individual was arrested and the second consists of delinquent financial obligations.

1. Arrests

The Individual did not deny that these arrests occurred. However, he disputed DOE/OR's contention that the arrests raise a security concern. His responses with respect to each specific incident are discussed below.

Disorderly Conduct (April 1968). The DOE presented no information about the circumstances underlying this arrest, and the Individual had no recollection of the incident. Hearing Tr. at 74-75; PSI Tr. at 11. In view of this absence of information about an incident that occurred 28 years ago, when the Individual was only 17 and a half years old, I do not find this arrest presents a security concern.

Rape (November 1972). According to the individual, a charge of rape was brought against him in November 1972 after he had consensual sex with a girl who, unbeknownst to him, was only 16 years of age. Hearing Tr. at 75-76; PSI Tr. at 11-12. The Individual further stated that the charges against him were dropped, though he did pay "court costs" of $50.<9>Since there is no allegation or evidence of violence, this incident is one of "statutory rape," which Black's Law Dictionary defines as "[t]he unlawful sexual intercourse with a female under the age of consent." Black's Law Dictionary 1266 (5th ed. 1979). In such a case, a girl "is conclusively presumed to be incapable of consent by reason of her tender age." Id. In this case, the Individual acted improperly and in violation of the criminal code. However, he was only about 22 years old and this incident occurred almost 24 years ago. I therefore believe that this arrest does not constitute a security concern by itself, but that it must be evaluated in the context of the entire record.

Battery (January 1974). According to the Individual, as a result of a complaint lodged by his wife, he was arrested and charged with battery. During the PSI, the Individual answered "No" to a direct question as to whether he had hit his wife. PSI Tr. at 12. However, there clearly was some physical contact, as indicated by his statement at the hearing that there had been a "shoving match." Hearing Tr. at 77. The Individual's attempt to minimize this incident, e.g., by referring to it as an "argument," has not been supported by any other evidence, such as the testimony of others or the submission of the police report. While his wife dropped the charges and there have been no subsequent arrests for spousal abuse, the Individual acknowledged that he and his wife had quite a few such "arguments" during the early years of their marriage. Id. Spousal abuse is a very serious matter and even one violent act against a spouse can raise legitimate security concerns. See Personnel Security Hearing (Case No. VSO-0066), 25 DOE ¶ 82,797 at 85,811 (1996). However, from the Individual's testimony, it appears that he has learned how to avoid having violent confrontations with his wife, to whom he has now been married for more than 23 years. Hearing Tr. at 77-78.

Marijuana Possession (June 1982). According to the Individual, the marijuana was not his, but belonged to a passenger in his automobile who had dropped it on the seat when he left the car. Hearing Tr. at 78; PSI Tr. at 13. However, the Individual pled guilty to a misdemeanor drug possession charge. As I indicated above, I am constrained to accept a guilty plea as equivalent to a finding of guilty. On the other hand, this is the only drug-related incident in the record, and it happened 14 years ago. Moreover, DOE/OR has not raised this incident of marijuana possession as a security concern in its own right. See 10 C.F.R. § 710.8(k).

Illegal Transportation of Alcohol (November 1987). According to the Individual, a partially filled bottle of wine that he had left in his truck was found there by the police at the scene of an accident involving the truck. PSI Tr. at 13. The Individual further stated that he had not been drinking at the time of the accident, id. at 14, and DOE/OR does not allege that he was charged with any other alcohol-related offense at the time of this arrest. While the offense of illegal transportation of alcohol does not require any evidence of drinking,<10>in the absence of such evidence, I am not able to find that this arrest raises a security concern.

Three DUI arrests. These arrests have already been discussed in connection with the Criterion J allegation. Unlike all but one of the other arrests listed in the Notification Letter, these arrests occurred relatively recently (1989, 1990, 1994), when the Individual was a mature individual. While the Individual claimed he was not intoxicated on these occasions, he acknowledged that he had consumed several beers. Even in the case of the 1990 incident, in which the Individual asserted that he was not driving at the time of the arrest, he acknowledged that he had been driving not long before then. Hearing Tr. at 87.

Driving with a Revoked License (July 1994). The Individual explained that his license was revoked at the time of the 1989 DUI arrest, and that he had been driving without a valid license since then. PSI Tr. at 8. By the time of the hearing, the Individual was still driving with a suspended license. Hearing Tr. at 85. In response to questions during both the PSI and the hearing, the Individual stated that he had made no attempt to obtain a hardship license to enable him to lawfully drive to work.<11>PSI Tr. at 21; Hearing Tr. at 86. Although the Individual stated at the hearing that he would be eligible to regain his license "next month," Hearing Tr. at 85, he had stated virtually the same thing at the PSI 14 months before.<12> PSI Tr. at 20.

At the hearing, the Personnel Security Specialist testified that a single old arrest, by itself, would not necessarily be considered a significant security concern, but that a pattern of arrests does constitute such a concern. Hearing Tr. at 31-32. In general, I agree with the Personnel Security Specialist. A pattern of incidents may well give rise to valid security concerns even though none of the individual incidents would be significant by itself. In the present case, the arrests prior to 1989 are for unrelated offenses which for the most part occurred many years ago. While some of those charges are not very significant or do not by themselves raise security concerns, others are more serious since they reflect a lack of judgment or reliability. Of more significance are the arrests for DUI and driving with a revoked license. These relatively recent incidents clearly raise serious questions about the Individual's reliability. Driving under the influence of alcohol is reckless behavior that threatens the safety of innocent people. Driving without a valid license demonstrates a willingness to disobey the law and causes me to believe that the Individual might not willingly abide by security regulations or safeguard classified information or facilities.

The testimony that the Individual has presented to mitigate the security concerns raised by his arrests for DUI and driving without a license is unavailing. As indicated above, I am unwilling to accept his challenges to the validity of the DUI arrests, particularly in the two cases where he pled guilty. Despite statements during the PSI indicating that he intended to stop drinking and regain his license, it is undisputed that he continues to drink and drive and to disregard the law by driving without a license.

2. Delinquent Debts

The derogatory information under Criterion L also includes the state tax liens and delinquent personal debts that were discussed in connection with the Criterion F allegation. While I indicated that there was insufficient evidence for me to find that the Individual deliberately omitted information about tax liens from his QSP, I also pointed out that he had acknowledged not filing state tax returns for 1992 and 1993. Regardless of whether or not there are tax liens, the failure to file tax returns is clearly a security concern since it demonstrates a disregard of the law and raises a serious doubt as to the Individual's ability to follow security regulations.. See, e.g., Personnel Security Hearing (Case No. VSO-0048), 25 DOE ¶ 82,776 (1995), aff'd, 25 DOE ¶ 83,010 (1996). Moreover, the Individual has not presented any testimony or other information to mitigate this security concern. In the PSI, the Individual indicated that he would file the necessary state tax returns "in the very near future," PSI Tr. at 34, and "next month," id. at 36. However, as of the date of the hearing 14 months later, he had not done so. Hearing Tr. at 82. For this reason, I am unwilling to place much credence in the Individual's unsubstantiated assertion that the state taxes were "being worked on now as we speak." See id.

While the amount of the Individual's unpaid state taxes, according to DOE/OR, is less than $1,000, the amount of his other financial obligations is considerably greater.<13> To the extent that some of these debts are delinquent, security concerns are raised. See Pittsburgh I. As the Personnel Security Specialist testified, a person with a security clearance who is subject to financial pressure or stress could be influenced by an offer of money to compromise classified materials. Hearing Tr. at 22. I recognize that the financial difficulties being experienced by the Individual may have resulted from his family's modest and irregular income.<14> Nevertheless, I am not persuaded that there is sufficient mitigation of the security concerns presented by these debts. The Individual has presented no evidence to show that he is making a systematic effort to pay off his delinquent debts.<15> While he stated that he had made some payments on some of the debts, he acknowledged that he had not made any payments whatsoever on others. Hearing Tr. at 80-81. 95-96. This indicates to me that he has decided to completely ignore certain financial obligations.

III. CONCLUSION

The DOE must be able to trust that potential employees who require access authorization will act in the interest of national security. In view of the Individual's deliberate omission of significant information from his QSP, alcohol abuse, and disregard of legal requirements and financial obligations, I am of the opinion that DOE/OR properly invoked 10 C.F.R. § 710.8(f), (k) and (l) in denying his request for access authorization. I also find insufficient evidence of factors that mitigate the derogatory information in the present case. In view of the record before me, I cannot find that granting the Individual's request for access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, it is my opinion that the Individual should not be granted 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 Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, Department of Energy, 1000 Independence Ave., SW, 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 with 20 days of receipt of the statement. The address to which submissions must be sent for purposes of serving the Office of Security Affairs is:

Director

Office of Safeguards and Security

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874-1290

Ted Hochstadt

Hearing Officer

Office of Hearings and Appeals

Date:

<1>/?"Access authorization" is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. See 10 C.F.R. § 710.5. Such authorization will also be referred to in this Opinion as a "security clearance."

<2>/ To support his claim that he was not trying to hide anything, the Individual at the hearing asserted that in the PSI he had brought up the XXXXXXX termination. Hearing Tr. at 72. The Individual is mistaken. The record indicates that it was the Security Representative who raised this issue. PSI Tr. at 4.

<3>/ In the PSI the Individual stated that "the charges were dropped," but that he "had to pay a $200 fine." PSI Tr. at 15. It is not necessary to resolve this contradictory statement in order to evaluate the Question 23b falsification allegation.

<4>/ At the hearing, the DOE Counsel asserted that the VISA credit card debt was not the same as the XXXXXXXXXXXXXXX credit card debt. Hearing Tr. at 80. The Individual did not dispute that assertion and stated that the former debt had not been paid off and that no payments had been made to XXXXXXXXXX in about five years. Id. at 80, 95.

<5>/ With the exception of the DUI arrests, the only information in the record as to the extent of the Individual's alcohol consumption comes from the statements of the Individual. Although he stated that he had started drinking beer regularly when he was 16 or 17, PSI Tr. at 26, he also stated that in recent years he drinks beer (his alcoholic beverage of choice) only occasionally and was last intoxicated more than five years ago. Id. at 24-29; Hearing Tr. at 58-59. As the Personnel Security Specialist and psychiatrist suggested, however, the Individual may well be minimizing the extent of his alcohol consumption. Hearing Tr. at 28-29, 55. For example, while the Individual asserted that he drinks only a little beer, other statements of his indicate he drinks at least three or four beers at one time and sometimes more. Id. at 58, 64; see also infra note 6.

<6>/ "Approximately" three beers before the January 1989 arrest, PSI Tr. at 5; "two or three beers" before the January 1990 arrest, id. at 17-18; "three or four beers" before the July 1994 arrest, id. at 7. There is no information in the record, however, as to the Individual's blood alcohol level at the time of these arrests.

<7>/ According to the Individual, he has contested the July 1994 DUI charge and the case is still pending. Hearing Tr. at 62. He further asserted that he passed a sobriety test at the time of the arrest. Id. However, his blood alcohol level was not tested with a breathalyser. Id. at 62-63.

<8>/ According to Dr. XXXXX, in the August 1995 psychiatric interview, the Individual stated that he last drank beer in July 1994. Psychiatric Evaluation at 1. However, three months earlier, in the May 3, 1995 PSI, the Individual stated that he last had a beer the weekend prior to the PSI. PSI Tr. at 24. At the hearing, the Individual indicated that he continues to drink. Hearing Tr. at 58.

<9>/ At the hearing, the Individual could not explain why he had to pay costs if the charges were dropped. Hearing Tr. at 76. DOE/OR presented no information about the disposition of the rape charge.

<10>/ The arrest occurred in XXXXX, where the law in effect in 1987 stated in pertinent part that "no person may transport, carry, possess or have any alcoholic liquor within the passenger area of any motor vehicle except in the original container and with the seal unbroken." See XXXXX Stat. Ann. XXXXX (XXXXX 1993).

<11>/ The Individual told the PSI interviewer that, "I am going to apply for one [a hardship license] today." PSI Tr. at 21. However, at the time of the hearing 14 months later, he still had not done so.

<12>/ When the Individual was arrested for DUI in February 1996, he apparently also was charged with driving with a revoked or suspended license. See Hearing Tr. at 65.

<13>/ The Individual testified that the total amount of his debts was about "fifteen or twenty thousand dollars." Hearing Tr. at 101.

<14>/ The Personnel Security Specialist and Dr. XXXXX opined that the Individual's financial difficulties could have resulted from alcohol problems or a mental condition, respectively. Hearing Tr. at 22, 29, 45. While either explanation is possible, there is insufficient evidence in the record for me to find that the Individual's financial difficulties are attributable to either cause.

<15>/ At the hearing I gave the Individual 30 days to submit such documentation. Hearing Tr. at 107. No such evidence has been submitted.