Case No. VSO-0118, 26 DOE ¶ 82,769 (H.O. Goering February 7, 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 XXXXX's.

February 7, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:October 8, 1996

Case Number: VSO-0118

This Opinion concerns the eligibility of XXXXX (the individual) to hold an 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 August 8, 1996, the individual's access authorization was suspended by the Manager of a Department of Energy operations office (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 am of the opinion that the individual's access authorization should not be restored.

I. Background

The individual is currently employed by a DOE contractor. On November 12, 1995, the individual was arrested and charged with domestic violence and aggravated assault. After the individual reported this arrest to the DOE, the DOE conducted a Personnel Security Interview (PSI) with the individual. The DOE determined that derogatory information concerning the individual created a substantial doubt about his eligibility for an access authorization. Specifically, that determination was based on the individual's criminal record and allegations that the individual had provided false information to the DOE. Accordingly, the DOE obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

On September 5, 1996, DOE commenced the administrative review proceeding by issuing a Notification Letter to the individual. The Notification Letter specifically identified the derogatory information at issue and explained how that information came within the purview of two criteria set forth in 10 C.F.R. § 710.8, which are discussed in Section II below. In addition, the Notification Letter informed the individual of his right under the regulations to file a written response to the derogatory information and to request a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization.

On October 4, 1996, the individual requested a hearing concerning this matter. DOE transmitted the individual's hearing request, pursuant to the provisions of 10 C.F.R. § 710.25(a), to the Director of the Office of Hearings and Appeals (OHA), who received it on October 8, 1996. The OHA Director appointed me as Hearing Officer in this case on October 15, 1996. I subsequently convened a hearing in this matter.

At the hearing, the individual was represented by counsel, testified on his own behalf, and called seven witnesses, including his former girlfriend, former girlfriend's son, ex-wife, supervisors, a counselor, and a substance abuse specialist. The DOE called to testify the police officer who arrested the individual in November 1995. See Transcript of Personnel Security Hearing [hereinafter Hearing Tr.].

II. Substantive Regulatory Criteria At Issue

As noted above, the Notification Letter included a specific description of information in the possession of the DOE that the agency regards as derogatory and which, in the opinion of the DOE, creates a substantial doubt as to the individual's eligibility to hold a security clearance. The information concerned the following items: (1) the individual's criminal record, (2) the events leading to his November 1995 arrest and an earlier arrest in March 1994, and (3) statements made by the individual at the PSI. According to the Notification Letter, the information falls within the ambit of two regulatory criteria, paragraphs (f) and (l) of 10 C.F.R. § 710.8. Criterion (f) concerns information revealing 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. Analysis

I have thoroughly considered the record of this proceeding, including the submissions of the parties, the evidence presented and the testimony of the witnesses at the hearing convened in this matter. In resolving the question of the individual's eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c): the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of the participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure coercion, exploitation, or duress; the likelihood of continuance or recurrence; and other relevant and material factors. After due deliberation, it is my opinion that the individual's access authorization should not be restored since I am unable to conclude that such restoration would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings which I make in support of this determination are discussed below.

Because the allegations of falsification raised by the DOE under 10 C.F.R. § 710.8(f) relate solely to the conduct of the individual alleged under 10 C.F.R. § 710.8(l), I will begin my analysis with a discussion of that conduct. After I have made my findings regarding the individual's alleged conduct, I will discuss the alleged falsification by the individual about his conduct.

A. Section 710.8(l), Unusual Conduct

The derogatory information alleged by the DOE under Criterion (l) concerns a number of criminal charges brought against the individual, and the events leading to those charges. Notification Letter, Enclosure 1 at 3-4. Criminal conduct is a security concern because it indicates that an individual has willfully disregarded the law, exercised bad judgement as to what is appropriate behavior, and/or despite and against his or her better judgment, has been unable to control his or her behavior. Such conduct increases the risk that the individual will in the future not obey laws, regulations, or rules pertaining to security.

A charge of criminal conduct, per se, does not raise an unresolvable security concern. For example, in September 1972 the individual was charged with Disorderly Conduct and Menacing Threats and Threatening in a Menacing Manner, both of which charges stemmed from the same incident. Id. However, the record indicates that the individual was found not guilty of Disorderly Conduct and Menacing Threats and that the disposition of the charge of Threatening in a Menacing Manner is unknown. Id. Thus, the existence of a criminal charge on an individual's record does not lead inexorably to the conclusion that criminal conduct occurred. On the other hand, even though a trier of fact in a criminal proceeding has found reasonable doubt as to the individual's guilt, resulting in a judgment of not guilty, a Hearing Officer in an administrative review proceeding under Part 710 could nonetheless find that it is more likely than not that the individual did engage in conduct that tends to show that the individual is not honest, reliable, or trustworthy. Such a finding would, of course, have to be based on evidence in the record.

1. Charges During the Period 1971-73

First, as mentioned above, the September 1972 charge against the individual of Disorderly Conduct and Menacing Threats resulted in a finding of not guilty and the disposition of the Threatening in a Menacing Manner charge resulting from the same incident is unknown. Similarly, the Notification Letter states that the disposition of the September 1972 Probation Violation charge is unknown. Neither is there any other evidence in the record relating to these charges. There are in the record charges of Breaking and Entering and Grand Larceny in March 1971 and Disorderly Conduct in June 1973 which have not been disputed by the individual. However, these charges and the other charges during this period were brought over 23 years ago. Moreover, the events occurred when the individual was a relatively young man in his late teens and early 20s. Because of the benign or unknown disposition of some of the charges of this period and the long period of time that has passed since these all of these charges were brought, and mindful that Part 710 requires me to take into account the recency of the individual's conduct, I assign little weight, as security concerns, to the criminal charges brought against the individual in the early 1970s. See 10 C.F.R. § 710.7(c). Nonetheless, I cannot completely ignore the undisputed charges from this period in reaching my opinion, but must evaluate them in the context of the entire record. Personnel Security Hearing (Case No. VSO-0096), 26 DOE ¶ 82,756 at 85,543 (1996) (affirmed by the DOE Office of Security Affairs (OSA)).

2. Charges During the Period 1985-89

In April 1985, the individual was found guilty of reckless driving, and was fined $50 plus costs. Notification Letter, Enclosure 1 at 4. The individual was arrested for driving while intoxicated (DWI) on two occasions, in April 1986 and December 1987. Id. at 3-4. In response to the first DWI charge, the individual pled guilty, was fined $225 plus costs, and was sentenced to three days in jail. After the second DWI arrest, the individual was found guilty, fined $450 plus costs, and was sentenced to 45 days in jail. Reckless driving in general, and in particular driving while under the influence of alcohol or other drugs clearly demonstrates a serious lack of judgment, and therefore presents a security concern. See Personnel Security Hearing (Case No. VSO-0096), 26 DOE ¶ 82,756 at 85,541 (1996) (affirmed by OSA) ("Driving under the influence of alcohol is reckless behavior that threatens the safety of innocent people.").

Regarding the 1985 incident of reckless driving and the first instance of driving while intoxicated in 1986, the individual has provided no explanation of the circumstances surrounding the events that would mitigate the concerns raised by his behavior. Though the individual testified that he had not had "very much" to drink prior to his first DWI arrest, Hearing Tr. at 153, this testimony is undermined by the fact, to which he admitted by pleading guilty, that he was found to have been too intoxicated to be driving safely.

The individual's second DWI arrest occurred after he had been attending a wake for his aunt. Tr. at 153-55. The individual related at the hearing,

Well, my mother's sister, who was like a mother to me. She was more of a mother than my mother was. She had passed. And I went down to sit with the family. And I went down and sat with the family for a while, and then I told them I was going to leave and go home. Cause I had to go to work the next day. And I went home, and I couldn't sleep. So I went back down and sat with the family some more. And while I was down there, my cousin had asked me how come I didn't go to sleep. And I told her, I said I couldn't go to sleep. And she said, well, when I went out to the hospital, they gave me some pills because I was upset. She said, that would calm her down. She said, here, she said, take one of them. I said, okay. So I took one of them. Then maybe a half hour or longer, someone offered me a beer, and I drank a beer. And I told them, I said, cause beer makes me sleepy. And I left to go home. And on the way home, I was approximately four or five houses from my house, and the officer stopped me and said I came to a rolling stop at a stop sign. And he asked me if I'd had anything to drink. And I said, yeah, I drank a beer earlier. And he said, well, I want to give you a sobriety test. So I went to get out of the vehicle, and my legs were like rubber.

Hearing Tr. at 153-54. The attorney for the individual argued that this

was a highly unusual incident at a very stressful time with the death of a close relative. And it was essentially an interaction, and perhaps wasn't so wise in taking something that a family member had given him. But it was an upsetting time. And he had no way to know of the strong reaction that that drug would cause with a single beer, and didn't realize the effect it would have on him.

Hearing Tr. at 170-71.

There is no doubt that the death of a loved one can cause a great deal of stress in anyone's life. However, even if I were to find that the individual's behavior was solely the result of the impact of his aunt's death, I would be troubled by the possibility that a similar stressor could trigger a comparable lapse of judgment in the future.

In February 1989, the individual was charged with Disorderly Conduct (Fighting). The individual testified that on this occasion he went into a club and was approached by the ex-husband of his then current wife, who "grabbed me in the collar, and punched me in the nose." Hearing Tr. at 137. The individual stated that he did not strike back, and that the club was being patrolled by police officers, who gave him and the other man a citation. Id. According to the record, the individual paid a $46 "waiver." Notification Letter, Enclosure 1 at 4. The record does not indicate whether this waiver constituted an admission of guilt or a plea of no contest. However, the fact that the individual at the least did not contest the charge makes it difficult for me to accept his present claim of innocence.(2) I conclude that the individual's uncorroborated testimony regarding this incident does not sufficiently mitigate the concern raised by the Disorderly Conduct charge.

In reaching my opinion, I must take into account the fact that the events of the late 1980s described above took place almost eight to twelve years ago. See 10 C.F.R. § 710.7(c) (applicable factors include "recency of the conduct"). With particular regard to the two DWI charges, the attorney for the individual correctly noted that "there has been absolutely no incident of any kind like that for more than nine years." Hearing Tr. at 171.(3) I cannot simply disregard these events, however. First, although even the most recent of these criminal charges was brought nearly a decade ago, the individual was a mature adult in his 30s at the time. Second, it is reasonable to consider the individual's actions in the 1980s as part of a larger pattern of conduct, even if those actions in and of themselves do not constitute a security concern sufficient to warrant a revocation of access authorization. See Personnel Security Hearing (Case No. VSO-0096), 26 DOE ¶ 82,756 at 85,544 (1996) (affirmed by OSA) ("A pattern of incidents may well give rise to valid security concerns even though none of the individual incidents would be significant by itself."). With this in mind, I will now consider the two most recent events cited by the DOE as a basis under Criterion (l) for suspending the individual's security clearance.

3. Charges in 1994 and 1995

In March 1994, the individual was arrested and charged with Domestic Violence, to which he pled no contest. The individual was again arrested in November 1995, and this time charged with Domestic Violence and Aggravated Assault. These two charges were brought before a Grand Jury, which indicted the individual on the Domestic Violence charge, but did not return an indictment on the charge of Aggravated Assault. DOE Exhibit 12. As a result of a plea agreement, the Domestic Violence charge was reduced from a felony to a misdemeanor, to which the individual pled guilty. Id. The provision of the state criminal code governing the charge of domestic violence prohibits causing, attempting to cause, or recklessly causing physical harm to a family or household member. The statute also prohibits threatening behavior that would cause a family or household member to believe he is in imminent danger of physical harm. XXXXX Rev. Code Ann. XXXXX (XXXXX

1996).

For the purposes of this proceeding, the individual's pleas of no contest and guilty to charges of Domestic Violence do not create an unrebuttable presumption that he in fact committed the crimes with which he was charged. However, it is evidence of guilt that must be weighed against any exculpatory evidence in the record. See supra note 3.

In the present case, the individual's now former girlfriend, the alleged victim in both incidents, testified at the hearing on behalf of the individual. In evaluating exculpatory testimony by an alleged victim of domestic violence, I must be mindful of the unique dynamics of domestic violence. For example, there is a recognized tendency on the part of victims of domestic violence to minimize the violence, or to deny that it occurred. See Personnel Security Hearing (Case No. VS0-0099) (Oct. 9, 1996) (citing Kohler, The Battered Women and Tort Law: A New Approach to Fighting Domestic Violence, 25 Loy. L.A.L. Rev. 1025 (1992)); see also Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 Harv. L. Rev. 1849, 1900 (1996) ("[V]ictims of domestic violence often understate the situation, try to protect the batterer, or blame themselves for the violence.").

On the other hand, I should not reflexively dismiss such testimony as inherently unreliable. I also must recognize the fact that the individual and the alleged victim no longer live together or have a romantic relationship, Hearing Tr. at 68, 87, which fact removes at least one of the reasons that have been cited for denial or minimization on the part of domestic violence victims.(4) I will take all these factors into account in my examination of the events described below.

a. 1994 Domestic Violence Charge

At the time of the individual's arrest in March 1994 the individual was living with his girlfriend. Also living in the house were the individual's ex-wife and daughter. The individual and his daughter "had a discussion. And she said she decided she would take her clothes and leave. So in further discussion, I decided that if that's what she wanted to do that I would help her. So I was throwing her clothes out on the porch." Hearing Tr. at 131. At this point, the individual's girlfriend arrived home.

[My girlfriend] came home, and I don't think she knew what was going on. But she kind of got in the center of it, between my daughter and I arguing and my ex-wife trying to tell my daughter what she could do and could not do; and [my girlfriend] trying to tell me what I could do and could not do; and me throwing clothes out on the porch. Somehow [my girlfriend] got struck in the mouth.

. . . .

I felt bad after it happened. Because I didn't actually know I'd hit her in the mouth until she said, oh you hit me in the mouth. Then she grabbed her mouth. And, you know, I immediately told her that I was sorry. And she just kind of busted out of the house.

Id. at 131, 132.

The individual's girlfriend testified that, after leaving the house, she went to the police station because

I just wanted [him] to calm down. I didn't want him arrested. I just asked him to, you know go calm him down. That's all I asked. And I never thought he would get arrested, to be honest.

Id. at 70, 89.

In her testimony at the hearing, the individual's girlfriend stated that she did not think the individual hit her intentionally. Id. at 69, 89. However, the security concern raised by this event is not contingent on whether the individual's actions were intentional. First, there is the concern that the individual, by recklessly causing injury to another person, may have engaged in criminal behavior. Second, the behavior of the individual, whether or not illegal, demonstrates poor judgment and/or an inability to control his actions. Thus, this behavior brings into question the reliability of the individual.

b. 1995 Domestic Violence Charge

The events leading to the individual's November 1995 arrest for Domestic Violence and Aggravated Assault began when the individual and his girlfriend were at a local bar, and her son was at home alone. Hearing Tr. at 72-73, 91. The individual's girlfriend received a call from her son, who told her that Children's Services had called to see if he was home alone. Id. at 72. The individual's girlfriend testified that her son was panicked, and that she was upset because someone must have reported her to Children's Services, and, "He was twelve years of age. State law says he can be home." Id. at 72, 73.

The individual's girlfriend then left the bar for home, and the individual left shortly thereafter. Id. at 91. The individual arrived home after his girlfriend, whereupon they began to discuss the situation, and his girlfriend asked him whether he had called Children's Services. Id. at 92, 139. Because he felt "accused of something I didn't do," the individual became upset. Id. at 92-93, 139. At this point, both the individual and his girlfriend were upset. Id. at 93, 139.

There are contradictory statements in the record regarding what happened from this point until the time the police arrived at the house. At 1:05 a.m. on the night of the arrest, the individual's girlfriend's son provided the following information in a written statement to the police.

[The individual] came home and started arguing with my mom and told me to go upstairs and then he piked (sic) up the coffee table and threw it. I called a freind (sic) of my mom's and told them and I hung up and came downstairs and listened to them argue then he told me to go upstairs and then he hit her again and I called her friend again and he heard him hit her over the phone and he called the police.

DOE Exhibit 8. At the same time, the individual's girlfriend gave the following written statement: "We argue. He knocked over coffee table. Yelled at me. Rolled up T-Shirt and hit me. It was over my job." Id.

In February 1996, the individual's girlfriend and her son both wrote statements recounting the incident. These statements were written in the office of the individual's lawyer. Id. at 82, 114. The individual's girlfriend stated that she went to the lawyer because she wanted to testify on the individual's behalf. Id. at 82. The individual's girlfriend's son recalled in his 1996 statement that he was upstairs during the argument and heard the coffee table fall over. Individual's Exhibit C. He stated that because he thought the individual had thrown the table at his mother, he called the police. Id. "Then I heard a slapping noise and I ran downstairs and [the individual] had a towel rolled up in his hand, so I guess he was playing." Id. The individual's girlfriend's February 1996 statement

describes the relevant events as follows: "[The individual] has [retinitis pigmentosa]. Because the coffee table was out too far, he knocked it over hitting my leg. As far as hitting me with the rolled up shirt it was more like shower antics. Horse playing--like [the individual], and [my son] do all the time." Individual's Exhibit B.

At the hearing, the individual's girlfriend stated, "[W]hat I believe happened, because I can't remember exactly--I think he accidentally hit [the coffee table] and knocked it over." Hearing Tr. at 74. Regarding her statement to the police that he had hit her with a rolled up shirt, she stated,

It was childhood antics. He wanted to aggravate me to see if I'd take up a towel and get him back.

. . . .

You know, how like you do in a locker room. You roll up a towel, and sling it and snap it at somebody.

. . . .

But he wasn't hitting me hard.

Hearing Tr. at 75. The individual's girlfriend's son provided testimony at the hearing that was essentially consistent with his February 1996 statement. Id. at 104-08. He stated that he thought the individual had thrown the coffee table and had hit his mother based on the noises he heard from upstairs. Id. at 112-13.

In his testimony, the individual agreed that he had accidentally knocked over the coffee table, Id. at 140, and when asked whether there was physical fighting or contact between him and his girlfriend, he stated, "No. Normally when she'd get upset, I'd do things like, try to make her laugh. And, you know, sometimes she'd forget about whatever was bothering her. Or like me and the kids would do, or her sometimes, we'd slap each other with towels or something like that." Id. at 139-40.

One of the officers who arrived at the individual's house testified at the hearing. She stated that she arrived with two other officers and could hear voices coming from the home. The officers listened for "a couple of minutes" and "[w]hen we determined that there was some kind of argument or disagreement going on inside from the voices and the tone of the voices, we knocked at the door." Id. at 11-12.

The individual testified that, after he let the police officers into the house, he told one of the officers, "Let me show you some papers. So I walked to the bedroom . . . . I was going to show her the papers where I had went to this domestic violence classes to just to show her that--cause she said it was a domestic problem." Hearing Tr. at 144. The individual testified that he walked into the bedroom and to a metal closet where the papers were kept.

[In the closet] was a three-eighty handgun that's strapped in a camouflaged holster. And I normally keep the gun laying--it's in a holster in a hat. I pulled the gun and the hat, the whole thing, out. And when I pulled it out, she hollered, he's got a gun. And I said, no, I don't. And I laid the hat back down in the cabinet and she tackled me on the bed.

Id. at 144-45.

The police officer who testified at the hearing stated that after she and the two other officers entered the house, the individual walked into a bedroom adjoining the living room. Id. at 12. She also recalled him saying that he was going to get some papers. Id. at 20. She stated that she followed the individual and that the individual turned to the cabinet and pulled out "what appeared to be a holster . . . . With the holster down in front of him, and pointed at the floor, at that point he was facing me. And he started to unholster a handgun. At that point, I yelled out to the other officers there, gun; drew my own weapon." Id. at 13, 14.

The individual's girlfriend's son described the events that occurred after the police arrived at the individual's home in his November 1995 statement to the police.

A police officer came to the door and asked if their (sic) was a domestic dispute and [the individual] said no and shut the door in her face and she said she was going to have to come in and talk. Then he refused. He said he was not going to jail and then I came downstairs and he let them in and he went to his room and said he was not going to jail and reached in his closet and pulled out his gun and the police takled (sic) him to his bed and took him outside and the police took him to jail.

DOE Exhibit 8. He provided the following less detailed description in his February 1996 statement. "[The individual] reached in the closet door to get some paper for the cops and they tackled him to the bed and handcuffed him; they said he had a gun. The police made me write a report." Individual's Exhibit C. At the hearing, he stated that he saw the individual reach into the cabinet, "and he reached in there and pulled [the gun] out, and he was like scooting it over. He just barely pulled it out enough to scoot it over and stuff. And the police officer yelled, he's got a gun, and tackled him to the bed." Hearing Tr. at 124.

Based on the evidence in the record, I cannot conclude with certainty what happened that night before the police arrived at the house. However, I do have reason to believe that the people involved have in their more recent statements and hearing testimony minimized the seriousness of the events that occurred. First, I find it unlikely that the individual's girlfriend's son would have mistaken a table being innocently knocked over for a table being thrown. I also have difficulty accepting the individual's girlfriend's explanation of her statement to the police. Though she now describes being hit by a rolled up shirt as "childhood antics," and the individual described his actions as trying "to make her laugh," this characterization of the tenor of the evening is inconsistent with the police officer's description of "voices and tone of the voices" of "argument or disagreement" she heard from outside the house when she arrived.

As to the events that occurred after the arrival of the police, it is difficult to reconcile the differences in the testimony regarding this incident and conclude that the individual was guilty of aggravated assault. However, whichever testimony is believed, it is clear that the individual exercised extremely poor judgment. Even if the individual was only moving the gun to retrieve papers (though the coincidence that the papers he claims to have been retrieving happened to be located behind a gun strains credulity), I am astonished that the individual would get anywhere near a gun while three police officers were in the house. A modicum of good judgment would dictate that the individual allow the officers to retrieve the papers, or at least inform the officers beforehand that he would need to move a gun to retrieve them. This behavior presents a serious security concern to the DOE because it indicates the individual cannot be relied upon to control his behavior or exercise good judgment in the future.

c. Factors in Mitigation of Concerns Raised by Recent Charges

The individual's attorney argues that the individual took responsibility for his actions leading to his 1994 arrest. Id. at 172. She points out that he entered a domestic violence counseling program after that incident, actively participated in the program, and accepted the lessons he learned there. Id. The counselor who ran the domestic violence program attended by the individual testified at the hearing and confirmed that the individual was a cooperative and active participant. Id. at 39-42. Both the individual's ex-wife and his former girlfriend testified that they saw positive changes in the individual after he went through the program. Id. at 30-31, 71.

However, it seems the individual was still unable to control his behavior in November 1995, one year after completing the program. Hopefully, the individual's participation in a second program in 1996 following his most recent conviction will help in this regard. But at this time, I do not believe there is evidence in the record of lasting behavioral changes sufficient to overcome the security concerns raised by the incidents leading to the individual's arrests in 1994 and 1995.

I find that the individual's criminal record, taken as a whole, and the actions underlying that record provided the DOE an ample basis to suspend the individual's access authorization based on security concerns raised by the type of behavior described in 10 C.F.R. 710.8(l). As stated above, I assign little weight to the charges brought against the individual in the early 1970s, as these events occurred over twenty years ago when the individual was a relatively young man. However, I cannot ignore the fact that his actions then fit into a pattern of disturbing behavior which recurred in the late 1980s and again very recently. This behavior is troubling in that it indicates that the individual either cannot or is unwilling to control his behavior, and that under stressful circumstances, the individual has failed to exercise good judgment. While there is no evidence that his behavior has in anyway compromised the national security in the past, and there was testimony at the hearing that the individual has an excellent work record, Hearing Tr. at 55-66, I believe that the DOE's justifiable concern about the individual's future behavior warranted the suspension of his access authorization.

B. Section 710.8(f), Falsification

The Notification Letter alleges that the individual provided false information to the DOE in his December 1995 PSI regarding the events leading to his November 1995 arrest. Specifically, the Notification Letter refers to the following statements by the individual: (1) he had not been drinking or been to a bar prior to the incident; (2) he had not hit his girlfriend; (3) the police did not say that he had a "strong odor of alcohol" about him; and (4) he had not pulled a gun out of its holster after the police arrived. Notification Letter, Enclosure 1 at 2-3; DOE Exhibit 7 at 7, 8, 11, 16, 17.

After denying that he had been at a bar or drinking the night of his arrest in November 1995, the individual stated later in the PSI that he had been to a bar and had drunk. Id. at 11, 16. He confirmed at the hearing that he had had half a drink at a bar. Hearing Tr. at 138. Regarding the individual's statement that he had not hit his girlfriend that night, I conclude this statement was false based on the findings in section III.A.3.b.(1) above.

However, I cannot conclude that the individual deliberately lied during the PSI when he said "I got the same statements you got and the officer said, uh, that they didn't, they didn't recognize a strong odor of alcohol about me." DOE Exhibit 7 at 17. It is quite possible that the individual was describing the contents of the police report to the best of his recollection, and without evidence to the contrary, I will assume this was the case. As to whether the individual was dishonest when he stated in the PSI that he had not pulled his gun out of his holster, I note that there was conflicting testimony at the hearing regarding whether the individual began to remove the gun from the holster. The police officer involved testified that the individual "started to unholster" the gun, Hearing Tr. at 14, while the individual's girlfriend's son stated that the individual did not pull the gun away from cabinet at all. Id. at 124. While I cannot reconcile these contradictory statements, there is no dispute that the individual was not able to pull the gun from the holster before the officer drew her gun. DOE Exhibit 9; Hearing Tr. at 14. Thus, I do not believe the individual's statement was false.

Nonetheless, the individual did provide false information during the PSI, and this raises a security concern. The DOE's security program is based on trust and reliability and when an individual breaches that trust, there is a legitimate concern as to whether the individual can be trusted with classified information. Although the individual admitted later in the same PSI to being at a bar and having a drink, he did so only after being confronted with evidence in the record that contradicted his assertion. DOE Exhibit 7 at 16. Moreover, I find that these false statements reflect a pattern on the part of the individual to deny or minimize his inability to control his behavior. This tendency continued through his testimony at the hearing. I do note that the individual's forthrightness during the time he has held a security clearance in voluntarily reporting potentially derogatory information, such as his recent arrests, somewhat mitigates the concern raised in this instance. Hearing Tr. at 162- 64. However, because the individual made the dishonest statements during his PSI only a little over one year ago, I remain concerned that the individual may provide false information to the DOE in the future if he believes it will serve his interests. Therefore, I find that the DOE had sufficient basis under Criterion (f) to justify suspending the individual's access authorization.

IV. Conclusion

For the reasons set forth above, I find that because the conduct of the individual raises serious questions regarding his honesty, reliability, and trustworthiness, the DOE properly invoked 10 C.F.R. § 710.8(l) in questioning the individual's eligibility for access authorization. I am also of the opinion that the DOE was justified in invoking 10 C.F.R. § 710.8(f) based on the individual's false statements during his December 1995 Personnel Security Interview. Accordingly, 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, and it is my opinion 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 this Hearing Officer's Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and served on the 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

Staff Attorney

Office of Hearings and Appeals

Date: February 7, 1997

(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 or security clearance.

(2)Cf. Personnel Security Hearing, 26 DOE ¶ 82,756 at 85,544 (1996) (affirmed by OSA) (quoting 21 Am. Jur. 2d Criminal Law § 490 at 806) ("A guilty plea is ?an admission or confession of guilt, and as conclusive as a verdict by a jury . . . . For this reason, it would take convincing evidence for me to disregard the legal and factual implications of [the individual s] guilty pleas."); see C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4474 (citing Myers v. Secretary of Health and Human Services, 893 F.2d 840, 842-44 (6th Cir. 1990)) ("Criminal Rule 11(e)(6) and Evidence Rule 410 preclude use of a nolo contendere plea as evidence in a subsequent civil or criminal proceeding. They do not apply to an administrative proceeding. . . . Some statutes specifically provide for action based upon the fact of conviction; decisions under those statutes make it clear that a conviction based on a nolo contendere plea has the same effect as a conviction on a guilty plea or after trial. A nolo contendere plea also can be relied upon in an administrative proceeding even in the absence of such a statute.").

(3)The individual called to testify a substance abuse counselor who stated that the individual was not alcohol dependent. Hearing Tr. at 45-54. I accept the validity of this testimony, but note that the DOE has not alleged that the individual was alcohol dependent. Such an allegation would normally be made by invoking Criterion (j) of the regulations, which describes information that a person has "[b]een, or is, a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse." 10 C.F.R. § 710.8(j).

(4)Cf. Fischer, Vidmar & Ellis, The Culture of Battering and the Role of Mediation in Domestic Violence Cases, 46 SMU L. Rev. 2117, 2140-41 (1993) (citing K. Fischer, The Psychological Impact and Meaning of Court Orders of Protection for Battered Women 92 (1992) (unpublished Ph.D. thesis); L. Kelly, Surviving Sexual Violence 146, 193 (1988); quoting Kelly, supra, at 147) ("The coping strategy of minimization, like denial, allows women to escape temporarily from the pain and trauma of the violence. Women may not identify themselves as battered, citing a lack of physical abuse or examples of women who have been more severely abused. Minimizing the abuse also may involve attending to the positive aspects of the relationship, reducing the impact of the abuse on the victims' lives. As Liz Kelly wrote, minimization is fostered by the cyclical nature of domestic violence: ?Where there were long gaps between violent episodes, women tended to minimize the violence by choosing [to] focus on the time when it was not occurring and by hoping that it would not occur in the future. ").