Case No. VSO-0114, 26 DOE ¶ 82,770 (H.O. Wieker March 5, 1997)

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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 XXXXXXX's.

March 5, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: September 23, 1996

Case Number: VSO-0114

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

I. PROCEDURAL BACKGROUND

This administrative review proceeding was commenced by the issuance of a Notification Letter to the individual. That Notification Letter stated that information in the possession of a Department of Energy Office (DOE Office) created a substantial doubt concerning the individual's eligibility for an access authorization. The Notification Letter specified that the individual has an "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. Such a mental illness is a security concern pursuant to 10 C.F.R. § 710.8(h) (Criterion H). In addition the Notification Letter specified that the individual engaged in "unusual conduct" which tends to show that the individual is not honest, reliable or trustworthy and therefore constitutes a security concern pursuant to 10 C.F.R. § 710.8(l) (Criterion L).

The individual requested a hearing. The Operations Office forwarded the request to the Office of Hearings and Appeals (OHA). I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was held.

Eight witnesses gave testimony at the hearing. Two witnesses were called by the Operations Office. The first was a DOE Security Specialist. The second was the DOE consulting psychiatrist. The individual called five witnesses. They included his wife, two co- workers, his mother-in-law and the Bishop in his church. The individual also testified at the hearing.

II. STANDARD OF REVIEW

Administrative review is authorized when the existence of derogatory information leaves unresolved questions about an individual's eligibility for access authorization. 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).

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. In this type of case, we are dealing with a different standard which is designed to protect national security interests. The burden is on the individual to come forward at the hearing with testimony or evidence to convince the Hearing Officer that restoring his access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.27(d).

III. CRITERION L SECURITY CONCERN

Security concerns under Criterion L relate to whether an individual has engaged in unusual conduct which tends to show he is not honest, reliable, or trustworthy. The Notification Letter referred to the following four actions or activities engaged in by the individual as raising a concern that the individual is not reliable:

1. The individual failed to properly divulge his past use of illegal drugs on the security supplement he filed with his DOE contractor employer. Transcript at 44.

2. The individual disclosed two of his extra marital sexual relationships to the OPM investigator. However, the individual failed to disclose the third relationship.

3. For a ten year period the individual engaged in sexual activities outside of marriage. During that period the individual kept these activities secret from his wife. Transcript at 43.

4. The individual attempted to keep his use of alcohol secret from his wife. Transcript at 44.

At the Hearing the DOE counsel summarized this concern regarding the individual "Again it's our position that he's (the individual) got a pattern of misrepresenting situations." Transcript at 36.

The individual admits that each of the four factual bases underlying the Notification Letter specified above is correct. The individual has two types of responses. With regard to the first two concerns set forth above, he provides an explanation of his reasons for failing to make those disclosures. The second response is a showing that the individual's relationship with his wife has improved and therefore the secretiveness described in three and four above is not likely to recur.

A. The Individual's Responses to the Criterion L Security Concerns

1. Failure to Disclose

The individual attempted to convince me that the first two actions described above do not demonstrate significant dishonesty. He explains that his failure to disclose his past drug use on his employment form conforms to a generally accepted pattern in answering such questions. He thinks that most people do not disclose drug use that occurred more than 15 years prior to the date of an employment application. He believes that he would not have been hired had he told the truth about his drug use. Therefore, he believes his failure to accurately fill out the form should not be considered a security concern. With regard to his failure to tell the OPM investigator about his third extra marital relationship, the individual explains that he was afraid that disclosing the third relationship,(1) which was the only one that took place at the DOE site, would cause him to lose his job. He therefore believes it was reasonable not to disclose that relationship.

2. Secretiveness

The individual's argument with respect to his secretiveness in his marriage (actions three and four described above) is a claim that his marriage difficulties have been overcome and therefore the DOE need have no concern that his secretive behavior will recur. The individual presented substantial testimony to show how he is working to improve his relationship with his wife. Transcript at 53. The testimony of his wife, mother-in-law and Bishop indicate that he has divulged his sexual relationships and drinking to these individuals. Both his wife and mother-in-law testified that they have forgiven him for his actions. The individual's wife testified that the couple had received six months of treatment from a marriage counselor. Transcript at 77. She believed that the marriage counselor has improved the communication in their marriage and improved their relationship.

Further, the individual presented testimony from his church Bishop to the effect that the individual and his wife came to him approximately forty times for marriage and general counseling. According to the Bishop those counseling sessions lasted from one to three hours (Transcript at 186) during the period April 1994 through September 1995. Transcript at 184. The Bishop's clear testimony was that during those sessions the individual and his wife described in detail the couple's marital problems.(2) The Bishop testified that over that period he acted as a facilitator in the couple's efforts to work toward a more open relationship. The testimony indicated that the Bishop, the individual and his wife believe these discussions have improved the couple's relationship. The thrust of the individual's contentions is that his disclosures and counseling have been an effective treatment for his marital problems and should mitigate the DOE security concern caused by his pattern of secretiveness. Transcript at 78.

B. Analysis of Individual's Responses

1. Failure to Disclose Information

The individual's explanation for his failure to list his past drug use on his employment form and his failure to divulge his third sexual relationship to the OPM investigator fails to convince me that those falsehoods do not represent security concerns. The individual's failure to divulge his past drug use and provide a complete account to the OPM investigator indicate outright dishonesty. It is not appropriate for an individual holding a security clearance to decide when it is appropriate in a business context, or in a work-related context, not to tell the truth. I find that his current argument that these were reasonable actions supports the security concern regarding his honesty, reliability and trustworthiness. The relationship between the DOE and a security clearance holder is based on trust. If the DOE is unable to rely on information that the individual provides, it is impossible to trust him to follow security rules and regulations.

I therefore find the individual has failed to mitigate the security concerns raised by factual items described in the Notification Letter and listed as one and two above.

2. Marriage Rehabilitation Argument

The individual testified that he has spent a significant period of time working to improve the communication in his marriage. During the hearing, the individual's wife testified that she believed he has become much more open and honest in his marriage.

Improvements in his marriage through rebuilding of trust are necessary to a showing that the individual is rehabilitated from his deceptive pattern of behavior. However, I do not believe that a showing that he has improved his marriage communication is sufficient to establish that the individual has mitigated the security concern which relates to his deceptive pattern of dealing with others. The fact that he has been so successful for so many years at keeping secrets is an indication that deception is an established pattern of behavior for this individual. In order to show rehabilitation from this pattern, he must provide a reasonable basis to believe that the pattern will not recur.

When I asked his wife to be as specific as possible about why she believes her husband will not repeat his pattern of deception, she was uncertain whether he would return to his former behavior.

Q. (Hearing Officer): ... With an ingrained pattern of deception and kind of an unusual pattern the department feels -- they feel that he is a higher security risk in the future. And if he's changed, the more specifically you can describe the changes the better it is.

A.(Individual's wife)- I understand that. Sometimes I feel that way too. How can I be certain? I think throughout (the individual's) life though he has gotten away with so many things that he thought maybe he was kind of invincible. But this time I think what he's gone through -- I don't know of very many people that would go through what (the individual) has gone through to -- you know, to save his family and his marriage. He has -- you know, he's made it public. He's, you know, really tried to cooperate with everybody. It's been very painful on him.

Transcript at 80-81. Thus, even his wife would not speculate as to whether the individual would be dishonest in personal relationships in the future. She clearly believes that her husband has suffered considerably for his actions and has worked to improve their marriage. However, suffering in and of itself is not an indicator that he will be more honest in the future.

The strongest testimony that the individual had received treatment for his pattern of not being honest was from his Bishop. The Bishop, without hearing any of the other testimony, described the individual's problem in the following way:

... that he ...felt like he had a need to prove himself someplace, or he was struggling with his feeling of self- worth and was trying to prove something to himself. That's what he felt. ... In my own personal opinion I think he's been struggling much of his life to find a basis for self-esteem and to feel good about himself.

Transcript at 167. This description of the individual's problem and his testimony regarding specific facts indicated that the Bishop had a clear understanding of the individual's behavior and thought processes. The Bishop had spent a great deal of time with the individual. I was also convinced that although he had no formal training in counseling he had the skills necessary to show the individual how to work to improve his marriage.

However, the DOE's security concern involves the likelihood of further deceptive behavior. The Bishop held a lay position in the church and clearly did not claim to be an expert in such matters. He was not willing to speculate about the future behavior of the individual in his dealings with others. Transcript at 176-86. Moreover, there was no testimony regarding the efficacy of the Bishop's counseling on the individual's secretive behavior pattern.(3) In this case, without expert testimony concerning the efficacy of the treatment received, I find the individual has failed to bring forth any credible evidence to convince me that the treatment he received has mitigated the security concern relating to dishonesty in dealing with others.

The conclusion that the individual continues his deceptive behavior pattern is supported by my overall impression of his demeanor at the hearing. I noted a lack of candor in his responses to questions. The following exchange is a typical example of his evasiveness in providing information:

Q.(DOE Counsel)- So in that instance you were talking about a fifth as being a bottle, correct?

A.- I guess, if that's what it says.

Q.- And she asked you about whether you had been drunk before? Do you remember what your response was?

A.- If I had been drunk?

Q.- Yes

A.- Had I ever been drunk, period? Yes, I've been drunk before.

Q.- Okay. Do you know how many times you've been drunk?

A.- In my whole life are we talking here? Are we talking -- I would have no idea how to answer that.

Q.- Well, let me ask you this: Based on your drinking, did you usually get drunk when drinking?

A.- That again is a -- what do you consider drunk? Stumbling? Falling down the stairs? Slurred speech?

Transcript at 215.

His combative style of answering questions indicates a pattern of unwillingness to provide information. His unwillingness to provide direct answers confirms the DOE concern that the individual is not forthright in discussing unfavorable information. See Personnel Security Hearing, 25 DOE ¶ 82,765 (1995).

His lack of openness was also evidenced by his unwillingness to readily provide specific answers to questions posed at the hearing. He was reticent about giving his best recollection as to even the most basic details:

Q.(DOE Counsel)- How many days passed between the time that the Office of Personnel Management asked you to sign a release and the time you finally agreed to do it?

A.- I don't recall.

Q.- You said there were a number of phone calls?

A.- Yes.

Q.- Okay. So it sounds like it was several days or weeks or whatever?

A.- Possibly. I don't recall exactly how long it was.

Transcript at 208.

Another example of his lack of candor related to the requirement in my November 4, 1996, letter that he submit a written witness list by December 10, 1996. He failed to submit the list. In our prehearing conference and during the hearing the individual left the impression that his failure to submit information was because he did not generally understand what was expected of him. However, when I indicated to him at the hearing that he should have submitted a witness list with a description of the testimony that each witness was to provide, he correctly stated that I only specified that he was to submit a witness list. Transcript at 194. The individual's ability to accurately remember the details of my letter belies the confused understanding of the Hearing process that he generally portrayed. I believe he was not candid when he indicated that he was unable to comply with the requirements of the Hearing process.

I found the individual's overall attitude at the hearing to be one of expedience. He exhibited a pattern of self justification. He was always in a hurry to provide an answer that he believed would end the discussion, rather than be complete and informative. He often avoided taking responsibility by justifying his actions on the basis of the failures of others. This pattern of behavior confirms the security concern that he continues a pattern of dishonesty in dealing with others. I therefore find the individual has failed to mitigate the DOE security concern raised under criterion L.

IV. ANALYSIS OF CRITERION H SECURITY CONCERN

The Criterion H security concern is based on the DOE consulting psychiatrist's diagnosis that the individual has a mental condition that adversely affects his judgment. In his testimony at the hearing, he summarized the diagnosis in his written report as follows:

And I see him as a mixture of a narcissistic personality, a dependent type personality, avoidant type personality, and I think he has compulsive obsessive defense mechanisms, meaning that when things are not working well for him I think he becomes very obsessed about certain things and will absolutely miss the big issues and focus in on the little things.

Transcript at 104.

The DOE consulting psychiatrist's January 8, 1996, report and his testimony make clear that the individual has a serious personality disorder. The DOE consulting psychiatrist clearly indicated that the individual's disorder causes a defect in judgment which could result in serious security lapses. The individual has failed to present evidence to mitigate the concerns raised by the consulting psychiatrist. The Notification Letter indicated that in June 1995 the individual received a week of inpatient psychiatric care at a Health Center. This was followed up by counseling with a treating psychiatrist and a marriage counselor. However, the individual did not present records or testimony from either of these individuals. The only specific testimony regarding the prognosis at the end of this treatment was from the Security Specialist who indicated that there was no prognosis in the information that the DOE received from the Health Center. Transcript at 59.

Prior to the hearing, the individual indicated he had contacted a psychiatrist to perform an evaluation ("evaluating psychiatrist"). He indicated that she had previously evaluated him. However, he asserted that he was unable to arrange for her to do an updated evaluation prior to the hearing. He explained the scheduling difficulties were caused by the evaluating psychiatrist. However, he did not follow through on my suggestion that he submit a letter from the evaluating psychiatrist's office supporting his assertion that she was unable to see him prior to the hearing. He also chose not to submit any previous evaluation she had written. However, he indicated he had scheduled an evaluation session with her for a few weeks after the hearing.

At the end of the hearing, I discussed with the individual the necessity of providing the evaluating psychiatrist with documents that describe the DOE concerns and the treatment he has received. I pointed out that without a full understanding of the individual's problems it would be difficult for the evaluating psychiatrist's report to comment on the relationship between the individual's treatment and his specific problems. I indicated that the individual should think about the types of information he was going to provide her prior to their evaluation session.

Q. (Hearing Officer)- And to get an informed opinion it's going to require some work on your part.

A.- Right.

Q.- If you don't do that, I mean it's not going to get done.

A.- Okay

Q.- You need to lay out what happened and frame the issue further with your doctor, make sure she gets the documents. Because you need something to work with...

Transcript at 258.

I confirmed the understanding in a letter dated six days after the hearing.

At the [date of hearing] hearing regarding your clearance, you indicated that you have an appointment with your psychiatrist on [date of appointment]. You indicated you would send her 1) the [consulting psychiatrist's] report and 2) your description of the counseling session you had with your Bishop. I also recommend that you give her a copy of your Personnel Security Interview. You said you would provide her with that background information prior to your appointment.

The individual decided not to provide the evaluating psychiatrist with a written description of his consulting session with the Bishop. He also did not provide the evaluation psychiatrist with a copy of the DOE consulting psychiatrist's report prior to his scheduled appointment.(4)

Finally, despite a two week extension of time granted in a second post-hearing letter the individual did not file a written report from the evaluating psychiatrist. Nor did he provide a timely explanation for his failure to submit the report, or request an additional extension of time. I finally closed the record in a third post-hearing letter. Following the closing of the record, the individual indicated that he was still attempting to obtain a written evaluation from the evaluating psychiatrist. She called me twelve days after I closed the record and indicated that she had been ill for ten days and would soon send her report to me. I indicated that the report should instead be sent to the individual. I further told her that it was up to the individual to decide, after reading the report, whether to request that the record be reopened to permit the report to be submitted. I also indicated to the individual's wife, who called me on his behalf, that it was his responsibility to submit the report.

In spite of ample opportunities to supplement the record on his own behalf, the individual has taken no steps to submit the psychiatric evaluation in a timely manner. I wish to emphasize that it is the burden of the individual in security clearance cases to determine what information is necessary in order to establish that his access authorization should be restored. He must also arrange for that information to be prepared and submitted to the Hearing Officer. The illness of the evaluating psychiatrist does not change this burden. Regardless of any problems that the evaluating psychiatrist in this case may have had, the individual was responsible for ensuring that I receive the documentation necessary to support his position that his clearance should be restored. He failed to meet this obligation.

The DOE consulting psychiatrist's diagnosis and testimony are therefore unchallenged. I therefore find the individual has failed to present any mitigation of the DOE Criterion H Security Concern.

V. CONCLUSION

I have not been persuaded by the individual that restoring his access authorization would be clearly consistent with the national interest. Accordingly, I find that the individual's 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 the 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, 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.

Thomas L. Wieker

Hearing Officer

Office of Hearings and Appeals

Date: March 5, 1997

(1) The first two relationships took place prior to the individual's employment at the DOE site.

(2) In addition to these sessions, the Bishop testified that there were a number of telephone calls to discuss the individual's problems.

(3) Prior to the hearing, the individual characterized the Bishop as a character witness and failed to disclose his counseling sessions with his Bishop. I was therefore surprised by the nature of the testimony of the Bishop at the Hearing. Transcript at 191. Because the Bishop's testimony occurred after the departure of the DOE psychiatrist, there was no opportunity to obtain testimony from the DOE psychiatrist about the benefit of such counseling. Since the DOE psychiatrist was the only professional counselor or psychiatrist to present testimony, without his evaluation there was no professional testimony about the rehabilitative effect of the counseling (treatment) on the individual's pattern of dishonesty in dealing with others.

(4) In a post-hearing letter he explained his failure to submit a description of his counseling session by indicating he discussed the matter with his Bishop "...and we felt that the information given at the hearing was as much as we can give, since there is no written record to go by." He also explained his failure to provide information to the evaluating psychiatrist on the basis of his assumption that the consulting psychiatrist would provide the necessary information.